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THE SENATE |
S.B. NO. |
2636 |
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THIRTY-FIRST LEGISLATURE, 2022 |
S.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 title 20 United States Code section 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) Clarify the 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;
(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;
(3) Establish two full-time equivalent (2.0 FTE) senior advisor positions and one full-time equivalent (1.0 FTE) junior advisor position for the University of Hawaii system to carry out the purposes of this Act; and
(4) Appropriate funds to the department of education and public charter schools to carry out the purposes of this Act.
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 state law
corollary to title
IX title 20 United States Code section 1681 et seq. that is set out in section 368D-1.
(b) If any conflict arises between applicable
mandatory federal requirements under title IX title 20 United States Code section
1681 et seq. and any state law requirements, the federal requirements shall
prevail.
(c) 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.
§368D- Definitions. As
used in this chapter:
"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.
"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.
"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 or title IX 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
types of complaints, including but not limited to sexual harassment, gender-based
harassment, sexual assault, domestic violence, stalking; 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 total number of complaints for each campus 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 the public charter school commission shall include in their
respective reports to the legislature:
(A) The
total number of complaints alleging a violation of this chapter or title IX 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 types of
complaints, including but not limited to sexual harassment, gender-based harassment,
sexual assault, domestic violence, or stalking;
(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 or a public charter school, 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 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)]
(b) Nothing
in this chapter shall preclude [a student] an individual
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.]"
SECTION 4. There is established within the University of Hawaii system two full-time equivalent (2.0 FTE) senior advisor positions and one full-time equivalent (1.0 FTE) junior advisor position to carry out the purposes of this Act.
SECTION 5. 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 this Act and 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 6. 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 for the department of education to carry out the purposes of this Act.
The sum appropriated shall be expended by the department of education for the purposes of this Act.
SECTION 7. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 8. 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 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 10. This Act shall take effect on July 1, 2050.
Report Title:
Education; Educational Programs and Activities; Sex Discrimination; Title IX Corollary; Reporting; Appropriation
Description:
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 actions no later than 1/1/2023. Requires annual reports to the Legislature. Appropriates funds. Effective 7/1/2050. (SD1)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.