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Last year, many people cheered the Hawaii Legislature’s passage of a measure to create a state version of Title IX, the federal law that prohibits discrimination on the basis of gender in education programs that receive federal funding.
House Bill 1489, which was signed into law by Gov. David Ige as Act 110, established a framework to prohibit discrimination on the basis of sex, gender identity or sexual orientation in any state-funded Hawaii education program.
It was a “huge step for Hawaii,” said then-state Sen. Jill Tokuda.
Now, however, implementation of the law will be delayed. The Legislative Reference Bureau, which conducts research and compiles reports for lawmakers on various issues, has missed a deadline to draft a report intended to serve as a jumping-off point for legislators to come up with the enabling language.
The report was due Dec. 27. The Legislature was supposed to hammer out the details of the enforcement mechanism this session, with the law to take effect Jan. 1, 2020.
“The study will get done. We just don’t have a date,” LRB director Charlotte Carter-Yamauchi told Civil Beat earlier this week. “We are working diligently on it.”
In written comments to lawmakers, Carter-Yamauchi explained the delay in further detail.
“Due to an extraordinary amount of additional work during this past interim and the substantial complexity of this study’s subject matter, the Bureau has been unable to complete the Title IX study in the time allotted to it,” she wrote.
The Women’s Legislative Caucus has introduced measures this session solely for the purpose of extending the LRB study deadline. On Wednesday, House Bill 483 passed out of the Judiciary Committee with a new study deadline of Aug. 1.
If that date holds, the Legislature would need to spend the 2020 session crafting the actual law, meaning an effective date would be in mid-2020 at the soonest or, more likely, the start of 2021.
“It sounds like there is a push to push the effective date back a year, to allow the Legislature in the 2020 session to legislate part two of the state Title IX law,” said Bill Hoshijo, executive director of the Hawaii Civil Rights Commission. “It would be cause for concern if it is pushed back more than that.”
Proponents say a state version of Title IX is needed for several reasons.
One is the Trump administration’s rollbacks of student civil rights protections in recent years.
The U.S. Department of Education has rescinded Obama-era guidance concerning rights of transgender students, released new rules for the handling of investigations of campus sexual assault and proposed new regulations that would allow schools to raise the bar for proving claims of sexual assault and harassment.
“We all do have a sense of urgency,” said Ann Freed, co-chair of the Hawaii Women’s Coalition. “We have to draw a line here in the sand. We’re doing this as a response to what’s happening nationally.”
Proponents also say a Hawaii version of Title IX is necessary due to the number of incidents where students have reported discrimination on the basis of gender or sexual orientation without appropriate action taken by the state Department of Education.
Transgender youth in Hawaii report a higher prevalence of bullying than their peers, according to state Department of Health statistics. Additionally, a recent University of Hawaii Climate Survey revealed that 10 percent of 44,600 students polled said they experienced sexual harassment while enrolled on a UH campus.
The Hawaii DOE also has been named in two recent lawsuits alleging violations of Title IX — one alleging rampant bullying in Hawaii’s schools based on race, gender or sexual orientation and another based on inequities in girls’ athletic programs at Campbell High School.
The DOE recently filed its response to the girls’ athletics lawsuit brought by ACLU Hawaii. In a five-page answer, it denied almost all the allegations.
Under a resolution agreement reached with the U.S. Department of Education to close out a years-long investigation of student-on-student bullying based on race, sex or disability, Hawaii’s DOE must also beef up its civil rights compliance procedures. It’s in the process of revising its anti-bullying policy and has hired new “equity specialists” to fill out most of its school complex areas.
The Legislative Reference Bureau’s report is supposed to analyze versions of Title IX in other states like California, New York and Alaska, and discuss how Hawaii’s law might clash with federal law, something other jurisdictions have had to contend with.
The LRB has made some progress on the report, as outlined in written comments it submitted to the Senate version of the study deadline extension bill.
The report will discuss enforcement entities responsible for Title IX investigations in other states, the complaint filing process, possible remedies including alternative dispute resolution, injunctive relief and civil damages and inconsistencies between state and federal compliance mandates.
The body responsible for Title IX authority in other states generally is the state board of education or state superintendent, along with an institution of higher learning, the LRB said.
California’s and New York’s state Title IX laws are the most comprehensive in terms of outlining a grievance process, a student’s bill of rights, state evaluation and oversight and data reporting requirements, according to the LRB.
Before Hawaii lawmakers adopted a plan to create the state’s own version of Title IX last year, the bill had been diluted. Amendments removed the possibility for monetary damages and an option for a complaint to be directly filed with the Hawaii Civil Rights Commission.
The Hawaii DOE opposed the legislation, saying there was no need for it.
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