Chapter 392-190 WAC

The purpose of this chapter is to establish rules to implement chapters 28A.640 and 28A.642 RCW. Chapters 28A.640 and 28A.642 RCW prohibit discrimination on the basis of sex, race, ethnicity, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation, gender expression, gender identity, homelessness, immigration or citizenship status, the presence of any sensory, mental or physical disability, neurodivergence, 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, ethnicity, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation, gender expression, gender identity, homelessness, immigration or citizenship status, the presence of any sensory, mental, or physical disability, neurodivergence, 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.

In accordance with RCW 28A.640.020 and 28A.642.020, the office of the superintendent of public instruction (OSPI) will develop guidelines to supplement this chapter and to guide its interpretation and administrative enforcement of chapters 28A.640 and 28A.642 RCW under WAC 392-190-060 through 392-190-081. Under RCW 28A.640.050 and 28A.642.050, OSPI has the authority to enforce the guidelines and this chapter.

This chapter applies to public charter schools to the same extent as public school districts, collectively referred to as school districts.

For purposes of administrative enforcement of this chapter under WAC 392-190-060 through 392-190-081, and unless otherwise provided in chapters 28A.640 and 28A.642 RCW, this chapter, or as interpreted in the guidelines adopted under WAC 392-190-005, OSPI 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.

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. The definitions set forth in RCW 28A.642.012 also govern the terms used in this chapter. Where a term is not defined in RCW 28A.642.012, the definitions in chapter 49.60 RCW apply, unless the context clearly requires otherwise.

(1) "OSPI" means the office of the superintendent of public instruction.

(2) "Protected status" means a personal characteristic or membership in a class for which discrimination is prohibited under RCW 28A.640.010 and 28A.642.010 including sex, race, ethnicity, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation, gender expression, gender identity, homelessness, immigration or citizenship status, the presence of any sensory, mental, or physical disability, neurodivergence, or the use of a trained dog guide or service animal by a person with a disability.

(3) "School district" means a common school as defined by RCW 28A.150.010 and charter schools as defined by RCW 28A.710.010.

(4) "Sexual harassment."

(a) "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:

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

(ii) 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

(iii) 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.

(b) 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.

(1) School districts must not discriminate on the basis of a protected status in the counseling or guidance of students.

(2) Each school district must develop and use materials, orientation programs, and counseling techniques that encourage participation in all school programs and courses of study, including career and vocational technical programs and employment opportunities, regardless of a student's protected status. School districts must encourage students to explore subjects, activities, and occupations not traditional for their sex.

(3) Each school district that uses testing and other materials for counseling students must not use different materials for students based on their protected status. A school district may use different materials for students on the basis of their protected status if:

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

(b) The use of different materials is essential to eliminate bias or prevent discrimination based on a protected status.

(4) Each school district must develop and use internal procedures 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 or placement do not discriminate on the basis of a student's protected status.

(5) If a school district concludes that the use of tests and appraisal instruments, career and vocational guidance materials, work/study programs, or educational scheduling or placement has resulted in a substantially disproportionate number of students of a protected status in any particular course of study or classification, the school district must take prompt action to ensure that the disproportion is not the result of discrimination in the instrument or material, or its application.

(6) At least annually, each school district 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 must determine whether a substantially disproportionate number of students within these categories are enrolled in a particular course or program. Where a school district finds that a particular course or program contains a substantially disproportionate number of students who are members of any one of the categories identified in this section, the district must take prompt action to ensure that the disproportion is not the result of discrimination, including in:

(a) The identification and selection of students;

(b) Course and program enrollment criteria;

(c) Tests and appraisal instruments;

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

(e) Work/study programs and opportunities;

(f) Educational scheduling or placement; and

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

Each school district must provide training to all administrators and certificated and classroom personnel regarding their responsibilities under this chapter and to raise awareness of and eliminate bias based on a protected status.

(1) Except as provided under this section, school districts must not, on the basis of a protected status, exclude any student from participation in, deny any student the benefits of, or otherwise discriminate against any student in any interscholastic, club, or intramural athletics or recreational activity offered or sponsored by the school district. School districts must not provide any athletic or recreational activity separately on such basis, except as provided in this section.

(2) A school district may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a school district operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try out for the team offered.

(3) A school district that operates or sponsors interscholastic, club, or intramural athletics must provide equal athletic opportunities for members of both sexes within each school. The following factors must be considered when determining whether equal opportunities are available:

(a) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;

(b) Provision of equipment and supplies;

(c) Scheduling of games and practice time, including the use of playfields, courts, gyms, and pools;

(d) Travel and per diem allowances, if any;

(e) Opportunity to receive coaching and academic tutoring;

(f) Assignment and compensation of coaches, tutors, and game officials;

(g) Provision of locker rooms and practice and competitive facilities;

(h) Provision of medical and training facilities and services, including the availability of insurance;

(i) Provision of housing and dining facilities and services, if any; and

(j) Publicity and awards.

(4) Unequal aggregate expenditures within a school district for members of each sex or unequal expenditures for separate male and female teams alone will not constitute noncompliance with this section, but the failure to provide 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.

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

Each school district must evaluate 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 that are operated, sponsored, or otherwise provided by the school district.

In determining whether equal opportunities are available to members of both sexes, each school district conducting an evaluation required by this section must consider each of the factors listed under WAC 392-190-025(3).

(1) Each school district must administer the OSPI student athletic interest survey to determine, for members of both sexes, student interest to participate in specific sports. Each school district must administer the survey at least once every three years at each school and grade level where interscholastic, intramural, and other athletics are conducted. The school district must consider the results of the survey, disaggregated by sex, when planning and developing recreational and athletic activities offered within the school district and when determining whether equal opportunities are available to members of both sexes under WAC 392-190-025 and 392-190-030.

(2) With OSPI's approval, school districts may modify or amend the content of the survey instrument if necessary to clarify and assist in evaluating student interest.

A school district 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. A school district may provide separate facilities for male and female students or schedule the facilities equitably for separate use. This section does not require the construction of additional facilities.

(1) Each school district 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 a protected status.

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

At least annually, each school district 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 removals. In reviewing this data, each school district 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 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 must take prompt action to ensure that the disproportion is not the result of discrimination.

Except as provided under this section, school districts must not provide any course or otherwise carry out any of its programs or activities separately on the basis of a protected status or require or refuse participation therein by any of its students on such basis. This section does not 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 must promptly implement appropriate standards that do not have such effect;

(2) The separation of students by sex within physical education classes or activities offered for students if:

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

(b) The separated classes or activities are substantially equal;

(3) The separation of students by sex for classes or portions of classes that deal primarily with human sexuality;

(4) Classes and activities 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 or based on the student's needs as identified in the student's individualized education program under the Individuals with Disabilities Education Act.

(1) A school district must accept a birth certificate, passport, or alternative documents to show a child's age or date of birth for the purposes of enrollment. Alternative documents include, but are not limited to, a religious, hospital, or physician's certificate showing the date of birth, an entry in a family bible, an adoption record, an affidavit from a parent, or a previously verified school record.

(2) Notwithstanding subsection (1) of this section, a school district may not inquire about, request, or collect any information about the immigration or citizenship status of any student or their parent or guardian.

(1) School districts must not discriminate on the basis of a protected status through the use of any textbooks, instructional materials, or supplemental instructional materials, including reference materials and audio-visual materials.

(2) Each school district must adopt policies and procedures regarding instructional materials that include selection criteria designed to eliminate bias based on protected statuses in all textbooks, instructional materials, and supplemental instructional materials, including reference materials and audio-visual materials. Each school district 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) If instructional materials that contain bias cannot be replaced immediately, each school district must acquire supplemental instructional materials or aids to be used concurrent with existing materials to counter the bias content.

(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, that are educationally necessary or advisable even though they contain bias.

(5)(a) Consistent with RCW 28A.320.233, a school district board of directors may not refuse to approve, or prohibit the use of, any textbook, instructional material, supplemental instructional material, or other curriculum for student instruction on the basis that it relates to the study of the role and contributions of any individual or group on the basis of a protected status.

(b) Subsection (5)(a) does not apply if the content of the material relating to the role and contributions of an individual or group violates the provisions of chapter 28A.640 or 28A.642 RCW, including materials containing bias against any individual or group on the basis of a protected status.

(1) For purposes of administrative enforcement of this chapter under WAC 392-190-060 through 392-190-081, a school district 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 protected status;

(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 course offerings, including any educational program or activity (i.e., creates a hostile environment); and

(c) The school district, 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, OSPI deems a school district 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 protected status that creates a hostile or abusive educational or workplace environment.

In order to eliminate sexual harassment in connection with any responsibility, function, or activity within the jurisdiction of a school district, a sexual harassment policy must be adopted and implemented by each district. This policy must apply to all school district employees, volunteers, parents, and students including, but not limited to, conduct between students. This policy must incorporate the following criteria:

(1) Definition of sexual harassment consistent with WAC 392-190-008;

(2) Responsibilities of employees and volunteers;

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

(4) Remedies available to targets of sexual harassment;

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

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

(7) Dissemination and implementation of the policy; and

(8) Internal review of the policy.

(1) The school district's sexual harassment policy must be easily understood and conspicuously posted throughout each school building and provided to each employee.

(2) Information about the school district's sexual harassment policy and complaint procedure must appear in any publication of a school or school district that sets forth the rules, regulations, procedures, and standards of conduct for the school or school district. Each school district must publish this information in handbooks and on school and district websites consistent with the requirements in RCW 28A.300.286.

(3) Each school district must develop a process for discussing the district'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) Each school district must adopt a harassment, intimidation, and bullying prevention policy and procedure as provided for in RCW 28A.600.477.

(2) If the allegations in a written complaint of harassment, intimidation, or bullying filed under the school district's procedure adopted under RCW 28A.600.477 indicate a potential violation of this chapter, including as interpreted in 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 civil rights coordinator designated under WAC 392-190-060. Or, if during the course of an investigation of harassment, intimidation, or bullying, the school district becomes aware of a potential violation of this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005, the district staff member investigating the report must promptly notify the district civil rights coordinator. Upon receipt of this information, the civil rights coordinator must notify the complainant that their complaint will also proceed under the discrimination complaint procedure in WAC 392-190-065, in addition to the procedures adopted under RCW 28A.600.477. 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, including as interpreted in the guidelines adopted under WAC 392-190-005.

(3) This section is not intended to limit the scope of RCW 28A.600.477 or the use of a school district's procedures adopted under RCW 28A.600.477.

(1) School districts must not, on the basis of a protected status, exclude any person from participation in, deny any person the benefit of, or subject any person to discrimination in employment, recruitment, promotion, advancement, consideration, or selection, whether full time or part time, in connection with employment by a school district.

(2) Each school district must make all employment decisions in a nondiscriminatory manner and must not limit, segregate, or classify any person in any way that could adversely affect a person's employment opportunities or status on the basis of a protected status.

(3) School districts 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 a protected status including, but not limited to, relationships with employment and referral agencies, labor unions, and organizations providing or administrating fringe benefits to employees.

(4) School districts must not grant preferential treatment to applications for employment based on an applicant's enrollment at any education institution or entity that only or predominately admits students 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 an affirmative action employment plan or program that includes appropriate provisions designed to eliminate discrimination on the basis of a protected status.

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

(a) The requirement to:

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

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

(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, where persons might be disrobed;

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

(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 payment for instructional and noninstructional duties; and

(b) Such other provisions as may be required by OSPI to facilitate reasonable affirmative action goals and objectives and to eliminate discrimination in public school employment.

(1) The superintendent of each school district must designate at least one employee, a civil rights coordinator, who will serve as the district's primary contact under RCW 28A.642.090. The civil rights coordinator may also serve as the primary contact regarding the school district's policy and procedure prohibiting harassment, intimidation, and bullying under RCW 28A.600.477, or the primary contact regarding the school district's policy and procedure related to transgender students under RCW 28A.642.080. The civil rights coordinator is responsible for:

(a) Monitoring and coordinating the school district's compliance with this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005;

(b) Ensuring that all complaints communicated to the district under WAC 392-190-065 are promptly investigated and resolved; and

(c) Facilitating communication about the school district's compliance with federal and state nondiscrimination laws including, but not limited to, (a) and (b) of this subsection, with other district coordinators, including the primary contact for the harassment, intimidation, and bullying policy and procedure under RCW 28A.600.477 and the primary contact for the policy and procedure related to transgender students under RCW 28A.642.080.

(2) The civil rights coordinator must receive sufficient training regarding their responsibilities and the school district's compliance requirements under this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005, and to raise awareness of and eliminate bias based on protected statuses.

(1) Each school district must, once each year or more often as deemed necessary, publish notice in a manner that is reasonably calculated to inform all students, students' parents and guardians, and employees of the complaint procedure set forth in WAC 392-190-065, 392-190-070, and 392-190-075. Each school district 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. Each school district must publish this information in handbooks and on school and district websites consistent with the requirements in RCW 28A.300.286.

(2) Each school district must include a nondiscrimination statement in written announcements, recruitment materials, employment application forms, and other publications made available to all students, students' parents and guardians, or employees. The statement must include:

(a) Notice that the school district may not discriminate in any programs or activities on the basis of a protected status, including sex, race, ethnicity, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation, gender expression, gender identity, homelessness, immigration or citizenship status, the presence of any sensory, mental or physical disability, neurodivergence, or the use of a trained dog guide or service animal;

(b) The name or title, office address, email address, and telephone number of the civil rights coordinator designated under WAC 392-190-060, as well as the employees designated to ensure compliance with Section 504 of the Rehabilitation Act of 1973 and Title IX of the Education Amendments of 1972; and

(c) Pursuant to the Boy Scouts of America Equal Access Act, notice that the school district provides equal access to the Boy Scouts of America and any other youth group listed in Title 36 of the United States Code as a patriotic society.

School districts 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 this chapter. School districts must not intimidate, threaten, coerce, or discriminate against any person for the purpose of interfering with any right secured by this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005, or because the individual has made a complaint or participated in an investigation under this chapter.

Each school district must establish a discrimination complaint procedure that includes the following requirements:

(1) Receiving a complaint.

(a) Anyone may file a complaint with a school district alleging that the district has violated this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005. The complaint must be written and describe the specific acts, conditions, or circumstances alleged to violate this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005.

(b) A school district may establish a complaint filing deadline. The filing deadline must be no less than one year after the specific act, condition, or circumstance that is the subject matter of the complaint. A complaint filing deadline may not be imposed if the complainant was prevented from filing a complaint due to:

(i) Specific misrepresentations by the school district that it had resolved the problem forming the basis of the complaint; or

(ii) Withholding of information by the school district that was required to be provided under this chapter.

(c) Complaints may be submitted by mail, fax, email, or hand delivery to any district or school administrator or to the civil rights coordinator designated under WAC 392-190-060. Any district or school administrator who receives a complaint that alleges a violation of this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005, must promptly notify the civil rights coordinator designated under WAC 392-190-060.

(d) Upon receipt of the complaint, the civil rights coordinator designated under WAC 392-190-060 must provide the complainant a copy of the school district's discrimination complaint procedure 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.

(2) Investigation.

(a) Upon receipt of a complaint, the civil rights coordinator designated under WAC 392-190-060 must ensure that the school district conducts a prompt, thorough, and impartial investigation into the allegations in the complaint.

(b) The school district must complete the investigation and respond to the complainant in writing within 30 calendar days after the district received the complaint. A school district may extend the investigation and response timeline if:

(i) The complainant agrees to an extension; or

(ii) Exceptional circumstances related to the complaint require an extension of the timeline. If an extension is needed, the school district must promptly 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.

(c) Following the completion of the investigation, the civil rights coordinator must provide the school district superintendent or the superintendent's designee with a full written report of the complaint and the results of the investigation.

(3) Written response to complainant.

(a) The district superintendent or their designee must respond in writing to the complainant within the timeline established under subsection (2)(b) of this section. The written response of the school district superintendent or their designee must include:

(i) A summary of the results of the investigation;

(ii) A determination regarding whether a preponderance of the evidence shows that the school district has failed to comply with this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005;

(iii) Notice of the complainant's right to appeal under WAC 392-190-070, including the email and address where the complainant may file the appeal, the name of the party or board that will decide the appeal, and any established filing deadline; and

(iv) If the school district has failed to comply with this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005, the corrective measures deemed necessary to correct the noncompliance. Any corrective measures must be instituted as expeditiously as possible but no later than 30 calendar days after the school district's written response to the complainant, unless otherwise agreed to by the complainant.

(b) The school district's written 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.

(c) At the time the school district superintendent responds to the complainant, the school district must send a copy of the response to OSPI.

(4) Informal resolution.

(a) The complainant and the school district 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.

(b) Nothing in this section prohibits a school district from adopting a separate procedure to resolve informal (i.e., verbal) complaints or allegations. An informal complaint procedure must not limit a complainant's right to file a formal complaint under this section. When utilizing an informal complaint procedure, a school district must notify complainants about their right to file a formal complaint under this section. The school district must provide this notice 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.

(5) Failure to respond.

(a) If a school district fails to comply with the procedures in this section such that the complainant is denied a timely written response, the complainant may file a complaint with OSPI. In lieu of opening an investigation, OSPI may direct the school district to complete the investigation and respond consistent with subsections (2) and (3) of this section.

(b) The complaint to OSPI must be in writing and include:

(i) A copy of the complaint that complainant submitted to the school district under subsection (1) of this section; and

(ii) Information about when, how, and to whom the complaint was submitted; and

(iii) A copy of any communication between the complainant and the school district regarding the complaint response timelines.

(c) The complainant must file the complaint to OSPI within one year of their complaint to the school district. The complaint may be submitted by mail, fax, email, or hand delivery.

(6) Employment complaints. Nothing in this section is intended to modify or supersede any grievance procedure provided for in a school district collective bargaining agreement.

(1) Appeals.

(a) A school district's complaint procedure required under WAC 392-190-065 must provide an option to appeal the decision of the school district superintendent or their designee to the district school board of directors. The school board may designate a different party or board to decide appeals under this section so long as the designee is granted authority to order the school district to take corrective measures deemed necessary to correct any noncompliance identified in the appeal.

(b) Any individuals deciding the appeal may not have been involved in the initial complaint, investigation, or decision under WAC 392-190-065.

(c) A school district may establish an appeal filing deadline. The appeal filing deadline must be no less than 10 calendar days from the date the complainant received the school district's response under WAC 392-190-065.

(d) The appeal must be submitted in writing.

(2) Appeal decision.

(a) The school district must provide the school board or school board designee's written appeal decision to the complainant in a timely manner, not to exceed 30 calendar days from the date the school district received the appeal, unless otherwise agreed to by the complainant. The appeal decision must include notice of the complainant's right to file a complaint with OSPI under WAC 392-190-075.

(b) The written appeal decision 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.

(c) At the time the school district responds to the complainant, the school district must send a copy of the appeal decision to OSPI.

(3) Failure to respond.

(a) If a school district fails to comply with the procedures in this section such that the complainant is denied a timely written appeal decision, the complainant may file a complaint with OSPI. In lieu of opening an investigation, OSPI may direct the school district to complete its appeal and respond consistent with subsection (2) of this section.

(b) The complaint to OSPI must be in writing and include:

(i) A copy of the appeal that complainant submitted to the school board or their designee under this section; and

(ii) Information about when, how, and to whom the appeal was submitted; and

(iii) A copy of any communication between the complainant and the school board or their designee regarding the appeal decision timelines.

(c) The complainant must file the complaint to OSPI within one year of their appeal to the school board or their designee. The complaint may be submitted by mail, fax, email, or hand delivery.

(1) Complaint to OSPI.

(a) If a complainant disagrees with the appeal decision under WAC 392-190-070, the complainant may file a complaint with OSPI.

(b) The complaint must be received by OSPI within 20 calendar days after the complainant received the school district's written appeal decision, unless OSPI grants an extension for good cause. The complaint may be submitted by mail, fax, email, or hand delivery.

(c) The complaint must be in writing and include:

(i) A description of the specific acts, conditions, or circumstances alleged to violate this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005, and the facts on which the complaint is based;

(ii) The name and contact information, including an address, of the complainant;

(iii) A copy of the complainant's written complaint to the school district and appeal to the school board;

(iv) A copy of the school district's complaint and appeal decisions under WAC 392-190-065 and 392-190-070;

(v) A proposed resolution of the complaint or relief requested; and

(vi) If the allegations regard a specific student, the complaint must also include the name and address of the student, or in the case of a homeless child or youth, contact information for the student.

(d) OSPI may require the complainant to submit a signed consent form from a student's legal parent or guardian before OSPI proceeds to open an investigation that involves an individual student.

(2) OSPI investigation.

(a) Upon receipt of a complaint, OSPI may, at its discretion, initiate an investigation, which may include reviewing relevant information or conducting an independent on-site review. OSPI may, at its discretion, investigate additional issues related to the complaint that were not included in the initial complaint or appeal to the school district under WAC 392-190-065 or 392-190-070.

(b) If OSPI initiates an investigation, OSPI will provide notice to the school district of the complaint and the issues OSPI has identified for investigation. As part of the investigation, OSPI will provide the school district the opportunity to respond in writing to the complaint and provide any information the district deems relevant to OSPI's investigation. The school district will provide such response and information, if any, within 30 calendar days of its receipt of OSPI's notice of the investigation, unless OSPI agrees to an extension.

(c) OSPI will provide a copy of the notice under subsection (3)(b) of this section to the complainant 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.

(3) Investigation resolution.

(a) A complaint may be resolved at any time when, before the conclusion of an investigation by OSPI, the complainant withdraws their complaint or a school district enters into a voluntary resolution agreement with OSPI to take actions to resolve the complaint.

(b) If the complaint is not resolved voluntarily, following an investigation, OSPI will make an independent determination as to whether a preponderance of the evidence shows the school district has failed to comply with this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005. OSPI will issue a written proposed order to the complainant and the school district that states OSPI's determination with regard to each issue identified for investigation in the notice provided under subsection (3)(b) of this section.

(c) If OSPI determines the school district has failed to comply with this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005, OSPI will issue a proposed order that includes:

(i) Findings of fact;

(ii) One or more conclusions of law stating how the school district failed to comply with this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005;

(iii) An order of appropriate corrective measures or sanctions, which could include, but is not limited to:

(A) The institution of a corrective action plan, which will include corrective actions OSPI deems necessary to correct the noncompliance, the timeline for completing such corrective actions, and the documentation the school district must provide OSPI to show the corrective actions are completed;

(B) The institution of sanctions or other corrective measures outlined in WAC 392-190-080; and

(iv) Notice of appeal procedures under WAC 392-190-079.

(d) If the school district does not exercise its right to appeal the proposed order pursuant to the procedures described in WAC 392-190-079 within 30 calendar days of the date of the proposed order, the proposed order shall be the final order of the agency.

(4) Corrective action monitoring.

(a) All corrective actions must be completed within the timelines established in the final order unless OSPI grants an extension.

(b) If timely compliance by a school district is not achieved, OSPI may take actions to ensure compliance. Such actions may include, but are not limited to, referring the school district to appropriate state or federal agencies empowered to order compliance with the law or the initiation of additional sanctions or corrective measures under WAC 392-190-080.

(1) A school district may offer mediation, at the district'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 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 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 or other public agency solely because he or she is paid by the school district 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 who has the authority to bind the district.

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

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

(1) OSPI must monitor school districts' compliance with this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005, and chapters 28A.640 and 28A.642 RCW.

(2) In addition to monitoring school district compliance through the investigation of complaints under WAC 392-190-075, procedures for monitoring school districts may include, but are not limited to:

(a) Investigation into a school district's compliance with this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005, and chapters 28A.640 and 28A.642 RCW;

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

(c) Performance of on-site visits and interviews.

(3) If OSPI initiates monitoring under this section, OSPI will provide notice to the school district of the issues OSPI has identified for monitoring. As part of the monitoring, OSPI will provide the school district the opportunity to respond in writing to the identified issues and provide any information the district deems relevant to OSPI's monitoring. The school district will provide such response and information, if any, within 30 calendar days of its receipt of OSPI's notice of the monitoring, unless OSPI agrees to an extension.

(4) OSPI may, at any time, refer a complaint or compliance issue regarding a school district to appropriate state or federal agencies empowered to order compliance with the law.

(1) OSPI's monitoring may be resolved at any time when, before the conclusion of the monitoring by OSPI, the school district enters into a voluntary resolution agreement with OSPI to take actions to resolve noncompliance with this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005, or chapters 28A.640 and 28A.642 RCW.

(2) Following the monitoring, OSPI will make an independent determination as to whether a preponderance of the evidence shows the school district has failed to comply with this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005. OSPI will issue a written proposed order to the school district that states OSPI's determination with regard to each issue identified for investigation in the notice provided under WAC 392-190-076.

(3) If OSPI determines the school district has failed to comply with this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005, or chapters 28A.640 and 28A.642 RCW, OSPI will issue a proposed order that includes:

(a) Findings of fact;

(b) One or more conclusions of law stating how the school district failed to comply with this chapter, including as interpreted in the guidelines adopted under WAC 392-190-005, or chapters 28A.640 and 28A.642 RCW;

(c) An order of appropriate corrective measures or sanctions which could include, but is not limited to:

(i) The institution of a corrective action plan, which will include corrective actions OSPI deemed necessary to correct the noncompliance, the timeline for completing such corrective actions, and the documentation the school district must provide OSPI to show the corrective actions are completed; or

(ii) The institution of permissible sanctions or other corrective measures outlined in WAC 392-190-080; and

(d) Notice of appeal procedures under WAC 392-190-079.

(4) If the school district does not exercise the right to appeal the proposed order pursuant to the procedures described in WAC 392-190-079 within 30 calendar days of the date of the proposed order, the proposed order shall be the final order of the agency.

(5) All corrective actions must be completed within the timelines established in the final order unless OSPI grants an extension. If timely compliance by a school district is not achieved, OSPI may take actions to ensure compliance. Such actions may include, but are not limited to, referring the school district to appropriate state or federal agencies empowered to order compliance with the law or the initiation of additional sanctions or corrective measures WAC 392-190-080.

(1) A complainant or school district that desires to appeal the proposed order of OSPI issued under WAC 392-190-075 or 392-190-077 may file an appeal with OSPI in accordance with the adjudicative proceedings in RCW 34.05.413 through 34.05.494, and the administrative practices and procedures of OSPI in chapter 392-101 WAC. To initiate review under this section, a complainant or school district must file a written notice with OSPI within 30 calendar days following the date of receipt of OSPI's proposed order under WAC 392-190-075 or 392-190-077.

(2) For purposes of hearing an appeal under this section, OSPI must conduct a formal administrative hearing in conformance with the Administrative Procedure Act, chapter 34.05 RCW. OSPI, 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 is found to be in violation of the requirements of this chapter, OSPI 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;

(2) The termination of specified programs wherein 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; and

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

(1) Except as provided in subsections (2) and (3) of this section, nothing in this chapter 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 under WAC 392-190-065 through 392-190-075 may be held in abeyance for a period of time 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.