The Hawaii Department of Education is proposing elevating bullying and harassment by students in middle and high school levels to the most serious class of violations listed in its student misconduct code.

The proposal is part of the latest recommendations the DOE presented to the Board of Education on Thursday as it works to strengthen policies relating to student misconduct to comply with a 2017 resolution agreement with the federal government.

The board unanimously approved the revisions at its general business meeting. The next step is to hold public hearings on the amendments.

“The Department is committed to providing equal access for all children to a quality public education within a positive learning environment,” school Superintendent Christina Kishimoto said in a statement. “We want to ensure our students feel safe and are ready to learn in a system grounded in respect, aloha and community.”

Reclassifying bullying as a Class A offense rather than a Class B offense for students in grades 7 to 12 is among the most aggressive of the DOE’s latest proposals around this issue. It also proposes elevating student-on-student sexual harassment in grades 5 and higher to Class A.

This means those actions will be treated, on paper, in the same vein as student violations like assault, burglary and possession of a firearm. Although the Department of Education does not mandate specific school-based penalties for Class A or B offenses, the action could give school leaders more room to impose harsher punishments, like suspension or expulsion.

Cory Lum/Civil Beat

The latest recommendations are the department’s second crack at an effort to gain board approval of changes to Chapter 19 — the Hawaii administrative rule covering student misconduct and discipline — which hasn’t been updated in 10 years.

Under the 2017 resolution agreement — which was struck with the U.S. Department of Education’s Office for Civil Rights following a years-long investigation into race, gender and sex-based bullying in Hawaii’s schools — the DOE must revamp its student misconduct code, hire new equity specialists and provide mandatory training to employees.

Updating Chapter 19 is just one piece of that action plan.

Passing community and board muster has not been a given.

Last month, some board members voiced concern the DOE’s definition of “bullying” didn’t cover enough ground. Some proposed making bullying a more serious offense. And some community groups wanted to see a more specific timeframe of “immediate intervention” by school officials and more robust protections for special education students.

The DOE had a month to go back to the drafting table. It’s now updated definitions for bullying and harassment, gender identity and sexual orientation to address those concerns.

It’s proposed combining the terms “bullying” and “harassment” to eliminate confusion for school administrators, removing a phrase that indicated a single or isolated incident wouldn’t be considered bullying and deleting a phrase that defined bullying as only those acts which “limit a student’s ability to participate in or benefit from an educational program, activity or service.”

“Removing this phrase ensures that an act need not limit a student’s ability to participate to qualify as bullying,” a DOE memo states.

The DOE has also proposed adding “social media” to the definition of cyberbullying and updating definitions of “gender identity” and “gender expression” to align with the DOE’s own guidelines for transgender students, which is more robust than the federal government’s after the Trump administration last year rolled back those Obama-era protections.

The DOE has also specified that “immediate intervention” by school officials would mean “as soon as possible.”

Still, written testimony submitted to the board ahead of Thursday’s meeting indicates some community members are underwhelmed by this latest round of amendments.

“The new rules have fixed the most obvious errors that never should have been included in the first place, but overall this document fails to address any of the FUNDAMENTAL issues of bullying in Hawaii schools,” wrote Dean Hamer, a documentary film producer who sits on the board of the Honolulu Gay & Lesbian Cultural Foundation.

Josephine Chang, a consultant and community support trainer, wrote the proposals showed little effort by the DOE beyond “drafting and word changes.”

“The proposed rules do not indicate that HIDOE is committed to adopting a systemwide anti-bullying initiative that is sorely needed, as it does not set forth a framework for action other than by Civil Rights Compliance Branch on notifying the schools about its nondiscrimination rules, policies, and applicable law,” Chang wrote.

The ACLU of Hawaii also expressed concern with the proposal to reclassify bullying as a Class A offense in light of the wide disparity of punishments offered by schools.

It urged a greater emphasis on counseling services for students, mandatory training of staff to identify instances of discrimination, and anti-harassment and anti-bias training for whole classrooms or grades.

“We cannot punish away bullying,” wrote ACLU legal fellow Rae Shih. “A school’s primary response to misconduct requires a broader conversation about options and alternatives to punitive measures, particularly in the bullying and harassment context where school climate is at issue and the problems are not necessarily student-driven.”

Under the DOE’s proposed revisions, bullying by students in grades K-6 and sexual harassment by students in grade 4 and below would still be considered “Class B.”

The DOE has also proposed changes to its policy governing adult misconduct against students, such as making it mandatory for school personnel to forward any student complaints to the DOE’s Civil Rights Compliance Branch.

The DOE will set up public hearings to gather additional feedback on the draft amendments. They must then be approved by the state Attorney General’s Office and the governor.

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