PROPOSED ORDER OF THE
STATE SUPERINTENDENT OF PUBLIC INSTRUCTION
AMENDING PERMANENT RULES
The scope statement for this rule, SS 132-20, was published in Register No. 778A3, on October 19, 2020, and approved by State Superintendent Carolyn Stanford Taylor on November 2, 2020. The State Superintendent of Public Instruction hereby proposes an order to repeal s. PI 9.04 (3), 9.06 (1) (h), and 9.07 (3); to renumber and amend s. PI 9.04 (2); to amend s. PI 9.02 (2), 9.04 (1), 9.05 (1), 9.06 (1) (intro.), (a), (c), (d), (e), and (2), 9.07 (2) and (3) (Note), and 9.08 (1) (a) (intro.), 1., 2., 4., 5., and (2) (c); and to create s. PI 9.03 (1) (j), 9.04 (2) (a) to (e), 9.06 (1) (cg), (cr), and (i), and 9.08 (2) (d), relating to revisions to pupil nondiscrimination procedures. ANALYSIS BY THE DEPARTMENT OF PUBLIC INSTRUCTION
Statute interpreted: s. 118.13, Stats. Explanation of agency authority:
Under s. 118.13 (3) (a) 2., Stats., the state superintendent has the authority to promulgate rules necessary to implement and administer pupil nondiscrimination procedures under s. 118.13, Stats. Related statute or rule:
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Plain language analysis:
The proposed rule amends ch. PI 9 of the Wisconsin Administrative Code with respect to the administration of pupil nondiscrimination procedures under s. 118.13, Stats. Summary of, and comparison with, existing or proposed federal regulations:
The United States Department of Education Office for Civil Rights (OCR) enforces several federal civil rights laws that prohibit discrimination in programs or activities that receive federal funds from the Department of Education. These laws prohibit discrimination on the basis of race, color, and national origin, sex, disability, and on the basis of age. These laws extend to all state education agencies, elementary and secondary school systems, colleges and universities, vocational schools, proprietary schools, state vocational rehabilitation agencies, libraries, and museums that receive U.S. Department of Education funds. OCR also has responsibilities under Title II of the Americans with Disabilities Act of 1990, which prohibits disability discrimination by public entities, whether or not they receive federal financial assistance. In addition, as of January 8, 2002, OCR enforces the Boy Scouts of America Equal Access Act under Section 9525 of the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001. Under the Boy Scouts of America Equal Access Act, no public elementary or secondary school or State or local education agency that provides an opportunity for one or more outside youth or community groups to meet on school premises or in school facilities shall deny equal access or a fair opportunity to meet to, or discriminate against, any group officially affiliated with the Boy Scouts of America, or any other youth group listed in Title 36 of the United States Code as a patriotic society, that wishes to meet at the school.
Complaints of discrimination must be received within 180 days. Complainants may use the school district’s internal grievance process. If a complainant elects to use the internal grievance process, the complainant must file with OCR within 60 days of the close of the internal grievance. Further, each school district is required to provide public notice of its nondiscrimination policy, and each school district is required to designate an employee to receive complaints.
Summary of any public comments and feedback on the statement of scope for the proposed rule that the agency received at a preliminary public hearing and comment period held and a description of how and to what extent the agency took those comments into account and drafting the proposed rule:
The Department held a preliminary public hearing and comment period on October 30th, 2020, and did not receive any comments on the statement of scope for the proposed rule.
Comparison with rules in adjacent states:
Illinois: Under Illinois Compiled Statutes section 775 ILCS 5, K-12 public schools are prohibited from discriminating on the basis of race, color, religion, sex, national origin, ancestry, age, order of protection status, marital status, physical or mental disability, military status, sexual orientation, pregnancy, or unfavorable discharge from military service. Complaints and appeals may be resolved by the Illinois Department of Human Rights. Complaints must be filed within 300 days.
Iowa: Under Iowa Code section 216.9, K-12 public schools are prohibited from discriminating on the basis of race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability in any academic, extracurricular, research, occupational training, or other program or activity (except athletic programs). Complaints and appeals are resolved by the Iowa Civil Rights Commission. Complaints must be filed within 300 days.
Michigan: Michigan Compiled Laws section 37.2402 prohibits discrimination in K-12 public schools on the basis of religion, race, color, national origin, or sex. Complaints and appeals are resolved by the Michigan Department of Civil Rights. Complaints must be filed within 180 days.
Minnesota: Under Minnesota Statutes section 121A.03, school boards are required to adopt a written sexual, religious, and racial harassment policy and a written sexual, religious, and racial violence policy conforming to the Minnesota Human Rights Act. The Commissioner of the Minnesota Department of Education is required to develop a model policy that school boards may adopt. School boards are further required to develop a process for discussing the policy with students and employees and submit the policy to the Commissioner. The Minnesota Human Rights Act prohibits discrimination on the basis of race, color, creed, religion, national origin, sex, age, marital status, status with regard to public assistance, sexual orientation, or disability. The Minnesota Human Rights Department is responsible for resolving complaints of discrimination arising in the public schools. Complaints must be filed within one year.Summary of factual data and analytical methodologies:
Chapter PI 9 of the Wisconsin Administrative Code governs the procedures for pupil nondiscrimination under s. 118.13, Stats., and specifies the areas in which the school board must have policies to address discrimination complaints. Section 118.13 (3), Stats., requires the state superintendent to decide appeals of local school board decisions, requires the state superintendent to promulgate rules, and authorizes the state superintendent to review school district compliance and to provide technical assistance to school districts. Since the rule was promulgated, the Department has identified areas that would improve the rule’s implementation of the authorizing statute. The areas addressed by the proposed rule under this statement of scope are as follows: 1.
The current rule’s notice provisions provide for a class 1 legal notice annually and does not specifically provide for notice of policies and procedures to individual complainants. The proposed rule will provide school districts the option of providing notice via district website and require school districts to provide policies and procedures to individual complainants upon initiation of a compliant.2.
The current rule contains a timeline of 90 days for full resolution of complaints and no timeline for resolution of appeals by the department. The proposed rule will establish timelines for both processes that insure prompt resolution of complaints.3.
The current rule provides no criteria to school districts as to the sufficiency of a response to substantiated discrimination. The proposed rule will establish criteria for corrective action plans prompted by substantiated complaints of discrimination.4.
The current rule’s reporting requirements are designed to allow the department to meet its requirement under s. 118.13, Stats., to report on the status of pupil nondiscrimination to the Legislature. The proposed rule will ensure school districts are engaging in meaningful assessments and that the data reported is useful to both the department and the Legislature.The effect of the proposed rule will be to ensure accessibility of school district pupil nondiscrimination policies and procedures for parents and pupils; prompt resolution of discrimination complaints and appeals; clarification around school district responsibilities to address pupil discrimination substantiated through the complaint process; and clarification around school district self-evaluation and data reporting requirements.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report:
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Anticipated costs incurred by private sector:
