SUPERINTENDENT OF

PUBLIC INSTRUCTION

The purpose of this chapter is to establish rules ((and regulations which)) to implement chapters 28A.640 and 28A.642 RCW. ((The referenced enactments)) Chapters 28A.640 and 28A.642 RCW prohibit discrimination on the basis of sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation ((including)), gender expression ((or)), gender identity, the presence of any sensory, mental or physical disability, or the use of a trained dog guide or service animal by a person with a disability in Washington public schools, including public charter schools. Broad federal regulations implementing Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, and Titles VI and VII of the Civil Rights Act of 1964 similarly prohibit discrimination based on sex, race, creed, religion, color, national origin, and disability((,)) in federally assisted education programs or activities. As a result, several substantive areas have been similarly identified and addressed by both state and federal enactments.

In accordance with chapters 28A.640 and 28A.642 RCW and RCW 28A.710.040, it is unlawful for any public school district or public charter school to discriminate on the basis of sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation ((including)), gender expression ((or)), gender identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal with regard to any program or activity conducted by or on behalf of a school district or public charter school including, but not limited to, recreational and athletic activities, extracurricular activities, preschool, adult education, community education, and vocational-technical program activities.

For purposes of administrative enforcement of this chapter under WAC 392-190-060 through 392-190-081, and unless otherwise provided in this chapter or in the guidelines adopted under WAC 392-190-005, the office of superintendent of public instruction adopts the definitions, requirements, and procedural safeguards set forth by the United States Department of Education pursuant to Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, Title IX of the Education Amendments of 1972, and Title VI of the Civil Rights Act of 1964.

COUNSELING AND GUIDANCE SERVICES

(1) ((No school district shall engage in discrimination)) School districts and public charter schools must not discriminate against any person on the basis of sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation ((including)), gender expression ((or)), gender identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal in the counseling or guidance of students ((in grades K-12)).

(2) Each school district and public charter school must ((devise)) develop and use materials, orientation programs, and counseling techniques that ((will)) encourage participation in all school programs and courses of study ((based on factors other than)), including career and vocational technical programs and employment opportunities, regardless of sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation ((including)), gender expression ((or)), gender identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal. School districts and public charter schools must encourage students to explore subjects ((and)), activities, and occupations not traditional for their sex.

(3) Each school district ((which)) and public charter school that uses testing and other materials for counseling students must not use different materials for students based on their sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation ((including)), gender expression ((or)), gender identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal. A school district or public charter school may use different materials for students on the basis of their sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation ((including)), gender expression ((or)), gender identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal if:

(a) ((Such)) The different materials ((cover)) address the same occupations and interest areas; and

(b) The use of ((such)) different materials is ((demonstrated to be)) essential to eliminate bias based on sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation ((including)), gender expression ((or)), gender identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal.

(4) Each school district and public charter school must develop and use internal procedures ((for ensuring)) to ensure that all tests and appraisal instruments related to guidance counseling, career and vocational guidance materials, work/study programs and opportunities, and educational scheduling ((and/or)) or placement do not discriminate on the basis of sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation ((including)), gender expression ((or)), gender identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal.

(5) If a school district or public charter school concludes that the use of ((such)) tests and appraisal instruments, career and vocational guidance materials, ((or)) work/study programs ((results)), or educational scheduling or placement has resulted in a substantially disproportionate number of students who are members of one of the groups identified in WAC 392-190-005 ((to be placed)) in any particular course of study or classification, the school district or charter school must take ((such immediate)) prompt action ((as is necessary to assure)) to ensure that ((such)) the disproportion is not the result of discrimination in the instrument((,)) or material, or its application.

(6) At least annually, each school district and public charter school must review student enrollment data within courses and programs disaggregated by sex, race, limited-English proficiency (i.e., English language learners), and disability, including students protected under Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act. In its review of this data, the school district or public charter school must determine whether a substantially disproportionate number of students within these categories are enrolled in a particular course or program. Where a school district or public charter school finds that a particular ((class)) course or program contains a substantially disproportionate number of students who are members of any one of the ((groups)) categories identified in ((WAC 392-190-005)) this section, the district or charter school must take ((such immediate)) prompt action ((as is necessary to assure)) to ensure that ((such)) the disproportion is not the result of discrimination ((on the basis of sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation including gender expression or identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal)), including in:

(c) Tests and appraisal instruments;

(d) Academic, career, and vocational guidance materials((,));

(e) Work/study programs and opportunities((, and));

(f) Educational scheduling ((and/or)) or placement ((by counselors)); and

(g) Other factors related to course and program enrollment.

TRAINING

Each school district ((must, where appropriate, include sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation including gender expression or identity, the presence of any sensory, mental or physical disability, or the use of a trained dog guide or service animal, bias awareness and elimination training sessions in such in-service training programs as are conducted or provided for certificated and/or classroom personnel)) and public charter school must provide training to all administrators and certificated and classroom personnel, including the school district or public charter school employee designated under WAC 392-190-060, (1) regarding their responsibilities under this chapter, and (2) to raise awareness of and eliminate bias based on sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation, gender expression, gender identity, the presence of any sensory, mental or physical disability, or the use of a trained dog guide or service animal.

RECREATIONAL AND ATHLETIC ACTIVITIES

((No person shall)) (1) Except as provided under this section, school districts and public charter schools must not, on the basis of sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation ((including)), gender expression ((or)), gender identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal, ((be excluded)) exclude any person from participation in, ((be denied)) deny any person the benefits of, or otherwise ((be discriminated)) discriminate against any person in any interscholastic, club, or intramural athletics or recreational activity offered or sponsored by ((a)) the school district((, and no school district shall)) or charter school. School districts and public charter schools must not provide any ((such)) athletic((s)) or recreational activity separately on such basis, except as provided in this section.

(5) Where individual students with disabilities cannot participate in existing activities even with reasonable modifications and necessary accommodations, aids, or services, a school district or public charter school may offer opportunities for students with disabilities to participate in separate or different recreational or athletic activities.

Each school district and public charter school must evaluate ((its)) the recreational and athletic program at each school at least once each year to ensure that equal opportunities are available to members of both sexes with respect to interscholastic, club, or intramural athletics ((which)) that are operated, sponsored, or otherwise provided by the school district or charter school.

In determining whether equal opportunities are available to members of both sexes ((with respect to interscholastic, club or intramural athletics)), each school district and public charter school conducting an evaluation required by this section((, and the office of superintendent of public instruction upon receipt of a complaint pursuant to WAC 392-190-075,)) must consider ((several factors, including but not limited to the following where provided by a school district:

Unequal aggregate expenditures within a school district for members of each sex or unequal expenditures for separate male and female teams will not alone constitute noncompliance with this chapter, but the failure to provide the necessary funds for recreational and athletic activities for members of one sex may be considered in assessing the equality of opportunity for members of each sex)) each of the factors listed under WAC 392-190-025(3).

(1) The superintendent of public instruction must develop a survey instrument to assist each school district ((in the determination of)) and public charter school in determining male and female student interest ((for male/female)) in participation in specific sports. With the office of superintendent of public instruction's approval, school districts and public charter schools may modify or amend the content of the survey instrument if necessary to clarify and assist in evaluating student interest.

(2) ((A survey instrument must be administered by each school district at all grade levels where interscholastic, intramural and other sports and recreational activities are conducted.)) Each school district and public charter school must administer the survey developed under this section at least once every three years at each school and grade level where interscholastic, intramural, and other athletics are conducted. The school district or public charter school must consider the results of the survey ((must be considered in the program)) when planning and ((development in the area of)) developing recreational and athletic activities offered within the school district or charter school and when determining whether equal opportunities are available to members of both sexes under WAC 392-190-025 and 392-190-030.

A school district ((which)) or public charter school that provides athletic facilities for members of one sex, including showers, toilets, and training room facilities for athletic purposes, must provide comparable facilities for members of the opposite sex. ((Such facilities may be provided as either separate facilities or must be scheduled and used separately by members of each sex.)) A school district or public charter school may provide separate facilities for male and female students or schedule the facilities equitably for separate use. This section ((shall not be interpreted to)) does not require the construction of additional facilities.

ACCESS TO COURSE OFFERINGS

(1) Each school district and public charter school must ensure that no student is denied or limited in their ability to participate in or benefit from its course offerings on the basis of sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation, gender expression, gender identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal.

(2) Course offerings include all education programs and activities offered or sponsored by a school district or public charter school, whether those programs or activities take place in a school district's or charter school's facilities or elsewhere.

At least annually, each school district and public charter school must review data on corrective and disciplinary actions taken against students within each school disaggregated by sex, race, limited-English proficiency (i.e., English language learners), and disability, including students protected under Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act. This review must include, but is not limited to, short-term suspensions, long-term suspensions, expulsions, and emergency expulsions. In reviewing this data, each school district or public charter school must determine whether it has disciplined or applied corrective action to a substantially disproportionate number of students within any of the categories identified in this section. If a school district or public charter school finds that it has disciplined or applied corrective action to a substantially disproportionate number of students who are members of one of the categories identified in this section, the school district or charter school must take prompt action to ensure that the disproportion is not the result of discrimination.

((No school district shall)) Except as provided under this section, school districts and public charter schools must not provide any course or otherwise carry out any of its ((education)) programs or activities separately on the basis of sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation ((including)), gender expression ((or)), gender identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal or require or refuse participation therein by any of its students on such basis. This section ((shall)) does not ((be construed to)) prohibit:

(1) The grouping of students in physical education classes and activities by demonstrated ability as assessed by objective standards of individual performance developed and applied without regard to sex. Where use of a single standard of measuring skill or progress in a physical education class has an adverse effect on members of one sex, the school district or public charter school must ((immediately)) promptly implement appropriate standards ((which)) that do not have such effect;

(2) The separation of students by sex within physical education classes or activities offered for students ((in grades 7 through 12)) if:

(a) It can ((clearly)) be shown under the factual circumstances involved in the particular case((,)) that ((the maintenance of)) maintaining a separate physical education class or activity for boys and girls ((truly constitutes)) is the best method of providing both sexes((, as a whole,)) with an equal opportunity to participate in ((such)) the class or activity; and

(b) ((At the same time, a test of substantial equality between the two classes or activities can be found to have been met;)) The separated classes or activities are substantially equal;

(3) ((Separate sessions for boys and girls with respect to those)) The separation of students by sex for classes or portions of classes ((which)) that deal ((exclusively)) primarily with human sexuality;

(4) Classes ((and/or)) and activities ((which a school district may establish or maintain)) with requirements based on vocal range or quality, which may result in a chorus or choruses of one or predominantly one sex; and

(5) Classes, courses, or placement of students based on the student's individual language skill development ((and/or)) or based on the student's needs as identified in the student's individualized education program under the Individuals with Disabilities Education Act.

TEXTBOOKS AND INSTRUCTIONAL MATERIALS

(1) ((It is the intent of this section to eliminate bias pertaining to)) School districts and public charter schools must not discriminate on the basis of sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation ((including)), gender expression ((or)), gender identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal ((in connection with any form of instruction provided by a school district)) through the use of any textbooks or instructional materials, including reference materials and audio-visual materials.

(2) ((The)) Each school district and public charter school must adopt an instructional materials policy ((of each school district required by RCW 28A.320.230 must incorporate therein, as part of the selection criteria, a specific statement requiring the elimination of)) that includes selection criteria designed to eliminate bias ((pertaining to)) based on sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation ((including)), gender expression ((or)), gender identity, the presence of any sensory, mental, or physical disability, ((or)) and the use of a trained dog guide or service animal in all textbooks and instructional materials including reference materials and audio-visual materials. Each school district and public charter school must use the screening criteria adopted under this section to identify and eliminate bias in all textbooks and instructional materials, including reference materials and audio-visual materials.

(3) ((The instructional materials committee of each school district must establish and maintain appropriate screening criteria designed to identify and eliminate bias pertaining to sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation including gender expression or identity, the presence of any sensory, mental, or physical disability, or the use of trained dog guide or service animal in all textbooks and instructional materials including reference materials and audio-visual materials. Such selection criteria must be consistent with the selection criteria identified in chapter 392-204 WAC, as now or hereafter amended. One of the aids to identification of bias in instructional materials is the Washington Models for the Evaluation of Bias Content in Instructional Materials published by the superintendent of public instruction.

(4) In recognition of the fact that current instructional materials which)) If instructional materials that contain bias ((may not)) cannot be replaced immediately, each school district ((should)) and public charter school must acquire supplemental instructional materials or aids to be used concurrent with existing materials ((for the purpose of countering)) to counter the bias content ((thereof)).

(((5))) (4) Nothing in this section is intended to prohibit the use or assignment of supplemental instructional materials, such as classic and contemporary literary works, periodicals, and technical journals ((which, although)), that are educationally necessary or advisable even though they contain bias((, are educationally necessary or advisable)).

HARASSMENT

(1) For purposes of administrative enforcement of this chapter under WAC 392-190-060 through 392-190-081, a school district or public charter school violates a student's rights regarding discriminatory harassment, including sexual harassment as defined under WAC 392-190-056, when the following conditions are met:

(a) The alleged conduct is based on a student's sex, race, creed, religion, color, national origin, sexual orientation, gender expression, gender identity, honorably discharged veteran or military status, presence of any sensory, mental, or physical disability, or use of a trained dog guide or service animal;

(b) The alleged conduct is sufficiently severe, persistent, or pervasive that it limits or denies a student's ability to participate in or benefit from the school district's or public charter school's course offerings, including any educational program or activity (i.e., creates a hostile environment); and

(c) The school district or public charter school, upon notice, fails to take prompt and appropriate action to investigate or fails to take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.

(2) For purposes of administrative enforcement of this chapter under WAC 392-190-060 through 392-190-081, the office of superintendent of public instruction deems a school district or public charter school to have notice of discriminatory harassment if a reasonable employee knew, or in the exercise of reasonable care should have known, about the harassment.

(3) Nothing in this chapter is intended to diminish or otherwise modify an individual's right to bring an action under state or federal law alleging that the individual has been harmed by conduct or communication related to the individual's sex, race, creed, color, national origin, honorably discharged veteran or military status, sexual orientation, gender expression, gender identity, presence of any sensory, mental, or physical disability, or use of a trained dog guide or service animal that creates a hostile or abusive educational or workplace environment.

(1) As used in this chapter, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact, or other verbal or physical conduct or communication of a sexual nature between two or more individuals if:

(a) Submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining an education or employment;

(b) Submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual's education or employment; or

(c) That conduct or communication has the purpose or effect of substantially interfering with an individual's educational or work performance, or of creating an intimidating, hostile, or offensive educational or work environment.

(2) For the purpose of this definition, sexual harassment may include conduct or communication that involves adult to student, student to adult, student to student, adult to adult, male to female, female to male, male to male, and female to female.

In order to eliminate sexual harassment in connection with any responsibility, function, or activity within the jurisdiction of a school district or public charter school, a sexual harassment policy must be adopted and implemented by each district ((no later than June 30, 1995)) and charter school. This policy must apply to all school district and public charter school employees, volunteers, parents, and students((,)) including, but not limited to, conduct between students. This policy must incorporate the following criteria:

(1) Definitions consistent with ((the categories in RCW 28A.640.020 (2)(f))) WAC 392-190-056;

(2) ((District and staff responsibilities;

(4) Grievance)) Responsibilities of employees and volunteers;

(3) Investigative and complaint procedures consistent with WAC 392-190-065 through 392-190-075 ((of this chapter));

(6))) (4) Remedies available to ((victims)) targets of sexual harassment;

(((7))) (5) Disciplinary actions against violators, which must conform with collective bargaining agreements and state and federal laws;

(((8))) (6) Reprisal, retaliation, and false accusations prohibition;

(((9))) (7) Dissemination and implementation of the policy; and

(((10))) (8) Internal review of the policy.

(2))) (1) The school district's or public charter school's sexual harassment policy must be easily understood and conspicuously posted throughout each school building((,)) and provided to each employee((, volunteer and student.

(2) Information about the school district's or public charter school's sexual harassment policy and complaint procedure must appear in any publication of ((the)) a school ((or)), school district ((setting)), or public charter school that sets forth the rules, regulations, procedures, and standards of conduct for the school ((or)), school district, or charter school. School districts and public charter schools that do not provide such a publication must provide written information about the district's or charter school's sexual harassment policy and complaint procedure to each student, parent or guardian, employee, and volunteer.

(((5))) (3) Each school district and public charter school must develop a process for discussing the district's or charter school's sexual harassment policy. The process must ensure the discussion addresses the definition of sexual harassment and issues covered in the sexual harassment policy.

(1) ((By August 1, 2011,)) Each school district must adopt ((or amend if necessary)) a harassment, intimidation, and bullying prevention policy and procedure as provided for in RCW 28A.300.285.

(2) ((When monitoring school districts' compliance with this chapter pursuant to WAC 392-190-076, the office of superintendent of public instruction will review such policies and procedures to ensure that they provide that students will not be harassed, intimidated, or bullied because of their sex, race, creed, religion, color, national origin, sexual orientation including gender expression or identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal.)) If the allegations in a written report of harassment, intimidation, or bullying pursued under the school district's procedure adopted under RCW 28A.300.285 indicate a potential violation of this chapter or the guidelines adopted under WAC 392-190-005, the school district's harassment, intimidation, and bullying compliance officer, designated under RCW 28A.300.285, must promptly notify the district employee designated under WAC 392-190-060. Or, if during the course of an investigation of harassment, intimidation, or bullying, the district becomes aware of a potential violation of this chapter or the guidelines adopted under WAC 392-190-005, the school district staff member investigating the report must promptly notify the district employee designated under WAC 392-190-060. Upon receipt of this information, the designated employee must notify the complainant that their complaint will also proceed under the discrimination complaint procedure in WAC 392-190-065 through 392-190-075, in addition to the procedures adopted under RCW 28A.300.285. School districts must provide this notice in a language that the complainant can understand, which may require language assistance for complainants with limited-English proficiency, in accordance with Title VI of the Civil Rights Act of 1964. In these cases, the investigation and response timeline set forth in WAC 392-190-065 begins when the school district knows or should have known that a written report of harassment, intimidation, or bullying involves allegations that the school district has violated this chapter or the guidelines adopted under WAC 392-190-005.

(3) This section is not intended to limit the scope of RCW 28A.300.285 or the use of a school district's procedures adopted under RCW 28A.300.285.

EMPLOYMENT

(1) ((No school district shall)) School districts and public charter schools must not, on the basis of sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation ((including)), gender expression ((or)), gender identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal ((by a person with a disability)), exclude any person from participation in, deny any person the benefit of, or subject any person to discrimination in employment, recruitment, promotion ((or)), advancement, consideration, or selection, whether full time or part time, in connection with employment by a school district or public charter school.

(2) Each school district and public charter school must make all employment decisions in a nondiscriminatory manner and ((shall)) must not limit, segregate, or classify any person in any way ((which)) that could adversely affect a person's employment opportunities or status on the basis of sex, race, creed, color, national origin, honorably discharged veteran or military status, sexual orientation ((including)), gender expression ((or)), gender identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal ((by a person with a disability)).

(3) ((No school district shall)) School districts and public charter schools must not enter into any contractual or other relationship that directly or indirectly has the effect of subjecting any person to discrimination in connection with employment on the basis of sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation ((including)), gender expression ((or)), gender identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal ((by a person with a disability)) including, but not limited to, relationships with employment and referral agencies, ((with)) labor unions, and ((with)) organizations providing or administrating fringe benefits to employees.

(4) ((No school district shall)) School districts and public charter schools must not grant preferential treatment to applications for employment ((on the basis of)) based on an applicant's enrollment at any education institution or entity ((which)) that only or predominately admits ((as)) students ((only or predominately individuals or groups)) on the basis of sex, race, color, or national origin((,)) if the giving of such preferences has the effect of discriminating on the basis of sex, race, color, or national origin.

(1) ((Each school district must develop and/or incorporate within any existing affirmative action employment program appropriate provisions which are consistent with the intent of chapters 28A.640 and 28A.642 RCW.)) Each school ((district's)) district and public charter school must develop an affirmative action employment plan or program ((must include at least the following provisions respecting discrimination on the basis of sex)) that includes appropriate provisions designed to eliminate discrimination on the basis of sex, race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation, gender expression, gender identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability.

(2) With respect to sex discrimination, a school district's or public charter school's affirmative action employment plan or program must include:

(a) The requirement to:

(i) Maintain credential requirements for all personnel without regard to sex;

(((b))) (ii) Make no differentiation in pay scale on the basis of sex;

(((c))) (iii) Make no differentiation in the assignment of school duties on the basis of sex except where such assignment would involve duty areas or situations such as, but not limited to, a shower room((s)), where persons might be disrobed;

(((d))) (iv) Provide the same opportunities for advancement for males and females;

(((e))) (v) Make no difference in conditions of employment on the basis of sex including, but not limited to, hiring practices, leaves of absence, hours of employment, and assignment of((,)) or ((pay)) payment for((,)) instructional and noninstructional duties; and

(((f))) (b) Such other provisions as may be required by the superintendent of public instruction ((designed)) to facilitate ((the effective achievement of all)) reasonable affirmative action goals and objectives and to eliminate discrimination in public school employment ((respecting the elimination of discrimination on the basis of sex.

(4) The board of directors of each school district must adopt and implement an affirmative action employment program required by this section as expeditiously as possible but in no event later than September 30, 2011)).

COMPLIANCE AND COMPLAINT PROCEDURES

(1) The superintendent of each school district or the public charter school governing board must ((immediately)) designate at least one employee who ((shall be)) is responsible ((directly to the superintendent)) for monitoring and coordinating the district's or charter school's compliance with this chapter and the guidelines adopted under WAC 392-190-005. The employee designated ((pursuant to)) under this section ((shall also be charged with the responsibility to investigate any complaint(s))) is also responsible for ensuring that all complaints communicated to the school district ((pursuant to)) or public charter school under WAC 392-190-065 are promptly investigated and resolved.

(2) Each school district and public charter school must, once each year or more often as deemed necessary, publish notice in a manner ((which)) that is reasonably calculated to inform all students, students' parents and guardians, and employees of ((the name, office address and telephone number of the employee or employees appointed pursuant to this section and)) the complaint ((and appeal)) procedure set forth in WAC 392-190-065, 392-190-070 and 392-190-075 ((as now or hereafter amended)). School districts and public charter schools must provide this notice in a language that each parent and guardian can understand, which may require language assistance for parents and guardians with limited-English proficiency, in accordance with Title VI of the Civil Rights Act of 1964.

(4) School districts and public charter schools must not adopt any policy, procedure, or practice that would limit a person's right to file a complaint under this chapter or have the effect of discouraging any person from utilizing the complaint procedure in WAC 392-190-065 through 392-190-075. School districts and public charter schools must not intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right secured by this chapter or the guidelines adopted under WAC 392-190-005 or because the individual has made a complaint or participated in an investigation under this chapter.

(1) Anyone may file a complaint with a school district or public charter school alleging that the district or charter school has violated this chapter or the guidelines adopted under WAC 392-190-005. The complaint must be((:

(c) Set forth)) written and describe the specific acts, conditions, or circumstances alleged to violate this chapter or the ((specific acts, conditions, or circumstances that would be prohibited by this chapter)) guidelines adopted under WAC 392-190-005.

(4) Upon receipt of the complaint, the employee or employees designated ((pursuant to)) under WAC 392-190-060 must ((investigate the allegation and effect a prompt resolution of the complaint)):

(b) Ensure that the school district or public charter school conducts a prompt and thorough investigation into the allegations in the complaint.

(((2))) (5) Following the completion of the investigation, the designated employee or employees must provide the district superintendent, charter school administrator, or designee with a full written report of the complaint and the results of the investigation. The district superintendent, charter school administrator, or designee must respond in writing to the complaining party ((as expeditiously as possible but in no event later than)) within thirty calendar days ((following receipt of such complaint by the school district)) after the school district or public charter school received the complaint, unless otherwise agreed to by the complainant or if exceptional circumstances related to the complaint require an extension of the time limit. If an extension is needed, the school district or public charter school must notify the complainant in writing of the reasons for the extension and the anticipated response date; this notice must be provided in a language the complainant can understand, which may require language assistance for complainants with limited-English proficiency, in accordance with Title VI of the Civil Rights Act of 1964. At the time the school district or public charter school responds to the complainant, the school district or charter school must send a copy of the response to the office of superintendent of public instruction.

(((3))) (6) The response of the school district superintendent, charter school administrator, or designee required by this section must include:

(c) Notice of the complainant's right to appeal ((to the school board, as set forth in)) under WAC 392-190-070, ((and must identify)) including where and to whom the appeal must be filed((. The superintendent's response must also clearly state either:

(d) If the school district or public charter school has failed to comply with this chapter or the guidelines adopted under WAC 392-190-005, the corrective measures deemed necessary to ((eliminate any such act, condition, or circumstance within the school district)) correct the noncompliance. Any ((such)) corrective measures ((deemed necessary)) must be instituted as expeditiously as possible but ((in)) no ((event)) later than thirty calendar days ((following)) after the school ((district superintendent's mailing of a)) district's or public charter school's written response to the complainant ((required by this section)), unless otherwise agreed to by the complainant.

(5))) (7) The school district's or public charter school's response to the complainant must be in a language the complainant can understand, which may require language assistance for complainants with limited-English proficiency, in accordance with Title VI of the Civil Rights Act of 1964.

(8) The complainant and the school district ((and complainant)) or public charter school may agree to resolve the complaint in lieu of an investigation. If the complaint is resolved to the satisfaction of the parties involved, no further action is necessary under this section.

(3) An appeal to the board of directors pursuant to this section shall require the board of directors to schedule a hearing to commence on or before the twentieth calendar day following the filing of the written notice of appeal, unless otherwise agreed to by the complainant and the school district superintendent, or for good cause. The complainant and the school district superintendent must be allowed to present such witnesses and testimony as the board deems relevant and material. Unless otherwise agreed to by the complainant and the school district superintendent, or for good cause, the board of directors must render a written decision on or before the tenth calendar day following the termination of the hearing, and must provide a copy to all parties involved. The written decision must include notice of the complainant's right to appeal to the superintendent of public instruction as set forth in WAC 392-190-075, and must identify where and to whom the appeal must be filed.)) (1) A school district's or public charter school's complaint procedure required under WAC 392-190-065 must provide an option to appeal the decision of the school district superintendent, charter school administrator, or designee to a party or board that was not involved in the initial complaint or investigation.

(3) Appeals to the superintendent shall be conducted de novo. The complainant/appellant must have the responsibility for prosecuting the appeal and the school district/respondent shall have the duty of defending the school district's decision or the portion of the decision appealed.)) (1) If a complainant disagrees with the school district's or public charter school's appeal decision under WAC 392-190-070, or if the school district or public charter school fails to comply with the procedures in WAC 392-190-065 or 392-190-070, the complainant may file a complaint with the office of superintendent of public instruction. A complaint must be received by the office of superintendent of public instruction within twenty calendar days after the complainant received the school district's or public charter school's written appeal decision, unless the office of superintendent of public instruction grants an extension for good cause. Complaints may be submitted by mail, fax, electronic mail, or hand delivery. A complaint must be in writing and include:

(1) A school district or public charter school may offer mediation, at the district's or charter school's expense, to resolve complaints at any time during the complaint procedure set forth in WAC 392-190-065 through 392-190-075. The purpose of mediation is to offer both the complainant and the school district or public charter school an opportunity to resolve disputes and reach a mutually acceptable agreement concerning the complaint through the use of an impartial mediator.

(2) Mediation must be voluntary and requires the agreement of both parties. It may be terminated by either party at any time during the mediation process.

(3) Mediation cannot be used to deny or delay a complainant's right to utilize the complaint procedure set forth in WAC 392-190-065 through 392-190-075 or to deny any other rights afforded under this chapter or under chapters 28A.640 or 28A.642 RCW.

(4) Mediation must be conducted by qualified and impartial mediators. An individual who serves as a mediator:

(a) May not be an employee of any school district, public charter school, or other public or private agency that is providing education or related services to a student who is the subject of the mediation process; and

(b) Must not have a personal or professional conflict of interest.

(5) A person who otherwise qualifies as a mediator is not an employee of a school district, public charter school, or other public agency solely because he or she is paid by the school district, charter school, or agency to serve as a mediator.

(6) If the parties resolve a dispute through the mediation process, the parties may execute a legally binding agreement that:

(a) Sets forth that resolution;

(b) States that all discussions that occurred during the mediation process will remain confidential and may not be used as evidence in any subsequent complaint, due process hearing, or civil proceeding; and

(c) Is signed by both the complainant and a representative of the school district or public charter school who has the authority to bind the district or charter school.

(7) The complainant and the school district or public charter school may agree to extend the timelines set forth in WAC 392-190-065 through 392-190-075 to pursue mediation.

(8) The office of superintendent of public instruction does not sign, approve, or endorse any mediation agreements reached by the parties. However, the office of superintendent of public instruction may assist both parties in understanding pertinent legal standards and possible remedies.

MONITORING

(1) The office of superintendent of public instruction must monitor school districts' and public charter schools' compliance with this chapter, chapters 28A.640 and 28A.642 RCW, and the ((rules and)) guidelines adopted ((in furtherance thereof)) under WAC 392-190-005.

(2) Procedures for monitoring school districts and public charter schools may include, but are not limited to:

(a) Investigation of complaints under WAC 392-190-075;

(b) Collection, review, and analysis of data and other information;

(((b) Conduct)) (c) Performance of on-site visits and interviews; and

(((c))) (d) Review of any compliance issues, including reviews by those agencies referenced in WAC 392-190-077.

(1) Following its monitoring of a school district ((pursuant to)) or public charter school under WAC 392-190-076, the office of superintendent of public instruction must notify the district((s)) or charter school of any findings of ((identified)) noncompliance with this chapter, chapters 28A.640 and 28A.642 RCW ((and)), or the ((rules and)) guidelines adopted ((in furtherance thereof)) under WAC 392-190-005. This notification of noncompliance must initiate a process of correction, verification, and validation to ensure that the noncompliance is corrected within a compliance period identified by the office of superintendent of public instruction. The compliance period must be no longer than one year from the identification of noncompliance. If noncompliance is systemic in nature, a systemic corrective action plan ((is)) will be required. The school district or public charter school will have thirty calendar days after its receipt of the notice of noncompliance to:

(a) Accept the findings contained in the notification of noncompliance; ((or))

(b) Provide the office of superintendent of public instruction with supplemental information that may serve as a basis for amending the notification of noncompliance; or

(c) Provide any revisions to the proposed corrective action plan.

(2) If the school district or public charter school provides the office of superintendent of public instruction with supplemental information, the office of superintendent of public instruction must respond to the school district or charter school with a final monitoring report within thirty calendar days after receipt of the supplemental information.

(3) If the school district or public charter school does not timely address the identified noncompliance with corrective actions, the superintendent of public instruction may, at his or her discretion, undertake actions to ensure the school ((district)) district's or charter school's compliance. Such actions may include, but are not limited to, referring the school district or public charter school to appropriate state or federal agencies empowered to order compliance with the law, or the initiation of ((an office of superintendent of public instruction complaint against the school district)) sanctions or corrective measures under WAC 392-190-080.

(1) A complainant, school district, or public charter school that desires to appeal the written decision of the office of superintendent of public instruction issued ((pursuant to WAC 392-190-078)) under WAC 392-190-075 or 392-190-077 may file an appeal with the superintendent of public instruction in accordance with the adjudicative proceedings in RCW 34.05.413 through 34.05.494, and the administrative practices and procedures of the superintendent of public instruction in chapter 392-101 WAC. To initiate review under this section, a complainant, school district, or public charter school must file a written notice with the superintendent of public instruction within thirty calendar days following the date of receipt of the office of superintendent of public instruction's written decision under WAC 392-190-075 or 392-190-077.

(2) For purposes of hearing an appeal under this section, the superintendent of public instruction must conduct a formal administrative hearing in conformance with the Administrative Procedure Act, chapter 34.05 RCW. The superintendent of public instruction, in carrying out this duty, may contract with the office of administrative hearings pursuant to RCW 28A.300.120 to hear a particular appeal.

In the event a school district or public charter school is found to be in violation of the requirements of this chapter, the superintendent of public instruction may, by appropriate order pursuant to chapter 34.05 RCW, impose an appropriate sanction or institute appropriate corrective measures including, but not limited to:

(1) The termination of all or part of state apportionment or categorical moneys to the offending school district or public charter school;

(2) The termination of specified programs wherein ((such)) the violation or violations are found to be flagrant in nature;

(3) The institution of a mandatory affirmative action program within the offending school district or public charter school; and

(4) The placement of the offending school district or public charter school on probation with appropriate sanctions until such time as compliance is achieved or is assured, whichever is deemed appropriate in the particular case by the superintendent of public instruction.

(1) Except as provided in subsections (2) and (3) of this section, nothing in this chapter ((shall be construed as denying)) is intended to deny an aggrieved person from simultaneously pursuing other available administrative, civil, or criminal remedies for an alleged violation of the law.

(2) A complaint made ((pursuant to)) under WAC 392-190-065 ((or)) through 392-190-075 ((will)) may be held in abeyance ((during the pendency)) pending the outcome of any proceeding in state or federal court or before a local, state or federal agency in which the same claim or claims are at issue, whether under RCW 28A.640.040, 28A.642.040, or any other law.

(3) Where the complainant elects to pursue simultaneous claims in more than one forum, the factual and legal determinations issued by the first tribunal to rule on the claims may, in some circumstances, be binding on all or portions of the claims pending before other tribunals.