IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MERCER ISLAND SCHOOL

DISTRICT,

Respondent,

OFFICE OF THE SUPERINTENDENT

OF PUBLIC INSTRUCTION, a state

agency,

Defendant,

N.W. and R.W., on behalf of B.W., a

minor child,

Appellants.

DIVISION ONE

No. 71419-8-1

PUBLISHED OPINION

FILED: April 13, 2015

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Dwyer, J. — In 2010, our legislature passed a law prohibiting racial

discrimination in Washington public schools. In doing so, the legislature directed

the Office of Superintendent of Public Instruction (OSPI) to enforce and obtain

compliance with its nondiscrimination mandate. Subsequently, in May 2011, the

OSPI engaged in formal rulemaking pursuant to this directive. As part ofthis, the

OSPI authorized an administrative enforcement procedure and indicated that

compliance with relevant federal civil rights law would constitute compliance with

the legislature's nondiscrimination mandate. Shortly thereafter, in February

2012, the OSPI articulated a specificcompliance standard without reference to
No. 71419-8-1/2

federal law. Our task is to determine the proper compliance standard in

administrative enforcement proceedings in this interim period.

This task is set against the backdrop of an administrative enforcement

proceeding against the Mercer Island School District, initiated as a result of its

allegedly improper response to several incidents of student-on-student peer

racial harassment. Following an administrative hearing, the OSPI—through its

designee administrative law judge—concluded that the District had displayed

"deliberate indifference" to the incidents ofracial harassment and had, thereby,

failed to comply with the legislature's 2010 nondiscrimination mandate. The

District filed an administrative appeal in King County Superior Court, which

resulted in reversal ofthe OSPI's decision. We now reverse the superior court

and reinstate the OSPI's decision.

I

During the 2011-12 school year, B.W. was subjected, on two occasions, to

peer racial harassment.1 At the time, B.W. was in seventh grade at Islander

Middle School—a public school within the Mercer Island School District (the

District). It was B.W.'s first year attending school in the District. His parents,

N.W. and R.W. (collectively Parents), had relocated their family to Mercer Island

from out of state. B.W.'s father, N.W., is white; B.W.'s mother, R.W., is black.

B.W. had been diagnosed with Asperger's syndrome and Attention Deficit

Hyperactivity Disorder. Because of these diagnoses, B.W. had, in his previous

1Our factual account is based, almost exclusively, on the thorough and comprehensive factual findings entered by Michelle Mentzer, the administrative law judge who presided over the

administrative hearing in this matter.
No. 71419-8-1/3

school district, participated in an individualized education program. However,

aftera one weektrial period with a similar program in the District, the Parents

chose to discontinue B.W.'s participation. They did so because the program

offered by the District required B.W. to leave the general education classroom in

order to participate.

The two incidents ofracial harassment took place in October2011. Both

occurred in B.W.'s social studies class, which was taught by Jan Brousseau.

The first incident occurred on October 5. On thatday, B.W. wasworking

on a group project—referred to as "Rock Around Washington"—with three other

boys—Students A, B, and C. Student Awas "saying cruel things" directly to B.W.

and was whispering "in hushed tones to [Student B]." When B.W. "offered an

idea about the project," Student Atold him, "Shut up, you stupid Black."

Once class had ended, B.W., who was in tears, told Brousseau that

"[Student A] was being mean." Brousseau "said that she would handle it."

Brousseau had noted a great deal of conflict in the group, including between

B.W. and Student A. In fact, she considered it to be the most dysfunctional

group she had ever educated. Brousseau placed most of the blame for the

conflict on B.W.

Later that day, B.W. and Student Awere seen by a teacher, Brody

LaRock, throwing crab apples at one another while waiting for the school bus.

B.W. told LaRock that he had thrown the crab apple because Student Ahad not

listened to his ideas in class that day. LaRock directed the boys to report to his

office the following day. Student Afilled out an incident report and was

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No. 71419-8-1/4

disciplined with a one-day in-school suspension. B.W., however, was out of town

with his family, and so LaRock referred the matter to Mary Jo Budzius, a coprincipal, for further action.

On October 10, B.W. told his Parents that Student Ahad told him, "Shut

up, you stupid Black." The Parents had previously scheduled a meeting with

Brousseau and Budzius for October 11; yet, upon hearing what Student Ahad

said to B.W., R.W. e-mailed both Brousseau and Budzius to inform them that she

had an additional issue to discuss with them. At the October 11 meeting, the

Parents told Brousseau and Budzius what Student Ahad said totheir son.

Although Budzius believed that B.W. had heard the word "Black," she did

"not know whether he heard it with his ears, or only in his own mind." Despite

her skepticism, Budzius spoke with Student Athe day after meeting with the

Parents. Student Aadmitted calling B.W. "stupid" but denied calling him "stupid

Black." Budzius talked to Student Aabout not using race asthe basis for angry

comments and had him sign an "anti-harassment contract." Budzius also

distributed a behavior contract to Student A's teachers concerning inappropriate

interactions with his peers.

Budzius decided not to question Students Bor C.2 She made this

decision for several reasons. First, she "reasoned [that Student A] would not lie

about calling [B.W.] 'stupid Black'" because Student Ahad already admitted to

calling B.W. "stupid." Second, she believed that, owing to Asperger's syndrome,

2By choosing not to question Students Band C, Budzius failed to meet the District's

minimum investigative requirements.

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No. 71419-8-1/5

B.W. struggled to read social cues. In fact, Budzius believed that the source of

conflict between B.W. and Student A was attributable to B.W.'s social deficits.

Like B.W., Student A was new to the District. In his brief time in the

District, Student A had, on multiple occasions, engaged in disruptive behavior. In

fact, when District staffcontacted Student A's mother concerning the crab apple

incident, it was the third time in that week alone that she had been contacted

regarding her son's behavioral issues. Indeed, his behavior had been sufficiently

troubling that hewas the subject, on October 12, of a Building Guidance Team

meeting—a group composed of various educators, administrators, and mental

health professionals that meets to plan support for students in need of support,

whetheracademic or otherwise. Notably, the meeting was unrelated to the

allegation of racial harassment.

The second incident took place on October 25. On thatday, the classwas

studying ethnic diversity and tolerance. B.W.'s group was discussing "people

from Mexico," Mexican culture, and Mexican food. "[Student A] again began

saying cruel and derisive things to [B.W.]." B.W. ignored Student A's remarks

until Student Asaid that B.W. "crossed the border from Mexico" and Student B

said that B.W. was "'exported' from Mexico." B.W. responded by asking Student

B, "'Why don't you make me a croissant for 25 cents, you French jackass?'"

Student B is of French heritage.

Following class, LaRock noticed B.W. crying in the lunch room. LaRock

invited B.W. to talk in LaRock's office. After being told by B.W. what had

happened, LaRock had B.W. fill out an incident report. LaRock then asked

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No. 71419-8-1/6

building administrators to address the matter.

Aaron Miller,3 a co-principal, investigated the second incident on the day it

occurred. He conducted brief interviews of all five students, including B.W., who

had been in the same small group. Each interview lasted around 10 minutes.

While none of the other four students mentioned the remarks made by Students

Aand Bto B.W., all four said that they heard B.W.'s remark to Student B. Nearly

two months later, Student Arevealed that the group had been discussing "people

from Mexico," Mexican culture, and Mexican food. However, he did not disclose

that information to Mr. Miller. When Mr. Miller finished these interviews, he

e-mailed the Parents to inform them ofthe incident and his investigation.

R.W. responded to Mr. Miller's message the following day. She reminded

Mr. Miller that this incident was the second time that Student Ahad targeted her

son on the basis ofrace. She also asked to file a formal complaint.

In response to R.W.'s request to file a formal complaint, Mr. Miller sent her

a "Harassment/Bullying Report Form." This form, which was no longer used by

the District, directed the complainant to select either an "informal" complaint,

which would be investigated by Islander Middle School, or a "formal" complaint,

which called for an investigation by the District. Yet, Mr. Miller was already

conducting an informal investigation.

On October 27, Budzius wrote to all of B.W.'s teachers, inquiring whether

they had experienced problems with B.W.'s behavior in their classrooms. Two of

3We refer herein to Aaron Miller as Mr. Miller and Rachel Miller (an attorney retained by the District) as Ms. Miller, in an effort to avoid the confusion that would follow from referring to

them only by their common surname.

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No. 71419-8-1/7

B.W.'s teachers responded to say that, while B.W. did have some behavioral

issues, they did not raise significant concerns. Budzius did not similarly inquire

about Student A's behavior. This was in spite of the fact that, in his first two

monthsin the District, Student A had displayed significant behavioral problems

on multiple occasions, which prompted District staff to respond by holding a

Building Guidance Team meeting. As previously noted, Budzius believed that

the source of conflict between B.W. and StudentAwas attributable to B.W.'s

social deficits.

Also on October 27, Budzius asked Harry Brown, a counselor, to provide

assistance to B.W. with social skills. However, Budzius did not ask Brown to

provide counseling to B.W. regarding the incidents of racial harassment or a

disturbing essay, written by B.W., that she had received two days earlier. Brown

contacted R.W. for the purpose of inviting B.W. to join "Boys' Council"—a

program for students in need of assistance developing social skills. Brown did

not share with the Parents the reason for the invitation. Subsequently, the

Parents asked Brown not to have further contact with B.W. because he had not

been forthcoming with regard to his reasons for inviting B.W. to participate in

"Boys' Council."

Between October 25 and 28, District Superintendent Dr. Gary Piano made

his monthly site visit to Islander Middle School. The focus of this particular visit

was B.W. During his visit, Piano observed B.W. in order to assess his

interactions with others. Piano did not, however, observe Student A. Piano also

did not observe the class in which both alleged incidents had taken place.

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No. 71419-8-1/8

Following his observation ofB.W., Piano asked the District's director ofspecial

education to prepare a letter for him concerning B.W.'s initial special education

status in the District and the Parents' subsequent withdrawal of consent for

special education.

On October 31, Mr. Miller sent a report of his investigation to the Parents.

Although he did not find support for B.W.'s allegations, he nonetheless outlined a

series of"Next Steps" that the school would take in order to prevent future

discrimination: (1) a paraeducator would be placed in Brousseau's class; (2)

Brousseau and Brown would develop a curriculum on diversity and

multiculturalism for Brousseau's class; (3) the school would begin its annual antibullying and anti-harassment program for all students in November 2011 ;4 (4) the

school administration would contact all parents and work with families to clarify

its expectations with regard to appropriate interactions between students; and (5)

Brown would work with B.W. and Student Aindividually.5 Mr. Miller e-mailed his

report to the Parents and attached the obsolete "Harassment/Bullying Report

Form" that he had previously sent to R.W. on October 26.6

Omitted from Mr. Miller's report was any mention of a troubling sequence

of events. On October 25, B.W. had submitted an essay (hereinafter Moment

Essay) for the "Rock Around Washington" project. Therein, B.W. described a

4This presentation did not occur until the end of February 2012. The focus of the

presentation was harassment based on sexual orientation.

5Brown, as previously noted, contacted B.W.'s Parents on October 27. There is no

evidence that Brown worked with Student A. . eBy failing to consider the two incidents together, Mr. Miller failed to meet the Districts

minimum investigative requirements.

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No. 71419-8-1/9

violent accident occurring to Student A: "[Student A] was ranting at me as usual,

then, a Fed Ex truck squealed into the driveway and hit [StudentA] just as he

turned around." As a result of the accident, B.W. wrote that Student A "'would be

mentally challenged for the rest of his short life.'" B.W. concluded the essay by

saying, "Today was the best day of my life."

When Brousseau received the Moment Essay, she immediately shared it

with Budzius, who then shared it with Mr. Miller. However, none ofthem

informed the Parents ofthe essay's disquieting contents; nor did they discussit

with B.W. Instead, Brousseau returned the Moment Essay to B.W. with the

following notation: "THE CONTENT OF THIS PAPER IS NOT IN KEEPING W/

THE NATURE OF THIS PROJECT WHERE BAND MEMBERS ARE TO

RESPECT, SUPPORT &ENCOURAGE OTHER BAND MEMBERS[.]"7

Subsequently, on November 7, Brousseau corrected another "Rock

Around Washington" essay (hereinafter Kennewick Essay) submitted by B.W.

Although Brousseau corrected the Moment Essay before the Kennewick Essay,

B.W. had, in fact, submitted the Kennewick Essay prior to the Moment Essay. In

the earlier Kennewick Essay, B.W. described a violent accident occurring to

Student A, which left him hospitalized for 24 hours. The nature of the accident in

both essays was quite similar, though the consequences were more severe in

the second essay. Rather than informing the Parents of the Kennewick Essay's

disturbing contents or speaking with B.W., Brousseau gave the essay 8out of 20

7The ALJ noted that "Brousseau often writes in all capital letters when correcting

papers."
No. 71419-8-1/10

possible points for failing to include many of the required elements for the

assignment. Although Brousseau e-mailed the Parents on November 7 and

asked them to encourage B.W. to rewrite the Kennewick Essay, she still did not

provide them with a copy of the essay or inform them that it had included a

discussion of a violent accident involving Student A, who had allegedly targeted

B.W. twice on the basis of race.

On November 15, the Parents met with Brousseau and the co-principals

regarding the incidents of racial harassment and B.W.'s progress in Brousseau's

class. At that meeting, Brousseau insisted that the dysfunction within the "Rock

Around Washington" group had not affected B.W.'s grades in her class.

Additionally, the Parents were not informed of the two disturbing essays written

by B.W.

That night, B.W. brought the Kennewick Essay home and the Parents

read it. The next day, R.W. e-mailed Brousseau, the co-principals, and Piano.

She wrote that the Kennewick Essay was "disturbing" and "read like a cry for

help." She stated that B.W.'s failure to observe the assignment's scoring rubric,

as well as his resultant low grade on the essay, contradicted Brousseau's

insistence at the previous day's meeting that B.W.'s grades had not suffered as a

result of the discord within his "Rock Around Washington" group. R.W. also

questioned how Mr. Miller's report could have failed to mention the Kennewick

Essay, given that the essay was used as avehicle to express B.W.'s aversion to

his alleged harasser.

Instead of responding to R.W., Brousseau e-mailed Budzius and Mr. Miller

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No. 71419-8-1/11

the following:

Just so you know all the facts. What [the Mother] and [the Father]

are reacting to is the ... expository paragraph in which [StudentA]

gets hurt. This is NOT the . . . narrative that Igave to you which

was wayworse and had [Student A] mentally retarded at the end.

What the [Parents] have in their hands was supposed to be an

expository paragraph on a city in WA. Icorrected his "moment"

paperfirst by about a week and only realized that in the expository

paragraph he was revisiting the same issue. [The Student] would

have written the expository paragraph first and then the "moment"

paper which is the exact opposite of how Icorrected them.

Therefore, my reaction to the second writing was probably stronger

because I had already read the first, nastier paper. The [Parents]

have NOT seen the "moment" paper. They will probablythink that

it is double the evidence of his harassment, but Isee it as double

the meanness. Iwill put a copy of both papers in yourboxtoday.

Do I bring this up with the [attorney] investigator?

Budzius was surprised to learn that Brousseau had not provided the

Parents with a copy of the Moment Essay. Nonetheless, Budzius still did not

disclose to the Parents the existence ofthe Moment Essay. Budzius chose not

to reveal this information to the Parents because she was concerned thatthey

would make the conversation about her, as had happened in the past, rather

than focusing on B.W.

In Mr. Miller's two responses to Brousseau's November 16 e-mail, he

acknowledged that, contrary to Brousseau's assertions, B.W.'s negative

relationship with Student Amay have affected B.W.'s performance, including his

grades, in Brousseau's class. In fact, B.W. earned his lowest grades in

Brousseau's class. Shortly after the two incidents ofracial harassment,

Brousseau reported that B.W. was testing in the "C" and "D" range. By the end

of the first trimester, he received a "C" in her social studies class. He earned

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No. 71419-8-1/12

"A's" and "B's" in his other classes.

On November 1, after receiving Mr. Miller's report, the Parents filed a

complaint on behalf of B.W. Piano issued a decision on November 4 under the

District's Harassment, Intimidation, and Bullying policy. Piano concluded that Mr.

Miller's investigation of the October 25 incident was "sufficiently thorough in its

scope and intensity" and included appropriate preventative measures, despite

finding no corroboration of B.W.'s allegations. However, because the Parents

wanted an investigation to be conducted under the District's Nondiscrimination

Policy and Procedure, and because their complaint included two incidents, Piano

stated his desire to have an attorney conductthe investigation.

Piano represented to the Parents that Rachel Miller, the attorney chosen

to conduct the investigation, was an "outside attorney" and an "unbiased

observer" who would work on behalf of all those involved. However, Piano did

not inform the Parents that Ms. Miller was a partner in a law firm that regularly

served asthe District's legal representative. Piano also did not inform the

Parents that, in the event that they appealed his decision, that law firm would

represent the District.

On November 4, the Parents contacted the OSPI's Equity and Civil Rights

Office and learned of their rights under Washington law, which the District had

failed to include in its Nondiscrimination Policy and Procedure. The Parents then

appealed Piano's November 4decision to the District board of directors.

However, noting the existence of Ms. Miller's ongoing investigation under the

Nondiscrimination Policy and Procedure, the board of directors denied the

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No. 71419-8-1/13

Parents' appeal.

On November 29, Ms. Miller issued a report on her investigation, in which

she found no support for B.W.'s allegations. On November 30, Piano adopted

Ms. Miller's report as the basisfor finding against the Parents under the District's

Nondiscrimination Policy and Procedure.

While Ms. Miller's interviews were significantly more thorough than those

that were conducted by Budzius and Mr. Miller, Ms. Miller still omitted significant

facts from her report and failed to consider important matters in her conclusions.

• Ms. Miller's report did not address the fact that three students involved in

the first incident had said that StudentA had used racial slursin reference

to B.W., including "stupid Black," "Brownie," and "Indian." Ms. Miller had,

herself, elicited statements from Students Band Cthat Student Ahad

referred to B.W. as "Brownie" and "Indian."

• Ms. Miller's report contained no analysis of the two disturbing essays and

did not reference them in the conclusions.8 Despite interviewing B.W., Ms.

Miller, did not ask him why he wrote about the injuries to Student A.

Despite speaking with both Budzius and Mr. Miller, Ms. Miller did not ask

why they failed to speak with B.W. about the essays or offer him

counseling. Furthermore, she did not consider whether the essays tended

to corroborate B.W.'s allegations ortended to show a substantial

interference with B.W.'s educational environment. Finally, she failed to

sThe essays were, however, appended to Ms. Miller's report. In fact, the Parents first

learned of the Moment Essay by reviewing Ms. Miller's report.

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No. 71419-8-1/14

consider whether the District's decision not to disclose the existence of the

essays to the Parentstended to show that the District improperly handled

their complaint.

• Ms. Miller's report failed to consider whether the precipitous drop in B.W.'s

grades in Brousseau's class constituted evidence that the racial

harassment had had an adverse effect on his educational environment.

• Ms. Miller's report did not address the contextual connection between the

discussion ofMexico and Mexican food in Brousseau's class on the day of

the second incident (a fact that had come to light as a result ofher

interview with Student A) and B.W.'s version ofthe events that followed.

• Ms. Miller did not measure the District's actions against the standards

imposed by statute and regulation. She also failed to observe that the

District's Nondiscrimination Policy and Procedure, which purportedly

governed her investigation, was not in compliance with applicable law.

Thus, she also did not address whether the District's failure to comply with

applicable law affected its handling of B.W.'s complaint, or the Parents'

ability to pursue their grievance promptly and properly.

In a later attempt to explain the aforesaid omissions, Ms. Miller

characterized the scope of her inquiry as being limited to fact finding. Yet, in her

report, Ms. Miller went beyond fact finding: indeed, she drew conclusions asto

whether the evidence ofracial slurs was substantial and consistent; whether

there was a severe or persistent effect on B.W.'s educational environment; and

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No. 71419-8-1/15

whether the District's actions in response to the Parents' complaintwere

adequate to ensure a positive educational environment.

It was also so that, even during the course ofMs. Miller's investigation,

members of the District staff continued to focus on B.W. as the source ofthe

problem. For instance, when Mr. Miller was interviewed by Ms. Miller, he told her

about B.W.'s special education history and his "behavioral challenges." Mr. Miller

did not, however, tell Ms. Miller about Student A's behavioral issues.

Additionally, Mr. Miller selected one teacher—in addition to Brousseau—for Ms.

Miller to interview. This teacher, Natasha Robsen, had had negative experiences

with B.W. Yet, Mr. Miller did not direct Ms. Miller to any of B.W.'s other teachers

with whom he had had more positive experiences. Moreover, Mr. Miller did not

direct Ms. Miller to any of Student A's teachers—some of whom had had

negative experiences with Student A.

Upon reading Ms. Miller's report—including an attached written statement

from Brousseau containing negative comments about B.W.—the Parents

immediately transferred B.W. out of Brousseau's class. The Parents had

previously asked Miller and the board of directors whether Student Acould be

transferred rather than having to transfer B.W. Although Mr. Miller had told the

Parents that he would follow up with them regarding their request, he did not do

so.

After transferring out of Brousseau's class, B.W. earned "A's" throughout

the school year. His new teacher, Alexis Guerriero, who was unaware of the

harassment complaint throughout her time teaching B.W., reported that he turned

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No. 71419-8-1/16

his work in on time, showed an eagerness to learn, and behaved well in general.

The few behavioral issues that arose were quickly corrected and were not

thereafter repeated.

On December 16, the Parents appealed Piano's November 30 decision to

the District board ofdirectors. The board ofdirectors found that the District's

policies and procedures had not been violated and that there was no significant

evidence thatB.W. had been subject to harassment ordiscrimination. It

therefore ruled against the Parents.

On February 2, 2012, the Parents filed an appeal with the OSPI pursuant

to former WAC 392-190-075 (2011).9 The OSPI, in turn, designated the Office of

Administrative Hearings (OAH) to hear and issue a final decision. The OAH

appointed Administrative Law Judge (ALJ) Michelle Mentzer to hear the appeal.

Ahearing was held over the course of several days in the summer of

2012.10 The Parents did not retain counsel. The District was represented by Ms.

Miller's law firm.

During the hearing, the District focused on B.W.'s behavioral problems

and history of receiving special education. In fact, the District sought to offer into

evidence 18 exhibits concerning B.W.'s special education history.11 The District's

strategy was consistent with the response of its staff to B.W.'s allegations, which

had been to attribute responsibility for any discord to B.W.'s social deficits.

9This provision required the OSPI to conduct a formal administrative hearing. " In May 2012 the District brought its Nondiscrimination Policy and Procedure into

compliance with chapters 28A.642 RCW and 392-190 WAC. Italso-appointeela nondiscrimination compliance coordinator, asrequired by chapter 392-190 WAC.

11 Only twowere admitted.

16
No. 71419-8-1/17

On October 15, 2012, ALJ Mentzer issued an order, in which she made

findings offact and drew conclusions oflaw. The ALJ found it more likely than

not that B.W. was the target of racial slurs in both reported incidents. The ALJ

further found that the District had failed, during the course of its investigations, to

consider numerous facts relevant to B.W.'s allegations. The ALJ also found that,

although the District had outlined a series of "Next Steps" in response to B.W.'s

allegations, the District had failed to implement them all.

The ALJ proceeded to consider the effects of the District's failure to

comply with chapters 28A.642 RCW and 392-190 WAC. In doing so, the ALJ

made the following pertinent findings:

Based on the formal and tenacious manner in which the

[Parents] have approached this case, it is found that they may have

pursued the following steps if District policies and procedures had

complied with the law. The District's non-compliance with the law

deprived them of these opportunities. They may have immediately

contacted the District's nondiscrimination compliance coordinator

upon hearing their son's reports and requested a District-level,

rather than a building-level investigation. If the District had

truthfully informed them of its relationship with [its law firm], the

[Parents] may have requested that either the compliance

coordinator oran unaffiliated law firm conduct the investigation; and

may have declined to allow their son to be interviewed by [the

District's law firm]. ADistrict-level investigation—whether by the

nondiscrimination compliance coordinator or an attorney

investigator—would likely have been more thorough than Ms.

Budzius' and Mr. Miller's quick and inadequate investigations. A

District-level investigation would more likely have included

interviews of Students B and C. The racial slurs they disclosed might have come to light during the two weeks that intervened

between October 11th (when the first incident was reported) and

the second incident on October 25th. Much ofthe turmoil [B.W.]

experienced during the month of October, as evidenced by his

disturbing essays and poor LASS grades, and the further turmoil of

experiencing the second incident, might have been avoided had the

District adequately investigated the first incident and taken

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No. 71419-8-1/18

appropriate steps to discipline Student A, instead oftaking steps

based on the assumption that [B.W.] heard a racial slur in his mind,

but not necessarily with his ears.

ALJ Mentzerthen reflected upon the appropriate standard for assessing

the District's response to B.W.'s allegations. In doing so, she noted thatthis

court had, in the case ofS.S. v. Alexander, 143 Wn. App. 75, 177 P.3d 742

(2008), "provided guidance on the legal standard to be used in cases of studenton-student discriminatory harassment." After examining our decision in SJL,

which involved a private action for the recovery of money damages under Title IX

of the Education Amendments of 1972, the ALJ adopted the standard applied in

that case, which extends liability to instances wherein a school district in receipt

of federal funds has actual notice of peer sex discrimination and yet responds

with "deliberate indifference." See SJL, 143Wn. App. 75.

Applying the "deliberate indifference" standard, the ALJ concluded that

"the District's actions were clearly unreasonable in light of known circumstances"

and, thus, constituted deliberate indifference. These actions included the

following: failing to update the District's Nondiscrimination Policy and Procedure

as required by law; failing to appoint a nondiscrimination compliance coordinator

asrequired by law; inadequately investigating each incident; inadequately

disciplining Student Afor his role in each incident; failing to complete the "Next

Steps" listed in Mr. Miller's report; failing to disclose the Moment Essay to the

Parents; failing to consider either the Moment Essay or the Kennewick Essay in

any of the investigations; focusing on B.W. and his social deficits as the reason

for his conflict with Student A; disregarding evidence that corroborated B.W.'s

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No. 71419-8-1/19

allegations; misrepresenting to the Parents that Ms. Miller was an outside

attorney working for all partiesinvolved; and adopting Ms. Miller's report, which

omitted relevant facts and reached unjustified conclusions.

By way of relief, the ALJ ordered the District to provide at least six hours

oftraining to its nondiscrimination compliance coordinator and at leastthree

hours oftraining to all District principals and assistant principals concerning the

requirements of chapters 28A.640 RCW, 28A.642 RCW, and 392-190 WAC.12

The ALJ also ordered the District to continue its annual presentations to middle

schools students regarding harassment, intimidation, and bullying, and to ensure

that harassment on the basis of race and ethnicorigin would be addressed.

The District exercised its right of appeal to the King County Superior

Court. It did not, however, challenge the factual findings ofALJ Mentzer.

Instead, the District maintained that the facts found did not support the legal

conclusion that it had been deliberately indifferent tothe incidents ofracial

harassment. In opposing the District's superior court appeal, the Parents were

again without counsel.

The superior court agreed with the District and, on December 9, 2013,

reversed ALJ Mentzer's decision.

The Parents now appeal from the superiorcourt's order.

12 Set forth in these chapters are rules and regulations meant to eradicate discrimination

in Washington public schools on the basis of sex, race, and other characteristics.

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No. 71419-8-1/20

The "deliberate indifference" standard was applied both in the

administrative hearing and on administrative appeal in superior court.

Represented by counsel, the Parents now assert thatthis standard was

inappropriate. The proper standard, they contend, was that which is used by the

United States Department ofEducation's Office ofCivil Rights in administrative

enforcement proceedings under Title VI of the Civil Rights Act of 196413

(hereinafter OCR Standard). We agree. Because the Parents elected to pursue

relief through an administrative enforcement process, the OCR Standard—as the

federal counterpart of the procedure chosen by the Parents—was the proper

standard.

A

We review the ALJ's decision underthe standards set forth in chapter

34.05 RCW, the Washington Administrative Procedure Act (WAPA). Gradinaru

v.Dep't ofSoc.& Health Servs., 181 Wn. App. 18, 21, 325 P.3d 209, review

denied, 181 Wn.2d 1010 (2014). "In reviewing an agency's order, the appellate

court sits in the same position asthe superior court." City of Seattle v. Pub.

Fmn't Relations Comm'n, 160Wn. App. 382, 388, 249 P.3d 650 (2011).

Accordingly, our review is "limited to the record of the administrative tribunal, not

that of the trial court." Citv of Seattle, 160 Wn. App. at 388. Because the parties

have not challenged the facts asfound by the ALJ, we treat those findings as

13 42 U.S.C. §§ 2000d to 2000d-7.

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No. 71419-8-1/21

verities on appeal. Dep't of Labor &Indus, v. Allen, 100 Wn. App. 526, 530, 997

P.2d 977 (2000).

"The process of applying the law to the facts ... is a question of law and is

subject to de novo review." Tapper v. State Emp't Sec. Dep't. 122 Wn.2d 397,

403, 858 P.2d 494 (1993). "Where an administrative decision involves a mixed

question of law and fact, 'the court does not try the facts de novo but it

determines the law independently of the agency's decision and applies it to facts

asfound by the agency.'" Citv of Seattle, 160 Wn. App. at 388 (quoting Renton

Educ. Ass'n v. Pub. Emp't Relations Comm'n. 101 Wn.2d 435, 441, 680 P.2d 40

(1984)). In reviewing questions of law, we may substitute our own determination

for that of the agency. Citv of Seattle. 160 Wn. App. at 388. "We will reverse if

the [agency] 'erroneously interpreted or applied the law.'" Gradinaru, 181 Wn.

App. at 21 (quoting RCW 34.05.570(3)(d)).

B

In 2010, our legislature passed the equal education opportunity law

(EEOL). Laws of 2010, ch. 240. The EEOL forbids discrimination in Washington

public schools on the basis of "race, creed, religion, color, national origin,

honorably discharged veteran or military status, sexual orientation including

gender expression or identity, the presence of any sensory, mental, or physical

disability, or the use of a trained dog guide or service animal by a person with a

disability." RCW 28A.642.010. The EEOL was necessary, the legislature found,

because although "numerous state and federal laws prohibit discrimination on

other bases in addition to sex, the common school provisions in Title 28A RCW

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No. 71419-8-1/22

do not include specific acknowledgement of the right to be free from

discrimination because of race " RCW 28A.642.005.

The EEOL was not conceived in a void—rather, its enactment came in the

wake oftwo prior legislative undertakings. The first was the formation ofan

advisory committee "to craft a strategic plan to address the achievement gap for

African-American students." Lawsof 2008, ch. 298, § 2. The second was the

formation ofthe Achievement Gap Oversight and Accountability Committee, the

purpose of which was "to synthesize the findings and recommendations from the

2008 achievement gap studies into an implementation plan, and to recommend

policies and strategies to the superintendent of public instruction, the

professional educator standards board, and the state board of education to close

the achievement gap." Laws of 2009, ch. 468, § 2.

The legislature found "that one of the recommendations made to the

legislature by the [Achievement Gap Oversight and Accountability Committee]

... was that the [OSPI] should be specifically authorized to take affirmative steps

to ensure that school districts comply with all civil rights laws, similar to what has

already been authorized in chapter 28A.640 RCW with respect to discrimination

on the basis of sex." RCW 28A.642.005. Heeding this recommendation, the

legislature delegated to the OSPI the power to enforce and obtain compliance

with the EEOL "by appropriate order made pursuant to chapter 34.05 RCW."

RCW 28A.642.050. The OSPI was also authorized to enforce and obtain

compliance with any rules and guidelines that it adopted under the EEOL. RCW

28A.642.050. As a means of obtaining compliance, the OSPI was permitted to

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No. 71419-8-1/23

terminate funding, eliminate programs, institute corrective action, and impose

sanctions.14 RCW 28A.642.050. The legislature did not set forth a standard for

compliance with the EEOL but, rather, directed the OSPI to "establish a

compliance timetable, rules, and guidelines for enforcement ofthis chapter."

RCW 28A.642.030.

i

In May 2011, the OSPI promulgated rules pursuant tothis directive. See

former ch. 392-190 WAC (2011). Significantly, though, the OSPI did not

articulate its own standard for compliance with the EEOL. Instead, it made

known that "compliance with relevant federal civil rights law should constitute

compliance with those similar substantive areas treated in this chapter "

Former WAC 392-190-005 (2011).

In February 2012, the OSPI issued guidelines interpreting both the EEOL

and its own rules. Thistime, the OSPI articulated a specific standard for

compliance with the EEOL. "A school district is responsible for addressing

discriminatory harassment about which it knows or reasonably should have

known." OSPI. Prohibiting Discrimination in Washington Public Schools at 32

(Feb. 2012).15 "A school district must take prompt and appropriate action to

investigate or otherwise determine what occurred." OSPI, supra, at 33. "If an

investigation reveals that discriminatory harassment has occurred, the school

14 Tnese enforcement mechanisms were illustrative, rather than enumerative. See RCW

28A.642.050.

15 Available at http://www.k12.wa. us/Equity/pubdocs/ProhibitingDiscriminationlnPubhcSchools.pdf#cover.

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No. 71419-8-1/24

district must take prompt and effective steps reasonably calculated to end the

harassment, eliminate any hostile environment and its effects, and prevent the

harassment from recurring." OSPI, supra, at 33. "Discriminatory harassment

creates a hostile environment when the conduct is sufficiently severe, pervasive,

or persistent so as to interfere with or limit a student's ability to participate in or

benefitfrom the services, activities, or opportunities offered by a school district."

OSPI, supra, at 32.

In October 2014, the OSPI amended its own rules. In doing so, it

embraced the compliance standard set forth in its 2012 guidelines.

(1) For purposes ofadministrative enforcement ofthis

chapter... a school district or public charter school violates a

student's rights regarding discriminatory harassment. . . when the

following conditions are met:

(b) The alleged conduct issufficiently severe, persistent, or

pervasive that it limits ordenies a student's ability to participate in

or benefit from the school district's or public charter school's course

offerings, including any educational program or activity (i.e., creates

a hostile environment); and

(c) The school district or public charter school, upon notice,

fails to take prompt and appropriate action to investigate orfails to

take prompt and effective stepsreasonably calculated to end the

harassment, eliminate the hostile environment, prevent its

recurrence, and, as appropriate, remedy its effects.

(2) For purposes ofadministrative enforcement ofthis

chapter... the [OSPI] deems a school district or public charter

school to have notice of discriminatory harassment if a reasonable

employee knew, orin the exercise of reasonable care should have

known, about the harassment.

WAC 392-190-0555.

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No. 71419-8-1/25

Following the OSPI's initial engagement in formal rulemaking in 2011,

individuals seeking to enforce the EEOL's nondiscrimination mandate had at their

disposal two distinct remedial processes: a judicial enforcement process and an

administrative enforcement process.

The judicial enforcement process was constructed bythe legislature. In

the EEOL, the legislature expressly included a private right of action and

authorized relief in the form ofdamages: "Any person aggrieved by a violation of

the EEOL or the OSPI's rules or guidelines "has a right of action in superior court

for civil damages and such equitable relief as the court determines." RCW

28A.642.040.

The administrative enforcement process, on the other hand, was a product

of agency rule. As part of its original rulemaking, the OSPI authorized an

administrative complaint procedure. See former WAC 392-190-065, -070, -075

(2011). This procedure provided: "Anyone may file a complaint with a school

district alleging that the district has violated this chapter." Former WAC 392-190-

065.16 Complainants were given the right to appeal a school district decision to a

school district board ofdirectors. Former WAC 392-190-070. If still unsatisfied,

complainants could appeal to the OSPI. Former WAC 392-190-075. The OSPI

16 In May 2011, the OSPI also mandated that the superintendent of each school district

"immediately" designate a nondiscrimination compliance coordinator. Former WAC 392-190-060

(2011) Acompliance coordinator was to be responsible for investigating any complaints filed

pursuant to former WAC 392-190-065 (2011). However, as found by ALJ Metzner, the District did

not appoint a compliance coordinator until May 2012—after the Parents initiated administrative

enforcement proceedings.

25
No. 71419-8-1/26

would then be required to conduct a formal administrative hearing in

conformance with the WAPA.17'18 Former WAC 392-190-075.

iii

What are we to make of this flurry of legislative and regulatory activity?

Unfortunately, the regulatory activity thatwould be ofmost use in determining the

proper standard for compliance with the EEOL in administrative enforcement

proceedings postdated the events in dispute, leaving us with limited guidance in

resolving an issue that is unlikely to resurface, given that the OSPI hassince

interpreted, and then amended, its own regulations. Nonetheless, because the

events occurred at the time thatthey did, we are left with the task ofdetermining

the proper standard in the intervening months between the OSPI's original

rulemaking in May 2011 and the guidelines it subsequently issued in February

2012. During this period, the OSPI's guidance was limited to the following:

"compliance with relevant federal civil rights law should constitute compliance

with those similar substantive areas treated in this chapter " Former WAC

392-190-005. Accordingly, we turn ourattention tofederal civil rights law:

namely, Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7,

and Title IX ofthe Education Amendments of 1972, 20 U.S.C. §§ 1681 to 1688.

17 The OSPI could delegate its authority to render a final decision to an ALJ, which it did

in this matter. Former WAC 392-190-075. .

18 This procedure was altered in 2014. As a result, the OSPI is no longer required to

conduct a formal administrative hearing and can no longer delegate its authority to render a final

decision. Instead, the OSPI, upon receipt of an appeal, is permitted—but not required—to investigate the matter itself. WAC 392-190-075. Following an investigation, the OSPI must make

an independent determination of compliance or noncompliance and must issue awritten decision

to the parties that addresses the allegations in the complaint and any other noncompliance issues

uncovered during the investigation. WAC 392-190-075.

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No. 71419-8-1/27

C

Title VI provides that "[n]o person . .. shall, on the grounds ofrace, color,

or national origin, be excluded from participation in, bedenied the benefits of, or

be subjected to discrimination under any program or activity receiving Federal

financial assistance." 42 U.S.C. § 2000d. Similarly, Title IX provides that "[n]o

person ... shall, on the basis of sex, be excluded from participation in, be denied

the benefits of, or be subjected to discrimination under any education program or

activity receiving Federal financial assistance." 20 U.S.C. § 1681(a).

Notwithstanding the fact that only racial harassment has been alleged in this

matter, both Titles VI and IX are significant to our analysis because the United

States Supreme Court "has interpreted Title IX consistently with Title VI." Barnes

v, Gorman. 536 U.S. 181, 185, 122 S. Ct. 2097, 153 L Ed. 2d 230 (2002).

Titles VI and IX, both of which were enacted pursuant to Congress's

power under the Spending Clause,19 "operate in the same manner, conditioning

an offer of federal funding on a promise by the recipient not to discriminate, in

what amounts essentially to a contract between the Government and the

recipient of funds." Gebser v. Lago Vista Indeo. Sch. Dist., 524 U.S. 274, 286,

118 S. Ct. 1989, 141 L. Ed. 2d. 277 (1998); see generally Jackson v. Birmingham

Bd.ofEduc. 544 U.S. 167, 181, 125 S. Ct. 1497, 161 L Ed. 2d 361 (2005);

Guardians Ass'n v. Civil Serv Comm'n of Citv of New York, 463 U.S. 582, 598-

99, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983). "When Congress acts pursuant to

its spending power, it generates legislation 'much in the nature of acontract: in

19 U.S. Const, art. I, § 8, cl. 1.

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No. 71419-8-1/28

return forfederal funds, the States agree to comply with federally imposed

conditions.'" Davis ex rel. LaShonda P. v. Monroe Countv Bd. of Educ. 526 U.S.

629,640, 119 S. Ct. 1661, 143 L FH 9rl 839 (1999^ (quoting Pennhurst State

Sch. &Hosp. v. Halderman, 451 U.S. 1, 17, 101 S. Ct. 1531, 67 L Ed. 2d 694

(1981)); see also Guardians. 463 U.S. at 599 ("The mandate of Title VI is '[v]ery

simple. Stop the discrimination, get the money; continue the discrimination, do

not get the money.'" (alteration in original) (quoting 110 Cong. Rec. 1542 (1964)

(Rep. Lindsay))). "In interpreting language in spending legislation," the Supreme

Court "insis[t][s] that Congress speak with a clear voice,' recognizing that '[t]here

can, of course, be no knowing acceptance [of the terms of the putative contract] if

a State is unaware of the conditions [imposed by the Congress] oris unable to

ascertain what is expected of it.'" Davis, 526 U.S. at640 (some alterations in

original) (quoting Pennhurst. 451 U.S. at 17).

i

"The express statutory means of enforcement [of Titles VI and IX] is

administrative," Gebser, 524 U.S. at 280 (emphasis added), which is to say that

both statutes are enforced by federal departments and agencies that condition

receipt of federal funding upon compliance with statutory nondiscrimination

mandates. See 42 U.S.C. § 2000d-1 (authorizing certain federal departments

and agencies to enforce the nondiscrimination mandate of Title VI); 20 U.S.C. §

1682 (authorizing certain federal departments and agencies to enforce the

nondiscrimination mandate of Title IX).

28
No. 71419-8-1/29

The United States Department of Education is one such department. The

task of ensuring thatrecipients of United States Department ofEducation funding

are in compliance with Titles VI and IX has been left tothat department's Office

of Civil Rights (OCR). To that end, the OCR hassetforth detailed standards for

compliance with Titles VI and IX. Failure to comply with these standards may

trigger administrative enforcement proceedings, which may result in a cessation

of United States Department of Education funding.

Generally speaking, the OCR will find a school district to be in violation of

Title VI when it fails to respond appropriately to instances of peerracial

harassment—of which it had actual or constructive notice—that are sufficiently

severe, pervasive, or persistent so as to interfere with or limit a student's ability to

participate in or benefit from the services, activities, or opportunities offered by a

school.20 See "Dear Colleague Letter"21 from Russlynn Ali, Assistant Sec'y for

Civil Rights, U.S. Dep't of Educ. (Oct. 26, 2010) (hereinafter Racial Harassment

Letter).22

In more specific terms, a school receives notice of peer racial harassment

"if a responsible employee knew, or in the exercise of reasonable care should

20 Asimilar standard is used in the Title IX context: "If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX

requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects." "Dear Colleague Letter" from Russlynn Ali, Assistant Sec yfor Civil

Rights, U.S. Dep't of Educ, at4 (April 4, 2011). Available at

htto//www2 ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf. ,_,..*» 21 "Dear colleague letters are guidance documents written to educational administrators

that explain the OCR's legal positions and enforcement priorities." Matthew R. Tnplett, Note, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process

and Victim Protection. 62 Duke L.J. 487, 488 n.5 (2012). on-in-in^f 22 Available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf.

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No. 71419-8-1/30

have known, about the harassment." Racial Harassment Letter at 2 n.9.23

"Harassment creates a hostile environment when the conduct is sufficiently

severe, pervasive, orpersistent so asto interfere with or limit a student's ability to

participate in or benefit from the services, activities, or opportunities offered by a

school." Racial Harassment Letter at 2. Once a school has actual or

constructive notice ofpeerracial harassment, "it must take immediate and

appropriate action to investigate or otherwise determine what occurred." Racial

Harassment Letter at 2. While "specific steps in a school's investigation will vary

depending" on a number of factors, every investigation "should be prompt,

thorough, and impartial." Racial Harassment Letter at 2. "If an investigation

reveals that discriminatory harassment has occurred, a school must take prompt

and effective steps reasonably calculated to end the harassment, eliminate any

hostile environment and its effects, and prevent the harassment from recurring."

Racial Harassment Letter at 2-3.

ii

While there is evidence that Congress assumed a private right of action

could be brought under both statutes, Cannon v. Univ. of Chicago, 441 U.S. 677,

699-701, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979), Congress did not, in either

statute, expressly supplement the administrative enforcement apparatus with a

23 The OCR has used the actual or constructive notice inquiry for some time. See, e^,

Racial Incidents and Harassment Aoainst Students atEducational Institutions: Investigative Guidance 59 Fed. Reg. 11448, 11450 (March 10, 1994) ("If discriminatory conduct causes a racially hostile environment to develop that affects the enjoyment of the educational program, for the student(s) being harassed, and if the recipient has actual or constructive notice of the hostile

environment, the recipient is required to take appropriate responsive action. )

30
No. 71419-8-1/31

private right ofaction. Nevertheless, the Supreme Court has held that both

statutes are enforceable through an implied private right of action. See Cannon.

441 U.S. at 703: see generally Alexander v. Sandoval. 532 U.S. 275, 279-80,

121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001) (observing that "[t]he reasoning of

fCannonl embraced the existence of a private right to enforceTitle VI as well" as

Title IX). In judicially implying a private right of action, the Court recognized that

the administrative procedure for terminating federal financial support is "severe

and often may not provide an appropriate means of protecting individual citizens

against discriminatory practices "if merely an isolated violation has occurred."

Cannon, 441 U.S. at 704-05. Hence, the Court determined that an implied right

of action was "fully consistent with—and in some cases even necessary to—the

orderly enforcement" of Titles VI and IX. Cannon, 441 U.S. at 705-06.

Subsequently, in Franklin v. Gwinnett Countv Public Schools. 503 U.S. 60,

73-76, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992), the Supreme Court "clarified]

that damages were available as aTitle IX private action remedy." S^, 143 Wn.

App. at 94; cf Barnes. 536 U.S. at 185 (observing that "monetary damages were

available" under Title IX "[a]nd the Court has interpreted Title IX consistently with

Title VI").

In summary, the Supreme Court implied a private right of action under

both statutes in Cannon and subsequently authorized relief in the form of

damages in Franklin. And yet, in Franklin, the Court recognized that liability

under both statutes could be constrained by the source of the power pursuant to

which they had been enacted. See 503 U.S. at 74 (considering whether

-31 -
No. 71419-8-1/32

Spending Clause statutes authorize monetaryawards for intentional violations);

accord S.S.. 143 Wn. App. at 95. Above all, the Court was troubled by the

prospect ofa recipient offederal funds being held liable for the payment of

damages without receiving the requisite notice. See Franklin. 503 U.S. at 74

("The point of not permitting monetary damages for an unintentional violation is

thatthe receiving entity offederal funds lacks notice that it will be liable for a

monetary award."); accord S.S.. 143 Wn. App. at 95. However, because the

"notice problem" did not arise in Franklin—which involved teacher-student sexual

harassment—the Court did not, at thattime, "purport to define the contours" ofa

school district's liability for teacher-student sexual harassment. Gebser, 524 U.S.

at 281.

"The Supreme Court revisited the relationship between Title IX and

teacher-student sexual harassment six years later [in Gebser]." SJL, 143 Wn.

App. at 95. The Gebser Court refused to hold a school district liable for teacherstudent sexual harassment on the basis of traditional tort theories of liability:

namely, those of constructive notice and respondeat superior. In doing so, the

Court adopted a stringent standard for imposing liability on school districts in

receipt of federal funds, which is often referred to as the "deliberate indifference"

standard.24

24 This was a familiar standard. It was introduced by the Supreme Court in the context of

claims for cruel and unusual punishment in violation of the Eighth Amendment. See Estelle y Gamble 429 US 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). It was subsequently adopted for

claims under [42 U.S.C] § 1983 alleging that a municipality's actions in failing to prevent a

deprivation of federal rights was the cause of the violation." Gebser, 524 U.S. at 291.

32
No. 71419-8-1/33

In Gebser. the Court determined that it would be inconsistent with

the Spending Clause origins ofTitle IX to impose damages liability

on funding recipients based on principles of constructive notice or

respondeatsuperior liability. Gebser. 524 U.S. at 285. Instead, the

Court concluded, "that damages may not be recovered

. . . unless an official of the school district who at a minimum has

authority to institute corrective measures on the district's behalf has

actual notice of, and is deliberately indifferent to, the teacher's

misconduct." Gebser. 524 U.S. at 277. The Court stated this rule

more broadly later in the opinion:

[A] damages remedy will not lie under Title IX unless

an official who at a minimum has authority to address

the alleged discrimination and to initiate corrective

measures on the recipient's behalf has actual

knowledge ofdiscrimination in the recipient's

programs and fails adequately to respond.

Gebser, 524 U.S. at 290.

S.S.. 143 Wn. App. at 95-96.

The effect ofGebserwas to establish the liability standard in private

actions for the recovery of damages predicated upon teacher-student sexual

harassment and brought pursuant to Title IX. The Court did not atthat time,

however, determine whether the same standard would be applicable to instances

of peer sexual harassment.

The following year, the Court examined "the interplay between peer

(student-on-student) sexual harassment and Title IX [in Davis]." SJL, 143 Wn.

App. at 96. In Davis, the Court extended the "deliberate indifference" standard to

instances of peer sexual harassment, concluding that "recipients may be liable

for their deliberate indifference to known acts of peer sexual harassment." 526

U.S. at 648. In reaching this conclusion, the Court made clear that "funding

recipients are deemed 'deliberately indifferent' to acts of student-on-student

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No. 71419-8-1/34

harassment only where the recipient's response to the harassment or lack

thereof is clearly unreasonable in light ofthe known circumstances." Davis. 526

U.S. at 648.

D

Although, admittedly, our lengthy explication of state and federal authority

suggests that the task of determining the proper standard in this matter will be

equally laborious, the truth is much more agreeable: all that remains is to identify

the federal analog to the means of recourse pursued by the Parents in this

matter. See former WAC 392-190-005 ("compliance with relevant federal civil

rights law should constitute compliance with those similar substantive areas

treated in this chapter. . ."). More to the point, we must determine whether the

means of recourse pursued by the Parents finds its Title VI analog in the

judicially implied right of action for the recovery of damages or the administrative

remedial scheme expressly authorized by statute. In doing so, we consider not

only the facially distinctive features of these federal schemes, but also the

underlying policy considerations that gave rise to their existence.

Even though the proceedings before the ALJ and in superior court yielded

contrary results, they were reached through application of the same standard:

"deliberate indifference." Now, on appeal, the Parents contend that the

deliberate indifference standard was inapt. Given that these were administrative

enforcement proceedings, the Parents assert, the proper standard was that

34
No. 71419-8-1/35

which is used by the OCR in administrative enforcement proceedings.25 We

agree.

The Parents had a choice: pursue enforcement of the EEOL's

nondiscrimination mandate through either judicial or administrative means. They

chose the latter.26 The District does not dispute this. Moreover, the Parents did

not seek—and, indeed, could not have obtained—an award of monetary

damages as a result of their administrative enforcement efforts.27 The District

does not dispute this. Consequently, it would seem that the federal analog to the

25 The District contends that the Parents should be judicially estopped from arguing for

reinstatementof the ALJ'sorder on the basis of the OCR Standard. The District maintains that,

were theParents permitted toargue for a more lenient standard, the District would be unfairly

prejudiced andthe Parents would be unfairly benefited. We disagree. "'Judicial estoppel isan equitable doctrine that precludes a party from asserting one

position in a court proceeding and later seeking an advantage by taking a clearly inconsistent

position '" Arkison v. Ethan Allen. Inc.. 160 Wn.2d 535, 538,160 P.3d 13 (2007) (quoting BartleyWilliams v. Kendall. 134 Wn. App. 95, 98, 138 P.3d 1103 (2006)). The doctrine ismeant to

preserve respect for judicial proceedings and to avoid "inconsistency, duplicity, and waste of

time." Anfinson v. FedEx Ground Package Svs.. Inc.. 174 Wn.2d 851, 861, 281 P.3d 289 (2012).

However "[amplication of the doctrine may be inappropriate '"when a party's prior position was

based on inadvertence or mistake. Arkison. 160 Wn.2d at 539 (quoting New Hampshire v.

Maine 532 U.S. 742, 753, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001) (quoting John S. Clark Co.

v Faa'aert &Frieden. PC. 65 F.3d 26, 29 (4th Cir. 1995))). Moreover, "judicial estoppel may be

applied only in the event that a litigant's prior inconsistent position benefited the litigant or was

accepted by the court." Tavlor v. Bell. Wn. App. _, 340 P.3d 951, 958 (2014). Judicial estoppel was not designed as a trap for the unwary. In both proceedings, the

Parents without the assistance ofcounsel, argued that the District had been deliberately indifferent to the racial harassment suffered by their son. More to the point, the Parents argued that they had satisfied a more demanding burden of proof than that which they now, with the

assistance of counsel, propose. The District does not explain what benefit the Parents could

have unfairly gained from having to meet a more demanding burden of proof. In all likelihood, the Parents' prior position was a byproduct of inadvertence ormistakeinfluenced, perhaps, by the manner in which the District, which has been represented by counsel

throughout these proceedings, argued its position. In recognition of this, in recognition of the fact

that we are applying a remedial statute, and because the Parents did not benefit from their prior position, we decline to apply thedoctrine ofjudicial estoppel.

26 The Parentsfollowed the administrative procedure prescribed by the OSPI. Initially, they filed acomplaint with the school district. They then appealed to the school district's board of

directors. Finally, they appealed to the OSPI, which conducted a "formal administrative hearing"

as required by former WAC 392-190-075 (emphasis added). 27 In order to obtain monetary damages, the Parents would have had to bring a private action against the District in superior court, as expressly authorized by the legislature in the

EEOL. RCW 28A.642.040.

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No. 71419-8-1/36

Parents' administrative enforcement efforts lies in the Title VI administrative

enforcement apparatus, meaning the OCR Standard would apply.

The District, however, argues that the OCR Standard is unsuitable. This

is so, it asserts, because the administrative hearing over which ALJ Mentzer

presided constituted a "quasi-judicial review" ofthe District's decision. The

District does not dispute that the Parents availed themselves of the

administrative enforcement procedure authorized by the OSPI; however, it

maintains that the adversarial nature of the administrative hearing is akin to the

judicially implied private right of action for the recovery of money damages under

Title VI, rather than its administrative enforcement apparatus. The District

overplays the significance ofthe ALJ's involvement.

As a consequence of its preoccupation with the adversarial trappings of

the administrative hearing, the District fails to perceive or, perhaps, fully

appreciate, the genesis of the deliberate indifference standard. The concerns

that moved the Supreme Court to adopt the stringent standard of "deliberate

indifference" are not present here. In fashioning a remedy for the implied private

right of action for the recovery of money damages, the Court perceived the need

for a standard that would ensure that recipients of federal funds would be held

liable for money damages only upon receiving proper notice, given that "the

receipt of federal funds under typical Spending Clause legislation is a consensual

matter." Guardians, 463 U.S. at 596. Thus, in Gebser, theCourt required "that

'the receiving entity of federal funds [have] notice that it will be liable for a

monetary award'" before it could be subjected to liability for damages. 524 U.S.

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at 287 (quoting Franklin, 503 U.S. at 74). Nevertheless, where a "funding

recipient engagesin intentional conduct thatviolates the clear terms of the

statute," the Court has held that damages may be awarded. Davis. 526 U.S. at

642. However, liability mustarise as a result of "'an official decision by the

recipient not to remedy the violation.'" Davis, 526 U.S. at 642 (quoting Gebser,

524 U.S. at 290). An official decision not to remedy the violation presupposes

that the recipient had actual knowledge that the violation existed, meaning that

liability may not be imputed to the recipient as a result of actions taken by its

charges or employees. See Davis. 526 U.S. 629; Gebser. 524 U.S. 274.

Notwithstanding the absence of support for the District's position, we wish,

before proceeding further, to dispel any lingering confusion regarding the

erstwhile enforcement procedure availed of by the Parents. In enacting the

EEOL, the legislature directed the OSPI to enforce and obtain compliance with

the EEOL. The legislature did not, however, restrict the means by which the

OSPI could accomplish this directive; presumably, it was left to the OSPI's

discretion. Hence, the OSPI's decision to enlist the aid of individuals and the

OAH in discharging its statutorily mandated duty constituted an unremarkable

exercise of its discretion.28 The OSPI's exercise of its discretion did not,

however, transform an administrative complaint procedure into a private right of

action and it did not transmute administrative recourse into money damages. To

28 The adversarial features of the administrative hearing, in all likelihood, signified a belief

held by the OSPI that such features would promote its objective. While the OSPI may no longer hold this belief, as evidenced by its recent amendments, the fact that it can alter its enforcement

procedure is further indication that the "quasi-judicial" review with which the District takes issue

owed its existence to the OSPI's favor.

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No. 71419-8-1/38

suggest otherwise is to misapprehend the division of labor between the

legislature and the OSPI.

Still, the District warns that, in the event that the OCR Standard is applied

herein, the Parents could argue for res judicata in a civil suit based on the ALJ's

findings. While the District's desire to avoid a money judgment based on

collateral estoppel is no doubt understandable, it is not germane to ourinquiry.

The question ofwhat standard applies in an administrative enforcement

proceeding is not resolved by reference to a conceivable litigation strategy in a

hypothetical lawsuit.

In brief, we conclude that the OCR Standard was the proper standard to

apply. Nevertheless, we consider and apply both standards herein.

Ill

We begin with the standard of deliberate indifference. The Parents

contend that the superior court erred in reversing the ALJ's order. They maintain

that, in addition to violating the OCR Standard, the District's response constituted

deliberate indifference. We agree.

In order to satisfy the deliberate indifference standard, the Parents were

required to establish the following: (1) racial discrimination; (2) knowledge by an

appropriate person of the discrimination; (3) deliberate indifference by the

District; and (4) discrimination that was sufficiently severe, pervasive, and

objectively offensive that it can be said to have deprived the victim of access to

the educational opportunities or benefits provided by the school. See S.S, 143

Wn. App. at 98-117.

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The District does not dispute that B.W. was subjected to peer racial

discrimination and it does not dispute that an appropriate person knew of the

discrimination. Instead, the District maintains that its response to the

discrimination was not deliberately indifferent and that the discrimination was not

sufficiently severe, pervasive, and offensive that it can be said to have deprived

B.W. of access to the educational opportunities or benefits provided by the

District.

A

The District, in asserting that its response was notdeliberately indifferent,

adopts a misguided methodology, which we characterize as a "divide and

conquer" approach. Rather than considering the circumstances as a whole, the

District considers facts in isolation and asserts thatthey do not rise to the level of

deliberate indifference. This approach is at odds with S.S,, wherein we stated

that "[a] funding recipient acts with deliberate indifference when it responds to a

report of a discriminatory act in a manner that is clearly unreasonable in light of

all ofthe known circumstances." 143Wn. App. at 103 (emphasis added) (citing

Davis. 526 U.S. at 629). Stated differently, in considering whether the District's

response constituted deliberate indifference, we "unite and consider."

In S.S., we amassed an array ofdecisionsin which other courts have

found responses to constitute deliberate indifference. The following observations

are based on those decisions. Initially, "An institution's failure to properly

investigate a claim of discrimination is frequently seen as an indication of

deliberate indifference." SJ,, 143Wn. App. at 104. Yet, "Conducting an

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investigation and then doing nothing more may also constitute deliberate

indifference." S.S.. 143 Wn. App. at 105. Indeed, the "failure to meaningfully

and appropriately discipline the student-harasser isfrequently seen as an

indication of deliberate indifference." SJ3,. 143 Wn. App. at 104. Along the same

lines, "treating the abuser and the abused equally has been seen as being

deliberately indifferent to the discriminatory acts." S^S,, 143 Wn. App. at 105.

We begin with the District's informal investigations. As an initial matter,

the District failed to conform in a timely manner to both the mandates of the

EEOL and the OSPI's May 2011 regulations. Specifically, it neglected both to

amend its Nondiscrimination Policy and Procedure to extend coverage to racial

discrimination and to appoint a nondiscrimination compliance coordinator. As a

result ofthe District's failure to amend its Nondiscrimination Policy and

Procedure, the Parents were not aware of their rights atthe time that they filed

their initial complaint on behalf of B.W. As a result of the District's failure to

appoint a compliance coordinator, the co-principals were not informed of the

District's obligations under the EEOL and the OSPI's May 2011 regulations.

The co-principals conducted inadequate investigations. While the

District's failure to appoint a compliance coordinator may, perhaps, be partially to

blame, both Budzius and Mr. Miller failed to follow the procedure under which

they were purporting to investigate. For example, following the first incident,

Budzius interviewed only two of thefour students working together on the same

group project. While Mr. Miller did manage to interview all of the students

involved in the second incident, hefailed to consider the two incidents in concert.

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No. 71419-8-1/41

Thus, as found by ALJ Mentzer, both failed to meet the minimum investigative

requirements imposed by the District's procedure on "Prohibition of Harassment,

Intimidation, and Bullying."

To make matters worse, the reasons Budzius provided for not interviewing

two of the fourstudents were found by the ALJ to be not credible. Budzius stated

that she believed that Student A was telling the truth and had no reason to lie,

whereas she believed that B.W., who has Asperger's syndrome and who,

according to Budzius, had difficulty reading social cues, heard the word "stupid"

but added "Black" in his own mind. However, Budzius could not explain how

B.W.'s condition would affect his ability to hear a racial epithet and accurately

report that which was said.

In addition, Mr. Miller's brief interviews failed to reveal critical facts that

Ms. Miller later uncovered—specifically, thatthe group had been discussing

Mexico, which, asfound by the ALJ, contextualized the remark made by B.W. to

Student B, and gave further credence to B.W.'s allegations. Even more troubling

is the fact that Mr. Miller continued to informally investigate the incident, despite

the fact that R.W. had told him shewished to file a formal complaint, which would

have been handled by the District, as opposed to the school. Although he

continued with his informal investigation, Mr. Miller failed, ultimately, to include in

his report any mention of the Moment Essay. The Moment Essay undeniably

constituted corroborating evidence of B.W.'s allegations. Yet, Mr. Miller did not

address it in his report and the school's staff proceeded to shield it from the

Parents until its existence was disclosed by Ms. Miller.

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As with the informal investigations, the formal investigation was fraught

with inadequacies. Ms. Miller did not ask B.W. about the two disturbing essays

he had written; she did not ask Brousseau, Budzius, or Mr. Miller to explain why

they had withheld the existence of the essays from the Parents; in fact, she made

no mention ofB.W.'s two disturbing essays in her report;29 she did not account

for the conspicuous discrepancy between B.W.'s grades in other classes and his

grades in the class he shared with his harasser; and she did not address the

ostensible connection between the discussion ofMexico and Mexican food and

the racially charged comments between Student A, Student B, and B.W.

In addition to its failure to conduct an adequate investigation, the District

failed to meaningfully and appropriately discipline Student A. In fact, it appears

that the only discipline Student Areceived as a consequence of his acts of racial

harassment was a reminder from Brousseau not to use race as the basis for

angry comments and a request that he sign an "anti-harassment contract."30

Whether this can be characterized as "discipline" is debatable; whether the

response was proportional to the harassment is not.

Furthermore, the District refused to consider any scenario in which B.W.

was not to blame for the conflict with Student A. As found by ALJ Mentzer, the

District's staff believed that the conflict was due to B.W.'s social deficits. They

were frustrated that, because B.W.'s Parents had withdrawn their consent to

29 She did append the essays to her report. Upon reading the report, the Parents

learned, for the first time, ofthe existence ofthesecond essay. _,. u. , a

3° The District suggests that it also disciplined Student Aby suspending him for one day. The record rebuts this suggestion. Student Awas suspended asa consequence of his role in the

crab apple incident.

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No. 71419-8-1/43

allow B.W. access to special education, they were unable to provide B.W. with

assistance in overcoming his perceived social deficits. As a result, they refused

to considerthe possibility that B.W.'s claims of harassment could be legitimate,

despite knowing that Student Ahad had a slew of serious behavior problems.

Considered together, these facts establish that the District's response to

the harassment suffered by B.W was clearly unreasonable. Thus, ALJ Mentzer

did not errin concluding thatthe District was deliberately indifferent. Yet, we

must also considerwhetherthe harassment was sufficiently severe, pervasive,

and objectively offensive so that it can be said to have deprived B.W. of access

tothe educational opportunities or benefits provided by the school.

B

The District contendsthat, even in the event that its response to the

harassment was deliberately indifferent, the Parents failed to show that the

harassment was sufficiently severe, pervasive, and objectively offensive sothat it

can be said to have deprived B.W. of access to the educational opportunities or

benefits provided by the school. According to the District, "The type of harassing

comments Student Amade are the type of remarks that—while likely hurtful—

were the type of non-physical, immature name-calling and teasing that the Davis

Court held to be insufficient to be actionable harassment " Br. of Resp't at

42. We disagree.

Federal courts have distinguished use of "reviled epithet[s]" from the

"simple teasing and name-calling among school children" that the Dayjs Court

suggested would not be actionable in the context of aTitle IX claim. See Zeno v.

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Pine Plains Cent. Sch. Dist.. 702 F.3d 655, 659, 666-67 (2d Cir. 2012)

(concluding that a jury could have found actionable harassment where high

school student attending "a racially homogenous school" was subjected to

"frequent pejorative references to hisskin tone"); DiStiso v. Cook. 691 F.3d 226,

242-43 (2d Cir. 2012) (where kindergarten student allegedly called "blackie" and

"nigger" by peers, "such conduct, particularly use ofthe reviled epithet 'nigger,'

raises a question ofsevere harassment going beyond simple teasing and namecalling"); see also MojTteirojLTemeeJJ^ 158 F.3d 1022, 1034

(9th Cir. 1998) (where African-American ninth grade student called "nigger" by

white children and where that epithet was written on the walls in civics and social

studies classrooms, court ruled that complaint set forth sufficient allegations ofa

racially hostile environment).

That which occurred here went beyond simple teasing or name calling.

StudentA made it clearto B.W. not only that his skin color made him look

physically different from his peers, but that it also was the basis for a lack of

intelligence. "Shut up, you stupid Black" leaves no doubt asto the perceived

cause of a lack of intelligence. Furthermore, because both incidents took place

in the context of a group setting, B.W. was repeatedly humiliated in front of his

peers and reduced to tears. In fact, during the second incident, Student Bjoined

Student Ain taunting B.W. It is not difficult to imagine the emotional toll that

these instances of harassment could take on a seventh grade boy in an

unfamiliar environment. Yet, there is no need to imagine: the emotional stress

suffered by B.W. was evidenced by crying in front of his peers, submitting

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disturbing essays to histeacher who blamed him for the conflict with Student A,

and receiving uncharacteristically low grades. Based on the foregoing, we

determine that the ALJ did not err in concluding that the harassment experienced

by B.W. subjected him to a hostile environment. Nevertheless, we muststill

consider whether the hostile environment deprived B.W. of equal access to

educational opportunities or benefits.

"Under the rule announced in Davis." we observed, "a total bar or

exclusion from educational opportunities need not be demonstrated." S.S., 143

Wn. App. at 114. Instead, "It is the denial of 'equal access to an institution's

resources and opportunities' that is the key." S^S,, 143 Wn. App. at 114 (quoting

Rav v. Antioch Unified Sch. Dist., 107 F. Supp. 2d 1165, 1168 (N.D. Cal. 2000)).

"Educational benefits include an academic environment free from racial hostility."

Zeno. 702 F.3d at 666. A"dropoff' in grades can provide "necessary evidence of

a potential link between" a student's diminished educational opportunities and

harassment experienced. Davis. 526 U.S. at 652.

The ALJ did not err in concluding that B.W. was denied equal access to

his school's educational opportunities or benefits. B.W. wasforced to remain in

the same class with his harasser for a period oftime, which, unsurprisingly,

coincided with B.W.'s poor performance in that class. Indeed, part of B.W.'s poor

performance stemmed from his submission of two essays in which he described

Student Asuffering terrible injuries; in one of these essays, the injury to Student

Aoccurred immediately following an instance of Student Averbally harassing

B.W. B.W.'s poor performance stood in stark contrast to his high achievement in

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his other classes. When B.W. was transferred to a different class, his grades

promptly went up to match his high achievement in his other classes.

In conclusion, the ALJ did not err in holding that the District acted with

deliberate indifference to B.W.'s reports of discriminatory harassment, and

thereby discriminated against him in violation of the EEOL. Yet, unlike theALJ,

we proceed to consider whether, under the OCR Standard, the Parents have

also established a violation of the EEOL.

IV

Unlike the deliberate indifference standard, the OCR Standard requires

that, upon receiving actual or constructive notice of racial harassment, the school

"take immediate and appropriate action to investigate orotherwise determine

what occurred." Racial Harassment Letter at 2. It further requires that every

investigation "should be prompt, thorough, and impartial." Racial Harassment

Letter at 2. Finally, it imposes upon a school the duty to "take prompt and

effective steps reasonably calculated to end the harassment, eliminate any

hostile environment and its effects, and prevent the harassment from recurring."

Racial Harassment Letter at 2-3.

As noted by the District, the OCR Standard is more lenient than the

deliberate indifference standard. Rather than obligating the Parents to show that

the District's response was "clearly unreasonable," the OCR Standard demands

that the District take "immediate and appropriate action to investigate" and

"prompt and effective steps" to "end the harassment."

Under this more lenient standard, and applying the ALJ's factual findings

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to the requirements of this standard, it is abundantly clear that the District's

response violated the EEOL. The District's many missteps, which have been

chronicled herein, need not be revisited in order to conclude not only that the

District failed to take immediate and appropriate action to investigate but that it

failed to take prompt and effective steps to end the harassment, eliminate the

hostile environment, and prevent the harassment from recurring. Therefore,

although we conclude that the District violated the EEOL under both standards,

we hold that itsfailure to abide by the OCR Standard—which is the proper

standard for this administrative enforcement proceeding—was the source of its

EEOL violation. Consequently, we reverse the superiorcourt's order on

administrative appeal and reinstate the decision of the Office of Superintendent

of Public Instruction, as entered by its designee administrative law judge.

47

^9-

We concur:
No. 71419-8-1. Mercer Island School District v. Office of the Superintendant

of Public Instruction. N.W. and R.W. on behalf of R.W.

Verellen, A.C.J, (concurring). I concur in part. I agree that even under the

deliberate indifference standard advocated by the Mercer Island School District (the

District), the Office of Superintendent of Public Instruction's (OSPI) decision should be

affirmed. Specifically, the undisputed findings of fact support deliberate indifference in

the form of the vice principals' incomplete investigations, the failure of teachers and

administrators to meaningfully acknowledge and responsibly act upon B.W.'s

troublesome reaction to the peer-on-peer harassment, and the District's failure to timely

provide important information to B.W.'s parents. Consistent with the undisputed

findings of fact, I also agree these were not merely incidents of teasing and name

calling, and B.W.'s access to educational opportunities was severely impacted.

I write separately because I would end the analysis at this point. For three

reasons, I would not further explore the Office of Civil Rights (OCR) standard and how

or whether it applies during this interim period. First, there is a minimal opportunity to

provide helpful guidance. As detailed in the lead opinion, OSPI guidelines and

regulations went into effect after this administrative hearing. The new OSPI regulation

likely governs any pending case. Second, the legislature and OSPI remain free to

dramatically alter or fine tune the enforcement standards applicable to future cases.

Future standards may or may not include a similar OCR standard discussed in this

appeal. Finally, and most importantly, not far below the surface lurks a potentially

troubling question. Case law in this arena distinguishes between an administrative

action that does not seek money damages and an implied cause of action under Title VI

or Title XI for money damages implicating the federal spending clause. But what is the
No. 71419-8-1/2 (Concurrence)

impact if a student and the student's parents undertake a "purely" administrative action

as a first step, and if successful, then pursue the second step of a claim for money

damages under Title VI or XI asserting that the administrative determination of

discrimination is res judicata in the action for money damages? Would such a two-step

process implicate the spending clause and call into question the standard used to

determine discrimination at the administrative level?1 If this question unfolds in a future

appeal, Iwould prefer to address it under the then-applicable enforcement standards

without any possible misunderstandings or unintended consequences arising from the

alternative arguments the parents have raised in this appeal. Because this appeal may

be resolved narrowly on the deliberate indifference standard, Iwould save any

additional discussion for another day.

1The question is not purely academic. At oral argument, counsel for the parents

and B.W. acknowledged that they have filed a Title VI claim for money damages.