A 2-year-old civil rights lawsuit against the Hawaii Department of Education is inching closer to trial this summer on behalf of two Native Hawaiian children who allege they were repeatedly harassed at Big Island public schools with little intervention by school officials.

The case is playing out against the backdrop of ongoing efforts by the DOE to come into compliance with federal civil rights laws, including Title IX of the Education Amendment Acts of 1972 and Title VI of the Civil Rights Act.

The state in December struck an agreement with the U.S. Department of Education following a years-long federal investigation into Hawaii’s lackluster response to student-on-student bullying and harassment.

The state agreed to take certain steps, such as establishing grievance procedures for students who report such complaints. No such procedures currently exist outside of a school discipline code known as Chapter 19 and Policy 305.10. Neither of these existing mechanisms comply with federal law and are inadequate in addressing incidents of harassment, the feds concluded.

Both federal officials and the DOE say the department is moving toward compliance. “We are absolutely committed to this,” state Schools Superintendent Christina Kishimoto told Board of Education members earlier this month.

Courtesy Joshua Franklin

In the lawsuit, Joshua Franklin, a Hilo parent and sole guardian to two sons, ages 12 and 13, alleges the DOE failed to take proactive steps to stop the verbal and physical abuse inflicted upon his children since they were 6 and 7.

He alleges they were repeatedly subjected to homophobic slurs like “faggot” or “queer” and shoved and slammed to the ground while participating in after-school programs such as Boys and Girls Club of Hilo and the A+ after-school program.

The boys, Alea Stevens-Alameda and Poha Stevens-Alameda, had to frequently switch schools as the result of the bullying, according to the suit. The schools they attended included Hilo Union Elementary, Waiakeawaena Elementary, Kua o ka La New Century Public Charter School and Pahoa Elementary.

“This persistent harassment is often done in the presence of defendant’s administrators, teachers and counselors who fail to take appropriate or required action and minimize the hate speech as mere ‘name-calling,’” alleges the lawsuit, filed in federal court in 2016.

The crux of Franklin’s argument is that school officials failed to implement programs or reporting policies or provide broader training to staff on LGBTQ issues, to the point they were “deliberately indifferent” when these alleged incidents took place. The suit also alleges there were no “meaningful disciplinary measures to deter other students from perpetuating the cycle of harassment” and that administrators came up with no action plan or mandatory training for its staff.

This constitutes a violation of Title IX, which prohibits sex-based discrimination in any education program that receives federal funding, the suit asserts.

In addition to physical abuse, the suit alleges the boys were subjected to chants like, the “whole family are gays and queers and are going to hell,” with a teacher allegedly telling one of the boys, “maybe these things wouldn’t happen if you believed in God.”

In a response filed Monday evening, the DOE denied that a teacher ever made that statement or that much of the alleged misconduct took place. It also argued staff did properly respond when students acted inappropriately. The DOE also argues it is not required to provide “LGBTQ training” and that the DOE “has no responsibility” for alleged abuse that took place at the Boys and Girls Club or A+ after-school program.

Franklin has asked a Honolulu federal judge for partial judgment to find the DOE to be in violation of Title IX and to order it establish protocols and training for LGBTQ-related harassment. A hearing on the motion is scheduled for May 7.

Rob Smith, Franklin’s Seattle-based attorney, said the recent resolution agreement between the feds and the DOE to improve student harassment-related protocols in the state doesn’t go far enough.

“They can do better,” he told Civil Beat. “We want to see an injunction that will force them to do (so) and will force them to do so by a date certain.

“This case is about accountability. We want to see structural changes in the DOE so other kids don’t have to go through what (Franklin’s) boys have gone through.”

DOE: ‘A Substantial Amount of Progress’

The federal review by the federal Department of Education’s Office for Civil Rights was initiated in 2011.

Federal officials selected 29 DOE schools to collect data on student bullying, distributing surveys in 2014 to kids fifth grade and older. They found that nearly one-third of fifth graders and up had been bullied, and that two-thirds of those respondents said it was due to their race, sex or disability. Nearly half said they didn’t report the abuse because they felt school officials wouldn’t do anything.

Suevon Lee/Civil Beat

A compliance review released early this year was a strong indictment of the DOE’s response to student-on-student harassment.

“Taken together, the survey data paints a picture of a school system that is failing to systematically address incidents of protected-class harassment in an effective way,” the OCR wrote.

Since the release of that review, the DOE has more widely distributed a notice of non-discrimination and anti-harassment. It also hired a full-time director of its Civil Rights Compliance Office in 2015, and placed “equity specialists” in almost all of its 15 complex areas, or school regions.

It must establish grievance procedures to handle student complaints of bullying and harassment by Sept. 1. That includes “age appropriate” guidance to students on Title IX, Title VI and Section 504 of the Rehabilitation Act, which prohibits discrimination based on disability, said CRCO director Anne Marie Puglisi during a presentation to the Board of Education at an April 5 meeting.

In a statement last month, Kishimoto said “a substantial amount of progress had been made since the initial notification in 2011” and that “future monitoring letters will more accurately reflect where we are today.”

A March 16 letter the OCR sent to the DOE acknowledged that the compliance process “appears well underway.”

A Persistent Problem

A recent Youth Risk Behavior Survey conducted by the state Department of Health for 2011 to 2015 shows bullying on school property had increased those years, particularly among middle-schoolers.

The percentages were highest on the Big Island.

While partnerships with outside organizations for anti-bullying training to students and staff exist, some advocates say it’s not comprehensive. Mental Health America of Hawaii, a mental health advocacy organization, has gone into specific DOE schools to provide training on harassment prevention but the training is still done piecemeal, according to Pedro Haro, the group’s deputy director.

The DOE as a whole hasn’t made specific overtures to the organization to include such training in all the schools, according to Haro. Hawaii’s state education system is the only one in the U.S. that operates as a single school district for nearly 180,000 students in K-12.

“There should be a systemwide effort,” Haro said. “Even for us, some things are confusing. How does one school deal with bullying versus another? There’s no standardized way.”

The DOE in recent years has tried to expand mental health awareness. Using a federal grant received in 2014, it has hired school community advocates to work in three complex areas: Nanakuli-Waianae and Leilehua-Mililani-Waialua on Oahu, and Kau-Keaau-Pahoa on Big Island, to lead anti-bullying initiatives and connect students with resources.

Feedback from one of these advocates has been positive. “Schools are very receptive and wanting youth to be happier,” said advocate Valor Grimm, who works with schools in Leilehua-Mililani-Waialua.

Others who’ve interacted directly with the schools say things can be improved.

Sarah Kay, a recently retired school bus driver for Roberts Hawaii who drove students to and from Kealakehe Elementary, Intermediate and High on the Big Island, said the bullying she observed on the bus was “pervasive.”

She said she filed more than a hundred so-called “ST-15” incident forms after she witnessed troubling behavior, but that it was rare for administrators to take any action in response.

“In the two years I’ve been (a driver), as far as I know, there’s never been any follow-through,” she said. “I’ve never seen an (ST15) come back. I never heard of a parent getting one.”

“School officials don’t respond immediately, if at all, and the dangerous behavior is not addressed. The student continues to ride the bus,” she said.

Such anecdotes suggest a general pattern of inaction by the DOE when it comes to tackling this problem head-on, argues Smith, Franklin’s lawyer.

For instance, he said his client had filed a complaint with the DOE’s CRCO regarding his sons’ alleged treatment at the hands of other kids, but got little response.

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