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.”