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Denver School Board member Tay Anderson addresses hundreds of protesters in front of the Capitol building on Sept. 23, 2020, in Denver following the Kentucky grand jury announcement in the Breonna Taylor case. The crowd then began marching downtown to the office of U.S. Sen. Cory Gardner.

While an independent investigation for Denver Public Schools was unable to substantiate sexual assault allegations against Tay Anderson, one of its members, the details of the report released Wednesday confirmed what appear to be incidents of sexual harassment against teens by Anderson.

The investigation found Anderson “engaged flirtatiously” with a 16-year-old DPS student and made social media posts that could be viewed as attempts to intimidate witnesses.

The probe also found that in a 2018 incident when Anderson was running for his board seat, he began communicating with a 17-year-old Douglas County high school girl, inviting her to go stargazing with him or have a sleepover, she told investigators. The girl said the overtures made her “feel extremely uncomfortable and scared to go places in the case I would see him.”
 
A DPS Board of Education Policies document describes sexual harassment as "unwelcome conduct based on gender," and also "a student, employee, or community member engaging in unwelcome verbal, written, graphic, physical, or other conduct based on Protected Class status that is determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the District’s education program or activity."

As the report was released Wednesday, Anderson announced he would hold a press conference, date to be determined.

The question of what's comes next will be answered at 1 p.m. Friday, when the school board considers a censure vote against the 23-year-old elected official.

Here is Colorado Politics' analysis of the 96-page report from ILG Legal Services: 

BLM 5280 allegations 

The independent investigation did not substantiate allegations by Black Lives Matter 5280 in March that Anderson sexually assaulted an unnamed individual in May 2017, his senior year of high school. 

Those allegations were first made public in a tweet from the organization stating a woman had come to them in February, claiming Anderson had sexually assaulted her and wanted a public apology. Anderson responded with a statement of his own, also via Twitter, denying the allegations. 

According to the report, intermediary testimony provided by Mary-Katherine Brooks Fleming, a DPS parent, to Yellow Scene Magazine said to be on behalf of the victim, alleged the assault took place while Anderson and the alleged victim were coworkers at a Krispy Kreme Donuts restaurant on the 16th Street Mall in Denver. 

According to the account Brooks Fleming relayed, Anderson raped the alleged victim after they took out the trash together from the restaurant to an underground loading dock near the dumpsters. 

ILG did find some circumstantial evidence to support the allegation. 

Investigators found access and protocols for the loading dock matched the alleged victim’s account. Investigators confirmed with Anderson that he had keycard access to the underground area and was responsible for taking out the trash. The report also cited a 2017 Denver Post story in which Anderson detailed his summer plans to work at the doughnut shop. 

Investigators found Facebook messages allegedly between Anderson and the alleged victim that would have corroborated that the pair worked together at the time. Anderson did not authenticate the posts, and the alleged victim did not respond to 13 efforts to reach her, however. 

The report raised the possibility that the lack of response in this case and by and other alleged victims of Anderson's behavior could be due to “fear of retaliation and/or fear of their identity being exposed as a result of their participation in the investigation.” 

The report states, “This same fear of public backlash could reasonably have informed the alleged victim’s unwillingness to meet with us, especially considering the public post Director Anderson holds and the traumatic nature of this alleged incident.” 

But investigators also found the preponderance of evidence did not support the rape allegation, however. 

Investigators found “no direct witness evidence, or authenticated documentary evidence” supporting the allegations and noted that Anderson “consistently denied ever having sexually assaulted anyone.” 

The report also notes that while the Facebook messages, if authentic, would appear to indicate Anderson and the alleged victim were coworkers, bank and payroll records show he left Krispy Kreme the month before the alleged attack. 

The report also casts doubts on Brooks Fleming’s credibility, both in this allegation and in others, and notes witnesses raised concerns over BLM5280’s credibility based on “contentious interactions” between Anderson and the group’s leadership. 

Never-Again Colorado 

The report corroborated that Anderson likely engaged in “some unwelcome sexual commentary, some unwelcome sexual advances and physical contact” toward the Never-Again Colorado Board of Directors and their associates while he was that organization’s president in 2018.  

Anderson admitted to and apologized for a majority of those allegations. A bulk of the remaining evidence in the report, however, was redacted.  

While investigators chose to corroborate the allegations, they noted substantial evidence did not support the charges.  

For one, all NAC witnesses described the organization as a work-hard, play-hard environment run by teenagers who blurred the lines between personal and professional with alcohol and marijuana. Anderson was aged 19 and 20 during the period.  

Moreover, the report said, “A number of witnesses told us that it was not Director Anderson who was solely, or even primarily, responsible for creating the inappropriate environment of NAC,” and that Anderson was not responsible for providing either the alcohol or the marijuana.  

The report states that issues that were raised contemporaneously about Anderson’s behavior centered on his ego and eagerness to take the spotlight from female board members.  

Conduct while a DPS employee 

The report could not corroborate alleged sexual misconduct by Anderson while he was a DPS employee working at Manual and North high schools. 

The published version of the report redacted nearly all of this section, offering very little insight into the allegations or findings aside from the conclusion. The redactions were made by the board’s lawyers to protect the privacy of students who participated in the probe.  

Aside from the conclusion, the only noteworthy part of this section is that ILG was contacted by the Denver Police Department in June because “they had learned we were interviewing some of the same people who they were interviewing on this issue.” 

DPD ordered ILG to stop its work and not to disclose the police investigation, before allowing ILG to continue in early August. 

Brooks Fleming allegations 

On May 25, Brooks Fleming testified in a House Judiciary Committee hearing on Senate Bill 88, which related to civil charges against adults who have sex with minors and eventually became law. Fleming said that an adult within Denver Public Schools in “a position of trust” had sexually assaulted more than 60 victims. She said all but one of the victims were undocumented immigrants or DACA recipients.

Brooks Fleming did not name Anderson during her testimony but later confirmed she was talking about him, leading the DPS board to add the allegations to the scope of the already-underway investigation. 

But investigators turned up little evidence to corroborate the allegations outside Brooks Fleming’s account. The report states the allegations “were not corroborated by any firsthand or secondhand witnesses or evidence and were not corroborated by her own statements, which were inconsistent.” The lack of “credible evidence” was a “critical factor” in the report's conclusion. 

The report noted that a general fear among undocumented immigrants of interacting with authorities may have lead to a reluctance to report any allegations.  

“An environment of fear surrounding immigration status, principally the possible deportation of victims and/or their families, could reasonably explain why undocumented and DACA recipients might be afraid to come forward,” the report said. 

Conversely, ILG found substantial evidence that called Brooks Fleming’s credibility into question. 

"Specifically: (Brooks Fleming)’s behavior is inconsistent with having received sixty-two complaints of sexual assault and misconduct; she revised her timeline in its second retelling, potentially to explain inconsistencies in her behavior; and her nonresponsive answer patterns, possible event conflation and refusal to provide specifics undermines the credibility of her contentions,” the report states. 

Investigators also questioned why Brooks Fleming, a white woman who does not speak Spanish and does not work in a field that intersected with the undocumented community in Denver, would become a trusted resource for more than 60 alleged victims of sexual assault, particularly since none of the alleged victims reached out to community organizations in Denver’s Latinx community. 

“Our outreach efforts did not result in any corroboration of the allegations of pervasive sexual assault and misconduct against mostly undocumented students leveled against Director Anderson,” the report said.  

Social media integrity

The final charges investigators examined centered on Anderson's social media communications with young women while both a candidate and member of the board of education, as well as attempts to interfere with the investigation by “chilling participation.” Both were viewed through the lens of conduct that “negatively implicates the integrity and high ethical standards expected of his public office.”

In one of the more complicated findings in the report, investigators say the bulk of the conduct reported in this section does ”not implicate integrity, high ethical standards, respectful conduct and a commitment to support the United States and Colorado constitutions”

Investigators cited two incidents: interactions in which Anderson “engaged flirtatiously” with a 16-year-old DPS student and two online posts the probe said could be interpreted as “coercive or intimidating against witnesses in the investigation.”

On the communications with the underage student, the report found the 2020 exchange “more likely than not was intended as flirtatious, which is apparent on its face.”

“He made googly eye comments about her bedroom, pursued contact even when she was slow to respond or silent, and asked her if she lived with her family or had her own place,” the report said, labeling those actions as displaying “flirtatious intent” that had “nothing to do with his professional role as a Director on the Board of Education.”

The report noted Anderson cut off contact after learning the girl’s age, never met her in person and did not engage in sexual contact.

“That said, the fact that he got himself into this conversation without knowing her age, or where she went to school, could reasonably create concern,” the report stated. “It is not enough for Director Anderson to say that he was not aware of the person’s age or status as a DPS student. It was (and is) his obligation as a person in a position of power in the District, to act in the best interests of the DPS community and to navigate relationships with students appropriately.”

That wasn’t the only case of “flirtatious” communication with a student. In 2018, Anderson was running for his board seat when he began communicating with a 17-year-old high school girl from Douglas County.

“He would ask me to go on dates such as stargazing or sleepover at his place with him,” the witness told investigators. "I never hung out with him in private and I thank God every single day for that because who knows what would have happened. He made me feel extremely uncomfortable and scared to go places in the case I would see him.”

Anderson was 20 at the time.

Intent to flirt

The report concluded, “There is no dispute that he was interested in the (witness) and was intentionally flirting with her.”

“There is likewise no dispute that she was above the age of consent at the time and not a DPS student,” the report said. The age of consent in Colorado is 17.

Investigators also cited a pair of social media posts — one in the midst of the probe and another near its conclusion — that could be interpreted as intimidation.

The first was a Facebook meme Anderson set as his profile's cover photo depicting a “Confederate” figure holding a gun on Bugs Bunny with added text saying “Do it b****.” Anderson told investigators he changed his cover photo to that image in the midst of the investigation, because he saw himself as the rabbit in the picture.

“This could be read consistent with the concerns about race in this process, as a Black man being held at gunpoint by a racist system (or racist allegations),” the report said.

Anderson also defended the second post, a “warning” for individuals who have “engaged in conversation disparaging my name over the last few months.”

In that post, he said “I have your name, I won’t retaliate against you whatsoever.”

“Here is the warning do not speak to me ever again. I will literally act like you do not exist,” the post continued.

Anderson told investigators he didn’t think the post was a form of retaliation, because retaliation required some action; his post indicated a lack of action he would take.

Investigators didn’t buy either explanation.

“While both of these online postings could be read as speaking to the issue of race that permeates this investigation, I find the alternative interpretation of these postings to be more persuasive,” an investigator wrote.

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