Prohibited sexual harassment under Title IX and PAUSD board policies:
Title IX of the Education Amendments of 1972 ("Title IX") is a federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities. All public and private schools receiving federal funds must comply with Title IX.
The U.S. Department of Education's Office for Civil Rights (OCR) enforces Title IX, and publishes regular "guidance documents" (often in the form of a "Dear Colleague Letter" or "DCL") to help schools better understand their Title IX obligations.
Prohibited discrimination on the basis of sex under Title IX includes sexual harassment, which is defined as "unwelcome conduct of a sexual nature, including unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature."
Title IX protects students from student-on-student as well as employee-on-student sexual harassment. According to OCR's 2001 Dear Colleague Letter (as affirmed in subsequent guidance documents), the harassing conduct must be sufficiently serious that it adversely affects a student's ability to participate in or benefit from the school's program by creating a hostile environment that interferes with or limits the ability of a student or students to feel safe and learn at school.
A key factor to be considered, according to the 2001 Dear Colleague Letter, especially in cases involving sexual harassment allegations of a student by a school employee, is "the identity of and relationship between the alleged harasser and the subject or subjects of the harassment. For example, due to the power a professor or teacher has over a student, sexually based conduct by that person toward a student is more likely to create a hostile environment than similar conduct by another student."
In some circumstances, nonsexual conduct by a school employee may take on sexual connotations and rise to the level of sexual harassment. For example, a teacher's repeatedly hugging and putting his or her arms around students under inappropriate circumstances could create a hostile environment.
A 2014 OCR guidance document states: "With respect to sexual activity in particular, OCR will always view as unwelcome and nonconsensual sexual activity between an adult school employee and ... any student below the legal age of consent in his or her state. In cases involving a student who meets the legal age of consent ... there will still be a strong presumption that sexual activity between an adult school employee and a student is unwelcome and nonconsensual."
The same document addresses inappropriate employee conduct known as "grooming," which is described as "a desensitization strategy common in adult educator sexual misconduct," and which uses the teacher's position of power to form the basis for a subsequent sexual or romantic relationship with a student.
OCR writes that it is "imperative" that schools develop policies that prohibit "inappropriate conduct by school personnel and procedures for identifying and responding to such conduct."
At the local level, the Palo Alto school district in 2014 issued a "Staff Guidance Memorandum" (developed in collaboration with OCR pursuant to a Resolution Agreement which followed an OCR investigation and findings regarding disability-based bullying at Terman Middle School) which summarizes the school board's updated policies and procedures regarding prohibited discriminatory conduct and states that the "Governing Board recognizes the harmful effects of discrimination...on student learning and school attendance and desires to provide safe school environments that protect students from physical and emotional harm."
Specifically, the district's BP 5145.7 prohibits sexual harassment of students at school (or related to school-sponsored activities), using the OCR's definition of sexual harassment.
The district does not currently have a policy that specifically mentions "grooming" behavior, however, though there is a pending proposed policy scheduled to come before the board's policy review committee this year that reflects OCR's language and approach to this specific form of sexual harassment.
The current board policy proposal, introduced by school board member Ken Dauber, would prohibit grooming (using OCR's grooming definition above) "regardless of the student's age."
The proposed policy, as currently worded, would create a "strong presumption that such contact is unwelcome and non-consensual even where a student is over 18." It also states that "any sexual or romantic contact between a staff member and a student during the first year after a student graduates...creates a presumption that grooming may have occurred prior to graduation."
The 2014 OCR guidance document suggests: "Such policies and procedures can ensure that students, parents, and school personnel have clear guidelines on what are appropriate and inappropriate interactions between adults and students in a school setting or in school-sponsored activities.
"Additionally, a school should provide training for administrators, teachers, staff, parents, and age-appropriate classroom information for students to ensure that everyone understands what types of conduct are prohibited and knows how to respond when problems arise."
Required school investigative response and procedures to reports or complaints of sexual harassment under Title IX and PAUSD board policies:
Title IX Requirements
OCR's 2011 "Dear Colleague Letter" states: "A school that knows, or reasonably should know, about possible harassment must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation." It is required to do this regardless of whether a harassed student, his or her parents or a third party bring the allegations to the district's attention.
Moreover, the school is required to investigate even if "a student or his or her parents does not want to file a complaint or does not request that the school take any action on the student's behalf."
As part of the schools' obligations to respond to notice of alleged sexual harassment, OCR requires that all schools adopt procedures for "prompt and equitable" resolution of sexual harassment allegations involving students, within the basic parameters established by OCR in its 2011 DCL, which include:
Investigations of sexual harassment complaints must be "prompt, thorough and impartial"
Designation of a properly trained and knowledgeable district Title IX Coordinator who is responsible for overseeing investigations and other areas of Title IX compliance
Provision for immediate interim remedies, if appropriate, to protect the student and/or eliminate a hostile educational environment pending the investigation's outcome
Specific timeframes for completing investigations (60 days as the standard maximum); OCR also notes that a school's own delay in responding to allegations of sexual harassment might subject students to a hostile educational environment.
Use of the "preponderance of the evidence" standard for weighing evidence gathered during the investigation (i.e., it is "more likely than not that sexual harassment occurred")
Notice, in writing, to parties of the outcome of the investigation
An assurance that the school will take steps to prevent recurrence of any harassment and to correct its discriminatory effects on the complainant and others, if appropriate
The 2014 guidance document states: "When a school is on notice that a school employee has sexually harassed a student, it is responsible for taking prompt and effective steps reasonably calculated to end the sexual harassment, eliminate the hostile environment, prevent its recurrence, and remedy its effects."
In addition, investigations required by Title IX must proceed separately from law enforcement investigations. A criminal investigation does not relieve a school district of its independent obligation to conduct a Title IX investigation, the 2014 guidance document states. Also, conduct may be considered unlawful sexual harassment under Title IX even if the police do not have sufficient evidence to conclude that a crime occurred (OCR guidance documents note that crimes may be defined differently from Title IX sexual harassment and also are held to a higher standard of evidentiary proof -- "beyond a reasonable doubt" -- because of higher-stakes penalties in criminal proceedings).
Palo Alto's Uniform Complaint Procedures
In cooperation with OCR, pursuant to the Terman Resolution Agreement, in February 2014 the Palo Alto school board adopted updated policies and procedures -- BP 5145.7 and BP/AR 1312.3, known as the "Uniform Complaint Procedures" (UCP) -- for investigating and resolving reports and complaints of sexual harassment (as well as other forms of discriminatory harassment based on race, disability, gender identity, etc.).
The district's BP 5145.7 requires that: "All reports and complaints alleging (sexual harassment) prohibited by this policy shall be handled in accordance with the District's Uniform Complaint Procedures AR 1312.3."
The district's Uniform Complaint Procedures -- which were approved by OCR as consistent with federal law parameters -- contain a comprehensive blueprint for the district's response to any allegation of sexual harassment involving a student, whether by another student or district employee.
Included in the UCP are the following provisions regarding the district's required response to sexual harassment allegations:
A UCP investigation is triggered when a source reports an allegation (any student, parent/guardian, third party or other individual or organization who believes that s/he or another student or group has been subjected to unlawful discrimination can be a source).
A staff member who receives a report or complaint of sexual harassment, or witnesses an incident, must within one day notify the school principal; in turn, that principal must within two days notify the district's Compliance Officer (who also serves as the district's Title IX Coordinator) who must then immediately (within five days) begin an investigation. (Assistant Superintendent and Chief Student Services Officer Holy Wade currently serves as the district's Compliance Officer/Title IX Coordinator.)
The start of investigation may be delayed for no more than 10 days to allow for possible informal site-level resolution if the parties consent and notice is given to the district Compliance Officer, who will monitor the outcome of that process and may determine, within the 10-day time limit, that no formal investigation is required if the matter is satisfactorily resolved and appropriate remedies applied, as warranted.
If an individual making an oral report does not want to be identified or give names of the perpetrator(s), the school may still have a duty to respond "depending on the seriousness of the allegations and the risk of future harm to the student and others."
All investigations must be impartial and resolved within 60 days, unless the district has "good cause" to extend the time, and in that event, must give written notice to the complainant, including the reasons for the extension.
Duties for the district Compliance Officer include being trained and knowledgeable about the laws and programs for which they are responsible (including federal and state anti-discrimination laws), appropriate steps for conducting and documenting discrimination complaint investigations and the applicable legal standards for reaching decisions on such complaints.
After a report or complaint is received, the district's Compliance Officer shall determine whether interim measures are necessary to stop, prevent or address the effects of harassment during and pending an investigation.
The Compliance Officer (or his or her designee in conducting an investigation) shall interview individuals who have information relevant to the investigation, including the parties, anyone who witnessed the reported conduct, and anyone mentioned as having relevant information. The investigator also will review any documents related to the allegations made.
The UCP sets out "factors in reaching a determination" which include: statements made by all those interviewed; the details and consistency of each person's account; evidence of any past instances of unlawful discrimination or other misconduct by the accused; the age of the subject of the complaint and the individual accused, and the relationship between them; and other incidents of discrimination at the school.
Within 60 days, a written report of the investigative findings shall be prepared, and sent to the parties. The report shall include: the findings of fact based on the evidence (using the required "preponderance of the evidence' standard); as to each allegation, the District's conclusion(s) about whether unlawful discrimination occurred; the rationale for each conclusion; corrective actions, if any warranted (which can include individual consequences and remedies, and also systemic measures taken at the school to eliminate a hostile environment and prevent recurrence); and notice of the right to appeal the district's decision within 15 days (and the process for doing so).
All reports and complaints regarding sexual harassment and the District's response must be documented in writing (and entered into the district's public "UCP Log") to ensure they are appropriately addressed in a timely manner. Records of the process used to investigate all complaints, including witness interview summaries and documentation of complaint resolutions, shall be maintained by the district's Compliance Officer.
Staff members found to have engaged in sexual harassment towards students shall be subject to discipline up to and including dismissal. Other disciplinary action may include oral warnings, written warnings, mandatory training, counseling, suspension, transfer, demotion or termination. The UCP states: "Such disciplinary action shall be determined by site and district administrators in accordance with applicable policies, laws and/or collective bargaining agreements."
Requirement of Impartiality When District's Outside Counsel is Hired to Conduct Title IX Investigation:
Impartiality is a cornerstone of Title IX investigations. According to the 2011 Dear Colleague Letter, "a school's investigation and hearing processes cannot be equitable unless they are impartial."
The 2014 OCR guidance document states: "A balanced and fair process ... will lead to sound and supportable decisions."
This document also specifically addresses the question of avoiding conflict of interest with appointment of a district Title IX Coordinator, stating that a Title IX Coordinator "should not have other job responsibilities that may create a conflict of interest. Because some complaints may raise issues as to whether or how well the school has met its Title IX obligations, designating the same employee to serve both as the Title IX Coordinator and the general counsel (which could include representing the school in legal claims alleging Title IX violations) poses a serious risk of conflict of interest. ... Designating a full-time Title IX Coordinator will minimize a conflict of interest."
When a district decides to hire its outside counsel (who already advises and/or advocates for the district) to also conduct an impartial Title IX investigation -- as occurred with the district's long-standing law firm Fagen Friedman & Fulfrost in the Kevin Sharp case -- similar questions may arise about bias or appearance of bias arising from possible conflicting or incompatible job responsibilities, according to legal experts.
While there are no hard and fast rules on this, some organizations and lawyers in this field have sought to develop recommended best practices aimed at optimizing the quality of impartiality in investigations. The Orange County Department of Education's "Manual for Investigating Employee and Student Complaints," prepared by its general counsel, states: "Investigators must be independent and unbiased both in fact and appearance. They have duties of fairness, objectivity, thoroughness, ethical behavior and observance of legal and professional standards. ... An investigator should not be appointed to a particular matter if there are any reasonable concerns about the investigator's objectivity."
The national Association of Workplace Investigators has adopted "Guiding Principles" which include:
"The point of an impartial investigation is to provide a fair and impartial process for the complainant and respondent and to reach reasoned conclusions based on the information gathered."
"The investigator should be impartial, objective, and possess the necessary skills and time to conduct the investigation."
"An outside attorney investigator conducting an impartial investigation should appreciate the distinction between the role of impartial investigator and that of advocate."
According to Andrea Kelly Smethurst, a Bay Area attorney and founder of an employment law and human resources consulting firm specializing in workplace investigations: "It is best to refrain from conducting investigations for advice and counsel clients because of the perceived bias."
Attorney Amy Bomse of San Francisco firm Arnold & Porter represents lawyers and law firms in malpractice and breach of fiduciary duty claims, advises law firms on compliance with legal ethics including conflicts of interest and is a member of the California State Bar Committee on Professional Responsibility. She told the Weekly that there is no actual or potential conflict of interest under the California Rules of Professional Conduct if a law firm is "doing other work in a capacity of defending the district and at the same time (is) hired to do an investigation of sexual harassment charges."
"The traditional sense of a conflict of interest is one that arises where a lawyer represents two parties and those two parties have conflicting interests," Bomse said. But in cases where a law firm represents the same entity and owes the same duty of loyalty to that entity, it doesn't fall under that type of conflict of interest, she said.
Several other legal experts who spoke with the Weekly agreed with Bomse's conclusions regarding the California Rules of Professional Conduct and its general inapplicability to situations involving lawyers taking on different roles in service of the same client; the professional rules only prohibit representing different clients with adverse interests, but permit a lawyer to wear more than one hat for the same client, which is not an uncommon practice, they said.
Neena Chaudhry, senior counsel for the National Women's Law Center and Title IX expert, and others questioned, however, whether it is best practice for an outside law firm to represent a school district in administrative proceedings involving Title IX compliance issues and at the same time be responsible for conducting an impartial Title IX investigation of allegations of sexual harassment due to the risk of potential bias or appearance of bias, which would be at odds with the concept of impartiality.
Referring to OCR's admonition that Title IX coordinators should not have other job responsibilities that could create a conflict of interest (see above), Chaudhry said that while an outside law firm is not "technically the Title IX coordinator, the point is the same, which is: If you are conducting a Title IX investigation, your job is to be impartial and thorough and prompt. It does seem to be a conflict of interest to have a law firm that is representing the school in legal or administrative proceedings to be the one to conduct the Title IX investigation."
Chaudhry continued: "I think it's common sense and what most people would think for the right reasons. ... I think the school should just put themselves in the parents' or the students' shoes and I can't imagine that they would want someone investigating -- if it was their child -- who has responsibility to defend the school. That's the lawyer's job (to defend) and that's fine. But I don't think that person...or that law firm should also be conducting the investigation.
"You want the person on the ground...to not be conflicted, and it's important for everybody. You want this process to be fair; these are serious allegations that are coming up here and in all places around the country and it's really, really important that the process is fair to both the person who is complaining, and to the person who has been accused, whether it's harassment or assault. I think schools have to do everything they can to have a very clear, transparent, fair, thorough (and prompt) process."
According to the Orange County Department of Education Manual and other legal sources, one critical task that requires investigator impartiality is making "credibility determinations" after gathering all the relevant facts.
According to the Orange County Manual: "The most important sections of the (investigator) report are those that set forth the investigator's credibility determinations and analyze the factual issues in dispute. In writing the credibility section, the investigator should carefully describe the factors that weigh in favor of -- and against -- the witness's credibility, and should set forth his or her determinations. ... The question is not whether the person is 'lying,' but whether the person's statements are credible based on all of the evidence."
In making a finding of fact, the investigator should explain "why the evidence supporting or refuting the allegation is more persuasive."
Factors to be applied in making such determinations, according to the manual, include examining: motive to falsify; whether there is corroborating testimony from other witnesses or physical evidence that corroborates the testimony; and any history of similar behavior in the past.
"When an investigator is having a difficult time making a credibility determination, the best approach is usually to re-interview people with relevant knowledge. Sometimes the interviewee will make statements that are inconsistent with the information he or she provided earlier. This inconsistency could weigh against the person's credibility."
The resulting report should be objective and discuss "all material evidence, whether or not it supports the investigator's conclusions," the manual states.