by Shaun Knittel -
SGN Associate Editor
Last year, Washington state enacted House Bill 3026 - a first-of-its-kind law that gives the State Office of Superintendent of Public Instruction (OSPI) authority to combat discrimination in public school on the basis of race, creed, religion, color, national origin, sexual orientation (including gender expression or identity), veteran or military status, or the presence of any sensory, mental, or physically disability.
The bill directed OSPI to create regulations that will assist the agency staff to properly carry out this new authority.
Equal Rights Washington (ERW), the state's largest LGBT advocacy organization, American Civil Liberties Union (ACLU) of Washington, along with the Safe Schools Coalition and Legal Voice say that the new rules that State Superintendent Randy Dorn and his team have put together to enforce the law simply won't do.
'One of the important things that organizations like ERW do is to monitor and, if need be, help with the rule-making process,' Josh Friedes, executive director for ERW, told Seattle Gay News. 'The passing of a law does not represent victory; it is just one important step towards victory. We will continue to keep our advocates aware and engaged on the rule-making process for legislation that we advocate for.'
This past summer, OSPI gathered input from parents, students, community groups, superintendents, school board members, and teachers from all across the state to help it draft the proposed regulations. The draft regulations crafted by the stakeholder process addressed the concerns of each group and promised to fully implement both the spirit and intent of the new law.
Unfortunately, say ERW officials, in response to pressure from school districts and their lawyers, OSPI has issued new Proposed Administrative Rules that weaken the law and, in all actuality, roll back the civil rights for students.
That is when ERW, ACLU of Washington, and a consortium of other public policy and advocacy groups took to the web, issuing action e-mail alerts asking their supporters to contact Gov. Chris Gregoire and Randy Dorn to voice their dissatisfaction.
'These dramatically scaled-back regulations take a one-size-fits-all approach and squeeze the concerns of a wide variety of students and discriminatory concerns into one set of provisions,' ERW officials said in a statement to their supporters. 'The resulting regulations do not address the kinds of discrimination faced by Washington's students and undermines civil rights laws.'
In layman's terms, says Friedes, the law that ERW worked to pass - prohibiting discrimination in public schools - intended to provide a variety of classes of students with the same types of protections already available to women that have existed for 30 years. The new rules, according to ERW officials, do not live up to that - in fact, they roll back protections for certain classes, including women.
How is that possible if HB3026 was signed into law? Friedes says that the answer to that question can be found in the details. 'It is very clear that one of the reasons that this bill was introduced was to address the achievement gap in schools due to discrimination,' he said. 'The new proposed rules have a 'knew" standard,' instead of "knew or should have known" standard which means that a school district could stick its head in the sand and say, 'We didn't know about the discrimination.' One should not be able to avoid claims of discrimination by saying, 'We were unaware.'
Schools have an obligation to be aware of what is happening.'
The ACLU of Washington agrees. 'Racial, ethnic, disability, sexual orientation, and other kinds of discrimination remain a pervasive problem in Washington schools. Discrimination shows up in a variety of forms, among them harassment, disparate discipline including suspensions and expulsions, over-referral to special education, and under-inclusion in advanced-placement classes. Such discrimination contributes to lower achievement and higher dropout rates among student populations,' ACLU of Washington officials said of the achievement gap, due to discrimination, in Washington state public schools.
According to the ACLU, by creating a narrower cause of action and specifically delegating authority to OSPI, the new law was supposed to create a clearer and more effective way to address civil rights violations in schools. In addition, the passage of HB3026 was supposed to provide students and parents alternatives to filing complaints, including technical assistance for OSPI and dispute resolution.
All of that is great, in theory, says Friedes. But the reality of the situation, according to ERW, is that the new rules allow the OSPI and school administrators to simply say, 'We did not know this was going,' allowing them to wash their hands of claims of discrimination that may implicate public schools in litigation.
'There are problems around gender identity and expression,' said Friedes. 'One of the important things about the statute is that it is gender identity and expression inclusive.'
Friedes says it is important to note that gender identity and expression were included within the body of the law, rather than just as an expression or label. 'The proposed OSPI rules do not take that approach to those students,' he said. 'They are not looking at the reality of where the discrimination occurs. The rules need to go deeper and address the types of problems that Transgender students experience, such as discrimination surrounding school athletic programs and so on.'
'The new rules should recognize the modality of discrimination,' states Friedes. 'Simply put, these rules do not do that. We have to make sure that all forms of discrimination are addressed.'
ERW, alongside the coalition of like-minded advocates, asked that their supporters contact OSPI and urge the superintendent to reject the Proposed Administrative Rules. They asked people to insist that Dorn adopt new regulations, similar to the original Draft Regulations that:
o Hold schools accountable for policies and practices that have the effect or result of discriminating against students.
o Prohibit discriminatory discipline practices, which are widely proven to disproportionately impact student of color and contribute to the achievement gap.
o Mandate equal treatment of limited English language students, another significant issue contributing to the achievement gap.
o Establish less stringent complaint procedures that are clear and manageable for students and their families.
o Require schools to respond to all incidents of harassment and bullying about which they knew or should have known.
o Address the unique concerns facing each protected class rather than writing a one-size-fits-all regulation.
Friedes was happy to report that over 450 people participated in ERW's action alert, and an even greater number participated in the ACLU's action alert.
'We hope that the OSPI gets the message that what we want is real protection against discrimination for all Washington students,' he said. 'To propose rules that do not meet the needs for all students and roll back protections for female students is completely unacceptable, and we will continue to watch this very closely.'
State Superintendent Randy Dorn says he and the OSPI have done nothing wrong.
'Superintendent Dorn is committed to protecting the civil rights of all students,' Nate Olson, OSPI communication manager, told Seattle Gay News. 'In that spirit, he supported the passage of House Bill 3026 in 2010. The administrative rules that were drafted for HB3026 follow the intent of the law, which was to extend the protections available under current state sexual equality law to all protected classes listed in chapter 28A.642RCW.'
Olson said Rep. Sharon Tomiko Santos, who currently is the chair of the House Education Committee, sponsored HB3026.
'It is important to remember that the rules be consistent with and not go beyond the intent of the legislature,' added Olson. 'The rules drafted for HB3026 meet that test.'
Friedes does not see it that way. 'A lot of what is happening here is that the schools don't want to be held responsible for discrimination,' he said. 'It is really our job, and the job of parents, to make it clear to the OSPI that the best way to avoid litigation and liability is for schools to make sure that their practices are nondiscriminatory and that their staff is adequately trained and that the learning environment is safe. Attempting to pass rules that would prevent accountability when there is discrimination is counter to the intent of the law which was passed and bad public policy.'
'We hope that when Randy Dorn sees our comments, he will recognize that the proposed rules are inconsistent with the intent of the legislation,' concludes Friedes.
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