OCR Investigation Ignores 504 Issues at Fox C-6

It’s hard to believe that it’s only been 10 years since I spoke during public comments at the January 15, 2013 BOE meeting and told Fox C-6 administrators and Fox's BOE:

“It is my hope that you respect others in our community that may speak at this evening’s school board meeting and that the individuals in our school community refrain from making defamatory comments in online forums in the coming days as has been done to me after I have spoken at previous school board meetings. 

Those who are making the defamatory comments have no business teaching our children, running our school, etc. if they are employees of our school district. I believe that they are, because no one other than those present in this room at those past board meetings had knowledge of who was present and what was said. They are simply playground bullies. 

Our district has a no bullying policy but it appears that it does not apply to school officials.”

I pointed this out to Fox’s BOE in 2013 because this type of behavior had been going on since December 2010 when I made my first Public Comment at a Fox C-6 BOE meeting.

There were only 7 visitors in attendance at the Fox's December 2010 BOE meeting.

Online harassment began prior to my speaking at the December 2010 BOE meeting. It began in August 2010, when Fox issued a “press release” in the St. Louis Post Dispatch with the help of Fox’s law firm as noted in Fox’s legal bills that I obtained in 2014 via a Sunshine Law request.

And, the Post Dispatch editor refused to remove those threatening comments that were posted on the “press release” article because of freedom of speech. The threatening comments and other nasty comments were made because we had filed complaints against Fox with the U.S. Department of Education’s Office for Civil Rights.

In May 2014, it became public knowledge from a lawsuit that the defamatory comments posted online in 2012 and 2013 had been traced to the homes of Fox C-6 administrators and a retired assistant principal who was an assistant soccer coach when I played on the Fox High soccer team.

The online comments should have raised red flags for the Kansas City ED OCR attorneys who were conducting a District Wide Compliance Review investigation of Fox to determine whether or not Fox was providing Individualized Health Care Plans (IHPs) to students with disabilities instead of Section 504 Accommodation Plans.

Retaliation or harassment against anyone who files a complaint with ED OCR is a violation of Section 504 law. It’s posted in the Resolution Agreement.

All told, it took the KC ED OCR office 8 years to conduct an investigation to find out if Fox was providing IHPs instead of 504 Accommodation Plans. KC ED OCR already knew they were doing so when they removed our daughter's 504 Accommodation Plan in September 2008 and provided an IHP instead.

As a comparison to the KC ED OCR investigation, it only took the Atlanta ED OCR office 2 years to conduct the exact same investigation of the Memphis City School District which had 107,000 students in March 2010 when that investigation was opened.

Since the KC ED OCR office decided to ignore how Fox was handling Section 504 in the district prior to 2015, it was easy to see why Fox C-6 administrators weren’t held accountable for the actions and why it wasn’t documented in OCR’s March 2018 Resolution Agreement and Letter to Fox. Therefore giving a false impression that Fox was properly following the law.

The KC ED OCR supervisory attorney who reopened the investigation in the spring of 2015 which was originally opened in March 2010, told me during our 2020 phone conversation that ED OCR ignored what had happened at Fox prior to 2015 because “people had moved on” and “it was before my time”. It gives the appearance that school districts are above the law according to the KC ED OCR office because they just look the other way.

Fox is the perfect example of how difficult it can be to get your school district to change and do things like they do in other school districts like post bill payments and board meeting packets online or audio and/or video recording BOE meetings and posting them online for the community. Of course Fox does that sort of thing now, but it took years of requesting them to do so before it actually occurred. It did not happen while Dianne was superintendent. Or, at least not until the very end of her tenure. When I asked for copies of the credit card statements, it led to the very quick departure of Fox's CFO at the time.

I ended up making 22 public comments at Fox C-6 BOE meetings between December 2010 and June 2016.

Sometimes requests for change aren't well received by administrators and/or school board members when things are going on in your school district that they don’t want you to know about or when your BOE is doing a poor job of oversight.

It's a lot easier for the community to help oversee the district and ask questions when information is available to the public.

I also have to point out how disappointed I was when I watched the video after last year's graduation when I saw a Fox C-6 BOE member make a celebratory gesture after switching places with Fox's BOE president, so she could hand our son his diploma.

Hopefully this type of behavior won't happen again at this year’s graduation. Other people noticed it too when I pointed it out to them on the Family Arena video of the graduation ceremony. Perhaps someday, Fox will live up to being a National District of Character.

January 15, 2013 Fox C-6 BOE Meeting Public Comment

Who Was Watching Over the Office for Civil Rights When Fox Signed the 2018 Resolution Agreement with ED OCR?

In 2015, I asked the following question:

“Who’s Watching Over the Office for Civil Rights?”

In 2021, I found the following answer from a January 2019 announcement:

"Josh comes to Mickes O’Toole from the U.S. Department of Education, Office for Civil Rights office in Kansas City, Missouri, where he oversaw civil rights compliance in seven states, including Missouri and Kansas. Josh led the office’s investigative and legal staff in the investigation and resolution of thousands of civil rights complaints arising from issues such as race or sex harassment, student discipline, special education, Title IX athletics, among many others. Josh’s work included reviewing school policies and providing training to assist public schools districts and post-secondary institutions with their compliance with federal civil rights laws."

Who's Watching Over the Office for Civil Rights?

Legal Fees in Fox C-6's September 21, 2021 Bill Payments Report

In reviewing Fox's Bill Payments report in BoardDocs for the upcoming September 21, 2021 Fox C-6 School Board meeting, I found another payment to the Mickes Goldman O'Toole, LLC law firm for $4,412.90 for services for June 2021.

Fox had already paid the Mickes Goldman O’Toole law firm $26,664.00 during the 2020-2021 school year. With $23,996.50 of that amount being paid out in April through June of 2021. It would be interesting to know if the fees were for a Due Process Hearing. If it was, I’d like to know what the Due Process Hearing Officer’s findings of fact and final decision was. Mickes Goldman O’Toole is the law firm that we dealt with for 504 issues at Fox between 2008 and 2014. It’s also the law firm that sent me a cease and desist letter in 2012 and to three other members of our community in 2013. Fox switched law firms after the internet scandal became public in June 2014. Looking through the entire 2020-2021 school year, payments were made to the Thomeczek & Brink LLC law firm in July and August 2020 totaling $24,010.00. This was the law firm that was selected by Fox to represent the district as the Due Process Hearing Officer in our 2010 Due Process Hearing. I’m curious as to whether or not the fees in 2020 were for a Due Process Hearing as well. If it was, I’d like to know what the Due Process Hearing Officer’s findings of fact and final decision was. Our Due Process Hearing in 2010 taught me a lot about the tactics used by attorneys to get around the law. You get a full transcript of your due process hearing providing some well documented examples of those tactics and how testimony and facts are manipulated. Recourse Options For Denial or Removal of a Section 504 Plan If your school district denies or removes a 504 plan, you have 3 options of recourse.

1. File for a Due Process Hearing where the school district gets to choose the hearing officer.

2. File a lawsuit in civil court heard by a judge.

3. File a complaint with the Office for Civil Rights.

However, you should be forewarned, speaking from first hand experience, filing a complaint with the Kansas City Office for Civil Rights may take 10 to 12 years or more to resolve.

Don't count on the Kansas City OCR office to do any “vigorous enforcement” of the law.

During the 2020-2021 school year, Fox C-6 made payments to 6 different law firms as reported in Bill Payments reports in BoardDocs:

Tueth Keeney Cooper Mohan & Jackstadt P.C. - $35,855.00

Mickes O'Toole - $26,664.00

Thomeczek & Brink, LLC - $24,010.00

Bryan Cave Leighton Palsner, LLP - $5,000.00

Gilmore & Bell a Professional Corporation - $6,500.00

Shands, Elbert, Gianoulakis & Giljum, LLP - $1,596.00

To review the Bill Payments report in BoardDocs for the September 21, 2021 school board meeting, use the link below:

http://go.boarddocs.com/mo/foxc6/Board.nsf/goto?open&id=C6NKWL533DEA

Fox C-6's March 2018 Resolution Agreement and March 2010 District Wide Compliance Review Update

When ED OCR ignores 7 years of evidence including a Due Process Hearing ruling that was reversed as well as the evidence that initially led to the Washington DC U.S. Department of Education's Office for Civil Rights (ED OCR) Headquarters request for a District Wide Compliance Review in March 2010, it's easy to see why there weren't any "findings" in the March 2018 Resolution Agreement that Fox signed with the Kansas City ED OCR (KC ED OCR) office.

That's what I learned while speaking with the supervisory attorney who worked on Fox’s District Wide Compliance Review when it was reopened in the spring of 2015. You'll like the reasons given as to why they ignored how Fox was handling 504 issues prior to 2015.

There's no reason to have a Section 504 law if it's not going to be enforced by ED OCR and schools aren't held accountable. And, there's no reason to have OCR offices handling complaints or compliance reviews if it takes a decade or more to resolve them. It would save parents, school districts and attorneys a lot of time, effort and money.

ED OCR's Case Processing Manual (CPM) explains why school districts enter into a Resolution Agreement with ED OCR. The CPM states that "OCR can resolve allegations at any point during the course of the investigation, if appropriate. OCR resolution agreements will be drafted to ensure compliance with the civil rights laws and regulations enforced by OCR."

SECTION 302 - Resolution Agreement Reached During an Investigation

Per SECTION 302, "Allegations under investigation may be resolved at any time when, prior to the point when OCR issues a draft letter of findings under CPM Section 303(b), the recipient expresses an interest in resolving the allegations and OCR determines that it is appropriate to resolve them because OCR’s investigation has identified concerns that can be addressed through a resolution agreement. The provisions of the resolution agreement must be tied to the allegations, and the evidence obtained during the investigation and will be consistent with applicable regulations."

The language in SECTION 302 has been watered down since 2005, to lessen the appearance of legal Non-Compliance when school districts enter into a Resolution Agreement with ED OCR. In 2005, ED OCR's Case Processing Manual stated:

"After the investigation begins, a complaint may be resolved in either of the following ways:

• OCR determines that there is insufficient evidence to support a conclusion of noncompliance; or
• OCR determines that there is sufficient evidence to support a conclusion of noncompliance and the recipient enters into an agreement."

96 Months To Conduct a District Wide Compliance Review of Fox C-6 KC ED OCR's nearly non-existent effort to completing Fox's District Wide Compliance Review teaches other school districts and attorneys that school districts don't have to follow federal law and that any non-compliance issues in a school district will just go away if given enough time and parents or advocates stop checking on OCR's progress of their complaint(s) or an open District Wide Compliance Review of their school district. And yes, it really did take the KC ED OCR office 96 months to complete their Compliance Review of Fox C-6 and determine whether or not Fox was providing Individualized Health Plans to students with disabilities instead of Section 504 Plans.

As a comparison, it only took the Atlanta ED OCR office 24 months to complete a District Wide Compliance Review for the same issue of the Memphis City School District. It took another 25 months after Fox signed the Resolution Agreement in March 2018 for KC ED OCR to complete their review and approval of Fox’s updated Section 504 Manual. It’s the same Section 504 Manual that Fox originally agreed to update by June 30, 2009. But who’s counting days, months, years or decades when it comes to properly identifying students who qualify for a Section 504 plan. Deadlines Allowed to Slip The 504 manual and changes to Fox’s policies that OCR asked for was a real sticking point for the law firm representing Fox at the time. So, rather than hold Fox accountable and live by the terms of the Resolution Agreement, ED OCR allowed deadlines to slip year after year. The KC ED OCR office was doing the best they could to do “vigorous enforcement” of the law. They told me over the years about their staff shortages and people being pulled off to work on other cases. They told me time after time that they hoped to be sending out a “monitoring” letter to the district soon and that they hoped to complete Fox’s Compliance Review in the next several months as I checked on our complaint and Fox’s District Wide Compliance Review between 2009 and 2020. Fox Still Being "Monitored" Speaking of compliance reviews, I recently discovered that Fox’s March 2010 District Wide Compliance Review is still being “monitored” by ED OCR as noted in the compliance review data I received last week from a recent Freedom Of Information Act (FOIA) Request. My FOIA request asked for the status and purpose of all District Wide Compliance Reviews initiated over the past 20 years in all of the OCR Regional Offices across the country. I made a similar request in 2015 but just for Kansas City and Atlanta offices and wrote about it in 2015. I made the FOIA request so I could compare how long it took the KC ED OCR office to complete compliance reviews compared other offices across the country.

Concerns Regarding Who Would Conduct the Compliance Review In 2010, I emailed the regional enforcement director asking him what office would be performing Fox’s District Wide Compliance Review because I had concerns if the KC ED OCR office was conducting Fox’s compliance review. That’s because the KC ED OCR office had allowed Fox to miss deadline after deadline that Fox agreed to in the May 1, 2009 Resolution Agreement. And, not to my surprise, I was informed that the KC ED OCR office would be handling Fox’s Compliance Review. Chief Attorney Concerns One of my other concerns was the fact that the chief attorney in the KC ED OCR office who oversaw complaints and compliance reviews had worked as general counsel for the Kansas City Missouri school district prior to working for ED OCR. When the chief attorney retired after moving up to the director position, I discovered that his successor had also worked as general counsel for the Kansas City school district prior to working for ED OCR. Then at the beginning of 2019, I learned that the acting director at KC ED OCR who oversaw the completion of Fox’s District Wide Compliance Review and the signing of the Resolution Agreement left ED OCR and went to work for the law firm that represented Fox when the District Wide Compliance Review was initiated in March 2010. It’s also the same law firm that we battled with between August 2008 and June 2014 and the same one that sent me a cease and desist letter trying to stop me from speaking to our school board and administrators in our district about our case with ED OCR. Fox changed law firms in June 2014 when the online cyberbullying scandal made national news. ED OCR Ignores What Occurred Prior to 2015

So, when I found out from the supervisory attorney during our May 2020 phone call that the Kansas City ED OCR office ignored everything that had occurred prior to 2015 in their compliance review investigation, it was easy to see why ED OCR didn’t note any adverse "findings" such as retaliation by school district administrators cyberbullying parents for filing OCR complaints (which is a violation of Section 504 law) and giving Individualized Health Plans to students instead of Section 504 Accommodation Plans for those students who were qualified for one and requested one. My telephone conversation with the supervisory attorney justified my concerns of allowing the KC ED OCR office to conduct Fox’s District Wide Compliance Review. The supervisory attorney told me that she didn’t know the history of the review before she was assigned to work on it. It seems like the KC ED OCR office would have problems handling investigations if they don't pass on information to others. She said that they, "Basically opened the investigation from anew and took a fresh look at it because we realized that time had passed and what they did five years ago wasn't going to be relevant as what was happening currently. So, we basically did a new Compliance Review with new information and looked at how over time it changed." She also noted that, "The district has had a lot of turnover with personnel. There's a new law firm that's representing them now. The new current law firm has, I'm not trying to sound like I'm putting a plug in for them by any means, it's been on time with regards to submitting the data we've requested. They've been cordial. I don't feel that they've hidden information from us." She explained that ED OCR reinitiated contact with Fox in the spring of 2015 and started requesting additional documents and going through the policies and procedures and that the results of that investigation is what led to a Resolution Agreement that was signed by the district in March 2018. She informed me that ED OCR was currently monitoring the district. She told me, “I regret that the case and this review took as long as they did. That is not what should happen to any person who files a complaint with our office but I can’t explain the length of time prior to my involvement.“

Vigorous Enforcement? So, if you’ve ever filed a complaint with the KC ED OCR office and wondered what happened to it, maybe ED OCR really is understaffed and they really are hoping to work on your complaint real soon. It’s that “vigorous enforcement” of the law by ED OCR that we can count on to hold our school districts, school district attorneys, administrators and school boards accountable for their actions. Then again. Maybe not!

Fox C-6's March 2018 Resolution Agreement and District Wide Compliance Review Letter

Fox C-6 Voters Approve $40M Bond Issue - ED OCR Ignores Nearly 7 Years of Investigation Data

It's good to see that Fox's $40M Prop P bond issue was passed by voters last week.

Meramec Heights Elementary and Antonia Elementary have long overdue upgrades needed to bring them into ADA compliance.

New School Board Members Elected

Also, congratulations to our new Fox C-6 school board members. It’s interesting to see that we now have 5 people on our school board member who were either directly involved or are related to someone who was directly involved with the 504 issues that I have been following up on since 2008.

ED OCR Did Not Issue A Monitoring Letter for 16 Months What’s also interesting is the fact that OCR did not issue a “monitoring letter” to Fox C-6 for 16 months after the district submitted a “monitoring report” to OCR.

Fox submitted a monitoring report to OCR on December 12, 2018 with the final changes to Fox's 504 Manual. Originally, Fox agreed to update the district’s 504 Manual by June 3, 2009.

OCR didn't send a "monitoring letter" to the district until April 17, 2020 approving the changes that were submitted to OCR in December 2018. I obtained a copy of OCR’s “monitoring letter” from the district a few weeks ago.

OCR's Delay Was Due To Being "Understaffed"

I contacted OCR to find out what caused the delay. Kansas City OCR’s excuse for the 16 month delay was due to their office being “understaffed” and having to work on new complaints and district wide compliance reviews. It's been the same excuse I've heard for years.

What's odd is that OCR told me last July, that they hoped to complete their review of the changes before the start of the 2019-2020 school year.

Parents and Advocates Need To Know How Kansas City ED OCR Handles Complaints

There’s a lot to cover on this ongoing issue. It’s definitely worth the effort documenting how OCR handles complaints. Parents and advocates need to know just how long it may take their school district to comply with Section 504 and how long OCR can drag out a complaint once it goes into the “monitoring” phase after the signing of a Resolution Agreement.

Fox's Compliance Review Would Make A Great Law Student Research Paper

Fox’s District Wide Compliance Review would be a great example for a research paper for law students as to how OCR conducted a Compliance Review. It took 8 years for OCR to perform Fox’s District Wide Compliance Review. It took OCR 8 years investigate whether or not Fox C-6 was providing Individualized Health Plans to students with disabilities instead of Section 504 Plans.

Before OCR completed their investigation and issued any findings, Fox agreed to sign a Resolution Agreement in March 2018 which closed the complaint and moved it into the “monitoring” phase.

OCR Decided Not To Look at What Occurred Prior To 2015

To top it off, OCR also informed me that what occurred in the district between March 2008 and December 2014 related to the 504 issues wasn’t really looked at because so many people had left the district. It just happens that the law firm that was responding to OCR during that time left the district as well. The law firm was released by the district in 2014 during the Critchlow fiasco.

All I can say is, Wow!

Accountability seems to be a thing of the past.

Who's Watching Over The Office for Civil Rights