Posted by Edmund Burke, a resident of Another Palo Alto neighborhood, on Mar 8, 2013 at 10:05 am
Barbara Mitchell and Dana Tom want you to think that the law is unclear and that PAUSD is caught up by a federal definition of harassment that is overbroad and "differs significantly from current law, including California law, which defines bullying and school responsibilities very differently."
This is an abject falsehood.
They quote a 3 year old letter from National School Board Association complaining to OCR that it "is creating an expectation that school officials are to respond to each and every offensive incident as if it were a civil rights violation."
What they don't say is that three years ago Assistant Secretary of Education Russlynn Ali responded point by point to this letter showing that it was misguided and based on a misunderstanding and misreading of the law. You can read Assistant Secretary Ali's response here: Web Link
This is a little complicated for nonlawyers to understand, and that complexity is something that Mitchell and Tom are counting on. I will try to explain this in simple layman's terms.
The US Department of Education gives a lot of money to school districts including PAUSD.
Because the US Department of Education gives us that money they have the right in exchange for that money to place conditions on how we use it. One of those conditions is that we follow US Department of Education guidance on protecting student civil rights. This is not new. It is a federal law with a long and important history. It is how Lyndon Johnson desegregated southern schools. OCR is the agency that enforced desegregation. It is also the agency that enforces TItle IX and ensures that universities and colleges that receive federal funding treat female athletes fairly. Another law that OCR enforces is the law against harassment based on race, sex, disability or other protected classifications. That is the law PAUSD broke.
There are two ways that a student who has been unlawfully harassed can complain. One way is to OCR. In that case, OCR can order the school to stop discriminating and put it on a Resolution Agreement. That is what happened here. There are no money damages for that, only an agreement to stop discriminating. The other way is for the student to sue in federal district court for money damages. That has not yet happened in this case.
The standards in the two different kinds of enforcement (OCR and suits in federal court) are a little bit different but not in a way that matters for this case.
In 1999 the Supreme Court decided that school districts could be liable for peer-to-peer sexual harassment in a case called Davis v. Monroe County Board of Education. In order to be liable a district has to have actual notice of the harassment. It is not enough that the district should have known, the Supreme Court said. It has to actually know and do nothing.
OCR issued a Dear Colleague Letter in 1999, then again in 2000 specifically addressing the standard for its enforcement under federal law (called "injunctive" relief) and comparing it to the standard for money damages decided in the Davis case. OCR decided that when a district is sued for money, the Court may hold the plaintiff to a higher standard of evidence of wrongdoing (actual notice) than when OCR seeks to merely ensure best practices. OCR determined that it would continue to expect schools to prevent harassment about which they knew or reasonably should have known. This has been the law consistently since 2000. Every school district has been on notice since 2000 about that and you can read all about that in Secretary Ali's letter above.
But it doesn't matter because PAUSD did know about the harassment in this case. This is not a case in which the NSBA complaint has any relevance at all. It is just a smokescreen trying to create an impression that PAUSD was treated unfairly by the big, bad federal government.
PAUSD would be liable under both standards. PAUSD had actual notice of the harassment in this case and did nothing.
The principal knew. She thought it wasn't harassment and that her staff was very "sophisticated" so she didn't need training.
The Assistant Principal knew but he told investigators from the government that he didn't know.
The Compliance Officer Charles Young knew.
The Director of Special Education knew.
The Superintedent knew.
These officials received upwards of two dozen emails, verbal, and written complaints about discrimination. In March the family notified the district in writing that if it did not address the harassment, including a physical assault in which the little disabled girl was punched in the face so hard she had to go to to doctor and the police were called -- the family notified Kevin Skelly that if he did not address this known harassment they would go to OCR.
Nothing was done and they went to OCR.
So there is no issue of complicated law, changing standards, or conflict with CA law. In fact, CA law is entirely consistent with federal law. However, even if it was not in our federal system federal law would preempt any conflict.
The law is not hard to follow, changing, or ambiguous. Our elected leaders are shading the truth to protect themselves and Kevin Skelly. Or perhaps they are just unable to understand what has happened. Either way, they are not competent to address this situation and have conflicts of interest.
Dana Tom personally had notice of the discriminatory harassment and did not refer the written complaint he received to the correct compliance officer. Instead he condescendingly told the family that it would get "better results" if they trusted the school and worked through the principal. The "very sophisticated" principal.
Dana Tom would like now to tell you that the law was complex. But the truth will come out, eventually, under oath. And the reason it will is that the district did have actual notice -- including Dana Tom. And the district did not take appropriate action. That meets the standard set by the Supreme Court under Davis.
One more issue bears mention. Barbara Mitchell implies in the news story that there are private facts about this child's case that she knows but you do not know that somehow exonerate the district. She says that "the whole story isn't public," Mitchell said. "I'd ask people to reserve judgment."
This isn't true. There are no facts that do anything other than cast Mitchell, Tom and everyone else in a very negative light. You can merely read the OCR report to see that.
By making this sideways attack on the family's credibility, Mitchell is simply provoking the lawsuit that she ought to be interested in preventing.
Finally, Mitchell and Tom state that they "are not disappointed" with the results of the OCR investigation. This statement is breathtaking in its hubris and also in its failure to comprehend the dire situation for governance and litigation risk created by the board and staff.
OCR received 1513 complaints of disability harassment in the past 4 years. Of those, only 14, fewer than 1% were school districts who ended up with letters of finding against them following full investigations. All others were either dismissed for lack of evidence or resolved prior to a finding. The other 13 districts are primarily poor and rural, such as Opelika City, Alabama and Catoosa County Georgia. These are places with a history of civil rights violations. They are not the school districts PAUSD should be keeping company with.
To say you are "not disappointed" in that is to say that you have no business serving the public. This guest opinion by Mitchell and Tom displays why a committee comprised solely of board members is insufficient to restore public trust.
We need a blue-ribbon panel comprised of independent citizens who are respected by all sides such as Susie Richardson, or Joe Simitian. Not another opportunity for sad dissembling like this editorial.