Revised: Title IX misconduct Shannon Zhao and Vivian Feng October 2, 2017 News, Showcase 2 Editors’ note: In an ongoing effort to be transparent with our readers, The Campanile will begin running a Clarifications and Corrections box on page A8 when applicable. If you read something in The Campanile that you think needs to be clarified or revised, please email email@example.com. Clarification: This story, also published in the Sept. 29, 2017 issue of The Campanile, “Title IX Misconduct,” includes the line: “The incident was subsequently determined to be consensual.” This line was based on conversations with Principal Kim Diorio and an interview conducted by The Mercury News with attorney Stephanie Rickard, who represented a former Paly student who left the district following accusations of sexual assault. In May, 2017 Diorio said in an interview with The Campanile, “The information that I have permission to disclose is that the student was neither convicted nor charged with sexual assault in the bathroom or on campus.” On Oct. 18, 2017 in an email addressed to Campanile reporter Shannon Zhao, Diorio reiterated her earlier comment, writing, “He was neither arrested nor convicted of sexual harassment or sexual assault on school grounds.” In May, Rickard said in a statement published in local newspapers , “… the district attorney’s office has declined to file anything against the student other than consensual underage sexual activity as a result of the conduct on campus … ” Court records regarding these proceedings are not available for review by the press, including The Campanile, because the case involved minors. According to the Cozen report, a review of the PAUSD and Palo Alto High School administration’s handling of sexual assault and harassment allegations, “… the School relied upon a determination by law enforcement as to the nature of the incident, which involves a different analysis (different elements and different standard of proof).” While the standard of proof in court is “guilty beyond a reasonable doubt,” the standard in a Title IX investigation by a school district is “the preponderance of the evidence,” the District’s Title IX Compliance Officer John DiPaolo said in an interview with The Campanile on Wednesday, Oct. 18. At least two dozen Palo Alto High School teachers and staff rallied behind Principal Kim Diorio at a special school board meeting last Friday that had been called to review a highly critical third-party investigation of the school’s and the District’s response to an alleged sexual assault case at Paly in October last year. However, just four days afterwards, at Tuesday’s regular School Board meeting, parents and community members criticized Diorio, even going as far as to call for her to be fired for the way she handled the case. In emails sent to The Campanile and other Paly publications, a community member, Kathy Jordan, wrote, “We see one shortcut after another. We see our students’ safety and rights being shortchanged and the law as well continually throughout this Cozen report and allegedly through these officials’ actions.” Kathy Jordan The Cozen report Jordan referred to was prepared by the law firm Cozen O’Connor and presented to the Board of Education. It stated that the Palo Alto Unified School District’s response to the event last fall did not “comport with key aspects of Title IX, state law, and Board policy and the District’s administrative regulations.” In the report, the District was credited for its prompt response to reports of Title IX misconduct, but criticized for not keeping sufficient records of the incident. Moreover, the report said “a common practice [for staff and administrators] was to communicate by telephone or text message to avoid creating documentation that could potentially be publicly released.” The report refers to the case of a 14-year-old freshman female who reported being forced into a sexual act by a male Paly student in a bathroom on campus. The incident was subsequently determined to be consensual. The lawyers presenting the report released the names of the four Paly administrators and two district leaders involved in handling the case: Diorio; Paly Assistant Principals Vicki Kim, Jerry Berkson and Kathie Laurence; Superintendent Max McGee and former district Title IX coordinator Holly Wade. The 60-page report brought some information to light for the first time. Among other details reported, the lawyers concluded that a special Title IX attorney hired by the district may have given incorrect advice to Kim and Wade. The report said Kim asked others multiple times if the school should provide the alleged victim with the opportunity to fill out a Uniform Complaint Procedure (UCP) form. Wade told the OCR investigators that the district’s Title IX attorney said it was not necessary. According to the lawyers, such instructions would violate board policy, state law and the federal Title IX law. The OCR lawyers also said a “longstanding” practice of not maintaining proper documentation of reported incidents has continued while Diorio has been an administrator at Paly. While McGee acknowledged the possible need for a UCP filing to Wade, he did not pursue this request further, according to the report. However, the report did note that school and district administrators were not given detailed Title IX training until May 2016, after this case became public. As a result, during the time they were handling the case, the school and district administrators were dependent on the Title IX attorney, who advised them that a UCP was not to necessary. When this case was addressed at the Friday board meeting, more than 20 Paly teachers, students and community members spoke in open forum, and they repeatedly referenced the many improvements at Paly during Diorio’s tenure. The consensus among those who attended the meeting was that Diorio’s commitment to the well-being of her students was demonstrated through her work to eliminate the streaking culture at Paly. “Since her [Diorio’s] tenure, the tradition of streaking has been virtually been eliminated and the de-stigmatization of mental illness has been on the forefront of our academic journeys,” Noga Hurwitz Some of Paly’s veteran teachers, including Esther Wojcicki, Jack Bungarden and Peter Diepenbrock, described Diorio one as of the best principals they have worked under. Those who did not speak filled most of the room and showed their support for Diorio during open forum by rising from their seats in solidarity. 2 Responses Kathy Jordan October 10, 2017 This article has an unverifiable assertion that has no attribution and is inaccurate and allegedly libelous: “The incident was subsequently determined to be consensual.” How would that make the victim feel to learn that a Paly sponsored student publication is publishing untruths? She alleged sexual assault. According to the Cozen draft report, Principal Kim Diorio and AP 1 Vicki Kim did not complete an investigation on the Oct. 11, 2016 incident, nor come to any determination on what occurred, which if they had, might have led to expulsion. If the boy attempted or committed sexual assault (and what was alleged to have happen is sexual assault under the penal code), then it was mandatory expulsion (according to EDC 48915(c)(4)). He wasn’t expelled, as we know from the news coverage. Thus he was exposed to the whole student body; someone who had a felony conviction for forced oral copulation under menace or fear. Which is the same exact offense that the Oct. 11, 2016 victim alleged. Which raises concerns about student safety at Paly and within PAUSD if these are the types of practices being used. Please retract the statement immediately. Publishing this assertion is promoting and perpetuating a hostile climate for the students at Paly. Why would any victim come forward if the Campanile would label her a liar and say an alleged sexual assault is actually consensual, without any evidence or attribution for it? Reply Anonymous November 5, 2017 According to the editor’s clarification, both conversations with principal Diorio and the information from attorney Rickard, one can only conclude that the victim did not file sexual assault/battery charges against the predator via court. There could many reasons that the victim would choose to report, but not file charges. For example, she may not have wanted to keep reliving the torments as she would need to testify during a trial. Nowhere in the clarification from the editor indicates that there was a determination that the incident was consensual, because there was no investigation result about the intent and nature of the incident. For example, if after the victim’s report of the alleged assault to school, and a UCP investigation was conducted, then the result of the investigation might have led to a determination. But clearly principal Diorio’s statements and the defendant’s attorney’s statements did not make a determination that the incident was consentual. I sincerely hope that the editor will apologize to the victim. It must be devastating for her to read such a determination being written by this paper without proof and evidence. Reply Leave a Reply Cancel Reply Your email address will not be published.CommentName* Email* Website Notify me of follow-up comments by email. 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