Legal findings against the Palo Alto school district look to be on the way in two sexual-harassment investigations at the district's high schools by the U.S. Department of Education's Office for Civil Rights, Superintendent Max McGee disclosed in an update to the board on Friday.
McGee wrote that the district will be working with the Office for Civil Rights to develop a resolution agreement for the cases at Palo Alto and Gunn high schools. Resolution agreements are prepared "when OCR determines that the preponderance of the evidence supports a conclusion that the recipient failed to comply with applicable regulation(s)," the OCR Case Processing Manual states.
The Board of Education authorized McGee in late October to speak with the Office for Civil Rights (OCR) about potentially seeking "early resolution" for both cases, which he did soon thereafter. School districts can seek resolution agreements prior to the conclusion of an OCR investigation by entering into negotiations with the federal agency. An attractive benefit to resolution agreements, district staff noted at the Oct. 28 board meeting, is that they help the district avoid being issued an official letter of findings that identifies where a district or school is out of compliance.
McGee said Monday that in a phone conversation he and Holly Wade, the district's Chief Student Services Officer, had with two Office for Civil Rights staffers Laura Faer, chief attorney for OCR, and Zachary Pelchat, a supervisory attorney at OCR's San Francisco office who has been involved in previous investigations in the district last Thursday, Dec. 10, they indicated early resolution is no longer a possibility, but they will be working together to develop the resolution agreement.
"It does not appear that we will reach early resolution, but we will reach a collaborative agreement," McGee wrote in his weekly update to the board. "Ms. Faer said they have made completion of our two unresolved cases a priority and will be finalizing the review process soon. ... They will be scheduling a time to come to the district to learn more about relevant policies, initiatives, and practices that we have instituted in the past two years and assess how they align with OCR guidelines. They added that they will share their preliminary conclusions and concerns with us and work collaboratively to develop a resolution agreement."
The district will have 30 to 90 days to respond to a draft of a final resolution agreement, McGee wrote.
"Once we reach an accord (assuming we do)," he continued, "OCR will issue a resolution letter and likely have a follow-up monitoring period."
According to the OCR case manual, resolution letters and letters of findings must include, among other stipulations, a "statement of each allegation and issue and the findings of fact for each, supported by any necessary explanation and/or analysis of the evidence on which the findings are based; conclusions for each allegation and issue that reference the relevant facts, the applicable regulation(s) and OCR policy, and the appropriate legal standards."
McGee said he is not sure whether the process will result in findings or not but that OCR is "moving forward." He wrote in his memo that OCR told him monitoring periods, on average, last about two to three years. (This is much longer than the six months an attorney from one of the district's primary law firms, Fagen Friedman & Fulfrost, told the board at its Oct. 28 meeting was typical in her experience.)
The OCR case manual notes that resolution agreements require "effective and vigorous case monitoring." Monitoring can include obligations to send OCR documents "in a timely manner," updates on efforts like creating new policies or implementing extra staff training, as well as to allow site visits and interviews with staff and students.
Following a Dec. 1 phone call with Wade, the Office for Civil Rights also made data requests to the district for several years of enrollment numbers (both district-wide and at Palo Alto and Gunn high schools, respectively); any documents including any that have not been provided to OCR in previous requests, the request states related to the resignation of former Paly principal Phil Winston and the district's settlement with him; documents and clarifications related to the district's investigation into former Paly English teacher Kevin Sharp, who resigned in November following a sexual-harassment case; a copy of all Memorandums of Understanding between the school district and the Palo Alto Police Department regarding school resource officers, from the 2011-2012 school year to the present, and "an explanation of what role, if any, SROs play in receiving, reporting, or responding to complaints of sexual harassment of students; and copies of any and all policies, procedures and regulations used by the district in handling personnel matters and also addressing sexual-harassment complaints made against employees.
The Office for Civil Rights requested the documents by today, Dec. 14.
McGee is not sure which of Palo Alto Unified's law firms will represent the district in discussions with OCR over the details of the resolution agreement, but he said that an attorney will accompany him and/or Wade in any conversations.
Fagen Friedman & Fulfrost represented the district in previous Office for Civil Rights cases. The firm's attorneys also helped the district to to research, develop and follow-up on a resolution criticizing the federal agency, which the board approved in June 2014.
In June 2013, the Office for Civil Rights opened its investigation at Paly to look into whether the school responded properly when allegations of student sexual harassment or assault were reported. The next year, in March, the agency opened an investigation at Gunn in response to a family's complaint that the school failed to "appropriately and effectively respond to notice of sexual harassment at the school."
The federal investigations at Paly and Gunn followed several others in the district around allegations of discrimination and bullying. Two of those cases resulted in resolution agreements. One that involved the district's mishandling of the ongoing bullying of a disabled middle school student ended in a December 2012 resolution in which the district agreed to rewrite its policies and procedures on bullying.
McGee said he will keep the board "informed" about any conversations with the Office for Civil Rights and, "unless there is some pending litigations involved," any discussions will be held in open rather than closed session.
"I think that's preferable," McGee said Monday morning.