Filing an appeal if your complaint is turned down

What is an appeal?

If your complainant receives an LEA (school district) decision on a matter within the scope of the Uniform Complaint Procedures and you believe it is incorrect as a matter of fact or law, you have 15 calendar days to file a written appeal to the CDE. In your appeal, you must specify the reason for the appeal and whether the LEA's facts are incorrect and/or the law is misapplied. The appeal packet must contain a copy of the original complaint to the LEA and a copy of the LEA's decision.

You can appeal the determination of your complaint to both BUSD and to the state.

You have 15 calendar days to file a written appeal to the CDE (Calif. Dept. of Ed.).

You have 5 calendar days to file a written appeal to Berkeley Unified.

We recommend you hand deliver your appeal to the Superintendent’s office on the 3rd floor of 2020 Bonar St. – take two copies and make sure it gets date stamped right there as received.

Filing an appeal to a complaint with the State -- CDE (California Dept. of Education)

This is where to file your appeal to the state: Calif. Dept. of Ed (CDE)

http://www.cde.ca.gov/re/cp/uc/ 

QUESTIONS: https://www3.cde.ca.gov/ucpemail/ 

 Appeals of District decisions regarding allegations of discrimination, harassment, intimidation, or bullying may be sent to:

California Department of Education

Office for Equal Opportunity

1430 N Street, Suite 4206

Sacramento, CA 95814

Educational Equity (Discrimination, Harassment, Intimidation, Bullying, and Civil Rights Guarantees)

Office of Equal Opportunity

916-445-9174

If your question is regarding discrimination, bullying, harassment, or intimidation, please call the CDE Education Equity UCP Appeals Office at 916-319-8239.

When writing your appeal:

What are the responsibilities of the LEA? (e.g. the district)

Read this list carefully as anything on it may be the basis of your appeal, such as “The district failed to protect me from retaliation,” then give credible evidence of this statement.

TAS UCP Policy, 9-9-2014 Page 8-9

2. Appeals of District decisions and/or findings regarding allegations of discrimination, harassment, intimidation, or bullying listed in this document (found in Section II — Uniform Complaint Procedures Process Jurisdiction) may be appealed to the California Department of Education (CDE) — Office of Equal Opportunity by filing a written appeal within 15 days after receiving the District's decision.

a. The written appeal should specify the reason(s) for appealing the decision and include a copy of the District's decision.

b. Appeals of District decisions regarding allegations of discrimination, harassment, intimidation, or bullying may be sent to:

California Department of Education

Office for Equal Opportunity

1430 N Street, Suite 4206

Sacramento, CA 95814

Investigations:

From BUSD http://www.berkeleyschools.net/wp-content/uploads/2016/08/AR-1312.3-final.pdf   AR 1312.3

Use these points as a checklist to help write your appeal. If they apply to your complaint, just copy and paste and say why the principle applies.

Examples:

1312.3 denotes that this is where the citation is from.

I underlined the words that describe what is required of the investigation. So if your complaint was not handled this way or was missing this item, say so.

  1. Investigation shall be prompt and impartial.
  2. The compliance officer shall promptly notify the complainant who is assigned to investigate the complaint (if it is not them.)
  3. Investigator must not be mentioned in the complaint,
  4. Investigator must not have a conflict of interest that would prohibit him/her from fairly investigating or resolving the complaint,
  5. Investigator must be properly trained to investigate and resolve the complaint given the nature of the specific allegations in the complaint.
  6. Any complaint filed against or implicating a compliance officer (Susan Craig or Dana Clark or Bev Bueno) may be filed with the Superintendent or designee.
  7. Employees assigned to complaints must receive training and be knowledgeable about the laws and programs at issue in the complaints to which they are assigned.
  8. Such designated employees shall receive training in the following areas:
  1. Applicable current state and federal laws and regulations;
  2. Applicable processes for investigating and resolving complaints, including those involving alleged discrimination;
  3. Applicable standards for reaching decisions on complaints;
  4. Trauma-informed intake skills;
  5. Support for complainant during investigation;
  6. Confidentiality;
  7. Appropriate corrective measures.

NOTE:

Did your designated investigator have trauma-informed intake skills? If not, say so.

Did your designated compliance officer or investigator provide support for you during investigation? If not, say so.

Regarding Investigation of Complaint: If this did not happen then say so…

  1. Did the compliance officer or designee provide you with the opportunity to present evidence, or information leading to evidence, to support your allegations?  [Such evidence or information may be presented at any time during the investigation; it does not have to just be at the beginning.]
  2. Did the investigator collect all available documents and review all available hard copy, electronic records, notes, or statements related to the complaint? [This includes any additional evidence or information you provided during the course of the investigation.]
  3. Did the investigator individually interview all available witnesses with information pertinent to the complaint?
  4. Did the investigator visit any reasonably accessible location where the relevant actions are alleged to have taken place?
  5. If you alleged retaliation or unlawful discrimination, did the compliance officer or designee interview you, plus any alleged offenders, and other relevant witnesses privately, separately, and in a confidential manner?
  6. Did the compliance officer or designee interview you without the presence of a parent? If so, did they notify your parent or guardian within 24 hours of the interview by phone and email that the interview occurred? (unless you the student requested that the parent/legal guardian not be contacted).
  7. The complaint shall be decided using a "preponderance of the evidence" standard in determining the veracity of the factual allegations in a complaint. This standard is met if the allegation is more likely to be true than not. [Note: this is not the same as “beyond the shadow of a doubt. It is a lower standard. But if you have 3 witnesses saying yes, this did happen, and you have only one accused student saying no, it did not, this is probably in keeping with "preponderance of the evidence, " e.g. it is more likely to be true than not.

Example: #3 – if this did not happen simply turn the question into a statement, e.g.  “The investigator did not individually interview all available witnesses with information pertinent to the complaint”

FULL TEXT FROM LINK with requirements highlighted

http://www.berkeleyschools.net/wp-content/uploads/2016/08/AR-1312.3-final.pdf   AR 1312.3

The compliance officer who receives a complaint may assign a designee to perform all or part of the required investigation, which shall be prompt and impartial. The compliance officer shall promptly notify the complainant who is assigned to investigate the complaint.

In no instance shall a designee be assigned to investigate a complaint if he/she is mentioned in the complaint, has a conflict of interest that would prohibit him/her from fairly investigating or resolving the complaint, or is not properly trained to investigate and resolve the complaint given the nature of the specific allegations in the complaint. Any complaint filed against or implicating a compliance officer may be filed with the Superintendent or designee.

The Superintendent or designee shall ensure that employees assigned to complaints receive training and are knowledgeable about the laws and programs at issue in the complaints to which they are assigned. Such designated employees shall receive training in the following areas: applicable current state and federal laws and regulations; applicable processes for investigating and resolving complaints, including those involving alleged discrimination; applicable standards for reaching decisions on complaints; trauma-informed intake skills; support for complainant during investigation; confidentiality; and appropriate corrective measures. Designated employees may have access to legal counsel as determined by the Superintendent or designee.

Investigation of Complaint…

Upon initiating the investigation, the compliance officer or designee shall provide the complainant and/or his/her representative with the opportunity to present the information contained in complaint to the compliance officer or designee and shall notify the complainant and/or his/her representative of the opportunity to present the compliance officer or designee with any evidence, or information leading to evidence, to support the allegations in the complaint. Such evidence or information may be presented at any time during the investigation.

In conducting the investigation, the compliance officer or designee shall collect all available documents and review all available hardcopy or electronic records, notes, or statements related to the complaint, including any additional evidence or information received from the parties during the course of the investigation, shall individually interview all available witnesses with information pertinent to the complaint, and may visit any reasonably accessible location where the relevant actions are alleged to have taken place. To investigate a complaint alleging retaliation or unlawful discrimination, the compliance officer or designee shall interview the alleged victim(s), any alleged offenders, and other relevant witnesses privately, separately, and in a confidential manner. As necessary, additional staff or legal counsel may conduct or support the investigation.

The compliance officer or designee may interview a student without the presence of a parent, guardian, or representative as part of an investigation. If this occurs, the compliance office or designee shall notify the parent or guardian within 24 hours of the interview by phone and email that the interview occurred unless the student has requested that the parent/legal guardian not be contacted and/or the Compliance Officer (not the designee) has determined that not contacting the parent/legal guardian would be appropriate and compliant with law.

A complainant's refusal to provide documents or other evidence related to the allegations in the complaint, failure or refusal to cooperate in the investigation, or engagement in any other obstruction of the investigation may result in the dismissal of the complaint because of a lack of evidence to support the allegation. (5 CCR 4631)

In accordance with law, the district shall provide the compliance officer or designee with access to records and other information related to the allegation in the complaint and shall not in any way obstruct the investigation. Failure or refusal of the district to cooperate in the investigation may result in a finding based on evidence collected that a violation has occurred and in the imposition of a remedy in favor of the complainant. (5 CCR 4631)

The complaint shall be decided using a "preponderance of the evidence" standard in determining the veracity of the factual allegations in a complaint. This standard is met if the allegation is more likely to be true than not.