Hawaii Administrative Rules › Title 8 - DEPARTMENT OF EDUCATION › Subtitle 2 - EDUCATION › Part 1 - PUBLIC SCHOOL › Chapter 89 - CIVIL RIGHTS POLICY AND COMPLAINT PROCEDURE FOR STUDENT(S) COMPLAINTS AGAINST ADULT(S) › Section 8-89-2 - Definitions

Current through June, 2024
Whenever used in this chapter, unless the context otherwise
					 requires:
"Bullying" means any written, verbal, graphic, or physical
					 act that hurts, harms, humiliates, or intimidates a student(s), including those
					 with protected class statuses, that is sufficiently severe, persistent, or
					 pen/asive that it creates an intimidating, threatening, or abusive educational
					 environment.
"Child Welfare services" means the Child Welfare Services
					 of the State of Hawaii Department of Human services.
"Complainant" means any student, parent, or legal guardian
					 of any student, employee, volunteer, or member of the community who witnesses
					 or is otherwise aware of conduct prohibited by this chapter who files a
					 complaint regarding an alleged violation under this chapter.
"Complaint" means a charge filed under this chapter, which
					 alleges that a student participating in a program, activity, or service of the
					 department was subjected to discrimination, harassment (including sexual
					 harassment), or bullying by an employee, a volunteer, or a third party in
					 violation of board of education rules, policies and directives, and federal and
					 state regulations and laws, including, but not limited to, the following
					 laws:
(1) Title VI of the Civil Rights Act of 1964, Public Law
					 88-352, which prohibits discrimination on the basis of race, color, or national
					 origin;
(2) Title IX of the Educational Amendments Act of 1972,
					 Public Law 92-318, which prohibits discrimination on the basis of sex;
(3) Title IV of the Civil Rights Act of 1964, which
					 prohibits discrimination on the basis of religion;
(4) Section 504 of the Rehabilitation Act of 1973, Public
					 Law 92-112, which prohibits discrimination against persons with
					 disabilities;
(5) Individuals with Disabilities Education Act,
					 Public
					 Law 101-476, which ensures students with a
					 disability are provided with free and appropriate public education that is
					 tailored to their individual needs;
(6) Americans with Disabilities Act,
					 Public
					 Law 101-336, which prohibits discrimination
					 against persons with disabilities in programs, activities, and services;
(7) Article X, Section 1, Hawaii State Constitution, which
					 prohibits discrimination in public educational institutions because of race,
					 religion, sex, or ancestry;
(8) Age Discrimination Act of 1975, Public Law
					 94-135;
(9) Section
					 302A-461,
					 Hawaii Revised Statutes, which prohibits discrimination on the basis of sex in
					 athletics offered by a public high school;
(10) Section
					 302A-1001, Hawaii
					 Revised Statutes, which prohibits discrimination on the basis of sex in any
					 educational or recreational program or activity receiving state or county
					 financial assistance or utilizing state or county facilities; and
(11) Section
					 368D-1,
					 Hawaii Revised Statutes, which prohibits discrimination on the basis of sex,
					 gender identity or expression, or sexual orientation in any state educational
					 program or activity or any educational program or activity that receives state
					 funding.
"Cyberbullying" means electronically transmitted acts,
					 including but not limited to those transmitted through the Internet, cell
					 phone, or other wireless hand-held device, that an employee, a volunteer, or a
					 third party exhibits toward a student(s), that hurts, hanns, humiliates, or
					 intimidates the student(s); and is sufficiently severe, persistent, or
					 pervasive, that it creates an intimidating, threatening, or abusive educational
					 environment. Cyberbullying can occur:
(1) On campus, or other department premises, on department
					 transportation, or during a department sponsored activity or event on or off
					 school property;
(2) Through a department data system without department
					 authorized communication; or
(3) Through an off campus computer network, if the conduct
					 impacts the educational environment.
Additionally, cyberbullying may also be based on a person's
					 protected class, including but not limited to, a person's race, color,
					 religion, sex, sexual orientation, gender identity, gender expression, age,
					 national origin, ancestry, disability, physical appearance and characteristics,
					 and socio-economic status.
"Decision maker" means the administrator with authority to
					 make decisions regarding findings on complaints filed under this
					 chapter.
"Department" means the Department of Education.
"Department employees with supervisory authority" refers to
					 employees with supervisory responsibilities in their position
					 description.
"Director" means the director of the Civil Rights
					 Compliance Branch.
"Discrimination" means excluding the participation in or
					 denying the benefits of the department's administration of its educational
					 programs and activities, or otherwise treating a student differently on the
					 basis of a protected class.
"Employee" means a department employee.
"Gender expression" means the manner in which a person
					 represents or expresses gender to others, often through behavior, clothing,
					 hairstyles, activities, voice, or mannerisms.
"Gender identity" means a person's internal, deeply-felt
					 sense of being male, female, or other, whether or not that gender-related
					 identity is different from the person's physiology or assigned sex at birth.
					 Everyone has a gender identity.
"Harassment" means any threatening, insulting, or
					 aggressive conduct, which can be written, verbal, or physical, and is directed
					 against a student, including those with protected class status. Harassing
					 conduct must have the effect of:
(1) Placing a student in reasonable fear of harm to his or
					 her person or damage to his or her property;
(2) Interfering with a student's educational performance,
					 opportunities, or benefits; or
(3) Disrupting the orderly operation of a school.
"Immediate interventions" means individualized services
					 offered as soon as possible, but no later than seventy-two hours after receipt
					 of the complaint, to either or both the complainant or respondent involved in a
					 complaint as appropriate to protect students from possible racial, sexual, or
					 disability harassment. Immediate interventions may be offered prior to an
					 investigation or while an investigation is pending. Immediate interventions for
					 students pending an investigation may include counseling, extensions of time or
					 other course-related adjustments, modifications of work or class schedules,
					 campus escort services, restrictions on contact between the parties, leaves of
					 absence, increased security and monitoring of certain areas of campus, or other
					 similar accommodations. Immediate interventions may be put in place by the
					 principal or designee on a case-by-case and temporary basis after the
					 department receives notice of a complaint and before any outcomes
					 -investigatory, disciplinary, or remedial - have been determined. These
					 measures may be instituted to preserve the complainant's educational
					 experience, ensure the safety of all parties and the broader department
					 community, maintain the integrity of the investigative or resolution process,
					 and deter retaliation. Immediate interventions shall be available throughout
					 all phases of an investigation. They may be amended or withdrawn as additional
					 information is gathered.
"Investigator" means an administrator, individual, or group
					 of individuals assigned by the Civil Rights Compliance Branch to investigate
					 complaints made pursuant to this chapter. There may be circumstances that
					 require having an investigator external to the department investigate
					 complaints.
"Legal guardian" means a person who has the legal right and
					 authority to make educational and other decisions for a child under the
					 person's guardianship.
"Parent" means the natural or legal parent, legal guardian,
					 or other legal custodian of a student. For students eighteen years of age or
					 older, all parental rights herein transfer to the student unless the natural or
					 legal parent, legal guardian, or other legal custodian has legally obtained
					 decision making rights for the student.
"Persons with disabilities" means persons who have a
					 physical or mental impairment that substantially limits one or more life
					 activities, have a record of an impairment, or are regarded as having an
					 impairment.
"Protected class/basis" for the purposes of this chapter
					 includes race, color, religion, sex, sexual orientation, gender identity,
					 gender expression, age, national origin, ancestry, disability, physical
					 appearance and characteristics, and socio-economic status.
"Remedies" are individualized services offered at the
					 conclusion of an Investigation that preserve the educational experience or
					 ensure the safety of all students and the broader department community.
					 Remedies for students may include, but are not limited to, the adjustment of
					 academic schedules and coursework, and the provision of academic, medical, and
					 psychological support services.
"Respondent" means the employee, volunteer, or third party
					 who is identified in the complaint as having allegedly discriminated against,
					 harassed (including sexually harassed), or bullied a student. Respondent also
					 includes the department when a complaint alleges systemic
					 discrimination.
"Retaliation" means an adverse action against an employee,
					 volunteer, or student because they engaged in protected activity. Protected
					 activity includes filing a complaint of discrimination, harassment (including
					 sexual harassment), or bullying; participating in a complaint or investigation
					 proceeding dealing with discrimination, harassment (including sexual
					 harassment), or bullying; inquiring about rights under this chapter; or
					 otherwise opposing acts covered under this chapter. An adverse action is any
					 action that would dissuade a reasonable person from making or supporting a
					 complaint under these rules. Reprisals or retaliation shall be prohibited when
					 there is protected activity that was engaged in in good faith.
"School" means all academic and non-college type schools
					 established and maintained by the department in accordance with state
					 law.
"Sexual assault" means the act of committing unwanted
					 physical contact of a sexual nature on a person, whether by an acquaintance or
					 by a stranger. Such contact is unwanted when it occurs without consent of the
					 person, or when the person Is incapacitated or otherwise incapable of giving
					 consent. Consent means affirmative, conscious, and voluntary agreement to
					 engage in agreed upon forms of sexual contact. If a student is a subject of
					 sexual assault and is under the age of consent or if the perpetrator of sexual
					 assault is an adult and an employee or volunteer of the department, it shall be
					 deemed that no consent was given. Sexual assault is a form of sexual
					 harassment.
"Sexual exploitation" means the violation of the sexual
					 privacy of another, or taking unjust or abusive sexual advantage of another
					 without consent and when such behavior does not otherwise constitute sexual
					 assault. Consent means affirmative, conscious, and voluntary agreement to
					 engage in agreed upon forms of sexual contact. If a student is a subject of
					 sexual exploitation and is under the age of consent, or if the perpetrator of
					 sexual exploitation is an adult and an employee or volunteer of the department,
					 it shall be deemed that no consent was given. Sexual exploitation is a form of
					 sexual harassment.
"Sexual harassment" means any unwanted, unwelcome, or
					 unsolicited verbal or physical act of a sexual nature directed at an individual
					 because of the individual's sex. Sexual harassment can include requests for
					 sexual favors or sexual advances when submission to or rejection of the conduct
					 is either an explicit or implicit term or condition of a student's education or
					 participation in a department program, activity or service; or when submission
					 to or rejection of the conduct is used as a basis in decisions affecting that
					 student's education or participation in a department program, activity, or
					 service. Sexual harassment also includes, but is not limited to, sexual
					 misconduct, unwelcome sexual advances, requests for sexual favors, or other
					 verbal, nonverbal, or physical conduct of a sexual nature. It can include
					 conduct such as touching of a sexual nature, making sexual comments, jokes or
					 gestures, writing graffiti or displaying or distributing sexually explicit
					 drawings, pictures or written materials, calling students sexually charged
					 names, spreading sexual rumors, rating students on sexual activity, or
					 circulating, showing, or creating e-mails or websites of a sexual nature.
					 Sexual exploitation and sexual assault also fall under the definition of sexual
					 harassment.
"Sexual orientation" means a person's emotional and sexual
					 attraction to another person based on the gender of the other person. Common
					 terms to describe sexual orientation include, but are not limited to,
					 heterosexual, gay, lesbian, and bisexual. Sexual orientation and gender
					 identity are different.
"Stalking" means two or more acts of unwanted behavior,
					 directed at a specific person that is sufficiently serious to cause physical,
					 emotional, or psychological fear or to create a hostile, intimidating, or
					 abusive educational environment.
"Student" means a person who is currently enrolled in a
					 public school, or in any program, service, or activity conducted by the
					 department.
"Systemic discrimination" means discrimination that results
					 when an established policy, rule, regulation or procedure of the department has
					 the continuing effect of violating non-discrimination rights.
"Third party" means any person who is not an employee or
					 volunteer of the department who is on the department's property with the
					 permission of an employee within the department with authority to grant such
					 permission.
"Volunteer" means any person who has been officially
					 recognized by a department administrator as someone who is authorized to
					 perform work or services for the department without compensation.