Turning the Bainbridge Island Alleged Teacher Abuse into a Learning Moment

The Bainbridge Island Police Department has arrested 26-year-old teacher Jessica Fuchs for illegal sexual conduct with a 16-year-old sophomore (based on the charges, the student was likely 16 when all incidents occurred). I blogged about this case here. Inside Bainbridge has several articles regarding the case and the arrest. Bainbridge Islander also has articles as does the Kitsap Sun.

According to Inside Bainbridge she was charged with Sexual Misconduct with a Minor in the 1st Degree, a class C felony (RCW 9A.44.093, makes it a crime for a teacher to have sex with a student who is at least 16 years old, when the teacher is at least 60 months older than the student, a Class C felony is a maximum of 5 years in prison); Communication with a Minor for Immoral Purposes, a gross misdemeanor (maximum of 364 days), and Tampering with a Witness, also a Class C felony.  If the student had been 15 when some of the incidents occurred other criminal laws would have also applied regarding rape of child or molestation of a child.

» Read more

Mercer Island School District v. Office of the Superintendent of Public Instruction and parents of B.W.

On April 13, 2015, Division I issued its decision in the Mercer Island racial discrimination case that I previously wrote about here. Division I found that in the the administrative context (i.e., working with the school district and OSPI as opposed to filing a civil suit for damages in court), school districts that have actual or constructive notice (also known as the knew or should have known standard) of racial harassment, the school must take immediate and appropriate action to investigate or otherwise determine what occurred. It further requires that every investigation should be prompt, thorough, and impartial. Finally, it imposes upon the school the duty to take prompt and effective steps reasonably calculated to end harassment, eliminate any hostile environment and its effects, and prevent harassment from recurring.

The knew or should have known standard is a lower standard than the deliberate indifference standard. The court noted that even though the deliberate indifference standard creates a lower burden for a school district, to avoid administrative liability the school district still failed to meet the deliberate indifference test. The court likely went into this discussion to make sure that if the case was appealed to the State Supreme Court that the justices would not doubt how Division I would have ruled. This would mean if the State Supreme Court eventually reverses the knew or should have known standard, the overall holding of this case will not be reversed, because the court of appeals clearly demonstrated that they would have ruled the same way using the higher threshold.

Mercer Island School District, Res. V. N.W. And R.W., On Behalf Of B.w., Apps., Docket No. 71419-8-I, File Date: April 13, 2015; Opinion: Dwyer, Concurrence in part: Verellen; Counsel for Appellant: Ernest Saadiq Morris; Counsel for Respondent Parker a Howell and Jeffrey Ganson Counsel for OSPI and Amicus on behalf OSPI: Justin Kjolseth; Amicus on behalf of the ACLU: Sara Dunne and La Rond Baker

Oversimplified facts: A student targeted B.W., calling him names on multiple occasions. B.W. The targeted student’s grades dropped in that class. Part of the reason the grade dropped was that instead of writing on topic, he submitted two papers describing a random and violent accident happen to the aggressor student. Once the targeted student transferred out of the class, he began earning “A’s” and there were no more concerns about his behavior.

The court first focused on the deliberate indifference standard. In order to satisfy the deliberate indifference standard, the parents were required to establish: (1) racial discrimination; (2) knowledge by an appropriate person of the discrimination; (3) deliberate indifference by the district; and (4) discrimination that was sufficiently severe, pervasive, and objectively offensive that it can be said to have deprived the targeted student of access to the educational opportunities or benefits provided by the school.

Per the opinion, the school made several mistakes in dealing with this situation. Based on the deliberate indifference standard, these include:

  • The school district looked at the incidents involving the harassment separately instead of holistically. A school district acts with deliberate indifference when it responds to report of a discriminatory act that is clearly unreasonable in light of all of the known circumstances. 
  • The  school failed to properly investigate the claim of discrimination, which resulted in a clearly unreasonable response to the harassment. 
    • Failed to have compliance coordinator/officer and failure to update its policies to reflect the nondiscrimination law and OSPI’s May 2011 regulations.
    • Co-principals conducted inadequate investigations, failing to follow even their own out-of-date policy and doing the following:
      • The school and the District only interviewed two of the four students working on the group project where the racial harassment incidents occurred. The reasons for not interviewing additional students were not credible, specifically that an Apserger’s diagnosis would have made B.W. mishear the racial comment. The District didn’t provide any any evidence to support that conclusion that an Asperger’s diagnosis would make B.W. unable to accurately hear and report a racial epithet.
      • The school failed to discover basic information that contextualized B.W.’s complaint and gave further credence to B.W.’s allegations.
      • The school continued to informally investigate the report after the parents told him they wished to file a formal complaint, which would have been handled by the District as opposed to the school.
      • The District did not discuss B.W.’s essay. The teacher expressed concern that if the parents saw the essay, the parents would see it as confirming the racial harassment allegations.
    • Formal investigation by the school’s frequently used outside counsel was “fraught with inadequacies.”
      • Attorney investigator did not ask B.W. about the two essays, nor did she ask the teacher or co-principals to explain why they withheld the existence of the essays from the parents. The reports weren’t even included in the text of the report, but they were appended to the report, which is the first time the parents learned of the existence of one of the essays.
      • She did not account for the conspicuous discrepancy between B.W.’s grades in other classes and his grades in the class he shared with his harasser.
      • She did not address the ostensible connection between the discussion of Mexico and the racially charged comments between two students and B.W.
    • District failed to meaningfully and appropriately discipline the aggressor student. He was only told not to use race as the basis for angry comments and to sign an “anti-harassment contract.”
    • District refused to consider any scenario in which B.W. was not to blame for the conflict with the aggressor student, believing the conflict was due to B.W.’s social deficits. Apparently the school was frustrated because shortly after entering this school district, B.W.’s IEP was withdrawn at the parent’s request.

Having satisfied the first three prongs of the deliberate indifference test, the next question is whether it was sufficiently severe, pervasive and objectively offensive so that it can be said to have deprived B.W. of access to educational opportunities or benefits provided by the school. The court said the racial comments were beyond simple teasing and name-calling, the student made it clear that it wasn’t that his skin color made him different, but that it made him stupid. It was also done in the context of group setting, increasing the humiliation B.W. felt. B.W. was new to this school, he cried in public, he wrote disturbing essays, and he received uncharacteristically low grades in this class.

Based on that, the court held that harassment was sufficiently severe. Then the question is – did it interfere with equal access to educational opportunities or benefits? The “dropoff” in grades can provide “necessary evidence of a potential link between” a students diminished educational opportunities.” B.W. was also forced to remain in the class with the harassing student. Once B.W.’s parents transferred him out of the class, his grades immediately went up to match his high achievement in his other classes.

Lower Standard Analysis 

After stating that the facts support a finding that the school district failed to meet the deliberate indifference standard, the court turned its discussion to the question of whether in the administrative context deliberate indifference applies. The Office of Civil Rights (of the U.S. Department of Education, the administrative agency tasked with enforcement of the Federal counterparts to the Washington nondiscrimination laws) requires “upon receiving actual or constructive notice of racial harassment, the school ‘take immediate and appropriate action to investigate or otherwise determine what occurred.'” Then the  District is required to take “prompt and effective steps” to end the harassment.” Applying this more lenient standard the court found that “it is abundantly clear that the District’s response violated the EEOL.” (EEOL is the Equal Education Opportunity Law prohibits discrimination on a several protected classes, including race.)

Concurrence

Verellan concurs that the District failed to meet the deliberate indifference standard in addressing the discrimination. Verellan would not take the next step and determine whether the OCR know or should have known standard should have been applied.

Take Away Points

When parents complain to the school district, or the school district knew or should have known about discrimination based on any of the of the protected classes identified in RCW 28A.642.010:

  • race,
  • creed,
  • religion,
  • color,
  • national origin,
  • honorably discharged veteran or military status,
  • sexual orientation including gender expression or identity,
  • the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability.
  • Sex (is covered under the Sex Equity Law RCW 28A.640)

a school must take immediate and appropriate action to investigate or otherwise determine what has occurred. The investigation should be prompt, thorough, and impartial. If discrimination exists (including harassment) the District must take prompt and effective steps to end the harassment.

Missing Parts of the Opinion

Difference between Federal and State Laws

I would have liked to see a greater discussion on state vs. federal law and whether or not the deliberate indifference standard is truly required in state discrimination cases. The other case decided by Division I on this issues, S.S. v. Alexander, 143 Wn. App. 75, 177 P3d 742 (2008) also did not discuss this issue. The court mentioned Title IX and Title IX, which are interpreted consistently with each other. Both are based on the Congress’s power under the Spending Clause. Basically compliance with nondiscrimination rules are ensured because the federal government can place conditions on the receipt of federal funds. If schools take federal funding, they agree to abide by the rules, in “what amounts essentially to a contract between the Government and the recipient of funds.”  (Citing Gebser v. Lago Visto Indep. Sch. Dist. 524 U.W. 274, 286 (1998). 

There is no express right to a private suit in Title VI or Title IX, but the Supreme court has held that both statutes are enforceable through an implied right of action. The Supreme Court clarified that this private right of action is only available when a school acts with deliberate indifference. It would be inconsistent with the SPending Clause origins of Title IX and Title CI to impose damages liability unless a school authority with the power to remedy the discrimination had actual notice of and was deliberately indifferent to the conduct.

Despite discussing the above reasoning and pointing out that Title IX and Title VI require a deliberate indifference standard, the court doesn’t discuss the state statues and how they are not based on the Spending Clause. States get to tell schools what kind of nondiscriminatory standards they must comply with without basing it on any condition of funding. Plus our state statutes have express rights to pursue actions in civil courts. It’s not implied. Schools are on constructive notice that the must not discriminate and if they discriminate there may be administrative and judicial consequences. This distinction seems very important but it isn’t discussed. (See Pages 32-34 of the court’s decision for more discussion on this).

Multiple Identities 

The court likely limited its discussion to race because that was the issue before it, but since there was so much discussion about the targeted student’s Asperger’s diagnosis, I would have like to have the court point out that the failure of the school district to believe the targeted student because of his Asperger’s diagnosis was also a form of discrimination. Students who have multiple identities are often targeted for bullying because of the fact that they have multiple identities and the decision was remiss to spend so much time discussing the way the Apserger’s diagnosis interfered with the District’s handling of the case without stating that was also discriminatory.

Distinction between harassment, intimidation and bullying (HIB) and discrimination.

I was disappointed that there was no discussion about the difference between harassment, intimidation and bullying (“HIB”) and discrimination. There has been a lot more emphasis put in schools about HIB, there are state model policies and procedures. On Page 12, the court noted that the District’s November 4 decision was pursuant to the District’s Harassment, Intimidation, and Bullying policy. This flags for me that it was the wrong policy as it is in connection with a different law. The distinction between generalized HIB and HIB targeted at a student based on one of the protected classes identified in the state statue trigger different requirements for action. HIB targeted based on a protected class is likely going to be discrimination. Generalized HIB require individualized responses. HIB against a student because of a protected class requires schools to address the school atmosphere/climate and review their policies and procedures to make sure the school is not contributing to the issue of discrimination. HIB based on federally protected classes may overlap with federal nondiscrimination laws and may require a concurrent Title VI or Title IX investigation.

 

Pending Education Discrimination Case

On February 26, 2015, Division I heard Mercer Island School District v. N.W. and R.W. (Case no. 71419-8 – follow this link and type the case number to find all materials related to this case).

The rough outline of the case is that a student of color was targeted with racial comments by one main student and a couple of that students friends. The school district did respond, but there seems to be questions of whether the school district responded in a timely and appropriate manner.

When the parents complained about the students behavior and the school’s response, the school said there was no discrimination. The parents appealed to the school board and the school board denied the existence of discrimination. The parents then appealed to the Office of the Superintendent of Public Instruction (OSPI) and there was a hearing before an administrative law judge (ALJ). The ALJ found the school had acted in a discriminatory manner. The school district appealed in Superior Court and the Superior Court overturned on the ALJ’s major findings. The parents appealed the Superior Court decision to Division I.

At oral arguments, the judges honed in on what standard should be used in the administrative context when determining the liability of a school district. The School District argued for a high standard of “deliberate indifference” and the attorney for the parents, Ernest Saadiq Morris, noted that the Administrative Law Judge did use the deliberate indifference standard but that even under this standards the school district did not prevail with the ALJ and that based on administrative law, the ALJ findings should be upheld. In response to the specific question regarding the appropriate standard, the parents agreed that in the administrative context it should be the lower standard known or should have known standard is more appropriate, although I got the impression there was a concession that the higher standard should apply in a monetary damages setting.

In the guidance that exists on this question of the standard in the administrative context, both the Department of Justice and OSPI have stated that the known or should have known standard should apply and that schools are required to take prompt action to correct the discrimination and the effects of discrimination.

The deliberate indifference standard the school district advocated is based on the case law regarding when a individual files a suit against a school district for monetary damages. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), while the U.S. Supreme Court found a school district could be liable under Title IX for peer based sexual harassment, the standard was deliberate indifference – recipients response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.

Based on oral arguments – it seems that the main question the court will answer in its opinion is – in the administrative context can schools be held liable in the sense of requiring administrative fixes, improving policies and procedures, based on the known or should have known standard?

An important distinction that I did not feel was teased out is the reason that the court found reached the deliberate indifference holding. Title IX is considered a spending clause law, meaning that in order to receive federal funds a school district has to agree not to discriminate. However, the statutes at play here are state statutes, not federal statutes. States do not have to rely on spending clauses or anything else. They get to make rules within their borders and the rules have to be followed. The nondiscrimination laws, coupled with our laws against harassment, intimidation and bullying, make it clear that our legislature intends on schools having an affirmative duty to make sure that kids are safe in schools, even for peer harassment issues.

One of the Judges on the panel hearing this case was Judge Dwyer. Judge Drwyer wrote the majority opinion in one of the only state based discrimination appellate decision, a 2008 Title IX case by the name of S.S. v. Roe/University of Washington, 143 Wn. App. 75 (Wash.App. Div 1 2000)(case involved a student football player raping a student and the University’s poor response). In this context, Division I upheld the deliberate indifference standard. This was a suit for monetary damages and there was not a significant discussion on and Division I cited the Davis court that “funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to educational opportunities or benefits provided by the school.”

Division I follows the deliberate indifference theory when looking at the University’s potential liability. Again, this was a Title IX case, not a case based on the state nondiscrimination or sex equity laws.

It will be interesting to see what the court decides and whether either of the parties will appeal the decision to our state supreme court.

Federal Guidance on Title VI vs. OSPI WACs

On October 1, 2014, the U.S. Department of Education Office for Civil Rights issued a Dear Colleague Letter. Dear Colleague letters are the Office of Civil Rights’ efforts to provide guidance for schools on what is needed to comply with federal laws. In this case, the letter focused on legal obligations under Title VI of the Civil Rights Act of 1965, which prohibits discrimination on the basis of race, color, or national origin.

The timing of this letter is interesting for in Washington, OSPI just went through a rule-making process on our state law that corresponds with the federal law. The proposed WACs are discussed in this blawg. So how do our state regulations compare to the federal guidance? As I noted in the prior blawg, the WACs are woefully inadequate to address remedying the discrimination that exists in our public schools. The Dear Colleague letter and guidance provide clear examples of the issues the WACs should have addressed (technology, teaching, etc.)

The Dear Colleague Letter starts by setting the stage, identifying history and present of unequal access to educational resources. It also discusses some of the factors that can be hard to measure that impact school success, including quality of building, experienced level of teachers, instructional materials and technology, and differences in teacher salaries. The WACs do not discuss this, although arguably that is what was discussed in the law and the WACs do not need to discuss this.

Then the Letter discusses intentional discrimination and identifies the following analysis for determining whether a school district intentionally discriminated in the allocation of its resources:

  1. Did the school district treat a student, or group of students differently with respect to providing access to educational resources as compared to another similarly situated student, or group of students, of a different race, color, or national origin (a prima facie case of discrimination)?
  2. Can the school district articulate a legitimate, nondiscriminatory, education reason for the different treatment? If not, OCR could find the district has intentionally discriminated on the basis of race. If yes, then:
  3. Is the allegedly nondiscriminatory reason a pretext for discrimination? If so, OCR would find the district has intentionally discriminated on the basis of race.

Then the letter discusses disparate impact. School districts also violate Title VI if they adopt facially neutral policies that are not intended to discriminate based on race, color, or national origin, bud do have an unjustified, adverse disparate impact on students based on race, color, or national origin. OCR applies the following analysis for disparate impact:

  1. Does the school distract have a facially neutral policy or practice that produces an adverse impact on students of a particular race, color, or national origin when compared to other students?
  2. Can the school district demonstrate that the policy or practice is necessary to meet an important educational goal? In conducting the second step of this inquiry OCR will consider both the importance of the educational goal and the tightness of the fit between the goal and the policy or practice employed to achieve it. If the policy or practice is not necessary to serve an important educational goal, OCR would find that the school district has engaged in discrimination. If the policy or practice is necessary to serve an important educational goal, then OCR would ask:
  3. Are there comparably effective alternative policies or practices that would meet the school district’s state educational goal with less of a discriminatory effect on the disproportionately affected racial group; or is, the identified justification a pretext for discrimination? If the answer to either question is yes, then OCR would find that the school disctrict had engaged in discrimination. If no, then OCR would likely not find sufficient evidence to determine that the school district had engaged in discrimination.

One of the major distinctions between this commentary and the proposed WACs is that several changes in the WACs make it sound like OSPI was trying to eliminate the disparate impact standard. That seems contrary to the intent of the state law to create a system that has fewer protections than the federal law.

Then the Letter goes on to discuss school funding. Again, the letter provides more guidance then the WACs.

A. Courses, Academic Programs, and Extracurricular Activities

The WACs have a limited discussion saying that no district shall provide any coursework based on a protected status. The Dear Colleague Letter requires that students have access to, and enroll in rigorous courses are more likely to go on to complete postsecondary education. It also notes that OCR will assess the types, quantity, and quality of programs available to students across a school district to determine whether students of all races have equal access to comparable programs both among schools and among students within the same school.

The Dear Colleague Letter discusses extracurricular activities, especially those that have been shown to support college and career readiness and high academic rigor, and states they must be offered on a nondiscriminatory basis. It notes that there will be a quantitative and qualitative review. The WAC only discusses recreational and athletic activities and states that no one be denied participation in based on a protected class. The focus in the WAC is based on athletics and demonstrates that it is the holdover from the state version of Title IX and providing equal athletic opportunities for girls.

The Dear Colleague Letter captures the intent of the legislation that was passed in Washington, it shows a demonstrated effort to outline for schools how to view their programs and make sure they are provided on a nondiscriminatory basis. It is not detailed and it won’t provide all the answers, but unlike the WACs, it makes an effort.

B. Strong Teaching, Leadership, and Support

The WACs don’t address the problem of the impact of teachers on education. The Dear Colleague Letter does and it notes that ensuring that schools have effective and stable teachers is a major component of ensuring that a school district does not discriminate based on race, color, or national origin. They will oook at turnover rates, teach qualifications, and experiences, school leadership, and support staff.

C. School Facilities 

Again because the WACs use as a starting point the Sex Discrimination WACs and did not actually try to examine the issue of what it means to address discrimination based on additional factors, the only reference to facilities is with regard to recreational and athletic activities. The Dear Colleague Letter addresses school facilities in terms of (1) physical environment – schools should be structurally sound and well-maintained; (2) Types and Design of Facilities – laboratories, auditoriums, and athletic facilities – must be provided on an equal basis.

D. Technology and Instructional Materials

When the WACs were originally written technology was a not an issue, the internet didn’t exist. So when they were simply modified by tacking on the additional protected classes to the existing sex discrimination regulations, there was no consideration of technology – so it’s no surprise the WACs are silent on the issue of technology. The Dear Colleague letter provides guidance that OCR will consider the number, type, and age of educational technology devices will be assessed in determining whether they are provided without regard to race, color, or national origin. They will also look at the size, content and age of a schools library collection considering quantity and quality of materials.

Prevention 

The WACs essentially limit proactive surveys and monitoring to athletics and recreational activity. The guidance of the Dear Colleague Letter notes that the assessment must be broader than recreational and athletic facilities – school districts need to compare how educational benefits and burdens are allotted.

Conclusion

The Dear Colleague letter makes it clear that OSPI is not providing sufficient guidance to assist schools in creating nondiscriminatory schools. A school that relied on the understanding that our state tries to go further in the protection of students than the federal government and relied on the WACs would fail to meet the federal standards.

Surprise Rule Change from OSPI

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.

Note:

  • 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

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.