A federal investigation has determined the San Carlos Elementary School District retaliated against the parents of a student based on disability by calling law enforcement, who responded to the student’s home.
The district said it sent a deputy sheriff to the home after suspecting the child’s father had illegally recorded a meeting between him and school staff, according to a letter dated March 6 to the district from the U.S. Department of Education’s Office of Civil Rights.
The letter states the district suspected the father of the student, a second-grader at one of the district’s elementary schools during the 2012-13 school year, had recorded an individualized education program, or IEP, meeting between him and a teacher. The district has a policy that requires parents to provide 24-hour advance notice if they intend to audio record these types of meetings. However, California Education Code provides parents with the right to record an IEP meeting. Although there is the provision requiring the 24-hour notice, it doesn’t provide for any penalty or consequence for a failure to provide the notice and doesn’t make a failure to provide it a criminal act.
Still, in a September 2012 email message to the district’s director of Student Services, counsel for the district stated, “intentional recording without consent of a confidential communication violates penal code section 632. First time violator subject to $2,500 fine or up to one year in prison or both.”
According to the department’s report, the district called the San Mateo County Sheriff's Office, which sent a deputy sheriff to the family’s home in October 2012 and spoke to the girl’s mother who said no one recorded the meeting. The deputy closed the investigation the same day, completed his report and stated the report was for informational purposes only and there was no proof a crime was committed.
Further, an adequate investigation would have provided complainants with an opportunity to deny the allegation and provide the reason for the father’s actions, the report stated.
“Even assuming that the district had a reasonable basis to believe the father was recording the September 2012 meeting, [the Office of Civil Rights] concludes that its response in reporting him to law enforcement, with the possibility that he would be charged with a felony, was significantly disproportionate to the nature of his action especially given that, under education code, his recording would have not been subject to Penal Code 632,” the letter states.
There were several other actions the district could have taken such as sending a letter reminding the complainants of the notice requirement, the letter stated. The letter stated the district did know of a true violation of the law in a different parent case — violating the terms of a restraining order — and it didn’t make a referral of the matter to law enforcement and permitted the parent to leave.
“Any report to law enforcement of possible criminal conduct by parents undoubtedly has a deterrent and chilling effect on parents and their willingness to actively participate in their children’s education and advocate on their behalf,” the letter states. “As such, involving law enforcement in school matters should be reserved for those instances when the misconduct or harm is sufficient to warrant such involvement.”
As a result of the investigation, the district agreed to revise and distribute its policy and regulation regarding governing the uniform complaint procedure, develop and distribute a memorandum regarding unlawful retaliation and provide training on the topic and send a letter to the complainants about this matter. The Office of Civil Rights will monitor the implementation.
“The district is committed to fair, non-retaliatory treatment of all students and families and it respectfully disagrees with the characterization of facts and conclusions in the OCR’s report,” according to a district statement provided by board President Adam Rak. “However, the district has entered into a resolution agreement that has been accepted by the OCR that does not admit any liability on behalf of the district. This agreement provides for certain corrective actions that allow the district and the affected family to move forward in a positive manner that best serves the student’s educational interests.”
The statement goes on to say the finding does not affect the full faith and confidence the district has in its staff and the district looks forward to continuing its focus on providing outstanding education for the children and families it serves.
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NOTE TO READERS: This story has been changed to reflect the fact that the district called the Sheriff's Office, which then sent a sheriff's deputy to the house.