January 26, 2011
By Facsimile and e-mail
Yvonne Ryans
Director of Equity and Civil Rights
Office of Superintendent of Public Instruction
Post Office Box 47200
Olympia, WA 98504-7200
Re: ACLU-WA Written Comments Opposing Adoption of Proposed Chapter 392-190 WAC - Equal Educational Opportunity-Unlawful Discrimination Prohibited
Dear Ms. Ryans:
These comments are submitted on behalf of the American Civil Liberties Union of Washington (ACLU) and its 20,000 members across the state. The ACLU is dedicated to the preservation of civil liberties, including the right of all students to equal educational opportunities. In 2010, our state Legislature passed the Equal Education Opportunity Law (RCW 28A.642) which extended the school non-discrimination laws to include protected categories of students previously excluded. The ACLU believes this important new law is now in jeopardy because OSPI’s Proposed Regulations fail to include the guidance and standards necessary to fully extend existing civil rights protections to these categories of students.
OSPI was directed to create regulations that “ensure that school districts comply with all relevant civil rights laws” -- they have failed to do so. For that reason, we urge you to reject this Proposed WAC.
The ACLU believes that for OSPI to properly implement the legislative intent of RCW 28A.642, its Proposed Regulation MUST:
- Expressly prohibit disparate impact discrimination. Existing civil rights laws include this prohibition. As currently written, the Proposed WAC is silent on this issue.
- Impose a “knew or should have known” standard of liability on school districts that fail to intervene to protect students from harassment. Existing civil rights laws impose this standard. The current Proposed WAC excludes this standard.
- Address the unique forms of discrimination faced by the protected categories of students enumerated in RCW 28A.642. The Proposed WAC simply cuts and pastes these new categories into the existing Sex Equity WAC, which does not include many forms of discrimination the new law was designed to address.
We urge OSPI to redraft its regulations to incorporate these critical elements and provide strong, clear prohibitions against the discrimination enumerated in RCW 28A.642. The ACLU believes that the Draft WAC issued by OSPI in August 2010 provides a good model for a comprehensive set of regulations to implement RCW 28A.642. These Draft WACs provide clear guidance to school districts about the steps necessary to comply with the new law, and they also reflect important input from stakeholders across the state including parents, students, teachers and administrators. In the Proposed WAC, OSPI appears to have rejected all of this important input and instead responded exclusively to a small percentage of school districts urging OSPI to dramatically curtail the civil rights protections extended by RCW 28A.642.
Below is an outline of the ACLU’s overarching objections to the Proposed WAC Chapter 392-190 Equal Educational Opportunity-Unlawful Discrimination Prohibited – in particular the lack of sufficient legal standards. The ACLU also joins in the specific comments and suggested revisions submitted on behalf of the Safe Schools Coalition and the Northwest justice Project, and urges OSPI to incorporate those comments into newly revised WACs.
I. The Proposed WAC Fails to Clearly Prohibit Disparate Impact Discrimination
RCW 28A.642 was enacted to address the “deleterious effect of discrimination” and plainly states that “discrimination in Washington public schools is prohibited.” Use of the general term “discrimination” was intended to include both direct discrimination and discrimination that results from policies or practices that are neutral on their face but have a discriminatory effect or impact.
RCW 28A.642 specifically cites the Achievement Gap as motivation for passage of the law. The Achievement Gap has been widely proven to be, in part, the result of policies and practices that are neutral on their face but have a disproportionate impact on communities of color (e.g., disparate discipline, biased course assignments and counseling, over-referral to special education). Failure to protect against disparate impact discrimination would be a failure to carry out the clear intent of the law.
Furthermore, school districts were already prohibited from engaging in certain forms of disparate impact discrimination prior to passage of RCW 28A.642. The Washington Law Against Discrimination and the Washington Equal Rights Amendment each hold school districts liable for disparate impact discrimination. Similarly, under federal law the U.S. Department of Education, Office for Civil Rights (OCR) clearly asserts jurisdiction over school districts engaged in disparate impact discrimination. It must be assumed that by enacting RCW 28A.642, the legislature did not intend to provide less protection than already existed under current law.
In an October 5, 2010 letter to OSPI from the Puget Sound Education Service District (PSED), superintendents and their attorneys urged OSPI to exclude a prohibition against disparate impact discrimination from the Proposed WAC. They cited fear of “frivolous lawsuits” as the rationale for objecting to any disparate impact language. This objection is without merit. Disparate impact discrimination in schools is already prohibited by the state Constitution and state law yet there is no evidence of frivolous lawsuits. Moreover, OCR, the federal agency charged with enforcing federal education civil rights laws, has jurisdiction over disparate impact discrimination, and there is no evidence that districts have been burdened with frivolous enforcement actions.
Specific Sections of Concern:
- Proposed WAC Sec. 392-190-005 - Purpose
In its Proposed WAC Sec. 392-190-005, OSPI eliminated important language contained in the Draft WAC’s Statement of Purpose which specifically provided that “policies and practices which have a disparate impact” are prohibited (Draft Sec. 392-190-005). The Proposed WAC is now silent on this issue, leaving unresolved a significant question of liability. This omission creates a situation whereby school districts, believing they are not liable for disparate impact discrimination, may inadvertently be in violation of other applicable state and federal laws.
It is unclear whether OSPI eliminated the disparate impact language from the general statement of Purpose to avoid taking a position on the issue or to signal its intent to exclude disparate impact discrimination. Either way, by removing this language, OSPI fails to meet its statutory obligation to “ensure that school districts comply with all relevant civil rights laws.”
Recommendation: OSPI should clearly state in the Purpose Section on the WACs that disparate impact discrimination is prohibited. This guidance is essential to ensure that districts are in compliance with RCW 28A.642 and other applicable state and federal civil rights laws.
- Proposed WAC Sec. 392-190-010(5) – Counseling and Guidance Services
In a more clear signal of its intent, OSPI removed long standing disparate impact language from the Sex Equity WACs –removing the prohibition on counseling and guidance materials that “result” in disproportionality, and instead only prohibiting materials that can be shown to actually “cause” disproportionality. This change not only conflicts with existing state and federal law, as discussed in the previous section, but eliminates disparate impact claims which have been expressly provided for in this section of the Sex Equity WAC. This rolls back protections against sex discrimination that existed before passage of RCW 28A.642 in clear contravention of the intent of the law.
Recommendation: Reinstate the requirement that districts indentify and remove materials that “result” in disproportionality.
II. OSPI Has Failed to Include a “Knew or Should Have Known Standard” for Harassment
The ACLU-WA believes it is critical that the Proposed WAC clearly state that school districts are liable for the harassment of students when they “knew or should have known” of the harassment but failed to take action reasonably calculated to end the misconduct. This has long been the presumptive standard under the state Sex Equity WACs and other harassment and bullying laws and has historically been the standard articulated by OSPI in its training materials and compliance reviews. “Knew or should have known” is the express standard in federal anti-harassment laws in cases brought by the Federal Office for Civil Rights.
It is worth noting that the “knew or should have known” standard is the accepted standard applied under both Washington State and federal law in cases where employees are the victim of workplace harassment. It seems an absurd result for OSPI to provide less protection for children who are victims of harassment at school than is provided for adults in the workplace. While schools cannot be expected to stop all harassment, they should be required to take reasonable measures to protect students from such conduct when they knew or reasonably should have been aware of the discrimination.
Specific Section of Concern:
- Proposed WAC Sec. 392-190-056 through 059 - Sexual Harassment / Harassment, Intimidation and Bullying
In its Proposed WAC, OSPI eliminated in its entirety the section entitled “Harassment and Sexual Harassment Prohibited” contained in the Draft WAC, Sec.392-190-054. This section of the Draft WAC gave important guidance to districts about prohibited conduct and district liability, including clear language imposing a “knew or should have known” standard. By removing the entire Prohibition section, and along with it the “knew or should have known” language, the WACs are irresponsibly silent on what conduct schools are obligated to address and what legal standard OSPI will apply in such circumstances. Students are left without protection and districts may be unaware of the liability they face under RCW 28A.642 and other state and federal laws prohibiting harassment.
In the PSESD October 5, 2010, letter to OSPI, the Superintendents specifically requested this redaction from the Draft WAC, again citing unfounded fears of “frivolous lawsuits.” The ACLU-WA again points out that this standard of care for districts has long been in place under other state and federal laws and there is no evidence that this has resulted in a spate of frivolous lawsuits. Ironically, districts may be more likely to face litigation over their failure to comply with a legal standard not clearly set-out in these regulations but contained elsewhere in the law.
Recommendation: The new Proposed WACs must include a “Prohibition” section clearly advising districts that they are responsible for taking steps to address harassment of which they “knew or should have known.”
III. The Proposed WAC Fails to Address the Unique Discrimination Faced by the Protected Categories
RCW 28A.642 was passed with the express purpose of addressing the issues of discrimination faced by specific categories or classes of students. In particular, the statute cites the Achievement Gap – widely proven to disproportionately affect a number of these protected classes -- as a motivating factor for the new law.
Rather than addressing the unique forms of discrimination faced by these students, the Proposed WAC quite simply cut and pasted these new protected classes into the existing Sex Equity WAC 392-190. The result is that the Proposed WAC deals only with issues of discrimination that happen to coincide with the predominate forms of discrimination that affect women and girls in school (e.g., separate athletic teams, sexual harassment, gender bias in text books, the use of sex role stereotypes in counseling services). It excludes entirely other forms of discrimination unique to the specific protected categories of students covered by RCW28A.642 (e.g., disparate discipline, language access, accommodation of physical or mental disabilities, etc.). In so doing, OSPI fails to address the primary intent of the statute – to eliminate the unique forms of discrimination faced by these groups, in particular those contributing to the Achievement Gap.
This hasty adaptation of the Sex Equity WAC into a one-size-fits-all civil rights Regulation results in a Proposed WAC that lacks the specificity and nuance necessary to carry out the anti-discrimination mandate in RCW 28A.642.
Recommendation: OSPI must create regulations that deal with the unique issues raised by each of the separate protected categories of students. First, the Sex Equity WAC should remain as its own separate set of regulations. Second, separate provisions should be added to the Proposed WAC in areas where an individual class presents a unique set of circumstances (e.g., transgender students and disabled students in athletics, racial bias in counseling or course assignments).
In the Public Comment letters submitted by Safe Schools Coalition and the Northwest Justice Project, specific recommendations are made for language needed to prohibit discrimination unique to specific protected categories of students. The ACLU endorses these specific recommendations.
IV. Conclusion
OSPI was directed by the Legislature to create regulations that “ensure that school districts comply with all relevant civil rights laws” as they apply to certain protected categories of students. As outlined above, the Proposed WAC issued by OSPI provides less protection for these students than is contained in existing state and federal law and thereby fails its statutory obligation. Moreover, OSPI fails its agency mandate to provide clear guidance to school districts so that they can navigate their civil rights obligations. As currently written, the Proposed WAC is silent on a number of central legal issues leaving the districts open to liability and inviting litigation.
The ACLU is sympathetic to the budgetary concerns expressed by some districts in their letter to OSPI. We believe, however, that the answer to their concerns is not less protection for students but rather clear guidance on how to comply with the law. The greatest risk of costly litigation for districts is presented by disputes over vague or absent legal standards in the Proposed WAC. There is no genuine threat of frivolous lawsuits presented by good regulations that clearly articulate the legal standards already contained in existing civil rights laws.
The ACLU appreciates the opportunity to provide public comments and respectfully urges OSPI to reject the Proposed WAC and develop revised regulations to better implement the intent and purpose of RCW 28A.642.
Sincerely,
Linda Mangel, Director
Education Equity Program
ACLU of Washington
