Seeking to put to rest years of questions about his relationship with the U.S. Department of Education's Office for Civil Rights (OCR) and the agency's involvement in the Palo Alto school district, school board member Ken Dauber wrote last week to the California Fair Political Practices Commission (FPPC) for formal written advice on whether he has a conflict of interest on school board matters related to the federal agency.
He included with the letter several email exchanges he had in 2013 with OCR officials in Washington and San Francisco, written after Palo Alto Unified entered into a resolution agreement with the federal agency following the district's violation of the civil rights of a disabled middle school student through its mishandling of bullying complaints.
Dauber said in an interview Wednesday that he is seeking a ruling from the FPPC in order to quell any concerns about his past consulting work for and communications with the Office for Civil Rights as he anticipates OCR-related issues will come before the school board this fall.
From 2009 to 2011, before Dauber was elected, he served as a paid data consultant for the Department of Education, earning a total of $26,426, according to Dauber.
Two civil-rights cases remain open in Palo Alto -- both involving Title IX sexual-harassment issues at the district's two high schools -- and Superintendent Max McGee expressed this spring a desire for board guidance on whether and how the district should reach a resolution in these two cases.
Dauber said he believes he has no conflict of interest, as his paid consulting work ended in 2011 and his district-related communications with the federal office ceased before he was elected last fall. A Board of Education bylaw defines conflict of interest as when a "decision will have a 'reasonably foreseeable material financial effect'" on a board member's economic interest.
"Looking forward, I want to be able to point to a clear advice from the FPPC that I expect will affirm that I don't have a conflict. But in any case, I'll have clarity," he said on Wednesday.
Over the past several years, anonymous posters on Palo Alto Online's Town Square forum have accused Dauber of assisting district parents in preparing complaints to the Office for Civil Rights and of using his relationships with top agency officials to urge investigations into the district, allegations that Dauber has strongly denied.
Questions about Dauber's involvement with the agency also rose to the surface during his 2014 run for school board. When asked during an endorsement interview with the Weekly if he had recommended any action by the OCR relating to the Palo Alto families' complaints, he said he hadn't.
"I have not encouraged those complaints, sought them out (or) anything like that," he said. He also said during the campaign that he had no knowledge of the initial OCR investigation in Palo Alto before the general public did, let alone from any source at or outside of the agency.
Following the endorsement interview, Dauber sent the Weekly an email describing the communications he had with the Office for Civil Rights in 2013.
According to Dauber's letter to the FPPC, from 2002 to 2010, he worked as a paid consultant for nonprofit Ed Trust West with then-director Russlynn Ali, a law school classmate of Dauber's wife, Stanford University law professor Michele Dauber. In 2011, President Barack Obama appointed Ali to serve as the Department of Education's assistant secretary for civil rights.
From 2009 to 2011, Dauber said, he worked as an "occasional paid consultant" to the OCR, helping with the agency's Civil Rights Data Collection, a national survey of school districts. In those years he received a total of $26,426, including $5,872 in 2011, which he reported as W-2 income, he wrote to the FPPC.
He has received no compensation from the Department of Education since 2011, he said.
In 2012, he made his first run for the school board but failed to win a seat.
In 2013, Dauber did "a small amount of uncompensated consulting (less than 20 hours)" for nonprofit Public Counsel, he wrote in his letter to the FPPC. The director of Public Counsel at the time was Catherine Lhamon, who in 2013 succeeded Ali as assistant secretary for civil rights. Michele Dauber also served on a nonprofit board with Lhamon from 2005 to 2013.
On Wednesday night, Dauber posted on his website his Aug. 13 letter to the FPPC and emails written between February and July 2013, which he said are all the communications he had with the Office for Civil Rights on matters related to the Palo Alto school district.
In February 2013, after learning from press reports that the OCR had issued a finding against the school district the prior December, Dauber wrote to Sandra Battle, the agency's deputy assistant secretary for enforcement, at the suggestion of Ali. He asked for data on how many other school districts had experienced OCR disability-harassment investigations that led to formal findings. Dauber wrote that he and his wife had been helping the family who filed the complaint against the school district "with getting services." Knowing how frequent this kind of outcome is elsewhere would be helpful, he wrote. He also said that he knew of as many as a dozen families with "similar experiences" who were also considering filing complaints and asked if the OCR had any "thought towards coordinated enforcement."
Battle replied that out of 1,513 disability-harassment complaints the OCR received from 2009 to 2012, 647 resulted in investigations or involvement, 118 resulted in resolution agreements and 16 led to formal findings against secondary schools. She wrote that she "would welcome other thoughts about effective coordinated enforcement" in Palo Alto.
In March 2013, Michele Dauber sent an 11-page legal analysis to Shilpa Ram, a staff attorney in the OCR's San Francisco office, pointing out inadequacies of draft policies developed by the Palo Alto school district on how to handle complaints of disability discrimination. Ken Dauber simultaneously forwarded his wife's letter to Battle.
Dauber noted in his Aug. 13 letter to the FPPC that his wife, an expert on Title IX and school-based sexual harassment and assault, also referred one of the Palo Alto OCR complainants in 2013 to pro bono representation with another Stanford faculty member.
"She has received money from no source, nor any promise of any future payment or gift with respect to any issue involving PAUSD at any time," Dauber wrote to the FPPC.
On May 29, 2013, Dauber wrote again to Battle and to two other high-level agency officials members to suggest the agency provide technical assistance to Palo Alto after Palo Alto High School's Verde Magazine reported on the school's "rape culture," including details about the sexual assault of two female students.
"One area where PAUSD has continued to struggle is compliance with Title IX, which protects girls and young women from discrimination in sports, sexual harassment, and sexual assault," Dauber wrote in his post this week. "It was evident that senior district staff were not well-versed on the requirements for prompt investigation and remediation of complaints of sexual harassment (it was later disclosed that Paly principal Phil Winston was at the same time being removed following a district investigation for sexual harassment).
"As a result, the district itself requested and received technical assistance in relation to the Paly case, according to former Superintendent Kevin Skelly. I also asked OCR whether technical assistance could be offered to the district on Title IX."
Battle responded on May 30, 2013, that OCR's San Francisco office would contact the district and offer assistance.
The last email Dauber released is from July 16, 2013, when he sent Battle PDF files of two Daily Post articles that claimed the OCR interviewed students without parental consent in Palo Alto. He suggested the agency might want to correct the record.
School board President Melissa Baten Caswell said Wednesday that she wasn't aware of Dauber's request to the FPPC and doesn't have enough information to know whether he has a conflict of interest that would prevent his participation in future board discussions or action on OCR matters.
At the last board meeting of the 2014-15 school year in June, Dauber requested that a status update on the district's pending OCR cases be placed on the board's agenda in the new school year. Baten Caswell, Vice President Heidi Emberling and Terry Godfrey supported this request, while member Camille Townsend did not.
McGee said he would appreciate the board's input on how to proceed in his communications with the Office for Civil Rights.
"If you would like me to pursue some kind of conversation to bring this to early resolution, I will do so," McGee said. "If you want to wait to hear from OCR, I will do so. I'm looking for clarity here. I can see the pros and cons of both."
In his post this week, Dauber expressed support for reaching out "proactively" and working with the agency "cooperatively to address any issues for the benefit of the students involved, as well as all of our other students."
"Unfortunately, I am hampered in making this case on the school board by suggestions that I have a conflict of interest," he wrote. "That is why I have put this question to the FPPC. When I receive an answer I will share it publicly with the community, and I will of course follow the FPPC's advice."