It's On Us

Coffee with Ken: Announcing My Weekly Office Hours

Beginning this Monday, September 28 I will be holding weekly “office hours” most Mondays from 6pm to 7pm at Palo Alto Cafe, 2675 Middlefield Road, Palo Alto. Come join me for a cup of coffee and conversation about whatever is on your mind about our schools! If you want to make sure that I will be there, send me an email at [email protected] or [email protected]. Or you can check the Where’s Ken page for updates 

A New Policy for LGBTQQ Students

This coming Monday, September 28, the Board Policy Review Committee (BPRC), on which I sit, will consider a proposed policy to protect and support LGBTQQ students in PAUSD. The meeting starts at 8:30am at the district headquarters at 25 Churchill Street. A committee of parents, teachers, and staff members has worked hard to produce a policy that will give all our students with safe and welcoming school environment regardless of gender identity, as required by law. In addition to moving the policy forward (the next step after committee approval will be the full school board), I am committed to providing for full implementation of the policy including education for students, training for staff, and ensuring that appropriate physical renovations are made. These include, for example, gender-neutral restrooms, showers, and locker rooms.

It's On Us

A year ago, the White House launched the “It’s On Us” campaign, which “recognizes that the solution to sexual assault begins with all of us. It seeks to reframe the conversation surrounding sexual assault in a way that inspires everyone to see it as his or her responsibility to do something, big or small, to prevent it.”  The President has made the elimination of sexual harassment in our nation’s schools and colleges one of his highest priorities.

With this in mind, we can turn our attention to the situation here in PAUSD, where both of our high schools -- along with 40 other school districts and 124 colleges  -- are currently under investigation by the U.S. Department of Education Office for Civil Rights (OCR) for possible violations of Title IX, a federal law that protects students against sexual harassment, including sexual assault and dating violence. 

The Paly Campanile published an editorial last Friday criticizing my request in May 2013 that OCR consider offering advice (called "technical assistance") to PAUSD on Title IX compliance. My request was prompted by serious allegations involving sexual assault and harassment at Paly. The allegations were first reported in a story in the Verde, a student magazine, in April 2013. The Campanile editorial was reprinted in the Daily Post on Monday.

The student editors particularly criticize the fact that I reached out to OCR for technical assistance rather than limiting my inquiries about the matter to PAUSD officials. They write:

“If a parent catches his or her child performing illicit acts, the typical reaction would never be to dial 911. Instead, the issue would be resolved within the family. The same can be said for concerns expressed by those affiliated with Palo Alto Unified School District (PAUSD) with the Office of Civil Rights (OCR) regarding PAUSD’s improper handling of Title IX . . . The Campanile believes that Dauber acted inappropriately by contacting a federal office rather than pushing to first resolve the conflict within the district.”

This argument is troubling because it is inconsistent with the ethos of “It’s On Us.” It is also factually inaccurate. I discuss these issues below.

As an ethical matter, I cannot agree with the idea that “illicit acts” including rape and sexual harassment should be “resolved within the family” (in this case, the school district). There is a long and troubling history of women being victimized by this kind of thinking. It is this very mindset that President Obama's "It's On Us" campaign is attempting to change. Everyone deserves protection from sexual violence and harassment wherever it occurs -- whether in a family, a school, or in the workplace.

It is not appropriate to criticize families or individuals who decide to seek the assistance of OCR or to file complaints. Everyone has the right to expect that the law will be followed, and the right to seek help in that regard if need be. Publicly criticizing people who contact OCR can have the effect of discouraging people who are concerned about discrimination from coming forward to get the help they need.

As a factual matter, the student editors' assertion that I did not “push to first resolve the conflict within the district" is incorrect. In fact, I made multiple efforts, all unsuccessful, over a period of nearly two months to persuade the district to handle the matter internally as required by both state and federal law. These efforts are detailed below.

I tried to work within the district before asking OCR to help the district. On April 9, 2013 (the same day that the Verde’s "Rape Culture" story was published) I told the school board in open session that the facts in the Verde article required an investigation of sex-based harassment under the state-mandated Uniform Complaint Procedure (UCP) and Title IX. All five members of the school board, the Superintendent Kevin Skelly, the district’s Compliance Officer Charles Young, and other district senior staff were present. After referring to the failure to follow legal requirements in the Terman case that gave rise to a finding against the district by OCR, I said:

"Recently the Paly Verde described a somewhat similar case [to the one at Terman] of a girl at Paly who was harassed on the basis of sex following her disclosure of an incident of sexual abuse. There's no evidence as far as I know that that complaint was handled according to the UCP even though that's clearly another case of discrimination and, in this case, sex-based harassment."

I followed up with district staff, but could not persuade them that Title IX or state antidiscrimination law were applicable to the situation described in the Verde article. Other members of my organization We Can Do Better Palo Alto also spoke to district officials and at board meetings. For example, my wife Professor Michele Dauber, who teaches Title IX law at Stanford, went to another school board meeting on May 7, 2013 and asked the district to address the Title IX issues raised by the Verde story, particularly the bullying and harassment that reportedly affected the victims' educational environment. 

In response to Michele's question at the May 7 meeting (a month after I spoke at the school board meeting on April 9), Dr. Skelly said that he was not aware of any obligation under Title IX for PAUSD to investigate the harassment reported in the Verde story, and he had not looked into it.

Michele followed up the same day, May 7, 2013, with a detailed letter discussing the Title IX obligations of a school when off-campus incidents of sexual violence lead to bullying and harassment at school, which she sent to the entire school board and Dr. Skelly. She noted that the district may have an obligation to investigate and address a hostile school climate even if the victims do not file a complaint, once the school becomes aware of the harassment (in this case, when the article was published in the Verde). She also offered Verde advisor Paul Kandell a guest lecture/discussion for his class on the subject of Title IX (Mr. Kandell declined her offer). She offered to meet with Dr. Skelly to discuss the matter further, but without success. Her effort to raise Title IX concerns with the district was the subject of a story in the Palo Alto Weekly. In that article Superintendent Skelly indicated that he was considering opening an investigation, but as far as I know he never did.

Only after efforts to reach out to the district were unsuccessful was OCR approached about the possibility of technical assistance. The Campanile did not report any of these efforts at working with the district. Instead, the Campanile incorrectly reported that I had not tried to “internally resolve” the Title IX issues. The editor sent me a list of questions in preparation for writing his editorial, to which I provided detailed answers. But he never asked whether I had attempted to internally resolve the matter prior to asking the OCR to provide advice. Had he done so, I would have given him the information discussed above.

I disclosed my communications with OCR to the Palo Alto Weekly over a year ago. The Campanile says that “the two-year delay in disclosing his email communication with OCR contradicts the transparency [Dauber] advertised throughout his campaign for the PAUSD school board in 2014.” However, there was no “two-year delay,” as I told the Campanile editor before he wrote his article. I wrote him that “I also told the Palo Alto Weekly about my request for Title IX technical assistance from OCR during the 2014 campaign. Had the Post asked me for my emails or other communications with OCR, I would happily have given them to the Post, just as I did with the Palo Alto Weekly.” I would also have given them to the Campanile during the 2014 school board campaign had they asked.

The Paly investigation did not cost the district $1 million. The editorial claims (without citing any source) that the Paly investigation cost the district the “loss of $1 million.” But since 2012, the total legal fees paid to Fagen, Friedman for all PAUSD matters is around $900,000. That includes all special education cases, hearings, and trials, various other legal matters, as well as at least seven separate OCR complaints and investigations, of which the Paly matter is only one.

What triggered the OCR Review? The editorial's headline is “OCR emails prove Dauber triggered investigation.” I can't rule out the idea that my request for technical assistance, or that of my wife, contributed to OCR's decision to investigate. However, I think it's more likely that OCR was telling the truth when it informed the district that their decision was based on the extensive media coverage of the Verde story. That fact was reported in the Campanile itself, a year ago. In addition, other factors that may have contributed to OCR's decision to investigate include the district’s own request for technical assistance that occurred a week prior to my email to OCR, as well as the board's highly uncooperative stance toward OCR with respect to other district matters during the month of May 2013.

That said, I don’t think there is anything wrong with filing an OCR complaint or asking for technical assistance, even if that request contributes to a decision to open an investigation. As I wrote in my blog last week in response to a similar editorial by the Daily Post, “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. . . 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.”

More training is needed. Although the Campanile states that teachers view the additional training implemented as a result of the OCR investigation as a waste of money and time, the facts suggest otherwise. The 2013 Verde article indicated that some female students may have experienced a hostile school climate with sexual assault, harassment and bullying. There were also significant concerns about streaking. A culture such as the one the Verde described takes time and training to change.

In my opinion PAUSD needs comprehensive training for faculty, staff, and students in recognizing and responding appropriately to sexual violence and harassment, including acquaintance rape, online harassment, dating violence, and stalking. This training should include information about legal obligations and the district’s grievance procedures, as well as about resources available to support those who experience harassment and assault.

Sexual harassment is a serious problem. According to a 2011 national survey by the American Association of University Women, 56% of girls experience sexual harassment during middle and high school. 9% of middle and high school girls are sexually assaulted. Many studies have shown that LGBTQQ students are at the highest risk for sexual assault and harassment. Girls of color and low-income girls may experience greater impacts from sexual harassment. The negative educational effect of sexual harassment on victims is severe: 37% of girls who are harassed do not want to go to school as a result, and that number increases to 46% if the harassment is online as well as in-person. These figures are a significant challenge to us as a community. They require us to think differently and to act vigilantly in order to ensure that all students have access to an equal education in a safe environment.

What should we do? As we think about the OCR investigation, we should keep foremost in our minds our responsibility to educate all staff and students about sexual assault, consent, sexual harassment, and relationship abuse. Had the district conducted an appropriate Title IX investigation when the issue was first raised in 2013, we would have already had the opportunity to consider whether any systemic measures were needed to address these issues. Such remedies typically include: ensuring that district grievance procedures comply with Title IX; ensuring that the Title IX coordinator is fully trained; conducting annual school climate checks related to harassment incidents; fully training staff and coordinators on obligations related to identifying, reporting, investigating, and taking appropriate action in response to harassment incidents; training and educating students on recognizing and reporting harassment including teacher grooming and harassment of students; implementing primary and bystander prevention education for students, faculty, and staff; creating a system for investigating, record-keeping and tracking complaints and incidents of harassment; and creating a system for self-monitoring the effectiveness of the school’s response to harassment. In my view, these kinds of steps will greatly benefit our entire community.

Finally, I want to make it clear that I fully support the First Amendment rights of our students and student publications. It is my hope that by setting the record straight on these issues we can all begin to work together cooperatively to improve the climate in our schools for all students. As President Obama says: It's on us. All of us.

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