OCR emails prove Dauber triggered investigation, undermining transparency

Dauber’s shortsightedness led to an investigation that has cost the district upwards of $900,000

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, which bars discrimination on the basis of sex in federally-funded activities.

However, in a recent article in the Daily Post, it was uncovered that PAUSD school board representative Ken Dauber had phoned 911, so to speak. In emails that the Post accessed via a Freedom of Information Act request, it was found that Dauber notified contacts at OCR, his previous employer, of the mishandling of a Title IX violation within the district. The Campanile believes that Dauber acted inappropriately by contacting a federal office rather than pushing to first resolve the conflict within the district. Moreover, the two-year delay in disclosing his email communication with OCR contradicts the transparency he advertised throughout his campaign for the PAUSD school board in 2014.

The chain of events

Following Verde Magazine’s April 9, 2013 publication of “You can’t tell me I wasn’t raped,” an article that decried an alleged rape culture within Paly, Michele Dauber, Ken Dauber’s wife, wrote a letter to the district, emphasizing its legal obligation to investigate the specific accounts described in the story. On May 16, 2013, then-PAUSD Superintendent Kevin Skelly publicly discussed the measures that the district took to ensure the safety of the individuals mentioned in the story. Around the same time, Skelly contacted OCR directly for technical assistance.

Dauber emailed contacts at his past employer, OCR, on May 29, 2013. In the email he specified, “I think these facts should have triggered a Title IX investigation… I was happy to learn… that OCR is able to unilaterally offer PAUSD technical assistance on this issue… I hope that OCR will consider doing so.”

To this request, Sandra Battle, the Deputy Assistant Secretary for Enforcement at OCR, responded, “I will have OCR-SF contact the Superintendent as early as tomorrow.”

On June 3, 2013, Skelly received a letter from OCR that stated, “OCR will make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with regulation… OCR has received information that the High School has not provided a prompt and equitable response to notice of peer sexual harassment.”
The OCR investigation, or compliance review, into sexual harassment at Paly was launched on June 3, 2013, just four days after Dauber’s email.

More than the media

Dauber has continued to cite the cause of the investigation as the “local and national media coverage [of the Verde story]” and continues to cite that “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.”

Yet Skelly made this comment before Dauber’s emails became public, when he believed the only contact with OCR had been initiated by himself and the media coverage appeared to be the only logical explanation for the “received information.” Now, examining the wording of the OCR email with the knowledge of Dauber’s contact just four days earlier, The Campanile strongly believes that Dauber was actually the trigger.

It would be unprecedented for OCR to launch an investigation purely based off of media coverage. In September of 2012, a 15-year-old student attending Saratoga High School, Audrie Pott, took her life because of both sexual harassment and bullying. Pott was assaulted by three teenage boys, and pictures of Pott during the incident were circulated online. This incident and the court case which followed were covered heavily by local and national media up until the verdict was decided in April 2015, yet no OCR investigation was launched on the Saratoga Union School District.

The fact that Dauber continues to refer to the extensive media coverage as the cause of the investigation proves either his naivete or his deception.

In the case of the Paly sexual assault investigation, no formal complaint was filed, and Verde editor-in-chief Evelyn Wang, who oversaw the publication of the controversial article, even stated in the May 16 story by the Palo Alto Weekly, “This will cause more trauma and it simply isn’t good for our sources at all.” Furthermore, the Weekly states, “Wang said the student journalists feel people asking for an investigation had ‘mischaracterized and conflated’ elements of the Paly story.”

Title IX dictates that a district must inform and obtain consent from the affected student, and if consent is not given, investigate to the best of its ability. This caveat could have impeded the district’s ability to examine the Title IX violation.

According to Wang, the girls in the story did not want an investigation. Can the district truly be blamed for its weak attempt to provide assistance when it was unwanted and even thought to “cause more trauma”?

Costs of myopia

Dauber maintains that the OCR investigation, regardless of why it was started, has been hugely beneficial to Paly on the whole. He says it “should be viewed as an opportunity to improve our schools for all students” and that improvements have been made.

Teachers have routinely had bullying and sexual harassment training for years, and while there were additional sessions as the result of OCR, teachers did not see these sessions as necessary since the previous training had been effective. The only impact of the investigation has been the loss of $1 million.

Since 2012, PAUSD has paid the legal firm Fagen, Friedman, and Fulfrost (FFF) around $923,200 in legal fees, and projects it will pay the firm $250,000 in the 2015-16 school year for handling the two remaining open cases. FFF is responsible for handling legal conflicts between PAUSD and OCR.

“We need to move on,” current PAUSD Superintendent Max McGee said, in reference to the OCR investigation. “If there’s changes that need to be made, [we want to] make them, if there’s findings, we want to address them, but right now, we’re in limbo.”

Clear as mud

But it is hard “to move on” when the school board has been fighting OCR over its investigative practices and spent a large deal of time struggling to discover why the compliance review began. Dauber claims to have informed the Palo Alto Weekly of his email communication with OCR in his 2014 campaign, but school board President Melissa Caswell and Superintendent Max McGee say they had no knowledge of it until approached by a Daily Post reporter in September 2015.

Dauber consistently advocates for both transparency and visibility and claimed, “I am particularly interested in bringing to the school board clearer and more transparent decision making” during his campaign.

This apparent transparency is part of the reason that The Campanile gave him support in the 2014 school board election. However, this new information makes Dauber’s fixation on transparency appear hypocritical.

It has taken far too long for Dauber to come forward with the information of his contact with OCR, and only did so when compiling the story to send to the California Fair Political Practices Commission to determine whether or not he should vote in school board matters involving OCR. Dauber was determined to not have a conflict-of-interest, as he should be considering he has no financial ties to it.

The final say

But the issue does not lie in Dauber’s questioned conflict-of-interest as he would like us to believe.
The true mistake has been in his resistance to come forward as the inciting informant for the ongoing investigation.
Despite arguments for the necessity of the OCR compliance review, Dauber has lost the support of The Campanile primarily because of his evasiveness that has wasted the district’s time and resources, when an internal solution should have been examined more closely first, before “calling the cops.”

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  • S

    Steve WhiteMay 15, 2017 at 6:56 am

    I hope when voters in this area consider the recall of Judge Aaron Persky, they will carefully consider that the recall was run by Michele Dauber, and carefully research the many deceptive claims she’s put out about Persky and the Brock Turner case. Birds of a feather

  • A

    Angela BakerOct 4, 2015 at 8:17 am

    It’s sad to see a student newspaper being used to publish uninformed and unfounded slurs at a school board member who has tried to protect Paly students. Phrasing things as questions doesn’t make them true, it’s a way of covering up for not having facts.

    Also, why didn’t the Campanile publish my earlier comment? You should not be censoring comments that you don’t agree with and only letting through the ones that you like. That’s not honest and I’m sure you know that.

  • J

    Judy Kosby MackSep 28, 2015 at 11:33 am


    As former editor of The Campanile, 1956/57, and Paly graduate, I continue to feel strong loyalty to our high school. Now retired, my career was in higher education working with issues of student development. For many years I was the Director of the UC Davis Counseling Center. Given my interests and experience, your recent editorial, “OCR emails prove Dauber triggered investigation, undermining transparency,” caught my attention.

    While I understand than an editorial is the expression of a publication’s opinion, it is incumbent upon the publication to present the truth as supported by the facts. A cursory fact check of some of the “facts” expressed in your editorial indicates you did not meet this essential obligation. Although you acknowledge that the school did not handle the matter properly, you criticize Mr. Dauber for seeking outside assistance. However, Mr. Dauber was at the April 9, 2013 school board meeting, and spoke to the Board and Superintendent Skelly regarding his opinion that the District should do a Title IX investigation based on the facts presented in the Verde article. Mr. Dauber’s most recent website blog post, http://www.kendauber.com/title_ix_at_paly, details several times between April 9 and the end of May 2013, that both he and his wife, Professor Dauber, spoke to either board members or Superintendent Skelly about their concerns. To me his actions were those of someone “working within the family.” Only when the Board decided not to act, to not handle the matter ‘within the family’ did he seek OCR assistance to protect the welfare of Paly students.

    I hope you can understand that the idea itself of keeping sexual harassment, rape, or other types of abuse, “within the family”, not using outside assistance, is one of the central problems our society has in attempting to intervene in the crimes of rape, harassment, or battery. Your idea that these events should be handled within the family is part of a rape culture, itself! When I was a girl we were told to keep things “within the family.” As an educator of young people, I have seen first hand how destructive it can be to do so. All institutions, religious, education, business, military, have come to recognize and deal openly and transparently with issues of rape, sexual abuse, and harassment.

    I would like to point out that Mr. Dauber has released both the written questions you sent to him when you were researching this editorial and his own answers. https://drive.google.com/file/d/0B0Te89oAASzOV2FqMWpuaGZPTk0/view. I think your editorial would have met the standards of journalism better if you had included specific facts he detailed.

    Lastly, I have many happy memories of being Campanile editor, and even though I found this editorial very troubling, I am happy to see that the Campanile is alive and well.

    Judy Kosby Mack
    Paly Class of 1957

    • A

      AlphonsoOct 1, 2015 at 9:37 am

      Judy – Were Dauber’s actions motivated by a desire to help Paly students or was the motivation to stir up trouble to make it easier to win a school board election? Did OCR get involved because of the circumstances at Paly or because of an obligation to help the Daubers? and did OCR contribute to a better school environment or did it just drain the District in legal fees? The problem is that Dauber has stepped out of bounds a number of times and many of the cases his actions have caused more hurt (to teachers and students) than help. Of course the District needs to be transparent, but Dauber needs to live by the same standard and that was the point of the editorial. Everyone should object to the misuse of Government and School District resources caused by conflicts of interest and apparently that is what is going on in Palo Alto.

  • E

    Elaine HowardSep 27, 2015 at 11:18 am

    About those legal fees.

    The following information was posted to PAonline in June 2015. See http://www.paloaltoonline.com/news/2015/06/06/school-board-to-review-law-firm-contracts

    This might be an interesting story for the Campanile.

    Fagen, Friedman and Fulfrost was formed in 2006 when the Managing Partner of Lozano Smith (Peter Fagen) and the head of the Special Ed practice Howard Fulfrost, along with a Special Ed partner Howard Friedman all left Lozano Smith (PAUSD’s other firm) in the wake of a 2005 U.S. District Court opinion that sanctioned the Lozano special ed lawyers for billing a Calaveras County school Bret Harte High School $500,000 to prevent having to spend $23,000 on services for a special ed student. The judge imposed Rule 11 sanctions (very very rare) and ordered the entire firm (every lawyer in it) to ethics training, and ordered the law firm to pay fines to the student.

    “Amid Affluence, a Struggle Over Special Education” http://www.nytimes.com/2005/04/24/education/amid-affluence-a-struggle-over-special-education.html?_r=1
    “School district, attorneys ordered to pay $5,000 in special-education suit” http://www.recordnet.com/article/20050122/A_NEWS/301229943/0/wap&template=wapart
    “Judge orders entire law firm to ethics class” http://overlawyered.com/2005/02/judge-orders-entire-law-firm-to-ethics-class/

    The next year that entire group left Lozano and rebranded itself as FFF. PAUSD appears to have hired FFF without an RFP, merely continuing with the same lawyers from the same firm, now with a new name, that had just been sanctioned for overbilling.

    Unsurprisingly, despite the ethics training and the new name, the same problems continue to come up. For example, in 2012, the San Diego Union Tribune reported that FFF led an aggressive litigation effort in Solana Beach in which FFF billed over $300,000 prevent paying out $6,000 in private school tuition for a kindergarten student. The parents said any disabilities were mild and they wanted her included, and the district insisted on full day special ed with no inclusion. The parents placed her in an inclusive private program at $6100 per year where she thrived.

    In that case, FFF lost at every stage of the process, which meant that the district ended up paying the student’s fees as well. And because FFF fought so hard and appealed to the Ninth Circuit and then tried to go to the Supreme Court (which refused to hear the case) the family’s fees were also over $500,000.

    The rationale for that ridiculous wild goose chase sounds remarkably like the kind of advice PAUSD gets from FFF (and that Bret Harte got from FFF’s predecessor Lozano Smith). According to the Solana school board president: “Of course it would have been far better to settle this case. The problem is, at the time, if you start settling all these cases, what message are you sending?” They were evidently told that allowing special ed funding in this case would “set a precedent” and they had to fight like hellcats to avoid that. What FFF probably didn’t tell them is that every case in IDEA is individual and unique and all are also confidential. Nothing sets a “precedent” so they spent $1million dollars in fees to avoid something that couldn’t happen anyway.

    ”At the start of a Feb. 17, 2012 hearing, U.S. District Judge Edward R. Korman said, “I am just curious. This whole dispute is about counsel fees I assume. Nobody in their right economic mind would be carrying a case to the Ninth Circuit that seems to me to involve something like $6,000 to $7,000.”

    As the mom of the kinder student remarked: “”I was thinking, what a monumental waste… It just seemed like the only ones winning were their lawyers.”

    “Special ed case costs approach $1M” http://www.sandiegouniontribune.com/news/2014/aug/12/solana-beach-special-ed-case-legal-fees/
    That sounds familiar.

    Reading articles like these it is clear that PAUSD is only the latest in a string of clients with which this firm has been involved that have been very similar to the OCR debacle.

    The results delivered do not justify the dollars expended, but because they are taxpayer dollars they are treated by district staff including Kevin Skelly, Holly Wade, and the board members—Caswell, Barbara Mitchell, Dana Tom, Camille Townsend, and Heidi Emberling—as Monopoly Money that they could spend with wild abandon.

    The first rule of holes is stop digging. But to FFF, the first rule of holes seems to be “everybody into the hole, we need more shovels!”

  • P

    Patrick GroganSep 26, 2015 at 11:40 pm

    Any accusation of this nature in itself debases the accuser when the playing field is childrens education..,.how low can it go when the only defense is incest because that’s what “keeping it in the family” truly means…,Who fears open challenge that doesn’t have have something to hide. I met Ken for the first time in 2009 and my only conclusion was he was too genuine to succeed in the filthy morass that was PAUSD but he proved me wrong as he fought day by day and person by person to gain a voice at the table and not just at open mic on Tuesday nights. Ken gains nothing from his position, he has suceeded personally in the world of business. So why would anyone in their right senses leave the comfort of their home to battle the bureaucracy of very upper middle class america fear mongering unless they saw true injustice of a magnitude that is draconian. Speak freely and speak loud Ken, your days are numbered as the establishment is too strong and you can only raise the flag from the dirt, others will hopefully carry it forward after you. Hold your head high and then bend it forward and charge, its a suicide mission but in the end you can stand proud and know that you and only you so far saw INCEST as unacceptable. Use your personal tragedy to gain strength to hold the mirror of double digit suicide in front of the fearful masses that are prepared to accept ‘unauthorized casulties’ in the pursuit of the Ivy League acceptance. Shake the tree knowing that you can only remove the weak arguments but know that the bulldozer will arrive some day to finish your work from the inside because in the end no truly misguided and corrupt organization can survive the test of time. Incest is not a solution, open debate is!!!!

  • A

    Angela BakerSep 26, 2015 at 11:51 am

    Mr. Dauber has posted a blog post that thoroughly refutes the statements in this editorial. For example, he told the school board directly on the day the Rape Culture article was published that the district should do an investigation, and he and others tried hard to get the district to the right thing. The Campanile clearly didn’t fact check this story.
    Also, I strongly disagree that sexual assault should be kept in the family.
    I don’t think a student newspaper should be a vehicle for false statements about anyone including in the comments above.
    Here is the link: http://www.kendauber.com/title_ix_at_paly

  • A

    AlphonsoSep 25, 2015 at 10:27 am

    The Palo Alto and Berkeley situations are completely different-
    The number of OCR cases in PA is high and very unusual – Berkeley has one.
    The OCR/Dauber relationship is very clear.
    Why did all the cases arise during the period leading up to the school board election? – was it orchestrated to help Dauber win an election?
    Berkeley does not have a paper (like PA Online) covering for people (like Dauber) involved in the OCR cases.
    Without question Dauber has gone outside normal protocol even after his election to the Board – those actions have hurt both innocent students and teachers. Reckless behavior.
    Dauber has cost the District a significant amount of money – several cases have had merit but most have not.
    And Dauber wonders why legal fees are high – perhaps somebody should provide him with a mirror.

  • C

    Carina RossnerSep 23, 2015 at 6:27 pm

    What a bizarre column! What is the purpose of this story?

    Do we really want to send the message that laws should be ignored, kids are responsible for getting their own justice (and as long as the victims are happy nothing else needs to happen), and that whistleblowers are the criminals?

    Why isn’t the story about how wonderful it was that the combination of kids speaking out, public media attention, board inquiries and appeals from members of the general community all worked together to get the OCR to help us clean up this cesspool?

    How about a story on how ridiculous it has been for our school administration to prefer to fight and challenge the OCR with silly legal posturing instead of focusing on fixing the problem? How about a tracing of where that $1M in legal fees went? Who decided to squander funds this way?

    If it weren’t for concerned and active community members like the Daubers who were willing to stick their necks out for our kids, spend thousands of hours and thousands of dollars campaigning for what they believed was right for our kids (and putting up with public scrutiny and abuse), we would still be in cover up mode, ignoring the sexually hostile/illegal culture (with a letcherous principal at the helm), not addressing homework policies, not trying to improve student emotional health, and pretending that our city was above it all.

    Why it matters so much more WHY the OCR got involved than the fact that they DID find cause for concern and action is bizarre!

  • P

    Peter CarpenterSep 23, 2015 at 1:41 pm

    This editorial states that “The Campanile believes that Dauber acted inappropriately by contacting a federal office rather than pushing to first resolve the conflict within the district.”

    “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, which bars discrimination on the basis of sex in federally-funded activities.”

    It has been suggested that this morally reprehensible advocacy of keeping knowledge of crimes “within the family” is a Teachable Moment.

    Here are the events to date:

    1 – This student written editorial was published on 18 Sept 2015 in the Paly High student newspaper The

    2 – This student written editorial was republished in the Daily Post on 21 Sept 2015

    3 – So far no Paly students have spoken out against this editorial

    4 – So far the Paly Principal has not spoken out against this editorial

    5 – So far the new PAUSD Superintendent has not spoken out against this editorial

    6 – So far the PAUSD Board has not spoken out against this editorial

    7 – So far the Palo Alto Weekly has not spoken out against this editorial

    8 – So far only a handful of citizens have spoken out against this editorial.

    So what exactly are the Lessons Learned from this Teachable Moment?

  • E

    Elaine HowardSep 22, 2015 at 3:12 pm

    There is an interesting post on Town Square today about how the Berkeley community is responding to a similar situation. http://www.paloaltoonline.com/square/2015/09/22/berkeley-high-school-under-ocr-investigation—-whistleblowers-celebrated-not-attacked

  • W

    William RobertsSep 20, 2015 at 10:09 pm

    Dauber did not cost the district $900,000, the previous superintendent and board did by failing to protect our kids themselves. I am saddened by this article that is so obviously politically motivated by district employees whom are taking advantage of students whom know no better. Students should be grateful to Dauber for getting help for our kids.

    What an embarrassment for the Campanile and the children who participated in this article.

  • T

    Too afraidSep 20, 2015 at 8:55 pm

    1. If Ken Dauber didn’t encourage people to file complaints, his wife sure did. That’d be a question I would ask Mr. Dauber or Ms. Dauber. I bet you could even get that from the Campanile editors from that time.
    2. It is clear that Ken Dauber and the PA Weekly folks knew the student was happy with how the district had handled her case. It’s clear that she didn’t want added publicity. Dauber knew this but still went to OCR and recommended an investigation. Seems pretty clear that he DOESN’T care about this student or any other student. Isn’t it ironic that someone who says he cares about kids would deliberately do something he knew would hurt a student?
    3. Ms. Dauber and Mr. Dauber used their relationship with OCR folks to make sure Paly got hurt. Then he runs for office and wins. Not only does this undermine transparency but it shows what lengths he went to to get elected.
    4. Keep investigating! Students need a voice on lots of issues and he ignores kids.

  • A

    Anna CampbellSep 20, 2015 at 7:10 pm

    Very well written story. Unfortunate that this had to happen. 🙁

  • M

    Micaela PrestiSep 18, 2015 at 8:38 pm