A bill to expand legal protections for students alleging sexual assault, harassment or discrimination cleared an important hurdle Tuesday when it passed out of the Senate Judiciary Committee.

House Bill 1489 establishes a state corollary to Title IX of the Education Amendments of 1972, the federal law that prohibits discrimination by education programs that receive federal funding.

A carryover from last year, HB 1489 prohibits discrimination on the basis of sex, gender identity, expression and orientation in any Hawaii education program that receives state funding. It creates a mechanism for students alleging discrimination to pursue a cause of action under state law with the Hawaii Civil Rights Commission or in state court.

“That (legal recourse) doesn’t exist right now,” Commission Executive Director Bill Hoshijo told Civil Beat. “If a student is subjected to sexual harassment in school, they aren’t protected under state anti-discrimination laws right now. If a teacher or employee were sexually harassed, they’re protected under both state and federal law.”

William Hoshijo Hawaii Civil Rights Commission speaks during Panel 1, Hawaii Advisory Committee to US Commission on Civil Rights to hold public meeting on Micronesian Immigration Issues. 20 aug 2015. photograph by Cory Lum/Civil Beat

William Hoshijo of the Hawaii Civil Rights Commission said the bill goes beyond duplicating protections offered by the federal Title IX law.

Cory Lum/Civil Beat

Senate Judiciary Chair Brian Taniguchi recommended the bill pass with amendments. He was joined in support by Vice Chair Karl Rhoads and Sens. Donna Mercado Kim and Laura Thielen.

The amendments, among others, would limit a student’s remedy to equitable relief — meaning an injunction without the possibility of monetary damages — and expand the statute of limitations from when a student could seek relief from 180 days to two years from the date of alleged harassment.

If passed, the bill would take effect in January 2020.

“It keeps the discussion alive, so that’s a good thing,” Hoshijo said of Tuesday’s vote.

Backlash Against Trump Administration

The bill is riding a wave of support from local advocacy groups in light of recent actions taken by the Trump administration to roll back Title IX protections for transgender students and withdraw guidance on how college campuses should address sexual assault.

Hawaii lawmakers say establishing a state civil rights statute for students is particularly appropriate given that Title IX’s co-author was a Hawaii congresswoman, the late Patsy Mink.

“This particular issue is one the Women’s Caucus has been taking up in terms of support for Title IX and making sure that especially in light of the attacks at the federal level, that we make sure we really seek to solidify protections and rights here locally,” said Sen. Jill Tokuda, chair of the Labor Committee and a candidate for lieutenant governor.

Tuesday’s vote means the bill, in amended form, goes to the full Senate for a vote next week.

If the Senate votes to pass the measure, it returns to the House. Any disagreements would be hashed out in conference committee, where the bill died last year.

Hoshijo said while he was optimistic the bill would go to conference, it’s too early to tell whether it would gain final passage.

ACLU Hawaii’s legal director, Mateo Caballero, submitted written testimony in support of the measure.

Anthony Quintano/Civil Beat

HB 1489, and a similar measure introduced this session that has since died — House Bill 2139 — has received testimony in support from the Hawaii State Commission on the Status of Women, Hawaii State Teachers Association and the LGBT Caucus of the Democratic Party of Hawaii, among others.

“Most people know of Title IX primarily because of its dramatic impact on women’s athletics, but that is only part of the story,” ACLU of Hawaii Legal Director Mateo Caballero wrote in testimony. “In addition to ensuring equal access to the athletic field, Title IX also mandates that the academic environment be free from gender-based violence, harassment, and bullying, prohibits sex-segregated programs that are based on and reinforce gender stereotypes, and protects the rights of pregnant and parenting students to continue and complete their education.”

Although much of the written testimony cites the dismantling of students’ civil rights protections under the Trump administration, others touch upon a recent Climate Survey Report among University of Hawaii students about the patterns of sex discrimination and dating violence on campus, and a recent resolution agreement between the Hawaii Department of Education and U.S. Department of Education Office for Civil Rights regarding sex and gender-based bullying in the public schools.

Tokuda noted that the Legislature has appropriated millions of dollars in funds over the last several years to both the DOE and UH to address these concerns.

“The bottom line is not just about appropriations, positions and resources, it’s making sure we ensure compliance,” she said.

DOE Has ‘Strong Concerns’

In written testimony, the Hawaii DOE said it has “strong concerns” with the bill, saying it would be “hindered” in its efforts to ensure that protections it currently offers to students and teachers are “prioritized through an education lens.”

The DOE has argued the bill is not necessary “and could result in a variety of adverse impacts to the state.”

It noted the steps it has taken to improve Title IX protections for students, including hiring a full-time Title IX specialist, establishing 15 complex area specialist positions and disseminating statewide a non-discrimination and anti-harassment policy.

Many of these steps are actions required under the resolution agreement with the U.S. DOE Office for Civil Rights. The state education department plans to present these updates to the Board of Education at a Thursday meeting.

Supporters of HB 1489 say that while teachers and administrators have both state and federal protection against discrimination, students don’t have the same level of relief at their disposal.

“It would open the door to another place where students could go to file complaints about discrimination,” Hoshijo said.

A student subject to sexual harassment currently has a remedy under Title IX, but the standard for gaining relief is one of “deliberate indifference.”

“This is the federal standard applied to the abuse of prisoners, and it is far narrower than the standard applied in sexual harassment cases in an employment setting,” the text of the bill reads.

Tokuda said it’s her understanding that Hawaii would be the only state to have a state corollary to Title IX if the bill becomes law.

“Hawaii would be one of the first and (that’s) most appropriate given that Patsy Mink is from Hawaii,” she said. “It is making sure that at the end of day, it is that we are protecting our people, whether from sexual harassment or violence.”

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