The Hawaii Board of Education on Thursday decided to hold off on approving proposed changes to an administrative rule governing student misconduct and discipline to give state education officials time to modify the revisions based on community and board members’ concerns.

Largely, the concerns centered around the definitions of what constitutes bullying and whether it’s abundantly clear that the new grievance procedures apply equally to students who are bullied indiscriminately and to those based on the protected classes of race, national origin, sex and disability.

Board members from the finance/infrastructure and student achievement subcommittees decided to postpone taking a vote on approval until the first week of October so the state education department can clarify language before there is a public hearing on the issue.

Discussion that ensued over proposed changes to Chapter 19 — part of the Hawaii Administrative Rules — underscored some board members’ concerns that schools generally need more guidance on how to adequately handle complaints of student-on-student bullying. This was exposed as a pervasive issue throughout the state in a recently concluded review by the U.S. Department of Education’s Office for Civil Rights that prompted the revisions in the first place.

“We have schools that need guidance. They don’t have any direction,” said school board member Christine “Kili” Namau’u. “I’m concerned about this entire process. I feel it’s moving very quickly. I want all stakeholders’ concerns addressed.”

Cory Lum/Civil Beat

Chapter 19 lists various kinds of prohibited student conduct, including bullying and harassment; discipline options for those offenses; and the process through which schools should conduct an investigation into the misconduct.

What it currently lacks, and what federal officials flagged in a compliance review of the DOE late last year, was any explicit mention of what constitutes prohibited conduct based on race, sex or disability and how student victims of such behavior can go about filing a complaint with their school.

The DOE’s proposed revisions include definitions of sexual harassment, racial harassment as well as gender-based and disability harassment. It also adds dating violence and sexual assault as “Class A” offenses and bullying or cyber-bullying based on a protected class as “Class B” offenses. (The classification system is a way for schools to designate the seriousness of an offense; principals have discretion in how to punish behavior, although suspensions of more than 10 days must be approved by the complex area superintendent.)

The revisions also include details of how a student who has been bullied can file a complaint. It also includes language that retaliation against that student for reporting an incident is prohibited, that “immediate interventions” will be imposed to protect student victims during an investigation and that a student alleging harassment can receive “adequate, reliable and impartial investigations.”

Some board members, including Pat Bergin, said bullying should be elevated to a more serious “Class A” offense, a category that currently includes assault, burglary, sexual offenses or possession of a firearm, among other things.

One question raised during the presentation was whether these revisions would apply as equally to bullying of all kinds as it does to bullying based on race, sex and disability.

It was established that the new grievance procedures apply across the board.

“This is to have it in writing, to emphasize to everyone, that (this conduct) is not acceptable at all,” board member Margaret Cox said.

Chapter 19 is not the only administrative law that is going through revision. DOE officials have also proposed repealing what’s now known as Chapter 41 — the code governing student complaints of adult misconduct — and replacing it with a “Chapter 89” to provide more protection of students’ civil rights.

Some of the submitted public testimony over Chapter 89 expressed concerns over a proposed “informal complaint process” between student and accused adult and how it could create a power imbalance between both parties.

Board member Bruce Voss said he understood that concern. “I confess, as I read the rules, I can see that happening,” he said, adding schools could be prone to go that informal route given their limited resources.

After the Board of Education — which is responsible for shaping education policy in the state — signs off on revisions to both rules, they will go before a public hearing before they’re formally adopted.

Under a December 2017 agreement arising out of the federal review, the Hawaii DOE agreed to carry out a set of recommendations so its policies and procedures comply with such federal laws as Title IX, Title VI and Section 504.

The revisions also come in the shadow of a recently filed federal lawsuit accusing the DOE of not doing enough to address student on student bullying and preventing it from happening.

Board chairwoman Catherine Payne pointed out at Thursday’s meeting that adding new language in Chapter 19 to include prohibition of bullying based on protected classes will enable the education department to collect better data on how many students are being bullied based on race, sex or disability.

The issue of gender-based discrimination in schools has caught the attention of state legislators. Earlier this year, the Legislature passed a bill to expand protections for students discriminated against on the basis of sex, gender identity or sexual orientation.

The Legislature also appropriated $850,000 this past session to provide Title IX compliance training to principals and complex area superintendents. Additionally, the DOE has so far hired 13 “equity specialists” for the 15 complex areas and is actively recruiting for the remaining two complex area positions.

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