Journalism won’t die if you donate. Support Voice of San Diego today!
Opened to fanfare, San Diego Unified’s Quality Assurance Office was supposed to be a hub of accountability and a one-stop shop where parents, students and employees could get their complaints heard and fairly investigated.
Now, district officials are fighting off claims the office – which costs $1.68 million to operate annually – whitewashed and ignored problems brought to their attention.
Superintendent Cindy Marten created the Quality Assurance Office shortly after taking the district’s top post in 2013.
Until now, most of the office’s activities have remained out of public view. Regular reports are given to Marten and the school board, but officials claim the documents are legally exempt from public disclosure because they pertain to specific students.
Documents related to recent lawsuits provide a window into how complaints are handled and raise questions about the real purpose of the Quality Assurance Office. Personnel decisions are often made by Marten, and in one high-profile case, a decision was made before the office and its investigator were even through with their work.
A report produced for a school safety group in early 2015 shows 1,522 inquiries were processed by the Quality Assurance Office in the final four months of 2014. Hot classrooms garnered the most complaints, while seven were categorized as sexual harassment-related.
How complaints are categorized wound up being a source of concern for the U.S. Department of Education’s Office for Civil Rights, which investigated a complaint that the district didn’t follow federal rules for sexual harassment cases.
School and district officials failed to treat oral copulation between two male kindergartners in the bathroom at Green Elementary in May 2013 as sexual harassment and that led to legal problems.
The district already settled a parent complaint over the incident for $105,000 and is currently battling two more lawsuits – one in federal district court and one in San Diego Superior Court. The investigator tasked with reviewing the incident, Michael Gurrieri, filed the lawsuits. Gurrieri claims he was fired in October 2014 after just six months on the job, and that his bosses removed evidence from his investigation showing the school’s principal at the time, Bruce Ferguson, mishandled earlier student incidents.
The district recently settled a third lawsuit for an unknown sum over a separate student-on-student sexual assault that occurred at Green in May 2014.
Voice of San Diego sought interviews with Marten, general counsel Andra Donovan and Carmina Duran, executive director of the Quality Assurance Office, to discuss the office and their testimony given in Gurrieri’s federal case. All three declined.
“The Quality Assurance Office is comprised of a team of highly trained and dedicated staff committed to providing the highest level of service to students, parents, staff and community members to address a wide variety of inquiries, concerns and complaints related to the educational programs of the district,” the district’s communications office said in a statement. “They address all concerns and complaints thoroughly in an unbiased and impartial manner and treat everyone involved with dignity and respect.”
The statement also said the district expects Gurrieri’s lawsuits “will eventually be dismissed.”
Because the district won’t release reports that would shed light on how the office vets and investigates complaints, the depositions taken as part of Gurrieri’s federal lawsuit provide a rare glimpse of how the office operates. And hundreds of pages of testimony raise some major questions about the function and quality of the Quality Assurance Office.
To lead the new Office of Quality Assurance she created, Marten chose Duran, who had worked as an investigator in both the internal audit and human resources departments since 2007. The office eventually got an investigator, operations specialist, assistant and five to six parent support liaisons, who resolve smaller complaints.
The value of the office, though, is called into question by testimony describing the district’s response to a sensitive complaint in 2014. A parent had said Green Elementary’s principal, Ferguson, created an unsafe environment for students by failing to adequately respond to the incident involving male kindergarten students in a school bathroom, which occurred a year earlier.
Among other things, one of the boy’s parents said Ferguson did not make them aware of the district’s formal complaint process, nor did he address the continued aggressive behavior of the boy who “sexually attacked” their son.
The Office of Quality Assurance was dealing with it. But according to their own testimony, Marten and Donovan made two important decisions without crucial facts.
First, Marten chose to keep Ferguson as principal of Green Elementary before Gurrieri’s investigation was over. Gurrieri was informed of the decision, and claims he was told to minimize problems in his report.
“When we got into the room, it was expressed that the superintendent had already made her decision to keep Dr. Ferguson and not discipline him or fire him before my investigation was even over. So it was Miss Donovan who said, ‘We gotta get through this, kind of soften up this report,’” Gurrieri testified, according to court transcripts.
Donovan denied telling Gurrieri to soften his report, but confirmed the superintendent decided to keep Ferguson as principal before the investigation was over.
“It was the meeting where I first met the (parents) and we talked about what their complaints were. And the superintendent informed me prior to the meeting that she had made a decision in conjunction with Human Resources that Bruce Ferguson would be returning to his prior position, and that would be one of the things we would be telling the (parents),” Donovan testified.
“At the time the superintendent made that statement to you, had the district’s investigation of the (parent) complaint been concluded?” Gurrieri’s attorney Mark Radi asked Donovan.
“No,” she replied.
Marten was also questioned under oath about the timing of her decision.
“Did it matter to you whether the investigation was still pending at the time you told the (parents) Dr. Ferguson would remain principal?” Radi asked, according to the transcripts.
“No … It wasn’t part of my decision-making at that moment,” Marten said.
Ferguson returned to helm Green Elementary the next school year, but left before the end of the year after the district launched an investigation into a separate sexual assault.
Ferguson was relocated to the district office and placed on special assignment, a common move during Marten’s tenure.
Donovan, too, said during her testimony that she made a decision about the handling of the case without crucial information that might have affected her actions. She decided the Green Elementary boys’ bathroom incident was not sexual harassment – without reviewing the district’s policy on sexual harassment.
“I didn’t look at the sexual harassment policy because I didn’t think it fell under the category of sexual harassment,” Donovan testified. “It wasn’t until the (parents) asked about the sexual harassment log that the issue came up at all, and (Gurrieri) had not even looked at it.”
Donovan testified that the young age of kindergartners and the fact it was a single incident, and not a repeated act, is why she thought it wasn’t harassment.
Had Donovan closely reviewed the district’s policy or applicable state or federal laws for schools, she may have come to a different conclusion.
District policy at the time prohibited sexual harassment: “as defined in the Education Code to mean unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the educational setting.”
A 2011 guidance letter from Russlyn Ali, the assistant secretary for Civil Rights at the U.S. Department of Education, also contradicts Donovan’s assumption: “Indeed, a single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe.”
Donovan’s conclusion that the incident did not constitute sexual harassment led the parents to complain to the U.S. Department of Education’s Office for Civil Rights, which opened an investigation.
The district eventually revamped its sexual harassment policy to note such acts violate Title IX of the Education Amendments of the Civil Rights Act of 1972. An office dedicated to Title IX issues was also opened, employees received new training and principals were told to make sure the district’s revised sexual harassment policies were permanently and prominently posted at every school.
Had the Green Elementary assault been deemed harassment from the start, Donovan testified, a plan to ensure the immediate safety of the child would have been agreed to with the parents, an investigation would have been done and findings would have been issued within 10 days.
No Complaint, No Problem?
Federal law requires schools to investigate matters of student safety even if no complaint is filed. They also must investigate harassment incidents themselves even if law enforcement is conducting its own probe.
But Gurrieri, the investigator, claims Duran, executive director of the Quality Assurance Office, told him the opposite when he became aware of earlier incidents at Green Elementary.
“‘If other people wanted to make complaints, they could fill out a complaint form and we can investigate it then,’” Gurrieri testified Duran told him.
References to earlier incidents of students playing “penis doctor,” a parent accusing Ferguson of not addressing the harassment of his daughter by another student, a teaching assistant kissing students and other things were removed from his report.
“I was told to focus on the original complaint. If that other person did not make a written complaint, then don’t investigate it. However, I did, because that was – my job was to protect the kids, protect, you know, coworkers. But I was specifically told if they don’t write out this complaint form, then there’s no complaint. So when I have two kids that are sexually assaulting each other and I find out that it’s happened before with another student, I was not turning my back on it just because their parents hadn’t written a complaint on a complaint form,” Gurrieri testified.
Donovan testified that Duran told her “there were things that were ancillary that did not belong in the report. And that’s it. That’s all I know about.” She also said she was never made aware of other incidents uncovered by Gurrieri.
Federal rules don’t allow for the selectivity described by Gurrieri.
“Even if a student or his or her parent does not want to file a complaint or does not request that the school take any action on the student’s behalf, if a school knows or reasonably should know about possible sexual harassment or sexual violence, it must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation,” according to the Department of Education.
During the depositions, it also became clear that school sites don’t always report such incidents to district officials.
Donovan said in her testimony that an incident like the one between the kindergarten boys wouldn’t necessarily rise to the level of something she’d expect a school to report to the district.
Marten also testified that she wouldn’t necessarily call the boys bathroom encounter “serious.”
She said she would want to know more about “individuals and the circumstances” and if “other disabilities” are involved. “I need to know all the facts before I would determine the seriousness of it.”
Duran’s qualifications to lead the Quality Assurance Office came into focus during her deposition.
She worked for the city attorney’s office and the district attorney’s office before coming to San Diego Unified in 2007, but testified she had no experience handling sexual abuse or harassment cases involving students. She did have experience investigating adult harassment allegations while working for the city attorney’s office, she said.
Court records show Duran briefly struggled to recall the name of the school from which she got her degree.
“South – I’ve forgotten the name,” Duran said, before recalling it was from Sawyer College of Business in San Diego.
Sawyer College of Business was part of a chain of for-profit colleges run by United Education & Software. The parent company filed for bankruptcy in November 1993 following an investigation and settlement with the California attorney general in 1992 after complaints the company misled students and provided a poor education.
U.S. Department of Education records show Sawyer College of Business in San Diego closed in August 1992.
Duran testified she obtained a legal studies degree from Sawyer. She said she was also certified in investigations by Golden West College, a community college based in Huntington Beach.
District officials praised Duran’s qualifications in the statement provided to VOSD: “Carmina Duran has dedicated her career to public service – both in this office and previously in the highest legal offices of our city,” the statement said.
To close a $124 million budget deficit next year, district leaders recently approved wide-reaching cuts to personnel and programs. Documents show one position – an administrative assistant – was cut from the Quality Assurance Office.
Gurrieri’s claims are scheduled to be heard at a Superior Court trial July 21. No trial date has been set for his federal lawsuit.