Attachment 1
OCR Timeline

 

September 15, 2011 U.S. DOE Of?ce of Civil Rights (OCR)
noti?ed HIDOE that it had been selected for a
compliance review. There was no complaint
that initiated the review. UH was subject of a
similar review around the same timeframe.
The review was focused on policies related to
bullying and harassment in the HIDOE
schools based on race, sex and disability.

 

October 2011- September 2014 OCR made an initial request for information.
Based on that information, the OCR, selected
28 schools for which they requested
additional information. Over the next three
years, the OCR conducted onsite visits to
schools and interviewed various HIDOE
employees at the State level. They also
conducted a survey of the students at the 28
schools.

 

October 2014-March 2015 OCR proposed a voluntary resolution
agreement (V RA), which would resolve the
issues covered in the review and eliminate the
need for a full investigation. HIDOE and
OCR worked on agreeable language in the
VRA and exchanged many versions of the
VRA.

 

March 20, 2015 HIDOE noti?ed OCR that it could not enter
into the VRA because the leadership at the
time believed the terms were overly broad and
that the HIDOE could not enter into such an
agreement in good faith.

 

 

March 2015 to August 2017 After the March 2015 letter and before being
noti?ed of any OCR ?ndings, the HIDOE
took proactive steps to address the concerns
the OCR identi?ed in the draft VRA. The
HIDOE began the process of revising HAR
?8~4l (Chapter 41); the HIDOE prepared
revisions to BOB Policy 305-10 and the
associated Standard Practice that sets out
procedures for the implementation of BOB
Policy 305-10; the HIDOE prepared and
delivered a notice of anti-discrimination and
harassment for schools to post on their

 

 

 

 

websites, which was translated into 14
languages; and the HIDOE hired a full-time
Title IX Specialist.

 

August of 2017

The Director of the Civil Rights Compliance
Of?ce (CRCO) made contact with the OCR
Director seeking technical assistance in the
improvements to?the internal civil
rights processes. The OCR Director informed
the CRCO Director that the OCR could not
provide technical assistance because the
compliance review from 2011 was still
pending. She also said that the OCR had
made ?ndings relating to the compliance
review and that the OCR would be ready to
share these ?ndings in September.

 

September 25, 2017

OCR verbally communicated the ?ndings to

the CRCO Director. practice is to

communicate ?ndings orally and offer the
recipient the opportunity to enter into a
resolution agreement. A letter of ?ndings is
issued after a resolution agreement is entered
into stating that the resolution agreement
resolves all ?ndings] There were three
?ndings: 1) HIDOE did not have suf?cient
coordinators to oversee Title IX, 2) HIDOE
did not have a suf?cient notice of
nondiscrimination, and 3) grievance
procedures were not sufficiently clear for
providing prompt and equitable resolution of
student and employee complaints. The OCR
offered the HIDOE the opportunity to enter
into a resolution agreement to resolve the
?ndings.

 

 

September 29, 2017

 

OCR sent a proposed resolution agreement to
the CRCO Director. allows 90 days to
negotiate a resolution agreement. If one is not
reached within that timeframe, the matter may
be sent to enforcement with the Department
of Justice to determine appropriate action,
which can include rescission of federal
funding]. The CRCO Director worked with
the OCR to include language and timelines
with which CRCO Director believed HIDOE
could comply.

 

 

 

November 24, 2017

Proposed resolution agreement was sent to
Attorney General?s of?ce for review.

 

December 12, 2017

Revised Chapter 41 was sent to Attorney
General?s of?ce for review.

 

December 13, 2017

Attorney General?s of?ce responded that
there were no concerns over the resolution
agreement?s legality.

 

December 18, 2017

Resolution agreement was sent to
Superintendent for signature.

 

December 20, 2017

Superintendent signed the resolution
agreement

 

January 4, 2018

Attorney General?s of?ce requested to review
the revisions of Chapter 41 again in
conjunction with the revisions of the Standard
Practice associated with BOE Policy 305-10.

 

 

January 22, 2018

 

On January 19, 2018, the OCR issued its
letter of ?ndings relating to the compliance
review, which was received by the
Superintendent?s of?ce.

 

Action Items Required in Resolution Agreement

 

Designation of Title IX Coordinators

In the fall of 201 5, the HIDOE hired a full~
time Title IX Specialist. In addition, in July
of 2017, the legislature approved 15 new
positions for the CRCO, one for each
complex area, to handle civil rights issues,
including Title IX issues. These positions are
called Equity Specialists and 12 of the 15
have been ?lled. The positions in the Kapaa-
Kauai-Waimea, Hana-Lahainaluna-Lanai-
Molokai, and Honokaa-Kealekehe-Kohala?
Konawaena complex areas are not ?lled, but
the CRCO is actively engaged in recruitment.

 

 

Documentation that Policies, procedures,
regulatory web pages and publications have
been updated with title, of?ce address,
telephone number and e-mail address of
individuals designated to coordinate efforts.

 

The website, notice of non-discrimination and
Equal Education Opportunity brochure have
been updated with the CRCO of?ce contact
information, including the contact information
for the Title IX Specialist.

 

 

 

 

Notice of Non-discrimination

A Notice of Non-Discrimination and Anti-
Harassment Statement has been included in
the Opening of the School Year Packet for
employees since the 2016-2017 school year.
In addition, a memo has been sent to
principals annually since 2016 instructing
them to put the notice on their website and, if
they do not have a website, to disseminate the
notice to each student. The Notice has been
translated into 14 languages and can be found
on the CRCO website.

 

Grievance Procedures

CRCO began revisions of HAR Chapter 41 in
2015.

In December of 201 6, CRCO began revising
BOE Policy 305-10 and the af?liated
Standard Practice to include student-to-
student conduct and to update the complaint
procedure (grievance procedure) to be
compliant with issues raised in the
compliance review.

 

Training on the policies and Standard
Practices

In conjunction with the revisions of BOB
Policy 305-10 and the Standard Practice, the
CRCO plans to provide training for all
employees once the Policy and Standard
Practice are in place. The CRCO has
developed the training and is putting together
a timeline for roll out. 

 

Age appropriate guidance for students on
Title IX, Title VI, and rights and
procedures

HIDOE must ensure that students are aware,
on an age-appropriate basis, of the procedures
that are in place. The CRCO plans to develop
Videos for this purpose by the end of the
2018-19 school year.

 

 

Proposed plan to monitor future compliance
with Title VI, Title IX, and Section 

 

HIDOE must develop a plan to monitor future

compliance with Title VI, Title IX, and

Section including measures such
as seeking community input regarding the
effectiveness of response to
incidents of racial, sexual, and disability
harassment or creating a method to assess the
effectiveness of responses to
incidents. This has not been completed yet.

 

 

 
am
Y. . $33315: DR. CHRISTINA M. KISHIMOTO
GOVERNOR 
a

 

STATE OF 

DEPARTMENT OF EDUCATION

PO. BOX 2360
HONOLULU. 96804

or THE SUPERINTENDENT
February 28, 2018

TO: The Honorable Lance A. Mizumoto, Chairperson, Board of Education
The Honorable Brian J. De Lima, Vice Chairperson, Board of Education
The Honorable Patricia Bergin, Member, Hawaii County
The Honorable Maggie Cox, Member, Kauai County
The Honorable Nolan Kawano, Member, City County of Honolulu
The Honorable Hubert Minn, Member, City County of Honolulu
The Honorable Christine ?Kili? Namau?u, Member, County of Maui
The Honorable Kenneth Uemura, Member, City County of Honolulu
The Honorable Bruce Voss, Member, At Large

FROM: Dr. Christina M. Kishimoto 4
Superintendent 

ECT: Timeline Relating to the HIDOE Resolution Agreement with the U.S. DOE
Of?ce of Civil Rights

1 am providing you background information concerning a letter of ?ndings from the U.S. Department of
Education, Office of Civil Rights (OCR) received in January, 2018. This letter of ?ndings has a long history
and I want to be sure that the Board of Education has the information regarding the Hawaii Department of
Education?s compliance with these important laws.

On September 15, 20] I, the OCR noti?ed the Hawaii Department of Education (HIDOE) that it was selected
for a compliance review. There was no complaint that initiated the review. The University of Hawaii was
noti?ed of a similar review, which was conducted around the same timeframe. The review was focused on
policies related to bullying and harassment in the HIDOE schools based on race, sex and disability.

in October of 20] l, the OCR made an initial request for information. Based on that information, the OCR
selected 28 schools for which they requested additional information.1 Over the next three years, the OCR
conducted onsite visits to these schools and interviewed various HIDOE employees at the State level. They
also conducted a survey of the students at the 28 schools.

Three years later, in October of 2014, the OCR proposed a voluntary resolution agreement (VRA), which
would resolve the issues covered in the review and eliminate the need for a full investigation. Over the next

 

The Letter of Findings refers to 29 schools. This is because OCR considered one of the schools on the list,
Kau High/Pahala Elementary School as two schools; whereas, the school is operated as onejoint school with
the same principal and is considered to be one school by HIDOE.

AN AFFIRMATIVE ACTION AND EQUAL OPPORTUNITY EMPLOYER

The Honorable Lance A. Mizumoto, et al.
February 28, 2018
Page 2

six months, the HIDOE and the OCR worked on agreeable language in the VRA and exchanged many
versions of the VRA.

On March 20, 2015, the HIDOE noti?ed the OCR that it could not enter into the VRA because the leadership
at the time believed the terms were overly broad and that the HIDOE could not enter into such an agreement
in good faith. After this noti?cation, the OCR sent one more request for updated information in 2016, but
provided no other feedback relating to the compliance review until August of 201 7.

After the March 2015 letter and before being noti?ed of any OCR ?ndings, the HIDOE took proactive steps
to address the concerns the OCR identi?ed in the draft VRA. The HIDOE began the process of revising
HAR ?8-4l (Chapter 41), which is the administrative rule that governs the civil rights policy and
complaint procedure. In addition, the HIDOE prepared revisions to BOB Policy 305-10 and the associated
Standard Practice that sets out procedures for the implementation of B08 Policy 305-10. The HIDOB
prepared and delivered a notice of anti-discrimination and harassment for schools to post on their websites.
The notice is available in 14 languages. The HIDOB also hired a full-time Title IX Specialist.2

In August of 2017, the Director of the Civil Rights Compliance Office (CRCO) made contact with the OCR
Director seeking technical assistance in the improvements to the internal civil rights processes.
The OCR Director informed the CRCO Director that the OCR could not provide technical assistance because
the compliance review from 2011 was still pending. She also said that the OCR had made ?ndings relating
to the compliance review and that the OCR would be ready to share these ?ndings in September.

On September 25, 2017, the OCR verbally communicated the ?ndings to the CRCO Director.3 The findings
were limited to three areas: 1) HIDOE did not have sufficient coordinators to oversee Title IX, 2) I-IIDOE
did not have a suf?cient notice of nondiscrimination, and 3) i-llDOB?s grievance procedures were not
suf?ciently clear for providing prompt and equitable resolution of student and employee complaints. The
OCR o?'ered the HIDOB the opportunity to enter into a resolution agreement to resolve the ?ndings.

On September 29, 2017, the OCR sent a proposed resolution agreement to the CRCO Director.4 The CRCO
Director worked with the OCR to include language and timelines with which the CRCO Director believed
HIDOE could comply.

On November 24, 201 the proposed resolution agreement was sent to the Attorney General?s office for
review. On December 13, 2017, the Attorney General?s of?ce responded that there were no concerns over
the resolution agreement?s legality.

 

2 During the time period the HIDOE was noti?ed of OCR findings, but not as a result of the OCR findings,
the revisions of Chapter4l were circulated to appropriate personnel for review and were sent to the
Attorney General?s of?ce for review in December of 2017. The Attorney General?s office requested to
review the revisions again in conjunction with the revisions of the Standard Practice associated with BOB
Policy 305-10. 

3 The practice is to communicate ?ndings orally and offer the recipient the opportunity to enter into a

resolution agreement. A letter of ?ndings is issued after a resolution agreement is entered into stating that the

resolution agreement resolves all ?ndings.

4 The OCR allows 90 days to negotiate a resolution agreement. If one is not reached within that time??ame,
the matter may be sent to enforcement with the Department of Justice to determine appropriate action, which
can include rescission of federal funding.



The Honorable Lance A. Mizumcto, et a1.
February 28, 2013
Page 3

On December i8, 2017, the resolution agreement was sent to the Superintendent for signature. On December
20, 2017, I signed the resolution agreement.

On January 19, 2018, the OCR issued its letter of ?ndings relating to the compliance review, which was
received by the Superintendent?s of?ce on January 22, 2018.

The resolution agreement outlines three areas the HIDOE needs to address, many of which the HIDOE has
already addressed or has been in the process of addressing. The three areas are:

Title IX Coordinators

The ?rst is the need for designated Title IX Coordinators. The resolution agreement requires that a report
identifying the individuals designated to coordinate the compliance efforts and their quali?cations be
provided by April 1, 2018. In the fall of2015, the HIDOE hired a full-time Title IX Specialist. In addition,
in July of2017, the legislature approved 15 new positions for the CRCO, one for each complex area, to
handle civil rights issues, including Title lX issues. These positions are called Equity Specialists and 12 of
the 15 have been filled. The positions in the Kapaa?Kauai-Waimea, and
complex areas are not failed, but the CRCO is actively engaged in
recruitment. A second issue that the OCR identi?ed in connection with the designation of Title 1X
coordinators is that HIDOB policies, procedures, regulatory web pages and publications be updated with title,
of?ce address, telephone number and e-mail address of individuals designated to coordinate efforts. This
needs to be done by one 1, 2818. The HIDOE has already provided contact information for the Title IX
Specialist and for. the CRCO in these documents and plans to update the information with the names and
contact of the new Equity Specialists once they are all hired.

Non?Discrimination and Anti-Harassment Policy

The second area that the OCR identi?es as non-compliant is a lack of noti?cation of the non-
discrimination and anti?harassment policy. The resolution agreement requires that a notice of non-
discrimination be disseminated in all documents made available to students, parents, employees, applicants
for employment, or any professional organization with a collective bargaining agreement by July 1, 2018. A
Notice ofNon-Discrimination and Anti-Harassment Statement has been included in the Opening of the
School Year Packet for employees since the 2016?2017 school year. In addition, a memo has been sent to
principals annually since 2016 instructing them to put the notice on their website and, if they do not have a
website, to disseminate the notice to each student. The Notice has been translated into 14 languages and can
be found on the CRCO website.

Grievance Procedure

The third area that the OCR identities as non-compliant is the grievance procedure. The OCR
outlined the items that needed to be included in the grievance procedure, including a procedure that
addressed student-to~student conduct, and required that training he conducted for employees on this
procedure. The resolution agreement states that the grievance procedure will be updated and submitted to the
OCR for approval by September I, 2018 and training has to be completed within a year of the date the OCR
approved the updates to the grievance procedure. In December of 2016, the CRCO began revising BOB.
Policy 305-10 and the af?liated Standard Practice to include student-to?student conduct and to update the
complaint procedure (which is the procedure the OCR refers to as a ?grievance procedure?) to be compliant
with issues raised in the compliance review. In addition, the CRCO began revisions of HAR ?8.41 in 2015.
In conjunction with the revisions of BOB Policy 305-10 and the Standard Practice, the CRCO plans to
provide training for all employees once the Policy and Standard Practice are in place. The CRCO has
developed the training, and is putting together a timeline for roll out.

The Honorable Lance A. Mizumoto, et a1.
February 28, 2018
Page 4

in conjunction with the training on the grievance procedure, the HIDOE must ensure that students are aware,
on an age-appropriate basis, of the procedures that are in place. The HIDOE has 120 days from the approval
of the grievance procedures to submit pians to make students aware of procedures for OCR review. Once
approved, HIDOE has 180 days to impiement the plan. The CRCO plans to develop videos for this purpose
by the end of the 2018-19 school year.

Lastly, the resolution agreement requires that HIDOE develop a plan to monitor ?tture compliance with Title
VI, Title IX, and Section including measures such as seeking community input regarding the
effectiveness of the response to incidents of racial, sexual, and disability harassment or creating a
method to assess the effectiveness of responses to incidents. This is due by July 1, 2018 and
CRCO is working on this.

Where are we Now?

We have created two timelines. One with an accounting of what occurred from the point of initial
noti?cation in 201 1 from OCR of the pending review through January 2018 when we received the ietter of
?ndings, and a second timeline with a draft of what we understand are our deliverables. I wili be discussing
the timeline of deliver-ables with OCR in an upcoming phone meeting. This second document is in draft
format until I con?rm a ciear understanding of our path forward with OCR.

When I reviewed the OCR letter, it is clear that there is a signi?cant gap in years between the time the
investigation was done, upon which the ?ndings were made, and where we are today. The letter does not
take into account the signi?cant progress that the HIDOE has made in improving its processes and revising
its procedures since the compliance review began.

As you review these materials, please let me know if you would like to meet to discuss your questions.

CMKzap
Attachments (4)

c: Colonel Peter P. Santa Ana, Liaison, Board of Education
Maya Gee, Student Representative, Board of Education
Holly T. Shikada, Supervising Deputy Attorney General

    
   
 

   
 
 

UNITED STATES DEPARTMENT OF EDUCATION 
Lentil/e OFFICE FOR RIGHTS AMERICAN SAMOA

3? GUAM
$2,432 915 2ND AVE., 3310 HAWAII
1 pug" SEATTLE, WA 98174-1099 IDAHO
?41350? MONTANA

NEVADA 
NORTHERN 

ISLANDS
January 19, 2018 OREGON
WASHINGTON
Dr. Christina Kishimoto
Superintendent
Hawaii State Department of Education
PO. Box 2360

Honolulu, Hawaii 96804?2360

Re: Hawaii State Department of Education
OCR Reference No. 101 15003

Dear Superintendent Kishimoto:

This letter is to inform you that the US. Department of Education (the Department), Of?ce for Civil
Rights (OCR), has completed its compliance review of the policies, procedures, and processes used by
Hawaii State Department of Education (HDOE) for responding to complaints of harassment of
students on the basis of race, color, national origin,1 sex, or disability.

OCR is responsible for enforcing Title VI of the Civil Rights Act of 1964 (Title VI), and its
implementing regulations at 34 CPR. 100 et seq, Title IX of the Education Amendments of 1972
(Title IX), and its implementing regulations at 34 C.F.R. 106 et seq, and Section 504 of the
Rehabilitation Act of 1973 (Section 504) and its implementing regulations at 34 CPR. 104 et seq.
These laws prohibit discrimination on the bases of race, color, national origin (Title VI), sex (Title IX),
and disability (Section 504), respectively, in programs and activities that are recipients of federal
?nancial assistance. OCR is also responsible for enforcing Title 11 of the Americans with Disabilities
Act of 1990 (Title II) and its implementing regulations at 28 C.F.R. 35 et seq This law prohibits
discrimination on the basis of disability by public entities. HDOE is a recipient of federal ?nancial
assistance from the Department and is a public entity. It must therefore comply with these laws.2

As part of the compliance review, OCR investigated the following issues:
1. Whether HDOE complies with Title IX, Section 504, and Title II by having designated a

coordinator to carry out its responsibilities under these laws and notified students and
employees of the designated responsible employee.

 

1 For ease of reference, complaints of race, color and national origin harassment will be referred to collectively in this
document as complaints of race harassment.

2 Section 504 and its implementing regulations apply to any recipient that employs 15 or more persons. Title 11 and its
implementing regulations apply to any public entity that employs 50 or more persons. HDOE employs more than 50
persons. it must therefore comply with the regulatory requirements of Section 504 and Title II.

The Department of Education?s mission is to promote student achievement and preparation for global competitiveness
by fostering educational excellence and ensuring equal access.


Page 2 OCR Reference No. 10115003

2. Whether HDOE complies with Title VT, Title IX, Section 5 04, and Title 11 by having properly
developed and disseminated a notice of nondiscrimination.

3. Whether HDOE complies with Title VI, Title IX, Section 504, and Title II by having adopted
and published grievance procedures that, as written, provide for prompt and equitable responses
to complaints and reports of harassment.

As set forth below, OCR found that HDOE is not in compliance with Title IX, Section 504, and Title 11
regarding the requirement that it designate and provide notice of a coordinator; HDOE is not in
compliance with Title VI, Title IX, Section 504, and Title 11 regarding the requirement that it
disseminate a notice of nondiscrimination; and HDOE is not in compliance with Title VI, Title IX,
Section 504 and Title II regarding the requirement that it provide appropriate grievance procedures.

I. BACKGROUND INFORMATION

HDOE is the 10th largest school district in the United States. It is a single school district
encompassing the entire state and consisting of 255 non?charter schools. For the 2014-2015 school
year, enrollment in HDOE non-charter schools was 170,482 students. HDOE is divided into 15
complex areas across six islands, each of which has a complex area superintendent. A complex area
is composed of two to four complexes and each complex is comprised of a high school and the
elementary and middle schools that feed into it. 

As part of its compliance review, OCR reviewed policies prohibiting harassment of students
on the bases of sex, race, color, national origin, and disability, and grievance or complaint
procedures for resolving complaints of harassment against students on those bases. OCR also selected
29 schools on which to focus its investigation based on a review of reported incidents across HDOE
schools and school quality surveys indicating higher than average levels of concern regarding bullying
and harassment. OCR examined discipline records of these 29 schools for the 2014-2015 and 2015-
2016 school years, and evidence obtained through the investigation of other individual OCR
complaints. 

OCR also conducted two onsite visits. During the ?rst, in May 2013, OCR conducted approximately
200 interviews with administrators and staff, including several complex area superintendents, teachers,
counselors, security personnel, and student services coordinators. OCR also met with groups of
students at several schools, representatives of numerous community groups, and individuals
representing informal groups of Micronesian and Chuuk communities, and gay, lesbian, and
transgender students. During the second onsite, in May 2014, OCR conducted follow?up interviews
with individuals that OCR contacted in 2013. OCR also met with the HDOE Deputy Superintendent
and Acting Director of the Civil Rights Compliance Of?ce (CRCO).

Following the May 2014 onsite, OCR gathered and reviewed survey data from HDOE students on
incidents of harassment in HDOE schools on the bases of sex, race, color, national origin, and
disability, school responses to those incidents, and student levels of concern for their safety at school.
OCR obtained the data it reviewed by developing the survey and requesting that HDOE administer it to
all students, state-wide, in the 5th grade and above. HDOE did so in November and December 2014.

Page 3 OCR Reference No. 10115003
Survey Data Gathered from HDOE Students

The response rate to survey state-wide was 66.07%, or 69,905 out of 105,709 possible
students.3 Of the students responding, more than 27,000 students reported being either ?somewhat? or
?very? concerned about bullying or harassment that had occurred at their current school, representing
38.8% of all responses. Nearly one-third (more than 20,000, or 31.5%) of those responding to the
survey also reported having been personally bullied or harassed at school, on the way to or from
school, or at a school?sponsored off?campus function during the 2014?2015 school year. Of those
students who indicated that they were bullied or harassed, 12,828 reported that they believed
it was because of their race, sex, and/or disability.

Of those students who indicated in response to survey that they were bullied or harassed, over
half (10,744, or 54.07%) indicated that they or someone else reported the harassment to a teacher or
other school employee. Of the incidents that school officials were made aware of, nearly two-thirds
(6,727, or 62.6%) concerned incidents where students believed that they had been bullied or harassed
on the basis of their sex, race, color, national origin, or disability. In 980 of these responses (14.6% of
the total), according to the survey results, the school took no action in response. Of the students who
further answered the survey question regarding whether they were bullied or harassed again after
school of?cials were made aware of their initial incident, over half (5 1 or 5,270 students),
indicated that they were.

Of the students who indicated on the survey that they were bullied or harassed but who indicated that
they did not report the incident to a school official (9,128 students, or nearly half (4,261, or
46.6%) indicated that they did not do so because they did not believe the school would do anything in
response to their report (1,104, or that it would make the bullying and harassment worse (1,989,
or or both (1,168, or These 4,261 responses correspond to 6% of all the survey responses
that OCR gathered from across the state. Many students also reported that they did not know how to
report harassment. Of the students indicating that they were bullied or harassed and who further
indicated they did not report it to school officials, in addition to the responses noted above, an
additional 750 of these respondents) indicated that the only reason they did not make a report is
that they did not know to whom to report the harassment.

In response to being asked whether they had personally witnessed another student being bullied
or harassed within the past school year, more than half (32,850, or 52.7%) of all HDOE students
responding to survey reported that they had personally witnessed such conduct. Of the
students who indicated having witnessed bullying or harassment, more than three-fourths (24,706,
or 75.2%) indicated that the bullying or harassment was because of the victim?s race, sex, and/or
disability. Finally, nearly 40% (25,745 students, or 39.21%) of all students taking the survey
indicated that incidents of bullying or harassment that they had either experienced or witnessed
made them feel unsafe at school.

 

3 This response rate is the lowest possible percentage of HDOE students responding to the survey that OCR is able to
calculate because HDOE does not disaggregate special education enrollment ?gures by grade; only by elementary, middle,
and secondary schools (K-6, 7 -8, and 9-12). OCR therefore included all HDOE special education students in grades K-6
in determining the total number of possible responses to its November 2014 survey even though HDOE administered it to
only those special education students in grades 5 and above.

Page 4 - OCR Reference No. 10115003
Discipline Records ofStudent-on-Student Harassment

OCR reviewed discipline records for 197 incidents of student-on?student harassment that occurred
across 29 HDOE schools during the 2014-2015 (113 incidents) and 2015-2016 (84 incidents) school
years. According to data gathered by survey, 1,284 incidents of harassment based on sex,

race, color, national origin, and disability occurred at the 29 schools during the 2014-2015 school year.
Comparing the number of incidents according to the records provided by HDOE for the 2014-2015
school year?113?with the number of incidents according to the survey data collected by OCR

for that same time a disparity of 1,177 incidents between the two sources

of information. Of the 29 schools from which OCR requested that HDOE produce records, four

of them reported having no records of any incidents of student?on-student harassment based on
membership in a protected class during the 2014?2015 school year. Only ?ve of the 29 schools
produced records documenting more than ?ve incidents. Two schools, Maui Waena Intermediate
School and Washington Middle School, produced 49 of the 113 records for the 2014-2015 school year.
that OCR received.4

The discipline records OCR reviewed predominantly concerned incidents of inappropriate sexual
language (for example, ?slut,? ?pussy,? ?faggot?), inappropriate touching (of buttocks, breasts, kissing,
pantsing, etc), racial slurs (for example, ?haole,? ?nigger,? ?black bitch,? ??cracker?), racial violence
(?ghting provoked by the use of racial slurs, targeting of certain racial groups) and disability?related
harassment (rock throwing, insults). In responding to these incidents of protected-class student-on-
student harassment, the records OCR reviewed indicated that HDOE schools consistently used
Chapter 19 of Title 8 (Chapter 19) of the Hawaii Administrative Rules (HAR) as its only procedure
for addressing alleged incidents of harassment. Chapter 19 is entitled ?Student Misconduct,
Discipline, School Searches and Seizures, Reporting Offenses, Police Interviews and Arrests, and
Restitution for Vandalism,? and is the primary HDOE discipline code for schools. During 
May 2013 onsite, school of?cials consistently con?rmed that schools utilize only the Chapter 19
discipline code in responding to incidents of student-on-student protected-class harassment.

Consistent with using the procedures set forth in Chapter 19 (pp. 12-16), the records OCR reviewed
resembled discipline ?les rather than school district harassment investigative ?les. Approximately
27% of the records (53 of 197), for example, did not contain any documentation of what, if any,
investigative steps school of?cials took to reach conclusions about an allegation of harassment.
Rather, they contained only a conclusion about the incident as determined to have happened by
school of?cials, with no information provided about the sources of information or evidence school
of?cials reviewed in substantiating the incident description.

Beyond documentation of the discipline imposed on offending students, in approximately 82% of all
discipline records OCR reviewed (162 of 197), there was no indication of whether school of?cials took
steps to protect individuals involved in a harassment incident from retaliation. In approximately 76%
of the records (150 out of 197), there was no indication of whether school of?cials took or considered
taking interim measures, pending the outcome of their investigation, to protect students. In 83% of the
records (164 out of 197), there was no indication that school of?cials took af?rmative efforts to follow

 

4 Survey responses from the 29 schools, for which OCR reviewed records of student-on-student harassment, indicate that
students at Washington Middle School and Maui Waena Intermediate School reported being harassed on the basis of
membership in a protected class at rates consistent with those reported by students at the other 27 schools.

Page 5 - OCR Reference No. 10115003

up with student victims or their families as part of or in the aftermath of addressing the offending
student?s behavior.

Across the 29 schools, review of discipline records identi?ed inconsistencies in the ways that
the schools responded to incidents of protected-class harassment involving students. Some schools
used a standard state-wide Chapter 19 discipline form titled ?Chapter 19 Con?dential Notice of
Investigation Findings and Discipline.? Some used electronic student information system.
Some used the school?s own forms, and some reported the incidents in written narratives. The
discipline that school of?cials imposed in response to incidents of harassment based on membership in
a protected class also varied. At one intermediate school with an enrollment greater than 1,000
students during the 2014?2015 and 2015-2016 school years, for example, the records OCR reviewed
indicated that school of?cials imposed an out?of?school suspension in 35 out of the 42 harassment
incidents that occurred during those years. School of?cials also ?led police reports in 15 incidents.
At a middle school with an enrollment of between 700-800 students during those same school years,
the records OCR reviewed indicated that school of?cials imposed out?of-school suspensions in four
out of 52 incidents of harassment that occurred during the 2014-2015 and 2015?2016 school years.

In 35 of the incidents, the offending student received counseling and detention as the only disciplinary
sanction. At both schools, the discipline records reviewed concerned similar behaviors?racial and
sexual name-calling, and inappropriate touching. Also, only one school (a high school) for which
OCR reviewed discipline records utilized Chapter 19?s most serious classi?cation to address incidents
of inappropriate touching. All other schools for which OCR reviewed discipline records exclusively
classi?ed this behavior using a less serious classi?cation.

Within schools, review of discipline records also re?ected inconsistencies in the school?s
response to harassment incidents. At one high school, the records OCR reviewed indicated that the
school used Chapter 19?s most serious classi?cation for three out of ?ve instances of inappropriate
touching. During the same time period, the school used a less serious classi?cation for two other
similar instances. At a middle school one student was found to have made inappropriate sexual
comments and gestures on three different occasions during the 2014-2015 school year; he received a
one?day in?school suspension for each incident. The next year, the same student engaged in the same
behaviors and received a one-hour detention. In another incident at the same school, a student was
punished for stalking another student with a one-day in-school suspension. A month later, school
of?cials determined that he had stalked the same student again. For the second offense, he received
a warning and participated in mediation with school staff as his only disciplinary sanction.

II. DESIGNATION OF COORDINATORS
Legal Standards

Title IX, at 34 CPR. requires each recipient to designate at least one employee to
coordinate its efforts to comply with and carry out its responsibilities under the regulations
implementing Title IX, including any investigation of any complaint communicated to the recipient
alleging any actions which would be prohibited by Title IX. Recipients must also notify students and
employees of the name or title and contact information for the person designated to coordinate the
recipient?s compliance with these regulations.

Page 6 - OCR Reference No. 101 15003

Section 504, at 34 C.F.R. requires a recipient that employs 15 or more persons to designate
at least one person to coordinate its efforts to comply with Section 504.

Title II, at 28 CPR. requires a public entity that employs 50 or more persons to designate
at least one employee to coordinate its efforts to comply with and carry out its responsibilities under
Title II, including any investigation of any complaint alleging its noncompliance with Title II or
alleging any actions that would be prohibited by Title II. Recipients must also notify students and
employees of the name or title and contact information for the person designated to coordinate the
recipient?s compliance with these regulations.

Findings of Fact

In November 2014, HDOE identi?ed the Director of the CRCO to OCR as the person responsible
for coordinating compliance with Title IX, Section 504, and Title II. At all times relevant to this
compliance review, HDOE has had a Director or Acting Director of the CRCO.

While HDOE identi?ed the Director of the CRCO as the designated person for coordinating
compliance with Title IX, Section 504, and Title II, it also clari?ed to OCR that the Director only
coordinates and carries out responsibilities under these statutes as they relate to complaints
against employees by students or others. The Director of the CRCO is not responsible for coordinating
efforts to comply with and carry out its statutory responsibilities as they relate to complaints
made by students against other students. HDOE explained that the handling and investigation of sex
and disability harassment complaints made by students against other students are handled at the school
level by the school principal or his or her designee, not by the CRCO. Consistent with this, the records
reviewed by OCR relating to the 197 HDOE incidents of student-on?student harassment do not reflect
any involvement by the CRCO.

OCR con?rmed that the principals or their designees handle complaints from students alleging
harassment by other students under discipline code by receiving and investigating complaints,
and assigning discipline as appropriate. HDOE presented OCR with no information suggesting that
school administrators acting in this role constituted, or were intended to be, a designation of these
personnel as Title IX, Section 504, or Title II Coordinators. In interviews with OCR, no
school level of?cial identi?ed themselves as a Coordinator under Title IX, Section 504 and Title 11.5

Regarding contact information for the Title IX, Section 504, and Title II Coordinator, in November
2015, HDOE required all principals to disseminate the title and contact information of the Director

of the CRCO, including phone number and address, by posting it on each school?s website and placing
a link to the Coordinator contact information on each school?s website home page. In the notice for

 

5 OCR notes that limited training was provided to some school level of?cials on Title VI, Title IX, Section 504 and Title 11.
Training was provided in October and November of 201 5 to the principals and vice principals of the Campbell-Kapolei
Complex Area, in the Leeward District. The Campbell-Kapolei Complex Area is comprised approximately 43 high,
middle, and elementary schools. The Title IX specialist provided Title IX training to Farrington-Kaiser-Kalani
Complex Area principals, in the Honolulu District, in November of 201 5, consisting of 24 high, middle, and elementary
schools. The CRCO also provided a number of Title IX trainings for principals and vice principals on Maui in October and
November 2016, consisting of eight high, middle and elementary schools on Maui. This accounts for approximately 20%
of HDOE Complex Areas trained.

Page 7 - OCR Reference No. 10115003

dissemination that HDOE provided to schools containing this information, the Director of the CRCO
is identi?ed as the individual to whom students and parents should report complaints of harassment
by an HDOE employee. Each school?s ?administrator? is identi?ed as the of?cial to whom parents
and students should make a complaint regarding harassment by other students.

As of December 2017, OCR conducted internet searches for websites for the 29 HDOE schools for
which OCR reviewed discipline records. For seven of the 29 schools, OCR was not able to locate a
website. Of the 22 websites that OCR was able to locate and review, seven schools did not have the
title and contact information of the Director of the CRCO posted while ?fteen schools did publish the
contact information.6 For one of the schools for which OCR was able to locate and review a website,
the contact information of the Director of the CRCO was only posted in a section of the website
entitled ?Employment Opportunities.? A brochure regarding Equal Employment Opportunity
policy (EEO brochure) available on the HDOE website provided the contact information for the
Director of the CRCO, including phone number and address, and directed a student to contact his or
her teacher or school administrator or the CRCO if the student believed he or she was being harassed
by an employee. The EEO brochure did not provide instructions for how to report incidents of
harassment committed by another student against a student.

Analysis and Conclusion

OCR has determined that HDOE is not in compliance with the regulations implementing Title IX,
Section 504, and Title II, by failing to designate at least one employee to coordinate its efforts to
comply with and carry out its responsibilities under the regulations, and is not in compliance with
Title IX and Title II by failing to adequately notify all students and employees of the name or title and
contact information of the person designated to coordinate the recipient?s compliance with these
regulations. 

The Director of the CRCO only coordinates and oversees investigations of harassment made against
employees. As a result, OCR does not have suf?cient evidence to demonstrate that the Director of

the CRCO is designated as the employee responsible for coordinating efforts to comply

with and carry out its responsibilities under the regulations as they relate to discrimination complaints
made against students. Moreover, to the extent that harassment complaints against students are
handled at the school level, OCR does not have suf?cient evidence to demonstrate that the school level
administrators are designated as the employees responsible for coordinating efforts to comply
with and carry out its responsibilities under the regulations. In its written responses to OCR and in
interviews, HDOE does not identify school level administrators as designated employees, or Title

Section 5 04/Title II Coordinators. As such, OCR ?nds that HDOE has failed to designate at least
one employee to carry out its full responsibilities to comply with Title IX, Section 504, and Title II.

 

6 OCR notes that for 14 of the schools that did have the contact information for the Director of the CRCO listed in
connection with making a complaint of harassment against an HDOE employee, the contact information for the principal
or his or her designee was not listed. Rather, on the web pages for 13 of the schools, the notice stated: ?Any student or
parent who believes another student at their school is engaging in harassment should report allegations to the school?s
administrator.? For the remaining two schools, one school provided contact information for the Director of the CRCO but
no reference to any school level of?cial, and the other provided contact information on the school?s website both for the
Director of the CRCO and the school level of?cial responsible for addressing concerns of discrimination on the part of
other students.

Page 8 - OCR Reference No. 10115003

In addition, Title IX and Title II require the recipient to provide students and families with the contact
information for the coordinator. While HDOE issued a mandate in November 2015 requiring schools
to post on their websites the contact information of the Director of the CRCO, as noted above, the
Director of CRCO was identi?ed only as the person responsible for responding to complaints of
harassment against HDOE employees, not those alleging harassment by another HDOE student.
Moreover, OCR reviewed numerous schools? websites and established that the contact information
for the Director of the CRCO was not available on approximately one-third of the websites reviewed
(seven out of 22).

OCR notes that the survey evidence OCR gathered regarding incidents of harassment at HDOE schools
indicates that the failure to identify a speci?c coordinator as the person responsible for addressing
complaints of harassment made against students may have negatively impacted the educational
environment for students. In response to survey, more than 1,000 students, 23% of those
responding, who indicated they had'been harassed that also indicated they did not report the
harassment to a school of?cial, stated as the reason they did not make a report to be that they did

not know to whom to make it. OCR has not established a direct link between these students? lack

of knowledge of whom to report incidents and the failure of HDOE to identify a coordinator as
responsible for addressing complaints of student-on-student harassment at the school level.7 What
evidence OCR has gathered, however, indicates that noncompliance with Title IX, Section
504 and Title II with regard to properly designating a coordinator may have had a material impact on
the capacity of HDOE students to seek assistance in response to being harassed on the basis of being
a member of a protected class.

NOTICE OF NONDISCRIMINATION
Legal Standards

Title VI, at 34 CPR. requires a recipient to notify students and others of the regulatory
provisions prohibiting discrimination based on race, color, and national origin in a manner that OCR
would ?nd necessary to inform students and others of their protections against discrimination under the
statute and regulations.

Title IX, at 34 CPR. 106.9, requires each recipient to notify students, parents of elementary and
secondary students, employees, applicants of employment, and all unions or professional organizations
holding collective bargaining or professional agreements with the recipient, that it does not
discriminate on the basis of sex in any educational program or activity which it operates, and that it is
required by Title IX and its implementing regulations not to discriminate in such a manner. The notice
of nondiscrimination must include a statement that inquiries concerning Title IX may be referred to
the Title IX Coordinator or to OCR (34 C.F.R. and must be published prominently in

a recipient?s on?line and printed publications to students, employees, and applicants for admission and
employment (34 CPR. 

 

7 survey did not request the names of students providing responses, making follow-up regarding speci?c responses
impracticable.

Page 9 - OCR Reference No. 101 15003

Section 504, at 34 C.F.R. 104.8(a) and requires a recipient that employs 15 or more persons to
notify participants, bene?ciaries, applicants, and employees, including those with impaired vision or
hearing, and unions or professional organizations holding collective bargaining or professional
agreements with the recipient, that it does not discriminate on the basis of disability in Violation of
Section 504 and its implementing regulations. The noti?cation shall state, where appropriate, that the
recipient does not discriminate in admission or access to, or treatment or employment in, its program
or activity. The noti?cation shall also include an identi?cation of the responsible employee designated
pursuant to 34 C.F.R. If a recipient publishes or uses recruitment materials or publications
containing general information that it makes available to participants, bene?ciaries, applicants,

or employees, it shall include the notice of nondiscrimination in those materials or publications.

A recipient may meet the publication requirement by either adding the notice as an insert to

existing publications or by revising and reprinting the materials and publications. The notice of
nondiscrimination must be accessible to disabled individuals and disseminated prominently in a
recipient?s on-line and printed publications, including course catalogs, application forms, bulletins, or
newspapers and magazines, to students, employees, and applicants for admissions and employment.

Title II, at 28 C.F.R. 35.106, requires a public entity to notify students, employees, applicants, and
others of the regulatory provisions in a manner that OCR would ?nd necessary to inform students and
others of their protections against discrimination under the statute and regulations.

Findings of Fact

The HDOE website home page has a footer labeled ?Nondiscrimination Policy.? When an individual
clicks on that link, as of December 2017, it connects to the CRCO home page which provides a link to
Notice of Nondiscrimination. The notice states that HDOE does not discriminate based on
?race, sex, age, color, national origin, religion, or disability.? The notice makes clear that this mandate
against discrimination covers all programs and activities, including employment and admissions. The
notice directs questions regarding discrimination to the CRCO or OCR. The same document also
contains Anti-Harassment Statement. The statement speci?cally directs students and parents
with complaints of harassment against employees based on race, sex, or disability to contact the
Director of the CRCO. For complaints of harassment against students based on race, sex, or disability,
students or parents are directed to contact their school administrator.

In a memorandum dated November 19, 2015, HDOE required all principals to post a copy of the notice
on each school?s website. The memo states: ?We believe that the dissemination requirement can be
satis?ed, by placing it on your school?s web page.? If a school did not have a website, HDOE directed
the school to print and send a copy of the notice home with each student for his or her parents or
guardians. HDOE also instructed principals to print and provide a copy of the notice to each faculty
and staff member, and to keep a copy of the notice at each school?s front desk. Individual schools are
inconsistent with regard to prominently publishing the notice in the student handbooks or other print
publications. As of December 2017, 15 of the 29 schools of focus had published the notice on their
website, seven of the schools had not, and seven schools did not have a website that OCR could
locate.8 OCR also reviewed a number of print publications and found that some, including student
handbooks, did not contain the notice.

 

8 Two school?s websites published an older version of the notice.

Page 10 OCR Reference No. 10115003

HDOE has web pages and a brochure regarding its Employee and Applicant Nondiscrimination Policy
(nondiscrimination brochure) that it does not label as notices of nondiscrimination, but each contains
language that could be construed as a notice of nondiscrimination. On the CRCO home page, HDOE
describes the CRCO mission as committed to enforcing compliance with federal laws that prohibit
discrimination, including harassment and retaliation, based on race, sex, disability, and other protected
classes ?as it relates to students, employees, and members of the public who access our services,
programs, and activities.? The mission statement also speci?cally identifies Title VI, Title IX, Title II,
and Section 5 04, includes the names and titles of CRCO staff with a phone number for the CRCO, and
a link to the OCR website. The CRCO home page also has a link to the nondiscrimination brochure,
dated June 2017, which provides employees and applicants for employment with information about
the nondiscrimination policy and assists such individuals with understanding their civil rights.
The nondiscrimination brochure states that discrimination, including harassment, in the workplace
based on race, sex, disability, and other protected classes is prohibited, but does not identify specific
federal statutes by name. The nondiscrimination brochure also explains that complaints alleging
discrimination may be filed with the CRCO or OCR and various other federal and state agencies. At
the bottom of the HDOE home page for ?job opportunities,? the HDOE has the following statement:

Equal Opportunity

The Department of Education does not discriminate in its educational policies, programs,
and activities on the basis of sex, race, color, religion, national origin, age, and disability
in accordance with Title IX of the Education Amendments of 1972, Title VI of the Civil
Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, Age Discrimination
Act of 1975, and Americans with Disabilities Act of 1991. The Department of Education
does not discriminate in its employment policies, programs, and activities on the basis of
sexual orientation, arrest and court record, and National Guard participation, as well as on
the basis of sex, race, color, religion, national origin, age, and disability, in accordance
with Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act of
1967, Americans with Disabilities Act of 1991, Equal Pay Act of 1963, and Chapter 378,
Part I, Hawaii Revised Statutes.

The home page for ?job opportunities? also contains a link to the June 2017 brochure described above
for employees and applicants for employment.

Analysis and Conclusion

OCR has determined that HDOE is not in compliance with the regulations implementing Title VI,
at 34 CPR. Title IX, at 34 CPR. Section 504, at 34 CPR. and
Title II, at 28 CPR. 35.106, for failing to publish broadly and prominently its Notice of
Nondiscrimination.

While there is a link to the Notice of Nondiscrimination on website home pageschools of focus for which OCR was able to locate websites, seven still did not have the notice
posted on?line as of December 2017. The November 2015 memorandum sent by HDOE to all
principals requiring them to post a copy of the notice on each school?s website mistakenly states that
HDOE ?believe[s] that the dissemination requirement can be satis?ed, by placing it on your school?s
webpage.? The regulations for Title IX and Section 504 specifically require the notice to be published

Page 11 - OCR Reference No. 10115003

in print publications. OCR found that several print publications, such as student handbooks, did not
contain the Notice of Nondiscrimination.

Because OCR has determined that the Notice of Nondiscrimination has not been posted on numerous
school websites and has not been regularly published in prominent print publications such as student
handbooks, OCR finds that the Notice of Nondiscrimination has not been published prominently or
in a manner necessary to inform students and others of their protections against discrimination, as
required by the various regulations for Title VI, Title IX, Section 504, and Title 11.

IV. GRIEVAN CE PROCEDURES
Legal Standards

The regulation implementing Title VI does not explicitly require policies prohibiting harassment

and grievance procedures for addressing harassment. However, the existence of both a policy and
grievance procedure applicable to racial harassment (depending upon its scope, accessibility and
clarity) is relevant in the investigation of racial harassment. If the recipient has a policy or grievance
procedure applicable to harassment, it must be clear in the types of conduct prohibited in order for
students to know and understand their rights and responsibilities.9

Title IX, at 34 CPR. requires that a recipient adopt and publish grievance procedures
providing for the prompt and equitable resolution of student and employee complaints alleging any
action prohibited by Title IX. The regulation implementing Title IX does not require a recipient to
provide separate grievance procedures for sexual harassment complaints; however, a recipient?s
grievance procedures for handling discrimination complaints must provide for the prompt and
equitable resolution of student and employee complaints alleging actions which would be prohibited
by Title IX. Grievance procedures must contain the following elements to achieve compliance with
Title IX: notice to students and employees of the procedures, including where complaints may be
?led, that is easily understood, easily located, and Widely distributed; application of the procedures
to complaints alleging discrimination or harassment carried out by employees, students, and third
parties; provisions for adequate, reliable, and impartial investigations, including an equal
opportunity to present witnesses and evidence; designated and reasonably prompt timeframes for
major stages of the grievance process; notice to parties of the outcome; and an assurance that the
recipient will take steps to prevent further harassment and to correct its discriminatory effects on the
complainant and others, if appropriate. Title IX, further, prohibits a recipient and others, including
students, from retaliating against any individual ?for the purpose of interfering with any right or
privilege secured by [Title or because that individual ?has made a complaint, testi?ed, assisted,
or participated in any manner in an investigation, proceeding, or hearing? under Title IX. 10 Though it
is not required to address the prohibition of retaliation in written grievance procedures, if it does, a
recipient may not make inaccurate statements regarding Title prohibition of retaliation.

Section 504, at 34 C.F.R. requires a recipient that employs 15 or more persons to adopt
grievance procedures that incorporate appropriate due process standards and that provide for the

 

9 See 59 FR 94-5531, March 10, 1994.
10 See 34 C.F.R. 100.7(e) (incorporated by reference through 34 C.F.R. 106.71).

Page 12 - OCR Reference No. 10115003

prompt and equitable resolution of complaints alleging any action prohibited by Section 504. Such
grievance procedures need not be established for complaints from applicants for employment.

Title 11, at 28 C.F.R. requires a public entity that employs 50 or more persons to adopt and
publish grievance procedures providing for prompt and equitable resolution of complaints alleging any
action that would be prohibited by Title 11.

Findings of act

HDOE provided OCR with the following administrative rules, policies, and procedures that it
represented as constituting its grievance procedures for responding to bullying and harassment
complaints based on race, sex, or disability.11

Chapter 19 Discipline Code Used for Addressing Student?on?Student Harassment

primary mechanism for responding to student-on-student harassment is contained in
Chapter 19, as identified by HDOE in response to 2011 data request, confirmed consistently
by school staff during 2013 onsite, and described by HDOE on the web page of its website
concerning how it responds to student harassment Chapter 19 is student discipline code
and it describes student misconduct and potential disciplinary action for misconduct. 2Chapter 19 is
distributed to students and families annually. Subchapter 1 of Chapter 19 contains general provisions
expressing the philosophy of HDOE and its desire to: Promote and maintain a safe and secure
educational environment. . . (2) Teach and acknowledge proper behavior. . . (3) Deter students from acts
which interfere with the purpose of education. and (4) maintain proper student conduct to ensure that
educational activities and responsibilities remain uninterrupted.? Subchapter 1 of Chapter 19 also
contains de?nitions, including for? sexual offenses? or ?sexual assault? and harassment.13

 

11 compliance review determined that HDOE has an administrative rule titled ?Civil Rights Policy and Complaint
Procedure? at Title 8, Chapter 41 of HAR, effective since 1986 and amended in 1995 (Chapter 41). HDOE provided no
information regarding Chapter 41 in responding to OCR data requests. Interviews of HDOE administrators, teachers, and
staff during May 2013 onsite universally confirmed that schools do not use Chapter 41 to address harassment
complaints. As of December 2017, a search of the HDOE website for ?Chapter 41,? and related terms, produced no results.
In May of 2016, the Director of the CRCO advised OCR that HDOE is in the process of revising Chapter 41 but that it will
not complete that process for a year or more. The HDOE Board?s website (which is different from website)
includes a draft of an amended Chapter 41 which would limit Chapter 41 to complaints against employees and refers
complainants to the CRCO (similar to Policy 305.10 and SP 0211 (see pp. 16-17), but does not provide any information
regarding the status of amendments to Chapter 41.

12 Chapter 19 provides, generally, that the chapter provisions apply to all enrolled students. Subchapter 1 of Chapter 19
indicates that the HAR ?rules for students with disabilities shall apply in the discipline of students who are eligible to
receive special education or other services under those chapters.? HAR 8-19?3. HAR rules applicable to students with
disabilities are contained in Chapter 60 and they afford students with disabilities additional procedural protections when a
change of placement is appropriate for violating Chapter 19. These are consistent with the requirements of Section 504 and
Title II in that they establish that students with disabilities may not be punished or disciplined for behavior that is caused
by or is a manifestation of their disabilities and mandate that schools hold a ?manifestation hearing? before suspending a
student with a disability for more than 10 cumulative days during a school year. Those procedural protections also include
provisions addressing parental notification, interim placements, appeals from manifestation hearings, expedited hearings
and other procedural protections that are consistent with those imposed under Section 504 and Title II.

13 Chapter 19 also has definitions for bullying and cyberbullying which do not mention any of the protected classes.

Page 13 OCR Reference No. 10115003

??Sexual offense? or ?sexual assault? means unwanted touching or grabbing of sexual parts, indecent
exposure, using force to engage in intercourse, oral sex, or other sexual contact, engaging in
intercourse, oral sex, or other sexual contact despite the other person?s clearly expressed refusal or
mental or physical inability to consent.?

The only other de?nition in Chapter 19 that mentions protected classes is the de?nition of harassment
which states, in relevant part:

?Harassment means a student who is harassing, bullying, including cyberbullying, annoying, or
alarming another person by engaging in the following conduct that includes but is not limited
to: . . . (3) Making verbal or non-verbal expressions that causes others to feel uncomfortable,
pressured, threatened, or in danger because of reasons that include but are not limited to the
person?s race, color, national origin, ancestry, sex, including gender identity and expression,
religion, disability, or sexual orientation that creates an intimidating, hostile, or offensive
educational environment, or interferes with the education of a student, or otherwise adversely
affects the educational opportunity of a student or 

While there are two other subparts in the de?nition of harassment that address physical conduct, and
four others also addressing verbal conduct, that might all constitute harassment under federal anti?
discrimination laws, none of these subparts mention protected classes.

Subchapter 2 of Chapter 19 is titled ?Student Misconduct and Discipline During the Regular School
Year.?14 That subchapter lists prohibited student conduct by class of offense, Class A, B, C, and D,
with Class A including the most severe offenses, and Class including the most minor offenses.
?Sexual offenses? is listed as a Class A offense and ?harassment? is a Class offense. Chapter 19
states that ?disciplinary action shall be taken for all class offenses in grades kindergarten through
twelve? and lists 16 disciplinary action options that may be imposed. Several of the disciplinary action
options must be approved by a complex area superintendent (suspensions exceeding ten school days,
disciplinary transfers, dismissals, and extensions of crisis removals) before being imposed. The
remaining disciplinary action options may be approved by the school principal or designee crisis
removals or suspensions of ten school days or less). Chapter 19 states that, in determining disciplinary
action, the principal or designee must consider ?the intention of the offender, the nature and severity of
the offense, the impact of the offense on others including whether the action was committed by an
individual or a group of individuals such as a gang, the age of the offender, and if the offender was a
repeat offender.? Chapter 19 also requires that an intervention to teach a student appropriate behavior
must be instituted when disciplinary action is imposed, and requires a student be counseled in addition
to disciplined. Chapter 19 also provides for ?crisis removals? that allow a principal or designee to
remove ?a student immediately based upon preliminary inquiry and findings that the student?s
conduct presents a clear and immediate threat to the physical safety of self or others or is so extremely
disruptive? that a removal is necessary to preserve educational rights of other students. Chapter 19

 

14 Subchapter 3 of Chapter 19 contains a different procedure for disciplining students during summer school. This
subchapter also lists ?sexual offenses? as a Class A offense, and ?harassment? as a Class offense. For a student who
commits either a Class A or Class offense, the subchapter states that the student will be dismissed from summer school,
without any description of an investigation procedure, except stating that the summer school director will notify and meet
with the accused student and their parent prior to dismissal from summer school and will file a report with the complex area
superintendent, with a copy to the parent. See HAR 

Page 14 - OCR Reference No. 10115003

lists offenses and possible disciplinary action options. Except for crisis removals, Class offenses,
and cutting class and truancy, it does not generally provide guidance on what type of discipline should
be imposed for the classes of offenses, instead providing ?exibility for the principal to make that
determination. 15

Chapter 19 has separate subchapters describing the investigatory procedure when a disciplinary event
is reported by an HDOE employee, and describing the investigatory procedure when the principal
initiates a crisis removal or may suspend a student. In Subchapter 5, Chapter 19 states that any
teacher, of?cial, or other HDOE employee who witnesses a Class A or Class offense, or has
reasonable cause to believe a Class A or Class offense has been or will be committed against a
student, teacher, official, or other employee, shall report the incident to the principal, or

else be subject to potential employment discipline. The principal is required to initially conduct an
investigation to determine Whether the behavior requires a call to the police or ?whether the behavior
can be handled through the school disciplinary procedures.? The principal is required to input the
incident into the HDOE electronic database system within five days of the reported offense.16 The
principal must notify the reporting teacher, official, or other employee of any disciplinary action taken
within five school days after the incident is reported. If the teacher, official, or other employee is
dissatis?ed with the disciplinary action or no disciplinary action has been taken within ten school days
after the report of the incident, he or she may appeal in writing to the complex area superintendent.
Within five school days of receiving the appeal, the complex area superintendent or designee must
notify the appellant in writing of the disciplinary action taken.

Another investigation process is described in Subchapter 2 of Chapter 19, which requires a school
principal to conduct an investigation when the principal reasonably believes that the disciplinary action
will include a suspension or crisis removal. The investigation must be conducted ?immediately? and
be ?thorough? and ?completed as quickly as possible.? If the accused student or the parent denies the
charge, the school principal must present them with the evidence against the student, and give them
an opportunity to provide the accused student?s version of the events. If the disciplinary action is a
suspension of any length, the parent must receive verbal and written notice of the suspension, and the
written notice must include the allegations of the acts committed by the student, the allegations that
were substantiated, a statement of the disciplinary action, and a statement of a date, time, and place
offered by the school administration to meet with the parent. Chapter 19 does not include a
requirement to notify a victim or the victim?s parents of the outcome of the disciplinary investigation.

I Subchapter 2 of Chapter 19 contains additional due process procedures that apply when a principal
recommends imposition of ?serious discipline,? except crisis removals. When the principal makes
such a recommendation, the principal must immediately notify the complex area superintendent and
obtain verbal authorization from the complex area superintendent to initiate disciplinary proceedings.

 

15 Chapter 19 states that students committing class offenses cannot receive ?serious discipline,? which is defined as
dismissals, disciplinary transfers, crisis removals, and suspensions which exceed ten school days, and students cutting class
or truant shall not be suspended or receive serious discipline.

16 According to the HDOE website, the which stands for ?electronic Comprehensive Student Support System,? is
used by HDOB to track students who receive supports and services. It is described as an integrated system and the single
source for documenting student support activity of all types and service levels, including referrals and incidents. The
system has a drop down list for incident data input that includes offenses (including offense classes), witnesses, victims
and suspects. The system is a web-based application that allows secure user access at any time from multiple locations.

Page 15 OCR Reference No. 10115003

Within three school days of receiving authorization from the complex area superintendent, the
principal shall mail a written notice with the HDOE appeal form to the parent. The written notice must
state the disciplinary action and the allegations that were substantiated. The student or parent may
submit an appeal, which must be in writing and received by the complex area superintendent by the
close of business of the seventh school day from the date of the written notice. On appeal, the parent
may present evidence, call and cross-examine witnesses, and be represented by legal counsel. The
student may attend school during the appeal, except extracurricular activities, unless the principal

?nds that the student?s presence at school creates a substantial risk to self or others or disrupts other
students? rights to an education.

The complex area superintendent must schedule an appeal proceeding within ten school days of
receiving the appeal. Written notice of the appeal proceeding date, time, and place must be mailed

to the parent and principal at least 15 calendar days before the appeal proceeding. The appeal must

be conducted by the complex area superintendent or an impartial designee. The procedure provides

a list of standards for appeals, including the following: (1) the appeal is closed to the public unless

the student or parent requests it to be public; (2) the parent and principal have the right to present
evidence, cross?examine witnesses, and submit rebuttal testimony; (3) parent and principal have the
right to legal representation; (4) the complex area superintendent or the impartial designee does not
need to follow the formal rules of evidence; (5) the complex area superintendent or impartial designee
must impartially weigh the evidence; and (6) the appeal shall be recorded or transcribed and the parent
can record or obtain a copy of the HDOE transcript or recording at his or her expense only if requested
for purpose of a court review. The complex area superintendent must make a written decision within
seven school days from the close of the appeal including the actions to be taken and the bases for such
actions, and provide the decision to the parent, attorneys, and the school.

The parent may appeal the complex area superintendent?s decision to the superintendent of education
within seven school days of the complex area superintendent?s written decision. The parent may
request a hearing from the superintendent of education. If no hearing is requested, the superintendent
of education will review the parent?s appeal information and record and issue a ?nal decision. If the
student is excluded from school during the appeal, the superintendent of education shall make her
decision within 21 days of receiving the appeal. Otherwise, upon receipt of the written appeal from
the parent, the entire record from below will be delivered to the superintendent of education within ten
calendar days. Once the superintendent of education has the record, she will review the evidence and
render a decision within 14 days, which will then be hand-delivered or mailed to the parent or his or
her attorney. The parent then has the right to submit written exceptions and request to present
argument to the superintendent of education. This request must be made within five calendar days of
the superintendent of education?s decision. Within two school days, the superintendent of education
will schedule a time and place for the parent to present arguments. ?The date for the presentation of
argument shall be no less than five calendar days and no more than fourteen calendar days from the
date of the notice informing the parent of the speci?c date, time, and place to present their arguments.?
Within 14 calendar days of the date of the presentation of argument or receipt of the parent?s written
exceptions, the superintendent of education must mail a written decision to the parent or his or her
attorney.

Page 16 - OCR Reference No. 10115003

Chapter 19 does not speci?cally address retaliation, except in the de?nition for ??ghting? in
Subchapter 1, which states, in part: ?Fighting includes, but is not limited to: Retaliating
physically for teasing, harassing, threatening, or intimidating behavior; verbally inciting [sic]. . 

In August 2011 and August 2012, HDOE sent several documents to parents, legal guardians, and
students with information about Chapter 19. The documents included a one-page summary of the
procedures set forth in Chapter 19 relating to student?on-student harassment (summary procedure)

and a one?page complaint form (complaint form), along with a copy of Chapter 19. OCR has not

been able to locate any evidence that HDOE directed the summary procedure and complaint form to be
distributed to students and parents in subsequent years, and requests for harassment complaints
from HDOE schools revealed that the complaint form has not been used in HDOE schools. None of
the 29 schools for which OCR reviewed discipline records provided OCR with the complaint form as
the method used to make a complaint about harassment.

Policy 305.10 Procedures Regarding Employee Harassment of Students

identi?ed Policy 305.10 (formerly titled Policy 4211) to OCR in November 2011 as the policy
used when an employee harasses a student. Policy 305.10 prohibits discrimination, including
harassment, by any employee against a student based on various protected classes, including race, sex,
or disability. it further states that ?a student shall not be excluded from participation in, be denied the
bene?ts of, or otherwise be subjected to harassment, bullying, or discrimination under any program,
services, or activity? of HDOE. It lastly states that retaliation against anyone engaging in a protected
activity is prohibited. Protected activity is de?ned under the policy as follows: ?ling a complaint of
harassment, bullying, or discrimination; participating in complaint or investigative proceedings dealing
with harassment, bullying, or discrimination under the policy; inquiring about one?s rights under the
policy; or otherwise opposing acts covered under the policy.

HDOE submitted to OCR a Standard of Practice Document No. 0211 (SP 0211), released March 8,
2008, which is the document implementing Policy 305.10.17 OCR was not able to locate SP 0211 on
website, and HDOE has provided no information indicating that it has released SP 0211 to
students or their parents.18 SP 0211 applies to all HDOE employees and designates principals, vice
principals, complex area superintendents, CRCO specialists and/or director, and other management
personnel as the parties responsible for maintaining a learning environment free of harassment,
bullying, and discrimination. Any principal, vice principal or complex area superintendent who
witnesses or receives a report or reports of harassment, bullying or discrimination is required to
?take immediate and appropriate action reasonably calculated to end the harassment, bullying and/ or
discrimination? by immediately contacting the CRCO to initiate an investigation into complaints
stemming from allegations that fall under the policy.

 

17 SP 0211 still refers to the former Policy 4211, but the language of Policy 305.10 and former Policy 4211 is the same;
only the policy number changed.

18 A Standard of Practice Document (SP) is an ?of?cial guidance? document for HDOE employees. On its website, HDOE
explains that many SPs are interactive documents with links to resources that are located on intranet and
unavailable to the public. The SP series of which SP 0211 is a part is not available on the web page of website
concerning SPs. See 

Page 17 OCR Reference No. 10115003

SP 0211 de?nes bullying as an act that an employee exhibits towards a student that is suf?ciently
severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive educational
environment for the student. The document de?nes cyberbullying as a type of bullying that includes
electronically transmitted acts that an employee has used to exhibit inappropriate conduct toward a
student that is suf?ciently severe, persistent or pervasive that it creates an intimidating, threatening, or
abusive educational environment. Harassment is de?ned as ?unwelcome conduct that is suf?ciently
severe, persistent or pervasive; and limits a student?s ability to participate in or bene?t from an
educational program or activity; or creates a hostile or abusive environment based on the identi?ed
protected classes.?

Employees under SP 0211 have a responsibility to refrain from engaging in any behavior that violates
student rights under Policy 305.10 at school or during school-related functions. Those found to have
violated the policy after investigation may receive disciplinary action deemed appropriate by an
administrator.

Parents or legal guardians of a student, or a student with the knowledge of his or her parent or legal
guardian, may ?le complaints with school administrators, complex area superintendents, or the CRCO
by using Anti-Harassment, Anti?Bullying, and Anti-Discrimination Against Students by
Employees Form. SP 0211 states that complaints not made using the form should also be investigated.
Employees who witness or have knowledge of an incident that falls under Policy 305.10 may also ?le
a complaint by using the form or informing a responsible administrator.

The ?Frequently Asked Questions? (FAQ) section of SP 0211 states that all complaints Will be
forwarded to a CRCO investigator to ?investigate the complaint within a reasonable time period
depending on the complexity of the case.? The investigator will notify the complainant and respondent
when the investigation is concluded and provide a report to ?the decision-maker for appropriate
action.? According to the FAQ, if a violation of the policy is found, the decision-maker should work
with their Personnel Regional Of?cer and State Of?ce administrators to decide on appropriate action.
The FAQ also states that complaints may be ?led with OCR, or any other applicable federal or state
agency.

HDOE also has an ?Anti?Harassment, Anti-Bullying, and Anti-Discrimination Against Students by
Employees Policy Complaint Form? for complaints under Policy 305. 10. Of the 29 schools for which
OCR reviewed discipline data, only one school (Honokaa High School) provided OCR with a copy of
this form used for a student complaint of harassment against an employee.

HDOE publishes an EEO brochure on its website that summarizes the procedures in Policy 305.10,
and references that procedure (see p. 7). As of December 2017, the HDOE website also included a
?Report an Issue? page, including a section on reporting civil rights violations to the CRCO with a
link to the CRCO home page, which includes a link to Policy 305.10 and its complaint form.

Analysis and Conclusion

HDOE submitted several documents in response to request for its grievance procedures for
responding to complaints of harassment based on race, sex and disability. OCR has determined that

Page 18 - OCR Reference No. 101 15003

none of the documents comply with the standards required for grievance procedures under Title VI,
Title IX, Section 504, and Title ll.

Chapter 19

Chapter 19 is a discipline code and does not comply with the requirement under Title VI that any
grievance procedure applicable to harassment must be clear in the types of conduct prohibited in order
for students to know and understand their rights and responsibilities. In its de?nition of ?harassment,?
only subsection (3) addressing ?verbal and non-verbal expressions? references the protected
classi?cations of race, color and national origin. Subsections (1) and (8), addressing physical conduct,
do not reference these protected classes; nor do subsections (2), (4), (5) and (6), all addressing verbal
conduct in other forms than those speci?cally addressed under subsection (3). The omission of any
reference to race, color and national origin in subsections (1), (2), and (8) leaves it unclear
whether they, like subsection (3), speci?cally prohibit conduct based upon race, color and national
origin as required by Title VI.

Regarding Title IX, Chapter 19 does not provide notice to students, families, and third parties of where
complaints may be filed and instead only provides notice of where teachers, of?cials, or other HDOE
employees may ?le complaints. Chapter 19 does not apply to complaints filed by students or on their
behalf alleging sexual harassment carried out by employees or third parties. It does not provide a
complaint process for student Victims and instead only provides a disciplinary process for students
who commit harassment. Chapter 19 allows an accused student and the principal or designee to
present evidence during an appeal, but not the alleged student victim of harassment. As such, the
appeal process does not satisfy the requirement that both parties have the opportunity to present
witnesses and other evidence. Chapter 19 contains time frames for the accused student appeal process.
However, there are no designated time frames speci?ed for the other major stages of the grievance
process for students such as completion of the investigation. Chapter 19 has only a general statement
that discipline investigations should commence ?immediately? and be ?completed as soon as possible.?

Chapter 19 does not require notice of the outcome of the principal?s investigation under Subchapter 2,
except for notice to the accused student?s parents, and does not require notice of the decision by the
complex area superintendent concerning an appeal, except for notice to the accused students? parents,
the attorneys, and the school. The alleged victim of the harassment (unless it is a teacher who reported
the alleged incident under Subchapter 5 of Chapter 19) does not receive notice of the outcome of the
investigation or any appeal. Chapter 19 does not address retaliation except to identify that ?ghting
with someone in retaliation for being harassed is prohibited. Finally, Chapter 19 provides some
assurance that HDOE will take steps to prevent recurrence of any sexual harassment by expressing a
philosophy and intent to maintain a safe school environment.

Regarding Section 504 and Title 11, Chapter 19 does not provide a grievance procedure that
incorporates appropriate due process standards and fails to provide for the prompt and equitable
resolution of disability discrimination complaints, including complaints of disability-based harassment.
As noted above with regard to noncompliance with Title IX, there are many inequitable aspects to
Chapter 19. Chapter 19 only provides for the discipline of a student who commits disability?based
harassment. It does not provide a complaint resolution procedure for a student or parent wanting to
raise concerns about disability-based harassment at a school.

Page 19 - OCR Reference No. 10115003

Accordingly, for all the reasons detailed above, Chapter 19 is not a compliant grievance procedure
under Title VI, Title IX, Section 504, or Title 11.

Policy 305.10/ Standard of Practice Document 0211

Policy 305.10 and its implementing document SP 0211 do not comply with Title VI, Title IX, Section
504, or Title II requirements for a grievance procedure. Regarding Title VI, the policy and practice
documents do not comply with the requirement that any grievance procedure applicable to harassment
must be accessible and clear in order for students to know and understand their rights and
responsibilities. SP 0211 contains information implementing Policy 305.10, including details on the
complaint procedure. However, OCR was unable to locate SP 0211 on website and OCR
has no evidence that HDOE made the policy accessible to students suf?cient to ensure clear notice of
prohibited conduct.

Regarding Title IX, Policy 305.10 and SP 0211 do not set forth procedures addressing complaints
alleging sexual harassment carried out by other students or third parties. Policy 305.10 and SP 0211
apply to allegations against employees only. Because Policy 305.10 does not provide any details
about how the CRCO conducts investigations, and SP 0211 contains only minimal descriptions of a
complaint investigation process, they do not provide for adequate, reliable, and impartial investigations
of complaints, including the opportunity for both parties to present Witnesses and other information.
The policy and the practice document taken together do require that notice of the outcome of an
investigation be provided to the parties, do provide an assurance that schools will take steps to prevent
recurrence of harassment and correct discriminatory effects, and do prohibit retaliation. While SP
0211 does contain the notice of the procedures and description of where complaints can be ?led, OCR
could not ?nd SP 0211 on the web page of website relating to SP documents and could not
?nd SP 0211 on its website generally after searching for the document?s title and related terms. As
such, the policy and practice document do not provide suf?cient notice of the complaint procedures
and where complaints may be ?led.

Regarding Section 504 and Title II, Policy 305.10 and SP 0211 do not provide a grievance procedure
that incorporates appropriate due process standards and fail to provide for the prompt and equitable
resolution of disability discrimination complaints, including complaints of disability harassment. As
noted above with regard to noncompliance with Title IX, there are many inequitable aspects to Policy
305.10 and SP 0211. SP 0211 provides minimal descriptions of its complaint investigation process in
its FAQ section, but does not describe how evidence will be presented or heard, does not state whether
or how the complainant and respondent will be involved in the complaint investigation, and could

not be found on website. Furthermore, neither Policy 305.10 nor SP 0211 provides for a
complaint process for student-on-student harassment complaints. Therefore, Policy 305.10 and SP
0211 do not provide a compliant grievance procedure under Title VI, Title IX, Section 504, or Title II.

Accordingly, none of the procedures used by HDOE are suf?cient to comply with the grievance
procedure requirements under Title VI, Title IX, Section 504 and Title II.

OCR also notes that the survey evidence OCR gathered regarding incidents of harassment at HDOE
schools indicates that the lack of proper grievance procedures for students experiencing harassment
may likely have impacted the educational environment for students. In 14.6% of all responses from

Page 20 - OCR Reference No. 10115003

students who indicated both being harassed and having reported it to school of?cials, the students
indicated that school of?cials took no action in response. Of those students who indicated being
harassed but who indicated they did not report it to school of?cials, nearly two?thirds (5,601, or
61.3%) indicated they did not make a report because they did not believe the school would do
anything in response, that it would make the bullying and harassment worse, or both.

More generally, the survey evidence OCR gathered suggests that Chapter 19, beyond speci?c
shortcomings, has not proven effective as a means of systematically addressing the presence of
bullying and harassment in HDOE schools. In responding to survey, more than 27,000 students
across HDOE, or approximately two out-of ?ve, indicated that they were ?somewhat? or ?very?
concerned about bullying or harassment that had occurred at their current school during the 2014-2015
school year. More than 20,000 students, or about a third, indicated having been personally bullied or
harassed. Of the students who indicated having been harassed, almost two-thirds, or almost 13,000,
indicated they believed that they were harassed because of their race, sex and/or disability. Moreover,
of the students responding to survey, over half reported having personally witnessed bullying
or harassment at school or school-related functions during the 2014?201 5 school year. Of the incidents
witnessed, students reported that over three?fourths were because of the victim?s race, sex, and/or
disability. 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 discipline records OCR reviewed also indicate that Chapter 19?s de?ciencies as a harassment
grievance procedure may have had negative effects for HDOE students. Chapter 19, for example,
contains no requirement that victims of harassment, or their parents, be noti?ed of the outcome of a
principal?s investigation regarding an incident of harassment. Consistent with this, 83.2% of the
incidents for which OCR reviewed records contained no indication that school of?cials took
af?rrnative steps to follow up with victims or their families in the aftermath of addressing a harassment
incident. Chapter 19?s limited reference to preventing retaliation against individuals involved in
incidents of harassment is also likely connected to the absence of any record of efforts on the part
of school of?cials to address the possibility of retaliation in 82.2% of all incidents for which OCR
reviewed records. While ?ndings of fact set forth above are limited to Chapter 19 as written,
the parallels between the de?ciencies with Chapter 19 as a grievance procedure and the concerns
identi?ed with the HDOE discipline records speaks to the likelihood that Chapter 19?s de?ciencies
under Title VI, Title IX, Section 504 and Title II have amounted to real-world impacts on HDOE
students.

The disparity between the number of student?on?student incidents of harassment that occurred during
the 2014-2015 school year at the 29 schools for which OCR reviewed discipline records (113) and the
number of student-on-student incidents of harassment that students, in responding to survey,
indicated they reported to school of?cials at the same schools during the same school year (1,284)
also suggests that Chapter 19 has proven inadequate to fully address incidents of harassment in HDOE
schools. The evidence gathered by OCR strongly suggests that failure to adopt and publish
a grievance procedure that is compliant with Title VI, Title IX, Section 504 and Title 11, is being
re?ected in the experience of HDOE students subjected to incidents of harassment by their peers.

Page 21 - OCR Reference No. 10115003
V. CONCLUSION

HDOE has entered into the enclosed Resolution Agreement (Agreement) to address the compliance
issues identified in this matter. Under the Agreement, HDOB has, among other things, agreed to:

a a requirement that designated compliance coordinators have expert knowledge of
Title IX and Section 504/Title II grievance procedures and oversee the handling of all
complaints of sex and disability discrimination within all of programs and activities.
The coordinator(s) will be responsible for coordinating efforts to comply with and
carry out its Title IX and Section 504/Title II responsibilities, will retain oversight and
responsibility for any deputy coordinators designated to assist him or her, will oversee the
provision of initial and ongoing training of any deputy coordinators, and will retain oversight
and responsibility for providing information to students and employees regarding their Title IX
and Section 504/Title II rights and responsibilities;

?3 revise all relevant policies, procedures, regulatory web pages, and publications to include the
title, of?ce address, telephone number, and e-mail address of the individual(s) designated to
coordinate its efforts to comply with the regulations enforced by 

a ensure that its Notice of Nondiscrimination is disseminated in each announcement, bulletin,
catalog, or application form which it makes available to students, parents, employees,
applicants for employment, and any or all unions or professional organizations holding
collective bargaining or professional agreements with 

- create and disseminate grievance procedures that contain certain minimum agreed-upon
provisions, to ensure that it provides for the prompt and equitable resolution of complaints
of harassment based on race, sex, and disability; and to review any other policies, procedures,
state laws or regulations that may apply to harassment of students based on race, sex and
disability, to ensure consistency with its newly developed procedures;

a provide training to all employees, contractors and volunteers responsible for recognizing and
reporting incidents of race, sex, and disability discrimination (including but not limited to,
teachers, administrators, counselors, athletic coaches, transportation staff and
contractors, student resource officers and health personnel); and

0 develop a plan for monitoring future compliance with Title VI, Title IX, Section 504 and
Title II to ensure that the policies, procedures, and practices developed pursuant to this
Agreement are being consistently and effectively implemented in all HDOE schools. The
plan will include community input regarding the effectiveness of responses to
incidents of racial, sexual, and disability harassment in HDOE schools and a method to assess
the effectiveness of responses to such incidents through, e. the review of school
records, collecting information from students and staff through school climate surveys and
creating or revising a record?keeping system that allows HDOE to effectively monitor school
responses to harassment incidents.

Page 22 - OCR Reference No. 10115003

Based on the commitments made in the enclosed Agreement, OCR is closing the investigation of this
compliance review as of the date of this letter. When fully implemented, the Agreement is intended
to address the ?ndings and compliance issues identi?ed in this investigation. OCR will monitor the
implementation of the Agreement until HDOE is in compliance with the statute(s) and regulations at
issue in the case. determination in this matter should not be interpreted to address 
compliance with any other regulatory provision or to address'any issues other than those addressed in
this letter.

This letter sets forth determination in this OCR compliance review. This letter is not a formal
statement of OCR policy and should not be relied upon, cited, or construed as such. formal
policy statements are approved by a duly authorized OCR of?cial and made available to the public.
Please be advised that HDOE may not harass, coerce, intimidate, retaliate, or discriminate against any
individual because he or she has ?led a complaint or participated in the complaint resolution process.

Under the Freedom of Information Act, it may be necessary to release this document and related
correspondence and records upon request. In the event that OCR receives such a request, it will seek
to protect, to the extent provided by the law, personal information that, if released, could reasonably
be expected to constitute an unwarranted invasion of privacy.

OCR appreciates the cooperation of HDOE that has been afforded to OCR throughout 
investigation and in resolving this case, especially the cooperation received from the Director and staff
of the HDOE CRCO. If you have any questions regarding this letter, please contact Timothy L. Sell 
at (206) 607? 1639 or via e?mail at timothy. sell@ed. gov or David Kauffman at (206) 607- 1603 or via
e? ~mai1 at david. kauffman@ed. gov

Sincerely,

Linda Mangel
Regional Director

Enclosure

RESOLUTION AGREEMENT
Hawaii Department of Education
OCR Docket No. 10?11?5003

To resolve the above-referenced compliance review conducted by the US. Department of
Education, Office for Civil Rights (OCR), the Hawaii Department of Education (HDOE) agrees
to the terms of this Agreement (Agreement). OCR conducted the compliance review under the
authority of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq. (Title VI), and its
implementing regulation at 34 C.F.R. Part 100; Title IX of the Education Amendments of 1972,
20 U.S.C. 1681 et seq. (Title IX), and its implementing regulation at 34 C.F.R. Part 106;
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as amended (Section 504), and
its implementing regulation at 34 CPR. Part 104; and Title II of the Americans with Disabilities
Act of 1990, 42 U.S.C. 12131 et seq. (Title II), and its implementing regulation at 28 C.F.R.
Part 35.

CONIPLIAN CE COORDIN S)

. HDOE agrees that the responsibilities of its Title IX and its Section 504/Title ll coordinator(s)
are essential to its commitment to compliance with Title IX, Section 504 and Title II. HDOE
will designate one or more individuals to coordinate its efforts to comply with and carry out its
responsibilities under the regulations enforced by including the prompt and equitable
resolution of complaints of discrimination and harassment ?led by students, parents, employees,
and other third parties. HDOE will require its Title IX and Section 504/Title coordinator(s) to
have the following responsibilities and mandatory training requirements:

1. The coordinator(s) will have expert knowledge of Title IX and Section 504/Title II
grievance procedures and will oversee the handling of all complaints of race, color, national
origin discrimination,1 sex discrimination, including sexual harassment, and disability
discrimination within all of programs and activities. The coordinator(s) will be
responsible for coordinating efforts to comply with and carry out its Title IX and
Section 504/Title responsibilities. Those responsibilities include but are not limited to
ensuring that HDOE does the following:

a. responds effectively and equitably to all reported incidents of harassment about
which it knows or reasonably should have known;

b. takes immediate and appropriate steps to investigate or otherwise determine what
occurred; .

0. considers whether interim measures are appropriate in order to individually address the
needs of the reporting party, the responding party, or any other party with respect to the
reported incident of harassment;

d. takes effective steps reasonably calculated to end any harassment, eliminate a hostile
environment if one has been created and prevent it from recurring again;

 

Hereinafter, references only to ?race? or ?ramal harassment? include discrimination or harassment based on color
and national origin.

Resolution Agreement OCR Ref. No. 10115003

e. considers whether a hostile environment, if created, has affected others beyond the
parties to the underlying incident and determine whether a broader response is required to
effectively respond;

f. remedies the discriminatory effects on students, employees and others, as appropriate;
and

g. takes measures to ensure that the steps taken to end the harassment, prevent its recurrence
and eliminate a hostile environment are in fact effective as implemented, and, if the steps
are not meeting the stated goals, then evaluates whether additional steps are needed.

2. The coordinator(s) will take such actions as are necessary to ensure that HDOE is 
and equitably responding to all complaints of race, sex, and disability discrimination,
including harassment, by taking measures such as holding meetings and/ or trainings (by
video or in person) as necessary with all individuals assigned to respond to and investigate
complaints of race, sex, and disability discrimination at the statewide, complex area, and
school levels.

3. The coordinator(s) will retain oversight and responsibility for any deputy coordinators
designated to assist him or her. For any deputy coordinators designated to assist the
coordinator(s), the coordinator(s) will ensure that the deputy coordinators are properly
performing their designated functions with respect to Title IX, and Section 504/Title H, by
taking measures such as developing position descriptions describing the roles and
responsibilities of each deputy coordinator that delineate the scope of each deputy
coordinator?s duties, and overseeing the job performance of any deputy coordinators with
respect to the requirements of Title IX and Section 504/Title II.

4. The coordinator(s) will oversee the provision of initial and ongoing training of any deputy
coordinators. The coordinator(s) will also have suf?cient experience or training in Title VI,
Title IX, Section 504 and Title II. The training content will include the substantive
requirements of Title VI, Title IX and Section 504/Title II and how to identify reports that
allege race, sex, or disability discrimination, including harassment, how to conduct and
document adequate, prompt, reliable, and impartial investigations (including conducting
interviews in a fair, non-biased, and objective manner), and intervention and prevention
strategies.

5. The coordinator(s) will retain oversight and responsibility for providing information to
students and employees regarding their Title VI, Title IX, and Section 504/Title rights and
responsibilities, including but not limited to the following: the resources available to victims
of race, sex, and disability discrimination, formal and informal resolution processes, and the
availability of interim measures.

6. The coordinator(s) will not have other job responsibilities that create a conflict of interest
with regard to their duties and responsibilities under Title IX and Section 504/Title ll.

REPORTING REQUIREMENT: By April 1, 2018, HDOE will provide a report to OCR
containing documentation of its compliance with section LA, including, but not limited to the
following: 1) the identity and qualifications of the individual(s) designated to coordinate its

II.



Resolution Agreement OCR Ref. No. 101 15003

efforts to comply with and carry out its responsibilities under the regulations enforced by 
2) the identify and quali?cations of any deputy coordinators; 3) the speci?c responsibilities of
the coordinator(s) and any deputy coordinator(s), including the issue areas and geographical
areas for which the coordinator(s) and deputy coordinators will be responsible; and 4) if HDOE
identi?es more than one coordinator or deputy coordinator, the report will speci?cally detail
which coordinators or deputy coordinators are responsible for coordinating responses to
complaints and incidents of harassment, both against students and employees, based on race, sex,
and disability.

. HDOE will revise all relevant policies, procedures, regulatory web pages, and publications to

include the title, of?ce address, telephone number, and e-mail address of the individual(s)
designated to coordinate itsefforts to comply with the regulations enforced by OCR, including
district?wide, complex area, and school websites and publications. HDOE will ensure that
contact information for the coordinator(s) is accurate, consistent, and complete in all such
materials, and will establish a process to ensure that, when there are changes to the materials,
they are updated within 30 calendar days of any change. For web pages, access to the relevant
information should be provided within one click from or a school?s home web page and
any other relevant web pages.

REPORTING REQUIREMENT: Within 60 days of providing OCR a report as required by
section LA, HDOE will provide documentation to OCR demonstrating its compliance with
section LB. Inserts may be used pending reprinting of the materials and publications.

DISSEMINATION OF NOTICE OF NON-DISCRIMINATION

HDOE will ensure that its Notice of Non?Discrimination is disseminated in each announcement,
bulletin, catalog, or application form which it makes available to students, parents, employees,
applicants for employment, and any or all unions or professional organizations holding collective
bargaining or professional agreements with HDOE. The Notice of Non-Discrimination will also
be posted prominently on all HDOE, complex area, and school websites and at various locations
throughout the schools; as well as in electronic and printed publications of general distribution
that provide information to students, employees, and applicants about the schools? services and
policies.

REPORTING REQUIREMENT: By July 1, 2018, HDOE will provide documentation to OCR
demonstrating its compliance with section II, including a copy of revised materials and
publications containing the Notice of Non-Discrimination and/or a link to the on-line version of
the materials and publications. Inserts may be used pending reprinting of the materials and
publications.

GRIEVANCE PROCEDURES

. HDOE will create grievance procedures (Procedures) to ensure that HDOE provides for the

prompt and equitable resolution of complaints of harassment based on race, sex, and disability.
As part of and in conjunction with the development of Procedures under this action item, HDOE
will review any other policies, procedures, state laws or regulations that may apply to harassment

Resolution Agreement OCR Ref. No. 10115003

of students based on race, sex and disability, 2 to ensure consistency with the Procedures
developed under this section, and to ensure that the Procedures include appropriate cross-
references and are easily understood.

1. The Procedures will include, at a minimum, the following:

a. notice that the Procedures apply to complaints alleging all forms of race, sex, and
disability discrimination (including racial, sexual, and disability harassment) carried out
by employees, students, or third parties;

b. a clear and easily understood explanation of how and where complaints may be ?led,
including the title, of?ce address, e-mail address, and telephone number of the
individual(s) with whom to ?le a complaint;

c. assurance that HDOE will take immediate and appropriate steps to stop any harassment,
prevent recurrence and remedy discriminatory effects on the complainant and others, if
appropriate;

d. provisions for adequate, reliable and impartial investigation of complaints, including the
opportunity for the complainant and alleged perpetrator to provide witnesses and
evidence;

6. reasonably prompt time frames for the major stages of the investigative process,
including any sanctions process and appeal, as well as the process for extending
timelines, that apply equally to the parties to the complaint;

f. a provision requiring concurrent written noti?cation to both/all parties of the outcome of
the complaint investigation and any appeals as well as noti?cation to the complainant of
all remedies provided and any other actions taken by the HDOE that directly relate to the
complainant, and noti?cation to the respondent of any actions taken by the HDOE that
directly relate to the respondent;

g. appropriate de?nitions and examples of what types of actions may constitute racial,
sexual, and disability harassment;

h. provisions clarifying that when there is a complaint of alleged racial, sexual, or disability
harassment of a student made against an employee, the investigation will be completed
even if the employee resigns before it is ?nished and will include a determination of any
potential remedies for complainant(s) and any other students or employees affected by
the alleged harassment;

i. provisions clarifying that any informal resolution mechanism set forth in the Procedures
will only be used if the parties voluntarily agree to their use; that the parties should not be
required to resolve the problem directly with each other; and that the parties must be
noti?ed that they have the right to end the informal process at any time and begin the
formal stage of the complaint process;

j. provisions ensuring that students are noti?ed of the availability of interim measures to
protect students during the investigation of possible racial, sexual, or disability
harassment (such as enforced no contact orders and changes in class schedules) and how
interim measures may be requested; and that the coordinator(s) will be responsible for
ensuring that the schools implement appropriate interim measures;

 

2 review will include, but not be limited to, the following: Hawaii State Board of Education Policy 305.10;
Hawaii Administrative Rules (HAR), Title 8, Chapter 19; HAR Title 8, Chapter 41; Hawaii Revised Statutes, Title
18, Chapter 302A, 1001; and Hawaii HB 688 (now Act 214).

4

Resolution Agreement OCR Ref. No. 101 15003

k. notice of potential remedies for parties, including but not limited to adjustment of
academic schedules and coursework, and the provision of academic, medical, and
support services; and

l. a statement that retaliation and retaliatory harassment is prohibited against any individual
who ?les a race, sex, or disability discrimination complaint with HDOE or participates in
a complaint investigation in any way, as well as a clear explanation of how retaliation or
retaliatory harassment can be reported to HDOE.

2. HDOE will ensure that its Procedures are disseminated in electronic and printed publications

of general distribution that provide information about HDOE schools? services and policies
to students, employees, applicants for employment, and any or all unions and professional
organizations holding collective bargaining or professional agreements with HDOE. The
Procedures will also be posted prominently on all HDOE, complex area, and school websites.

REPORTING REQUIREMENTS:

1.

By September 1, 2018, HDOE will provide to OCR a draft of the proposed Procedures
developed pursuant to section HI.A.1. If OCR requires changes to the Procedures, HDOE
will re-submit the procedures to OCR for review and approval Within 30 days of receiving
notice of the revisions required by OCR. OCR and HDOE will follow the same process until
OCR approves the Procedures.

Within 30 days of written noti?cation from OCR of its approval of the Procedures, HDOE
will provide documentation to OCR?demonstrating that HDOE has disseminated the
Procedures in accordance with section including written notice to all students and
employees regarding the Procedures together with information on how to obtain a copy of the
Procedures.

. HDOE will provide training to all employees, contractors and volunteers responsible for
recognizing and reporting incidents of race, sex, and disability discrimination (including but not
limited to, teachers, administrators, counselors, athletic coaches, transportation
staff and contractors, student resource of?cers and health personnel). The training will cover, at
a minimum, the following: the Procedures; the obligation to report race, sex, and disability
discrimination; and how to recognize and identify race, sex, and disability discrimination.

REPORTING REQUIREMENTS:

1.

Within 120 days of written noti?cation from OCR of its approval of the Procedures, HDOE
will submit for review proposed training materials consistent with the requirements of
section HIB. If OCR requires changes to the proposed training materials, HDOE will re-
submit the training materials to OCR for review and approval within 30 days of receiving
notice of the revisions required by OCR. OCR and HDOE will follow the same process until
OCR approves the proposed training materials.

Resolution Agreement OCR Ref. No. 10115003

2. Within 365 days of written noti?cation from OCR of its approval of the training materials,
HDOE will provide documentation to OCR demonstrating that HDOE has delivered the
training as required by section 111B. The documentation will include, at a minimum, the
dates of the training, the names and titles of the trainer(s), a copy of any materials used or .
distributed during the training, and a sign?in sheet with the names and titles of the individuals
who attended the training.

. HDOE will ensure students are aware, on an age?appropriate basis, of the Procedures, including
how, where, and to whom to report a complaint of harassment regarding their race, sex, or
disability, and of their rights and responsibilities with respect to making a report or filing a
grievance with respect to allegations of racial, sexual, or disability harassment.

REPORTING REQUIREMENTS:

1. Within 120 days of written noti?cation from OCR of its approval of the Procedures, HDOE
will submit its plan to make students aware of the Procedures consistent with section If
OCR requires changes to the plan, HDOE will re?submit the plan to OCR for review and
approval within 30 days of receiving notice of the revisions required by OCR. OCR and
HDOE will follow the same process until OCR approves the plan.

2. Within 180 days of receiving approval of the plan to make students aware of the
Procedures, HDOE will provide OCR with a report documenting that it completed
implementation of the plan.

ONGOING CONIPLIANCE

. HDOE will develop a plan for monitoring future compliance with Title VI, Title IX, Section 504
and Title II to ensure that the policies, procedures, and practices developed pursuant to this
Agreement are being consistently and effectively implemented in all HDOE schools. The plan
should include measures such as the following:

1. Seeking community input regarding the effectiveness of responses to incidents of
racial, sexual, and disability harassment in HDOE schools. For example, HDOE could seek
input from the community by providing an effective method for public comment or by
establishing a task force with community members having a stake in the effectiveness of
responses to incidents of racial, sexual, and disability harassment in HDOE schools.

2. Creating a method to assess the effectiveness of responses to incidents of racial,
sexual, and disability harassment. For example, HDOE could assess this information by
reviewing school records demonstrating a school?s response to harassment incidents; by
collecting information from students and staff through school climate surveys that assess the
effectiveness of responses; and creating or revising a record?keeping system that
allows HDOE to effectively monitor school responses to harassment incidents.

REPORTING REQUIREMENT: ByJuly l, 2018, HDOE will provide to OCR a proposed plan
to OCR pursuant to section IVA. The plan will include proposed timelines for its

Resolution Agreement - OCR Ref. No. 101 15003

implementation, with ?nal implementation not to exceed one calendar year. If OCR requires
changes to the proposed plan, HDOE will re?submit the plan to OCR for review and approval
within 30 days of receiving notice of the revisions required by OCR. OCR and HDOE will
follow the same process until OCR approves the plan.

. HDOE will implement the plan.

REPORTING REQUIREMENT: Within 30 days of receiving written noti?cation from OCR
of its approval of the plan, HDOE will provide documentation to OCR demonstrating the steps it
has taken to implement the plan as of that date. HDOE will provide additional reports to OCR
every six months updating OCR on its implementation of the plan, until HDOE completes
implementation of the plan.

GENERAL MONITORING PRINCIPLES

HDOE understands that by signing this Agreement, it agrees to provide data and other
information in a timely manner. Further, HDOE understands that during the monitoring of this
Agreement, OCR may visit HDOE, interview staff and students, and request such additional
reports or data as are necessary for OCR to determine whether HDOE has ful?lled the terms of
this Agreement and is in compliance with the regulations implementing Title VI, at 34 C.F.R. 
100.3; Title IX, at 34 C.F.R. 1068, 106.9, and 106.31; Section 504, at 34 C.F.R. 104.4,
104.7, and 104.8; and Title II, at 28 C.F.R. 35.106, 35.107, and 35.130, which were at issue in
this compliance review. Upon completion of the obligations under this Agreement, OCR shall
close this case. HDOE understands and acknowledges that OCR may initiate administrative
enforcement or judicial proceedings to enforce the specific terms and obligations of this
Agreement. Before initiating administrative enforcement (34 C.F.R. 100.9, 100.10), or
judicial proceedings to enforce this Agreement, OCR shall give HDOE written notice of the
alleged breach and a minimum of 60 calendar days to cure the alleged breach.

This Agreement will become effective immediately upon the signature of representative
below.

 

 

Signed:

December 20, 2017
Christina Kishimoto Date
Superintendent

Hawaii State Department of Education