Haw. Code R. § 8-89-6 - Complaint and investigative procedure

(a) Complaints stemming from allegations that fall under this chapter may be filed by:

(1) Students who experience discrimination, harassment (including sexual harassment), bullying, or retaliation;

(2) Students who witness discrimination, harassment (including sexual harassment), bullying, or retaliation against another student;

(3) Parents, legal guardians, educational representatives, or individuals with a power of attorney who know about or witness discrimination, harassment (including sexual harassment), bullying, or retaliation against a student; or

(4) Employees, staff, or volunteers who witness or know about discrimination, harassment (including sexual harassment), bullying, or retaliation against a student.

(b) Complaints alleging violations of this chapter can be made ' using the department's Anti-Harassment, Anti-Bullying, and Anti-Discrimination Against Student(s) Policy Complaint Form. Individuals who do not have access to or prefer not to use the department's Anti-Harassment, Anti-Bullying, and Anti-Discrimination Against Student(s) Policy Complaint Form can nonetheless make a complaint, either in writing or orally, by providing the department with the following infonnation:

(1) The name of the respondent or a sufficient description of the respondent so that an identity can be determined;

(2) The date(s) when the alleged discrimination occurred;

(3) The protected basis of the complaint and a factual description of how the discrimination allegedly occurred;

(4) A description of the injury or harm, if any; and

(5) Attachments, if any, documenting the alleged conduct.

(c) Written complaints may be given to any teacher or staff, principal, vice-principal, complex area superintendent, or the Civil Rights Compliance Branch. Verbal complaints may be made either in person or over the phone to any teacher or staff, principal, vice-principal, complex area superintendent, or the Civil Rights Compliance Branch. All complaints must be forwarded as soon as possible to the Civil Rights Compliance Branch for processing, and failure to report a student's complaint may result in disciplinary action.

(d) When a complaint is received, the Civil Rights Compliance Branch shall promptly assess the situation, will determine if the complaint falls under this chapter, and will investigate in accordance with subsections (f) to (i). Complaints that do not fall under this chapter will be referred to the appropriate office for review.

(e) Both parties may make a request for immediate interventions to the principal, any vice principal, the complex area superintendent, or the Civil Rights Compliance Branch. The principal or designee may institute immediate interventions without a request, if they deem them appropriate. Immediate interventions will be considered by the principal or designee, in consultation with the Civil Rights Compliance Branch, and if it is determined that immediate interventions are necessary, the principal or designee will implement the immediate interventions. The Civil Rights Compliance Branch will ensure that such immediate interventions are taken. Failure to comply with the terms of immediate interventions may be considered a separate violation, which may result in a separate investigation, findings, and determination.

(f) When an investigation is required, the Civil Rights Compliance Branch will assign an impartial investigator to conduct the investigation. At the initiation of an investigation, the parent will be notified.

(g) The complainant and respondent will be allowed to provide the assigned investigator the names of witnesses who they believe have information relevant to the complaint and provide evidence that they believe is relevant to the complaint. Once the investigator has obtained the necessary relevant information and documents, the investigator will analyze and document the available evidence, objectively evaluate the credibility of parties and witnesses, synthesize all available evidence-including inculpatory and exculpatory evidence-and take into account the unique and complex circumstances of each case. Once that is complete, the Investigator will prepare a final investigation report, which will include findings of facts and determinations of any violations of rules, policies, or procedures.

(h) The final investigation report shall be forwarded to the decision maker, who shall determine any appropriate action, which may include discipline. If there is a finding of cause, the decision maker shall determine any appropriate discipline to end the discrimination, prevent its recurrence and remedy its effects on the complainant or school. The decision maker, in consultation with the Civil Rights Compliance Branch, shall determine whether any remedies will be provided to students involved in the investigation. If it is determined that remedies will be provided, the principal or designee will implement the remedies. The complainant will be provided written notification of whether the allegations have been substantiated, the outcome of the investigation, any remedies provided, and any other actions taken by the department that directly relate to the complainant. The respondent will be provided written notification of whether the allegations have been substantiated, the outcome of the investigation, and relevant action taken by the department that directly relate to the respondent.

(i) The investigator shall make a good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with resolution. The investigation will be completed within sixty calendar days of the filing of a complaint or from the report of the suspected violation of this chapter, unless the Civil Rights Compliance Branch determines in its discretion that more time is required to initiate and complete the investigation. If the investigation cannot be completed within the sixty calendar day time frame, the Civil Rights Compliance Branch will notify the complainant and respondent in writing of the status of the investigation and provide an update on status every thirty calendar days thereafter.

Notes

Haw. Code R. § 8-89-6

[Eff 10/14/2019] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-101, 302A-1001, 302A-1101, 302A-1112; 5 U.S.C. § 301, 20 U.S.C. §1681, 29 U.S.C. §§ 706, 794, 42 U.S.C. §2000d et seq., 42 U.S.C. § 12101 et seq., 28 C.F.R. § 35, 34 C.F.R. §100, 34 C.F.R. § 101, 34 C.F.R. §104, 34 C.F.R. § 106, 45 C.F.R. §90 )