The Incredible Shrinking Bullying Policy | Observations on Education | Edmund Burke | Palo Alto Online |

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By Edmund Burke

The Incredible Shrinking Bullying Policy

Uploaded: Mar 11, 2014

Palo Alto parents who review the district's long-awaited new bullying policy are in for quite a surprise. Rather than the clear, consistent framework for handling bullying complaints that they have been repeatedly promised, the new draft of this policy that Superintendent Kevin Skelly has recommended for adoption has been stripped down until there is little left in the way of procedure or protection.

All deadlines and timelines have been deleted, documentation requirements have been minimized, and appeals to the district level have been eliminated. What's left is the outer husk of a policy, but without the kinds of steps and processes that would make it meaningful.

The good news is that thanks to the intervention of the US Department of Education's Office for Civil Rights this new bullying policy will not apply to students who are bullied based on a factor like race, disability, sexual orientation, or sexual harassment. The bad news is that it applies to everyone else.

Two-Tiered Policy. I have written here and here about PAUSD's decision to use a "two-tiered" bullying policy. Under this two-tiered approach, bullying that is based on discrimination -- factors like race, gender, sexual orientation, and disability -- will be handled under a state-mandated process called the Uniform Complaint Procedure (UCP).

First Tier. The UCP provides parents and students with a standardized, district-level process for complaints. When a written complaint of discriminatory bullying is filed with a school official, it must sent to the district office within 2 days (a complaint can also be filed directly with the district office). Once received, it must be documented. Within five days the district compliance officer must begin a thorough investigation. Within 60 days, the compliance officer must issue a written decision that includes specific elements such as findings of fact and conclusions of law, and inform complaining parents that the decision is appealable to the California Department of Education.

If an oral report or complaint of discriminatory bullying or harassment is made to any employee they have to report it to the principal within one school day. The principal must then, within one school day, inform the person making the report of his or her right to file a written complaint under the UCP.

The California School Board Association strongly recommends that districts use these procedures for all bullying investigations in order to ensure consistent implementation of bullying complaint procedures. Similarly, the California State Auditor concluded after a study of the way districts handle bullying complaints that site-based resolution processes resulted in a lack of documentation and poor compliance with procedures, timelines, and appeal rights.

According to the Auditor, it is a "best practice" to use the Uniform Complaint Procedure for all complaints of bullying, regardless of whether it is based on a protected status. But PAUSD rejected this recommendation in favor of a two-tier system.

Second Tier. Complaints of "ordinary" bullying -- that is, bullying that is not based on a protected status -- are handled under the new proposed site-level bullying complaint policy. This policy offers far less protection than the UCP. First, it applies only to the most serious bullying, conduct so damaging that it would justify suspension or expulsion. In order to be considered "bullying" under the new policy, the conduct must be so objectively severe and pervasive that it causes very substantial detrimental effects to the target.

This is an unnecessarily restrictive definition. Parents, students, and staff should have access to an orderly process for receiving and handling complaints of bullying behavior before the situation becomes serious. The goal should be prevention, not merely reacting to those incidents that are already severe enough to warrant expulsion.

When the policy was first proposed it included a definition that was drawn from the leading evidence-based bullying prevention program, designed by Swedish psychology professor Dan Olweus. This definition is "aggressive behavior that is intentional and that involves an imbalance of power. Most often, it is repeated over time."

The Olweus definition is sensible. It is restrictive enough that it would not result in teachers and administrators being overrun with paperwork or sending every instance of ordinary childhood misbehavior to the district office. However, it would encompass more than just those few cases that are already out of control.

Unfortunately, the Olweus definition was deleted from the PAUSD draft policy in February in favor of the very narrow definition drawn from the disciplinary code. Unless it meets that new, much higher threshold, a complaint would not even receive the minimal process provided by this proposed site-level process. If not, then according to this flowchart accompanying the new draft, that's the end of the complaint procedure.

An Illusory "Process." But even in those few, extremely serious cases that are able to meet the district's new, stringent definition of bullying, the process is surprisingly minimal. There are no timelines for filing a complaint, documenting a complaint, conducting an investigation, reaching a decision, communicating that decision, offering aid to the targeted student, or anything else.

As a letter sent to the school board this week from a group of concerned community members notes, when the two-tier process was first proposed, it contained a host of requirements which have now been deleted, including:

1. Immediate notification of the parents of both students when an oral or written report of bullying is received (page 12);
2. Documentation of all reports or complaints within 5 school days (page 11);
3. Written decision including any corrective actions taken provided by the principal to both parties and district office within 15 days (page 13);
4. Both parties notified of a right to appeal the decision to the district office within 15 days (page 14)

Over the past two months as the district has worked on its draft bullying policy, it has removed many of these elements of basic procedural justice such as a transparent, orderly process; understandable rules; and the ability to appeal to a neutral decisionmaker. Thus, the gap has widened considerably between the "first-tier" protection provided to children who are bullied based on factors such as sexual orientation or disability, and the "second-tier" protection provided to children who are bullied because they have brown hair, or freckles, or for no reason at all.

The lack of timelines and procedural requirements means that each site is free to decide when and how to respond to complaints. The fact that there is no appeal means that parents are unable to turn to the district for review of those site-level decisions, and there will be no way for the district to assure consistency across sites.

This is not what the community was promised.

Broken Promises. District leadership repeatedly assured the community that the finished bullying policy, while not as robust as the UCP, would at least provide a floor of procedural protection across all sites for all bullying complaints, including a 15-day timeline and a "right of appeal" to the district office. Kevin Skelly said that the two-tier policy would be an advantage, because it would have a "much quicker timeline" than the UCP. On January 28, Skelly identified a "timeline for responsiveness," and a clear grievance process for appeal to the district level as core elements that would be included in the bullying policy.

The district has had a number of task forces and climate committees working over the past year on the goal of developing tools to help clarify reporting of bullying, specifically including timelines. Last summer, the "Stepping Up Task Force" was assigned to "develop tools that will help clarify for students, staff and parents how bullying can be reported, action that must be taken and timelines." Meanwhile the similarly-named "Stepping Up for Safe and Welcoming Schools Task Force" also conclude that there was a need for a clear complaint process that included timelines. PTAC participated in these committees, and PTAC President Sigrid Pinsky stated that that the goal of this process was a comprehensive policy with a common definition and set of procedures that would produce "consistent responses" across sites.

Student Services Coordinator Brenda Carillo, who has headed up the drafting of the two-tier policy assured the board and the community over a year ago that the goal would be to have a "standard reporting and complaint procedure." Board member Heidi Emberling, who is just joining the Board Policy Review Committee this week, likewise stressed the need for "consistency across school sites" with respect to complaint procedures. This was recently echoed by Board member Melissa Caswell, who said at the December 3, 2013 Board Policy Review Committee Meeting that the new policies should be "clear, fair, and consistent" in every site.

What happened? Why after making all of these promises did PAUSD suddenly change course? In December 2013, the district had a draft bullying policy that met all of the above criteria -- timeline, appeal, clear consistent process -- ready to go.

This draft was in the making for more than year and had been thoroughly vetted and approved by the district's lawyers, federal and state governments and by the California School Board Association. Yet it was abandoned before it was even brought to the board for a full public discussion. This about-face is confusing and disappointing.

The community has never received a satisfactory explanation for the decision by the district to throw out a year's worth of work. On January 28, Skelly told the board that teachers objected to escalating bullying concerns to the district office, while principals did not want to add a new procedure for bullying. This evidently drove the deletion of timelines, notification and documentation requirements, and an appeal process.

So, despite the repeated promises that the district would have a bullying complaint process that reflected the core community "value" of a consistent, comprehensive approach to bullying that includes timelines and and an appeal mechanism, that draft was discarded. In its place, we will have a "process" that provides none of the promised values.