STATE OF HAWAII
BOARD OF EDUCATION
GENERAL BUSINESS MEETING

MINUTES

Queen Liliuokalani Building
1390 Miller Street, Room 404
Honolulu, Hawaii 96813
Thursday, August 15, 2019

PRESENT:
Catherine Payne, Chairperson
Brian De Lima, Esq., Vice Chairperson
Kaimana Barcarse
Margaret Cox
Nolan Kawano
Kili Namauʻu
Dwight Takeno
Kenneth Uemura
Captain Lyn Hammer (military representative)
Daniella White (student representative)

EXCUSED:
Bruce Voss, Esq.

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


I. Call to Order

The Board of Education (“Board”) General Business Meeting was called to order by Board Chairperson Catherine Payne at 1:30 p.m.


II. Swearing in of student representative for 2019-2020 School Year

Hawaiʻi Supreme Court Justice Mark Recktenwald swore in Student Representative Daniella White.


III. Public Testimony on Board of Education (“Board”) Agenda Items

Board Chairperson Payne called for public testimony. The following people provided oral testimony.

Name
Organization
Agenda Item
Position
Cheri NakamuraEquity in Education advocatesV.C., Superintendent’s Report: (1) update on school visits; (2) update on Hawaii State Special Education Summer Conference 2019; (3) update on the development of a 10-year Board of Education and Department of Education Strategic Plan, The Power and Promise of Public Education: Focus on how the “Ideas that Transform” theme enables instructional shiftsComment
P.M. Azinga Hawaiʻi Republican PartyN/AComment

Cheri Nakamura, representing equity in education advocates, testified on the 2020-2030 Strategic Plan planning process and stood on her written testimony. She stated that it is unclear how the Department of Education’s (“Department”) five promises connect to student outcomes and emphasized the importance of the Department clearly articulating connections. She urged the Department to include both quantitative and qualitative measures to monitor student progress.

P.M. Azinga, Hawaiʻi Republican Party, testified on school shooting drills.

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

Name
Organization
Agenda Item
Position
Martha Guinan, Patricia Halagao, Gavin Thornton, Cheri Nakamura, Paula Adams, David Miyashiro, Pila Wilson, Debora ZysmanEquity in Education advocates, Special Education Advisory Council, Hawaiʻi Appleseed, Hawaiʻi Afterschool Alliance, HawaiiKidsCAN, Hawaiʻi Children’s Action NetworkV.C., Superintendent’s Report: (1) update on school visits; (2) update on Hawaii State Special Education Summer Conference 2019; (3) update on the development of a 10-year Board of Education and Department of Education Strategic Plan, The Power and Promise of Public Education: Focus on how the “Ideas that Transform” theme enables instructional shiftsComment


IV. Approval of Meeting Minutes of August 1, 2019

ACTION: Motion to approve the General Business Meeting minutes of August 1, 2019, and the General Business Meeting Executive Session minutes of August 1, 2019 (Uemura/De Lima). The motion carried unanimously with all members present voting aye.


V. Reports of Board Committees, Board Members, and Superintendent

Finance and Infrastructure Committee Chairperson Kenneth Uemura reported that the committee took action on the identification and selection of a working group tasked with ensuring that Board policies and structures establish a transparent, accessible, and credible budgeting and financial reporting process. He reported that the committee also took action on a work plan and timeline to ensure that Board policies and structures enable the Department to complete all facilities projects at its schools with the greatest socioeconomic and academic needs as determined by an equity priority order.




Board Member Margaret Cox reported that she attended the Hawaii State Special Education Summer Conference held on Kauai. She highlighted that she received a presentation regarding how schools could make the individualized education program (“IEP”) process more efficient for teachers. Board Member Cox noted that she provided Deputy Superintendent Phyllis Unebasami with her materials and stated that she would like the Department to review ways in which to develop a more efficient IEP process. She highlighted that she learned that several complex areas and schools have implemented a more efficient IEP process and stated that it would help special education teachers if the Department were to standardize and implement ways in which to ease teachers’ workloads.

Board Member Cox reported that she previously attended the National Association of State School Boards Early Childhood Education Workgroup meeting. She stated that research shows that students who do not attend preschool fall behind their peers who do attend preschool and have a difficult time catching up academically. She emphasized the need for more public preschools and stated that the Board needs to collaborate and provide support to other entities.


Christina Kishimoto, Superintendent, reported that she visited Waipahu High School and participated in media events to kick off the beginning of the 2019-2020 school year. She stated that she visited Aiea Intermediate School and participated in the school’s beginning of the school year orientation and mid-morning breakfast. She reported that she attended McKinley High School and highlighted that the school held parent meetings during her visit. She stated that she visited Shafter Elementary School and observed math instruction and also visited Salt Lake Elementary School and observed literacy lessons. She stated that the following week she would visit five schools on Kauai. Kishimoto highlighted that she plans to visit 80 schools this upcoming school year. She highlighted that the Department is encouraging local communities to work in partnership with the Department to collect litter in neighborhoods in the proximity of schools.

Kishimoto reviewed the 2020-2030 Strategic Plan planning process, including a focus on how the “Ideas that Transform” theme enables instructional shifts. She highlighted that the Department is visiting classrooms and engaging schools to learn about instructional shifts that teachers want to highlight.

Kishimoto highlighted that students from Campbell High School completed a program as part of the Department’s partnership with Hawaii Pacific Health and received their medical assistant certification. She highlighted that several high schools are offering an advanced placement capstone to students, which is a two-year program that helps students to develop skills in research and analysis. Kishimoto detailed that students from Hilo High School attended a global competition in South Korea regarding phone application development to address the United Nation’s sustainability goals. Kishimoto highlighted that the Department established a math taskforce to review next steps for math instruction. She stated that the Department is currently scheduling its multilingualism conference and is planning to hold its annual computer science conference on a neighbor island. Kishimoto detailed that the Department is reviewing the micro-credentialing process with the Hawaii State Teachers Association. Kishimoto highlighted that the Department recently held its 2019 Summer Hawaii State Special Education Conferenced, and 1,172 participants attended. She highlighted that the Department plans to hold two additional special education conferences in the fall.

Kishimoto reported that the Department recently discovered that it submitted erroneous data regarding suspensions for the 2015-2016 Civil Rights Data Collection. She detailed that the Department submitted a request to the U.S. Department of Education’s Office of Civil Rights to amend the data and hired a third-party vendor to verify the correction. She stated that the Department posted information regarding its error on its website. Kishimoto stated that the Department would release a comprehensive version of the revised data pending guidance from the federal level as well as verification from the third-party vendor. She noted that the Department has met with the American Civil Liberties Union (“ACLU”) to discuss the Department’s data, how the error occurred, and joint goals regarding wraparound services and schools’ use of suspension in certain ways to help reengage students. Kishimoto stated that the data review for the 2015-2016 submission resulted in preliminary changes, including reducing suspended days per 100 students by 41%, total days suspended by 40%, the number of Pacific Islander suspensions by 45%, and the number of Individuals with Disabilities Education Act students suspended by 47%. Another preliminary change has 93% of suspensions at less than ten days. She stated that recalculation of the 2015-2016 school year data places Hawaii within the national average in terms of suspensions.

Board Vice Chairperson Brian De Lima commented that the Department should implement an internal review process to ensure that the Department releases accurate data and information to the public and expressed concern that the Department did not discover its error until the ACLU analyzed the Department’s data. Board Vice Chairperson De Lima stated that he would like the Department to report on its revised data once it is available.

Board Vice Chairperson De Lima stated that he reviewed the Department’s inaugural edition of its annual magazine and monthly newsletter, Hoʻohaʻaheo: Public School Proud. He stated that he would like the Department to share the stories and positive occurrences in its magazine with communities.

Kishimoto stated that the Department, in collaboration with ʻÔlelo Community Media, plans to release a five-part series regarding best practices across the state. She highlighted that the Department is reviewing how to provide the public with more detailed data, improve its data reports, engage the public and clearly articulate what the Department’s data means and what the Department is tracking, and connect its data to goals.

Board Vice Chairperson De Lima stated that schools make academic and financial plans available online. He suggested that the Department monitor the implementation of academic and financial plans and report the successes, including how work at the school level translates to student achievement and how the Board and Department could support work at the school level.


VI. Public Testimony on Board Agenda Items

Board Chairperson Payne called for public testimony. There was no public testimony at this time.


VII. Action Items
The Board took this agenda item together with agenda item VII.B, entitled “Board Action on: (1) adoption of draft amendments to Hawaii Administrative Rules Chapter 19, entitled ‘Student Misconduct, Discipline, School Searches and Seizures, Reporting Offenses, Police Interviews and Arrests, and Restitution for Vandalism,’ and (2) public testimony received at the July 16, 2019 public hearing.” See the minutes under agenda item VII.B. for the discussion.

Heidi Armstrong, Assistant Superintendent, Office of Student Support Services, stated that the Department is seeking a repeal of Hawaii Administrative Rules (“HAR”) Chapter 41, entitled “Civil Rights Policy and Complaint Procedure” (“Chapter 41”); the adoption of the draft of new HAR Chapter 89, entitled “Civil Rights Policy and Complaint Procedures for Student(s) Complaints against Adult(s)” (“Chapter 89”); and the adoption of draft amendments to HAR Chapter 19, entitled “Student Misconduct, Discipline, School Searches and Seizures, Reporting Offenses, Police Interviews and Arrests, and Restitution for Vandalism,” (“Chapter 19”).

Armstrong stated that Chapter 19 is one piece of the Department’s comprehensive plan to foster a positive school climate and prevent harassment, discrimination, and bullying. She detailed that Chapter 19 serves four purposes. The first is to maintain a safe and secure educational environment; the second is to establish procedures for filing and resolving complaints of discrimination, harassment, and bullying; the third is to deter students from acts that interfere with a safe environment; and the fourth is to create a framework. Armstrong highlighted the comprehensive supports approach. She noted that this approach includes Board policies, a multi-tiered system of support, Nâ Hopena Aʻo (“H”), the youth mental health first aid, and the Department’s anti-bullying app. Armstrong detailed that the Department is currently in the process of implementing a multi-tiered system of support across schools. The Department is focusing on systems, structures, and a continuum of services. She detailed that H has six outcomes, including a strengthened sense of belonging, responsibility, excellence, aloha, total wellbeing, and Hawaiʻi.

Armstrong stated that the Department has partnered with community organizations and government entities over the past two years to support youth who are in crisis or experiencing mental health issues. In the past year, the Department began its three-year rollout of its anti-bullying app training and implementation. She stated that the Department hopes to present to the Board in September on the usage and implementation of the app.

Cynthia Covell, Assistant Superintendent, Office of Talent Management, reviewed the Department’s timeline of its rule update process. She detailed that the Department entered into a resolution agreement with the U.S. Department of Education in December 2017. In April and May of 2018, the Department held 11 community engagement sessions to seek initial input and notify the public that the Department was updating its rules. The Department administered surveys to employees and community stakeholders and presented to the joint committee meeting held by the Finance and Infrastructure and Student Achievement Committees in September 2018. She detailed that the Department presented its proposed rules to the Board in October 2018.
Covell stated that the Department held 22 school administrator and community engagement sessions in November and December of 2018. The Department amended the rules based on feedback, including the definitions of bullying, harassment, and disorderly conduct; offense classifications; investigation completion timelines; implementation; and notification. The Department updated its proposed rules and presented to the Board on February 7, 2019. She stated that the Department held a public hearing on the proposed rules on July 16, 2019. Covell highlighted that the Department received around 1,200 initial survey responses.

Armstrong reviewed the proposed updates to Chapter 19. She detailed that the Department updated definitions to include bullying, cyberbullying, discrimination, gender expression, and others. The Department also added a new sub-chapter regarding a specialized complaint process if students allege bullying, harassment, or discrimination due to a protected class. She stated that the Department reclassified offenses for certain conduct. The Department reclassified bullying as a Class A offense for high school students and left it as a Class B offense for students in kindergarten through eighth grade. She noted that classification of the offense does not determine discipline. Principals need to consider five factors and determine discipline on a case-by-case basis. Armstrong detailed that the Department classified sexual harassment as a Class B offense for students in kindergarten through fourth grade and a Class A offense for students in fifth through twelfth grade. She explained that the Department reclassified sexual harassment offenses because sexual health education begins in fifth grade.

Covel detailed that the new draft of Chapter 89 replaces Chapter 41. She explained that the Department amended the complaint process to comply with the terms of its resolution agreement with the U.S. Department of Education’s Office of Civil Rights (“OCR”).

Armstrong stated that the Department held a public hearing on July 16, 2019. She noted that the Department did not receive oral testimony but received written testimony from four community advocates and two community organizations. Armstrong reviewed comments regarding Chapter 19. She stated that commenters expressed concern regarding the Department reclassifying bullying and harassment from a Class B to a Class A offense for high school students and for reclassifying sexual harassment. She explained that the Department took into account the maturity of students when making this determination and reiterated that it was appropriate for the Department to reclassify the level of offense for sexual harassment for certain grades because sexual health education begins in fifth grade. Armstrong reiterated that the classification does not determine disciplinary actions. She emphasized that administrators consider the intention of the offense, the nature and severity, the impact of the offense on others, and other factors before determining discipline. She stated that administrators could choose to implement a range of interventions and consequences.

Armstrong stated that commenters expressed concern that the definition of fighting includes students who are provoked into a fight due to harassment or discrimination. She emphasized that the Department believes that it is important to teach students that fighting is never appropriate and students should seek assistance from adults in these situations. She detailed that two commenters expressed concern that there might be inconsistency in approaches and processes if school administrators are responding to complaints. Armstrong explained that the Department believes that school administrators should be responsible for implementing Chapter 19 because they are professional and well trained. She noted that the Department would provide training to ensure that school implement rules effectively, and the Civil Rights Compliance Branch would provide support. Armstrong stated that one commenter expressed concern that informal resolution between students is inappropriate. Armstrong clarified that Chapter 19 specifically states that informal resolution cannot be used in cases of bullying and discrimination. She explained that informal resolution focuses on the needs of the student, and the Department intends for it to be a healthy way for students to engage in conflict resolution. She highlighted that the Department would train administrators to identify situations where it is and is not appropriate to implement informal resolution.

Covell reviewed comments regarding Chapter 89. She stated that three commenters expressed concern regarding mandatory reporting. Covell clarified that the Department’s code of conduct and Board policies require mandatory reporting. She stated that three commenters expressed concern that the definition of systemic discrimination is too narrow and should be expanded. Covell explained that the proposed language addresses established policies and noted that the Department would engage in appropriate follow-up once it is aware of issues that could be construed as systemic. Covell stated that two commenters expressed that the updated definition of retaliation is unclear and places the burden of proof on the victim. She clarified that the updated definition does not place additional burden on the victim. One commenter expressed concerns regarding immediate interventions. Covell emphasized the importance of immediate interventions to separate adults from the complainant. Covell stated that one commenter noted that there should not be an option for an informal resolution if a student submits a complaint against an adult. She emphasized that the Department agrees and removed the option for informal resolutions in complaints brought against adults.

Armstrong reviewed comments regarding both Chapters 19 and 89. She stated that commenters stated that the chapters are overly focused on the complaint process and the Department should focus on holistically preventing discrimination, harassment, and bullying. Armstrong clarified that Chapters 19 and 89 are only one part of the Department’s comprehensive student support system. She stated that several commenters expressed that the amendments do not address instances of employees witnessing but not stopping instances of discrimination, harassment, or bullying. Armstrong clarified that Chapter 19 requires employees who witness incidences to report these incidences to their principal or appropriate designee. She stated that employees who fail to stop discrimination, harassment, or bullying might be in violation of various policies and would face appropriate discipline. Armstrong stated that several commenters urged the Department to expand its definition of discrimination. She explained that the Department plans to clarify its definition in guidance documents and trainings. Three commenters expressed concern that the definition of harassment is too narrow. Armstrong stated that the Department clarified and updated its definition rather than narrowed it. She stated that two commenters disagreed about the Department needing to notify parents if students are discriminated against, harassed, or bullied for being lesbian, gay, bisexual, or transgender. Armstrong detailed that the Department would train administrators on recognizing the sensitivity of each student’s situation and how to address the situation as discreetly as possible. She stated that one commenter expressed concern that students are unable to submit non-protected class complaints. Armstrong clarified that any student is able to submit a complaint regardless if the complaint is based on bullying or harassment due to a protected class.

Covell detailed that the Department’s next steps after Board approval are to transmit the updated rules to the Attorney General and then to the Governor for review and consideration. The Department is currently in the process of developing detailed guidelines to assist school administrators. She stated that the Department anticipates that it will train employees in October or November 2019 and the rules will fully go into effect in January 2020.

Military Representative Captain Lyn Hammer asked for clarification regarding the definition of “school day.” Armstrong explained that the rules apply to the school day, any school-sponsored event outside of the regular school day, and transportation to and from school.

Military Representative Captain Hammer stated that students could experience retaliation after submitting a complaint and noted that she agrees with the Department’s guidance to school administrators to check in with students to promote and maintain a safe environment.

Student Representative Daniella White emphasized the importance of discussion regarding Chapter 19 to ensure a safe atmosphere for students. She stated that the Department’s written summary and responses to commenters provides students with clarification.

Board Member Nolan Kawano asked about the Department’s training efforts. He asked about the tone the Department plans to communicate and whether the Department has expectations regarding discipline. Armstrong stated that the Department’s goal is to maintain a safe learning environment for students. She noted that suspensions do not change behavior and emphasized counseling, interaction, and follow-ups. She detailed that the Department is encouraging alternative discipline to suspensions but recognizes that suspension might be necessary based on the seriousness of the offense and the effects of the event.

Board Member Kawano stated that bullying is pervasive within the school system. He asked if the Department would provide the Board with in-depth data, surveys, or statistics after training and implementation of the new rules. Armstrong stated that the Department plans to collect surveys from students, parents, and teachers. She stated that the Department could share this information with the Board once it becomes available. Covell stated that the Department formed a Civil Rights Committee as part of its resolution agreement with OCR. The committee plans to randomly sample disciplinary cases and report to the Superintendent regarding implementation.

ACTION: Motion to approve the repeal of HAR Chapter 8-41, entitled “Civil Rights Policy and Complaints Procedure;” the adoption of HAR Chapter 8-89, entitled “Civil Rights Policy and Complaint Procedures for Student(s) Complaints Against Adult(s);” and the amendment of HAR Chapter 8-19, entitled “Student Misconduct, Discipline, School Searches and Seizures, Reporting Offenses, Police Interviews and Arrests, and Restitution for Vandalism,” as described in and attached to the Department’s memoranda dated August 15, 2019 (De Lima/Kaimana). The motion carried unanimously with all members present voting aye.


VIII. Executive Session

The Board did not enter into executive session and skipped this part of agenda.


IX. Adjournment

Board Chairperson Payne adjourned the meeting at 2:41 p.m.