No. 05-166 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 3

_______________________________________ FRANCINE DUPUIS, Petitioner and Appellant,

v. BOARD OF TRUSTEES, RONAN SCHOOL DISTRICT NO. 30, Respondent and Respondent.

______________________________________ APPEAL FROM: District Court of the Twentieth Judicial District, In and for the County of Lake, Cause No. DV 2004-200 The Honorable Deborah Kim Christopher, Judge presiding.

COUNSEL OF RECORD: For Appellant: James Park Taylor, Confederated Salish and Kootenai Tribes, Pablo, Montana For Respondent: Elizabeth A. Kaleva, Attorney at Law, Missoula, Montana

____________________________________ Submitted on Briefs: November 30, 2005 Decided: January 4, 2006 Filed:

______________________________________ Clerk2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Francine Dupuis (Dupuis) appe als from an order of the Tw entieth Judicial District, Lake County, denyi ng her petition for judicial review. We affirm. ¶2 The sole issue on appeal is whether th e Lake County Superint endent of Schools lacked jurisdiction to hear an appeal from a discretionary decision of the Ronan School District Board of Trustees. FACTUAL AND PROCED URAL BACKGROUND ¶3 The Board of Trustees (Board) for the R onan School District. No. 30 (District) held a public hearing on May 5, 2003, on th e continued use of the “Chief” and “Maiden” mascots and the use of certain Native Amer ican symbols on the floor of the Ronan Middle School gymnasium. The District is located entirely within the boundaries of the Flathead Reservation, the current home of th e Confederated Salish a nd Kootenai Tribes. The Board voted five to one in favor of reta ining the mascots for the District despite the objections of the Confederated Salish and Kootenai Tribes, the Ronan Indian Education Committee (IEC), and numer ous Tribal members. ¶4 Dupuis filed an appeal to the Lake C ounty Superintendent of Schools (County Superintendent) alleging that the use of the mascots create s a hostile environment within the District, that the Board impermissibly disregarded inpu t from the IEC, and that the Board failed to act on Dupuis’s request for reconsideration. The District filed a motion to dismiss, arguing that claims of a racially hostile environm ent belong in front of the Montana Human Rights Commission, not the County Superintendent. The District further noted that the District policies at issue did not empower Dupuis to force a3 particular outcome by the Board on the mascot issue and that the District policies did not provide for any mechanism to force reconsideration. The County Superintendent entered an order requiring the parties to submit addi tional information regarding jurisdiction. ¶5 Dupuis filed a brief on jurisdiction and an Amended Notice of Appeal. Dupuis asserted that the Board’s decision violated Ar ticle X, Section 1(2) and Article II, Section 4 of the Montana Constitution, § 20-1-501, MCA, a nd District Policies 2450 and 4150. The County Superintendent issued an orde r finding jurisdiction limited to a factual hearing on whether the District violated the Montana Constitutio n, state law, and District policies in placing names and l ogos on the gymnasium floor that offend the dignity of the IEC, its members, and the Confederated Salish and Koot enai Tribes. The County Superintendent issued this order based on the Amended Notice of Appeal without any input from the District. ¶6 The County Superinte ndent permitted the District to respond to the new arguments raised in the Amended Notice of Appeal before entering a final juri sdiction notice. The District argued in a second mo tion to dismiss that Article II, Section 4 of the Montana Constitution, the individual dignity clause, did not provide an i ndependent basis for Dupuis’s claims, and that it coul d not be used in conjunction wi th Article X, Section 1(2). Further, the District argued that neither Arti cle X, Section 1(2) nor § 20-1-501, MCA, mandate a particular decision by the District regarding cultural heritage. The County Superintendent issued anot her limited order accepting jurisdiction and the District appealed to the State Superintendent of Public Instruction (State Superintendent). ¶7 The State Superintendent reversed the Co unty Superintendent’s jurisdiction order4 after hearing oral argument and held that the claims raised by Dupuis did not give rise to a “contested case” under Montana law. Dupuis filed a petition for judicial review in the Twentieth Judicial District, Lake County. The District Court dismissed the petition for lack of jurisdiction without comment on Janu ary 14, 2005. This appeal followed. STANDARD OF REVIEW ¶8 We review an administrative agency’s c onclusions of law to determine whether the conclusions are correct. Key West, Inc. v. Winkler , 2004 MT 186, ¶ 13, 322 Mont. 184, ¶ 13, 95 P.3d 666, ¶ 13. DISCUSSION ¶9 Dupuis argues that the Bo ard violated Ronan School District Policies 2450 and 4150 by impermissibly disregarding input fro m the IEC and the Confederated Salish and Kootenai Tribes. Dupuis further argues th at Article X, Section 1(2) and Article II, Section 4 of the Montana Constitution an d § 20-1-501, MCA, bestow privately enforceable rights. She asserts that the Board’s decision to continue the use of “Chiefs” and “Maidens” and to place these names and Native American im agery on the Ronan Middle School gymnasium floor violated these rights. Dupuis alleges that the Board’s violation of these rights creates a “contes ted case” within th e meaning of Rule 10.6.102(1), ARM. The District counters th at the constitutional and statutory provisions do not create privately enforceable rights , and thus Dupuis’s claims do not create a “contested case” over which the County Superint endent may exercise jurisdiction. ¶10 A county superintendent’s jurisdiction ov er any appeal from a decision of a board of trustees is limited to those instances involving a “c ontested case.” The administrative5 rules define a “contested case” as “any pro ceeding in which a determination of legal rights, duties or privileges of a party is requ ired by law to be made after an opportunity for hearing.” Rule 10.6.102(1), ARM. A county superintendent does not have jurisdiction over a matter absent a constitutio nal or statutory right to a hearing. Roos v. Kircher Public School Bd. , 2004 MT 48, ¶ 10, 320 Mont. 128, ¶ 10, 86 P.3d 39, ¶ 10. 1. District Policies ¶11 Dupuis argues that the Board’s decision to continue using the “Chiefs” and “Maidens” mascots, despite the objections of the IEC, the Confederated Salish and Kootenai Tribes, and numerous Tribal members, violates Dist rict Polices 2450 and 4150. District Policy 2450 purports to recognize the distinct and unique cultural heritage of Native Americans and to commit the District to working in cooperation with Montana Tribes in implementing educational goals or adopting rules relating to the education of students in the District. District Policy 4150 requires that Indian children be allowed to participate on an equal basis in programs su pported by certain federal funding, and that parents of Indian children be afforded an opportunity to presen t their views on such programs and activities. ¶12 “To be appealable to the County Superintendent the po licy decision at issue must be governed by a statute th at grants an administrative hearing or an interest constitutionally protected by due process must be at stake. . . . When the Legislature intends to provide contested ca se proceedings it enacts a statute stating that there is a right to a hearing.” Roos , ¶ 10, quoting Bland v. Libby School District (1993), OSPI 205- 92, 12 Ed. Law 76. A mere disagreement with a school dist rict does not automatically6 entitle an aggrieved party to a contested case hearing to resolve the disagreement. Roos , ¶ 10. ¶13 Even assuming that the District policies ap ply to the Board’s decision on mascots, the policies by themselves do not confer juri sdiction on the County Superintendent to hear Dupuis’s claims. The District policies require the Board to work co operatively with Tribes and to consider input from Tribes and Indian parents. The Board held a public meeting and considered the opi nions of the IEC, Tribal authorities, and many Indian parents. Although the Bo ard ultimately did not heed these recommendations, disagreement with a Board’s discretionary deci sion does not automatically give rise to a statutory or constitutional right to a hearing and therefore does not rise to the level of a “contested case” within the meanin g of Rule 10.6 .102(1), ARM. Roos , ¶ 10. Similarly, absent a “contested case,” the District policies do not grant the right to an appeal from an unfavorable decision. 2. Section 20-1-501, MCA ¶14 Section 20-1-501, MCA, provides, in part, th at “[i]t is the cons titutionally declared policy of this state to rec ognize the distinct and unique cu ltural heritage of American Indians and to be committed in its educationa l goals to the preservation of their cultural heritage.” Dupuis asserts that § 20-1-501, MCA, creates a privately enforceable right, and that the Board’s decision to continue us ing mascots that are degrading and offensive to the dignity of Native students and the Confederated Salish and Kootenai Tribes violates this right. ¶15 Nothing in this statute provides, howeve r, for a right to a hearing before the7 County Superintendent if an aggrieved party believes that a school district has violated this provision of Montana law. A county superintendent do es not have jurisdiction to hear a matter absent a constitutional or statutory right to a hearing. Roos , ¶ 10. We therefore agree with the State Superintendent and the District Court that nothing in § 20- 1-501, MCA, confers jurisdiction on the County Superintendent. 3. Montana Constitution ¶16 Dupuis alleges that the Board’s decisi on to continue using “Chiefs” and “Maidens” violates Article X, Section 1(2) and Article II, Section 4 of the Montana Constitution. Article X, Secti on 1(2) “recognizes the distinct and unique cultural heritage of the American Indians and is committed in its educational goals to the preservation of their cultural integrity.” Article II, Section 4, the individual dignity clause, provides, in part, that “[t]he dignity of the human being is inviolable.” Dupuis asserts that these constitutional provisions create privately enforcea ble rights and that the District’s use of offensive and degrading mascots violates thes e rights. She further asserts that these provisions prohibit a school district from c hoosing a school mascot, team name, or team symbol that the District knows to violate th e dignity and cultural tr aditions of the Tribal people on the reservation. The District argues that the Montana Human Rights Commission provides the proper forum for Dupuis to vindicate her claims. We agree. ¶17 The Montana Human Rights Act (MHRA) provi des, in part, that it “is an unlawful discriminatory practice for an educational in stitution: (1) to exclude, expel, limit, or otherwise discriminate against an individual . . . enrolled as a student in the terms, conditions, or privileges of th e institution because of race, creed, religion, sex, marital8 status, color, age, physical disability, or nationa l origin or because of mental disability . . . .” Section 49-2-307, MCA. The MHRA es tablishes the exclusive remedy for conduct violating this provision. Sec tion 49-2-509(7). An aggrieve d party therefore first must file a discrimination claim with the Mont ana Human Rights Commission before bringing an action in District Court. Romero v. J & J Tire , 238 Mont. 146, 1 50, 777 P.2d 292, 295. ¶18 Dupuis’s allegations of discrimination a nd violations of the individual dignity clause first must be brought before the Mo ntana Human Rights Commission. Section 49- 2-509(7), MCA. Dupuis’s failure to exhaus t this administrative remedy precludes our review of her discrimination claims. Art v. Montana Dept. of Labor and Industry , 2002 MT 327, ¶ 14, 313 Mont. 197, ¶ 14, 60 P.3d 958, ¶ 14. We therefore affirm the District Court’s determination that the County Superint endent lacked jurisdiction to address the merits of Dupuis’s discrimination claim. We emphasize that our resolution of this case on procedural grounds should not be interpreted as reflecting our view as to whether the District’s use of “Chiefs” and “Maidens ” is degrading and offensive to Native Americans. ¶19 Affirmed. /S/ BRIAN MORRIS

We Concur: /S/ KARLA M. GRAY /S/ W. WILLIAM LEAPHART /S/ JOHN WARNER /S/ PATRICIA O. COTTER