STATE OF HAWAII
BOARD OF EDUCATION
GENERAL BUSINESS MEETING

MINUTES

Queen Liliuokalani Building
1390 Miller Street, Room 404
Honolulu, Hawaii 96813
Thursday, February 7, 2019

PRESENT:
Catherine Payne, Chairperson
Brian De Lima, Vice Chairperson
Patricia Bergin
Margaret Cox
Nolan Kawano
Kili Namauʻu
Dwight Takeno
Kenneth Uemura
Bruce Voss
David Texeira (student representative)
Captain Lyn Hammer (military representative)

EXCUSED:
None

ALSO PRESENT:
Christina Kishimoto, Superintendent
Phyllis Unebasami, Deputy 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 Board of Education (“Board”) General Business Meeting was called to order by Board Chairperson Catherine Payne at 1:30 p.m.


II. 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
Susan Rocco Special Education Advisory Council VI.A. Board 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);
VI.B. Board 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
Linda ElentoPublic IV.A. Student Achievement Committee Report on: (1) Presentation on Complex Area Superintendent Report: special education and English learner in the Kailua-Kalaheo Complex Area; Presentation on school level safety and wellness programs and status of the Department of Health and Department of Education's 2017-2018 school year Safety and Wellness Survey; Committee Action on documents necessary to implement multiple charter school authorizer system, including application for chartering authority, authorizing contract, and authorizer performance evaluation systemComment

Susan Rocco, Special Education Advisory Council (“SEAC”), representing Martha Guinan and Ivalee Sinclair, testified on SEAC’s concerns 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 expressed concern over the lack of specific timelines in regards to intervention and parent notification. She stated that SEAC recommends that the Department of Education (“Department”) implement specific timelines and remove phrases, like “as soon as possible.”

Linda Elento, member of the public, testified on the importance of inclusion and the importance of the Board and Department requesting funds for schools to be able to continue to implement inclusion in classrooms. Elento expressed concern over decision-making in regards to inclusion; communication between complex areas, principals, and teachers; and lack of teacher training.

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
Rae Shih ACLU of HawaiiVI.A. Board 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);
VI.B. Board 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
Thaddeus PhamPublic VI.A. Board 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);
VI.B. Board 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
Josephine L. ChangPublicVI.A. Board 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);
VI.B. Board 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		Oppose/Comment
Martha Guinan, Ivalee SinclairSpecial Education Advisory CouncilVI.A. Board 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);
VI.B. Board 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
Cameron Miyamoto, Thaddeus Pham, Cathy Kapua, Jacce Mikulnacec, Kaleo Ramos, Ranjani StarrHawaii Queer/Transgender Community Alliance: Domestic Violence Action Center; GLSEN Hawaii Chapter; Hawaii Health & Harm Reduction Center; Hawaii LGBT Legacy Foundation; HepFree Hawaii; LGBT Caucus, Democratic Party of Hawaii; Maui AIDS Foundation; Mental Health America Hawaii; Planned Parenthood Votes Northwest and Hawaii; Residential Youth Services & Empowerment; University of Hawaii at Manoa, LGBTQ+ Center; Windward Community College LGBTQ+ Commission VI.A. Board 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);
VI.B. Board 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		Oppose/Comment


III. Approval of Meeting Minutes of December 21, 2018 (Special Meeting); January 17, 2019 (General Business Meeting)

ACTION: Motion to approve the General Business Meeting minutes of January 17, 2019, and the Special Meeting minutes and Special Meeting Executive Session minutes of December 21, 2018 (Bergin/De Lima). The motion carried unanimously with all members present voting aye.


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

Student Achievement Committee Chairperson Margaret Cox reported that the committee received a presentation on special education and English learners (“EL”) in the Kailua-Kalaheo Complex Area. She detailed that the complex area is working with schools, principals, and teachers toward improving inclusion rates. The committee also received a presentation on the Department of Health’s and the Department’s School Year 2017-2018 Safety and Wellness Survey. She stated that committee members asked for disaggregated data by school level to better understand issues.

Committee Member Payne stated that she expressed concern over fifth grade scores and detailed that there was a range of scores across complex areas and schools. She noted that the survey showed that some fifth graders are fit while others are not and stated that she suggested that the Department target support in areas of need and report back to the committee.

Committee Chairperson Cox stated that a percentage of schools are not reporting scores to parents and highlighted that the Department would be sending a memo and encouraging principals to get more information out to families.

Committee Chairperson Cox reported that the committee took action to open a public comment period from February 7, 2019 through March 8, 2019 on the documents necessary to implement the multiple charter school authorizer system, including the application for chartering authority, the authorizing contract, and the authorizer performance evaluation system. She noted that one stakeholder group provided recommendations, but the committee decided to wait to implement changes until all stakeholders and community members had an opportunity to suggest changes.

Note: Board Chairperson Payne took this agenda item after agenda item IV.C., Superintendent’s Report: (1) February 2019 Education Update; (2) update on school visits; (3) update on 2017-2020 Department of Education and Board of Education Joint Strategic Plan implementation: Focus on aligning with the Governor’s State of the State address and Board and Department strategic priorities, technology, homeless services, teacher quality and Pre-Kindergarten; 4) update on 2019 Legislative Session.

Board Chairperson Payne highlighted that the Legislature appreciates the Board’s ad hoc committee model and detailed that ad hoc committee members are available to testify and be present to hear education related bills that the Legislature is discussing. Board Chairperson Payne stated that it has been a steep learning curve and a part of education that she did not have experience with prior to her participation on the committee.

Board Chairperson Payne stated that the ad hoc committee is monitoring and testifying on a number of bills. She noted that most bills are moving because it is still early in the session and detailed that the Legislature has deferred few bills thus far. Board Chairperson Payne detailed that Senate Bill (“SB”) 171, relating to education, would create a task force to establish a process for the transfer of jurisdiction over all public schools from the State to the county in which the public school is located, provided that the county has a population greater than 500,000. She stated that such a transfer would require a constitutional amendment. Board Chairperson Payne stated that the committee and Department testified in opposition. She detailed that the committee is also monitoring a series of bills related to early childhood pre-kindergarten programs. She emphasized the importance of different entities working together to open pre-kindergarten classrooms. She stated that everyone agrees on the importance of funding to be able to do so and noted that the Governor emphasized early childhood education in his state of the State address. Board Chairperson Payne stated that early childhood education is critical to closing the achievement gap.

Board Member Bruce Voss stated that legislators have asked thoughtful questions and noted that legislators did a good job going out to communities and listening to individuals in their schools. He stated that the Board and Department have a responsibility to answer questions and prove good stewardship of funding. He expressed concern over SB 171 and noted that one of the Board and Superintendent’s main priorities is equity and access. He stated that the governance that SB 171 proposes might exacerbate issues of equity and access.

Board Vice Chairperson Brian De Lima agreed with Board Member Voss’s concerns and expressed frustration over proposals regarding governance and other efforts not aligned with the Board and Department’s Joint Strategic Plan or strategic priorities. He stated that counties are already facing challenges and burdens in terms of funding and real property. Board Vice Chairperson De Lima expressed his hope that the Legislature recognizes that the Department does not receive sufficient funding to meet its mission and commended the Department on its efforts. He noted that there are legitimate concerns regarding how the Department spends its funding, and the legislative process contributes to oversight efforts. He stated that he hopes that the Department is able to alleviate concerns regarding how it allocates funding for public education. Board Vice Chairperson De Lima emphasized the importance of collaboration between the Legislature and Board.

Board Chairperson Payne stated that there are a number of bills related to Board governance. She noted that the Board does not take positions on those measures, but it provides comments. Board Chairperson Payne stated that one of the continuing themes from these bills is that the Board needs to engage with its communities. One of the bills is related to increasing the number of community meetings that the Board holds, including meetings on neighbor islands, evening meetings, and additional meetings each year. She stated that the Board is not in opposition to community engagement and is reviewing holding Board meetings on neighbor islands and holding more informal meetings with community members. She noted that community members might be interested in informal meetings where they are able to interact with Board members. She stated that interaction is not always possible during formal Board meetings. Board Chairperson Payne highlighted that the ad hoc committee is reviewing these bills and providing testimony.

Note: Board Chairperson Payne took this agenda item before agenda item IV.B., Update on on Ad Hoc Committee (a permitted interaction group pursuant to Hawaii Revised Statutes, Section 92-2.5(B)(2)) concerning 2019 Legislative Session: hearings, informational briefings, and testimony.

Christina Kishimoto, Superintendent, reported that the Department has been celebrating a number of events. She highlighted that the Department celebrated 63 teachers statewide who earned or renewed their National Board for Professional Teaching Standards Certification. She further highlighted that these teachers joined more than 650 National Board Certified Teachers in Hawaii, ranking Hawaii eleventh in the nation for the percentage of teachers who are Nationally Board Certified. Kishimoto stated that the Department would continue to support its teachers to increase its percentage. Kishimoto highlighted that Waianae High School Counselor Desiré DeSoto was named the 2018 Hawaii School Counselor of the Year and was selected as one of six finalists for the 2019 American School Counselor of the Year recognition. She stated that the Department is holding an upcoming statewide school counselor conference to provide counselors with professional development.

Kishimoto highlighted that the Department is holding its Innovative Teachers Engage and Collaborate – Hawaii (“iTEaCH”) Conference on June 13, 2019 at the Hawaii Convention Center, which is an opportunity for teacher leaders to collaborate and share best practices for advancing computer science curriculum. Registration is open and Kishimoto encouraged teachers who wish to attend to register early. Kishimoto highlighted that the Department is holding a multilingualism conference in March and is expecting a large turnout based on the number of individuals who registered. Kishimoto stated that the Hawaii State Secondary Student Conference recently took place on Oahu as a three-day session that focused on the legislative process and student voice.
Student Representative David Texeira stated that students who attended the student conference learned about civil engagement and using their voice. He highlighted that even after the conference, students have continued to analyze legislative bills and want to share testimony with legislators. Kishimoto stated that the conference is a good example of students using their voice to lead.

Kishimoto stated that Sarah King, a Title I Coordinator at Ala Wai Elementary, has become the latest recipient of the Milken Educator Award. She stated that Hawaii’s educators continue to be selected for this award year after year, which is a reflection of teacher quality and commitment.

Kishimoto stated that the Governor held his state of the State address on January 22, 2019. She detailed that there was a lot of alignment between the Governor’s priorities and the Board’s priorities. The Governor shared messaging around job development and talent retention, particularly in areas of science, technology, and engineering.

Kishimoto stated that this messaging supports the Department’s pipeline initiatives. She detailed that the Governor’s message also focused on homeless services, which is important because the Department serves 3,000 students potentially affected by homelessness. She stated that addressing homelessness is state-level work, but the Department needs to determine how to serve students impacted by homelessness, who need additional support. She stated that the Governor also focused on pre-kindergarten efforts, which is another area that the Department is focusing on by continuing to build its private-public partnerships in order to increase pre-kindergarten opportunities in the state.

Kishimoto stated that the Legislature introduced 800 bills that affect the Department. The Department is currently tracking, monitoring, and providing feedback on these bills. The Department has been involved in one-third of the bills that the Legislature already introduced and will continue to be involved in additional bills. Kishimoto stated that Department staff are actively meeting with legislators and added that Board members meeting with legislators is having a meaningful effect. Kishimoto stated she is attending a hearing for House Bill (“HB”) 1523 and HB 1524, both relating to the Department’s budget. She explained that one includes the base budget and the other includes add-ons that align with the Governor’s budget and that the Board supported. She detailed that the Legislature’s budget process is different this year because it separated add-ons from the base budget. She stated that the Department will continue to be part of discussions and is hoping to see movement on its base budget bill.


V. Public Testimony on Board Agenda Items

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


VI. Action Items
The Board took this agenda item together with agenda item VII.B., Board 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. See the minutes under agenda item VII.B. for the discussion.

Cynthia Covell, Assistant Superintendent, Office of Talent Management, stated that the Department is seeking permission to hold public hearings on the repeal of Chapter 41, adoption of Chapter 89, and draft amendments to Chapter 19. Covell reviewed the history and background of the process. She detailed that on October 4, 2018, the Department presented its draft to the Board and received approval to move to public hearing. Before proceeding to public hearing, the Department held engagement sessions to gain stakeholder input and feedback. She stated that the Department held 22 engagement sessions on Oahu, Hawaii Island, Maui, Kauai, Lanai, and Molokai. It received feedback from principals, administrators, and community stakeholders. Covell detailed that that the Department incorporated changes based upon this feedback and is seeking approval to conduct a public hearing on these latest drafts.

Heidi Armstrong, Interim Assistant Superintendent, Office of Student Support Services, reviewed changes that the Department made since the last time the Board approved the drafts. She stated that the Department’s memoranda includes rationale behind its changes and possible impacts. Armstrong stated that the Department made changes to its bullying definition, harassment definition, cyberbullying definition, and disorderly conduct definition. It also separated the definitions of bullying and harassment. The Department made changes to its offense levels for bullying, cyberbullying, and harassment. It originally proposed that bullying, harassment, and cyberbullying be Class B offenses for kindergarten through sixth grade and Class A offenses for seventh through twelfth grade. It updated these offenses so that they are Class B offenses for kindergarten through eighth grade and Class A offenses for ninth through twelfth grade. The Department also made changes to immediate interventions and to the notification of the investigation’s conclusion. It also made changes to the length of time to complete an investigation. Covell reiterated that the Department made changes after its engagement sessions based on feedback from community members. She stated that its changes regarding definitions came from the community and administrators, and the intent of its changes is to make the document implementable, usable, and understandable by all. Armstrong reviewed the currently bullying definition. She explained that in its last draft, the Department combined bullying and harassment. Based on feedback from the field, it separated those two terms and updated definitions. Armstrong reviewed the current bullying definition. Armstrong stated that an isolated incident could be considered bullying or harassment. She noted that it could be unique to the situation because each incident is different.
Armstrong emphasized that both are unacceptable offenses, and the challenging task for administrators will be to identify appropriate support, follow-up, and consequences. Armstrong detailed that it is difficult to capture the definition of bullying. The intent is that the action is not appropriate and administrators need to take action. Board Vice Chairperson De Lima stated that stakeholders provided testimony that recommended deleting the last sentence from the definition of bullying, which states that bullying does not include isolated incidents of teasing, horseplay, argument, or peer conflict. He agreed with this recommendation because this sentence might preclude undesirable conduct from falling under the definition of bullying if a principal makes the determination that the conduct was an isolated incident. He stated that deleting this sentence, would force administrators to look more closely at the conduct, rather than number of incidences. Armstrong emphasized the importance of training. She stated that the Department could address these concerns through training if it were to leave the definition as is. She explained that removing the sentence regarding isolated incidences could result in labeling all undesirable conduct as bullying. Armstrong stated that the Department does not want to label a child a bully because of one incident. She emphasized the importance of the Department capturing all of these sentiments in its language. Board Vice Chairperson De Lima stated that bullying is clearly defined, which should reduce the risk that all undesirable conduct will be labeled as bullying.

Military Representative Captain Lyn Hammer agreed with Vice Chairperson De Lima. She stated that the Department of Defense conducts legal reviews when it changes and updates instructions to make sure that rules reach a legal threshold. She stated that the sentence implies accountability to a degree if principals want to use the definition to hold individuals accountable. She suggested that the Department articulate these concerns and the intent to add a comfort level to the definition.

Board Member Voss agreed with Board Vice Chairperson De Lima. He noted that as general statutory interpretation, it is not a good idea to include a carve-out in a broad definition. He stated that it is better for the Department to address behaviors that are not bullying in training. Board Member Voss stated that when he reads the definition, he does not understand the difference between bullying and harassment. He noted that it appears as though the Department borrowed its bullying language from employment law describing a hostile work environment. He stated that the conduct that the Department would be penalizing falls under both terms. He asked about the difference between bullying and harassment and asked how school administrators will distinguish between the two.

Armstrong stated that bullying could be written, verbal, or graphic acts that hurt or harm. Other actions that are annoying and inappropriate may not fall under bullying and may be one-time incidences. She explained that the Department initially combined the terms, but administrators provided feedback that Chapter 19 should contain guidelines on incidences that are not bullying but still inappropriate. She stated that if a behavior is not continual bullying or a severe enough incident to have a negative effect, that behavior could be harassment.

Board Member Voss stated that behavior that is not sufficiently severe, pertinent, or pervasive is not bullying. He asked if harassment is “light bullying” and asked how teachers are supposed to distinguish between the two. Board Chairperson Payne stated that it would be helpful for the Department to include in its materials that it decided to make certain changes based on feedback from school administrators. Board Member Patricia Bergin stated that it is up to school administrators to make the final decision. She stated that she does not think that the Department needs to carve out separate terms because school administrators are the decision-makers and will determine whether an incident is isolated or not. She agreed with removing the last sentence in bullying definition with the isolated incident exception because the preceding sentence is clear and provides the necessary support and flexibility for the school administrators making these decisions. Covell stated that administrators provided feedback and asked the Department to insert the last sentence so that they could be clear on the differences between harassment and bullying. She explained that bullying is a Class A offense and is distinguishable because it is severe. If the definition describes what bullying is and is not, it makes it distinguishable for administrators and easier for them to make decisions. Armstrong explained that sufficiently severe, persistent, or pervasive is the difference between bullying and harassment and creates the separating factor. She explained that harassment is still inappropriate behavior. Armstrong stated that the Department included the isolated incident distinction in its definition to make clear it to school administrators that every incident will not be bullying, but the conduct may still inappropriate based on the circumstances.

Board Member Voss stated that the term “hostile work environment” has been debated in courts for decades, and the Department is using hostile work environment language in its definitions. He stated that it will be difficult for school administrators to figure out how to apply these definitions. Board Vice Chairperson De Lima stated that he agrees with the written testimony from Thaddeus Pham, member of the public. He stated that the harassment section emphasizes the word “substantially.” Board Vice Chairperson De Lima stated that “substantially interfering” is subjective and minimizes behavior. Board Vice Chairperson De Lima stated that this gives the impression that a high burden needs to be met and he does not believe that this is the Department’s intent. He stated that he would like the Department to remove the word “substantially.” Armstrong stated that she agrees with removing the word “substantially” from the definition of harassment. Board Vice Chairperson De Lima referenced SEAC’s testimony and stated that SEAC raised good points in terms of changing “as soon as possible” language to “within 24 to 48 hours.” Student Representative Texeira added that from the student perspective, students want immediate results when they raise bullying concerns to administrators. If administrators are confused about timeframes, students will be unsure of how administrators will address the incidences. He stated that there would be more efficiency in addressing student concerns if timeframes were clear. Armstrong stated that she would address these concerns later in the presentation.

Armstrong reviewed the Department’s amendments to “cyberbullying” and “disorderly conduct.” She stated that the Department amended the definition of “cyberbullying” to clarify that it becomes a school’s responsibility to address an off campus incident once it impacts students on campus. The Department revised the “disorderly conduct” to reinsert language regarding inappropriate physical conduct, which was inadvertently omitted from the previous draft. Armstrong stated that these amendments were a result of discussions the Department had with school administrators and communities. She highlighted that Chapter 19 is the last step of the comprehensive student support system. School administrators use Chapter 19 only after schools implement positive behavior support, trauma support, social and emotional learning, classroom rules and regulations, and other supports that are designed to encourage positive behavior. Armstrong reviewed changes to Class A and Class B offenses. She explained that the level of offense does not determine the consequence. Administrators consider many factors, including the age of the offender, the severity of the offense, gang affiliation, past history, and a student’s need, in order to determine the most effective consequence to deter negative behavior from occurring again. She explained that the most severe behavior falls under Class A offenses while Class B offenses are still severe behaviors but less severe than Class A.

Armstrong detailed the amendments regarding the applicability of Class offenses to various grade levels. Middle school principals advised the Department to keep certain behaviors as Class B for middle schools, but make them Class A offenses for high schools. This was based on middle school adolescent development. Military Representative Captain Hammer stated that she did not understand the difference between Class A and Class B offenses and asked why the Department had these different classes if they do not determine the consequence. Armstrong explained that the Department used to tie consequences to the class of offenses, such as informing the police for higher level offenses. The Department no longer does this. The levels help the Department categorize the offense but not the discipline. She noted that whether these classes are necessary at all is a separate discussion.

Board Member Voss disagreed with Armstrong and stated that different offense classes matter. He explained that the reason why Board members advocated moving bullying to Class A was to give administrators a tool if a student was targeted because he or she belonged to a protected class. He stated that severe behavior has to have severe consequences. Board Vice Chairperson De Lima stated that if schools are implementing intervention and other supports to modify behavior, students should understand that some things are more serious than others and that there are associated consequences. He stated that the reason to move bullying to a Class A offense was to elevate students’ understanding that committing a Class A offense is a serious matter and to deter the behavior. Board Vice Chairperson De Lima stated that that these rules are a part of an overall effort to help students understand the importance of their behavior and how they need to modify behavior. Board Member Cox stated that she understands why administrators provided feedback for the Department to revise offenses for different grade levels and stated that she is in agreement with this. Military Representative Captain Hammer stated that she agrees with the distinction but explained that it would be challenging for the Department to train school administrators on how to apply the different classes of offenses. She noted that victims would argue that they want standards and serious consequences. She encouraged the Department to create a standard moving forward because it would help administrators implement appropriate punishment and would also protect victims.

Armstrong stated that the Department understands that training will be crucial. The Department will start preparing for training and plans to invite stakeholder groups and include many different perspectives in its training. Board Member Kenneth Uemura asked for clarification on standards in regards to Class A and Class B offenses. He stated that principals would have the discretion to determine consequences and asked if the Department is providing school administrators with guidelines to determine appropriate consequences. Armstrong explained that principals would consider several factors but must also consider the individual student. She noted that administrators might take different approaches, such as detention, suspension, or another form of discipline in order to try to modify behavior. In addition, school administrators may need to determine whether the student needs supports because he or she is the victim in a separate bullying incident. She stated that school administrators use many factors to determine appropriate consequences, including knowing the child and understanding, but not accepting, the reasons why a situation occurred. School administrators must determine the necessary discipline, support, and follow-up to modify behavior. Board Member Uemura asked for more clarity. He asked if school administrators could use the aforementioned factors to determine that a Class A offense should result in a Class B punishment. If this is the case, the severity of a Class A offense is not clear. He asked about the guidelines school administrators have in determining consequences once the administrator determines that the behavior is a Class A offense. He asked if the Department reviews the decisions of school administrators and asked about the checks and balances that the Department has in place.

Armstrong explained that vice principals and principals are given the authority to administer discipline. She noted that students and parents can appeal suspensions over ten days, but suspensions under ten days are not appealable. She explained that the discipline might look different from one student to another. For example, a short suspension is a serious consequence for some students that would deter behavior from reoccurring. For another student, a short suspension may not be effective. She stated that administrators would need to determine the appropriate consequence based on the severity of the action and effectiveness in modifying behavior.
Board Member Uemura stated that he wants to ensure that consequences align with the class. He asked whether school administrators are able to administer any discipline they want. Armstrong explained that principals use their professional judgment and experience. Board Member Uemura asked if any checks and balances exist and if there are guidelines for consequence. Armstrong stated that school administrators can administer any consequence they think appropriate. Board Member Uemura asked if school administrators are aware of the various consequences they are able to administer. Armstrong confirmed that they are. Board Member Dwight Takeno expressed concern over the level of corrective action versus discipline because the Department is trying to correct behavior, not punish, in order to ensure that negative behavior does not continue. He asked if the Department reviewed issues of equity in corrective actions that schools may impose. He stated that there could be problems due to the discretion that school administrators have. He stated that parents might raise concerns if a school administrator administered different levels of consequences for the same behavior. Armstrong stated that administrators already face similar challenges and stated that schools need to build trust with their communities. Schools that have a trusting relationship with their community have more effective communication. She noted that school administrators may impose different consequences for the same undesirable behavior, but the rationale includes various factors that help to determine the appropriate consequence for the individual student. Board Member Takeno asked if these concerns could lead to potential challenges. Armstrong stated that sometimes they do. Phyllis Unebasami, Deputy Superintendent, stated that the philosophy behind Chapter 19 is the understanding of the optimal learning conditions for students and recognizing the needs of a particular student involved in an incident. She stated that school administrators need to determine the severity of the behavior and align consequences accordingly. School administrators need to determine how to help a student grow socially, emotionally, and academically and understand the tools they at their disposal. She stated that Chapter 89 and Chapter 19 strive to provide parameters and guidance so school administrators serve students better. She stated that these are difficult conversations for school administrators, and these administrative rules will not be able to cover everything that they need to make these determinations. Military Representative Captain Hammer asked about the supports available for victims. She stated that the Department appears to be focusing on the supports for students who are aggressors, however, bullying and cyberbullying impacts students who were victims. She stated that there should be more conversation regarding the creation of a nurturing environment for students who were bullied. She asked if the Department is offering support for bullying victims. Military Representative Captain Hammer stated that bullying rarely happens in a vacuum.

Armstrong explained that the resolution agreement with U.S. Department of Education’s Office of Civil Rights (“OCR”) that pushed the Department to revise Chapter 19 requires follow-up with victims. She stated that the Department would be providing written follow-up to the victim and families, which will include the supports the victim would be receiving or the changes the school would make in the environment for the victim. Armstrong added that the Department would also document this information in its database. Board Member Voss noted that Unebasami did not answer Board Member Uemura or Board Member Takeno’s questions. He stated that Board members were asking how these chapters would work in practice and whether there would be fair and equitable application across the system. He asked if the Department would track data regarding consequences for different class offenses and report this to the Board. Unebasami stated that the Department has a way to track data but is not yet satisfied with its data system. She stated that the Board should make a request if it is interested in the data, and the Department will make its data available. Unebasami noted that the Department has a committee that is working on the data system. She stated that Complex Area Superintendents are be central to reviewing incidences and sharing their conversations with school administrators with the state office level.

Board Vice Chairperson De Lima stated that parents are supportive of discipline. He stated that it is good for students to learn from their mistakes. He noted that it is difficult for parents to compare the discipline one student received versus another due to confidentiality rules. Board Vice Chairperson De Lima stated that discipline could help a student learn from the situation. He stated that it is difficult to develop standards because discipline is student-centered, and every student is in a different situation. He stated that the Board could receive data regarding various class offenses, but it would be unable to view the nuances. Board Vice Chairperson De Lima stated that he supports the Department making the changes that the Board suggested and sending its drafts to public hearing.

Board Member Cox stated that school administrators review the situation, speak with counselors, know the student’s background, and understand the severity. She added that this takes time for a principal to accomplish and to resolve incidences. Some parents may be unhappy with the discipline their child received. Board Member Cox stated that principals receive training on how to deal with individuals, investigate, and address situations.

Armstrong stated that the Department changed its timeline for investigations from five calendar days to five school days. She highlighted that Board Member Cox summarized the Department’s rational. School administrators need time to talk to individuals to understand the entirety of the situation and they often cannot do this on weekends or holidays.

Board Chairperson Payne stated that discipline alone will not change the character of a bully. She detailed that school administrators have to work to change school culture. She stated that the tools in the administrative rules help, but emphasized the importance of addressing school culture and understanding individual student needs. Covell stated that changes the Department made to Chapter 89 mirror the changes that the Department made to Chapter 19. She explained that the amendments were to address OCR’s guidance to make procedures more clear. Covell highlighted that the Department shared its amendments with the Department of the Attorney General and OCR attorneys. It received a letter that it had met the conditions of the resolution agreement for the procedures it put in place. Covell detailed the Department’s insertion of immediate intervention and explained that it added this to ensure immediate intervention as needed. The Department included that both the respondent and victim would receive a letter with the results of the investigation and substantiation of claims.

Covell stated that the next step would be for the Legislative Reference Bureau to conduct a technical review of the draft administrative rules if the Board grants the Department the approval to hold a public hearing. She noted that the Department has already gone through this process previously, so it expects this review to occur quickly. The Department would then need final approval from the Governor and then would post public hearing notices for 30 days prior to conducting public hearings. Once it conducts public hearings, the Department would return to the Board to recommend adoption. Once the Board adopts the drafts and the Governor signs them into law, the Department can move forward with implementation and training.

ACTION: Motion to approve the following proposed changes to administrative rules for public hearing: The amendments to the drafts contained in the Department’s memoranda dated February 7, 2019 for HAR Chapter 89 and Chapter 19 are as follows: The motion carried unanimously with all members present voting aye.

Board Chairperson Payne stated that the Board previously adopted policy positions supporting proposed legislation that advances the Board and Department’s strategic priorities for School Year 2018-2019, policy positions relating to the Hawaii State Public Library System, and other general policy positions. She noted that a number of legislative bills relating to charter schools have arisen on which the Board may want to authorize its Legislative Ad Hoc Committee to take positions.

Board Chairperson Payne recommended that the Board adopt additional policy positions relating to charter schools.

Board Member Voss stated that he attended legislative hearings for bills relating charter school facilities and companion bills regarding charter school food service. He stated that there has not been historical support for food service and asked if the policy positions allow the Board to support additional resources for school lunches. Board Chairperson Payne confirmed that they do.

ACTION: Motion to adopt the policy positions described in Board Chairperson Payne’s memorandum dated February 7, 2019, and incorporate them into the policy positions it adopted at its December 6, 2018 General Business Meeting for the 2019 Legislative Session, as shown in Exhibit A of Board Chairperson Payne’s memorandum (De Lima/Uemura). The motion carried unanimously with all members present voting aye.


VII. Executive Session
This portion of the meeting was closed under Section 92-4 and Section 92-5(a)(4), Hawaii Revised Statutes.
ACTION: Motion to move into executive session to consult with the Board’s attorney on agenda item VII.A., Briefing on proposed legislation with possible legal implications (De Lima/Uemura). The motion carried unanimously with all members present voting aye.

The meeting recessed at 3:08 p.m. and reconvened at 3:40 p.m.

The Board did not deliberate in executive session on agenda item VII.B., Discussion 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), or agenda item VII.C., Discussion 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.


VIII. Adjournment

Board Chairperson Payne adjourned the meeting at 3:41 p.m.