News

Complaint midstate school mishandled sex assault may be investigated

Written by Merriell Moyer/Lebanon Daily News | May 22, 2017 12:30 PM
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FILE PHOTO: The Palmyra Area School District school board meeting became contentious on Nov. 17.(Photo: Michael K. Dakota, Lebanon Daily)

(Palmyra) -- Palmyra Area School District may be the subject of a federal government investigation after one of its own school board members questioned the district's handling of sexual assault cases between students.

Ralph Duquette began questioning the district after learning of an alleged sexual assault of a student that took place off school property in October 2015. Police reported a sexual assault case involving Evangelos Aftosmes, who was a Palmyra Area High School student when he allegedly sexually assaulted a 15-year-old girl who also attended the high school.

Duquette's research, also done independently by Lebanon Daily News, shows state policy requires a report be filed under Title IX when a student's education may be affected by an assault incident, even one off campus, if another student is the perpetrator.

Duquette has been going through government channels to get answers since he learned of the incident. He feels his concerns are finally being taken seriously.

What is happening

"The District received a letter from the (Department of Education's Office for Civil Rights) last week requesting production of a large number/categories of documents by 5/15," Duquette said via Twitter message May 8

Duquette alleges that the school district is not following Title IX procedures in its handling of sexual assault and harassment cases.

"Under Title IX, discrimination on the basis of sex can include sexual harassment, rape, and sexual assault," according to information regarding Title IX provided by the American Civil Liberties Union on their website.

The website says that "sexual harassment can qualify as discrimination under Title IX if it is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit. Courts have generally found that even a single instance of rape or sexual assault by another student meets this standard."

"Schools may have an obligation to respond to student-on-student sexual harassment that initially occurred off school grounds, outside a school's education program or activity," according to the Title IX "dear colleague" letter issued by the U.S. Department of Education. "If a student files a complaint with the school, regardless of where the conduct occurred, the school must process the complaint in accordance with its established procedures."

Those "established procedures" are what Duquette has called into question. He filed a Right to Know request for documents he alleges the school district should have regarding sexual assault cases, such as the one that allegedly occurred in 2015.

Many of the documents requested by the Office for Civil Rights (OCR) are of the same type Duquette requested of the school district via the Right to Know Law earlier this year.

In his initial Right to Know request, Duquette stated, "I am not seeking personal identifying information of any specific student attending Palmyra Area School District."

However, of the 23 different types of documents Duquette requested, the school district denied all but four of them. Of those refused, seven were denied under the Family Educational Rights and Privacy Act (FERPA) because the information contained on the documents was deemed confidential, according to the response Duquette received from the office of the school district's solicitor, Lancaster-based Barley Snyder Attorneys at Law.

The solicitor provided other records, such as Assistant Superintendent Bernie Kepler's Title IX training certificates, with his personal information redacted. The other document requests were deemed too vague to answer, according to the response.

The solicitor referred to policies 248348448 and 548 in answer to several of the other requests, and provided documentation on Kepler's and Director of Business Affairs Darcy Brenner-Smith's Title IX and harassment training as well.

Duquette questioned why he couldn't see documentation regarding sexual harassment and sexual assault with the personal information redacted, so he filed an appeal with the Pennsylvania Office of Open Records.

While the Office of Open Records initially denied Duquette's appeal, they did follow through in requesting an "in camera" review of the school district's records. The district solicitor called for a dismissal based on what they called in an email response to the Office of Open Records Duquette's "multiple procedural failures" in filing his Right to Know request, and said that an "in camera" review "would necessitate that the school district avail itself of the only available avenue of relief in the Court of Common Pleas."

In camera' is when OOR reviews documents the district claims are non-public, Duquette explained in an April 23 Twitter message to the Lebanon Daily News. "An index needs to be produced for each document and OOR determines which is public, which is not and which can become public with redaction of non-public info," he said.

"The in camera index and documents are due to OOR this Friday, with a copy of the index to me," Duquette said via Twitter message May 8.

Was the district compliant when the incident occurred?

By law, all public schools must have at least one person trained in the Title IX law so the district can follow the proper procedures if there is reason to believe an incident affects a student's ability to learn and feel safe at school.

The documents Duquette has received through his Right to Know request support his claims that the school district is not compliant with Title IX, he said in a Feb. 23 interview.

"One of the compliance things is that they have a trained Title IX coordinator. Well, they didn't. They did provide records for this," Duquette said. "It included (Assistant Superintendent) Bernie (Kepler's) online training in September which I discovered when I got the documents, and he also went to training in person I believe it was Nov. 16 through 18."

This documentation proves that the school district did not have a designated, trained Title IX coordinator before Nov. 18, 2016, the date on Kepler's certificate of completion, Duquette said. Which was well after he started asking about the district's handling of the assault incident.

"When (Superintendent) Lisa Brown has said that the district was in compliance the documents show clearly that they have not been in compliance," Duquette said.

Duquette also said that the school district does not have proper grievance procedures in place to be Title IX compliant. The school district has cited the aforementioned policies as their grievance procedures, Duquette said, but he argued that those policies do not qualify as grievance procedures under Title IX.

Palmyra Area School district Policy 248, which covers sexual harassment and discrimination involving "overt sexual conduct that is intended to create, or in fact creates, an intimidating or hostile environment" for its students, calls for an investigation of such incidents upon receipt of a sexual harassment or discrimination complaint.

"The obligation to conduct this investigation shall not be negated by the fact that a criminal investigation is pending or concluded," the school's policy says. "The investigator shall prepare a written report within 15 days of receiving the complaint, unless additional time is required to complete the investigation."

The policy states that the report should include "a summary of the investigation, a determination of whether the complaint has (been) substantiated and whether it establishes a violation of this Policy, and a recommendation as to what corrective action, if any, is required. The report shall be provided to the Compliance Officer and the Superintendent."

A statement summarizing the report and "the recommended disposition of the complaint" are to be provided to both the complainant and the accused as well as to the parents of the students involved, according to the policy.

On March 8, the Lebanon Daily News filed a Right to Know request with the school district asking for the total number of Title IX complaints regarding sexual harassment and sexual assault registered in the school district from 2012 to 2016.

The school district replied saying, "There are no public records within the school district as you have described, as there have been no Title IX complaints registered within the school district."

Duquette begs to differ. He has spoken with a previous student who did file complaints with the district after an assault, and her complaints were not on record or responded to, he said. Lebanon Daily News was not able to substantiate that independently.

The Lebanon Daily News contacted Superintendent Brown via email April 26 for an explanation on how the alleged Oct. 2015 sexual assault case involving Evangelos Aftosmes did not fall under Title IX or school district Policy 248.

"We responded that there were no Title IX complaints registered, and that answer is accurate," Brown responded via email. "You referenced the Aftosmes case, which involved an alleged sexual assault outside of the school.  There was no Title IX complaint registered with the school district as a result of this case or any other matters as we noted in our response.  A Title IX complaint would result when a victim believes that the school district has violated/has not protected their rights based on gender. A sexual assault wouldn't automatically result in a Title IX complaint."

Brown's words seem to contradict the wording of the feds in the "Deal Colleague" letter, as explained earlier in this article.

Attempts by phone and email to contact both Brown and School Board President Christopher Connell  to confirm whether or not the OCR investigation had begun were unsuccessful.

This article is part of a content-sharing partnership between WITF and the Lebanon Daily News.

Published in Lebanon, News

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