Saturday, October 27, 2018
Newspaper report of DOE policy change on bullying was woefully inadequate
by Larry Geller
- Paper omits finding of adult bullying of students
- Paper omits mention of lawsuit against DOE
Readers of the Star-Advertiser report published on October 6 (DOE discipline policy gets stricter on bullies, Star-Advertiser p.A1, 10/6/2018) will learn from the lead that the Department of Education is “catching up with the times”:
Far from voluntarily correcting its long-standing pattern of neglecting to protect students in its charge, the DOE is responding to a US Department of Education Office of Civil Rights report and also faces a class-action lawsuit filed against it on August 30, 2018. There was no mention of the lawsuit in the newspaper article.
The state Department of Education is proposing changes to its misconduct and discipline policy to get tough on students who bully, discriminate and harass.
Catching up with the times, the DOE also is proposing to create an offense for sexual harassment and specifically acknowledges sexual orientation, gender identity and gender expression in its protections against discrimination, bullying and harassment.
The lawsuit charges, in part (snip):
… the Department failed to adhere to even the basic expectations of parents and students attending public schools by neglecting its responsibility as policymaker, and by the blatant and repeated failure to protect victims of bullying and harassment. …
The continuing practice of the Defendants and their deliberate indifference towards victims of bullying and harassment harms all of Hawai`i’s students by systemically supporting the behavior, and needlessly puts the entire student population at risk of significant and irreparable damage.
A glaring omission in the report is the US Department of Education OCR finding that policies intended to protect students against harassment by third parties or staff are not available to students or their families.
Policy 305.10, Procedures Regarding Employee Harassment of Students, is analyzed in the OCR report and falls short of federal mandates.
… none of the procedures used by HDOE are sufficient to comply with the grievance procedure requirements under Title VI, Title IX, Section 504 and Title II.
HDOE submitted to OCR a Standard of Practice Document No. 0211(SP 0211)，released March 8. 2008，which is the document implementing Policy 305.10.17 OCR was not able to locate SP 0211 on HDOE's website, and HDOE has provided no information indicating that it has released SP 0211 to students or their parents.
The OCR report explains this policy:
HDOE identified Policy 305.10 (formerly titled Policy 4211) to OCR in November 2011 as the policy used when an employee harasses a student. Policy 305.10 prohibits discrimination, including harassment, by any employee against a student based on various protected classes, including race, sex, or disability. It further states that “a student shall not be excluded from participation in, be denied the benefits of，or otherwise be subjected to harassment, bullying, or discrimination under any program, services, or activity" of HDOE. It lastly states that retaliation against anyone engaging in a protected activity is prohibited. Protected activity is defined under the policy as follows: filing a complaint of harassment, bullying, or discrimination; participating in complaint or investigative proceedings dealing with harassment, bullying, or discrimination under the policy; inquiring about one's rights under the policy; or otherwise opposing acts covered under the policy.
The Star-Advertiser story discusses only the proposed rule changes to Chapter 19 affecting student discipline.
Attorney Eric Seitz squares off against nemesis AG Russel Suzuki
It was déjà vu: one of the two lead plaintiff attorneys in the long Felix Consent Decree special education case, Eric Seitz, faced then Deputy Attorney General Russell Suzuki for more than a decade. Now they meet again in a new class-action suit, this one revolving around the alleged failure of the Hawaii Department of Education to protect students against rampant bullying.
Just as in Felix, Seitz is trying to end a long-standing abuse.
I have to admit that I immediately searched Suzuki’s answer to Seitz’ complaint in Civil No. 18-00332 to see if he is still claiming the “sovereign immunity” defense repeatedly asserted during Felix—that is, holding that the state cannot be sued without its consent. Sure enough, it’s in there. It never worked in Felix and I assume it won’t work this time, either.
In Felix, the overarching theme was the state’s refusal to provide any semblance of special education services, as required by federal law, to students who would qualify for them. Probably the number of students affected, including those who aged out of the system before and during the 12-year process in federal court, was in the tens of thousands.
Anecdotally, bullying is endemic in the Hawaii school system, and the DOE has failed to protect students. A survey reported in the US Department of Education OCR report provides solid evidence that this is correct.
OCR conducted a compliance review of the policies, procedures, and processes used by DOE for responding to complaints of harassment of students on the basis of race, color, national origin, sex, or disability. Their report is dated January 19, 2018. See a short excerpt of findings in the sidebar. The full report can be downloaded from Disappeared News here (OCR copy, may contain errors).
The survey, and the entirety of the OCR report, puts us now on sound evidentiary territory—there need be less reliance on anecdotal reports.
Note that the survey provides evidence that in 14.6% of all responses from
students who indicated both being harassed and having reported it to school officials, the students
indicated that school officials took no action in response.
Editorial goes easy on DOE
A companion editorial (A stronger plan to fight bullying , Star-Advertiser p. A8, 10/10/2018) falls short of chastising the DOE:
Yes, schoolyard bullies have been around forever. But that’s no reason to tolerate such behavior.