The U.S. Department of Education has closed an investigation after more than 16 months into San Diego Unified School District’s mishandling of a sexual assault at an elementary school.
According to documents obtained by inewsource through a Freedom of Information Act request, district officials acknowledged not following district policies and federal law while responding to a parent’s complaint that his child was sexually assaulted by a student in a school restroom three years ago.
The federal investigation resulted in a formal agreement that requires the school district — the second-largest in California — to develop guidelines and training to improve how elementary school staff handles similar incidents in the future. If the district fails to comply with the terms, the federal government can withhold funds.
The documents also confirm that the Department of Education is nearly six months into an ongoing sexual violence investigation at another San Diego County school district: Carlsbad Unified. No details, including the specific school involved, are available.
As of March, the two K-12 districts were among 75 nationwide facing sexual violence investigations by the U.S. Department of Education’s Office for Civil Rights, federal records show.
The investigations are being conducted as part of the Obama administration’s stepped-up efforts to enforce Title IX, the sweeping anti-discrimination law that requires school districts to protect students at K-12 schools from sexual violence and sexual harassment. As the Washington Post reported in January, the federal government has recently launched more sexual violence investigations at K-12 schools because of an increase in complaints.
The documents the Education Department provided to inewsource include redactions and don’t name the San Diego Unified school where the incident happened. Nor do they mention the names of the students and school officials involved. But the dates and descriptions included in the documents suggest that the federal authorities may have been investigating a single incident reported by the news media involving two kindergartners at Green Elementary in San Carlos.
In that incident, the parents of a student reported that another boy at the school forced oral sex on their son and demanded the same sex act in return. Last year, the parents reached a settlement with San Diego Unified after they filed a claim alleging that the school’s principal, Bruce Ferguson, failed to properly investigate the incident.
In another claim filed last year at the same school, a parent alleged that Ferguson failed to contact Child Protective Services after she reported that her daughter had been assaulted by three students in May 2014.
Ferguson left his post as the school’s principal shortly after the claim was filed. In August, The San Diego Union-Tribune reported, Ferguson started a new job at district headquarters as a “principal on special assignment.”
In a third legal complaint involving Ferguson, a former school district investigator filed a federal lawsuit last year claiming the former principal failed to properly respond to sexual-assault incidents and that other school officials attempted to cover up other cases of sexual assault and harassment at the school.
Ferguson did not respond to an email request for comment.
San Diego Unified did not make an official available for comment about the federal investigation and the resulting agreement. Instead, the district’s communications director, Linda Zintz, issued a statement.
“The settlement agreement outlines the remedy plan for the district, which the district will follow,” it reads. “The implementation plan is in the process of being completed.”
It’s unclear exactly why federal authorities are investigating Carlsbad Unified. Last month, inewsource filed a records request seeking the complaint that prompted the inquiry, but the federal government said it would not disclose the complaint because releasing it could interfere with the ongoing sexual-violence investigation.
Carlsbad Unified Superintendent Suzette Lovely did not immediately respond to an email and phone message requesting comment.
Complaint prompts internal investigation
Although much information is redacted in the federal documents inewsource obtained, here is what is known:
The U.S. Department of Education’s Office for Civil Rights began investigating San Diego Unified in December 2014. Less than two months before, the federal government received a complaint from the father of a boy, claiming that his son had been “touched on his private parts” by a student in the boys restroom in May 2013.
A Department of Education official told inewsource that the case was originally categorized as a sexual assault investigation. It was re-categorized as a sexual harassment case shortly before the district reached a resolution agreement.
Most of the father’s written description of the incident is redacted in the document provided to inewsource, but in one portion, the father wrote: “Just recently we discovered that the school failed to report this sexual assault to the Title IX officer and that none of the Title IX procedures were followed.
“We are not sure what [remedies] are available,” the father’s complaint continued, “however we continue to be troubled by the hostile environment created by the school’s failure to apply any of their own student protection policies or those afforded by Title IX.”
The parent reported the incident to the elementary school’s principal, who confirmed what happened after meeting with the students involved. The principal said he would call county Child Protective Services, and he “indicated that he asked [redacted] teachers to more closely monitor the students when they were in the restrooms.”
As the parent requested, the two students were placed in different classrooms for the following school year. But a year after the original incident, the parent filed an internal complaint with the district because he was unhappy with the principal’s response.
The father thought the student who inappropriately touched his son should have been expelled, and he was upset because the district didn’t follow its sexual harassment policy while investigating the incident.
San Diego Unified responded to the parent’s formal complaint in September 2014.
“The District concluded that the principal was correct in not applying its ‘zero tolerance policy,’” which covers incidents including sexual assault and harassment. The district claimed that it did not apply to elementary schools “because elementary students do not have the relevant mental state for engaging in sexually harassing behavior.”
The parent appealed the district’s decision. In response, San Diego Unified issued a second report in October 2014 repeating many of the conclusions of its first report, including that “the incident of a single occurrence of inappropriate physical contact did not raise possible sexual harassment.”
However, it found that “there was no evidence to support that a safety plan had been put in place” for the student who inappropriately touched the complainant’s son. Moreover, “two of three witnesses denied that they had been counseled to monitor [the student] more closely.”
San Diego Unified’s report recommended that the district “clarify under what conditions the District’s sexual harassment policy might apply to elementary-age children and that elementary principals receive training on how to respond to alleged incidents of inappropriate touching between elementary-age students and the applicability of disciplinary procedures.”
A pledge to reform
San Diego Unified acknowledged to the Office for Civil Rights that the district mishandled its investigation of the complaint.
In an interview with federal investigators, San Diego Unified’s general counsel said the district’s conclusion that the incident did not amount to sexual harassment because it was not pervasive “was based on an incorrect application of Title IX standards, because a single incident of sexual touching of [a] student could be severe and constitute sexual harassment.”
And while the principal did report the incident to Child Protective Services, the district’s counsel confirmed that “he did not apply the District’s sexual harassment policies and procedures.”
The Office for Civil Rights closed its investigation on April 14, after San Diego Unified agreed — “without admitting to any violation of law” — to a formal resolution agreement with the federal government “that commits the District to specific actions to address the concerns raised by the investigation.”
It’s common for the Department of Education to reach resolution agreements with school districts it investigates for sexual violence cases. If districts fail to comply with the terms of the agreement, the Department of Education can withhold federal funds.
Superintendent Cindy Marten signed a two-page resolution agreement on April 13. According to the agreement, the district pledged to create guidelines for elementary school principals to help them understand the process for responding to sexual harassment and assault incidents involving students.
A draft of those guidelines must be submitted to the Office for Civil Rights by the end of May for review and approval before providing them to elementary school principals. The agreement also requires the district to provide training to all elementary school administrators, including principals, to teach them how to properly investigate sexual assault and harassment complaints.
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