The Hawaii Department of Education was hit with a lawsuit Thursday that alleges the department has failed to provide a safe environment to its students due to lackluster policies and procedures governing student-on-student bullying and harassment.

The complaint comes in the wake of a recent federal compliance review of the DOE’s policies governing student misconduct.

Thursday’s suit alleges the DOE is still in violation of federal anti-discrimination laws despite its pledge late last year to bolster its policies to prevent and punish such behavior.

Brought on behalf of the families of three students at different schools, the proposed class action suit alleges DOE has “grossly inadequate policies” to respond to and prevent student bullying and harassment. The suit also alleges “deliberate and ongoing failure” to ensure the basic safety and well-being of tens of thousands of students in its care.

The complaint, filed by attorney Eric Seitz — who also helped lead the class action on behalf of a Maui special education student in the early 90s that led to the Felix consent decree — is a harsh assessment of the DOE’s existing protocols in addressing student-on-student bullying and harassment.

It lists alleged instances of racial slurs used against students, violence and troubling social media video postings without proper response from school officials.

Hawaii State Supreme Court oral arguments. Attorney Eric Seitz representing the Sierra Club and Sen Clayton Hee petitioners vs. DR Horton-Schuler Homes, The Land Use commission, Office of Planning and Dept of Planning and Permitting . 25 june 2015. photograph Cory Lum/Civil Beat
Eric Seitz, seen arguing in the Hawaii Supreme Court in 2015. Cory Lum/Civil Beat

“The means by which individual class members have been victimized are varied, but central to every incident is the defendants’ failure to provide for the safety and well-being of students,” states the 32-page complaint, filed in federal court.

The Hawaii Department of Education said it was “unable to comment or provide information due to pending litigation.”

The DOE last December entered into a resolution agreement with the U.S. Department of Education’s Office for Civil Rights which capped a years-long compliance review of the state education system’s policies and processes in regards to student-on-student harassment based on race, sex and disability.

Interviews and surveys of nearly 70,000 Hawaii public school students and staff during the 2014-15 and 2015-16 school years led the federal officials to identify an ongoing pattern of bullying in more than two dozen DOE schools without adequate response by school administrators.

Nearly one-third of surveyed students reported having been bullied or harassed and nearly two-thirds said this happened due to their race, sex or disability.

The Office for Civil Rights determined that the Hawaii DOE was in violation of federal anti-discrimination laws.

Last year’s resolution agreement established a set of deadlines for the DOE to improve its procedures to come out from under the compliance review. The DOE pledged to revamp its grievance procedures, train its employees to better handle bullying and hire new “equity specialists” in each complex area, among other things.

In the past year, the DOE has posted notices it’s moving in the direction of improvement.

But Thursday’s complaint, anchored by three alleged cases of student bullying as recently as last school year, contends no positive change has occurred, despite the federal scrutiny.

“As of the filing of this complaint the department continues to operate under the same set of policies, procedures, and regulations that have been in place and that have been severely criticized by the OCR after a years-long investigation,” it states.

DOE Superintendent Christina Kishimoto during DOE board meeting.
DOE Superintendent Christina Kishimoto. Cory Lum/Civil Beat

It specifically zeros in on the DOE’s main mechanism governing student misconduct, Chapter 19 of the Hawaii Administrative Rules, which the feds concluded was too general and did not properly equip students with due process rights to be compliant with federal law. The DOE is also in the process of revising that rule.

Thursday’s complaint outlines three alleged cases of student bullying in which school officials failed to take proper action, causing at least one student to leave the Hawaii public school system altogether.

One student at Mililani Middle School alleged she was called a racial slur last school year and physically assaulted. She reported the behavior to school officials, whom the suit claims failed to take reasonable measures to address the conduct.

Another student at Wailuku Elementary on Maui claims to have been sexually harassed and bullied, including being threatened with death threats and warnings of being “choked in the bathroom,” to the point she feared going to the bathroom at school. The complaint alleges the school principal only offered counseling to the child long after the fact.

A third plaintiff alleges she was threatened with physical assault at Castle High in the 2015-16 school year. Despite going to a school counselor, no written report was created. She alleges she was later “violently assaulted” and suffered a concussion, bruises and cuts while the alleged incident was filmed and posted to social media.

The complaint lists seven counts including negligence, child abuse and misuse of federal funds, and seeks injunctive relief, damages and the appointment of a “special master” to operate programs within the Hawaii DOE under the court’s supervision.

Read the complaint:

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