School board to consider repeal of resolution criticizing federal agency

The Palo Alto school board will consider rescinding Tuesday night a resolution adopted in 2014 criticizing the U.S. Department of Education’s Office for Civil Rights, slamming the agency for making a “faulty” determination in an investigation, allowing for a “process open to exploitation” and “excessively burden(ing)” district staff, among other grievances. District leadership at the time called the agency’s investigative practices “purposefully confrontational.”

The resolution also accused one of the complainants against the school district of “document tampering,” an allegation that was determined to be false by Office for Civil Rights attorneys.

Now, close to three years later, a new board facing impending findings in two different Office for Civil Rights investigations could decide to repeal the unanimously adopted resolution, thereby signaling a new era for the Palo Alto school district’s relationship with the federal agency.

Vice President Ken Dauber proposed repealing the June 2014 resolution at the board’s Jan. 24 meeting, an amendment seconded by trustee Todd Collins. However, the repeal was not on the agenda and after concerns expressed by the other two board members, Dauber agreed to bring it back on a future agenda.

Dauber has long opposed the resolution and also called for its repeal during his run for school board in 2014. During the fall 2014 election campaign, current board President Terry Godfrey said she would not have voted for the resolution if she had been on the board in 2014, but did not say whether she supported a repeal.

Newly elected board members Collins and Jennifer DiBrienza stated their objections to the resolution during their 2016 campaigns. In an endorsement interview with the Weekly last fall, Collins called it a “mistake” and “not a battle that’s appropriate for me to fight, particularly as a steward of a public agency.” DiBrienza also said in her endorsement interview that she would have opposed it if she had been on the board in 2014.

“When there is a federal organization that is charged with trying to protect the civil rights of its citizens, if they come in and tell you that you did something wrong, in my mind, you say ‘thank you; how can you help us fix it?’ Period,” DiBrienza said.

The board’s fifth member, Melissa Baten Caswell, is the only one who was serving when the resolution was originally adopted.

District leadership is now supporting Dauber’s proposal, recommending the board either repeal the resolution or adopt a new one that reflects what the district says is now a more cooperative and positive relationship with the Office for Civil Rights.

“We do not do so lightly as we have great respect for the board that passed the resolution,” Superintendent Max McGee wrote in a staff report this week. “Also, while we acknowledge they clearly had challenges with OCR’s processes at that time, we think it is important to close that chapter and look to the future.” McGee joined the district in July 2014, a month after the resolution was passed by the board. He stated at the time that he had not been consulted by the board.

This year, with a new board, new superintendent, new legal team supporting the district’s work with the civil-rights agency and new Office for Civil Rights staff working on the cases, “we have formed new working relationships that we would like to see reflected in a new Resolution or by rescinding of the former one,” McGee wrote.

Despite previous complaints about the length of the two open investigations and a lack of communication from the Office for Civil Rights, McGee said the federal agency has been “promptly responsive” to district requests since December, when it released a draft resolution agreement on its investigation into sexual harassment and sexual violence at Palo Alto and Gunn high schools. A memo prepared by the district’s attorney that documents a Jan. 19 meeting with federal officials notes that “OCR believes its investigation took so long partially because it was denied access to information during its investigation.”

In October 2014, McGee, Baten Caswell and then-board president Barb Mitchell sent a letter to Arne Duncan, then the secretary of education, detailing concerns about the Office for Civil Rights, including that their investigations in Palo Alto had stretched beyond a 180-day timeline for resolution.

McGee now does not “see the value” in the resolution’s commitment to lobby elected officials and organizations to further examine the district’s complaints about the Office for Civil Rights’ practices and procedures. In 2014, the district prepared and sent a 12-page document detailing its complaints and suggestions for reform to Duncan and other local and national elected officials as well as organizations.

The school district spent just under $50,000 for attorneys to research, develop and follow-up on the resolution criticizing the agency.

At the Jan. 24 meeting, Dauber also voiced concern that the resolution has “a lot of national visibility,” including being cited by other school districts in their own critiques of the Office for Civil Rights. The Texas Association of School Boards authored a document last year, for example, that quotes directly from a memo on the resolution authored by two board members and then-superintendent Kevin Skelly.

“School boards around the country took note of the district’s boldly public challenge to the authority of a federal agency,” the Texas school-board association wrote.

In a blog post posted Saturday, Dauber wrote that it is time to repudiate the district’s historical “program of resistance” with the Office for Civil Rights.

“The actions authorized by the resolution are not in the best interest of our students and district, and the resolution as a whole is inconsistent with the cooperative relationship with OCR that the current board and senior staff support,” he wrote.

Putting the district “on the right side of the issue of civil rights enforcement” will be particularly important, Dauber added, under the new presidential administration, which could move to cut back on the Office for Civil Rights’ enforcement ability.

In an unusual letter, former trustee Barb Mitchell urged the board Monday to not rescind the resolution, but rather adopt a new one “that faithfully reflects current district experiences and interests.”

Without citing any authority or regulation, she opined that the resolution, as a “permanent public record” approved by a previous board, cannot be repealed by the current board.

“It’s [sic] purpose was to inform and promote efficient and fair practices going forward, while recognizing the vital shared responsibility to protect the civil rights of students,” Mitchell wrote. “The document is not subject to ensuing edits or rescission by the 2014 board, let alone by subsequent school boards.”

This assertion is incorrect, Dauber wrote in an email to the Weekly Monday. He pointed to a portion of state Education Code that says school boards can “act in any manner which is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which school districts are established.”

“The idea that the school board can’t change policies set by a prior board is obviously incorrect — whether those policies concern civil rights, math textbooks or the school calendar,” Dauber said.

“We are certainly not locked into a resolution that sets the district against civil rights enforcement in public schools, particularly at a time when the Trump administration is aggressively cutting back on Title IX and other civil rights laws that protect students.”

The proposed repeal of the resolution was also the subject of a group email sent to an unknown number of people by Palo Alto parent Lauren Janov and obtained by the Weekly. Janov cited board bylaw 9200, which states that “Board members shall hold the education of students above any partisan principle, group interest, or personal interest,” but did not explicitly take a position on the proposed repeal.

The board will also discuss Tuesday an updated draft resolution agreement with the Office for Civil Rights on the two investigations into sexual harassment and sexual violence at Paly and Gunn. With board direction and legal support, McGee and senior staff have been working on the agreement, requesting some clarifications and additions but mostly leaving the agency’s directives for compliance intact.

Staff is recommending the board approve the agreement, which is “in nearly final form,” McGee wrote in a staff report.

In response to questions Baten Caswell posed in January, Office for Civil Rights staff said they will not add any language beyond what is already written in the agreement about its three-year monitoring period of the district, nor approve language about the agreement being voluntary. They agreed, however, to add that “execution and performance of the terms of this agreement do not constitute any admission of liability or any admission of a violation of federal or state law.”

The district has until March 7 to finalize the resolution agreement, which outlines specific remedial action for the district that will be obligated to address its failure to comply with federal law.

In other business Tuesday, the board will vote on a staff recommendation to approve a third elementary mathematics curriculum for pilot this year; vote on a board commitment to provide opportunity for public comment; and discuss several facilities projects, including the renovation of Paly’s library, new science classrooms at Paly and Gunn and the rebuilding of JLS Middle School’s swimming pool. The meeting will begin at 6:30 p.m. at the district office, 25 Churchill Ave. View the full agenda here.