A majority of the Palo Alto school board agreed Tuesday night that the best course of action forward on a proposed resolution agreement from the U.S. Department of Education's Office for Civil Rights on sexual harassment cases at the district's two high schools is to seek clarification when needed but to avoid pushing back on requirements.
Primarily, the school board disagreed with a recommendation from Superintendent Max McGee to limit an independent investigation and review to only current students and teachers. In the draft resolution agreement, provided in December, the Office for Civil Rights (OCR) directs the district to hire an independent investigator, to be approved by the federal agency, to conduct proper Title IX investigations into former Paly Principal Phil Winston's alleged sexual harassment of students, former Paly teacher Kevin Sharp's alleged consensual sexual relationship with a former student and reports of off-campus sexual violence between 2012 and 2014.
"This is the Office for Civil Rights. They make suggestions to us, and my default is to accept those suggestions unless there is some compelling reason not to," board member Jennifer DiBrienza said.
A majority of the board agreed that while the district can ask the Office for Civil Rights to clarify what an independent investigation might entail, there could be cases of sexual harassment or violence that they're unaware of involving former students — students who may "have been harmed (and) to whom we owe equitable relief," trustee Todd Collins said.
The independent investigation — the concept of which McGee does not object to and will comply with, he said — could shed light on how the district erred in the past so it can correct its practices for the future.
"This isn't just about going and finding people that have been harmed," said Vice President Ken Dauber, who served as the temporary president at Tuesday's meeting in Terry Godfrey's absence. "It's also to understand what processes broke down, what decisions were made that shouldn't have been made (and) what exactly was missing that we need to fix.
"If we don't do those investigations, then we won't know the answers to those questions."
McGee argued that an independent investigation could have "diminishing returns and significant expenses" depending on its scope. For example, tracking down former students and staff could be costly. He took the same position on the resolution agreement's directive to review all behavioral incident reports from Gunn and Palo Alto high schools from 2012 through 2016.
"We're not disagreeing with the guiding principles" of those two requirements, "just how far back we should go," McGee told the board. He later agreed to drop that recommendation at the board's direction.
Melissa Baten Caswell — the only trustee who was on the board when the Office for Civil Rights first opened its investigations at Paly and Gunn — expressed concerns about the proposed agreement.
She said she was reluctant to agree to a resolution agreement without first receiving the agency's official findings, which will identify where the district or the schools are legally out of compliance. The Office for Civil Rights has shared its findings verbally in meetings with McGee, Chief Student Services Officer Holly Wade and district attorneys but will not provide anything in writing until the resolution agreement has been signed.
Attorney Elizabeth Estes of the law firm Atkinson, Andelson, Loya, Ruud & Romo, who is working with the district on the resolution agreement, told the board via speakerphone that in her experience with voluntary resolution agreements, the Office for Civil Rights has issued its findings in writing after the agreement is finalized.
While the resolution agreement is subject to negotiation and could change, the findings are not, according to the agency's procedures. The school district will have the option to appeal the findings within 60 days if it believes they are incomplete, incorrect and/or the appropriate legal standard was not applied, according to the Office for Civil Rights' case-processing manual.
McGee said staff sent notes of their understanding of the agency's findings from these meetings but has yet to receive confirmation from the Office for Civil Rights on what are findings and what might be "concerns." Baten Caswell asked McGee to share those notes with the board members.
"I don't think we should be signing a resolution if we don't know what the findings are," Baten Caswell said.
She also voiced concern about the proposed minimum three-year monitoring period, which could involve requests for more information, site visits and interviews. While three years is "reasonable," she said, "forever is probably impossible for us to support."
Other board members noted that the monitoring period does have an end point — when the district is found to be in legal compliance, the resolution agreement states.
The trustees agreed with McGee that it's reasonable to seek assurances from the Office for Civil Rights that it will respond to the district in a timely manner. District leadership has expressed frustration in the past that these investigations lasted for several years and that during those years, there was infrequent communication from the Office for Civil Rights.
McGee also proposed asking the federal agency to give 30-day notice before visiting the district to interview students and staff and that the notice include the specific purpose for the interviews, the specific students or staff to be interviewed and the expected length of the interviews. This proposal stems from the district's past experience, he said, when the agency visited the district to interview staff who "felt extremely vulnerable and often discussed, 'Should I get my own lawyer?'" McGee said.
Dauber called this position "unnecessarily defensive" and urged district leaders and staff to see the Office for Civil Rights' involvement in the district as a positive, not a negative.
"I think it's important and very positive ... to see the role of OCR here as supportive of our efforts to provide a safe, educational environment for all of our students," Dauber said. "To the extent that we haven't done that in the past, which is what gave rise to the findings, we owe it to our students and to our obligations under federal and state law to correct that and to go forward and do better."
McGee will bring the board's input to his next meeting with the Office for Civil Rights on Jan. 19. The district's new law firm is supporting the district in the process and has already started to work on policy revisions proposed in the resolution agreement, staff said Tuesday.
The district has also started work to develop an anonymous tip line for students and parents to report concerns about sexual harassment or sexual violence, McGee said.
The district intends "in large part" to fully comply and cooperate with the Office for Civil Rights, McGee said. He did not recommend any changes to the agency's other reporting and investigatory requirements, which include to provide staff training on Title IX and investigations and to conduct a student and parent climate survey focused on sexual harassment and the district's response and prevention efforts, among others.
"We all want to do what's best to protect the safety and security of our students," he said. "This is not adversarial."
The district has until March 7 to respond to the draft resolution agreement, but McGee said he intends to return to the board for approval in February.