Hawaii 2022 Regular Session

Hawaii House Bill HB1101 Compare Versions

Only one version of the bill is available at this time.

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1	1	HOUSE OF REPRESENTATIVES H.B. NO. 1101 THIRTY-FIRST LEGISLATURE, 2021 STATE OF HAWAII A BILL FOR AN ACT relating to the hawaii civil rights commission. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
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3	3	HOUSE OF REPRESENTATIVES H.B. NO. 1101
4	4	THIRTY-FIRST LEGISLATURE, 2021
5	5	STATE OF HAWAII
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7	7	HOUSE OF REPRESENTATIVES
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9	9	H.B. NO.
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11	11	1101
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13	13	THIRTY-FIRST LEGISLATURE, 2021
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17	17	STATE OF HAWAII
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31	31	A BILL FOR AN ACT
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37	37	relating to the hawaii civil rights commission.
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43	43	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
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47	47	SECTION 1. The legislature finds that the Hawaii Supreme Court's decision in Hawaii Tech. Acad. V. L.E., 141 Haw. 147, 407 P.3d 103 (2017), held that the legislature did not intend the Hawaii civil rights commission to have jurisdiction over disability discrimination claims under section 368-1.5, Hawaii Revised Statutes, relating to programs and activities receiving state financial assistance, if protections under section 504 of the Rehabilitation Act, as amended (section 504), are applicable. However, it was always the legislature's intent to give the Hawaii civil rights commission jurisdiction over these claims to provide a state remedy, even when federal protections under section 504 are also available. The legislature further finds that K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 78 F. Supp. 3d 1289 (C.D. Cal. 2015), determined that the Individuals with Disabilities Act, section 504, and Americans with Disabilities Act, are not one and the same when it comes to the requirements to provide eligible students with disabilities equal opportunity and equally effective communication under title II of the Americans with Disabilities Act. Furthermore, complying with the Individuals with Disabilities Act does not necessarily mean compliance with the Americans with Disabilities Act and section 504. Students with disabilities who are eligible under the Individuals with Disabilities Act may have a complaint on the basis of disability, as does a student not eligible under the Individuals with Disabilities Act. The legislature also finds that some Individuals with Disabilities Act claims are from parents who disagree with the identification, evaluation, or placement of a child and that section 504 has its own standard of free appropriate public education. However, section 368-1.5, Hawaii Revised Statutes, applies to "[a]ny individual claiming to be aggrieved by an alleged unlawful discriminatory practice may file with the commission's executive director a complaint in writing", which is clearly not an Individuals with Disabilities Act complaint. Therefore, a claim of identification, evaluation, or placement under the Individuals with Disabilities Act is not the same as an alleged unlawful discriminatory practice. Additionally, exhaustion of federal and state administrative remedies are not required for complaints on the basis of disability, and are not timely, are rarely accessible, and are costly to students and families. The purpose of this Act is to clarify that the Hawaii civil rights commission has jurisdiction over disability discrimination claims, including claims from students with disabilities, even when other federal remedies are available. SECTION 2. Section 368-1.5, Hawaii Revised Statutes, is amended to read as follows: "§368-1.5 Programs and activities receiving state financial assistance. (a) No otherwise qualified individual in the State shall, [solely] by reason of [his or her] the individual's disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination by state agencies, or under any program or activity receiving state financial assistance. (b) As used in this section[, the term "disability"]: "Disability" means the state of having a physical or mental impairment [which] that substantially limits one or more major life activities, having a record of such an impairment, or being regarded as having such an impairment. [(c) As used in this section, "state] "Program or activity receiving state financial assistance" includes a program or activity that receives federal and state financial assistance. "State financial assistance" means grants, purchase-of-service contracts, or any other arrangement by which the State provides or otherwise makes available assistance in the form of funds to an entity for the purpose of rendering services on behalf of the State. It does not include procurement contracts, state insurance or guaranty contracts, licenses, tax credits, or loan guarantees to private businesses of general concern that do not render services on behalf of the State." SECTION 3. Section 368D-1, Hawaii Revised Statutes, is amended to read as follows: "§368D-1 State educational programs and activities; discrimination prohibited. (a) No person in the State, on the basis of sex, including gender identity or expression as defined in section 489-2, or sexual orientation as defined in section 489-2, and no student in the State, on the basis of disability, shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under: (1) Any state educational program or activity; or (2) Any educational program or activity that receives state financial assistance. (b) Nothing in this chapter shall be construed to prohibit the membership practices of social fraternities or sororities or voluntary youth service organizations, as set forth in title 20 United States Code Section 1681(a)(6), as in effect on January 1, 2019. (c) Nothing in this chapter shall be construed to prohibit any educational institution receiving state funds from maintaining separate living facilities for different sexes, as set forth in title 20, United States Code Section 1686, as in effect on January 1, 2019. (d) Nothing in this chapter shall be construed to prohibit an educational institution from administering or assisting in administering a scholarship, fellowship, or other form of financial assistance pursuant to a domestic or foreign will, trust, bequest, or similar instrument that requires awards be made to members of a particular sex specified therein; provided that the overall effect of sex-restricted financial assistance shall not discriminate on the basis of sex, as set forth in title 34, Code of Federal Regulations section 106.37(b)(1), as in effect on January 1, 2019. (e) Nothing in this chapter shall preclude a student participating in any educational program or activity who is aggrieved by a violation of this chapter from filing a civil action in a court of competent jurisdiction. (f) A person, or an organization or association on behalf of a person alleging a violation of this chapter may file a complaint pursuant to this chapter. (g) A student with a disability, or individual on behalf of a student with a disability, alleging a violation of section 368-1.5 may file a complaint pursuant to this chapter. [(g)] (h) As used in this section: "Educational program or activity that receives state financial assistance" means any educational program or activity that receives state financial assistance, in any amount, for any purpose. The term does not exclude an educational program or activity that also receives federal funds. "State educational program or activity" means an educational program or activity of the University of Hawaii, the department of education, or public charter schools." SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 5. This Act shall take effect upon its approval. INTRODUCED BY: _____________________________
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49	49	SECTION 1. The legislature finds that the Hawaii Supreme Court's decision in Hawaii Tech. Acad. V. L.E., 141 Haw. 147, 407 P.3d 103 (2017), held that the legislature did not intend the Hawaii civil rights commission to have jurisdiction over disability discrimination claims under section 368-1.5, Hawaii Revised Statutes, relating to programs and activities receiving state financial assistance, if protections under section 504 of the Rehabilitation Act, as amended (section 504), are applicable. However, it was always the legislature's intent to give the Hawaii civil rights commission jurisdiction over these claims to provide a state remedy, even when federal protections under section 504 are also available.
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51	51	The legislature further finds that K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 78 F. Supp. 3d 1289 (C.D. Cal. 2015), determined that the Individuals with Disabilities Act, section 504, and Americans with Disabilities Act, are not one and the same when it comes to the requirements to provide eligible students with disabilities equal opportunity and equally effective communication under title II of the Americans with Disabilities Act. Furthermore, complying with the Individuals with Disabilities Act does not necessarily mean compliance with the Americans with Disabilities Act and section 504. Students with disabilities who are eligible under the Individuals with Disabilities Act may have a complaint on the basis of disability, as does a student not eligible under the Individuals with Disabilities Act.
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53	53	The legislature also finds that some Individuals with Disabilities Act claims are from parents who disagree with the identification, evaluation, or placement of a child and that section 504 has its own standard of free appropriate public education. However, section 368-1.5, Hawaii Revised Statutes, applies to "[a]ny individual claiming to be aggrieved by an alleged unlawful discriminatory practice may file with the commission's executive director a complaint in writing", which is clearly not an Individuals with Disabilities Act complaint. Therefore, a claim of identification, evaluation, or placement under the Individuals with Disabilities Act is not the same as an alleged unlawful discriminatory practice. Additionally, exhaustion of federal and state administrative remedies are not required for complaints on the basis of disability, and are not timely, are rarely accessible, and are costly to students and families.
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55	55	The purpose of this Act is to clarify that the Hawaii civil rights commission has jurisdiction over disability discrimination claims, including claims from students with disabilities, even when other federal remedies are available.
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57	57	SECTION 2. Section 368-1.5, Hawaii Revised Statutes, is amended to read as follows:
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59	59	"§368-1.5 Programs and activities receiving state financial assistance. (a) No otherwise qualified individual in the State shall, [solely] by reason of [his or her] the individual's disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination by state agencies, or under any program or activity receiving state financial assistance.
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61	61	(b) As used in this section[, the term "disability"]:
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63	63	"Disability" means the state of having a physical or mental impairment [which] that substantially limits one or more major life activities, having a record of such an impairment, or being regarded as having such an impairment.
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65	65	[(c) As used in this section, "state]
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67	67	"Program or activity receiving state financial assistance" includes a program or activity that receives federal and state financial assistance.
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69	69	"State financial assistance" means grants, purchase-of-service contracts, or any other arrangement by which the State provides or otherwise makes available assistance in the form of funds to an entity for the purpose of rendering services on behalf of the State. It does not include procurement contracts, state insurance or guaranty contracts, licenses, tax credits, or loan guarantees to private businesses of general concern that do not render services on behalf of the State."
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71	71	SECTION 3. Section 368D-1, Hawaii Revised Statutes, is amended to read as follows:
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73	73	"§368D-1 State educational programs and activities; discrimination prohibited. (a) No person in the State, on the basis of sex, including gender identity or expression as defined in section 489-2, or sexual orientation as defined in section 489-2, and no student in the State, on the basis of disability, shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under:
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75	75	(1) Any state educational program or activity; or
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77	77	(2) Any educational program or activity that receives state financial assistance.
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79	79	(b) Nothing in this chapter shall be construed to prohibit the membership practices of social fraternities or sororities or voluntary youth service organizations, as set forth in title 20 United States Code Section 1681(a)(6), as in effect on January 1, 2019.
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81	81	(c) Nothing in this chapter shall be construed to prohibit any educational institution receiving state funds from maintaining separate living facilities for different sexes, as set forth in title 20, United States Code Section 1686, as in effect on January 1, 2019.
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83	83	(d) Nothing in this chapter shall be construed to prohibit an educational institution from administering or assisting in administering a scholarship, fellowship, or other form of financial assistance pursuant to a domestic or foreign will, trust, bequest, or similar instrument that requires awards be made to members of a particular sex specified therein; provided that the overall effect of sex-restricted financial assistance shall not discriminate on the basis of sex, as set forth in title 34, Code of Federal Regulations section 106.37(b)(1), as in effect on January 1, 2019.
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85	85	(e) Nothing in this chapter shall preclude a student participating in any educational program or activity who is aggrieved by a violation of this chapter from filing a civil action in a court of competent jurisdiction.
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87	87	(f) A person, or an organization or association on behalf of a person alleging a violation of this chapter may file a complaint pursuant to this chapter.
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89	89	(g) A student with a disability, or individual on behalf of a student with a disability, alleging a violation of section 368-1.5 may file a complaint pursuant to this chapter.
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91	91	[(g)] (h) As used in this section:
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93	93	"Educational program or activity that receives state financial assistance" means any educational program or activity that receives state financial assistance, in any amount, for any purpose. The term does not exclude an educational program or activity that also receives federal funds.
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95	95	"State educational program or activity" means an educational program or activity of the University of Hawaii, the department of education, or public charter schools."
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97	97	SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
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99	99	SECTION 5. This Act shall take effect upon its approval.
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103	103	INTRODUCED BY: _____________________________
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105	105	INTRODUCED BY:
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107	107	_____________________________
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113	113	Report Title: Hawaii Civil Rights Commission; Disability; Discrimination Description: Clarifies the meaning of "program or activity receiving state financial assistance". Includes eligible student with disabilities complaints within the scope of the Hawaii civil rights commission. The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
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119	119	Report Title:
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121	121	Hawaii Civil Rights Commission; Disability; Discrimination
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125	125	Description:
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127	127	Clarifies the meaning of "program or activity receiving state financial assistance". Includes eligible student with disabilities complaints within the scope of the Hawaii civil rights commission.
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135	135	The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.