IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

M.G., by and with his Guardian ad Litem, ) 

Priscilla G., ) No. 101799-5 

) 

Respondent, ) 

) 

v. ) En Banc

) 

YAKIMA SCHOOL DISTRICT NO. 7, a ) 

municipal corporation, ) 

) 

Petitioner. ) Filed

________________________________________) 

MADSEN, J.—Washington state law and administrative code regulate the 

imposition of student discipline by school districts. Both prohibit the indefinite expulsion 

or suspension of a student as a form of discretionary discipline. RCW 28A.600.015(1), 

.020(6); WAC 392-400-430(8)(a). Here, Yakima School District No. 7 (District) 

expelled a high school student, M.G., on an emergency basis and extended it to a longterm suspension without providing M.G. with the statutorily required procedural 

protections. 

: March 7, 2024

FILE 

IN CLERK’S OFFICE

SUPREME COURT, STATE OF WASHINGTON 

MARCH 7, 2024

THIS OPINION WAS FILED 

FOR RECORD AT 8 A.M. ON

MARCH 7, 2024

ERIN L. LENNON

SUPREME COURT CLERK 
No. 101799-5 

2 

The Court of Appeals held that M.G. was indefinitely suspended in violation of his 

statutory procedural rights and reversed the superior court’s summary dismissal of 

M.G.’s suit. The Court of Appeals also determined that the case is not moot since M.G.

did not voluntarily withdraw from high school in the District following the District’s 

denial of his request to return to his regular educational setting. It concluded that M.G.’s 

long-term suspension for an indefinite period of time violated RCW 28A.600.015(1) and 

WAC 392-400-430(8). The court also found that M.G. was not precluded from seeking 

compensatory education for the time he was excluded from his regular educational 

setting. We affirm the Court of Appeals. 

In addition, M.G. seeks to strike sections of the District’s responses to the amici 

briefs. We grant the motion to strike in part. 

BACKGROUND 

M.G. and his mother live in Yakima County, Washington. He resides within the

boundaries of the District. In 2019, M.G. began attending Eisenhower High School. 

While in middle school, M.G. had signed a behavior agreement, or “gang contract.” 

Clerk’s Papers at 5-6. 

Shortly after the 2019 school year began, the District emergency expelled M.G. 

from Eisenhower for violating the gang contract. The basis for expulsion included M.G. 

wearing a red shirt, which is affiliated with the Norteño gang, and M.G.’s altercation with 

a student. Approximately two weeks later, the District converted M.G.’s 10-day 

emergency expulsion into a long-term suspension, totaling 12 days. The District 
No. 101799-5 

3 

provided written notice to M.G. the next day. The notice stated in part, “Due to this 

situation and the involvement in others, aka victim of previous threat, [the student] will 

be long-term suspended and placed in an alternative educational setting.” Id. at 42, 77-

78. 

M.G. appealed the suspension. Following a hearing, the District sent M.G. and his

mother a written hearing decision affirming the long-term suspension of 12 days and a 

return date of September 23, 2019. M.G. did not appeal. However, one day prior to the 

conclusion of the suspension, the District’s executive director of student life wrote to 

M.G.’s mother, informing her that the District’s school transfer committee decided that

M.G. was prohibited from returning to Eisenhower. M.G. did not receive any notice

regarding the educational services he would be provided during his suspension. 

Approximately one month after the conclusion of the suspension, the District 

enrolled M.G. in Yakima Online, a computer online learning program established by the 

District as an alternative learning experience. M.G. signed up for art, science, and music 

classes. M.G. lacked a laptop at home, so he would travel to a distant computer lab to 

access his classes. 

M.G.’s performance was unsatisfactory. The District assessed M.G.’s academic

levels and found that he performed at a grade level below that required at Yakima Online. 

Shortly after beginning Yakima Online, M.G., through counsel, spoke with Eisenhower’s 

principal and vice principal. They acknowledged that M.G.’s suspension ended, but 

stated that he could not return because of his gang-associated “Mongolian” hairstyle that 
No. 101799-5 

4 

violated school policy. Id. at 7. No new form of written discipline had been received in 

relation to M.G.’s hairstyle. 

In the following months, M.G.’s counsel initiated discussions with the District, 

seeking a transfer for M.G. from the online classes to a building-based high school. At 

one meeting, the District’s representative acknowledged that the online learning program 

was not meeting M.G.’s needs. M.G. unsuccessfully sought reenrollment in another high 

school in the District. The requested transfer was denied based on M.G.’s refusal to alter 

his alleged gang-style haircut and on incidents in which M.G. visited different schools 

under a different name and was seen flashing gang signs. The denial letter cited Yakima 

School District Policy 3131, which gives the District the right and responsibility to enroll 

students and determine enrollment options in classrooms. 

In response, M.G. requested reconsideration of the District’s decision denying his 

transfer request. A meeting was held with members of the District who participated in 

the denial of the transfer decision. Shortly after that meeting, the principal of Yakima 

Online provided an intervention plan to M.G. M.G. opposed the plan and instead sought 

to return to his regular educational setting. 

In March 2020, counsel for M.G. received a letter from the District, affirming the 

previous denial of M.G.’s request to transfer to a high school within the District and cited 

M.G.’s refusal to change his hairstyle as the basis for denial. M.G. then sent a letter to

Eisenhower two days after receiving the denial letter, requesting that he be allowed to 

return to Eisenhower in accordance with WAC 392-400-430(8)(b). The letter identified 
No. 101799-5 

5 

Eisenhower as M.G.’s regular educational setting following the end date of his 

suspension. 

The District responded by e-mail and, without a hearing, denied M.G.’s request. 

The District again invoked M.G.’s refusal to change his hairstyle and alleged gang 

affiliation. However, considering the newly remote nature of education during the 

COVID-19 pandemic (coronavirus disease 2019), the District allowed M.G. to attend 

Eisenhower online and provided M.G. with a laptop and access to wireless Internet. 

The following month, M.G. appealed the District’s March decision denying his 

request to return to Eisenhower under chapter 28A.645 RCW. M.G. argued that he was 

statutorily entitled to reinstatement at Eisenhower and that the District violated his 

constitutional right to an education and to due process prior to denying him in-person 

schooling due to his hairstyle and clothing. 

For relief, M.G. sought an order under chapter 7.24 RCW, the Uniform 

Declaratory Judgments Act (UDJA), requiring the District to return him to Eisenhower 

and afford him compensatory education services for the time that he was excluded from 

his regular educational setting following his suspension. 

On M.G.’s motion for summary judgment, the superior court affirmed the 

District’s decision to deny M.G. reentry into Eisenhower. The court denied M.G.’s 

motion and dismissed the case. 

M.G. appealed. The District moved to dismiss the appeal as moot. The District

argued that M.G. had left the school system for an extended period of time that exceeded 
No. 101799-5 

6 

20 days, and M.G. thus was no longer an enrolled student. M.G.’s family experienced a 

period of homelessness, leading them to temporarily reside outside the District. M.G. 

then returned and requested to be reenrolled in Yakima Online or an alternative program. 

The Court of Appeals rejected the mootness argument, concluding that M.G. did 

not voluntarily withdraw from Eisenhower but was forced to leave the District during the 

pendency of his appeal from the March 2020 decision denying his return to Eisenhower. 

M.G. v. Yakima Sch. Dist. No. 7, 24 Wn. App. 2d 703, 721, 524 P.3d 670 (2022). By the

time the March decision was made, M.G. returned to Yakima and sought reenrollment in 

Eisenhower. The Court of Appeals further held that it could grant compensatory 

educational services to M.G as an equitable remedy, reversing the superior court and 

noting that none of the exceptions to the statutory and regulatory prohibition against 

indefinite suspensions applied. Id. at 722. Thus, M.G. was indefinitely suspended in 

violation of RCW 28A.600.015(1). Id. at 726. The Court of Appeals did not address 

M.G.’s constitutional right to an education and due process arguments. It also did not

address whether the District discriminated against minority students in applying 

disciplinary rules. 

The District petitioned for review here, which we granted. M.G. seeks to strike 

portions of the District’s responses to the amicus curiae briefs from both the American 

Civil Liberties Union of Washington (ACLU) and Attorneys for Education Rights. 
No. 101799-5 

7 

ANALYSIS 

Questions of statutory construction are reviewed de novo. El Centro de la Raza v. 

State, 192 Wn.2d 103, 111, 428 P.3d 1143 (2018) (plurality opinion). “Our fundamental 

objective in construing a statute is to ascertain and carry out the intent of the legislature.” 

Fed. Way Sch. Dist. No. 210 v. Vinson, 172 Wn.2d 756, 765, 261 P.3d 145 (2011). When 

construing the meaning of a statute, we look to its plain meaning. Dep’t of Ecology v. 

Campbell & Gwinn, LLC, 146 Wn.2d 1, 10, 43 P.3d 4 (2002). If the meaning cannot be 

derived from looking at the language of the statutory text, then we look to related statutes 

and the overarching statutory scheme. Id. 

1. M.G. Was Indefinitely Suspended in Violation of Statutory and Regulatory

Disciplinary Procedures

The parties disagree about how to characterize the decision to exclude M.G. from 

Eisenhower. The District contends it made a placement decision, while M.G. argues that 

the District made a disciplinary decision entitling him to due process protections, which 

the District failed to provide. We agree with M.G. and hold that the District’s decision 

was disciplinary. 

Students who face suspensions are entitled to due process, typically by being 

provided notice of charges and an opportunity to be heard. Goss v. Lopez, 419 U.S. 565, 

581, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). A student’s property interest in educational 

benefits is substantial enough to warrant due process protection. Id. at 576. M.G. argues 

that his constitutional right to due process was violated; however, this court will generally 

avoid constitutional questions when a case can be decided on nonconstitutional grounds. 
No. 101799-5 

8 

See State v. Houston-Sconiers, 188 Wn.2d 1, 18 n.3, 391 P.3d 409 (2017); HJS Dev., Inc. 

v. Pierce County, 148 Wn.2d 451, 469 n.75, 61 P.3d 1141 (2003). Because the

legislature has acted to provide protections, we resolve this case on statutory grounds. 

The statute controlling expulsions and suspensions states, 

(1) The superintendent of public instruction shall adopt and distribute to all

school districts lawful and reasonable rules prescribing the substantive and

procedural due process guarantees of pupils in the common schools. Such

rules shall authorize a school district to use informal due process

procedures in connection with the short-term suspension of students to the

extent constitutionally permissible: PROVIDED, That the superintendent of

public instruction deems the interest of students to be adequately protected.

. . . An expulsion or suspension of a student may not be for an indefinite

period of time.

(2) Short-term suspension procedures may be used for suspensions

of students up to and including, 10 consecutive school days. 

(3) Emergency removals must end or be converted to another form

of corrective action within ten school days from the date of the emergency 

removal from school. Notice and due process rights must be provided 

when an emergency expulsion is converted to another form of corrective 

action. 

(4) School districts may not impose long-term suspension or

expulsion as a form of discretionary discipline. 

RCW 28A.600.0151

 (emphasis added). As noted, M.G. was removed from Eisenhower 

on an emergency basis. About two weeks later, that emergency removal was converted 

to a long-term suspension in accordance with RCW 28A.600.015(3). A hearing officer 

affirmed the suspension on appeal. M.G.’s suspension was set to end, and he was set to 

return on a specific date. 

1

 After accepting review of this case, RCW 28A.600.015 was amended in 2023 to use the term 

“removal” instead of “expulsion” in .015(3). Since the amendments to the statute do not affect 

the outcome of our decision, we cite to the current version of the statute.
No. 101799-5 

9 

M.G. argues that after the long-term suspension was imposed, the District was

required to create a culturally responsive reengagement plan2

 and failed to do so. M.G. is 

correct. The District was required to convene a meeting with the student and the 

student’s parents or guardians within 20 days of the student’s long-term suspension. See

RCW 28A.600.022(1) (“School districts must convene a meeting with the student and the 

student’s parents or guardians within twenty days of the student’s long-term 

suspension.”). The District did not do so here. 

Instead, when M.G. attempted to return after his suspension ended, the District 

informed M.G. that he would not be allowed to return to Eisenhower. No hearing 

occurred regarding this decision. 

After M.G.’s transfer requests were denied, he demanded to return to Eisenhower. 

The District denied this request via e-mail, citing M.G.’s refusal to change the alleged 

gang-associated hairstyle and M.G.’s behavior that had ultimately resulted in his 

suspension. The reason for the denial was disciplinary in nature, and no new disciplinary 

proceeding had been initiated against M.G. regarding the stated reasons for the denial. 

Nor was M.G. afforded a hearing for the decision denying his request to return to 

Eisenhower. 

2

 RCW 28A.600.022(1) concerns reengagement plans and explains, “School districts must 

convene a meeting with the student and the student’s parents or guardians within twenty days of 

the student’s long-term suspension or expulsion, but no later than five days before the student’s 

enrollment, to discuss a plan to reengage the student in a school program. Families must have 

access to, provide meaningful input on, and have the opportunity to participate in a culturally 

sensitive and culturally responsive reengagement plan.”
No. 101799-5 

10 

As the Court of Appeals correctly pointed out, if the District sought to extend the 

suspension, it could have done so by petitioning the District superintendent to extend the 

expulsion under WAC 392-400-480. We agree that a school district has the authority and 

the duty to make decisions to ensure the safety of its students. However, the legislature 

has put in place procedural safeguards to ensure students are provided due process when 

these kinds of decisions are made that greatly impact their education. In this case, the 

District was limited to following the conditions outlined in WAC 392-400-430 regarding 

student disciplinary matters and failed to do so. 

WAC 392-400-430(8) states, 

(a) An expulsion or suspension of a student may not be for an

indefinite period of time and must have an end date. 

(b) If a school district enrolls a student in another program or course

of study during a suspension or expulsion, the district may not preclude the 

student from returning to the student’s regular educational setting 

following the end date of the suspension or expulsion, unless: 

(i) The school district superintendent or designee grants a petition to

extend a student’s expulsion under WAC 392-400-480; 

(ii) The student is excluded from the student’s regular educational

setting in accordance with WAC 392-400-810; or 

(iii) The student is otherwise precluded under law from returning to

the student’s regular educational setting. 

(Emphasis added.) The District conceded below that none of the exceptions listed under 

WAC 392-400-430(8)(b)(i)-(iii) apply here. Nevertheless, the District argues that this 

was a discretionary placement decision based on safety concerns and that RCW 

28A.320.015(1) grants to a school board broad discretionary power to address safety 

concerns.3

 The District also points to Yakima District Policy 3131, which it claims 

3

 Under RCW 28A.320.015, 
No. 101799-5 

11 

establishes its right and responsibility to consider safety when it makes enrollment and 

placement decisions. We disagree. 

The plain reading of WAC 392-400-430(8)(b) demonstrates that the District was 

required to allow M.G. to return to his regular educational setting upon the conclusion of 

his suspension. Furthermore, RCW 28A.320.015(1)(a) makes clear that school boards 

may not adopt written policies that conflict with other laws. If the District were allowed 

to rely on Policy 3131 to justify M.G.’s exclusion, it would conflict with RCW 

28A.600.015 and WAC 392-400-430 because M.G.’s suspension was meant to end after 

12 days. By framing the denial of M.G.’s return to Eisenhower as an enrollment or 

placement decision, the District essentially sidesteps the procedural due process 

protections afforded to students under chapter 28A.600 RCW and WAC 392-400. 

Agreeing with the District would undermine the legislature’s intent as expressed in RCW 

28A.600.015 to “[r]educe the length of time students of color are excluded from school 

due to suspension and expulsion and provide students support for reengagement plans.” 

FOURTH SUBSTITUTE H.B. 1541, at 2, 64th Leg., Reg. Sess. (Wash. 2016). If the District 

had additional behavior concerns to justify a continued suspension, it was required to 

(1) The board of directors of each school district may exercise the following:

(a) The broad discretionary power to determine and adopt written policies

not in conflict with other law that provide for the development and 

implementation of programs, activities, services, or practices that the board 

determines will: 

. . . . 

(ii) Promote the effective, efficient, or safe management and operation of

the school district.
No. 101799-5 

12 

follow the substantive and procedural limitations prescribed by RCW 28A.600.015-.022 

and WAC 392-400-480. 

The District characterizes M.G.’s claim as arguing for a right to an education in 

the school of his choice and cites cases such as Parents Involved in Community Schools v. 

Seattle School District No. 1, 149 Wn.2d 660, 72 P.3d 151 (2003). Pet’r’s Suppl. Br. at 

2. But that case involved the denial of students’ preferred choice of school, not

placement related to discipline. M.G.’s case is different. He is not seeking to attend a 

school he was never enrolled in; rather, he sought to be returned to his regular 

educational setting, as set out in WAC 392-400-430, at the conclusion of his suspension. 

Further, the District’s enrollment of M.G. in Yakima Online did not control whether 

M.G. was entitled to return to Eisenhower. RCW 28A.600.015(8) requires school

districts to provide an opportunity for students to receive educational services during their 

suspension, but those services are not a substitute for the student’s placement following 

suspension. 

The Court of Appeals correctly concluded that M.G. was indefinitely suspended 

and was entitled to return to his regular educational setting following the conclusion of 

his suspension absent further disciplinary action permitted by statute. We affirm that 

decision. 

2. M.G.’s Statutory Remedy

M.G. appealed the District’s decision preventing M.G. from reenrolling at

Eisenhower under chapter 28A.645 RCW and sought declaratory relief allowing him to 
No. 101799-5 

13 

return to Eisenhower and to provide him with compensatory education. See ch. 7.24 

RCW. While chapter 28A.645 RCW is silent as to remedies, the UDJA provides for 

equitable relief. RCW 7.24.080. M.G.’s supplemental briefing argues that in light of this 

silence, a court should be able to craft equitable relief if it determines that there has been 

a statutory violation. M.G. further argues that compensatory education should be an 

equitable remedy under the UDJA and chapter 28A.645 RCW. 

When no adequate legal remedy exists, a court may exercise its equitable powers 

to grant equitable relief. Orwick v. City of Seattle, 103 Wn.2d 249, 252, 692 P.2d 793 

(1984) (finding that the superior court had jurisdiction to grant equitable relief where the 

petitioners alleged that there were system-wide violations of mandatory statutory 

requirements by a municipal court). Where a statute provides a right of recovery, it is 

incumbent on the court to devise a remedy. State v. Manuel, 94 Wn.2d 695, 699, 619 

P.2d 977 (1980); see also Beggs v. Dep’t of Soc. & Health Servs., 171 Wn.2d 69, 78, 247

P.3d 421 (2011).

Considering the silence on remedies within the school disciplinary statutes and 

regulations, as well as the statute authorizing appeals from school board decisions to the 

superior court, we remand this case to the trial court to determine, in its discretion, the 

type of equitable relief to which M.G. is entitled. See ch. 28A.645 RCW; ch. 28A.600 

RCW; ch. 392-400 WAC. It will be for the trial court to decide what relief is an 

appropriate remedy for the District’s statutory violations. This remedy may include 

compensatory education as discussed below. 
No. 101799-5 

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3. Compensatory Education as an Equitable Remedy

The District claims the Court of Appeals erred when it held that M.G. was not 

precluded from seeking compensatory education as an equitable remedy. It argues that 

there is no precedent to support the award of compensatory education to students who 

voluntarily absent themselves and choose not to avail themselves of educational services. 

Moreover, it contends that compensatory education is limited to students who have not 

received Free and Appropriate Education (FAPE) under the Individuals with Disabilities 

Education Act (IDEA), Pub. L. No. 101-476, 104 Stat. 1142.4

 

M.G. argues that when the right to education is denied, a meaningful remedy is

necessary, and therefore, M.G. requested equitable relief in the form of compensatory 

education under the UDJA. M.G. seeks to earn his high school diploma or GED (general 

equivalency diploma) and suggests the District provide him with a one-to-one teacher. 

We hold that compensatory education is a form of equitable relief available to M.G. for 

the violation of rights created by the educational statutes discussed above. 

Compensatory education seeks to “make up for ‘educational services the child 

should have received in the first place.’” R.P. ex rel. C.P. v. Prescott Unified Sch. Dist., 

4 The District also argues that M.G.’s claim for compensatory education is moot since he left the 

District and that he failed to exhaust administrative remedies for purposes of establishing a claim 

for compensatory educational services. These two arguments are not convincing. M.G. returned 

to the District during the pendency of the appeal and did not abandon his request for enrollment. 

Continuity of residence cannot be a prerequisite to the grant of compensatory education since it 

would allow school districts to stop providing required services with the goal of inducing the 

student to move out of the district. D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 

497 (3d Cir. 2012). Therefore, M.G.’s claim for compensatory education is not moot. Since 

M.G. was not seeking compensatory education under any disabilities act, he was not required to

exhaust remedies.
No. 101799-5 

15 

631 F.3d 1117, 1125 (9th Cir. 2011) (quoting Reid ex rel. Reid v. Dist. of Columbia, 365 

U.S. App. D.C. 234, 401 F.3d 516, 518 (2005)). Trial courts have “‘broad discretionary 

power to fashion equitable remedies.’” Borton & Sons, Inc. v. Burbank Props., LLC, 196 

Wn.2d 199, 206, 471 P.3d 871 (2020) (quoting In re Foreclosure of Liens, 123 Wn.2d 

197, 204, 867 P.2d 605 (1994)). Here, the Court of Appeals acknowledged that the 

equitable remedy of compensatory education is most often awarded in the context of 

special education litigation but held the remedy was not limited to cases involving special 

education. See Milliken v. Bradley, 433 U.S. 267, 282, 97 S. Ct. 2749, 53 L. Ed. 2d 745 

(1977) (holding that the district court did not abuse its discretion in ordering 

compensatory educational programs for schoolchildren who had been subject to de jure 

segregation); Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 778 F.2d 

404, 408 (8th Cir. 1985) (finding that compensatory and remedial programs were 

potential remedies for children who attended segregated schools). The District cites no 

authority to support its claim that compensatory education is available only to a student 

who has not received FAPE under the IDEA. 

The essence of a court’s equity power lies in its inherent ability to adjust remedies 

in a practical way to redress injuries resulting from a denial of a constitutional right. 

Freeman v. Pitts, 503 U.S. 467, 487, 112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992). We hold 

that compensatory education is a form of equitable relief available to those who have 

been denied the rights guaranteed under the state’s educational statutes and remand this 
No. 101799-5 

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case for the trial court to consider an appropriate remedy, which may include 

compensatory education. 

4. M.G’s Constitutional Right to an Education

Washington’s constitution provides that it is the State’s duty to “make ample 

provision for the education of all [resident] children.” WASH. CONST. art. IX, § 1. It is a 

positive constitutional right that does not constrain government action but, rather, 

requires it. McCleary v. State, 173 Wn.2d 477, 519, 269 P.3d 227 (2012). We look to 

“whether the state action achieves or is reasonably likely to achieve ‘the constitutionally 

prescribed end.’” Id. (quoting Helen Hershkoff, Positive Rights and State Constitutions: 

The Limits of Federal Rationality Review, 112 HARV. L. REV. 1131, 1137 (1999)). The 

word “education” consists of the opportunity to obtain the knowledge and skills described 

in case law and legislatively enacted education goals but does not reflect a right to a 

guaranteed educational outcome. Id. at 525-26. 

M.G. contends that the education he was receiving after his enrollment at Yakima

Online was so deficient that it was unconstitutional. He claims that the District violated 

his right to an education when it moved him to an online program without appropriate 

academic support, without core classes for basic education, without needed technology, 

and without a culturally competent reengagement plan. The District denies this and 

claims that M.G. was unsuccessful due to his own failure to consistently attend classes. 

The District also urges us to adopt a “total exclusion” standard used by other jurisdictions 

to determine whether a student’s right to education has been violated. Under the total 
No. 101799-5 

17 

exclusion standard, students are deprived of their right to education only when they are 

totally excluded from the educational process. See A.V. v. Plano Indep. Sch. Dist., 585 F. 

Supp. 3d 881, 894 (E.D. Tex. 2022) (noting that courts will look at whether a student has 

been totally excluded from the educational process to determine if their right to an 

education has been violated). 

Whether Yakima Online was sufficiently comparable to the regular educational

services at Eisenhower was not litigated below. Without a sufficient record, it is difficult 

to determine whether M.G. was provided with the opportunity for an adequate education. 

Moreover, because we remand for the trial court to determine an equitable remedy for 

statutory violations, we decline to address this issue. 

5. M.G.’s Motion To Strike

Finally, M.G. moves to strike portions of the District’s briefing. We grant M.G.’s 

motion, in part. 

M.G. moves to strike sections of the District’s response briefs to amici curiae.

M.G. contends the District violated RAP 10.3(a)(5). RAP 10.3(a)(5) states that a

reference to the record “must” be included for each factual statement. This appellate rule 

concerns briefs of the appellant or petitioner—that is, briefs on the merits. The contested 

briefs here are not merits briefs, they are answers to an amici. On its face, RAP 

10.3(a)(5) does not apply. 

The rule addressing answers to amici curiae briefs says only that they “should” be 

limited to new matters raised in the amici brief. RAP 10.3(f). Generally, all briefing to 
No. 101799-5 

18 

this court should provide citation to the record. See Hurlbert v. Gordon, 64 Wn. App. 

386, 400, 824 P.2d 1238 (1992) (stating that the purpose underlying RAP 10.3(a)(5) and 

related rules is to “efficiently and expeditiously” allow the court and opposing counsel to 

review the accuracy of the facts and relevant legal authority). Specific record citations 

are not expressly required in a party’s answer to amici, and the District largely cures that 

failure by providing citations in its opposition to the motion to strike. RAP 10.4(f) 

(“Reference to Record. A reference to the record should designate the page and part of 

the record.” (emphasis added) (boldface omitted)). 

Those record citations, however, do not support all of the challenged portions of 

the District’s briefing. See Dep’t of Labor & Indus. v. Lanier Brugh, 135 Wn. App. 808, 

822-23, 147 P.3d 588 (2006) (presenting facts outside the record is inappropriate for

consideration under RAP 9.1’s requirements for the composition of the record).5

 

Therefore, we strike two portions of the District’s answer to amicus curiae of the 

ACLU that were not part of the record. 

First, on page 15 of the District’s answer, M.G. asks us to strike the paragraph 

beginning, “There was no evidence produced in any prior . . . .” Resp. to Br. of ACLU of 

WA Found. at 15. This paragraph references gang-style haircuts, wearing of gang colors, 

and potential for gang violence. The record supports all but one statement in this 

5

 Though we have at times taken judicial notice of facts outside the record provided by amicus, 

e.g., New Meadows Holding Co. v. Washington Water Power Co., 102 Wn.2d 495, 502, 687 P.2d

212 (1984), no party in the present case has asked us nor would it be proper to do so here. See

Cameron v. Murray, 151 Wn. App. 646, 658-59, 214 P.3d 150 (2009) (noting courts may take

judicial notice of facts outside the record if they meet the criteria under ER 201 or if they are

considered legislative facts).
No. 101799-5 

19 

paragraph—that “M.G. is a well-known member of the Norteño gang.” Id. The record 

does not appear to support this assertion. 

Similarly, the second statement sought to be struck is on pages 17 to 18 of the 

District’s answer. M.G. seeks to strike the paragraph starting, “The decision to not allow 

M.G. among the general population . . . .” Id. at 17. This paragraph discusses the

ACLU’s assertion that M.G.’s gang affiliation was “perceived,” while the District 

contends it was “real gang” activity. Id. at 17-18. The District’s support for its claim that 

M.G. engaged in real gang activity and is a well-known gang member appears to come

from a motion in the Court of Appeals. In the court below, the District moved to dismiss 

the case as moot; it included declarations stating that after his suspension, M.G. was 

subsequently involved in a gang shooting where he shot and killed a rival gang member 

and was the target of retaliation. Here, the District’s reference to these facts is not 

connected to mootness, which was the original rationale for allowing the facts into 

evidence at the Court of Appeals. If the District wished to rely on these facts outside the 

context of mootness, it should have moved to supplement the record under RAP 9.11. It 

did not. Accordingly, these facts exist outside the record and thus the motion to strike is 

granted in part. RAP 10.7. 

CONCLUSION 

 The District’s refusal to allow M.G. to return to Eisenhower was a disciplinary 

decision. RCW 28A.600.015(1) and WAC 392-400-430(8) outline the procedures that 

must be followed when subjecting students to disciplinary suspensions. We hold that the 
No. 101799-5 

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District failed to follow these procedures, violating M.G.’s right to due process and 

effectively indefinitely suspending M.G. from Eisenhower where he was entitled to 

return. We further find that compensatory education is a potential equitable remedy for 

violations of student disciplinary statutes and regulations. Accordingly, we affirm the 

Court of Appeals and remand to the superior court to determine the appropriate remedy. 

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Madsen, J.

WE CONCUR: 

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