Report: District failed to follow law, policy in sex-assault case

Elena Kadvany / Palo Alto Weekly

A highly critical report released Wednesday afternoon details how Palo Alto High School and district administrators repeatedly failed to properly respond to a student who reported she had been sexually assaulted at Paly in 2016, illustrating an organization unable to comply with federal and state laws and its own policies.

The report, which was prepared at the request of the Board of Education by law firm Cozen O'Connor, was released even as the trustees met to discuss the fate of several employees involved in the case in closed-session performance evaluations. 

Two Cozen O'Connor lawyers nationally known for their work around federal gender-equity law Title IX examined the district's response to a female Paly freshman's report in October 2016 that a male junior had forced her to perform oral sex on him in a campus bathroom. The freshman eventually withdrew from Paly, her mother said in previous interviews with the Weekly, due to distress stemming from the alleged sexual assault. Several months later, a juvenile found the same male student to have sexually assaulted a Menlo Atherton High School student off campus. The public disclosure of these incidents in media reports this spring sparked community uproar over the district's handling of student sexual violence. 

The report from lawyers Gina Smith and Leslie Gomez faults in particular Superintendent Max McGee and former Title IX coordinator Holly Wade, who left the district at the end of the last school year. McGee and Wade "failed to exercise sufficient oversight of the District's compliance responsibilities under Title IX, state law and Board policy," the lawyers wrote. (The report itself identifies administrators by title and not name.)

"This lack of oversight is particularly concerning given the context at the time, which involved an ongoing OCR (U.S. Department of Education's Office for Civil Rights) investigation where the District, and in particular, PAHS, were subject to a several year inquiry into how they responded to Title IX complaints," the report states.

Smith and Gomez found "systemic" problems with how the district handled the female student's case -- from poor, and in some instances nonexistent, record keeping and a neglect to communicate sufficiently with either the female or male student or their parents, to a failure to launch a required Title IX investigation and not investigating a potential pattern of behavior by the male student. 

"While school administrators took timely action to respond to the (female student's) report, they did not provide the (student) with the full range of procedural options available under Title IX, state law, Board policy and administrative regulations," the report states.

The report notes the lawyers were not asked to make any determination about the facts of the incident itself, but rather administrators' handling of it.

The report is based on the lawyers' interviews with current and former administrators at Paly and the district and a review of available documents related to the incident, including handwritten notes, letters, timelines and other materials compiled by administrators; text messages and email correspondence; records of phone calls and text messages; court orders; student education records; a previous report conducted by an external law firm; the Uniform Complaint Procedure (UCP) reporting form; and mandatory child abuse reporting. The female student declined to participate in the investigation. The report does not say whether lawyers spoke directly with the male student.

How Paly leaders responded

While the report identified plenty of missteps by Paly administrators, their initial response to the female student's report was prompt and compliant, the lawyers found. 

Administrators conducted an initial, "limited" investigation and put in place interim and ongoing remedial measures to support the female student, as well as imposed "protective measures" for the male student. The male junior was also disciplined for "related conduct" with the female student, but not for the specific incident she reported, the lawyers found.

Administrators also immediately reported the incident to the Palo Alto Police Department and later that evening, to Santa Clara County Child Protective Services, according to the report. 

Paly Principal Kim Diorio and two unnamed assistant principals informed Wade about the incident the same day they learned about it, the lawyers found. (Three assistant principals who were involved in the case are not named in the report; Paly employed four assistant principals in 2016 -- Jerry Berkson, Vicki Kim, Adam Paulson and Kathie Laurence, who is now principal of Gunn High School.) Within 24 hours, as required, Diorio also notified McGee, who "identified the potential need to pursue a UCP and took steps to ensure that the Title IX coordinator had been informed," the report states.

Beyond that point, however, Paly administrators repeatedly failed to comply with board policy and federal and state law. 

School administrators did not conduct a "thorough" interview of either student involved that would have allowed them to "evaluate issues of consent, the potential impact of a power differential between the parties based on age, grade or status, or the welcomeness of the conduct," the report states.

They did not complete their investigation, which also did not constitute a formal investigation as required under the Uniform Complaint Procedure, the lawyers note in the report. Nor did administrators notify the student and her family of their right to file a complaint under the district's UCP, according to the report. The student and her family were not provided written notice of the outcome of any investigation, according to the report.

And while Paly leaders took "immediate steps" to address reports that the female student was being bullied as a result of the incident, they failed to consider whether "the conduct could potentially constitute harassment, retaliation, or the continuation of a hostile environment under Title IX," the report states. 

No one informed the female student or her family of their rights to protection against retaliation at school, according to the report.

The bullying incident also revealed a lack of coordination and communication among the administrators, the report states. The assistant principal who dealt with the bullying situation didn't share the information with the assistant principal who had overseen the school's response to the sexual assault. The same assistant principal also did not direct the harassed student to Wade.

The report also illustrates a culture in which staff not only failed to but even resisted keeping records of Title IX incidents at Paly.

"Based on training and practice, a common practice was to communicate by telephone or text message to avoid creating documentation that could potentially be publicly released," the report states. 

While administrators shared information at team meetings and some kept personal notes or records, "there were no efforts," the lawyers found, "to maintain centralized records or consistent documentation that would inform future steps or allow the institution to track patterns or identify potential retaliation or harassment." Staff who kept personal records did not share them contemporaneously with Wade.

Staff members also did not document interviews with law enforcement in this case, as required by board policy.

Only the wellness center, where the female student reported the incident, maintained "detailed and contemporaneous notes," the report states.

The district's role

At the district level, Wade bears the brunt of the report's criticisms. Despite being explicitly tasked with the responsibility, she neglected to conduct a legally required Title IX investigation to determine whether the female student was experiencing a hostile environment at Paly. She did not speak directly with either of the students involved, nor their parents, to inform them of their rights under district processes.

The Uniform Complaint Procedure requires the district's Title IX coordinator to give a student who has filed a complaint the opportunity to describe what happened, identify witnesses and provide evidence and information. It also requires the coordinator to interview any individuals who might have relevant information; to review available records, notes or statements and to prepare a written report of findings. 

"Here, none of those steps occurred," the lawyers wrote. 

Wade also neglected her charge as the district's Title IX coordinator to oversee all complaints by "deferr(ing) to the administrators on site to investigate and evaluate the appropriate institutional response," the report states. 

"Once on notice, the district had an independent obligation to investigate or otherwise determine what occurred in light of its Title IX obligation to resolve all complaints promptly and equitably and to provide a safe and nondiscriminatory environment for all students. This obligation exists whether or not the complainant makes a complaint or asks the institution to take action," the report states.

The lawyers found that Wade sought outside legal counsel in this case on the appropriateness of offering the female student a UCP. The advice she received not to offer the UCP process "appears to contradict Title IX, Education Code and UCP requirements," the report states.

When a Paly assistant principal notified Wade that the female student planned to withdraw from the district, Wade again said that the school did not need to offer a UCP.

While the district later opened a UCP investigation, "the nearly five month delay" to do so "does not constitute a prompt response" to the female student's report, the report states.

Wade's failure to keep proper documentation of this incident also significantly impacted her "ability to effectively track and monitor patterns, climate and culture," the lawyers wrote. 

(Wade has since been replaced by an interim Title IX coordinator the district hired from Cozen O'Connor. The lawyers note that since the start of their investigation, the district has taken steps to address "deficiencies," including this appointment, increased staff training that took place this summer and relevant policy revisions.)

The report also highlighted an administration that did not connect the dots that continued to unfold in the case. After the school district was notified that the male student had been found in juvenile court to have committed a felony charge — oral copulation by force, violence, duress, menace or fear — that December for assaulting a female Menlo-Atherton High School student in October 2015, administrators again failed to consider this information as part of a larger picture. (The report does not specifically call out a Jan. 31 juvenile court notification the district has said it received but rather "additional information" provided by external authorities in February.)

In a section titled "Evaluation of Risk," the lawyers state: "The district did not properly investigate to determine whether the additional information provided by the external authorities involved on- or off-campus conduct by the (male student); whether the conduct was connected to a PAHS student; whether the conduct may have had continuing effects at PAHS; whether as a result of the conduct, the Respondent may have represented a danger to persons; or whether the additional information presented a potential pattern of conduct that may warrant further action or triggered obligations" under board policy on student suspension and expulsion. 

The district also "had no protocol for the tracking and monitoring of information received from external authorities, or compliance with directives from external authorities," the report states.

Many of the report's observations are corroborated by the Office for Civil Rights, whose recent yearslong investigation into sexual misconduct allegations in the school district also found repeated violations of Title IX

The federal agency reviewed documents related to this case as part of its ongoing monitoring of the district, according to the Cozen O'Connor report. The agency likewise found that despite a "prompt" initial investigation, notification of law enforcement and imposition of remedial measures for the students, the district failed to inform the student and her family of her rights under the UCP -- first when the incident was reported, and again when the student notified Paly that she planned to leave the district.

Support for and opposition to administrators

The Cozen O'Connor lawyers last week presented to the school board in closed session a "detailed, annotated working chronology" of the district's response to "enable the board to consider and evaluate personnel issues related the facts gathered in this matter."

On Wednesday, the board convened to discuss the performance of McGee, Diorio and the other Paly administrators involved in the case, Before the board went into closed session, however, several parents spoke both against and in support of Paly's principal. 

A father who said his daughter was assaulted on the Paly quad in 2015 -- a case Cozen O'Connor is also investigating separately -- struggled to hold back tears after a Paly staff member defended Diorio's "character" and "integrity." The Weekly is not identifying him to protect his family's privacy.

"My daughter was assaulted," he said. "To hear people say that Kim acted with character and integrity ... is offensive. She did ignore us."

He urged the board to consider the law firm's report not in a vacuum, but against the backdrop of other numerous other Title IX reports the district has received in recent months.

The Paly staff member, Carolyn Benfield, said of the seven principals she's worked with over 18 years at Paly, "There's never been a principal more dedicated to the safety of our kids than Kim, no one who has made such a positive change in the culture at Paly."

"I would hope that a person's character, integrity and history of their actions and many good works would be the greatest determining factor in their employment," she said.

When the board came out of closed session after four hours, board President Terry Godfrey said the trustees took no reportable action.

Public meeting: The school board is holding a special public meeting to discuss the Cozen O'Connor report on Thursday, Sept. 21, from 4-6 p.m. at the district office. According to the district, the meeting will be televised by the Midpeninsula Media Center.

Read the original article here.

Carolyn Pires