Chapter 41 Civil Rights Policy and Complaint Procedure

Historical Note: This chapter is based substantially upon Department of Education "Rule 52, Relating to Civil Rights Complaint Procedure for Students." [Eff. 12/9/78; am 7/21/80; R 4/21/86]

§8-41-1 Policy and Purpose.

(a) It is the policy of the board of education that there shall be no discrimination in any program, activity, or service of the public school system on the basis of race, color, religion, sex, age, national origin, ancestry or disability. No disabled person who is otherwise qualified shall be denied the opportunity to participate in or receive benefits of, or be subjected to disparate treatment in any program, activity, or service of the public school system. The public school system shall comply with all applicable state and federal nondiscrimination laws and regulations in administering this policy.

(b) This chapter establishes a procedure in the public school system for filing and resolving complaints regarding alleged violations of nondiscrimination rights protected by federal and state laws. [Eff. 4/21/86; am and comp OCT 28, 1995] (Auth: HRS §302A-1112) (Imp: Hawaii Const. Art. X §1; HRS §§302A-1101, 302A-1112, 302A-1001, 302A-101, 368-1.5; 42 U.C. 2000d et seq., 34 C.F.R. 100; 5 U.S.C. 301, 34 C.F.R. 101; 29 U.S.C. 706, 794, 34 C.F.R. 104; 20 U.S.C. 1681, 34 C.F.R. 106; 42 U.S.C. 16101 et seq., 45 C.F.R. 90; 42 U.S.C. 12101 et seq., 28 C.F.R. 35)

§8-41-2 Definitions. Whenever used in this chapter, unless the context otherwise requires:

"Complainant" means a student or a group of students, or a parent or a group of parents, or a person who meets the essential eligibility requirements to receive the benefits of or to participate in, a program, activity, or service of the public school system, and who submits a complaint alleging a violation of a right to nondiscrimination in education. The term "complainant" excludes employees and applicants for employment.

"Complaint" means a charge filed under this chapter, which alleges a violation of a right to nondiscrimination in an educational program, activity, or service of the public school system under the following laws:

(1) Title VI of the Civil Rights Act of 1964, Public Law 88-352, which prohibits discrimination on the grounds of race, color, or national origin;

(2) Title IX of the Educational Amendments of 1972, Public Law 92-318, which prohibits discrimination on the basis of sex;

(3) Section 504 of the Rehabilitation Act of 1973 Public Law 92-112, which prohibits discrimination against persons with disabilities;

(4) Americans with Disabilities Act, Public Law 101-336, which prohibits discrimination against persons with disabilities in programs, activities, and services;

(5) Section 368-1.5, Hawaii Revised Statutes which prohibits discrimination against persons with disabilities in any state program or activity;

(6) Article X, Section 1, Hawaii State Constitution, which prohibits discrimination in public educational institutions because of race, religion, sex or ancestry;

(7) Section 296-61, Hawaii Revised Statutes, which prohibits discrimination on the basis of sex;

(8) Age Discrimination Act of 1975, Public Law 94-135.

"Counsel" means any person or persons who, upon a request from the complainant or respondent, agrees to assist with the preparation, filing or presentation of any matter arising out of a complaint filed under this chapter.

"Day" refers to a business day.

"Department" refers to the Hawaii state department of education.

"Harassment" means verbal or non-verbal expressions based on race, color, national origin, ancestry, sex, age, religion, or disability which:

(1) create an intimidating, hostile or offensive school environment; or

(2) interfere with the education of a student; or

(3) otherwise adversely affect the educational opportunity of a student. Harassment based on sex includes unwelcome and unwanted sexual advances, sexual remarks, and sexual innuendoes.

"Parent" means the natural or legal parent, guardian or custodian of a student.

"Persons with disabilities" means persons who have a physical or mental impairment that substantially limits one or more life activities, have records of an impairment, or are regarded as having an impairment.

"Public school" means a school established and maintained by the department in accordance with state law.

"Respondent" means department personnel who are specifically named in the complaint as having allegedly taken an action which violates the nondiscrimination rights of the complainant; or the department when a complaint alleges systemic discrimination.

"Student" means a person who is currently enrolled in a public school, or in any program or activity conducted by the department.

"Systemic discrimination" means discrimination that results when an established policy, rule, regulation or procedure of the department has continuing effect of violating nondiscrimination rights. [Eff. 4/21/86; am and comp OCT 28, 1995] (Auth: HRS §302A-1112) (Imp: Hawaii Const. Art. X §1; HRS §§302A-1101, 302A-1112, 302A-1001, 302A-101, 368-1.5; 42 U.S.C. 2000d et seq., 34 C.F.R. 100; 5 U.S.C. 301, 34 C.F.R. 101; 29 U.S.C. 706, 794, 34 C.F.R. 104; 20 U.S.C. 1681, 34 C.F.R. 106; 42 U.S.C. 16101 et seq., 45 C.F.R. 90; 42 U.S.C. 12101 et seq., 28 C.F.R. 35)

§8-41-3 Applicability.

(a) This chapter shall apply to all students who are currently enrolled in Hawaii's public schools or to all persons who meet the essential eligibility requirements to receive the benefits of or to participate in, a program, activity or service of the public school system.

(b) With respect to Section 504 of the Rehabilitation Act of 1973, this chapter shall apply to complaints concerning disparate treatment under Subpart A, General Provisions, and facilities or program accessibility under Subpart C, Program Accessibility, of 34 C.F.R. 104.

(c) This chapter shall apply to students who believe they have been subjected to harassment by employees of the department or other students on the basis of race, color, national origin, ancestry, sex, age, religion, or disability.

(d) Employees of the department who believe that their nondiscrimination employment rights have been violated may file complaints under Policy 5513 of the School Code, Certificated Personnel Policies and Regulations. Employees may also opt to file a grievance in accordance with the applicable collective bargaining agreement. [Eff. 4/21/86; am and comp OCT 28, 1995] (Auth: HRS §302A-1112) (Imp: Hawaii Const. Art. X §1; HRS §§302A-1101, 302A-1112, 302A-1001, 302A-101, 368-1.5; 42 U.S.C. 2000d et seq., 34 C.F.R. 100; 5 U.S.C. 301, 34 C.F.R. 101; 29 U.S.C. 706, 794, 34 C.F.R. 104; 20 U.S.C. 1681, 34 C.F.R. 106; 42 U.S.C. 16101 et seq. 45 C.F.R. 90; 42 U.S.C. 12101 et seq., 28 C.F.R. 35)

§8-41-4 District complaint board.

(a) There shall be a district complaint board for each school district of the department for the purpose of receiving and hearing complaints.

(b) Each district complaint board shall consist of:

(1) The district superintendent or designee of the school district who shall serve as chairperson of the board;

(2) A principal or designee of a public school in the respective school district who shall be appointed by the district superintendent and who shall serve a term of one school year, subject to recall by the department during the summer vacation period;

(3) The equal educational opportunity coordinator or designee of the school district;

(4) The director of management analysis and compliance branch or designee; and

(5) The president of the district student council or designee who shall serve a term of one school year and, as may be required, during the summer vacation period immediately following the school year.

(1) If a principal or designee appointed to a district complaint board is from a school at which the student named in a complaint was enrolled at the time of the alleged violation, the chairperson shall appoint an alternate principal or designee to hear the complaint.

(2) If any member of a district complaint board is named as a respondent in a complaint, the chairperson shall appoint an alternate to hear the complaint; provided, if the district superintendent is named as a respondent, the state superintendent of education shall appoint an alternate to serve as chairperson of the district complaint board to hear the complaint.

(3) If any member of a district complaint board has reason to be disqualified from hearing a complaint, the chairperson may appoint an alternate to hear the complaint; provided in the case of a district superintendent, the state superintendent may appoint an alternate who shall serve as chairperson to hear the complaint.

(d) The district complaint board shall meet as necessary on a regularly scheduled date once every calendar month to hear complaints which may have been filed.

(e) At each regularly scheduled meeting, the district complaint board shall hear those complaints received at least fifteen days prior to the regularly scheduled meeting.

(f) A quorum of a district complaint board shall be three board members or designees.

(g) Each board member or designee shall have one vote.

(h) A decision of a district complaint board shall require the concurring vote of a majority of the board members or designees who are present at the board hearing on the subject complaint. [Eff. 4/21/86; am and comp OCT 28, 1995] (Auth: HRS §302A-1112) (Imp: HRS §§302A-1101, 302A-1112, 20 U.S.C. 1405, 29 U.S.C. 706, 794, 34 C.F.R. 104.7; 20 U.S.C. 1681, 1682, 34 C.F.R. 106.8)

§8-41-5 Decision-making authority. The authority to adjudicate complaints shall rest with the district complaint boards or the state superintendent of education or designee when a district complaint board fails to reach a decision because there is no concurring majority. [Eff. 4/21/86; comp OCT 28, 1995] (Auth: HRS §302A-1112) (Imp: HRS §§302A-1101, 302A-1112)

§8-41-6 Right to seek other relief. Nothing in this chapter shall be construed to limit or waive the right of the complainant to seek other relief as provided under federal and state laws. A complainant has the right to file a discrimination complaint with the federal or state government:

(1) without filing a complaint under this chapter;

(2) at the same time a complaint is filed under this chapter;

(3) at any time during the pendency of a complaint filed under this chapter; or

(4) after a complaint filed under this chapter has been adjudicated. [Eff. 4/21/86; am and comp OCT 28, 1995] (Auth: HRS §302A-1112) (Imp: HRS §§302A-1101, 302A-1112, 368-3; 42 U.S.C. 2000d et seq. 34 C.F.R. 100)

§8-41-7 Right to counsel. Complainants and respondents shall have the right to seek counsel at their own expense in preparing, filing, and presenting any matter arising out of a complaint. [Eff. 4/21/86; comp OCT 28, 1995] (Auth: HRS §302A-1112) (Imp: HRS §§302A-1101, 302A-1112; 42 U.S.C. 2000d et seq., 34 C.F.R. 100.9; 5 U.S. C. 301, 34 C.F.R. 101.11)

§8-41-8 Right to information. A complainant and respondent shall have access to information and records in the possession of the department which bear upon the validity of the complaint except for such information and records that must remain confidential in accordance with federal and state laws. (Eff. 4/21/86; comp OCT 28, 1995] (Auth: HRS §302A-1112) (Imp: HRS §§302A-1101, 302A-1112)

§8-41-9 Confidentiality. Complaint records shall remain confidential. They shall be maintained separate and apart from student and personnel files. [Eff. 4/21/86; comp OCT 28, 1995] (Auth: HRS §302A-1112) (Imp: HRS §§302A-1101, 302A-1112)

§8-41-10 Right to discuss with principal. Nothing in this chapter shall be construed to prevent or discourage a complainant from discussing discrimination concerns with the school principal prior to filing a complaint. (Eff. 4/21/86; comp OCT 28, 1995] (Auth: HRS §302A-1112) (Imp: HRS §§302A-1101, 302A-1112)

§8-41-11 Complaint procedure. (a) The complainant shall file a written complaint with the district superintendent of the school district in which the alleged violation took place. The written complaint shall be filed within twenty days of the alleged violation and shall be made on a form provided by the department. There shall be no time limit for a complainant to file a written complaint alleging systemic discrimination. A copy of the written complaint shall be sent by mail, return receipt requested, to each respondent by the department within three days of receipt of the written complaint.

(b) The district complaint board shall investigate and afford all parties a hearing on all written complaints as provided herein. All parties to a complaint shall be given written notice of the hearing by registered or certified mail, return receipt requested, at least ten days before the scheduled hearing. The notice shall include the following:

(1) The date, time, place, and nature of the hearing;

(2) The nondiscrimination law allegedly violated;

(3) A statement of the issues or actions involved;

(4) The fact that any party may retain counsel if so desired; and

(5) The fact that any party who has difficulty speaking or understanding the English language may request appropriate assistance in that person's native language by the district complaint board.

(c) Any party in a district complaint board hearing who has difficulty speaking or understanding the English language shall be provided appropriate assistance in that person's native language by the district complaint board. Reasonable modifications shall be made for any party in a hearing with a disability.

(d) The district complaint board shall provide the complainant and respondent a written decision within ten days of concluding its hearing on the complaint. The written decision shall be a declaratory finding on the merits of the complaint. The written decision shall be sent by registered or certified mail, return receipt requested.

(e) A decision of a district complaint board shall be final unless the district complaint board is unable to reach a decision because there is no concurring majority.

(f) If a district complaint board fails to reach a decision because there is no concurring majority as provided herein, the complaint, recorded proceedings of the hearing, and any and all evidence accepted at the hearing shall automatically be forwarded to the state superintendent of education or designee who shall hear and examine the evidence and render a decision on the merits of the complaint within fifteen days from the date the district complaint board concluded its hearing. The decision of the state superintendent or designee shall be final under this section. The written decision shall be sent by registered or certified mail, return receipt requested, to the complainant and respondent. [Eff. 4/21/86; am and comp 0CT 28, 1995] (Auth: HRS §302A-1112) (Imp: HRS §§302A-1101, 302A-1112; 20 U.S.C. 1405, 29 U.S.C. 706, 794, 34 C.F.R. 104.7; 20 U.S.C. 1681, 1682, 34 C.F.R. 106.8)

§8-41-12 Waiver of time limits. The time limits established under this chapter may be waived for good and just cause at the discretion of the chairperson of the presiding district complaint board, or at the discretion of the state superintendent of education or designee under section 8-41-11(f). [Eff. 4/21/86; comp OCT 28, 1995] (Auth: HRS §302A-1112) (Imp: HRS §§302A-1101, 302A-1112; 5 U.S.C. 301, 34 C.F.R. 101.42)

§8-41-13 Remedy. If a decision of a district complaint board, or the state superintendent of education or designee under section 8-41-11(f) of this chapter, requires remedial action by the department, the state superintendent of education shall promptly and equitably determine an appropriate remedy and be responsible for its implementation. [Eff. 4/21/86; comp OCT 28, 1995] (Auth: HRS §302A-1112) (Imp: HRS §§302A-1101, 302A-1112)

§8-41-14 Withdrawal of complainant. A complainant may withdraw the complaint any time prior to the conclusion of the hearing by the district complaint board. [Eff. 4/21/86; comp OCT 28, 1995] (Auth: HRS §302A-1112) (Imp: HRS §§302A-1101, 302A-1112)

§8-41-15 Reprisal prohibited sanctions. Reprisal is prohibited against any person because that person has made a complaint, testified, assisted, or participated in any manner in a proceeding as provided herein. Any employee of the department who violates this section shall be subjected to disciplinary action. [Eff. 4/21/86; comp OCT 28, 1995] (Auth: HRS §302A-1112) (Imp: HRS §§302A-1101, 302A-1112)