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ERIC A. SEITZ
ATTORNEY AT LAW
A LAW CORPORATION
ERIC A. SEITZ
GINA SZETO-WONG
JONATHAN M.F. LOO
820 Mililani Street, Suite 714
Honolulu, Hawai`i 96813
Telephone: (808) 533-7434
Facsimile: (808) 545-3608

1412
10515
10874

Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

MARCHET DENISE FULLUM,
on behalf of minor child J.F.;
ANNA GROVE, on behalf of
minor child T.G.; GERALD M
and SANDEE NIBLOCK, on
behalf of minor child K.N.,
individually and on behalf of all
others similarly situated,
Plaintiffs,
vs.
DR. CHRISTINA KISHIMOTO,
Superintendent of the State of
Hawai`i Department of Education;
ELYNNE E. CHUNG, Principal
of Mililani Middle School;
DR. BERNADETTE TYRELL,
Principal of Castle High School;
BEVERLY STANICH, Principal

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Civil No. 18-00332
CLASS ACTION COMPLAINT
FOR DAMAGES, INJUNCTIVE,
AND DECLARATORY RELIEF;
EXHIBIT A; DEMAND FOR
JURY TRIAL

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of Wailuku Elementary School;
ROBERT DAVIS, Central Oahu
Complex Area Superintendent;
and DOE DEFENDANTS 1-20,

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Defendants.
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______________________________ )
COMPLAINT FOR DAMAGES
Plaintiffs MARCHET DENISE FULLUM, on behalf of minor child
J.F.; ANNA GROVE, on behalf of minor child T.G.; GERALD M. and SANDEE
J.C. NIBLOCK, on behalf of minor child K.N. (collectively the “Plaintiffs”), in
their individual and representative capacities and on behalf of the class of all other
persons similarly situated, by and through their undersigned attorneys, allege as
follows:
INTRODUCTION
1.

This is a civil action seeking damages, injunctive, and declaratory

relief from the Defendants: DR. CHRISTINA KISHIMOTO, individually and in
her official capacity as Superintendent of the State of Hawai`i Department of
Education (“Department of Education” or the “Department”); ELYNNE E.
CHUNG, individually and in her official capacity as Principal of Mililani Middle
School; DR. BERNADETTE TYRELL, individually and in her official capacity as
President of Castle High School; BEVERLY STANICH, individually and in her
official capacity as Principal of Wailuku Elementary School; ROBERT DAVIS,
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individually and in his official capacity as Central Oahu Complex Area
Superintendent; and DOE DEFENDANTS 1-20, whose true names and identities
are not yet known to the Plaintiffs (collectively the “Defendants”). Plaintiffs also
seek appointment of a Special Master to manage the Department of Education.
2.

School safety is at the forefront of national concern. In the current

climate of school shootings and rising mental health issues among teens the
schools more than any other institution must strive to remain a place where
children can safely interact with their peers and parents can confidently rely on the
school staff and administration to maintain that environment.
3.

This action arises from the Defendants’ deliberate and ongoing failure

to satisfy their obligation to provide for the basic safety and well-being of students
throughout the state and from the Department’s grossly inadequate policies,
procedures, and practices for responding to and preventing student harassment and
bullying.
4.

Hawai`i is not immune to national trends. Nearly 40% of Hawai`i’s

students report feeling unsafe at school because of bullying or harassment while
over 60% agree that bullying is a problem. Those numbers are not surprising given
that approximately one third of all Hawai`i students have themselves been victims
of bullying or harassment while at school.

The negative impacts are well

documented, ranging from long-term mental health issues and relationship
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struggles to substance use and conduct disorders, and even mere observation of the
behavior has lasting harmful effects.
5.

As the agency overseeing Hawai`i’s public schools, the Department of

Education is responsible for creating the policies, procedures, and practices to be
implemented at every school and for providing the necessary education, training,
and supervision to its staff members. At a minimum, the Department failed to
meet baseline federal standards as evidenced by the Office for Civil Rights
(“OCR”) Compliance Review findings in January of 2018 (hereinafter “OCR
Compliance Review”), attached hereto and incorporated herein as Exhibit A.
Those findings concluded the Hawai`i Department of Education is not in
compliance with numerous federal regulations governing the response to
harassment based on race, color, national origin, sex, or disability. On a deeper
level, the Department failed to adhere to even the basic expectations of parents and
students attending public schools by neglecting its responsibility as policymaker,
and by the blatant and repeated failure to protect victims of bullying and
harassment.
6.

The continuing practice of the Defendants and their deliberate

indifference towards victims of bullying and harassment harms all of Hawai`i’s
students by systemically supporting the behavior, and needlessly puts the entire
student population at risk of significant and irreparable damage.
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JURISDICTION and VENUE
7.

This Court has original jurisdiction to hear this matter pursuant to 28

U.S.C. Sections 1331 and 1343, inter alia. Any and all state law claims contained
herein are part of the same case or controversy giving rise to the federal law claims
and therefore fall within the Court’s supplemental jurisdiction pursuant to 28
U.S.C. Section 1367.
8.

Venue is proper in the United States District Court for the District of

Hawai`i pursuant to 28 U.S.C. Section 1391 as all Defendants to the litigation
reside in the state of Hawai`i, and all actions and/or omissions giving rise to the
claim occurred and continue to occur in the state of Hawai`i.
PARTIES
9.

Plaintiff MARCHET DENISE FULLUM is and has been a resident of

the County of Honolulu, State of Hawai`i, at all times pertinent hereto.
10.

Plaintiff ANNA GROVE is and has been a resident of the County of

Maui, State of Hawai`i, at all times pertinent hereto.
11.

Plaintiffs GERALD M. and SANDEE J.C. NIBLOCK are and have

been residents of the County of Honolulu, State of Hawai`i, at all times pertinent
hereto.
12.

Defendant DR. CHRISTINA KISHIMOTO is and has been a resident

of the State of Hawai`i at all times pertinent hereto. Defendant KISHIMOTO is
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sued herein individually and in her official capacity as Superintendent of the State
of Hawai`i Department of Education.
13.

Defendant ELYNNE E. CHUNG is and has been a resident of the

State of Hawai`i at all times pertinent hereto. Defendant Chung is sued herein
individually and in her official capacity as Principal of Mililani Middle School.
14.

Defendant DR. BERNADETTE TYRELL is and has been a resident

of the State of Hawai`i at all times pertinent hereto. Defendant TYRELL is sued
herein individually and in her official capacity as Principal of Castle High School.
15.

Defendant BEVERLY STANICH is and has been a resident of the

State of Hawai`i at all times pertinent hereto. Defendant STANICH is sued herein
individually and in her official capacity as President of Wailuku Elementary
School.
16.

Defendant ROBERT DAVIS is and has been a resident of the State of

Hawai`i at all times pertinent hereto.

Defendant DAVIS is sued herein

individually and in his official capacity as Complex Area Superintendent of the
Oahu Central District, Leilehua-Mililani-Waialua.
17.

DOE DEFENDANTS 1-20 (hereinafter “Doe Defendants”) are sued

under fictitious names for the reason that their true names and capacities remain at
present unknown to the Plaintiffs except that they are connected in some manner
with the named Defendants as agents, servants, employees, representatives,
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contractors, assignees, and licensees and/or in some manner presently unknown to
the Plaintiffs were engaged in the activities alleged herein and/or proximately
caused the injuries or damages complained of by the Plaintiffs. The identities of
the DOE DEFENDANTS will be included in Plaintiffs’ complaint at such times as
their true names and capacities become known. The DOE DEFENDANTS are
sued both in their individual and in their official capacities.
CLASS ALLEGATIONS
18.

Plaintiffs bring this action in their individual capacities and in their

representative capacities on behalf of all others similarly situated pursuant to Fed.
R. Civ. P. Rule 23. This action satisfies all requirements of Rule 23: numerosity,
commonality, typicality, fair and adequate representation, and predominance and
superiority.
19.

The proposed class members consist of:
All students who are attending public school in
Hawai`i, or who attended public school in Hawai`i
within the applicable statute of limitations period
preceding the filing of this action, and who have been
personally bullied or harassed at school, on the way to
or from school, or at a school-sponsored off-campus
function (the “Class”).

20.

The proposed definition of the Class may be amended by the Plaintiffs

prior to certification by the Court if such amendment is deemed necessary or
appropriate, including the addition or removal of any subclasses.
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A. Class Action Requirements
21.

The proposed members of the Plaintiffs’ Class are so numerous that

joinder of all the members is impracticable. The Class consists of thousands of
students attending public school in Hawai`i who have been personally subjected to
bullying and harassment. The OCR Compliance Review findings indicate more
than 20,000 students during the 2014-2015 school year alone fit within the
definition of the Class.

The Department of Education has readily obtainable

records detailing complaints of harassment or bullying and the resulting
disciplinary action, thus making practical the identification and notification of
potential class members.
22.

There are significant questions of law and fact in this case that are

common to the Class as a whole, and central to resolution of the core issues in this
matter.

The nature and scope of the Class claims expose the gravity of the

Defendants’ reckless disregard for the safety and well-being of students and the
full extent of the damage. Moreover, a class action proceeding will best equip the
Court with the information necessary to resolve the fundamental problems within
the Department.

Class litigation is the superior method to manage such

comprehensive claims and will afford a large number of similarly harmed persons
the ability to pursue this action in circumstances where individual claims are
minimal, thus promoting economic efficiency and promoting a fair and judicially
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efficient resolution of the issues. Without such litigation Defendants may stay the
current course of deliberate inaction and neglect of responsibility, bringing about
continued and intolerable harm to students.
23.

Some questions of law and fact that are common to the Class include

whether Defendants:
a.

Were negligent in failing to enact and/or enforce acceptable
policies, procedures, and regulations for reporting and
preventing student harassment and bullying;

b.

Failed to report or investigate student and parent complaints of
harassment and bullying, or otherwise take appropriate remedial
action to prevent and/or address harassment and bullying;

c.

Failed to enact and/or enforce acceptable policies, procedures,
and regulations to ensure uniformity of punishment for
offending students;

d.

Failed to enact and/or enforce acceptable policies, procedures,
and regulations detailing the investigative steps required of
school officials in reaching a conclusion involving harassment
and bullying;

e.

Failed to exercise reasonable care or otherwise take
reasonable precautions to prevent retaliation against
victims of harassment and bullying;

f.

Failed to provide any policies, procedures, or regulations to
protect victims during the pendency of an investigation of
harassment or bullying;

g.

Minimized and misrepresented student conduct involving
incidents of harassment and bullying;

h.

Neglected to inform victims and their families of the outcome
following complaints of harassment or bullying, or to enact
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and/or enforce policies, procedures, or regulations providing for
the same;
i.

Failed to afford victims of harassment and bullying adequate
due process by allowing only the accused to present evidence
and testimony on appeal from a disciplinary decision.

j.

Violated federal requirements under Title VI of the Civil Rights
Act of 1964 (hereinafter “Title VI”), Title IX of the Education
Amendments of 1972 (hereinafter “Title IX”), Section 504 of
the Rehabilitation Act of 1973 (hereinafter “Section 504”),
and Title II of the Americans With Disabilities Act of 1990
(hereinafter “Title II”), inter
alia, by failing to adopt
an
effective grievance
procedure, failing
to
propound
and disseminate anti- harassment and non-discrimination
information, and failing to designate a coordinator and notify
students and employees of the coordinator’s name and contact
information;

k.

Misused federal funds which were accepted and expended upon
the premise that the Department was in compliance with all
applicable federal laws and regulations; and

l.

Failed to provide employees with the proper education,
training, and oversight to appropriately respond to complaints
of bullying and harassment.

24.

The questions of law and fact are common questions which are

capable of class-wide resolution. The means by which individual Class members
have been victimized are varied, but central to every incident is the Defendants’
failure to provide for the safety and well-being of students. Judicial intervention is
necessary to spur rehabilitation of the grievance process and the Department’s
enactment and enforcement of effective policies and procedures, thus driving the
resolution of this litigation.
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25.
the Class.

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The claims of the representative Plaintiffs are typical of the claims of
The representatives attended public schools in Hawai`i and were

personally subjected to bullying and harassment at school, on the way to or from
school, or at a school-sponsored off-campus function.

The claims of the

representatives are closely related to those of the absent Class members in that
Defendants failed to provide for the safety and well-being of all students who are
or were victims of harassment or bullying.

Because the claims of the

representatives are typical of the Class as a whole, the absent Class members will
be protected in a manner that is both economic and efficient.
26.

The representative parties will fairly and adequately protect the

interests of the Class. Plaintiffs have suffered adverse consequences as a direct
result of the Defendants’ inaction when faced with legitimate and repeated
complaints of harassment and bullying, and are committed to vigorously pursuing
all available legal remedies. All Class representatives have a strong desire to see
that corrective action is taken in an effort to prevent future harm to their children,
and the children of others. Similarly, Plaintiffs’ counsel has an extensive history as
one of Hawai`i’s leading civil rights litigation firms. Counsel has always been
firmly resolved to protecting the rights and interests of clients, and will zealously
pursue this matter on behalf of the Class. Neither counsel nor the representative
Plaintiffs have any conflicts of interest with other class members that would
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prevent or interfere in any way with counsel’s representation or the claims asserted
and relief sought herein.
27.

The

Defendants,

having

been

presented

with

innumerable

opportunities to protect the student population and prevent systemic bullying and
harassment, have refused to act on behalf of the named Class. Such inaction
applies generally to the entire Class, and injunctive relief and/or declaratory relief
are the appropriate means to protect the Class as a whole.
28.

The questions of law and fact regarding the Defendants’ repeated and

deliberate indifference towards the safety and well-being of students are central to
the Plaintiffs’ Complaint, and are the predominant questions driving this litigation.
The differing factual claims of individual Class members and the variety of
damages suffered are not a roadblock to Class certification when the claims central
to all Class members predominate, and a Class-wide judicial solution is not only
practical, but remains the superior method for a fair and efficient resolution of the
Plaintiffs’ claims. The primary interest of Class members is to see change in the
Defendants’ policies, procedures, and practices, and there is little interest to
individually control separate actions.

Moreover, maintaining class status is

preferable for achieving the desired results, and will not present any exceptional
difficulties.

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COMMON FACTUAL ALLEGATIONS
29.

The State of Hawai`i Department of Education is responsible for

oversight of Hawai`i’s 256 public schools.

According to its website, the

Department’s mission is to “serve our community by developing the academic
achievement, character and social-emotional well-being of our students to the
fullest potential.”
30.

Within the Department, the Civil Rights Compliance Office (the

“CRCO”) is responsible for overall compliance with State and Federal rules and
policies.
31.

As part of its responsibilities, the Department has an obligation to

maintain a safe environment at all 256 public schools within its control, during
transportation to and from school, and during any school-sponsored off-campus
functions.
32.

A necessary component to student safety is the development,

implementation, and enforcement of effective policies, procedures, and regulations
to respond to complaints and incidents of harassment and bullying.
33.

The Department is further responsible for providing appropriate

training, education, and oversight of its employees and the conduct of its
employees when they are acting within the scope of their employment.

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34.

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The hierarchy and dissemination of policies, procedures, and practices

within the Department begins with the Superintendent.

Management of each

Department Complex is then overseen by the Complex Area Superintendent and
school Principals are responsible for ensuring that individual schools are in
compliance with the policies, procedures, and practices enacted by the Department.
35.

As of the filing of this Complaint the Department continues to operate

under the same set of policies, procedures, and regulations that have been in place
and that have been severely criticized by the OCR after a years-long investigation.
36.

Based upon the OCR Compliance Review, and upon information and

belief, the only policies, procedures, and regulations utilized by the Department for
investigating and responding to harassment and bullying are those laid out in
Chapter 19 of Title 8 of the Hawai`i Administrative Rules (hereinafter “Chapter
19”).
37.

Chapter 19 is the Department-wide source used primarily for

responding to disciplinary problems, entitled “Student Misconduct, Discipline,
School Searches and Seizures, Reporting Offenses, Police Interviews and Arrests,
and Restitution for Vandalism.”
38.

Chapter 19 divides prohibited student conduct into Class A, B, C, and

D, with Class A being the most serious.

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Harassment and bullying are specific offenses listed in Class B and

sexual harassment and fighting are specific offenses listed in Class A.
40.

Chapter 19 provides that an investigation must take place: (1)

immediately following a crisis removal of a student; (2) whenever a principal or
designee has reason to believe a student engaged in conduct warranting the
imposition of suspension; and (3) as a matter of course following the report of any
teacher, official, or employee of the Department who is witness to a Class A or
Class B offense, or has reasonable cause to believe a Class A or Class B offense
has been or will be committed.
41.

Plaintiffs are informed and believe, and thereupon allege, that

Defendants’ policies, procedures and practices for responding to and preventing
incidents of harassment and bullying are grossly inadequate and/or not enforced
and fall far below federal statutory requirements and the basic obligation of the
Defendants to provide for the safety and well-being of students.
42.

The OCR Compliance Review concluded that Chapter 19, the sole

grievance procedure by which the Department responds to complaints of
harassment and bullying, fails to afford victims their basic due process rights by
preventing alleged student victims from the opportunity to participate or present
evidence and testimony of their own during an appeal, but allowing for the
participation and evidence of the accused.
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43.

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The OCR Compliance Review concluded that Chapter 19 fails

entirely to “provide a complaint process for student victims and instead only
provides a disciplinary process for students who commit harassment.”
44.

Under Chapter 19 there is no requirement that victims of harassment

and bullying be notified of the outcome or any decisions by the complex area
superintendent concerning an appeal.
45.

The Department of Education provides no indication of how

investigations are to be conducted or the procedures for safeguarding the
investigation and maintaining its impartiality and adequacy, thus failing to provide
appropriate policies, procedures, and regulations to guarantee that sufficient and
reliable investigations are conducted following complaints or incidents of
harassment or bullying.
46.

The Hawai`i Department of Education receives substantial funding

from both state and federal sources to fund its operations.
47.

Nearly fifteen percent of the Department’s fiscal budget is comprised

of federal funds received primarily from the United States Department of
Education.
48.

In fiscal years 2015 through 2017 the Department received 774

million dollars in federal funding, averaging nearly a quarter of a billion dollars
annually.
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49.

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As a public entity and recipient of federal financial assistance from

the United States Department of Education the Department must comply with all
the laws of Title VI, Title IX, Section 504, and Title II, inter alia.
50.

Based on the investigation and conclusions of the OCR Compliance

Review of the Department’s policies, procedures, and processes, the Hawai`i
Department of Education is not in compliance with numerous federal laws and
regulations of Title VI, Title IX, Section 504, and Title II.
51.

Under federal law, the Department’s receipt of federal financial

assistance was predicated on the expectation that the Department was in
compliance with all federal rules and regulations.
52.

Plaintiffs are informed and believe, and thereupon allege, that the

receipt and expenditure of federal funds by the Department while knowingly and
deliberately failing to comply with federal requirements constitutes a misuse of
federal funding which was designated for use by public entities that adequately
prevent and protect against discrimination and harassment.
53.

Plaintiffs are informed and believe, and thereupon allege, that the

Defendants are systemically supporting harassment and bullying in schools by
failing to implement and/or enforce appropriate policies, procedures, and
regulations and failing to provide adequate, reliable, and impartial investigations.

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54.

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Plaintiffs are informed and believe, and thereupon allege, that the

Defendants willfully, deliberately, and/or recklessly disregarded the safety and
well-being of students within their custody and care.
55.

As a direct and proximate result of Defendants’ actions and/or

inactions the Representative Plaintiffs and the Class members have suffered and
will continue to suffer from various and lasting psychological and physical harm,
monetary damages, and other damages to be proven at trial.
PLAINTIFFS WERE HARMED BY DEFENDANTS
56.

Plaintiffs hereby restate all of the allegations set forth above in

paragraphs 1 through 57 and incorporate those allegations by reference.
57.

The Defendants’ systemic failure to respond appropriately to incidents

and complaints of harassment and bullying described herein harmed the
representative Plaintiffs and members of the Class. The following allegations of
individualized harm suffered by the representative Plaintiffs are illustrative of the
extent and severity of damages sustained by members of the Class resulting from
the Defendants’ conduct.
A.

Marchet Denise Fullum, on behalf of her minor child J.F.

58.

During the 2017-2018 school year J.F. attended school at Mililani

Middle School, a public school in Hawai`i within the oversight of the Department
of Education.
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59.

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Over the course of the school year J.F. was repeatedly subjected to

incidents of bullying and racial harassment from other students, including repeated
incidents where J.F. was called a “nigger” and one incident where she suffered
severe bruising and trauma as a result of being physically assaulted by multiple
students, which was recorded on video.
60.

Plaintiff Fullum and J.F. reported the incidents to school officials,

including the video of the physical assault.
61.

In accordance with the Department of Education’s policies,

procedures, and practices, Chapter 19 was the only instrument utilized by school
officials in response to the allegation of racially-discriminatory harassment and
bullying.
62.

Mililani Middle School and its staff did not effectively address the

race-based harassment that J.F. was victim to through proper investigation,
mitigation, and reporting, and failed to take reasonable measures to prevent further
occurrences of harassment and bullying.
63.

As a consequence of the school’s inaction, and the lack of policies,

procedures, regulations, and training from the Department of Education to
adequately respond to and prevent race-based harassment and bullying, J.F.
continued to be victimized by those same individuals with little hope that school
officials would take any action to address the situation.
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64.

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J.M. became severely depressed and was diagnosed with post-

traumatic stress disorder, suffering lasting and irreparable effects that ultimately
contributed to her plea for help by lashing out in frustration at those harassing her,
and at the school officials failing to prevent the harassment.
65.

In accordance with the Department’s policies, procedures, and

practices, no consideration was given to the fact that J.F. was a recurrent victim of
hateful and offensive race-based harassment and the school had failed to protect
her.
66.

The school’s only response was to utilize the Chapter 19 procedures

to discipline J.F. with no corrective actions taken to address or otherwise prevent
the reoccurrence of race-based harassment and bullying.
67.

J.F. is no longer safe at Mililani Middle School as a result of the

Defendants’ inability to protect her, and Plaintiff Fullum has incurred and will
continue to incur substantial costs associated with the relocation of J.F. to a private
institution.
B.

Anna Grove, on behalf of her minor child T.G.

68.

During the 2017-2018 school year T.G. attended Wailuku Elementary

School, a public school in Hawai`i within the oversight of the Department of
Education.

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69.

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Throughout the course of the school year T.G. was sexually harassed

and bullied by another student at her school.
70.

Complaints of sexual harassment and bullying were reported to school

officials, including teachers, counselors, and the Vice Principal, on multiple
occasions and through various means.
71.

The school failed to investigate or take any actions to address the

behavior or otherwise protect T.G. despite receiving complaints on multiple
occasions, and consequently T.G. was subjected to escalating harassment,
including threats to kill her and choke her in the bathroom.
72.

In May of 2018 T.G. was again sexually harassed by the same student

and continued to receive repeated threats of being choked in the bathroom.
73.

Suffering from extreme emotional distress as a result of the threats,

T.G. was afraid to use the bathroom at school.
74.

On or about June 5, 2018, T.G. was rushed to the hospital with severe

abdominal pain, where it was discovered she had a bowel obstruction likely
resulting from stress and her unwillingness to use the bathroom at school due to the
threats.
75.

Long after the fact, and only after receiving yet another complaint

detailing the May incident and resulting medical complications, the school filed a
report with the police.
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76.

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In order to finally “protect” T.G. at this late stage the Principal offered

summer counseling should T.G. desire, and asked that she check in with a
counselor on a daily basis as the solution to this problem.
C.

Gerald M. and Sandee J.C. Niblock, on behalf of minor child K.N.

77.

During the 2015-2016 school year K.N. attended Castle High School,

a public school in Hawai`i within the oversight of the Department of Education.
78.

On August 30, 2016, K.N. became informed that another student had

threatened her and was going to physically assault her.
79.

K.N. feared for her safety and sought assistance from school officials

to provide protection from the physical assault.
80.

On the morning of August 30, 2016, K.N. visited the office of her

school counselor to report the student’s threat and that she feared for her safety,
and a second counselor also was notified via telephone about the threat.
81.

The school officials knew or had reason to know that a Class A

offense would likely be committed and thus had an obligation to document the
incident in an official report and conduct an investigation, and to provide for the
safety and well-being of K.N. by acting reasonably to prevent the physical assault.
82.

In accordance with the policies, procedures, and practices of the

Department of Education, no written documentation or report of the threatened

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assault was ever made, no investigation took place, and no other school officials
were notified of the threat.
83.

In accordance with the policies, procedures, and practice of the

Department of Education, the school neglected to notify the parents of K.N. that
she had been threatened and was in fear for her safety, and neglected to provide
K.N. with any security or protection from bodily injury after learning of the threat.
84.

Later that day K.N. was violently assaulted by the student who had

threatened her.
85.

K.N. suffered from a concussion and multiple cuts and bruises after

she was repeatedly struck in the head while other students filmed the incident, later
posting the assault on social media.
86.

K.N. also experienced severe psychological trauma as a consequence

of the violent assault, and incurred and continues to incur costs and expenses
associated with psychological care.
87.

In accordance with the policies, procedures, and practices of the

Department, no actions were taken to address or otherwise change the school’s
response, and there was no corrective action for school officials involved or
education and training provided to prevent similar incidents from happening in the
future.
88.

In the weeks after the incident when K.M. returned to the same
23

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counselor to whom she first reported the threat, the counselor inconceivably
suggested to K.N., a teenage girl, that she was to blame for the violent assault, and
offered guidance on correcting K.N.’s behavior.
89.

K.N. continues to be harassed and bullied by students at Castle High

School, and the Defendants have failed to provide for her safety and well-being,
prompting intervention by K.N.’s parents.
90.

Because K.N. is no longer safe at Castle High School as a result of the

Defendant’s inability to protect her, she has been removed from Castle High
School and Plaintiff’s Gerald M. and Sandee J.C. Niblock have incurred and will
continue to incur costs and difficulties associated with the relocation of K.N. to a
different institution.
COUNT ONE
(Negligence)
91.

Plaintiffs hereby restate all of the allegations set forth above in

paragraphs 1 through 90 and incorporate those allegations by reference.
92.

Defendants have an affirmative obligation to provide for the safety

and well-being of students while under their care at school, on the way to or from
school, and at school-sponsored off-campus functions.
93.

At all times relevant hereto, the Defendants acted with willful and/or

deliberate disregard towards the safety and well-being of students by failing to

24

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enact and/or enforce appropriate policies, procedures, and regulations to respond to
and prevent incidents of harassment and bullying.
94.

Defendants’ actions and/or inactions were unreasonable and failed to

conform to the standard of conduct expected and required by law and constitute a
breach of the affirmative obligation to provide for the safety and well-being of
students.
95.

The Defendants’ failure to enact and/or enforce appropriate policies,

procedures, and regulations posed a foreseeable and manifestly unreasonable risk
of harm to students subjected to harassment and bullying.
96.

Predicated in part upon the OCR Compliance Review conclusions

contained in Exhibit A, Defendants knew or should have known that the policies,
procedures, and practices of the Department failed to provide for the safety and
well-being of students.
97.

As a direct and proximate result of the Defendants’ failure to enact

and/or enforce appropriate policies, procedures, and practices for responding to
and preventing harassment and bullying Plaintiffs have suffered severe and lasting
harm, including but not limited to physical pain and suffering, mental anguish,
psychological damages, trauma, humiliation, academic suffering, stress, and
anxiety.

25

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COUNT TWO
(Negligent Training and Supervision)
98.

Plaintiffs hereby restate all of the allegations set forth above in

paragraphs 1 through 97 and incorporate those allegations by reference.
99.

The Department of Education had an affirmative duty to provide

proper training, education, and supervision to all employees for appropriately
responding to and preventing harassment and bullying in order to provide for the
safety and well-being of students.
100. Defendants knew or should have known that employees were not
provided with proper training, education, and supervision and that students faced a
foreseeable risk of serious harm as a result.
101. Plaintiffs are informed and believe, and thereupon allege, that the
Defendants breached their duty by failing to provide employees with proper
training, education, and supervision for responding to and preventing harassment
and bullying.
102. Defendants did not enact and/or enforce appropriate policies,
procedures, and regulations on which to base any training, education, or guidance
for employees, and failed to provide any formal or written training, education, or
guidance.
103. Defendants’ actions and/or failure to act directly and proximately
caused severe and lasting harm to the Plaintiffs, including but not limited to
26

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physical pain and suffering, mental anguish, psychological damages, trauma,
humiliation, academic suffering, stress, and anxiety.
COUNT THREE
(Intentional Infliction of Emotional Distress)
104. Plaintiffs hereby restate all of the allegations set forth above in
paragraphs 1 through 103 and incorporate those allegations by reference.
105. The Defendants’ willfully and deliberately breached their duty to
provide for the safety and well-being of students, constituting intentional infliction
of emotional distress.
106. The Defendants acted malignantly and with intent to cause harm, and
did directly and proximately cause severe and lasting physical and emotional harm
to the Plaintiffs, including but not limited to, physical pain and suffering, mental
anguish, psychological damages, trauma, humiliation, academic suffering, stress,
and anxiety.
COUNT FOUR
(Negligent Infliction of Emotional Distress)
107. Plaintiffs hereby restate all of the allegations set forth above in
paragraphs 1 through 106 and incorporate those allegations by reference.
108. The Defendants’ actions and/or inactions in failing to enact and/or
enforce appropriate policies, procedures, and practices constitute recklessness and

27

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negligence, and Defendants knew or should have known that harm was likely to
occur as a result.
109. Defendant’s actions and/or inactions constitute negligent infliction of
emotional distress and did directly and proximately harm the Plaintiffs, including
but not limited to physical pain and suffering, mental anguish, psychological
damages, trauma, humiliation, academic suffering, stress, and anxiety.
COUNT FIVE
(Child Abuse)
110. Plaintiffs hereby restate all of the allegations set forth above in
paragraphs 1 through 109 and incorporate those allegations by reference.
111. Hawai`i law defines child abuse under H.R.S. § 351-1(1) as:
The acts or omissions of any person who, or legal
entity which, is in any manner or degree related to the
child, is residing with the child, or is otherwise
responsible for the child’s care, that have resulted in
the physical or psychological health or welfare of the
child, who is under the age of eighteen, to be harmed,
or to be subject to any reasonably foreseeable,
substantial risk of being harmed. . . .
112. Defendants are persons and the Department of Education is a legal
entity. The Defendants have a heightened custodial duty to provide for the safety
and well-being of students within their complete custody, care and control.
113. The Defendants’ actions and/or failure to act as persons and/or as a
legal entity responsible for the custody, care, and control of children constitutes a
28

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breach of Defendants’ duty, and has resulted in harm to the physical and/or
psychological health and welfare of the Plaintiffs and other children within
Defendants’ care.
114. The Defendants’ actions and/or inactions continue to expose Plaintiffs
and the Class to a substantial risk of physical and psychological harms reasonably
likely to occur, including hateful race-based harassment, sexual harassment, bodily
harm, and extreme physical and mental distress.
115. The Defendants’ conduct in knowingly, intentionally and with willful
and/or reckless disregard failing to report, investigate, prevent, and otherwise enact
and/or enforce adequate policies and procedures to protect the physical and
psychological well-being of children in school constitutes child abuse under the
laws of the State of Hawai`i, inter alia.
116. As a direct and proximate result of the Defendants’ carelessness and
willful disregard for the safety and well-being of students within their custody, care
and control, the Plaintiffs have suffered irreparable harm both psychologically and
physically, including but not limited to, physical pain and suffering, mental
anguish, psychological damages, trauma, humiliation, academic suffering, stress,
and anxiety.

29

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COUNT SIX
(Violation of Title VI, Title IX, Section 504, and Title II)
117. Plaintiffs hereby restate all of the allegations set forth above in
paragraphs 1 through 116 and incorporate those allegations by reference.
118. The Department of Education is a public entity in receipt of federal
financial assistance and must comply with applicable federal rules and regulations
at all times.
119. The OCR Compliance Review concluded the Department is not in
compliance with numerous federal regulations, including: (1) failing to designate
and provide notice of a coordinator in violation of Title IX, Section 504, and Title
II; (2) failure to disseminate a notice of nondiscrimination in violation of Title VI,
Title IX, Section 504, and Title II; and (3) failing to provide appropriate grievance
procedures in violation of Title VI, Title IX, Section 504, and Title II.
120. As a direct and proximate result of the Defendant’s failure to comply
with federal rules and regulations the Plaintiffs have suffered severe and
irreparable harm, including but not limited to physical pain and suffering, mental
anguish, psychological damages, trauma, humiliation, academic suffering, stress,
and anxiety.

30

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COUNT SEVEN
(Misuse of Federal Funds)
121. Plaintiffs hereby restate all of the allegations set forth above in
paragraphs 1 through 120 and incorporate those allegations by reference.
122. The Department of Education is a public entity in receipt of federal
financial assistance disbursed on the premise that the Department is in compliance
with all federal rules and regulations.
123. The Department knowingly, intentionally, and deliberately failed to
comply with numerous rules and regulations of Title VI, Title IX, Section 504, and
Title II.
124. The expenditure of federal funds by the Defendants while knowingly
and deliberately failing to comply with federal requirements constitutes a misuse of
federal funds which were to be disbursed to and expended only by entities in
compliance with federal anti-discrimination rules, regulations, and policies.
125. As a direct and proximate result of the Defendants’ misuse of federal
funds the Plaintiffs have suffered harm both physically and psychologically,
including but not limited to physical pain and suffering, mental anguish,
psychological damages, trauma, humiliation, academic suffering, stress, and
anxiety.
WHEREFORE, Plaintiffs pray for relief as follows:
1.

For injunctive and declaratory relief against the Defendants;
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2.

For special damages in amounts to be proven at trial;

3.

For general damages in amounts to be proven at trial;

4.

For punitive damages in amounts to be proven at trial;

5.

For appointment of a Special Master to operate the Hawai`i

Department of Education.
DATED:

Honolulu, Hawai`i, August 30, 2018

/s/ Eric A. Seitz
ERIC A. SEITZ
GINA SZETO-WONG
JONATHAN M.F. LOO

32

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UNITED STATES DEPARTMENT OF EDUCATION Egg?? 
OFFICE FOR CIVIL RIGHTS Amman SAMOA
GUAM
915 AVE., SUITE 3310 HAWAII
SEATTLE, WA 98174-1099 
MONTANA
NEVADA
NORTHERN MARIANA
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. 10115003

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,I 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 C.F.R. 100 et seq., Title 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 C.F.R. 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 II 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 noti?ed students and
employees of the designated reSponsible employee.

 

For ease of reference, complaints of race, color and national origin harassment will be referred to collectively in this
document as complaints of race harassmentSection 504 and its implementing regulations apply to any reelpient that employs 15 or more persons. Title II 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 ofEdncn tion?s mission is to premote student achievement and preparation for global competitiveness

by fostering educational excellence and ensuring equal access.


 

EXHIBIT A

 

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2. Whether HDOE complies with Title VI, Title IX, Section 504, and Title II 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 II
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 II 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.

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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 of?cials 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 of?cial (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 of?cials, 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 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.

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Discipline Records of Student-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?l 13?with the number of incidents according to the survey data collected by OCR

for that same time period?1,284?indicates 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.

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.

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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 fonn 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 C.F.R. 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.

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Section 504, at 34 CPR. 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 act

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 11. 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 re?ect
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 II.
Training was provided in October and November of 2015 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 2015, 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.

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

 

'5 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.

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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 CPR. and must be published prominently in

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

 

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

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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 act

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
satisfied, 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.

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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 specifically identi?es Title VI, Title IX, Title II,
and Section 504, 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 Speci?c
federal statutes by name. The nondiscrimination brochure also explains that complaints alleging
discrimination may be ?led 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 1, 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 C.F.R. Section 504, at 34 CPR. and
Title II, at 28 C.F.R. 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 speci?cally require the notice to be published

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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 ?nds 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; (0) 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 (1) 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 CPR. 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.
'0 See 34 CPR. 100.7(e) (incorporated by reference through 34 CPR. 106.71).

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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 II, at 28 CPR. 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 II.

Findings of Fact

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. 1'

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 identi?ed by HDOE in response to 2011 data request, con?rmed 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. 12 Chapter 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 enviromnent. . Teach and acknowledge proper behavior. . 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.?

 

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 con?rmed 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 dra? 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.

'2 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 noti?cation, interim placements, appeals from manifestation hearings, expedited hearings
and other procedural protections that are consistent with those imposed under Section 504 and Title II.

'3 Chapter 19 also has de?nitions for bullying and cyberbullying which do not mention any of the protected classes.

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??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: . . 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.? '4 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 he 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 ?ndings 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

 

'4 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 ?le a report with the complex area
superintendent, with a copy to the parent. See HAR 

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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. ?5

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, of?cial, 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 ?ve days of the reported offense. '6 The
principal must notify the reporting teacher, of?cial, or other employee of any disciplinary action taken
within ?ve school days after the incident is reported. If the teacher, of?cial, 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 ?ve 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.

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 de?ned 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.

'6 According to the HDOE website, the which stands for ?electronic Comprehensive Student Support System,? is
used by HDOE 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.

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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 ?om 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 ?ve 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 ?ve 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.

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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

HDOE identi?ed Policy 305.10 (formerly titled Policy 421 1) 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 defined 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. ?7 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. [8 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.

 

In 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.

'8 A Standard of Practice Document (SP) is an ?of?cial guidance? document for HDOE employees. On its website, HDOE
explains that many SP5 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 

Case 1:18-cv-00332 Document 1-1 Filed 08/30/18 Page 17 of 22 PageID 49

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 enviromnent. 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 021 1 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

Case 1:18-cv-00332 Document 1-1 Filed 08/30/18 Page 18 of 22 PageID 50

Page 18 - OCR Reference No. 10115003

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

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 ?led and instead only provides notice of where teachers, of?cials, or other HDOE
employees may ?le complaints. Chapter 19 does not apply to complaints ?led 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 1X, 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.

Case 1:18-cv-00332 Document 1-1 Filed 08/30/18 Page 19 of 22 PageID 51

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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 305.10fStandard 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 sufficient 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 he 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 11, 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 021 1 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 11.

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

Case 1:18-cv-00332 Document 1-1 Filed 08/30/18 Page 20 of 22 PageID 52

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 ?lnctions during the 2014-2015 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?rmative 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 II, is being
re?ected in the experience of HDOE students subjected to incidents of harassment by their peers.

Case 1:18-cv-00332 Document 1-1 Filed 08/30/18 Page 21 of 22 PageID 53

Page 21 - OCR Reference No. 10115003

V.

CONCLUSION

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

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;

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 

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;

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); and

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, 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.

Case 1:18-cv-00332 Document 1-1 Filed 08/30/18 Page 22 of 22 PageID 54

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-mail at david.kauffman@ed. gov.

Sincerely,

Linda Mange]
Regional Director

Enclosure

Case 1:18-cv-00332 Document 1-2 Filed 08/30/18 Page 1 of 2

PageID #: 55

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

MARCHET DENISE FULLUM,
on behalf of minor child J.F.;
ANNA GROVE, on behalf of
minor child T.G.; GERALD M
and SANDEE NIBLOCK, on
behalf of minor child K.N.,
individually and on behalf of all
others similarly situated,

)
)
)
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
DR. CHRISTINA KISHIMOTO,
)
Superintendent of the State of
)
Hawai`i Department of Education;
)
ELYNNE E. CHUNG, Principal
)
of Mililani Middle School;
)
DR. BERNADETTE TYRELL,
)
Principal of Castle High School;
)
BEVERLY STANICH, Principal
)
of Wailuku Elementary School;
)
ROBERT DAVIS, Central Oahu
)
Complex Area Superintendent;
)
and DOE DEFENDANTS 1-20,
)
)
Defendants.
)
______________________________ )

Civil No. 18-00332
DEMAND FOR JURY TRIAL

DEMAND FOR JURY TRIAL
Plaintiffs MARCHET DENISE FULLUM, ANNA GROVE, and
GERALD M. and SANDEE J.C. NIBLOCK, in their individual and representative

 Case 1:18-cv-00332 Document 1-2 Filed 08/30/18 Page 2 of 2

PageID #: 56

capacities and on behalf of the class of all other persons similarly situated, by and
through their undersigned attorneys, demand a jury trial as to all issues so triable
herein.
DATED:

Honolulu, Hawai`i, August 30, 2018

/s/ Eric A. Seitz
ERIC A. SEITZ
GINA SZETO-WONG
JONATHAN M.F. LOO

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