Friday, August 12, 2022

Deep Dive: Feds order NHCS to provide reports, training on potential Title IX mishandling, retaliation concerns

The U.S. Department of Education Office of Civil Rights expressed concerns that New Hanover County Schools had failed to respond appropriately to a potential Title IX issue --- and that the district didn't fully investigate allegations of retaliation against a parent who filed complaints.

The U.S. Department of Education Office of Civil Rights expressed concerns about New Hanover County Schools’ handling of Title IX issues. (Port City Daily photo / File)

Editor’s note: This article mentions sexual assault and contains a homophobic slur quoted in a government document.

WILMINGTON — A federal investigation of the New Hanover County School district dating back five years reached a tentative conclusion by ordering the administration to provide reports on two issues that concerned the U.S. Department of Education’s Office of Civil Rights, as well as requiring proof of district-wide Title IX training.

According to a resolution letter from the OCR and a resolution agreement signed by former interim Superintendent Dr. Del Burns in June, the investigation concerned three OCR complaints filed by the parent of a Hoggard High School student against the district between 2015 and 2017. The complaints stem from allegations that the district failed to provide a “prompt and equitable response” after a female student was sexually assaulted off-campus by a fellow male student. The OCR expressed concerns that the school waited months before implementing a plan to keep the student from crossing paths with her assailant on campus, a failure that may have violated federal Title IX law.

Additional complaints came after the parent alleged the district retaliated against him by filing complaints with his employer, the New Hanover County Sheriff’s Office. While the OCR did not rule on whether or not retaliation occurred, it did express concern that NHCS “appears not to have provided a prompt response and also appears to have failed to investigate the Complainant’s allegations to conclusion.”

As part of a resolution agreement with the OCR, the New Hanover County Schools district agreed to produce two reports, one detailing its response to the initial complaint and a second detailing its investigation into allegations of retaliation against the parent. The agreement also requires NHCS to provide additional training for all administrators on Title IX, the federal law the protects access to education, and includes guidelines for dealing with sexual assault and harassment.

[Note: Port City Daily requested copies of NHCS’ response to OCR on September 14; the district stated it is in the process of redacting confidential information.]

From the U.S. Department of Education Office of Civil Rights resolution letter to New Hanover County Schools District. (Port City Daily image / Department of Education)

The story behind the complaints is a long and complicated one, and involves several issues not included in the OCR complaints, including allegations of retaliation against the student victim by canceling her student driving license, support for the assailant by NHCS employees, and a disturbing incident where the victim and the assailant both attended an out-of-town sporting event and the victim was confined to a bathroom. You can find that story here.

The initial complaint

At the core of the original complaint was a situation where the victim and her assailant were crossing paths at Hoggard High School. The school was notified of the assault in April, 2015, but didn’t take action until the end of the school year, the OCR would later determine. According to the district, although the assailant would later confess, he initially denied the assault.

Importantly, Title IX wasn’t the only reason to keep the two students separated. In April, the assailant turned himself in and, as part of his bond release conditions, agreed to have no contact with the victim or her family. The school took no action but, in a letter from then-General Counsel Wayne Bullard, informed the victim she could change schools if she felt unsafe.

After receiving that letter, the victim’s family secured a restraining order in mid-May. Still, the school did not take action. (In January of 2016, then-Deputy Superintendent Dr. Rick Holliday told WECT that the district did not have to enforce a court order.) In a 2017 interview, Holliday referred to the incident as a “he-said, she-said situation.”

Over a month after the restraining order was issued, the school finally did act — issuing the victim, not the assailant, a “route map” dictating her path around the school in a way that would minimize contact with her assailant.

The parents believed this lack of action was, in part, because the assailant was a student-athlete; the district denied any preferential treatment. In early July, the student pleaded guilty to the assault as part of a deferred prosecution agreement. The district moved the assailant to Ashley High School, where he continued to play high school sports.

It’s worth noting that the initial complaint filed by the family likely would have been time-barred by the 180-day deadline for OCR complaints, but issues of alleged retaliation allowed the federal government to consider it (in addition to educational issues, the OCR can also investigate harassment of or retaliation against those who file complaints).

At the time, NHCS apparently did not post information much about Title IX; notably absent were filing deadlines for Title IX complaints. Several parents and former students have since described difficulty getting Title IX information from the district. Some only learned about their federal rights, including the right to file an OCR complaint, from outside sources — including this student.

Allegations of harassment and retaliation

Over the coming months and years, the parent would allege several instances of harassment and retaliation which, the parent claimed, were a direct response to filing and pursuing the OCR complaints against NHCS.

The complaints focus on several instances of the district contacting the Sheriff’s Office to complain about the parent’s behavior. On several occasions, then-Deputy Superintendent Dr. Rick Holliday contacted NHCSO about the parent, according to the OCR. Holliday told OCR he had a “familiar professional relationship with” Sheriff Ed McMahon.

In an email from Holliday to Lt. Novella Freislander, the now-retired commander of NHCSO’s school resource officers, Holliday suggested the parent was mentally unstable; the email was sent in the summer of 2015, after the assailant had pleaded guilty and been moved to another school.

An email from former NHCS Deputy Superintendent Dr. Rick Holliday acquired by Port City Daily concerning the deputy. (Port City Daily photo / File)

The district’s first formal complaint about the parent seems to have been about him allegedly showing up to campus, in NHCSO uniform, to discuss the treatment of his daughter and her assailant (who was still playing high school football, despite his admission of assaulting a fellow student). The OCR report notes that there is some discrepancy between reports from two school administrators, with only one noting that the parent was in uniform.

According to the IA report, a complaint was made in a phone call from then-Superintendent Dr. Tim Markley. As a result of this incident, the parent given a reprimand, which included an order “not to make any contact with any school regarding the personal issues involving his daughter.” The parent called this retaliation for advocating for his daughter and filed a complaint against Markley.

Another incident occurred when the parent was accused of using a homophobic slur against an NHCS employe, who filed an assault claim against the parent; the employee stated at the time he had PTSD from the incident. But when NHCSO’s Internal Affairs (IA) interviewed that employee, he claimed he couldn’t remember the incident. When contacted about the incident, the NHCS employee denied making the accusation and, when presented with a verbatim quote from the IA report including his complaint, ended the conversation. The parent was cleared of wrongdoing.

Other complaints also resulted in disciplinary action, including an incident where the parent was asked to move from a ‘coaches and players’ area during a football game. The parent, who was wearing a ‘Know Your IX’ t-shirt, asserted it was harassment and retaliation, in part because he had become known for his criticism of the district’s Title IX shortcomings (you can find StarNews’ coverage of the incident, here).

According to OCR, Holliday said “he did not ask the Sheriff’s Office to take action against the Complainant, but instead ‘simply notified’ the Sheriff about the incidents because he ‘just wanted [the Complainant’ to stop intimidating our staff.” The district further added that the reports were due to the “nature of [the parent’s] job” and the “close working relationship” between NHCS and NHCSO.

Related: New Hanover Sheriff Ed McMahon recognizes ‘long partnership’ with retired Deputy Superintendent Rick Holliday

By the district’s admission, this was an unprecedented step; NHCS told OCR that, except in this case, “the district had never contacted a parent’s employer to report alleged misconduct,” according to OCR.

It’s worth noting that former Superintendent Dr. Tim Markley did contact the employer of Clyde Edgerton, a UNCW professor and parent. Markley attempted, unsuccessfully, to get UNCW administrators to prevent Edgerton from criticizing Markley and the district on several issues, including racial discrimination in the district’s Spanish immersion program at Forest Hills Elementary. Markley was suspended, without pay, as a result of this.

After the Board suspended Markley, the parent refiled his complaint against Markley.

The Sheriff’s Office denied being party to any attempt at retaliation by Holliday or the district. Sheriff McMahon declined to comment on the issue, citing personnel laws, but a spokesperson for NHCSO said that all disciplinary action taken against the parent was based solely on specific policies that IA found the parent had violated.

Resolution concerns and requirements

The OCR ordered NHCS to provide documentation of Title IX training, including the district’s “obligations under Title IX concerning sexual harassment and retaliation” for all district and high-school administrators, including the Superintendent, all Assistant Superintendents, Principals and Assistant Principals, and other employees who would have any role in investigating or resolving Title IX issues.

In addition, the OCR listed some ‘concerns.’

The OCR stated it had concerns that NHCS did not respond adequately to the initial situation at Hoggard, noting that the district “did not interview the students to assess the need for interim measures” and “did not put in place a plan to keep [the two students] apart until the end of the school year.”

The OCR ordered the district to conduct an internal review of its response to the 2015 situation at Hoggard and deliver a report, along with any proposed actions, by the end of July, 2020.

From the U.S. Department of Education Office of Civil Rights resolution agreement with the New Hanover County Schools District. (Port City Daily image / Department of Education)

OCR also expressed “concerns about how the District responded to allegations of possible retaliation,” noting that “on more than one occasion when [the parent] alerted the District to alleged retaliation in connection with contacting [the parent’s] employer, the District appears not to have provided a prompt response and also appears to have failed to investigate [the parent’s] allegations to completion.”

The second issue seems to be, in part, because the district’s outside investigator, attorney Jill Wilson, never finished her report on Markley’s potential retaliation. Between October 4, 2019 and February 2020, Markley was able to evade Wilson’s attempts to schedule an interview. Wilson did finally set a date up with Markley, for Monday, February 10. Three days before that, on Friday, February 7, Markley accepted his nearly quarter-million-dollar buyout — his resignation was effective immediately.

The district told the OCR that Wilson closed her investigation because the only “remedy” the parent asked for was Markley’s removal and that Markley had resigned prior to the completion of Wilson’s investigation “for unrelated reasons.”

While Wilson’s report was incomplete, her firm — Brooks, Pierce — still billed the district $5,512 for it, and turned over what she had to then-General Counsel Wayne Bullard. Asked in April, two Board of Education members said they’d never seen the report; the District has since declined to answer questions about the report’s whereabouts.

From the U.S. Department of Education Office of Civil Rights resolution agreement with the New Hanover County Schools District. (Port City Daily image / Department of Education)

The OCR ordered NHCS to complete an investigation of the parent’s complaint. NHCS was given until September 4, 2020, to hand over a notice of the outcome, along with “a copy of the investigation report and all documentation referenced” in that report.

If the OCR is satisfied with the reports and documentation NHCS provides, it will close the case based on the three complaints.

Title IX at NHCS

Port City Daily first reported on this issue in 2017, after two of the three federal complaints had been filed; the third complaint was filed several months later.

Related: She was sexually assaulted. She says what her school did next was worse

In May of 2017, then-Superintendent Dr. Tim Markley and then-Assistant Superintendent Dr. Rick Holliday were interviewed about the situation. Markley repeatedly declined to comment, citing privacy and personnel laws; Holliday repeatedly stated the district had done nothing wrong.

Holliday incorrectly stated that Title IX would not apply because the assault had not happened on campus and because the situation was not based on ‘access to education based on gender.’ Holliday’s statement was directly contradicted by guidelines from the U.S. Department of Education, which clearly stated at the time that sexual violence and its repercussions impede access to education.

Holliday’s reductive interpretation of federal law seemed to be based on a literal reading of the very short statute. However, the law’s application — shaped by Supreme Court decisions and guidelines issued by the Department of Education — is far more complex, covering among other issues how schools must handle accusations of sexual harassment and assault.

At the time, most who searched NHCS websites for information on Title IX would only find the following ‘fine-print’ disclaimer, which didn’t provide any details on Title IX and, instead, directed parents and students to contact Holliday.

The 'fine print,' a legal disclaimer at the bottom of school websites, is all most people can find when they search for Title IX information. The new committee aims to fix that. (Port City Daily photo / New Hanover County Schools)
The ‘fine print,’ a legal disclaimer at the bottom of school websites, was for years all most people can find when they searched for Title IX information. (Port City Daily photo / New Hanover County Schools)

Holliday, who was for years the Title IX director for the school, had failed to prepare a comprehensive Title IX policy for the district. Further, the training methods — just a few slides shown to administrators and teachers — used under his leadership were insufficient to cover the complexity of Title IX.

Board of Education member Nelson Beaulieu and then-Chair Lisa Estep acknowledged this in a 2019 interview; the two were instrumental in setting up the Board’s Title IX committee, which addressed Holliday’s lapses and shortcomings and replaced him as Title IX director shortly before he announced his retirement.

Holliday’s retirement came on the heels of a courtroom bombshell, where one of the District Attorney’s office top prosecutors condemned NHCS for failure to report veteran teacher Michael Earl Kelly, for repeatedly sexually abusing students. Shortly afterward, a civil suit was filed, charging Holliday and others with foreknowledge of Kelly’s behavior and seeking to hold them accountable for the pain and suffering of Kelly’s victims. This April, a similar suit was filed on behalf of the victims of former band teacher Peter Michael Frank.

In less than a year, more than half of the district’s top administrators would be gone, including Markley, attorney Wayne Bullard, Assistant Superintendent of Human Resources John Welmers, Director of Human Resources Robin Meiers, and Chief Communications Officer Valita Quattlebaum, who went on extended leave and never returned.

There have been radical improvements to the district’s Title IX policy and many of the key players implicated in complaints against the district are now gone. However, there has yet to be a full accounting of the district’s past issues, with Title IX and beyond. It’s possible the district’s responses to the OCR, when released, will help answer some questions. But when it comes to potential Title IX violations that were never reported in the first place, because the district provided so little information to parents and students about their federal rights, the issue is likely to be left unresolved.


Send comments and tips to Benjamin Schachtman at ben@localdailymedia.com, @pcdben on Twitter, and (910) 538-2001

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