Student discrimination

Establishes cause of action for discriminatory harassment of
public school students; authorizes the Hawaii civil rights
commission to represent public school students in actions
alleging discriminatory harassment.

THE SENATE                              S.B. NO.           1187
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.   The legislature finds that the State of Hawaii
 2 has a strong policy of non-discrimination in education which is
 3 embodied in Article X, section 1 of the Hawaii Constitution.  The
 4 legislature further finds that a recent U.S. Supreme Court
 5 decision in Gebser v Lago Vista Independent School District,
 6 diminished protections previously provided to students under
 7 Title IX of the Federal Education Amendments of 1972.  Thus,
 8 there is a need to provide State protections for all persons who
 9 seek to obtain and enjoy publicly funded education without
10 discriminatory harassment because of sex, race, sexual
11 orientation, religion, or ancestry. 
12      The purpose of this Act, therefore, is to provide a state
13 remedy for students who may be subjected to discriminatory
14 harassment in publicly-funded schools.  This measure is intended
15 to provide students with the same protections from harassment
16 that are provided to employees under Chapter 378, Hawaii Revised
17 Statutes.  It is not intended that this measure result in review
18 of actions taken by educational institutions involving academic
19 research, course content, teaching methodology, admissions,

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 1 grades, or discipline except where those issues are material to
 2 other acts which may be discriminatory. 
 3      SECTION 2.  Section 368-1.5, Hawaii Revised Statutes, is
 4 amended to read as follows:
 5      "368-1.5  Programs and activities receiving state financial
 6 assistance.(a)  No [otherwise qualified individual] person in
 7 the State shall, solely by reason of [his or her] the person's
 8 disability, be excluded from the participation in, be denied the
 9 benefits of, or be subjected to discrimination by state agencies,
10 or under any program or activity receiving state financial
11 assistance.
12      (b)  No person in the State shall, on the basis of sex,
13 race, sexual orientation, religion, or ancestry, be subjected to:
14           (1) discriminatory harrassment, by any person in any
15           educational institution, or any educational program or
16           activity receiving state financial assistance; or
17           (2) retaliation due to opposition to discriminatory
18           harrassment or by participation in any proceeding
19           relating to rights protected under this section.
20      (c)  As used in this section, [the term "disability"] unless
21 the context otherwise requires:
22           "Disability" means the state of having a physical or
23           mental impairment which substantially limits one or
24           more major life activities, having a record of such an

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 1           impairment, or being regarded as having such an
 2           impairment.
 3           "Educational institution" means public schools as
 4           defined in chapter 302A, the university of Hawaii, and
 5           any other school or college receiving state financial
 6           assistance.
 7           "Person" includes the definition of section 1-19, and a
 8           legal representative, partnership, receiver, trust,
 9           trustee, trustee in bankruptcy, the State, or any
10           governmental entity or agency.
11           "Sexual orientation includes the definition in section
12           378-1.
13      [(c)  As used in this section, "state]
14           "State financial assistance" means grants, purchase-of-
15           service contracts, or any other arrangement by which
16           the State provides or otherwise makes available
17           assistance in the form of funds to an entity for the
18           purpose of rendering services on behalf of the State.
19           It does not include procurement contracts, state
20           insurance or guaranty contracts, licenses, tax credits,
21           or loan guarantees to private businesses of general
22           concern that do not render services on behalf of the
23           State."

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                                     S.B. NO.           1187

 1      SECTION 3.  Section 368-3, Hawaii Revised Statutes, is
 2 amended to read as follows:
 3      "368-3 Powers and functions of commission.  The commission
 4 shall have the following powers and functions:
 5      (1)  To receive, investigate, and conciliate complaints
 6           alleging any unlawful discriminatory practice under
 7           chapters 489, 515, part I of chapter 378, and
 8           complaints filed under this chapter, and conduct
 9           proceedings on complaints alleging unlawful practices
10           where conciliatory efforts are inappropriate or
11           unsuccessful;
12      (2)  To hold hearings and make inquiries, as it deems
13           necessary, to carry out properly its functions and
14           powers, and for the purpose of these hearings and
15           inquiries, to administer oaths and affirmations,
16           conduct depositions, compel the attendance of parties
17           and witnesses and the production of documents by the
18           issuance of subpoenas, examine parties and witnesses
19           under oath, require answers to interrogatories, and
20           delegate these powers to any member of the commission
21           or any person appointed by the commission for the
22           performance of its functions;

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 1      (3)  To commence civil action in circuit court to seek
 2           appropriate relief, including the enforcement of any
 3           commission order, conciliation agreement, or
 4           predetermination settlement;
 5      (4)  To issue the right to sue to a complainant;
 6      (5)  To order appropriate legal and equitable relief or
 7           affirmative action when a violation is found;
 8      (6)  To issue publications and results of investigations and
 9           research that, in its judgment, will tend to promote
10           goodwill and minimize or eliminate discrimination in
11           employment, housing, [and] public accommodations[;] ,
12           and programs and activities receiving state financial
13           assistance;
14      (7)  To submit annually to the governor and the legislature
15           a written report of its activities and recommendations
16           for administrative or statutory changes required to
17           further the purposes of this chapter;
18      (8)  To appoint an executive director, deputy executive
19           director, attorneys, and hearings examiners who shall
20           be exempt from chapters 76 and 77, and investigators
21           and other necessary support personnel who shall be
22           subject to chapters 76 and 77.  Section 103D-209(b)
23           notwithstanding, an attorney employed by the commission
24           as a full-time staff member may represent the

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 1           commission in litigation, draft legal documents for the
 2           commission, provide other necessary legal services to
 3           the commission, and shall not be deemed to be a deputy
 4           attorney general; and
 5      (9)  To adopt rules under chapter 91."
 6      SECTION 4.  Statutory material to be repealed is bracketed.
 7 New statutory material is underscored.
 8      SECTION 5.  This Act shall take effect upon its approval.
10                           INTRODUCED BY:  _______________________