§8-89-2 - Definitions.

§8-89-2 Definitions.

         Whenever used in this chapter, unless the context otherwise requires:

         "Bullying" means any written, verbal, graphic, or physical act that hurts, harms, humiliates, or intimidates a student(s), including those with protected class statuses, that is sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive educational environment.

         "Child Welfare Services" means the Child Welfare Services of the State of Hawaii Department of Human Services.

         "Complainant" means any student, parent, or legal guardian of any student, employee, volunteer, or member of the community who witnesses or is otherwise aware of conduct prohibited by this chapter who files a complaint regarding an alleged violation under this chapter.

         "Complaint" means a charge filed under this chapter, which alleges that a student participating in a program, activity, or service of the department was subjected to discrimination, harassment (including sexual harassment), or bullying by an employee, a volunteer, or a third party in violation of board of education rules, policies and directives, and federal and state regulations and laws, including, but not limited to, the following laws:

         (1) Title VI of the Civil Rights Act of 1964, Public Law 88-352, which prohibits discrimination on the basis of race, color, or national origin;

         (2) Title IX of the Educational Amendments Act of 1972, Public Law 92-318, which prohibits discrimination on the basis of sex;

         (3) Title IV of the Civil Rights Act of 1964, which prohibits discrimination on the basis of religion;

         (4) Section 504 of the Rehabilitation Act of 1973, Public Law 92-112, which prohibits discrimination against persons with disabilities;

         (5) Individuals with Disabilities Education Act, Public Law 101-476, which ensures students with a disability are provided with free and appropriate public education that is tailored to their individual needs;

         (6) Americans with Disabilities Act, Public Law 101-336, which prohibits discrimination against persons with disabilities in programs, activities, and services;

         (7) Article X, Section 1, Hawaii State Constitution, which prohibits discrimination in public educational institutions because of race, religion, sex, or ancestry;

         (8) Age Discrimination Act of 1975, Public Law 94-135;

         (9) Section 302A-461, Hawaii Revised Statutes, which prohibits discrimination on the basis of sex in athletics offered by a public high school;

         (10) Section 302A-1001, Hawaii Revised Statutes, which prohibits discrimination on the basis of sex in any educational or recreational program or activity receiving state or county financial assistance or utilizing state or county facilities; and

         (11) Section 368D-1, Hawaii Revised Statutes, which prohibits discrimination on the basis of sex, gender identity or expression, or sexual orientation in any state educational program or activity or any educational program or activity that receives state funding.

         "Cyberbullying" means electronically transmitted acts, including but not limited to those transmitted through the Internet, cell phone, or other wireless hand-held device, that an employee, a volunteer, or a third party exhibits toward a student(s), that hurts, harms, humiliates, or intimidates the student(s); and is sufficiently severe, persistent, or pervasive, that it creates an intimidating, threatening, or abusive educational environment. Cyberbullying can occur:

         (1) On campus, or other department premises, on department transportation, or during a department sponsored activity or event on or off school property;

         (2) Through a department data system without department authorized communication; or

         (3) Through an off campus computer network, if the conduct impacts the educational environment.

         Additionally, cyberbullying may also be based on a person's protected class, including but not limited to, a person's race, color, religion, sex, sexual orientation, gender identity, gender expression, age, national origin, ancestry, disability, physical appearance and characteristics, and socio-economic status.

         "Decision maker" means the administrator with authority to make decisions regarding findings on complaints filed under this chapter.

         "Department" means the Department of Education.

         "Department employees with supervisory authority" refers to employees with supervisory responsibilities in their position description.

         "Director" means the director of the Civil Rights Compliance Branch.

         "Discrimination" means excluding the participation in or denying the benefits of the department's administration of its educational programs and activities, or otherwise treating a student differently on the basis of a protected class.

         "Employee" means a department employee.

         "Gender expression" means the manner in which a person represents or expresses gender to others, often through behavior, clothing, hairstyles, activities, voice, or mannerisms.

         "Gender identity" means a person's internal, deeply-felt sense of being male, female, or other, whether or not that gender-related identity is different from the person's physiology or assigned sex at birth. Everyone has a gender identity.

         "Harassment" means any threatening, insulting, or aggressive conduct, which can be written, verbal, or physical, and is directed against a student, including those with protected class status. Harassing conduct must have the effect of:

         (1) Placing a student in reasonable fear of harm to his or her person or damage to his or her property;

         (2) Interfering with a student's educational performance, opportunities, or benefits; or

         (3) Disrupting the orderly operation of a school.

         "Immediate interventions" means individualized services offered as soon as possible, but no later than seventy-two hours after receipt of the complaint, to either or both the complainant or respondent involved in a complaint as appropriate to protect students from possible racial, sexual, or disability harassment. Immediate interventions may be offered prior to an investigation or while an investigation is pending. Immediate interventions for students pending an investigation may include counseling, extensions of time or other course-related adjustments, modifications of work or class schedules, campus escort services, restrictions on contact between the parties, leaves of absence, increased security and monitoring of certain areas of campus, or other similar accommodations. Immediate interventions may be put in place by the principal or designee on a case-by-case and temporary basis after the department receives notice of a complaint and before any outcomes -investigatory, disciplinary, or remedial - have been determined. These measures may be instituted to preserve the complainant's educational experience, ensure the safety of all parties and the broader department community, maintain the integrity of the investigative or resolution process, and deter retaliation. Immediate interventions shall be available throughout all phases of an investigation. They may be amended or withdrawn as additional information is gathered.

         "Investigator" means an administrator, individual, or group of individuals assigned by the Civil Rights Compliance Branch to investigate complaints made pursuant to this chapter. There may be circumstances that require having an investigator external to the department investigate complaints.

         "Legal guardian" means a person who has the legal right and authority to make educational and other decisions for a child under the person's guardianship.

         "Parent" means the natural or legal parent, legal guardian, or other legal custodian of a student. For students eighteen years of age or older, all parental rights herein transfer to the student unless the natural or legal parent, legal guardian, or other legal custodian has legally obtained decision making rights for the student.

         "Persons with disabilities" means persons who have a physical or mental impairment that substantially limits one or more life activities, have a record of an impairment, or are regarded as having an impairment.

         "Protected class/basis" for the purposes of this chapter includes race, color, religion, sex, sexual orientation, gender identity, gender expression, age, national origin, ancestry, disability, physical appearance and characteristics, and socio-economic status.

         "Remedies" are individualized services offered at the conclusion of an investigation that preserve the educational experience or ensure the safety of all students and the broader department community. Remedies for students may include, but are not limited to, the adjustment of academic schedules and coursework, and the provision of academic, medical, and psychological support services.

         "Respondent" means the employee, volunteer, or third party who is identified in the complaint as having allegedly discriminated against, harassed (including sexually harassed), or bullied a student. Respondent also includes the department when a complaint alleges systemic discrimination.

         "Retaliation" means an adverse action against an employee, volunteer, or student because they engaged in protected activity. Protected activity includes filing a complaint of discrimination, harassment (including sexual harassment), or bullying; participating in a complaint or investigation proceeding dealing with discrimination, harassment (including sexual harassment), or bullying; inquiring about rights under this chapter; or otherwise opposing acts covered under this chapter. An adverse action is any action that would dissuade a reasonable person from making or supporting a complaint under these rules. Reprisals or retaliation shall be prohibited when there is protected activity that was engaged in in good faith.

         "School" means all academic and non-college type schools established and maintained by the department in accordance with state law.

         "Sexual assault" means the act of committing unwanted physical contact of a sexual nature on a person, whether by an acquaintance or by a stranger. Such contact is unwanted when it occurs without consent of the person, or when the person is incapacitated or otherwise incapable of giving consent. Consent means affirmative, conscious, and voluntary agreement to engage in agreed upon forms of sexual contact. If a student is a subject of sexual assault and is under the age of consent or if the perpetrator of sexual assault is an adult and an employee or volunteer of the department, it shall be deemed that no consent was given. Sexual assault is a form of sexual harassment.

         "Sexual exploitation" means the violation of the sexual privacy of another, or taking unjust or abusive sexual advantage of another without consent and when such behavior does not otherwise constitute sexual assault. Consent means affirmative, conscious, and voluntary agreement to engage in agreed upon forms of sexual contact. If a student is a subject of sexual exploitation and is under the age of consent, or if the perpetrator of sexual exploitation is an adult and an employee or volunteer of the department, it shall be deemed that no consent was given. Sexual exploitation is a form of sexual harassment.

         "Sexual harassment" means any unwanted, unwelcome, or unsolicited verbal or physical act of a sexual nature directed at an individual because of the individual's sex. Sexual harassment can include requests for sexual favors or sexual advances when submission to or rejection of the conduct is either an explicit or implicit term or condition of a student's education or participation in a department program, activity or service; or when submission to or rejection of the conduct is used as a basts in decisions affecting that student's education or participation in a department program, activity, or service. Sexual harassment also includes, but is not limited to, sexual misconduct, unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature. It can include conduct such as touching of a sexual nature, making sexual comments, jokes or gestures, writing graffiti or displaying or distributing sexually explicit drawings, pictures or written materials, calling students sexually charged names, spreading sexual rumors, rating students on sexual activity, or circulating, showing, or creating e-mails or websites of a sexual nature. Sexual exploitation and sexual assault also fall under the definition of sexual harassment.

         "Sexual orientation" means a person's emotional and sexual attraction to another person based on the gender of the other person. Common terms to describe sexual orientation include, but are not limited to, heterosexual, gay, lesbian, and bisexual. Sexual orientation and gender identity are different.

         "Stalking" means two or more acts of unwanted behavior, directed at a specific person that is sufficiently serious to cause physical, emotional, or psychological fear or to create a hostile, intimidating, or abusive educational environment.

         "Student" means a person who is currently enrolled in a public school, or in any program, service, or activity conducted by the department.

         "Systemic discrimination" means discrimination that results when an established policy, rule, regulation or procedure of the department has the continuing effect of violating non-discrimination rights.

         "Third party" means any person who is not an employee or volunteer of the department who is on the department's property with the permission of an employee within the department with authority to grant such permission.

         "Volunteer" means any person who has been officially recognized by a department administrator as someone who is authorized to perform work or services for the department without compensation.

        [Eff ] (Auth: HRS §302A-1112) (Imp: Hawaii Const. Art. X §1; 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)

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