After spending 11 months working with federal and state agencies on developing new bullying policies and complaint procedures, the Palo Alto Unified School District could finally be poised to consider their adoption after receiving final approvals last week.
If adopted, the new policies would bring the district into compliance with state anti-bullying laws that went into effect July 2012 and also meet requirements of a resolution agreement with the federal Office for Civil Rights in connection with the case of a middle school student bullied because of disability.
The spotlight has been on the school district's bullying policies ever since an investigation by the Office for Civil Rights, detailed in a report issued last December, revealed systemic shortcomings in Terman Middle School's handling of a bullying complaint. The report documented a lack of organized inquiry, failure to interview witnesses, poor record-keeping, lack of familiarity with the law, inadequate training, piecemeal and ineffective measures to stop the bullying, and failure to adequately address the effects of the hostile environment created by the bullying.
As a result of these findings and subsequent resolution agreement, the federal agency imposed corrective actions, which included updating district-level policies and procedures to guide school staff, parents and students in addressing complaints of bullying. The goal of the updated policies, as described by school board members and district staff in board meetings in February, was a more standardized approach to investigating and resolving reports of bullying.
"It is important for the community to know that we would like to see consistency across the district on this and that we are working towards that," school board member Melissa Baten Caswell said at that time. Caswell also wrote in an email to Superintendent Kevin Skelly: "We need to make sure our staff understands (that new policies and regulations) are being created (and that) we expect them to use the processes that are contained in these documents."
The staff, parents and students have been waiting ever since for the new policies and procedures to emerge. Their development has taken longer than anyone expected, prompting city officials and others in recent months to express exasperation about the continued absence of promised rules to guide parents and students in the event of a bullying incident.
"It would be helpful to have a clear policy," Councilwoman Liz Kniss told school board members Caswell and Heidi Emberling at a City-School Liaison Committee meeting in September.
"My sense of the community is there's been an uneasiness about how it's been handled in a policy direction, and I've said that as gently as I can."
Assistant City Manager Pam Antil, who participated in the meeting and who has two children at Jordan Middle School, said parents need clear guidelines on reporting bullying, which the district has failed to provide despite a barrage of information on other topics.
"We get 25 emails about the dress code and how long shorts can be, but it's very silent on what to do if my daughter is getting nasty messages from another person on social media."
At the meeting, Caswell, Emberling and district staff member Brenda Carrillo indicated that the policies were still "in development," which has become a standard refrain.
What the school district officials did not explain at the September meeting is that the Office for Civil Rights had signed off on a final draft of new bullying policies and procedures in early August, according to school district attorney Dora Dome. Instead of moving forward to adopt the new policies, however, the district decided to take the additional step of seeking state-level sign-off from the California Department of Education (CDE) and the California School Boards Association (CSBA), as requested in a letter dated Aug. 20, signed by Skelly and Dome and attaching the proposed policies.
In seeking these additional state-level approvals for the new policies, Skelly explained: "We are trying to get as much input as we can and make sure that OCR, CDE and CSBA are comfortable and confident in this effort."
On Friday, the district received word that the state association and education department had reviewed the proposed policies, had no concerns about any of the provisions and would be issuing a joint letter to that effect this week, according to Skelly and to CSBA's communications director, Suzanne Meraz, in an email to the Weekly.
Still, these multiple endorsements may not be sufficient for the board to move forward to recommend adoption of the draft policies, according to Skelly.
"I'm not sure that being OK will be strong enough for the board, but let's wait until we get the letter," Skelly wrote in an email to Dome.
Skelly told the Weekly the next step in the process will be discussion at the board's policy review committee, which Caswell and board member Camille Townsend serve on, scheduled to meet next on Nov. 13.
"I can't speak for the board, and until the BPRC (Board Policy Review Committee) is ready, we won't bring it to the board," Skelly said. "Nothing is decided yet."
As currently drafted, the policies would create a two-tier system for handling bullying complaints. Cases involving bullying based on "protected characteristic" (disability, race, sexual orientation, etc.) would be investigated and resolved using a district-level process called the Uniform Complaint Procedure (UCP), as required by law and the resolution agreement.
Other cases of bullying, not involving "protected" characteristics, would be handled under a different set of rules at the school level, with fewer procedural protections.
If adopted, the policy would result in different treatment for different types of bullying victims, which is allowed under current federal and state law but for which there is no clear model.
Despite the federal and state OKs for Palo Alto's policies, Skelly said that the school board may yet hesitate about moving ahead because of the policies' lack of alignment with what the CSBA has recommended for its member districts. Neither the overall bullying policy, nor the updated Uniform Complaint Procedure (UCP), which the Office for Civil Rights substantially revised, match CSBA's templates.
"If OCR wants a different UCP, in my opinion, they should not use Palo Alto to come up with a different board policy on dealing with the UCP; they should instead work with CSBA who is supplying the UCP for thousands of districts," Skelly said.
While the CDE and CSBA don't have a problem with the district's policy proposal, "They are not ready to adopt it as a model," Dome wrote in an email to Skelly, referring to one possible hoped-for stronger level of endorsement from the state agencies.
Two key areas of the policies remain under consideration, according to Skelly and Dome, and both are complicated. One involves the proposed UCP (BP/AR 1312.3). The other involves a separate proposed policy labeled "Bullying" (BP/AR 5131.2). The drafts of both can be found on the district's website attached to the Aug. 20 letter. Together, they create the two-tiered system for handling bullying complaints.
Under state law, the UCP is required for any bullying complaints involving discriminatory elements and must include minimum procedural protections, including: a process for investigation, a required written decision about the investigation's findings and outcome, a 60-day time limit for process completion and appeal rights to the California Department of Education. Use of the UCP at the district level as opposed to the school level allows for more effective state monitoring of discrimination complaints and district accountability, which is also part of the state law mandate. Each district is permitted to develop its own version of the UCP as long as it includes these basic state requirements.
The list of characteristics protected under federal and state anti-discrimination laws include actual or perceived race or ethnicity, color, nationality, national origin, ethnic group identification, age, religion, physical or mental disability, sex, sexual orientation, gender, gender identity, gender expression, or association with a person or group with one or more of these actual or perceived characteristics.
In meeting these laws, the district's proposed version of the UCP, according to Dome, provides an unprecedented level of detail in its process description, well beyond the CSBA's "bare bones" version. The added details were suggested by OCR, although many were borrowed from the CSBA's separate policy for handling sexual harassment complaints, Dome said.
For the bullying complaints not involving protected characteristics, the district created the second tier to keep as many complaints as legally possible at individual schools to avoid "overburdening" district office staff, Dome told the Weekly. This second-tier procedure was created at the district's initiative and also contains extensive modifications to the CSBA sample policy, which has no second tier.
In crafting this dual system, and in incorporating a beefed-up version of the UCP as urged by OCR, the district would be breaking new ground on two fronts.
More typically, the board prefers closer adherence to CSBA's sample policies, with board members often citing "legal security" and "indemnification" benefits derived from the CSBA contract if templates are followed.
In fact, as the Weekly learned last week, these so-called legal protections are a misconception.
According to Skelly, in the past few months, "We've gone back and looked at the contract" and in fact there's no specific legal protection attached to following the policies. This misconception got started a few years ago when the district began using the CSBA policies, Skelly explained, and it became a common belief among board members and district staff.
This helps account for the otherwise-puzzling advice from CSBA policy consultant Cindy Akin in response to a July email from Skelly's executive assistant, Liat Baranoff, seeking CSBA feedback on the draft policies, including "whether these policies might be recommended by (CSBA) for use more widely to other districts."
Akin wrote: "Bottom line, do what your attorney advises you on this. ... At this point, CSBA is comfortable with what we put out as sample material; however, it is only sample material and is intended to be modified by districts."
Skelly told the Weekly he will "certainly update board members on that to make sure they're all clear."
Even without formal legal protections, however, Skelly said he places high value on CSBA's legal expertise in recommending sample policies and finds a "comfort zone" in following CSBA's lead, in addition to organizational benefits in tracking and making policy updates.
If following the CSBA's sample policies is such a large concern, why didn't the district draft policies more closely aligned with CSBA samples? With regard to the two policies in question -- the UCP and the bullying policy -- the answers are different.
In the case of the UCP, it was OCR pushing for the suggested revisions to flesh out the CSBA policy, according to Dome.
"They clearly insisted on different, more detailed language," Dome said. Her conclusion was that OCR had found CSBA's policy noncompliant with federal law, although OCR did not say so directly.
This conclusion was central to the plea made in the district's Aug. 20 letter to CDE and CSBA. Skelly and Dome asserted that OCR had determined that the CSBA's sample UCP policy was not compliant with federal law and that "this has significant legal implication for every school district in the state." The letter said that in light of "conflicting interpretations of what federal and state law complaint procedures require," it is "imperative" that the three agencies (OCR, CDE and CSBA) collaborate on an "agreed upon Uniform Complaint Procedure and provide the guidance needed by school districts in the state."
This characterization of the OCR's legal position was called into question by OCR's regional director, Arthur Zeidman, who protested in an email to Skelly and Dome the next day that the letter's description of OCR's concerns is "not accurate in several respects."
Dome discussed Zeidman's email with OCR attorney Gayle Sakowski and told the Weekly that Sakowski said that the OCR objected to anything in the letter that said that OCR had made a determination of legal "noncompliance" regarding CSBA policy language.
Does this mean the OCR would allow Palo Alto to revert back to using the CSBA's UCP? The answer to that is not clear, according to Dome, but both Dome and Skelly suggested that the district may want to consider that option.
"OCR may have to make a definitive decision on this," Dome said. If not required by the OCR, Palo Alto "doesn't want to be the only district with this unique version of the UCP," Dome said. "It's too far out there."
Legalities aside, there is also the question of which version of the UCP is better, the one CSBA offers or the one OCR crafted. Sakowski told Dome that she believes the OCR's suggested revisions resulted in a more comprehensive, well laid-out process description that provides better guidance to families, the district and school staff.
Dome said she agreed with Sakowski.
"It's a sound policy," Dome said. The district would be "ahead of the game to adopt it."
The ideal, Dome indicated, would be for the CSBA to embrace the policy as a model and recommend it for use statewide.
In an odd and ironic counterpoint to the UCP situation, Palo Alto's proposed two-tiered complaint structure for bullying complaints takes a direction opposite from what the CSBA's sample bullying policy provides, but in this case, at the district's own initiative. Contrary to the dual system, the CSBA "strongly recommends" that districts use the UCP for all bullying complaints, even those without discriminatory elements, to "ensure certainty and consistency for students, parents and staff when addressing all bullying complaints, regardless of whether or not a bullying incident might involve discrimination," according to an email from CSBA to the Weekly, quoting General Counsel Keith Bray.
This means that while the district would prefer, on the one hand, to be "tethered" to the CSBA, as Skelly said, with regard to its UCP, at the same time its proposed new bullying policy eschews CSBA's recommendation on how widely the UCP should be used and makes extensive changes to the CSBA's bullying policy template, including crafting a whole new administrative regulation from scratch.
Dome, who Skelly says has been handling "almost all of this" for the district, told the Weekly that she disagreed with the CSBA's recommended unified-system approach and advised the district last spring not to follow its lead. She believes the CSBA's unified approach is not practical, not required under state or federal law, and could lead to "hundreds of complaints a month" filed at the district level, too many for a compliance officer to handle without getting "bogged down."
The Palo Alto school board has not publicly discussed or voted on the policy direction to pursue a two-tiered bullying complaint process. Caswell and Townsend have met with Skelly and Dome over the past months to discuss policy development, but Caswell told the Weekly she was not aware that the CSBA had recommended against the direction in the district's proposal until informed by the Weekly. Last week Skelly also said he did not remember hearing that the CSBA had recommended against the dual complaint process being drafted by Dome.
Dome said she presented her recommendation, along with the CSBA's recommendation to the contrary, to district staff and the board's policy review committee in the spring, and that district officials agreed with her conclusion to reject the CSBA's approach. Caswell told the Weekly that she recalled the district staff recommending the bifurcated system to avoid "overburdening" the district office with too many complaints.
According to Dome, OCR attorneys "collaborated" with the district in drafting the new policies to create the bifurcated system, though at first OCR "leaned toward using the UCP for all." Dome said she told OCR that using the UCP for all bullying complaints was "untenable as a practice."
In fact, according to Dome, no complaint process at all is legally required for bullying complaints that don't involve protected characteristics.
Still, to craft a policy that would steer "unprotected" bullying complaints away from the district office was not a simple task. A May 31 email from OCR to the district described the need to develop procedures "for which there is no model" and the need for "tailoring (procedures) specifically to the district's preferences" while at the same time "trying to meet both state and federal requirements."
Dome acknowledged challenges when it comes to classifying complaints in this dual system. Many families "won't understand what a protected class is," she said. That's why, if adopted, administrators will need training on how to make that determination and to "err on the side of caution." If doubt exists, administrators will be instructed to seek the advice of the district compliance officer (designated as Associate Superintendent Charles Young) and/or tell the family how to use the UCP.
"We will probably need parent workshops to explain this," Dome said.
In a Weekly interview last week, Skelly questioned whether the board would want to deviate from the CSBA's recommended approach with regard to its bullying policy and the two-tiered system.
"We haven't made a decision on this," he said. "I don't feel today that this would overwhelm the system. I need to go back and look at that."
According to district documents, since 2006 there have been no district-level UCP complaints filed alleging discriminatory bullying or harassment and only eight involving other types of claims (there also have been seven discrimination complaints filed with the Office for Civil Rights since 2011). The district currently has no reliable means for tracking numbers or types of reported bullying incidents, according to district officials, so expected numbers are difficult to predict.
Another factor is that the district's draft UCP allows for informal resolution at the schools, with agreement of the complainant, within a time limit of 10 days, allowing for potentially significant school involvement under the proposed new rules even for complaints filed at the district level.
As the district staff and board deliberate these issues in the coming weeks, the district and its families remain in limbo without a clear set of rules to guide them. The district also may be legally exposed due to this continued lack of updated policies, although Skelly does not appear to think so.
"We're bound by the law. As long as we're following the law, that's the most important thing," he said. "As we move forward here, we want to get this right. ... It's always better to measure twice and go forward once."
By the district's own report on a recent state survey, Palo Alto has been missing legal deadlines when it comes to compliance with state anti-bullying laws. Palo Alto is among 20 percent of districts statewide reporting that they had not yet complied with Seth's Law, effective July 2012, according to a State Auditor's report released in August.
The State Auditor's report was commissioned by the legislature last year out of concern that Seth's Law, named for a 13-year-old student who died by suicide after years of anti-gay bullying, was not being adequately implemented at the state and local levels.
Seth's Law mandated districts to update policies to: prohibit harassment and bullying based on protected characteristics (disability, race, sexual orientation, etc.); require school personnel to intervene when they witness an act of bullying or harassment; implement a process (the UCP) to receive, investigate and resolve complaints of harassment and bullying (including a timeline to investigate and resolve complaints, and an appeals process); and protect complainants from retaliation. Seth's Law also required posting and publicizing complaint policies and procedures to staff, parents and students, and to maintain documentation of complaints and their resolution.
The State Auditor's survey also showed Palo Alto to be among only 14 percent of districts responding "no" to the question of whether they had complied with the 2008 "Safe Place to Learn Act," the predecessor to Seth's Law.
Skelly put in perspective community concerns about policies by comparing them to larger school roles.
"There are a lot of things that are more close to the knitting than policies -- there are the relationships with kids and all that," Skelly said. "Our obligation is to take care of kids first and foremost."
"People may be worried about getting a bullying policy, but I think they in general know that if their kid is not feeling comfortable at school, they should go and have a conversation with an administrator, and see how we can resolve things," Skelly said.
Last February school board president Dana Tom expressed another view, however: "It's really about having clear procedures to help staff make the positive impact that all want to make. ... Proper handling of bullying is far too challenging, far too complex and far too important to expect anyone to figure it out on the fly."