Our laws are the often the skeleton of the issues we hope to address as a society. The meat, tissues, blood, etc. are often regulations and case law. In Washington State, we have the Washington Administrative Code (WAC). As defined on the state website, “[r]egulations of executive branch agencies are issued by authority of statutes. Like legislation and the Constitution, regulations are a source of primary law in Washington State. The WAC codifies the regulations and arranges them by subject or agency.”
The Office of the Superintendent of Public Instruction is responsible for the WACs that impact schools. In 2010, there were important changes to the non-discrimination in education law and the creation of the harassment, intimidation, and bullying (HIB) law. Initially, OSPI sought wide-community inclusion in the rule-making. Despite this, the rules they issued in December 2010, did not actually incorporate the impact the community provided on how to create nondiscriminatory schools. Instead, the OSPI took the regulations that existed based on Washington’s version (RCW 28A.60) of Title IX (the federal ban on sex discrimination in education) and tweaked it to cover all of the additional classes. These WACs ignored the intent of the legislature, which sought to address systemic discrimination and the consequences of systemic discrimination which resulted in an achievement gap.
Recently, the OSPI made an under-the-radar change to the legislation. I say under-the-radar for a variety of reasons. First, they didn’t reach out to people who had provided input in 2010. Second, they did not provide information through simple mediums like Twitter (where they have an account @waOSPI). They were posting in the timeframe of the Notice, but topics included “5 ways to use social media to connect parents in the classroom,” “Yes! Librarian transforms school bus to deliver books to kids in need,” and “Schools out but kids still need nutrition!” The same is true for their Facebook account (/waOSPI).
Based on a review of the WACs, I think the changes they made are so substantial, and with the exception of requiring that information be provided in languages that are understood by parents or involved parties, weaker than the previous version. One of the biggest changes is radically decreasing OSPI responsibilities. Had they not done this under the radar, I have little doubt that there would have been vocal objections to the changes, particularly the changes in the complaint process.
Between the date of the Notice, July 17, 2014 @ 11:51 AM to the Hearing on August 28, 2014 at 9:00 AM, there was not a single social media announcement about the proposed change.
So what exactly did OSPI set out to do and what did they do?
Based on the language in the OSPI Notice, they set out to improve the ability to effectively address discrimination and clarify requirements and scope of OSPI and the rules. Here is the language from their Notice:
Purpose of the proposal and its anticipated effects, including any changes in existing rules:
The proposed rules are intended to (1) revise the complaint procedure in WAC 392-190-065 through 392-190-075 to more effectively address allegations of discrimination within Washington public schools; (2) clarify the requirements and scope of OSPI monitoring under chapters 28A.640 and 28A.642 RCW; and (3) increase readability of the rules. OSPI anticipates that the revised rules will result in a less adversarial and more cooperative process to resolve discrimination complaints and will ease the financial and emotional burden on families and school districts when confronting these issues.
Reasons supporting proposal:
The proposed revisions to chapter 392-190 WAC are necessary to provide a more efficient and equitable resolution of discrimination complaints for both school districts and families, and are responsive to concerns and recommendations by stakeholders. The revisions are intended to encourage school districts to resolve concerns about discrimination at the lowest level possible and reduce the likelihood that these matters will be taken to court. Additional changes are needed to increase readability and clarify requirements.
Based on the amended WACs, their goal does not match their notice. From an initial read, it appears as if their main purpose was to make sure that Charter Schools were clearly covered. The rest of the WACs are a mixed bag. Some things are good (like making sure anti-discrimination materials are provided in language parents/guardians understand) others seem like they are attempting to limit liability of schools by intentionally interrupting the reporting up to the higher levels. Below is a essentially a paragraph by paragraph review of the amended WACs.
- In the discussion below I typically use “schools” as a shorthand for saying “school district or public charter school.”
- I use the term “protected class” to stand for “sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation, gender expression or identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal.”
Purpose -Elimination of unlawful discrimination in public schools – WAC 392-190-005
- The WACs removed the language that the intent of the chapter is to encompass similar substantive areas addressed by federal civil rights authorities and in some aspects extend beyond those authorities.
- Tacked on at the end of the section is a paragraph that states that unless otherwise stated, OSPI adopts the definitions, requirements, and procedural safeguards set forth under Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, Title IX of the Education Amendments of 1972, and Title VI of the Civil Rights Act of 1964.
- It adds a paragraph saying that OSPI will develop guidelines to supplement the chapter and guide its interpretation and administrative enforcement of the chapters.
Compliance with Federal Law – WAC 392-190-007
This is a new section that says, unless otherwise provided, OSPI adopts the definitions, requirements, and procedural safeguards set forth under Section 504, Title II, Title IX, and Title VI of the Civil Rights Act. One of the things that is unfortunate about this is that state laws and regulations often go further than federal laws (and in many ways our state laws do, so they are “otherwise provided” in the WACs) but there are places where this may seem to curtail state protections. For example, one of the court cases that provided for more equity in athletics in Washington was based on our Equal Rights Act, not Title IX or the state ban on sex discrimination.
Counseling and Guidance Services
Counseling and Guidance Services – Course and Program Enrollment – WAC 392-190-010
- The language here is altered in a way that may have intended to make less legalese, but it shifts it in such a way makes it seem weaker. Instead of saying “No school district shall engage in discrimination” it says they “must not discriminate.” The possible difference is centered around the idea of intention. Schools that cannot engage in discrimination may not do so, even if they did it unintentionally. A school that must not discrimination could argue that they did not engage in behavior intentionally and therefore even though there was a discriminatory result, because there was not a discriminatory purpose they are somehow off the hook for their behavior. This is not necessarily what would happen, but it is worth noting, as in the context of employment discrimination intent is a major factor. Education is supposed to be different than employment (it’s mandatory, the power differential between student and teacher/building/district, etc is so great). Thus, the language that seems like it is shifting focus away from impact to intent raises red flags.
- There is a similar type of concern in paragraph five, where the is a change from “results” to “has resulted” in a substantially disproportionate number of students. Again, this change is subtle, but it change the idea that the result itself can be looked at to having to focus on whether something created the result.
- A annual review process has been added. At last annually schools must review student enrollment data within courses and programs disaggregated by sex, race, limited-English proficiency, and disability and determine whether a “substantially disproportionate number of students within these categories are enrolled in a particular course or program.
- If schools find out that there are there is a substantially disproportionate number of students in a course or program (instead of class), the school may now take “prompt” instead of “immediate” action “to ensure” (as opposed to “as is necessary to assure”) the disproportion is not the result of discrimination.
- There is an expansion of the areas to look for discrimination, this includes adding identification and selection of students, and course and program enrollment criteria, as well as adding a catch all provision – “other factors related to course and program enrollment.
Training – Staff responsibilities – Bias awareness – WAC 392-190-020
- The training-Staff responsibilities has changed. It is no longer “in service”. Schools are no longer required to provide bias awareness and elimination training in in service training programs. Instead, schools must offer or provide training to administrators and certificated and classroom personnel regarding their responsibilities under the chapter and raise awareness of and eliminate bias based on the protected categories.
Recreational and Athletic Activities
Recreational and Athletic Activities – WAC 392-190-025
- There is a strange change of language, instead of maintaining the language “No personal shall… be excluded from participation in, be denied the benefits of, or otherwise be discriminated against…” the language has been changed to “school districts and public charter schools must not…. exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against any person….” This is consistent with the changes that seem to be focusing on what the school district actively does instead of focusing on the actual impact, regardless of whether it is the result of intentional or unintentional actions.
- The WACs now exempt inclusion of “boxing, wrestling, rugby, ice hockey, football, basketball, and other sports in which the purpose or major activity involves bodily contact.” This means, the WACs are changing the culture of creating spaces for girls in athletics and saying that a girl is no longer required to be allowed the girl to join the boys’ wrestling team when there are not sufficient athletic opportunities. It is unclear whether this is consistent with federal law or our state’s equal rights amendment.
- Again there’s another change in language that appears to weaken the language, “No school district shall” and then clarifying the limited exceptions, to leading with “Except as provided under this section, school districts and public charter schools must not… “
- The sports regs, which were primarily about sex/gender now add language addressing students with disabilities, saying that if these students cannot participate in existing activities even with reasonable modifications and necessary accommodations even with reasonable modifications a school may offer different opportunities (note the permissive language “may” provide as opposed to “must” provide).
Recreational and athletic activities – Student athletic interest survey – WAC 392-190-040
The change here seems odd, it requires OSPI’s approval to modify or amend the survey instrument, but there doesn’t seem to be anything about what survey instrument that is being modified or amended. It doesn’t say that OSPI has a model survey that schools can amend.
Recreational and athletic activities – Facilities – WAC 392-190-045
While the name of this section was changed to remove “sex discrimination” the overall change seem positive. If facilities are shared, it adds that they must be scheduled equitably. Absent from this is any discussion about of increasing the accessibility for students with physical disabilities.
Access to Course Offerings
There are two new sections:
- Access to course offerings – WAC 392-190-046 – schools must ensure that no student is denied or limited in their ability to participate in or benefit from course offerings based on their protected class.
- Access to course offerings – student discipline – WAC 392-190-048 – at least annually, schools must review disciplinary data, including but not limited to short-term suspensions, long-term suspensions, and expulsions. The school is required to to determine whether it has disciplined a substantially disproportionate number of students within any of protected classes. If so, they are supposed to make sure that the disproportion is not the result of discrimination.
Access to course offerings – Separate programs or activities – WAC 392-190-050
- Instead of limiting the age range when p.e. classes can be segregated to grades 7 through 12, they can apparently be separated from preschool on. The standard is also lowered from “clearly be shown” … “to truly constitute the best method \of providing both sexes, as a whole, with an equal opportunity…” to a lower standard of simply it can “be shown” that maintaining a separate physical education class or activity for boys and girls is the best method…” and now students can be separated if a class or portion of a class deals primarily with human sexuality instead of exclusively with human sexuality.
- Textbooks and Instructional Materials:
- Instead of covering any form of instruction provided by a school, it has now been limited to “textbooks or instructional materials, including reference materials and audio-visual materials.” (As a parent with kids in school, I wonder if this is intended to limit school liability in the event that schools use internet based materials.)
- A screening criteria is created in the WACs.
- There’s language about books that still contain bias – what is particularly troubling here, is that the initial WACs were adopted in 2010. Instead of saying that schools should have phased out these books it maintains language. Not only does it maintain the language, but by adding charter schools in the way that it was referenced, it does not acknowledge that charter schools did not exists when the WACs were initial in place and therefor no charter school should have biased materials. But the way this is written, charter schools could potentially get away with having biased instructional materials, arguing that the materials “cannot be replaced immediately.”
- There is a new section on Discriminatory harassment (392-190-0555).
- This section specifically states that for “purposes of administrative enforcement of this chapter, a school district or public charter school violates a student’s rights regarding discriminatory harassment, including sexual harassment when…”
- conduct is based on a protected class
- the conduct is “sufficiently severe, persistent, or pervasive that it limits or denies a student’s ability to participate in or benefit from the school district’s or public charter school’s course offerings, including any educational program or activity (i.e., creates a hostile environment); and
- The school had notice and failed to take “prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.”
- notice of discriminatory harassment exists when a reasonable employee knew, or in the exercise of reasonable care should have known, about the harassment.
- Sexual Harassment – Definitions has been changed to remove a section that school districts must be guided by federal and state case law in their interpretation of sexual harassment complaints, etc.
- Sexual Harassment Policy –
- for some reason the fact that these policies were supposed to be adopted by June 30, 1995 was deleted. This is problematic because the “must be adopted and implemented” language is maintained, instead of converting to the past tense, “must have,” which makes it seem like it is no longer a violation if the schools do not have a policy.
- Definitions no longer are required to be consistent with the statute, but instead with the WAC, they don’t have to have district and staff responsibilities or informal grievance procedures.
- Notification – OSPI is no longer responsible for reviewing school policies.
- Schools no longer have to make reasonable efforts to inform students and their parents about the district’s policy and procedure. Instead of being required to provide a copy of the policy and procedure, now all districts have to do is provide information in publications.
- Harassment, intimidation, and bullying (HIB) prevention policy and procedure.
- For some unknown reason, the requirement to adopt a policy by August 1, 2011, is eliminated. Similar to the sexual harassment policy date deletion, it is still in future tense, and now with no deadline for compliance.
- OSPI is again no longer responsible for reviewing the policies. Instead, if a written HIB report indicate a potential violation a violation under “RCW 28A.300.285 “(so much for clarity – looking this up it is the bullying statute) and the staff member who receives the report must notify the district employee designated under WAC 392-190-060 (the unlawful discrimination WACs). If in a bullying complaint there is a belief that it is unlawful discrimination, it also must be referred to the designated employee.
Compliance and Complaint Procedures (WAC 392-190-060 through 392-190-0751)
There are a lot of changes to these sections. I find most of the changes to be concerning. Some continue to perplex me. I have never understood, and will never understand, how organizations like OSPI and schools can obstinately refuse to do what it takes to create schools where all students learn. These revisions seem to work to take OSPI off the hook for any potential liability and/or minimize the role OSPI plays, while also weakening the complaint procedures in gender. Again below is more detailed section by section description.
Designation of responsible employee – Notification – WAC 392-190-060
- The amendment removes “immediately” with regard to the superintendent designating at least on responsible person. It is unclear why they would remove the requirement to “immediately” and did not at least replace it with a timeline as to when someone has to be appointed.
- The amendment also strikes out “appeal” when saying that school have to notify students, parents, guardians, and employees of the complaint and appeal process. It is unclear if this is intended to mean that schools do not have to describe the appeal process or if the appeal process is considered part of the complaint process and therefor it must be disclosed.
- The responsible employee is also apparently no longer responsible directly to the superintendent. – This raises a question of whether there is a deliberate attempt to buffer the superintendent from the “should have known” category. It also raises questions about who the responsible employee is accountable to.
- There’s also an internal inconsistency, in 392-190-060 it says that this person is supposed to investigate any complaint. Then under 065, it implies that a an employee who receives a complaint must make their own determination and then if they decide it meets the criteria, then they are supposed to pass it along to responsible employee to investigate. This kind of internal inconsistency not only confuses things, but it creates additional barriers to investigation of reports and instead of being facilitators of reporting issues, school employees becomes gatekeepers that could prevent a complaint from moving forward.
- A positive change is that the language was changed regarding notification, the best change is that it requires the notice to be provided to parents and guardians in a language they understand.
- A nondiscrimination blurb is now required in written announcements, notices, recruitment materials, employment applications, forms, and other publications. This blurb is supposed to say the school doesn’t discriminate based on the protected classes and provide the name, title, office address, and telephone number of the designated employee(s) of the nondiscrimination statute and under Section 504 and Title IX. This notice also has to say that they provide equal access to the Boy Scouts under the Boy Scouts of America Equal Access Act.
- There is also now explicit language that schools are also prohibited from adopting any policy, procedure or practice that would limit a person’s right to file a complaint or have the effect of discouraging any person from utilizing the complaint procedure. Schools must not intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any rights under the nondiscrimination regulations (WACs) or because the individual has made a complaint.
Compliance – Complaint Procedure – WAC 392-190-065
- One of the big changes here is that it seems to go from saying this is the procedure to saying that schools must establish a procedure that meets the outlined minimum requirements. Reports still have to be written and describe specific acts, conditions, or circumstances. The written requirement is similar to what it was previously. But it is a barrier. It’s not like a student can schedule a meeting with a counselor or a teacher and complain about something and believe that this is a complaint and it will be sent up the chain. No, a written report has to be filed.
- Then there are several new sections – including that schools can establish a complaint deadline, although fortunately the deadline cannot be less than a year after the occurrence. There are also protections surrounding the deadline if the school misrepresents that the resolved the problems; withholds information that was required to be provided in section 005 (which really doesn’t make sense because this is purpose section, not the notification section).
- Complaints can be delivered to any school administrator or any designated responsible employee. An annoying thing here is that if a school administrator gets a report, they are not required to turn this report over to the designated employee, instead they determine whether it meets the criteria and then they must promptly notify the designated responsible employee.
- Upon receipt of this written report they designated responsible employee is required to give a copy of the school’s discrimination complaint procedure (note it doesn’t require this any time someone complains, this is after someone understands the policies enough to actually know that the written report must be filed).
- The language that the investigation should be done as “expeditiously as possible” is removed, leaving only that it has to be done within 30 calendar days (as a side note for bullying, harassment and intimidation the report has to be done within 5 days). There is also language added to allow for an extension of time based on the vague “exceptional circumstances related to the complaint require an extension” standard. It does require a response to go to OSPI.
- The response guidelines are modified to now require a summary of the results of the investigation, whether the school district has failed to comply, notice of the right to appeal. One notable difference is that this changed the standard from “whether the school district denies the allegations” to “whether the school district or public charter school has failed to comply with this chapter.”
- Now instead of needing to “eliminate any such act, condition, or circumstances within the school district ” a school district must simply “correct the noncompliance.”
- They eliminated the starting point of the timeline being when the response is mailed to simply being the response date – seemingly irregardless of when the school provides this to the person who complained.
- A requirement is added that the response must be in a language the complainant can understand. While this is good, it should be more expansive and state that it should be in the language the complainant understands, or if the complainant is a student, a language their parent understands (although that can be problematic for LGBTQ kids and possible dangers at home related to their identity).
- It is also disturbing that they have added a line that if the complainant and the school resolve the complaint, “no further action is necessary under this section.” This means if an issue comes up about say pervasive sexual harassment and one student complains. The school is aware that it is a wide-spread problem, but some sort of agreement is made with regard to a particular victim. Based on this additional sentence, the WACs seem to be advising schools that they do not need to do any additional work to improve the school environment.
- After all these requirements for written complaints, they do say that schools can come up with a method for an informal complaint procedure (including verbal), but that if these informal processes exist, schools must notify complainants about their right to file a formal complaint.
- One new feature is that schools are required to provide a copy of the response to the office of superintendent of public instruction.
Compliance – Appeal procedure – School District or Public Charter School – WAC 392-190-070
This whole section was re-written. Originally it provided clear guidance on when and how an appeal could be made to the school board. An appeal required the board to schedule a hearing to commence within 20 days and required a complainant and the school to be allowed to present witnesses and testimony. A decision had to be made within 10 days. The revision eliminated all of that. Now it is vague and unclear – the complaint procedure of the school must provide an option to appeal to a “party or board that was not involved in the initial complaint or investigation.” A time limit may be established to file appeals, but it cannot be less than 10 days; and the school must provide a written appeal decision to the complainant within 30 days.
Compliance – Complaint procedure – OSPI – WAC 392-190-075 –
This provision is also re-written and clearly limits the responsibilities or action that OSPI must take. In the prior version, if a complaint was appealed to OSP, OSPI must conduct a formal administrative hearing in conformance with the Administrative Procedures Act. There was also a clear timeline (20 days) in which the appeal had to be made. There was a requirement of de novo review. Now, when OSPI receives the appeal (which has greater requirements, some that may be impossible for a student/parent/guardian to meet, like providing the address of other the other student(s) involved), OSPI may initiate an investigation. There are no guidelines as to when they may or may not perform an investigation. If OSPI investigates and finds a problem they will include corrective actions deemed necessarily to correct any non compliance.
Mediation – WAC 392-190-0751
This is an entirely new section, which is basically that a school and the complainant can use the services of a trained mediator. This isn’t necessarily a bad thing, but it is worth noting, mediation is required in family law cases, except if their is domestic violence. The same logic would apply for a lot of discriminatory settings – that the power differential and the dynamics involved in the violence are simply to great to allow for meaningful mediation.
Monitoring Procedures- Results – WAC 392-190-077 – changes here are minimal.
Monitoring Appeal Procedure – WAC 392-190-079 – changes are minimal.
Violations – Permissible sanctions – WAC 392-190-080 – changes are minimal.
Concurrent claims and remedies – WAC 392-190-081 – changes are minimal.
Provisions that were completely deleted:
The WACs didn’t provide anything other than the name and the WAC number. I have included a description of the provision they eliminated.
Counseling and guidance – sex discrimination – Duty of certificated and classroom personnel – Coordination of effort – WAC 392-190-015
This part of the statute has been in existence since at least 1989. It barred all certificated and classroom personnel from limiting opportunities based on sex. It also required encouragement of students to pursue nontraditional occupations for men and women.
Recreational and athletic – Sex discrimination – Equal opportunities – Separate teams – WAC 392-190-026
This provision required sports teams and programs be equally open to participation by qualified members of both sexes. For grades 7 through 12, a school district could maintain separate teams for each sex if: it truly constituted the best method to provide equal opportunity to participate in the sports or games of their choice, and at the same time time, a test of substantial equality(which it defined) between the two programs was met.
Recreational and athletic activities – Elementary and secondary level – WAC 392-190-035
This was the provision that when interscholastic, club, or intramural athletics are provided at the K-6 level, that schools will provide equal opportunity and encouragement for physical and skill development. At the 7-12 level interscholastic and intramural opportunities must also be provided equal opportunity and encouragement.
Monitoring results – Complaints issued by superintendent of public instruction – WAC 392-190-078
This clarified that OSPI could initiate a complaint and outlined the procedure for an OSPI complaint against a school district.