OCR findings: A repeated failure to properly investigate

Elena Kadvany / Palo Alto Weekly

A formal letter of findings from the U.S. Department of Education's Office for Civil Rights released on Thursday details how the Palo Alto school district repeatedly failed to "promptly and equitably" respond to and investigate reports of sexual harassment and assault on and off its campuses -- and thus violated federal anti-discrimination law Title IX. 

As is standard agency procedure, the Office for Civil Rights released the findings about a week after the school board unanimously approved a resolution agreement that commits the district to a range of efforts it will take to address these violations.

The findings paint a detailed if clinical picture of the school district's failure to not only comply with federal law, but to follow its own policies and procedures in eight separate sexual harassment, assault and misconduct cases involving students, teachers, staff and an administrator since 2013.

In numerous cases, the district failed to conduct any Title IX investigation after receiving reports of sexual harassment and violence, including when it became aware of allegations that a Palo Alto High School student had been sexually assaulted off campus and that former Paly principal Phil Winston had sexually harassed students and staff. The resolution agreement directs the district to address these and other missteps by hiring an outside investigator, to be approved by the Office for Civil Rights, to conduct proper investigations into the district's handling of several cases.

Other violations that were common across cases include: failing to to promptly investigate reports of incidents, to provide notice of the outcome of an investigation to the affected parties and to assess whether or not allegations of sexual harassment or violence caused a hostile educational environment for students at school, the Office for Civil Rights found. 

The school district's former Title IX coordinator, Associate Superintendent Charles Young, also failed to "discharge his responsibilities" in the role — including not reviewing both oral and written Title IX complaints made at school sites nor scrutinizing them to identify "patterns or systemic problems" — which violated Title IX, the Office for Civil Rights determined. (Young left the district in 2015 to become superintendent of the Benicia Unified School District; the district's chief student services officer, Holly Wade, now serves as Title IX coordinator.)

The federal agency also found the school district's own policies to be in violation of Title IX. The letter of findings describes numerous instances in which the district's policies on sexual harassment, discrimination and complaints regarding employees were inconsistent, non-compliant or not followed. The school district has already started reviewing and updating its policies in these areas and is required to do so as part of the resolution agreement. 

Superintendent Max McGee told the Weekly on Sunday that the district "want(s) to ensure that every student is safe and feels safe." 

The district is "eager," he added, to launch proper investigations into the cases required by the Office for Civil Rights and will select an independent firm to do so in the next few weeks.

McGee said he was not surprised by any of the findings, in contrast with some community members who worried that signing the resolution agreement would mean getting "blindsided with findings."

"We weren't," he said.

The Office for Civil Rights opened an investigation in Palo Alto in June 2013 in response to Palo Alto High School student publication Verde Magazine's investigation into "rape culture"at the school. Stories included accounts of off-campus sexual assault and at least one student who said she was harassed by other students at school as a result. The agency determined the district violated Title IX when it failed to "take immediate and appropriate steps" to investigate the sexual assault itself as well as the peer harassment. 

The federal agency opened another investigation in March 2014 in response to a parent's allegations that the district mishandled allegations of dating violence and stalking at Gunn High School. The district violated Title IX by failing to take immediate interim measures to protect the victim in this case, the findings state, and to "assess and address the hostile environment" the student faced at school as a result of the harassment. As in many other cases, district officials did not provide her family with a notice of the outcome of their investigation.

Gunn administrators also "did not understand" the district's obligation to respond to off-campus sexual harassment and to consider the "full scope" of the impact of that harassment at school, OCR said. (Training for employees and staff, particularly at Gunn and Paly, is another stipulation of the resolution agreement.)

The complainant in the Gunn case, whose name is being withheld by the Weekly to protect the family from further public exposure, told the Weekly her family is "relieved that the investigation has finally concluded and that the OCR has confirmed that serious mistakes were indeed made in our case." 

She is working with district staff on suggested policy revisions, which the Board of Education's policy review committee will be tasked with over the next weeks and months. 

"We are glad that the new board is moving forward in a more collaborative way with the OCR, and we are more hopeful that future victims will be protected," she said.

The scope of the federal investigation expanded over the years as new allegations arose. In total, the Office for Civil Rights conducted four site visits in Palo Alto and interviewed about 55 school and district staff, including former Superintendent Kevin Skelly, current Superintendent Max McGee, Charles Young, Gunn's and Paly's current principals, assistant principals, teachers, staff, counselors, teachers and student club advisors, according to the letter. The agency also interviewed the student and parent in the Gunn case. 

The Office for Civil Rights identified flaws in the district's handling of the allegations about Winston, as well as those of an inappropriate consensual teacher-student relationshipinvolving Paly English teacher Kevin Sharp, allegations that former Paly teacher Ronnie Farrell inappropriately touched a student in a classroom at the end of the last school year and that former Ohlone Elementary School teacher Michael Airo sexually abused a minormore than a decade ago, as well as reports of off-campus sexual violence. 

In the Winston case, the school district failed to "determine whether the alleged conduct constituted sexual harassment that created a hostile environment for the affected students, staff, and the broader school community, take steps to eliminate any hostile environment that may have been created, and prevent the harassment from recurring," the letter states.

OCR also found that Paly Principal Kim Diorio, then assistant principal, was not prompt enough in reporting allegations about Winston, then her supervisor, that she received from numerous staff over the course of three years. Diorio declined to comment on the findings, stating "wish I could talk, but I can't on this issue" referring the inquiry to the the district's communications officer.

The Office for Civil Rights also expressed "concern" that the district delayed its Title IX investigations into the allegations regarding Sharp, Farrell and Airo. The agency said it will review the outcomes of investigations into Farrell and Airo as part of its monitoring of the school district over the next three years.

McGee said the delays were due to relying on internal staff to conduct these investigations. The district has started using an outside law firm focused on workplace investigations, the Law Offices of Amy Oppenheimer, to do this work, McGee said.

The letter of findings also describes allegations of an inappropriate relationship between a classified Gunn employee and a 17-year-old student, reported to the district in December 2015. A "prompt," outside investigation determined they were not in a romantic relationship, the letter states. The agency halted its own investigation of this case when the district expressed an interest last year in entering into a voluntary resolution agreement.

The Office for Civil Rights also reviewed three years of sexual-harassment reports from Paly and Gunn and found that while "generally" the schools investigated and took some action in response, the majority of oral reports didn't include whether interim measures were put in place nor if a notice of outcome was provided to the affected students. The district told the Office for Civil Rights that when it did provide interim measures, such as counseling, it "generally did not assess" whether the measures were effective.

Examples of reported sexual harassment included online and in-person student harassment, according to the Office for Civil Rights. In one case, a male student repeatedly harassed the same female student despite warnings, two suspensions, a meeting with his parents and a notification to the Palo Alto Police Department. 

The agency also found the district was not following its own policy requirement to record all reported cases of sexual harassment in order to "monitor, address and prevent repetitive harassing behavior," the letter states. A May 2013 report that about 100 streaking incidents at Paly had created a hostile environment at the school and the alleged sexual assault of a Paly student were not recorded as required by policy, according to the Office for Civil Rights.

Read the full letter of findings here.

Read the original article here.

Carolyn Pires