Background:

Achievement Gap Oversight and Accountability Committee.

The 2008 Legislature commissioned five studies to analyze the differences in academic achievement and educational outcomes among various subgroups of students. These differences are referred to as the achievement gap. The commissioned studies drew from research, best practices, and personal, professional, and cultural experiences and came up with various recommendations to close the achievement gap.

In 2009, the Legislature created the Achievement Gap Oversight and Accountability Committee (Committee) to synthesize findings and recommendations from the 2008 studies into an implementation plan, and recommend policies and strategies in specified areas to the Office of Superintendent of Public Instruction (OSPI), Professional Educator Standards Board (PESB), and the State Board of Education to close the achievement gap. The Committee is comprised of six legislators, a representative of federally recognized tribes in Washington to be designated by the tribes, and four members appointed by the Governor in consultation with the state ethnic commissions and representing African Americans, Hispanic Americans, Asian Americans, and Pacific Islander Americans. The Governor and the tribes were encouraged to designate members with school experience. Staff support for the Committee is provided by the Center for the Improvement of Student Learning. The Committee is tasked with reporting annually to the Legislature on the strategies to address the achievement gap and improvement of education performance measures for groups of students.

The Committee met eight times during 2009. Draft recommendations to the Legislature from the Committee recommended "that OSPI be given legal authority to take affirmative steps to ensure that school districts comply with state and federal civil rights laws. RCW 28A.640 (the sex equity law) should be updated to include other federal and state protected classes."

State Civil Rights Laws.

Washington Law Against Discrimination (WLAD)

The WLAD recognizes the right to be free from discrimination because of race, creed, color, national origin, sex, honorably discharged veteran or military status, sexual orientation, or 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. The right includes "The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement." Schools are recognized in both statute and regulation as places of public accommodation and, thus, are barred by this law from discriminating on the basis of any of the above listed protected classes.

The WLAD created the Human Rights Commission (HRC) with powers in respect to elimination and prevention of discrimination. Any person claiming to be aggrieved by an alleged unfair practice may file a complaint with the HRC. Currently, upon receipt of an individual complaint that appears to fall within the WLAD, OSPI advises the complainant to contact the HRC. Additionally, whenever the HRC has reason to believe that any person has been engaged or is engaging in an unfair practice, the HRC may itself issue a complaint.

The HRC must investigate complaints and issue written findings of fact as well as a finding as to whether there is or is not reasonable cause for believing that an unfair practice has been or is being committed. Upon a finding of reasonable cause, the HRC staff must endeavor to eliminate the unfair practice by conference, conciliation, and persuasion.

If an agreement is reached, the HRC issues an order setting forth the terms of the agreement. If no agreement is reached, the HRC requests the appointment of an administrative law judge (ALJ) to hear the complaint. An ALJ is empowered to award damages, to require that wrongful conduct cease and desist, and to order affirmative action so as to effectuate the purposes of the law. There is a right of judicial review from the ALJ's final order.

In addition, rather than go through the HRC complaint process, a complainant may instead file a civil suit against the alleged wrongdoer. Available relief includes an injunction against further violations, the recovery of actual damages, and reasonable attorneys' fees.

Sexual Equality

Discrimination on the basis of sex for any student in grades K-12 of the Washington public schools is expressly prohibited by this sexual equity law. There is overlap with the WLAD, in that discrimination on the basis of sex is expressly prohibited under each and both apply to schools.

Under the sexual equity law, the OSPI is charged with developing regulations and guidelines to eliminate sex discrimination as it applies to employment, counseling and guidance services to students, recreational and athletic activities for students, access to course offerings, and in textbooks and instructional materials used by students. The OSPI is also charged with developing criteria for use by school districts in developing sexual harassment policies and districts are required to adopt and implement such a policy.

The OSPI is specifically required to monitor compliance by districts, establish a compliance timetable and regulations for enforcement, and establish guidelines. Pursuant to rules adopted by the OSPI, each district must appoint an employee who is responsible for monitoring and coordinating compliance, including taking and investigating complaints and providing a written report to the district superintendent. The district superintendent must respond in writing to the complainant within 30 days of receipt of the complaint, setting forth whether the district denies the allegations or spelling out the nature of the corrective actions deemed necessary. If the complainant remains aggrieved, he or she may appeal to the school board. Upon receipt of a complaint, the board must schedule a hearing and render a written decision.

There is a right of appeal to OSPI from a school board's decision. Such appeals must be conducted "de novo", which means that the parties present evidence afresh rather than just putting the record from the board before OSPI. The OSPI is also explicitly empowered to enforce and obtain compliance by appropriate order, which may include the termination of all or part of moneys to the offending district, the termination of specified programs in which violations are flagrant, the institution of a mandatory affirmative action program, and the placement of the offending district on probation with appropriate sanctions until compliance is achieved.

Similar to the WLAD, an aggrieved person has the right to bring a civil action in superior court. Both civil damages and appropriate injunctive relief are available. There is no explicit right to recover attorneys' fees as there is under the WLAD.

This 1975 law is specifically supplementary to, and does not supersede, existing law and procedures and future amendments thereto relating to unlawful discrimination based on sex.

Harassment, intimidation, and bullying prevention policies

Each school district is required to adopt a policy that prohibits the harassment, intimidation, or bullying of any student. The OSPI was charged with providing a model harassment, intimidation, and bullying prevention policy as well as disseminating training materials. The Washington State School Directors Association (WSSDA) was charged with developing a model cyber bullying policy.

The OSPI model policy and procedure includes informal and formal complaint processes that can be adopted and implemented at the school district level. The OSPI Safety Center website, which hosts the model policy and procedure, notes that each school board adopts its own discipline policies and that, with certain limited exceptions such as in the case of sex discrimination, the OSPI has not been authorized to enforce local rules adopted by each individual school board.

Federal Civil Rights Laws.

Section 504 of the Rehabilitation Act of 1973 and Individuals with Disabilities Act (IDEA)

Section 504 and IDEA require school districts to provide students with disabilities a free appropriate public education. IDEA requires an individualized education program (IEP) to be developed that outlines what the special education and related services are that will be provided. Section 504 does not require an IEP but school districts must be able to demonstrate what special education or regular education and related aids and services are being provided to a child with a disability.

There are a range of options for addressing individual complaints and conflicts under these laws, including complaints alleging an act of discrimination on the basis of disability:

Collaborative problem solving.
Mediation. Funded by the OSPI, mediation is available statewide at no charge to parents or districts.
Citizen complaint to the OSPI about alleged district violation. The OSPI investigates to determine whether a violation has occurred. If there is not enough information, the OSPI staff will visit the district. The OSPI issues a final decision within 60 days, unless there has been an extension of time. Either the complainant or the district may ask the U.S. Department of Education to review the final decision.
Citizen complaint to U.S. Department of Education, Office for Civil Rights (OCR). A complainant may choose, but is not required, to first utilize the institution's grievance process.
Due process hearing may be requested by a parent of a student with disabilities, the adult student, or a school district. Any such request is directed to the OSPI. Hearings are conducted by administrative law judges appointed by the OSPI. Any party aggrieved by the final decision may appeal to the courts. Parents and/or an adult student may recover attorneys' fees if they prevail.

Title VI of the 1964 Civil Rights Act

This federal law prohibits discrimination on the basis of race, color, or national origin in programs or activities receiving federal funds. Agencies and institutions that receive funds covered by Title VI include the 50 state education agencies and their sub-recipients, as well as many other entities.

The OCR's principal enforcement activity is through investigation and resolution of complaints filed by individuals alleging discrimination. The OCR also conducts a compliance review program of selected recipients in order to identify and remedy discrimination that may not be addressed through complaint investigations. Compliance reviews differ from complaint investigations in that the OCR has discretion in selecting the institutions it will review. Additionally, through a program of technical assistance, the OCR provides guidance and support to recipient institutions to assist them in voluntarily complying with the law.

Title IX of the 1972 Education Amendment

Title IX of the Education Amendments was enacted in 1972. Since then, all institutions receiving federal assistance for educational programs or activities have been obligated to protect against discrimination on the basis of sex. The law is probably best known for enforcing equity in sports, however, its text addresses all educational resources, programs and activities.

Title IX regulations require recipients to designate a Title IX coordinator, adopt and disseminate a nondiscrimination policy, and put grievance procedures in place to address complaints of discrimination on the basis of sex in educational programs and activities. These are similar to the requirements imposed under Washington's sex equity law.

Withholding of Funds As Means of Enforcement.

State law specifically confers authority upon the OSPI to represent the state in the receipt and administration of federal funds. Pursuant thereto, the OSPI has adopted regulations that provide for a citizen complaint process relative to violations of certain federal education laws, including Title IX, by recipients of federal funds. Also included in these OSPI regulations is a provision indicating that, if compliance is not achieved, the OSPI may initiate fund withholding, fund recovery, or any other sanctions deemed appropriate.

The federal government requires that the OSPI provide written assurances of both state and local compliance with several civil rights and access laws, including Title VI, Title IX, Section 504, the Age Discrimination Act of 1975 and, if applicable, the Boy Scouts of America Equal Access Act of 2001, as well as all regulations, guidelines, and standards adopted under these statutes. Included in this assurance form is a provision indicating that noncompliance may result in the termination of funds, the denial of future funds, a court order requiring compliance, or other judicial relief.