State says Berkeley Unified mishandled sexual harassment case

The state cited BUSD in 2018 for failing to identify sexual harassment at an elementary school. Photo: Kaia Diringer

The California Department of Education found that Berkeley Unified last year underplayed the extent to which a student was being harassed, misclassifying the taunts she received as bullying rather than sexual harassment, Berkeleyside has learned.

In its 2018 findings, the state required BUSD to hold new staff trainings on sexual harassment and the district’s complaint process.

The case deepened the district’s understanding of what constitutes harassment, an administrator told Berkeleyside.

The state’s involvement in the matter stems from issues in a Cragmont Elementary fifth-grade classroom in 2017-18. A parent in the class was dissatisfied with the district’s determination that her daughter had been a victim of bullying, not sexual harassment, so she appealed BUSD’s decision to the state. In May 2018, the CDE found that her appeal had merit, according to state documents reviewed by Berkeleyside. The CDE  also found issues with how the district documented its investigation.


BUSD conducted the mandated trainings in the fall, and the case is now closed, said CDE spokeswoman Cynthia Butler.

The issue of sexual harassment in schools arose again in Berkeley last month, when BUSD took an unusual step for a K-12 district, calling for stronger harassment and assault protections for students nationally.

Superintendent Donald Evans and the Berkeley School Board sent the U.S. Department of Education a letter commenting on and condemning Secretary Betsy DeVos’ proposed rule changes for Title IX, the federal law against sex discrimination in education. Local advocates for victims of sexual assault and harassment applauded BUSD for submitting the comments.

BUSD mislabeled Cragmont harassment case, state says

In the spring of 2018, groups of Cragmont parents began coming to Berkeley School Board meetings pleading for more support in a chaotic fifth-grade classroom. They said there were not enough resources available for students with behavioral needs.

A girl in the classroom, and her mothers, came to multiple board meetings to say the child was constantly being called names and cursed at by some male students. They said she was being sexually harassed, as several of the slurs she recounted were misogynistic or sexually crude.

The girl kept a log of the taunts she said were directed at her, including phrases like, “You look like a man,” “Dirty ass man,” “Mr. Man,” and homophobic slurs.

School teachers and administrators intervened often to address the challenges in the class in 2017-18. BUSD later brought a special-ed aide into the classroom — some students had been abruptly “mainstreamed” into the conventional classroom from a separate class — and increased other supports at the school. The school put a safety plan in place, which several parents found insufficient. The district ended up facilitating a transfer to another Berkeley school for the girl who was taunted. Another girl who experienced problems in the class was switched to a different Cragmont classroom, according to district and state documents.

Parents of the boys in the class also complained about the circumstances, saying their sons were being mistreated too. One filed a complaint with the state. In the remarkable case, the School Board read aloud a statement at a public meeting in October 2018, as part of a settlement agreement with that Cragmont parent, apologizing on behalf of the district to one of the boys for “failures to appropriately serve the student and for the discrimination and harassment he experienced.”

The board also read an agreed-upon statement from the parent plaintiff, who said, “My son is a smart, kind and motivated African-American boy with learning disabilities,” who didn’t get the support he needed in the special-education classroom at Cragmont or when he was transferred.

A case at Cragmont Elementary in the Berkeley hills made its way to the California Department of Education, which required BUSD to take corrective actions. Screenshot: Google Maps

Leslie Lippard, the mother who spoke to the School Board with her daughter about the names the child was being called, filed her official complaint with BUSD in January 2018.

“It’s not been a great year by any stretch of imagination,” Lippard told Berkeleyside last spring. “There are many things that are troubling about it, not least that I think my daughter is not very unique. It’s not taken seriously.”

Dana Clark, then the district’s Title IX coordinator and compliance officer, conducted the investigation into Lippard’s complaint. In its response, the district said it was able to substantiate some of the allegations of the behavior in the Cragmont classroom, but was not able to find evidence for several of the remarks Lippard said students had made to her daughter.

Clark wrote that Lippard’s daughter “has been subjected to repeated verbal slurs and comments that represented inappropriate conduct for the school environment. Some of the slurs appear to be based on actual or perceived gender or gender identity, actual or perceived sexual orientation, or family status.”

The district concluded that there had been a violation of BUSD’s anti-discrimination and bullying polices, and listed numerous corrective actions that would be taken. However, Clark wrote, there were no issues that “rose to the level” of a violation of the sexual harassment policy, a finding Lippard disputed. A Title IX violation, which Lippard believed had occurred, would have required additional action from the district.

The mother quickly appealed the decision to the CDE.

To Lippard, it seemed like “they’ve basically leveled it down so they don’t have to do anything,” she said in January. “If there are Title IX violations, there are some clear remediations that need to be done.”

In May 2018, the CDE found that Lippard’s appeal had merit.

The Cragmont allegations “were clearly identified as harassment based on gender, gender identity or sexual orientation. The District’s findings stated that several of the allegations relative to gender-based harassment were substantiated and that the harassment, because of its severe and persistent nature, created a hostile learning environment that led to [the student] leaving the school,” the state’s report said.

“Despite its own findings,” the state said, “the District made a determination in the case that the complaint could not be substantiated based on its own policy relative to sexual harassment, when the basis for which this complaint was filed is gender-based harassment and harassment based on sexual orientation.”

The CDE also dinged the district for referencing several investigative interviews that Clark had conducted with students and staff in its complaint response but failing to include evidence of those interviews.

Berkeley School Board, pictured here in 2018, has submitted comments to the U.S. Department of Education on proposed Title IX policy changes. Photo: Natalie Orenstein

The CDE required BUSD to provide new sexual-harassment training to all employees and to provide “an educational activity” on harassment to Cragmont students. The state also required the district to provide new training on the complaint process and investigation to all staff.

Chelsea Yogerst, BUSD’s new Title IX coordinator, said the CDE’s conclusion helped clarify for the district what qualifies as harassment.

“It has definitely made more clear what meets the threshold of sexual harassment,” she told Berkeleyside. “It involves a hostile environment — that was a big aspect of it.”

Yogerst said she didn’t believe the state uncovered a major deficiency in BUSD’s approach.

“I don’t think it was some glaring, huge differentiation between what the state found as sexual harassment” and the district’s understanding of it, she said.

To fulfill the CDE’s requirements, BUSD employees underwent mandatory trainings in October led by Jaiya Johns and Elizabeth Estes. Bay Area Peacekeepers led workshops on peer-to-peer harassment with fourth- and fifth-graders at Cragmont — plans already in place before the CDE got involved — and coached teachers and the principal as well, according to Yogerst.  She said all BUSD managers were notified of the state findings and underwent additional Title IX training too.

In November, the state required further evidence that the corrective actions were taken but ultimately said BUSD had satisfied the requirements.

Yogerst began at BUSD this year, after Clark left at the end of 2017-18. She was previously an investigator with the New York City Department of Education.

Since coming to Berkeley, Yogerst said, she has met with community members and worked to strengthen the district’s complaint process, often a target of criticism.

“There’s still a lot of change needed in terms of structuring how we handle sexual assault,” she said. “It’s an evolving process. We just want to make sure it’s as seamless, effective and timely as possible.”

Community watchdogs: State’s findings are “profound”

Some advocates said the state’s conclusion in the Cragmont case is significant.

“I remember reading it and going, Wow, that is a profound finding,” said Peggy Scott, a member of the BUSD Sexual Harassment Advisory Committee. “I have not personally seen a CDE finding saying the district failed to do something in a case like this.”

The most recent records of appeals available from the CDE are from 2017. That year, the state did not find any of the appeals of BUSD decisions to have merit.

In this case, “I believe that the CDE looked at the finding from the district…and they found it to be very evasive and non-committal and to really equivocate and hedge against finding this to be sexual harassment,” said Scott, a former BUSD parent.

Scott is one of several Berkeley adults and students who’ve sounded alarms in recent years, trying to call attention to what they say is prevalent sexual harassment and assault in the district, and often criticizing how BUSD handles complaints. In 2014, a group of Berkeley High students launched BHS Stop Harassing, a group that offers peer education and pushes for stronger school policies. It is still active.

BHS Stop Harassing, shown here in 2015,  works to raise awareness of sexual harassment and assault at Berkeley High. Photo: BHS Stop Harassing

Advocacy also led to the creation of the Title IX coordinator position, although Yogerst is the third person to hold that job in as many years. Scott said Yogerst’s background in investigations could be a boon.

BUSD blasts proposed federal policy in a letter to Betsy DeVos

Recently, BUSD also took an unusual step to publicly declare its commitment to addressing sexual harassment — and to push the federal government to do the same.

In January, the School Board and superintendent submitted a letter to the Department of Education, excoriating several of the proposed Title IX policy changes. BUSD explained why it opposed changes that would prevent schools from addressing incidents that occurred off campus, narrow the definition of sexual harassment, and limit when schools are required to intervene. While much of the national outcry has focused on the implications of the changes for higher education settings, the letter said the policy would harm K-12 students too.

“I think this really disrupts our own policies, in terms of how we protect our students,” said board member Beatriz Leyva-Cutler, who spearheaded the effort and reached out to regional officials about the matter, in December.

In the letter, the district pledges to “protect the rights of all involved parties” in harassment cases, even if the proposed changes are adopted.

“They’re basically saying, ‘Go ahead and lower the standards; we’re still going to do our best,'” Scott said. “I think that was brave, it was strong, it’s a statement of purpose — which of course we all hope they will follow.”