HOUSE OF REPRESENTATIVES |
H.B. NO. |
1775 |
THIRTY-FIRST LEGISLATURE, 2022 |
H.D. 1 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO CIVIL RIGHTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The
legislature finds that 2022 is the fiftieth anniversary of the Patsy T. Mink
Equal Opportunity in Education Act, otherwise known as Title IX of the
Education Amendments of 1972 (20 U.S.C. 1681 et seq.) or simply "Title IX".
Hawaii is proud of Congresswoman Mink's
signature legislation, which has given millions of girls and women educational
opportunities that were undreamed of before the enactment of Title IX, in the
classroom and on the playing field; in research, teaching, and graduate
schools; and in science, medicine, law, and other professions. The legislature also recognizes, however, that
Congresswoman Mink's celebrated legacy has not yet been fully realized. The recent federal administrative rules
adopted in 2020 by the Trump administration significantly diminished the rights
and protections for students and employees under Title IX. For example, the new rules limit the
application of federal Title IX policies to persons in the United States. This means that students participating in
international programs, such as study abroad, are no longer protected under
federal Title IX rules. The new rules
also narrowed the definition of "sexual harassment", making it more
difficult for victims to receive relief under Title IX.
The legislature also finds that Act 110, Session
Laws of Hawaii 2018, created a state corollary to Title IX by prohibiting
discrimination on the basis of sex, including gender identity or expression, or
sexual orientation, in any state educational program or activity, or in any educational
program or activity that receives state financial assistance. Pursuant to the exclusive jurisdiction
of the legislature to identify laws of statewide concern, granted under article
X, section 6, of the Hawaii State Constitution, the legislature additionally
finds that ensuring the prohibition of discrimination on the basis of sex,
including gender identity or expression, or sexual orientation, is a matter of statewide
concern. In order to preserve
Congresswoman Mink's intent to provide equal opportunity in education, further
clarification of section 368D-1, Hawaii Revised Statutes, is required, as well
as annual data reporting from the department of education, public charter
schools, and the University of Hawaii, to ensure that the needs of victims of
unlawful sex-based discrimination, including sexual harassment, gender-based
harassment, and sexual assault, are properly addressed.
Accordingly, the purpose of this Act is to:
(1) Define the scope and application of chapter 368D, Hawaii Revised Statutes, and set forth requirements with which entities that have state education programs or activities, or that receive state funding for educational programs or activities, must comply; and
(2) Require annual reporting to the legislature on the number and types of Title IX cases received by the department of education, public charter schools, and the University of Hawaii, and other relevant information.
SECTION 2. Chapter 368D, Hawaii Revised Statutes, is amended by adding four new sections to be appropriately designated and to read as follows:
"§368D- Purpose;
scope; construction. (a)
The purpose of this chapter is to provide a framework for the
enforcement of the state law corollary to Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et
seq.) that is set out in section
368D-1.
(b)
This chapter shall apply to the conduct of all students and employees of
any covered educational program or activity and of third parties, provided that
the conduct occurs:
(1) On the premises
of the covered educational program or
activity; or
(2) Outside of the
premises of the covered educational program or activity, if:
(A) The
conduct occurred in connection with the covered educational program or activity;
or
(B) The
conduct may have a continuing adverse effect on, or may create a hostile environment
within, the covered educational program or activity.
(c) If any conflict arises between applicable
mandatory federal requirements under Title IX (20 U.S.C. 1681 et seq.) and any
state law requirements, the federal requirements shall prevail.
(d) Nothing in this chapter shall be construed to
prohibit:
(1) The membership
practices of social fraternities or sororities or voluntary youth service
organizations, as set forth in title 20 United States Code section 1681(a)(6),
as that section was in effect on January 1, 2019;
(2) Any educational
institution receiving state funds from maintaining separate living facilities
for different sexes, as set forth in title 20 United States Code section 1686,
as that section was in effect on January 1, 2019; or
(3) An educational
institution from administering, or assisting in administering, a scholarship,
fellowship, or other form of financial assistance pursuant to a domestic or
foreign will, trust, bequest, or similar instrument that requires awards to be
made to members of a particular sex specified therein; provided that the
overall effect of sex-restricted financial assistance shall not discriminate on
the basis of sex, as set forth in title 34 Code of Federal Regulations section
106.37(b)(1), as that section was in effect on January 1, 2019.
(e) Nothing in this chapter shall preclude a
student participating in any covered
educational program or activity who is aggrieved by a violation of this
chapter from filing a civil action in a court of competent jurisdiction.
§368D- Definitions. As
used in this chapter:
"Consent" means an
affirmative, conscious, and voluntary agreement to engage in an agreed-upon
form of sexual contact; provided that:
(1) Silence, or the
absence of protest or resistance, does not constitute consent; and
(2) A person is
unable to give consent when the person is:
(A) Under
the age of consent for sexual contact, as provided in part V of chapter 707;
(B) Developmentally
or intellectually disabled; or
(C) Mentally
incapacitated or physically helpless.
"Covered educational program or
activity" means:
(1) Any state
educational program or activity; or
(2) Any educational
program or activity that receives state financial assistance.
"Covered entity" means
an entity having a covered educational program or activity.
"Dating violence" means physical,
sexual, emotional, financial, or psychological abuse or threats of abuse
against another person who is or has been in a social relationship of a
romantic or intimate nature with the alleged perpetrator; provided that the
existence of the relationship is evidenced by the following factors:
(1) Length of the
relationship;
(2) Type of
relationship; and
(3) Frequency of
interaction between the persons involved in the relationship.
"Domestic violence" means physical,
sexual, emotional, financial, or psychological abuse or threats of abuse
against a family or household member.
For purposes of this definition, "household member" means a cohabitant
who is or was a spouse or intimate partner of the alleged perpetrator.
"Educational program or
activity that receives state financial assistance" means any educational
program or activity that receives state financial assistance, in any amount,
for any purpose. The term does not
exclude an educational program or activity that also receives federal funds.
"Gender-based
harassment" is a form of sex-based harassment that includes:
(1) Unwelcome
conduct based on a person's actual or perceived sex or gender;
(2) Verbal, physical,
or electronic conduct based on sex, gender, sexual orientation, or sex
stereotyping that creates a hostile, intimidating, or abusive environment, even
if the conduct is not sexual in nature; and
(3) Harassment in
response to a person's exhibition of a perceived stereotypical characteristic for
the person's sex, or to a person's failure to conform to stereotypical notions
of masculinity or femininity, regardless of the person's actual or perceived
sex, gender, sexual orientation, gender identity, or gender expression.
"Incapacitated" or
"incapacitation" means a mental or physical state in which a person lacks
the ability to understand the consequences of the person's actions and, as a
result, is unable to make a rational, reasonable decision. States of incapacitation include:
(1) Sleep;
(2) Unconsciousness;
(3) Intermittent
consciousness; or
(4) Any other state
in which the person is unaware that sexual contact is occurring.
"Retaliation" means adverse
action taken against a person because of the person's good faith participation
in any of the following activities:
(1) Seeking advice
or assistance about conduct prohibited under this chapter;
(2) Opposing or
filing a complaint against conduct that the person reasonably believes to be
prohibited under this chapter; or
(3) Testifying,
assisting, or participating in an investigation or other proceeding related to
a complaint of conduct addressed by this chapter.
For purposes of this definition, "adverse
action" means an action that would dissuade a reasonable person from
filing or supporting a complaint brought pursuant to this chapter.
"Sex discrimination"
means any unlawful distinction, preference, or detriment to a person, in
relation to other persons, that is based upon the person's sex or gender and is
sufficiently serious to unreasonably interfere with or limit the ability of a
person who is:
(1) A student,
or applicant for admission, from participating in, accessing, or benefitting
from a covered entity's programs, services, or activities, including admission,
academic standing, grades, academic assignment, and on-campus housing;
(2) An employee, or
applicant for employment, from accessing employment or conditions and benefits
of employment, including hiring, advancement, and work assignment;
(3) An authorized
volunteer from participating in a volunteer activity; or
(4) A guest or
visitor from participating in, accessing, or benefitting from a covered entity's
programs, services, or activities.
"Sexual assault" means
an act of unwanted physical contact of a sexual nature with an intimate body
part of another person that is committed by an acquaintance or stranger. Intimate body parts include genitalia, groin,
breasts, buttocks, or mouth. Contact is
unwanted when:
(1) The contact
occurs without the consent of the other person; or
(2) The other person
is incapacitated or otherwise incapable of giving consent.
"Sexual contact" means:
(1) Intentional
touching or penetration of another person's clothed or unclothed body,
including the other person's mouth, neck, anus, genitalia, groin, breast, or
buttock, in a sexual manner, with any part of the body or with any object; or
(2) Causing another
person to touch the person's own body, or the body of another person, in the
manner described in paragraph (1).
"Sexual exploitation"
means violating another person's sexual privacy or taking sexual advantage of
another person in an unjust or abusive manner, without the person's consent. The term includes:
(1) Photographing
or otherwise recording another person who is engaged in sexual activity,
intercourse, or penetration, or who is in a state of undress, without the person's
knowledge or consent;
(2) Sharing
photographs, or video or audio recordings, of another person who is engaged in
sexual activity, intercourse, or penetration, or who is in a state of undress,
without the person's knowledge or consent;
(3) Watching
another person who is currently engaging in sexual activity, without the person's
knowledge or consent;
(4) Allowing other
persons to watch sexual activity without the knowledge or consent of all
persons engaging in the sexual activity;
(5) Exposing a
person's intimate body part, including genitalia, groin, breast, or buttock, to
another person without the person's consent;
(6) Engaging in
sexual activity while in a public place and in view of another person who does
not consent to witnessing the sexual activity; and
(7) Tampering with
another person's beverage with the intent to impair the person's ability to
withhold consent or to knowingly consent to sexual activity, regardless of
whether any sexual activity actually occurs.
For purposes of this definition, "sexual
exploitation" does not include sexual assault.
"Sexual harassment" means
unwelcome sexual advances, requests for sexual favors, or other verbal or
physical conduct of a sexual nature; provided that:
(1) Submission to,
or rejection of, the conduct is either an explicit or implicit term or
condition of a person's education, employment, or participation in a covered
entity's programs, services, or activities;
(2) Submission to,
or rejection of, the conduct by a person is used as a basis for decisions
affecting the person's education, employment, or participation in a covered
entity's programs, services, or activities; or
(3) The conduct is
unwelcome to either the person to whom the conducted is directed, or to another
person having direct awareness of the conduct; provided further that the
conduct:
(A) Is
severe, persistent, or pervasive; and
(B) Has
the purpose or effect of either:
(i) Unreasonably
interfering with the person's academic or work performance; or
(ii) Creating
an intimidating, hostile, or offensive educational or work environment.
"Stalking" means two or
more acts of unwanted and harassing behavior that are:
(1) Directed at a
specific person;
(2) Sufficiently
serious to cause physical, emotional, or psychological fear, or to create a
hostile, intimidating, or abusive environment; and
(3) Objectively and
subjectively perceived as hostile, intimidating, or abusive.
"State educational program
or activity" means an educational program or activity of the University of
Hawaii, the department of education, or public charter schools.
"Title IX" refers to the federal Education Amendments of 1972, codified as title 20 United States Code section 1621 et seq.
§368D- Designation of coordinator; publication of
information; adoption of policies. No later than January 1, 2023, all covered entities shall:
(1) Designate a
person, who shall be known as the Title IX coordinator, to oversee the covered
entity's implementation of the requirements of this chapter, and the covered
entity's response to alleged violations thereof;
(2) Annually publish
the name and contact information of the Title IX coordinator to students and on
the website of the covered educational program or activity; and
(3) Adopt a written
policy for addressing complaints brought pursuant to this chapter. The written policy shall include provisions that
address:
(A) The
scope of the policy;
(B) The
conduct or behavior prohibited under the policy;
(C) Definitions
necessary to interpret and apply the policy;
(D) The
applicable evidentiary standard of review, which shall be by preponderance of
the evidence;
(E) The
roles of various personnel of the covered educational program or activity; and
(F) Any
resources available to students and employees of the covered educational
program or activity, including any advocacy services, assistance programs, and confidential
or non-confidential support services.
§368D- Annual report to legislature. No
later than September 1 of each year, each state
educational program or activity shall submit to the legislature a report that
includes information pertaining to the immediately preceding school year, as
follows:
(1) The University
of Hawaii shall include in its report to the legislature:
(A) The
total number of complaints alleging a violation of this chapter that were
received by the University, and the number of complaints received in each of the
following categories:
(i) The
number of complaints received at each campus of the university;
(ii) The
number of complaints that involve each type of conduct prohibited under section
368D-1(b); and
(iii) The
number of confidential complaints, informal complaints, and formal complaints,
as applicable;
(B) Of
the total number of complaints for each campus reported under subparagraph (A),
the number of complaints involving:
(i) A
student complainant and a student respondent;
(ii) A
student complainant and an employee respondent;
(iii) An
employee complainant and an employee respondent; and
(iv) An
employee complainant and a student respondent;
(C) Of
the complaints reported under subparagraph (A), the number of complaints in
which:
(i) An
investigation was commenced but a decision has not yet been rendered;
(ii) An
investigation was completed and a decision was rendered; and
(iii) A
party has filed an appeal, and the appeal is pending;
(D) The
percentage of employees at each campus of the university who have completed a
training course on the university's Title IX policies and procedures, and on
any other policies and procedures adopted by the university in accordance with this
chapter; and
(E) The
percentage of students enrolled at each campus of the university who have
completed a training course on the university's Title IX policies and
procedures, and on any other policies and procedures adopted by the university in
accordance with this chapter; and
(2) The department of
education and each public charter school shall include in their respective
reports to the legislature:
(A) The
total number of complaints alleging a violation of this chapter that were
received by a covered educational program or activity of the department of
education or the public charter school, as applicable, and the number of
complaints received in each of the following categories:
(i) The
number of complaints received at each department of education complex area or
public charter school, as applicable; and
(ii) The
number of complaints that involve each type of conduct prohibited under section
368D-1(b);
(B) Of
the total number of complaints reported under subparagraph (A) for each department
of education complex area or public charter school, as applicable, the number
of complaints involving:
(i) A
student complainant and a student respondent;
(ii) A
student complainant and an employee respondent;
(iii) An
employee complainant and an employee respondent; and
(iv) An
employee complainant and a student respondent;
(C) Of
the total number of complaints reported under subparagraph (A) for each
department of education complex area or public charter school, as applicable,
the number of complaints in which:
(i) An
investigation was commenced but a decision has not yet been rendered;
(ii) An
investigation was completed and a decision was rendered; and
(iii) A
party has filed an appeal, and the appeal is pending; and
(D) For the department of education only, the percentage of teachers, counselors, principals, and vice-principals, disaggregated by complex area, who have completed a training course on the department's Title IX policies and procedures, and on any other policies and procedures adopted by the department in accordance with this chapter."
SECTION 3. Section 368D-1, Hawaii Revised Statutes, is amended to read as follows:
"§368D-1 [State] Covered educational programs and activities;
discrimination and other conduct prohibited. (a) No
person in the State, on the basis of sex, including gender identity or
expression as defined in section 489-2, or sexual orientation as defined in
section 489-2, shall be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under[:
(1) Any state
educational program or activity; or
(2) Any educational
program or activity that receives state financial assistance.] any
covered educational program or activity.
(c) Nothing in this chapter shall be
construed to prohibit any educational institution receiving state funds from
maintaining separate living facilities for different sexes, as set forth in
title 20, United States Code Section 1686, as in effect on January 1, 2019.
(d) Nothing in this chapter shall be construed to
prohibit an educational institution from administering or assisting in
administering a scholarship, fellowship, or other form of financial assistance
pursuant to a domestic or foreign will, trust, bequest, or similar instrument
that requires awards be made to members of a particular sex specified therein;
provided that the overall effect of sex-restricted financial assistance shall
not discriminate on the basis of sex, as set forth in title 34, Code of Federal
Regulations section 106.37(b)(1), as in effect on January 1, 2019.
(e) Nothing in this
chapter shall preclude a student participating in any educational program or
activity who is aggrieved by a violation of this chapter from filing a civil
action in a court of competent jurisdiction.
(g) As used in this section:
"Educational program or
activity that receives state financial assistance" means any educational
program or activity that receives state financial assistance, in any amount,
for any purpose. The term does not
exclude an educational program or activity that also receives federal funds.
"State educational program
or activity" means an educational program or activity of the University of
Hawaii, the department of education, or public charter schools.]
(b) The following types of conduct shall be
prohibited under any covered educational program or activity:
(1) Sex
discrimination;
(2) Sexual
harassment;
(3) Gender-based
harassment;
(4) Sexual
exploitation;
(5) Sexual
assault;
(6) Domestic
violence;
(7) Dating
violence;
(8) Stalking;
and
(9) Retaliation.
(c) Any person, or an organization or association on behalf thereof, who alleges a violation of this chapter may file a complaint with a covered entity pursuant to this chapter."
SECTION 4. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2022-2023 to hire one full-time equivalent (1.0 FTE) position to ensure compliance by public charter schools with Title IX of the federal Education Amendments of 1972, as amended.
The sum appropriated shall be expended by the state public charter school commission for the purposes of this Act.
SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 6. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 8. This Act shall take effect on July 1, 2050.
Report Title:
Education; Educational Programs and Activities; Sex Discrimination; Title IX Corollary; Enforcement; Appropriation
Description:
Specifies additional forms of discrimination and other prohibited conduct under Chapter 368D, HRS. Requires entities with state education programs or activities, or that receive state funding for educational programs or activities, to adopt written policies and undertake other specified enforcement actions no later than 1/1/2023. Requires annual reports to legislature. Appropriates funds. Effective 7/1/2050. (HD1)
The summary description
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not legislation or evidence of legislative intent.