FPPC Finds No Conflict of Interest with OCR

fppc_letter.jpgI’m happy to share that the California Fair Political Practices Commission (FPPC) has determined that I have no conflict of interest under the Political Reform Act with respect to matters concerning the U.S. Department of Education Office for Civil Rights (OCR). This means that I may deliberate and vote on matters involving OCR that come before the school board. I expect that the board will soon discuss the two outstanding PAUSD cases: the OCR-initiated compliance review of handling of sexual harassment at Paly, and the complaint of stalking and dating violence at Gunn. I will continue to press for working with OCR to ensure that our students receive an education free of discrimination.

The FPPC regulates a range of issues related to elections and governing in California, from campaign finance to lobbyists to economic conflicts of interest. It is the governmental agency with authority to determine whether a local elected official has a prohibited conflict of interest. In August I asked the FPPC to review whether I have a conflict with OCR, after this issue had been repeatedly raised by other members of the board. I informed the FPPC about my previous consulting with OCR on educational data, and my advocacy in the community and on the school board for cooperating with OCR to protect the civil rights of our students. I released my letter to the FPPC and all of my correspondence with OCR staff on any matters involving Palo Alto on my website and provided them to the press.  

Correcting the Daily Post

Over the last several days the Daily Post has devoted several articles and an editorial to arguing that I am responsible for the OCR complaints and investigations in Palo Alto over the past few years. The Post focuses on an email that I sent on May 29, 2013, to OCR asking that the agency consider offering PAUSD advice (called "technical assistance") about Title IX. I was concerned that the district did not understand its obligations under Title IX to investigate and respond to sexual assault and harassment at Paly, following the publication of the “rape culture” stories in the Paly Verde student magazine.  

The Post Says: The Post says that I asked OCR to open an investigation into sexual harassment at Paly. The Post's headline reads "Dauber's email suggesting the Paly probe." The Post editorial cites my statement that "I think these facts should have triggered a Title IX investigation," and concludes "that statement doesn't line up with Dauber's claim that he wasn't behind these investigations."

The Truth: I did not ask OCR to open an investigation at Paly.

I asked OCR to consider providing technical assistance to PAUSD in order to help the district understand its own obligation under Title IX to conduct an internal investigation. This internal investigation was legally required to be initiated promptly (and concluded within 60 days) by the district's Title IX Coordinator, who was at that time Associate Superintendent Charles Young. Yet a month after the Verde story was published, the district disclosed that it still had not opened an internal investigation, and then-Superintendent Kevin Skelly and Charles Young both said that they didn't see an obligation to do so.

The Post is blurring the distinction between what I requested, which is an internal Title IX investigation conducted by Title IX Coordinator Charles Young, and an OCR investigation. My letter is clear that I was talking about the former: "It appears likely that school officials may have known or should have known of these facts, if not prior to the publication of the article, then certainly after it was published and widely disseminated. I think these facts should have triggered a Title IX investigation. However none was conducted and when the superintendent was asked about this, he stated that he did not see what the "nexus" was between the unfortunate events reported in the student paper and the school."

I simply asked OCR to provide technical assistance to help the district comply better with the law. I never, via email, phone, or any other communication, asked OCR to open any investigation of Paly. The Post is simply factually wrong when it says or implies otherwise.

The Post Says: The Post says that I "tipped off" OCR to the situation at Paly.

The Truth: It is not known how or when OCR learned of the Verde "rape culture" stories. There was extensive media coverage of the story, both in the Bay Area and nationally. In addition, the district itself asked OCR for technical assistance a week prior to my May 29 email.

On April 9, 2013, the Verde magazine published a story stating that multiple girls (as many as 10) at Paly had experienced sexual assault and had been harassed and bullied at school as a result of reporting it. This story received extensive media coverage. Within the first two weeks after publication, the story had been picked up by nearly 20 different media outlets including NPR, NBC, ABC, the Mercury News and others. 

In mid-May, my wife, a Stanford law professor and an expert on Title IX, attended a school board meeting and directly informed the board and superintendent of the need to open a Title IX investigation. Her views on Title IX were the subject of more local press coverage. She also requested technical assistance for PAUSD around the same time as my request.

In fact, according to Kevin Skelly, the district itself asked OCR for technical assistance on this subject in mid-May. This occurred a week prior to my May 29 email. 

It is therefore impossible to say how or when OCR became aware of the situation at Paly. It could have been the publicity produced by the Verde stories (which is what OCR told the district). It could have been the district's own request to OCR for advice, made a week prior to my email. Even if, however, I notified them of the story, that does not mean that I asked for an investigation. I did not.

However, regardless of how OCR found out or was "tipped off" to the Verde story, the fact remains that whether to open an investigation was in the discretion of OCR as a law enforcement agency. Regardless of how the situation came to OCR's attention, if OCR determined that the situation merited an investigation then that is a decision made by the agency in carrying out its congressionally mandated duty to enforce the law.

I support OCR in carrying out its mission of protecting the civil rights of all students. I reject the premise of the Post that this investigation is illegitimate. I especially reject the notion, promoted by the Post, that merely because other schools such as Saratoga High School also had publicized incidents of sexual violence, OCR should be investigating those schools rather than Paly. The situation in other schools is irrelevant to issues that may exist here. The OCR investigation should be viewed as an opportunity to improve our schools for all students. Indeed, according to Principal Kim Diorio, improvements have already been made as a result of the investigation. The board and district administration took what is in my view the wrong tack when it attempted to resist that investigation by blocking OCR's efforts to interview students and passing a Resolution criticizing OCR and lobbying to curtail the agency's authority. These efforts to block the agency were wrongheaded and did not benefit our students. 

The Post Says: The Post says that I didn't mention my email when I was asked why I thought OCR opened an investigation, and criticizes me for saying that I thought it was due to the media attention on the Verde story.

The Truth: In early June 2013 OCR told the district directly that it opened its investigation due to the media coverage of the Verde story. I have no reason to doubt OCR's own explanation of its actions.

According to former Superintendent Kevin Skelly, OCR informed the district in early June 2013 that the reason for the compliance review was the information contained in the media coverage of Paly. There is no mystery about why OCR opened the review.

I answered the question of why I thought the investigation was opened honestly. I did not think that my email played a role, because I did not ask OCR to open an investigation. I asked OCR to provide technical assistance and I did not know what prompted OCR to open an investigation. My best guess was that it was the media attention on the Verde story, including a one-hour NPR segment on the subject of the sexually hostile climate at Paly.

The Post Says: The Post editorial says that the fact that I said I helped a family get "services" means I helped them make a complaint.

The Truth: My wife and I helped the family involved in the Terman complaint obtain needed special education services for their child, the victim of the disability-based bullying. The "services" that I tried to help obtain for the family were special education services that were promised by the district in the OCR Resolution Agreement with the family but which the family alleged were never provided. Indeed, the reason that family went public with their story to the Palo Alto Weekly is that the services were not provided despite being included in the federal agreement. My wife referred the family to other Stanford faculty for legal assistance in receiving those same services, after the Resolution Agreement became public. The effort to obtain needed services occurred after the Resolution Agreement was entered into, and was unrelated to the filing of the complaint.

The "services" I referred to had literally nothing to do with filing of the complaint by the family 2 years previously. My wife and I were unaware of the complaint or the Resolution Agreement until it was reported in the press in January 2013. I was not involved in any of the complaints.

However, I reject the premise that filing a complaint with OCR, or assisting any family in doing so, is somehow illegitimate or grounds for criticism. If the Post or other community members are seeking an explanation for the OCR investigations in Palo Alto, they need to look no further than the legally non-compliant complaint procedures utilized by the district prior to the Terman complaint. Where parents feel that their complaints have no transparent and legitimate path to resolution, they are more likely to seek a forum outside the district itself for their complaints, including OCR, the California Department of Education, and the courts. Looking over the history of the OCR complaints, one feature that all have in common is that the parents complained repeatedly to district officials but received little or no response. While we have made progress due to the two 2012 OCR Resolution Agreements, at the last board meeting the Superintendent acknowledged that the district still is not in compliance with legal requirements of the Uniform Complaint Procedure regarding reports of sexual harassment. The best route to avoiding complaints is to ensure that we have appropriate, legally compliant complaint resolution procedures that parents can actually use.

Moreover, Federal law provides that any student or parent who feels that their civil rights have been violated in public school have the absolute right to bring that situation to OCR and ask for help. Those laws were designed to protect our children from harassment and discrimination based on race, sex, gender identity, sexual orientation, national origin, disability and any other protected classification. Without OCR, our schools would still be segregated. OCR is an important agency, its mission should be our mission, and I support anyone who files a complaint in good faith.  Parents, students, and community members who file complaints should be supported, not criticized, and the district should work diligently to understand and if necessary correct any issues they raise.

In sum

Beyond these errors of fact, it’s evident from the Post’s coverage that it disagrees with me that the right course forward for the PAUSD is to cooperate with the Office for Civil Rights in the service of our students. I support the work of OCR in guaranteeing students an education free of harassment and discrimination, including the right of district families to complain to the federal government when they feel the district has fallen short of that mark. I’ll continue to work for positive change regardless of misrepresentations in the press. That includes a policy for our school district of cooperation with OCR rather than resistance to federal civil rights law.

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Contact: kenneth.dauber@gmail.com or 650-906-4340

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