The Palo Alto school board struggled to agree Tuesday night on its approach to negotiating a draft agreement with the U.S. Department of Education's Office for Civil Rights, often split over whether to move forward as quickly and cooperatively as possible and whether to be wary of the agency's proposed requirements.
The four trustees, with their board president still absent due to a car-accident injury, wrangled through nine amendments and a series of 3-1 or split votes to ultimately agree to direct senior staff and the district's attorney to work to finalize the resolution agreement in upcoming meetings with the federal agency, while seeking some clarifications that were approved by a majority of the board.
The board's longest-serving member, Melissa Baten Caswell, pushed back throughout the evening with questions and concerns about the resolution agreement, which proposes a set of steps to bring the district into legal compliance following investigations into sexual harassment and sexual violence at Palo Alto and Gunn high schools.
Baten Caswell repeatedly requested that the district's law firm go through the language of the draft agreement "point by point" to "tighten" it further and to make sure it does not leave the school district open to liability in any way. She was concerned about language she said seems vague, such as a reference to a policy prohibiting discrimination and harassment by "third parties."
"I'm not thinking the Office for Civil Rights is trying to go after us but I think we're talking about a very large organization that may have different staff in the future and same with us ... and I think the language needs to be really tight so there's no question about what things mean," she said.
Attorney Elizabeth Estes of the law firm Atkinson, Andelson, Loya, Ruud & Romo, who is working with the district on the resolution agreement, responded via speakerphone that she has been engaged in exactly that process over the last few weeks since the Office for Civil Rights provided the proposed resolution agreement to the district. She said the language in Palo Alto Unified's agreement is "substantially similar" to ones she has negotiated in the past for other school districts. Most do not include additional legal language, she said.
"My experience with OCR has been positive," Estes said in response to a question from trustee Todd Collins about the history of the federal agency as a counterparty in negotiations. "I believe that their intent is to work with the district and improve process for all and not create a situation that would result in additional liabilities, actually but one that would protect everyone's interests."
Baten Caswell also again asked to request a concrete end date from the Office for Civil Rights on their monitoring of the district. As proposed, the agency would monitor Palo Alto Unified for a minimum of three years, or until the district is in compliance with federal law.
Baten Caswell made a successful amendment, supported by Collins and trustee Jennifer DiBrienza but opposed by acting president Ken Dauber, to direct the superintendent to request a meeting with the federal agency at the end of the three-year monitoring period to "review next steps." Dauber noted that the Office for Civil Rights told the district previously that it does not provide districts with annual updates on their progress on resolution agreements, but at the end of monitoring periods issues correspondence either informing them they are in compliance or that they have more work to do.
Baten Caswell also successfully made an amendment to request the Office for Civil Rights add language to the agreement to clarify that the district "voluntarily" enter into the resolution.
She also expressed concern that the board would not see a "red-lined" version of the agreement this week after Estes worked with Superintendent Max McGee and Chief Student Services Officer Holly Wade to address board-requested clarifications. McGee said they planned to take the board's feedback to a meeting with Office for Civil Rights staff this Thursday and to continue to work on the language before the next board meeting on Feb. 14.
Dauber, who at the beginning of the discussion proposed a motion specifically directing staff to "make every effort to finalize" the agreement for approval on Feb. 14, urged his colleagues to avoid micromanaging the process, noting they would have further opportunity to discuss and change the agreement if they wanted to before voting to accept it.
"I think the board's role here is to give direction as to our desire to reach agreement, to give guidance that we want them to proceed with the clarifications but not to try to micromanage the clarification process," he said. "I think we need to rely on our staff and attorney to engage in a clarification process that's consistent with the agreement, which is what I think our interest is."
Baten Caswell and DiBrienza also asked staff to bring back an estimate of the cost -- in terms of both money and staff time -- of fulfilling the resolution agreement, wanting to avoid "signing something that's setting us up for failure," DiBrienza said.
As acting president, Dauber sought to give staff clear direction by asking his colleagues to make formal amendments to capture any suggestions they had and to vote on each of them to see whether they had majority support. After several amendments, some successful and some not, over the course of a two-plus hour discussion, Baten Caswell called the process "silly," "crazy" and "not how we should be working."
Dauber, a consistent and vocal critic of the board's handling of past Office for Civil Rights cases, also made an amendment to repeal a 2014 board resolution that criticizes the Office for Civil Rights' investigative procedures and authorizes the district to lobby elected officials. He said he hoped a repeal would send a message to the agency that the current board has "adopted a different stance" and no longer stands by the resolution.
McGee told the board that in response to district complaints about the length of the investigations, Office for Civil Rights staff said it was in part due to the district's refusal to cooperate and provide access to information.
Collins supported Dauber's amendment, calling it a "gesture of goodwill and of our desire to comply with the agency's advice and the law of the land" that could improve their standing in negotiations and monitoring with the agency.
Baten Caswell and DiBrienza, however, opposed the repeal. Baten Caswell suggested that instead of repealing the entire resolution, they highlight specific action in it that they no longer intend to pursue and have not for several years. DiBrienza said she was reluctant to "undo something that was done by a different board" without having more information about it.
With the board split on the issue, Dauber eventually withdrew his amendment and said he would bring it up at a future board meeting.
The board ultimately voted 3-1, with Baten Caswell dissenting, to direct the superintendent to work the Office for Civil Rights and bring back the next version of the agreement for discussion, but not yet approval. The district has until March 7 to respond to the draft resolution agreement.
While the federal agency has verbally communicated its legal findings to McGee, Wade and Estes in meetings, it has yet to issue a letter of findings, which will detail where the district failed to properly comply with the law.
McGee said Tuesday that Office for Civil Rights staff would issue a "formal letter" regarding the timing of releasing the findings, in response to Baten Caswell's concern at the last board meeting about signing an agreement before seeing the official findings in writing. While the resolution agreement is subject to negotiation and could change, the findings are not, according to the agency's procedures.