STATE OF HAWAII
BOARD OF EDUCATION
FINANCE AND INFRASTRUCTURE COMMITTEE
STUDENT ACHIEVEMENT COMMITTEE

MINUTES

Queen Liliuokalani Building
1390 Miller Street, Room 404
Honolulu, Hawaii 96813
Thursday, September 6, 2018

PRESENT:
Kenneth Uemura, Joint Committee Co-Chairperson (Finance and Infrastructure Committee Chairperson)
Margaret Cox, Joint Committee Co-Chairperson (Student Achievement Committee Chairperson)
Bruce Voss, Esq. (Finance and Infrastructure Committee Vice Chairperson)
Patricia Bergin (Student Achievement Committee Vice Chairperson)
Brian De Lima, Esq. (Finance and Infrastructure Committee and Student Achievement Committee Member)
Nolan Kawano (Finance and Infrastructure Committee Member)
Kili Namau‘u (Finance and Infrastructure Committee and Student Achievement Committee Member)
Catherine Payne (Finance and Infrastructure Committee and Student Achievement Committee Member)
Dwight Takeno (Finance and Infrastructure Committee Member)
David Texeria (student representative)

EXCUSED:
None

ALSO PRESENT:
Christina Kishimoto, Superintendent
Cynthia Covell, Assistant Superintendent, Office of Talent Management
Heidi Armstrong, Interim Assistant Superintendent, Office of Student Support Services
Alison Kunishige, Executive Director
Kenyon Tam, Board Analyst
Regina Pascua, Board Private Secretary
Irina Dana, Secretary

I. Call to Order

The Finance and Infrastructure-Student Achievement Joint Committee (“Committee”) meeting was called to order by Committee Co-Chairperson Kenneth Uemura at 10:35 a.m.


II. *Public testimony on Finance and Infrastructure and Student Achievement Committee (collectively referred to as “Committee”) agenda items Committee Co-Chairperson Uemura called for public testimony. The following people provided oral testimony.

Name
Organization
Agenda Item
Position
Susan Rocco Special Education Advisory Council
III.A. Committee Action on approving for public hearing draft amendments to Hawaii Administrative Rules, Chapter 19, Student Misconduct, Discipline, School Searches and Seizures, Reporting Offenses, Police Interviews and Arrests, and Restitution for Vandalism;
III.B. Committee Action on approving for public hearing repeal of Hawaii Administrative Rules, Chapter 41, Civil Rights Policy and Complaint Procedure and adoption of draft of new Chapter 89, Civil Rights Policy and Complaint Procedures for Student(s) Complaints against Adult(s)
Comment

Susan Rocco, Special Education Advisory Council (“SEAC”), representing Martha Guinan and Ivalee Sinclair, testified on SEAC’s recommendations regarding Hawaii Administrative Rules (“HAR”) Chapter 19, entitled “Student Misconduct, Discipline, School Searches and Seizures, Reporting Offenses, Police Interviews and Arrests, and Restitution for Vandalism” (“Chapter 19”); HAR Chapter 41, entitled “Civil Rights Policy and Complaint Procedure” (“Chapter 41”); and proposed new HAR Chapter 89, entitled “Civil Rights Policy and Complaint Procedures for Student(s) Complaints against Adult(s)” (“Chapter 89”). Rocco detailed that SEAC’s recommendations include re-ordered sentences, further specification, expanded definitions, additional language, and clear processes.

Written testimony was also received and provided to Committee members. The following is a listing of the people that submitted written testimony before the testimony deadline.

Name
Organization
Agenda Item
Position
Dean HamerQwaves MediaIII.B. Committee Action on approving for public hearing repeal of Hawaii Administrative Rules, Chapter 41, Civil Rights Policy and Complaint Procedure and adoption of draft of new Chapter 89, Civil Rights Policy and Complaint Procedures for Student(s) Complaints against Adult(s)Comment
Thaddeus PhamPublic III.B. Committee Action on approving for public hearing repeal of Hawaii Administrative Rules, Chapter 41, Civil Rights Policy and Complaint Procedure and adoption of draft of new Chapter 89, Civil Rights Policy and Complaint Procedures for Student(s) Complaints against Adult(s)Comment
Joe WilsonQwaves MediaIII.B. Committee Action on approving for public hearing repeal of Hawaii Administrative Rules, Chapter 41, Civil Rights Policy and Complaint Procedure and adoption of draft of new Chapter 89, Civil Rights Policy and Complaint Procedures for Student(s) Complaints against Adult(s)Comment
Robert J. BidwellPublic III.B. Committee Action on approving for public hearing repeal of Hawaii Administrative Rules, Chapter 41, Civil Rights Policy and Complaint Procedure and adoption of draft of new Chapter 89, Civil Rights Policy and Complaint Procedures for Student(s) Complaints against Adult(s)Comment
Josephine ChangPublic III.A. Committee Action on approving for public hearing draft amendments to Hawaii Administrative Rules, Chapter 19, Student Misconduct, Discipline, School Searches and Seizures, Reporting Offenses, Police Interviews and Arrests, and Restitution for Vandalism;
III.B. Committee Action on approving for public hearing repeal of Hawaii Administrative Rules, Chapter 41, Civil Rights Policy and Complaint Procedure and adoption of draft of new Chapter 89, Civil Rights Policy and Complaint Procedures for Student(s) Complaints against Adult(s)		Oppose/Comment
Martha Guinan, Ivalee SinclairSpecial Education Advisory Council
III.A. Committee Action on approving for public hearing draft amendments to Hawaii Administrative Rules, Chapter 19, Student Misconduct, Discipline, School Searches and Seizures, Reporting Offenses, Police Interviews and Arrests, and Restitution for Vandalism;
Comment
Martha Guinan, Ivalee SinclairSpecial Education Advisory Council III.B. Committee Action on approving for public hearing repeal of Hawaii Administrative Rules, Chapter 41, Civil Rights Policy and Complaint Procedure and adoption of draft of new Chapter 89, Civil Rights Policy and Complaint Procedures for Student(s) Complaints against Adult(s)Comment


III. Recommendation for Action

Christina Kishimoto, Superintendent, reviewed the history of Chapter 19, Chapter 41, and Chapter 89. She noted that the background is important for the engagement and dialogue that the Department of Education (“Department”) will be having with the community. She explained that the Department is seeking the Committee’s approval for public hearing for the draft amendments to Chapter 19 and for the repeal of Chapter 41 and adoption of the draft of new Chapter 89. She highlighted that the Department has been collecting stakeholder feedback and will acquire additional feedback once the Department begins holding public hearings. Kishimoto stated that the Department is ready to collect feedback at public hearings so that it can move forward diligently. She noted that this is a critical step in updating rules.

Kishimoto reviewed the history of Chapter 19. She stated that in September 2011, the United States Department of Education’s Office for Civil Rights (“OCR”) initiated a compliance review of the Department. She noted that there was no complaint that initiated the September 2011 review. Kishimoto detailed that the review focused on policies related to bullying and harassment in 28 Department schools based on race, sex, and disability. She stated that the Department’s proposed Chapter 19 provisions address a resolution agreement between OCR and the Department that culminated on December 20, 2017 resulting from OCR’s review. Kishimoto stated that because Chapter 19 addresses conduct between students, the Department is proposing revisions to include conduct that occurs between students based on the protected classifications of sex, race, and disability. The proposed amendment and compilation of Chapter 19 include revisions required under the resolution agreement, including addition of definitions, reporting requirements, and a new subchapter that addresses complaints relating to protected class conduct. She noted that the Department expects to receive feedback on these and other areas. Kishimoto stated that Chapter 89 relates to civil rights policy and complaint procedures for student complaints against adults. She noted that OCR’s directed changes to the grievance and complaint procedures necessitated extensive changes to Chapter 41. As a result, the Department is proposing that the Board of Education (“Board”) repeal Chapter 41 and adopt Chapter 89. Chapter 89 includes all of the provisions required under the resolution agreement.

Kishimoto stated that these two chapters are related and complimentary to one another. The Department is requesting that the Committee approve of the repeal of Chapter 41 because its outdated language does not accurately reflect the Department’s current organizational structure. She noted that Chapter 89 includes updated rules and definitions. Chapter 89 also includes an updated complaint process that reflects the Department’s current structure. Furthermore, it includes an investigation process revised for timely investigations, interim measures, and remedies.

Cynthia Covell, Assistant Superintendent, Office of Talent Management, stated that Chapter 89 falls under the Office of Talent Management. She reiterated that the Department worked closely with stakeholders in order to draft this chapter and would continue to work with stakeholders because their input is valuable to this process. She noted that the next step for the Department is to hold public hearings.

Covell stated that the resolution agreement requires that the Department create grievance procedures to ensure that the Department provides for the prompt and equitable resolution of complaints of harassment based on race, sex, and disability. The resolution agreement also requires the Department 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 the grievance procedures and appropriate cross-references that are easily understandable. She stated that the resolution agreement directs the grievance procedures to include: a notice that complaint procedures apply to complaints alleging all forms of race, sex, and disability discrimination carried out by employees, students, or third parties; a clear and easily understandable explanation of how and where complaints may be filed; assurance that the Department will take immediate and appropriate steps to stop an harassment, prevent recurrence, and remedy discriminatory effects on the complainant and others; provisions for adequate, reliable, and impartial investigation of complaints; reasonably prompt timeframes for the major stages of the investigative process; a provision requiring concurrent written notification to both or all parties of the outcome of the complaint investigation and any appeals; a provision requiring notification to the complainant of all remedies provided and any other actions taken by the Department that directly relate to the complainant; a provision requiring notification to the respondent of any actions taken by the Department that directly relate to the respondent; appropriate definitions and examples of what types of actions may constitute racial, sexual, and disability harassment; provisions clarifying that when there is a complaint of alleged racial, sexual, or disability harassment of a student made against an employee, the investigation will be completed even if the employee resigns before it is finished; provisions clarifying that any informal resolution mechanism set forth in the complaint procedure will only be used if the parties voluntarily agree to their use; provisions ensuring that students are notified of the availability of interim measures to protect students during the investigation of possible racial, sexual, or disability harassment and how interim measures may be requested; notice of potential remedies for parties; and a statement that retaliation and retaliatory harassment is prohibited against any individual who files a race, sex, or disability discrimination complaint with the Department or participates in a complaint investigation in any way.

Covell stated that the changes to the grievance and complaint procedures directed by OCR necessitate extensive changes to Chapter 41, and as a result, the Department proposes that the Committee repeal Chapter 41 and adopt new Chapter 89 to replace it. She noted that Chapter 89 includes additional items in order to comply with the resolution agreement, update the previous outdated rules, and increase the protection of students’ civil rights. Covell stated that Chapter 89 includes protected bases of sexual orientation and gender identity or expression and their definitions; definitions of bullying, cyberbullying, dating violence, discrimination, sexual assault, sexual exploitation, and stalking; a more detailed definition of harassment; an assurance that the Department will take immediate and appropriate steps to stop any harassment, prevent recurrence, and remedy discriminatory effects on the complainant and others; an updated description of the complaint process and a clear and easily understandable explanation of how and where complaints may be filed; provisions for adequate, reliable, and impartial investigations during the complaint process and reasonably prompt timeframes for the major stages of the investigation; a provision requiring concurrent written notification to both or all parties of the outcome of the complaint process; provisions clarifying that any informal resolution mechanism offered will only be used if all the parties voluntarily agree to its use; interim measures to protect students during the investigation from possible racial, sexual, or disability harassment; and a description of some of the potential remedies available for the parties upon the completion of the complaint process.

Covell stated that attempts to revise Chapter 41 occurred from 2008 to 2012. Ultimately, the Department made the determination to defer any further revisions because the Board established current Board Policy 305-10, entitled “Anti-Harassment, Anti-Bullying, and Anti-Discrimination against Student(s) by Employee(s),” and the Department deemed it sufficient to handle complaints.

Covell reviewed arguments in support of the Department’s recommendation. She stated that the Department needs an updated set of rules. It is committed to providing a non-discriminatory learning environment that provides equal access to public education for all students and embraces the values of dignity and respect for one another by strictly prohibiting protected class discrimination, including harassment and sexual harassment. She further reviewed arguments against the recommendation. She noted that stakeholders would like definitions to be broader than currently written. Covell explained that the Department based its definitions on current statute. She stated that the second concern that stakeholders have is in regards to the person who acts as the primary decision maker. She noted that some stakeholders are concerned in regards to principals being primary decision makers because principals may be perceived to be biased and may not take appropriate action against the respondents. Covell noted that principals generally supervise the respondents and, as such, need to be involved in the decision-making process. She detailed that if evidence of a conflict of interest or bias arises, the Department would select a different decision maker. Furthermore, the investigator generally will be an employee from the Civil Rights Compliance Office (“CRCO”). Covell highlighted that principals would receive mandatory training in civil rights, complaints, and the complaint process applicable to performing their duties as decision makers.

Covell stated that educational implications of Chapter 89 are important. The Department’s proposed recommendations will support a safe and healthy learning environment for all students. Personnel implications will include staff receiving mandatory training, education, and support regarding the new rules. In addition, CRCO equity specialists will provide support to administrators dealing with protected class conduct at their schools.

Heidi Armstrong, Interim Assistant Superintendent, Office of Student Support Services, stated that the conditions leading to the Department’s recommendations regarding Chapter 19 are similar to the conditions leading to the Department’s recommendations for Chapters 41 and 89. She stated that because Chapter 19 addresses conduct between students, the Department proposes revisions to include conduct that occurs between students based on the protected classifications of sex, race, and disability. The proposed amendment and compilation of Chapter 19 includes revisions required under the resolution agreement.

Armstrong noted that the Department did not completely rewrite Chapter 19. However, it added information. The additions include definitions relating to protected class conduct; definitions for sexual harassment, racial or national origin harassment, disability harassment, and gender-based harassment; adding dating violence, sexual assault, sexual exploitation, and stalking to the list of class A offenses; adding bullying, cyberbullying, discrimination based on protected class, harassment, and retaliation to the list of class B offenses; requirement that all class A, B, C, and D offenses based on a protected class be reported to the principal or designee for investigation; definitions of Child Welfare Services and CRCO for reference; reference to Chapter 89 for conduct by adults towards students based on protected classifications; a section relating to a student’s right to privacy; a provision that an investigation will be continued even absent a filing of a formal complaint or if the complaint has been withdrawn; a provision for translation, interpretation, writing assistance or reasonable accommodation during the investigation process; a provision prohibiting retaliation; a provision regarding the right to seek other relief as provided under federal and state laws; and a new subchapter that addresses complaints relating to protected class conduct. The subchapter includes a description of the complaint process for protected class discrimination complaints; a provision for informal resolution between students; immediate interventions to protect students during investigation; provisions for adequate, reliable, and impartial investigations; a provision requiring concurrent written notification; a description of the potential remedies available; and a timeframe for any investigation to be completed.

Armstrong noted that the Board previously approved amendments to Chapter 19, which became effective on September 10, 2009. The amendments shifted Chapter 19’s basic philosophy and established Chapter 19 as part of a continuum of student behavioral supports inclusive of a proactive school-wide discipline system with positive behavioral interventions and supports as a prerequisite.

Armstrong reviewed arguments in support of revisions to Chapter 19 and noted that arguments were similar to arguments in support of Chapter 89. She stated that the Department’s revisions show compliance to federal and state statutes. Armstrong detailed that arguments against the revisions include a need for broader definitions of discrimination, harassment, gender identity or expression, and sexual orientation and concerns regarding who acts as the primary decision maker. Armstrong stated that the Department anticipates that the public, professional organizations, unions, Department staff, and others will support the proposed revisions, and individuals or entities may propose recommendations. Armstrong stated that the Department’s proposed recommendation would support a safe and healthy learning environment. She noted that these revisions would require mandatory training, education, and support on identifying protected class conduct. Armstrong stated that in terms of financial implications, the Department would be required to provide training to school administrators in conducting investigations pursuant to the proposed revised Chapter 19. She stated that the Legislature appropriated money for training for Fiscal Year 2018-2019. The Department may need additional funding for training.

Committee Member Bruce Voss moved, for Finance and Infrastructure Committee consideration, to defer the matters of a public hearing for the amendment of Chapter 19, repeal of Chapter 41, and adoption of Chapter 89 to the Board with instructions to the Department to consider feedback from submitted testimony and Committee members, revise its recommendations as appropriate, explain where and why it made revisions or did not make revisions, and present its revised recommendations and explanations to the Board within a short defined period of time. Committee Member Kili Namau‘u seconded the motion.

Committee Member Brian De Lima stated that it is important that the Department revise its recommendations prior to holding public hearings because if it makes substantial changes to the chapters after holding public hearings, it will have to hold public hearings again. He noted that this would delay the process further. He stated that the Department should make appropriate changes and present its changes at the Board’s next general business meeting.

Committee Member De Lima commented on SEAC’s recommendation regarding timelines. SEAC’s written testimony suggested that the Department specify a specific timeline for “immediate interventions.” SEAC noted that the term “immediate” sets an expectation with parents that information or services offered will occur on the same day as the complaint is filed. Committee Member De Lima suggested that the Department define “immediate” as the day of the incident or as soon as possible if information or services on the same day are not possible. He stated that he agreed with Committee Member Voss and with SEAC’s other recommendations. Committee Member De Lima suggested that the Department review testimony specific to Chapter 19 and reiterated that the Board could review whether its revisions incorporate the Committee and public’s feedback at the next general business meeting. He also suggested that the Department confer with members of the public who suggested amendments through testimony.

Committee Member Nolan Kawano stated that he understood the reasons behind the Department’s amendments for protected class conduct and asked if the Department should modify its rules so that its procedures pertain to any bullying, harassment, and discrimination versus just those based on protected classes. He stated that if there is a situation where a student is not part of a protected class, the Department does not have procedures in place, which means it needs to go through the entire administrative rules process again for just those cases. He stated that if the Department’s chapters are expanded, it does not need to necessarily define what protected classes are and does not need to determine if harassment is based on a protected class status or not. He stated that the Board and Department have already made a statement against all bullying, and the assumption is that the Department will follow similar procedures for situations where bullying occurs and the victim does not have a protected class status. Committee Member Kawano stated that it does not make sense to reference protected classes in the Department’s subchapter in Chapter 19. Armstrong explained that the resolution agreement requires the Department to include additional notifications and timelines. She stated that the Department’s procedures are the same for protected classes and for other students, but the Department had to add additional steps as part of the resolution agreement. She stated that the Department would review Committee Member Kawano’s recommendation of applying additional steps so that all students are part of the discussion.

Committee Member Voss stated that in both chapters, the Department defined bullying as repeated over time, which contradicts a line in its chapters that states that one-time incidences can be considered bullying. He asked why the Department is limiting the definition of bullying to something that is repeated over time. Covell stated that the Department could review this. She added that the definition was meant to include both one-time incidences and behavior that is repeated over time. Committee Member Voss stated that including both one-time incidences and ongoing behavior in the definition is consistent with case law regarding hostile work environments. He noted that one-time incidences can be considered hostile, and suggested that the Department remove the part of the definition of bullying in the chapters that limits it to behavior repeated over time.

Committee Member Voss stated that the Department defines bullying as a class B offense. He asked where in the rules the Department distinguishes between potential penalties applicable to the different classes. Armstrong stated that Chapter 19 contains guidelines and details regarding what constitutes the various class offenses. She stated that it does not include prescribed consequences. Committee Member Voss stated that when a definition of classes is present in any other code, such as the penal code, a range of penalties is also present that is consistent with the classifications. He stated that he does not see this in the proposed chapters. Armstrong stated that she is unable to provide Committee Member Voss with an explanation but noted that the Department would engage in discussions regarding this topic prior to the next general business meeting. Committee Member Voss stated that if the intent of classification is to denote the seriousness of the offense, bullying should be a class A offense rather than a class B offense.

Committee Member Voss stated that some from the lesbian, gay, bisexual, transgender (“LGBT”) community expressed concerns in testimony regarding provisions for immediate interventions. He stated that the LGBT community is concerned that the Department would pressure victims filing complaints into informal resolutions. Committee Member Voss noted that, given the language of this provision, he could envision schools pushing for informal resolutions rather than investigations that would disclose underlying facts and prohibit bullying, discrimination, and harassment from happening in the future. He asked how the Department could assure the LGBT community that this will not happen. Armstrong stated that both parties need to agree to an informal resolution but noted that she understands coercion could occur. She stated that the Department would need to engage in further discussion to clarify how it will prevent this from happening and to review potential solutions to mitigate these concerns. Committee Member Voss expressed concern that school-level investigators have five days to complete an investigation. He noted that OCR’s timeframe is 60 days. Committee Member Voss stated that the Department needs to address incidences promptly, but it needs to ensure that schools have resources to do so. He stated that part of his and the LGBT communities’ concern is that the Department’s regulations appear to come from hostile work environment law, but the problem with harassment is that hostile work environment law includes subjective and objective tests. He noted that it is difficult to apply objective tests on students. Committee Member Voss expressed further concern regarding how these rules and definitions would be interpreted.

Committee Member Patricia Bergin agreed with Committee Member Voss, particularly his concerns regarding classifications. She noted that the Department has zero tolerance for drugs and weapons and should have zero tolerance for bullying as well. Committee Member Bergin also agreed with Committee Member Kawano and noted that the Department has to be a strong voice and say that it does not tolerate bullying of any kind. She stated that she supports moving bullying to a higher classification.

Committee Member Kili Namau‘u expressed concern over who the stakeholders are with whom the Department has been meeting. She expressed further concern over testimony from the LGBT community and stated that the Department needs to address these concerns. Committee Member Namau‘u noted that she understands timelines, but these chapters are critical and important and need to address stakeholders’ concerns. She stated that she has witnessed bullying situations firsthand. Committee Member Namau‘u stated that she does not want the Department to adopt some other entity’s harassment laws or simply go through the procedural process and review the minimum requirements it needs to follow. She stated that she wants the Department to undergo a comprehensive administrative rules change and receive as much information and clarification as possible. Committee Member Namau‘u noted that schools need guidance and do not have direction. She stated that the Department needs to be clear and conduct proper training at schools. Committee Member Namau‘u expressed concern over how quickly the Department is moving through the process and highlighted the importance of the Department addressing the concerns of stakeholders and testifiers.

Covell stated that the Department has been going through the administrative process in regards to Chapter 89 for some time and has received a lot of stakeholder feedback. She noted that she understands current concerns and understands that the Department needs to further review its changes. Covell highlighted that the Department received 100 responses out of 140 stakeholder surveys it sent out. She noted that the Board, Department, and stakeholders have been saying that the Department needs to undergo and finish this process for some time. She stated that she understands that the Department needs to do so correctly and properly but recommends that it does not delay for too much longer because part of the feedback that the Department received is that it needs to move forward.

Kishimoto stated that there is a lot of interest in the community for the Board to take action. She noted that previous Board members determined not to make complete revisions when these rules came before them in the past. She stated that the Department and the Board engaged in conversation regarding these chapters one year ago and determined that the Department needs to finish this process. Kishimoto highlighted that the Department has been receiving feedback and highlighted the importance of input even if the Department has to hold public hearings for a second time. Kishimoto highlighted that the Department wants to keep this process moving and deliver on its promise to the community that it would make revisions and updates to administrative chapters. She noted that long delays would mean that schools are not receiving guidance from updated chapters. Kishimoto stated that the standards of practice that the Committee is outlining are important and emphasized the importance of community input. She noted that the Department is attempting to integrate input as quickly as possible and wants to ensure that it does its due diligence, follows its timeline, and moves forward. Kishimoto stated that the Board and Department are committed to this process and noted that these revisions are important to the public. She stated that the Department waited six years for feedback from OCR and currently has direct guidance from OCR, feedback and guidance from the community, and values and standards about which the Board has been adamant. Kishimoto highlighted that the Department is in a good place to deliver on this process to the community and to have laws that are protective for students.

Committee Member Voss stated that his motion did not include a timeframe for when the Department should present on changes it makes after considering the Committee and stakeholders’ feedback. He noted that he understands the importance of moving forward and agrees with Committee Member De Lima that the Department should return with changes at the following general business meeting but wanted to ensure that two weeks is sufficient time for the Department to take testimony, Committee concerns, and additional stakeholder feedback into account. Armstrong stated that two weeks is reasonable for the Department.

Committee Member De Lima noted that given posting deadlines, the Department would only have about one week to consider testimony and Committee comments to have materials ready for the September 20, 2018 general business meeting. Armstrong noted that one week is not enough time for the Department. Committee Member De Lima suggested coming back to the Board in October. Armstrong agreed that the timing would work better for the Department.

Committee Member Voss moved, for Finance and Infrastructure Committee consideration, to amend the main motion to specify that the Department return and present its revisions no later than the October 4, 2018 general business meeting. Committee Member De Lima seconded the motion.

Committee Member De Lima explained his reasoning for suggesting that the Department return to the Board with revisions in October, including procedural requirements necessary for the Board to hold its meeting. He stated that the community would not feel heard if the Department does not take time to incorporate testimony and concerns into its chapters.

Committee Member De Lima agreed with Committee Member Voss that the Department should move bullying, cyberbullying, discrimination, and harassment based on protected classes from class B offenses to class A offenses.

Committee Co-Chairperson Uemura asked how the Department is determining these classifications and asked if it is following guidelines, such as federal guidelines. Armstrong stated that the Department does not have references for how to determine classification. Kishimoto clarified that federal guidelines exist and every district in the nation has similar classifications. She stated that the Department could review whether other states or districts reclassified bullying related offenses from class B to class A.

Committee Co-Chairperson Uemura stated that the Committee feels strongly about the Department reclassifying bullying related offenses. He stated that the Department needs to review all information. Committee Co-Chairperson Uemura commented that in February, the Department suggested changes to Board Policy 305-10, but the Committee deferred those revisions to the Board because it did not agree with all of the Department’s revisions. He noted that the Department currently does not plan to suggest revisions to Board Policy 305-10. Kishimoto stated that the Department does not plan to suggest revisions to Board Policy 305-10 unless there is a need.

Committee Co-Chairperson Uemura highlighted Committee Members Kawano and Bergin’s comments and stated that the Board Policy 305-10 does not include student-to-student conduct. He asked if Board Policy 305-10 should encompass similar revisions and noted that the Board has been waiting for the Department to incorporate the Board’s previous feedback regarding Board Policy 305-10 and present revisions.

Committee Member Kawano asked if the Department plans to maintain its procedures solely for protected classes. Armstrong explained that necessary procedures solely for protected classes are a requirement of the resolution agreement in which the Department entered. She noted that the Department’s changes include additional information. Committee Member Kawano asked if the subchapter within Chapter 19 would remain solely for protected classes. He asked if the Department would include all students in the subchapter in the future or if it would leave it as is. Committee Member Kawano asked what the Department’s guidance would be if an individual files a complaint that he or she was harassed based on a protected class, but the perpetrator denied that this was the reason for harassment. He asked if the Department would need to verify claims or if the Department considers harassment based on protected classes as definitive. Kishimoto explained that this would be part of the investigation.

Committee Member Kawano asked if the procedures outlined in the subchapter would be for complaints related to protected class conduct or complaints related to any bullying. He stated that if the Department only has procedures for protected classes, it would need another set of procedures. He stated that he does not want the Department to be in a situation where it makes incorrect accusations. Armstrong stated that part of the investigation would include investigators finding the root cause of an incident. She noted that it is not a cut-and-dry process. This is the difficulty of the investigation and the importance of thorough investigations.

Committee Member Kawano recommended that the Department revise its procedures to include all bullying. Armstrong stated that Chapter 19 includes regulations and procedures for bullying in general, but the subchapter for protected classes adds additional reporting information and documentation. She noted that the Department would undergo a thorough investigation for every student regardless of the intent behind the conduct.

Committee Member Kawano expressed concern over situations where perpetrators admit to bullying but state that it is not due to protected class status. Armstrong explained that the investigation and follow-ups would be based on the nature of the incident. She stated that the investigation would bring to the forefront whether someone was bullied based on protected class status or not. She noted that regardless of the intent, the Department would need to address the bullying.

Covell stated that the Department added dropdown menus for schools when they report complaints for bullying or cyberbullying. She stated that these procedures allow schools to report data regarding bullying based on protected classes. Covell noted that Chapter 19 applies to all students, and protected class procedures are in addition to bullying in general.

Committee Co-Chairperson Cox stated that Chapter 19 covered all students. She noted that the Department is adding procedures for protected classes. She stated that the Department needs to be as clear as possible on its procedures for all students because schools will be responsible for dealing with incidences and situations. She stated that the Department needs to ensure that procedures are the same for all students regardless of protected class so that schools understand that bullying is not acceptable whatsoever.

Committee Member Catherine Payne clarified that the protected class issue is about collected information, data, and reporting. She noted that schools would have this information due to procedural guidelines and would know if issues with discrimination are notable. She stated that schools would collect this information in addition to other bullying statistics. She stated that schools would not treat behavior differently but would have a better and more specific data collection.

Armstrong further clarified that the subchapter is an addition to allow schools to collect disaggregated data to include protected classes.


IV. Executive Session
This portion of the meeting was closed under Section 92 4 and Section 92 5(a)(4), Hawaii Revised Statutes.
ACTION (of the Finance and Infrastructure Committee): Motion to enter into executive session to consult with the Board’s attorney on the matters on the agenda (De Lima/Kawano). The motion carried unanimously with all members present voting aye.

ACTION (of the Student Achievement Committee): Motion to enter into executive session to consult with the Board’s attorney on the matters on the agenda (Bergin/De Lima). The motion carried unanimously with all members present voting aye.

The meeting recessed at 11:39 a.m. and reconvened at 12:35 p.m.

Committee Co-Chairperson Uemura asked if there was any public testimony. There was no public testimony at this time.

Committee Co-Chairperson Uemura stated that the Committee recommends approval subject to the Department reviewing comments made by the Committee and testifiers. He stated that the Department should present the revised drafts to the Board no later than the October 4, 2018 general business meeting, which will give the Department time to address comments. Committee Chairperson Uemura stated that the Committee is recommending that Committee Member Namau‘u and Committee Member Payne act as advisors to the Department.

ACTION (for the Finance and Infrastructure Committee): Motion to amend the primary amendment to the main motion to include the appointment of Committee Members Namau‘u and Payne to act as advisors to the Department (Kawano/Voss). The secondary amendment carried unanimously with all members present voting aye. The primary amendment (Voss/De Lima) carried unanimously with all members present voting aye.

ACTION (for the Finance and Infrastructure Committee): Motion to (1) defer the matters of a public hearing for the amendment of Chapter 19, repeal of Chapter 41, and adoption of Chapter 89 to the Board with instructions to the Department to consider feedback from submitted testimony and Committee members, revise its recommendations as appropriate, explain where and why it made revisions or did not make revisions, and present its revised recommendations and explanations to the Board no later than October 4, 2018; and (2) appoint Committee Member Kili Namau‘u and Committee Member Catherine Payne to act as advisors to the Department (Voss/ Namau‘u). The motion carried unanimously with all members present voting aye.

ACTION (for the Student Achievement Committee): Motion to (1) defer the matters of a public hearing for the amendment of Chapter 19, repeal of Chapter 41, and adoption of Chapter 89 to the Board with instructions to the Department to consider feedback from submitted testimony and Committee members, revise its recommendations as appropriate, explain where and why it made revisions or did not make revisions, and present its revised recommendations and explanations to the Board no later than October 4, 2018; and (2) appoint Committee Member Kili Namau‘u and Committee Member Catherine Payne to act as advisors to the Department (Cox/Bergin). The motion carried unanimously with all members present voting aye.


V. Adjournment

Committee Chairperson Uemura adjourned the meeting at 12:37 p.m.