Revisions in Detail: Chapter WAC Equal Educational Opportunity and Unlawful Discrimination in Washington Public Schools

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1 Revisions in Detail: Chapter WAC Equal Educational Opportunity and Unlawful Discrimination in Washington Public Schools To more effectively address discrimination within Washington public schools, the Office of Superintendent of Public Instruction (OSPI) made substantial changes to Chapter WAC, effective December 19, These rules implement Chapters 28A.640 and 28A.642 RCW and prohibit discrimination in Washington public schools on the basis of sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation, gender expression, gender identity, disability, and the use of a trained dog guide or service animal by a person with a disability. 1 This chart details the substantive revisions in the rules that may impact how school districts and public charter schools respond to allegations of discrimination updates to existing policies and procedures may be necessary. While OSPI intends for this chart to support districts and schools in updating their existing policies, procedures, and practices to achieve compliance with the revised rules, it should not be interpreted as a comprehensive statement of the rules. The full text of Chapter WAC and the Concise Explanatory Statement, which provides more information about OSPI s permanent rule adoption, are available at: WAC Section All WAC Compliance with federal law. WAC Counseling and guidance services Course and program enrollment. The revised rules clarify that all public charter schools must comply with Washington state and federal civil rights laws, including Chapters 28A.640 and 28A.642 RCW and Chapter WAC. 2 Unless otherwise provided in Chapter WAC or in OSPI s guidelines 3, OSPI adopts the definitions, requirements, and procedural safeguards set forth by the U.S. Department of Education 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 While most of the requirements of this section remain unchanged, the revised rules clarify that each school district and public charter school must, at least annually, review course and program enrollment data disaggregated by sex, race, limited-english proficiency (i.e., English language learners), and disability. If a substantially disproportionate number of students who are members of a protected class are enrolled (or not enrolled) in a particular course or program, the school district or public charter school must take action to ensure that it is not the result of discrimination, including in the identification and selection of students, course and program enrollment criteria, tests and appraisal instruments, guidance materials, or educational scheduling or placement. 1 Referenced herein as protected classes. 2 WAC (Harassment, intimidation, and bullying prevention policy and procedure) does not apply to public charter schools because charter schools are not subject to RCW 28A OSPI Equity and Civil Rights, Prohibiting Discrimination in Washington Public Schools: Guidelines for School Districts to Implement Chapters 28A.640 and 28A.642 RCW and Chapter WAC (February 2012), Chapter WAC: Revisions in Detail 1

2 WAC Training Staff responsibilities Bias awareness. WAC Recreational and athletic activities. WAC Access to course offerings. WAC Access to course offerings Student discipline and corrective action. Previously, this section provided that school districts must, where appropriate, include bias awareness and elimination training sessions in in-service training programs conducted or provided for certificated and classroom personnel. Under the revised rules, each school district and charter school must provide training to its civil rights compliance coordinator(s) and all administrators and certificated and classroom personnel (1) regarding their responsibilities under Chapter WAC and (2) to raise awareness of and eliminate bias based on all protected classes. Although the structure and language in the rules regarding athletics in WAC , , and have been revised for clarity and readability, the requirements generally remain the same. The revised rules, however, clarify that when individual students with disabilities cannot participate in existing recreational and athletic activities even with reasonable modifications and necessary accommodations, aids, or services, a school district or public charter school may offer opportunities for students with disabilities to participate in separate or different recreational or athletic activities. This new section states that each school district and public charter school must ensure that no student is denied or limited in their ability to participate in or benefit from its course offerings on the basis of any protected class. Course offerings include all education programs and activities offered or sponsored by a school district or public charter school, whether those programs or activities take place in a school district's or charter school's facilities or elsewhere. Under this new section, each school district and public charter school must, at least annually, review data on corrective and disciplinary actions taken against students within each school disaggregated by sex, race, limited-english proficiency (i.e., English language learners), and disability, including students protected under Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA). This review must include, but is not limited to, short-term suspensions, long-term suspensions, expulsions, and emergency expulsions. In reviewing this data, each school district or public charter school must determine whether it has disciplined or applied corrective action to a substantially disproportionate number of students within any of the categories identified in this section. If a school district or public charter school finds that it has disciplined or applied corrective action to a substantially disproportionate number of students who are members of one of the categories identified in this section, the school district or charter school must take prompt action to ensure that the disproportion is not the result of discrimination. Chapter WAC: Revisions in Detail 2

3 WAC Textbooks and instructional materials Instructional materials policy Elimination of bias WAC Discriminatory harassment. While this section has not changed substantially, the revised rules require that each school district and public charter school adopt an instructional materials policy that includes not only a statement regarding the elimination of bias (as was previously required), but provides selection criteria designed to eliminate bias based on all protected classes in textbooks and instructional materials. Each school district and public charter school must use the screening criteria to identify and eliminate bias in all textbooks and instructional materials, including reference materials and audio-visual materials. This new section clarifies school districts and public charter schools responsibilities regarding discriminatory harassment, including sexual harassment. When enforcing compliance with this chapter, OSPI will find that a school district or public charter school has violated a student s rights regarding discriminatory harassment when (a) the alleged conduct is based on a student s protected class; (b) the alleged 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 (i.e., creates a hostile environment); and (c) the district or charter school, upon notice, fails to take prompt and appropriate action to investigate or fails 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. OSPI deems a school district or public charter school to have notice of discriminatory harassment if a reasonable employee knew, or in the exercise of reasonable care should have known, about the harassment. WAC Sexual harassment policy Required criteria. WAC Sexual harassment policy Notification. Revisions to this section state that a school district s or charter school s sexual harassment policy must include the responsibilities of employees and volunteers and the investigative and complaint procedures in WAC through This section continues to require that a school district s or public charter school s sexual harassment policy must be easily understood and conspicuously posted throughout each school building and provided to each employee. Information about the sexual harassment policy and complaint procedure must appear in any publication of the school or district that sets forth the rules, regulations, procedures, and standards of conduct for the school or district, such as student or employee handbooks. As provided in the revisions to this section, school districts and public charter schools that do not provide such a publication must provide written information about their sexual harassment policy and complaint procedure to each student, parent or guardian, employee, and volunteer. Chapter WAC: Revisions in Detail 3

4 WAC Harassment, intimidation, and bullying prevention policy and procedure School districts. The revisions in this section provide that if the allegations in a written complaint of Harassment, Intimidation, or Bullying (HIB) pursued under a district s HIB complaint procedure indicate potential discrimination or discriminatory harassment based on any protected class, or if during the course of an HIB investigation a district becomes aware of a potential violation, the district s HIB officer must inform the appropriate compliance coordinator (i.e., Title IX Coordinator, Section 504 Coordinator, or Civil Rights Compliance Coordinator) of the complaint. Upon receipt of this information, the compliance coordinator must notify the complainant that their complaint will proceed under both HIB and discrimination complaint procedures set forth in WAC through These revisions are not intended to limit the scope or use of a school district s HIB procedures. School districts should be aware that the HIB and discrimination complaint procedures have different timelines and requirements. If a compliance coordinator becomes aware of potential discrimination based on any protected class, the investigation and response timeline for the discrimination complaint procedure begins when the school district knows or should have known that a written report of harassment, intimidation, or bullying involves allegations about unlawful discrimination or discriminatory harassment. WAC Public school employment Affirmative action program. WAC Compliance School district or public charter school Designation of responsible employee Notification. This section previously required each school district to file their affirmative action employment program with OSPI. Under the revised rules, school districts and public charter schools are still required to develop affirmative action employment programs, but the programs no longer need to be filed with OSPI. School districts and public charter schools must still maintain affirmative action programs and make them available to OSPI upon request. Revisions in this section clarify the following: Compliance Coordinator: Each school district and public charter school must designate at least one employee who is responsible for monitoring and coordinating the district s or charter school s compliance with Chapter WAC and OSPI s civil rights guidelines. Under the revised rules, the compliance coordinator is responsible for ensuring that all discrimination complaints are promptly investigated and resolved. This allows compliance coordinators to delegate the responsibility to investigate a particular complaint if they are concerned about their ability to conduct an unbiased or impartial investigation. Nondiscrimination Statement: Consistent with federal requirements, each school district and public charter school must publish a nondiscrimination statement in written announcements, notices, recruitment materials, employment application forms, and other publications made available to all students, parents, or employees in a language that that each parent and guardian can understand. The statement must include: 1. Notice that the school district or public charter school may not Chapter WAC: Revisions in Detail 4

5 discriminate in any programs or activities on the basis of sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation, gender expression, gender identity, the presence of any sensory, mental or physical disability, or the use of a trained dog guide or service animal; 2. The name or title, office address, and telephone number of the compliance coordinator designated under this section, as well as the employees designated to ensure compliance with Section 504 of the Rehabilitation Act of 1973 and Title IX of the Education Amendments of 1972; and 3. Pursuant to the Boy Scouts of America Equal Access Act, notice that the school district or public charter school provides equal access to the Boy Scouts of America and any other youth group listed in Title 36 of the United States Code as a patriotic society. Retaliation and Interference with Complaints: The revisions to this section clarify that school districts and public charter schools must not adopt any policy, procedure, or practice that would limit a person s right to file a complaint under Chapter WAC or discourage filing such a complaint. School districts and public charter schools are additionally prohibited from intimidating, threatening, coercing, or discriminating against any person exercising a right secured Chapter WAC, including filing a discrimination complaint or participating in an investigation. WAC Compliance Complaint procedure School district or public charter school. As provided in the revisions to this section, each school district and public charter school must adopt a discrimination complaint procedure that includes all of the requirements in WAC The requirements in this section have been revised as follows: Filing Deadline: A school district or public charter school may establish a complaint filing deadline, which must be no less than one year after the occurrence that is the subject matter of the complaint. Deadlines may not be imposed if the complainant was prevented from filing a complaint due to required information or notices being withheld or misrepresentations that the complaint had been resolved. Receiving Complaints: Complaints may be submitted by mail, fax, , or hand delivery to any district, school, or charter school administrator or compliance coordinator. While complaints are no longer required to be signed, they must be written and describe the specific acts, conditions, or circumstances alleged to violate Chapter WAC or OSPI s civil rights guidelines. School district or charter school administrators who receive complaints must promptly notify the designated compliance coordinator. Upon receipt of the complaint, the compliance coordinator must provide a copy of the complaint procedures to the complainant in a language the complainant can understand. Chapter WAC: Revisions in Detail 5

6 Complaint Investigation and Response: The compliance coordinator must ensure that the school district or public charter school conducts a prompt and thorough investigation into the allegations in the complaint. Following the completion of the investigation, the compliance coordinator must provide the district superintendent, charter school administrator, or designee with a full written report of the complaint and the results of the investigation. The district superintendent, charter school administrator, or designee must respond in writing within thirty calendar days after the district or charter school received the complaint. The revised rules clarify that the response must include a summary of the results of the investigation, an assessment of the district s or charter school s compliance with Chapter WAC, notice of the complainant s appeal rights, and any corrective measures necessary if the district or charter school failed to comply with Chapter WAC or OSPI s guidelines. The response must be in a language the complainant can understand, and a copy of the response must be sent to OSPI. Response Extensions: The revised rules allow for an extension of the time limit to respond to a complaint if agreed to by the complainant or if exceptional circumstances apply. In the event an extension is needed, the school district or public charter school must send written notification to the complainant, in a language the complainant can understand, of the reason for the extension and the anticipated response date. Informal Complaints: The revised rules clarify that nothing in this section prohibits a school district or public charter school from adopting a separate procedure to resolve informal complaints. An information complaint procedure may not limit a complainant s right to file a formal complaint. When using an informal complaint procedure, the district or charter school must notify complainants about their right to file a formal complaint in a language the complainant can understand. WAC Compliance Appeal procedure School district or public charter school. Under the revisions to this section, each school district and public charter school s complaint procedure must provide an option to appeal the district s or charter school s decision to a party or board that was not involved in the initial complaint or investigation. A school district or public charter school may establish a time limit to file appeals, which may be no less than ten calendar days from the date the complainant received the district s or charter school s response to the complaint. An appeal hearing before the school district s board of directors is no longer required. However, a school district may continue to use the previous school board appeal process to meet these appeal requirements. Regardless of the process that the school district or public charter school uses to resolve appeals, it must respond to the appeal in writing within thirty calendar days after receiving the appeal, unless otherwise agreed to by the complainant. The appeal decision must include notice of the complainant's right to file a complaint with OSPI, and a copy of the appeal decision must be sent to OSPI. Chapter WAC: Revisions in Detail 6

7 WAC Compliance Complaint procedure Office of superintendent of public instruction. OSPI will no longer conduct a formal administrative hearing through the Office of Administrative Hearings (OAH) to hear appeals of discrimination complaints. Under the revised rules, if a complainant disagrees with the school district s or public charter school s appeal decision, or if the district or charter school fails to comply with the required complaint procedures, the complainant may file a complaint with OSPI. Complaints: Complaints to OSPI must be filed within twenty calendar days following the school district s or public charter school s appeal decision, although extensions may be granted for good cause. Complaints to OSPI must be made in writing and include a description of the alleged violation(s) of Chapter WAC, contact information for the complainant, a copy of all district or charter school level complaints and responses, and a proposed resolution. Investigations: When OSPI receives a complaint, it will evaluate the complaint to determine if it will initiate an investigation. The investigation may include reviewing relevant information, conducting interviews, or completing an onsite review. At its discretion, OSPI may investigate additional issues related to the complaint that were not included in the initial complaint or appeal. Following an investigation, OSPI will make an independent determination as to whether or not the school district or public charter school failed to comply with Chapter WAC or OSPI s guidelines and may require corrective actions if the district or charter school is found out of compliance. Written Decisions: OSPI s written decision will include any corrective action required by the school district or public charter school, timelines for compliance, and any documentation the district or charter school must provide to ensure the corrective action is completed. If compliance is not demonstrated, OSPI may take action to ensure compliance, which may include sanctions or corrective measures. Early Resolution: Complaints may be resolved before the conclusion of OSPI s investigation if either party voluntarily agrees to resolve the complaint. WAC Mediation. This new section allows a school district or public charter school to offer mediation, at the school or district s expense, to resolve complaints at any point in the complaint process. The purpose of mediation is to provide the complainant and the school district or charter school an opportunity to reach a mutually acceptable agreement through the use of an impartial mediator. Mediation must be voluntary for both parties and either party can terminate the mediation at any time. The mediator must be qualified and impartial. Mediation must not be used to deny or delay a complainant s rights to utilize the appeal procedure. Parties may agree to extend timelines to allow for mediation. Chapter WAC: Revisions in Detail 7

8 WAC Monitoring Duty of the superintendent of public instruction. WAC Monitoring Procedures Results. WAC Monitoring results Complaints issued by superintendent of public instruction. If the parties are able to resolve the complaint through mediation, they may set forth a resolution agreement and may agree for all discussions in the mediation to be confidential. OSPI does not sign, approve, or endorse agreements reached through mediation. The revisions in this section clarify that OSPI s monitoring duty includes investigation of complaints under WAC The revisions in this section state that OSPI may impose sanctions or corrective action on a school district or public charter school if the district or charter school fails to timely comply with a proposed corrective action plan. This section was repealed. When monitoring school district and public charter school compliance with Chapter WAC, OSPI will use the procedures set forth in WAC through OSPI provides equal access to all programs and services without discrimination based on sex, race, creed, religion, color, national origin, age, honorably discharged veteran or military status, sexual orientation, gender expression, gender identity, disability, or the use of a trained dog guide or service animal by a person with a disability. Questions and complaints of alleged discrimination should be directed to the Equity and Civil Rights Director at (360) or P.O. Box 47200, Olympia, WA Chapter WAC: Revisions in Detail 8