IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MOHAMED ABDELKADIR, individually

and as limited guardian ad litem for

SERGO ABDELKADIR, and REYA

AREY,

Appellants,

V.

SEATTLE SCHOOL DISTRICT,

Res • ondent.

DWYER, J. — After an unsuccessful administrative appeal from the denial

of their daughter's nonresident enrollment application to the Seattle School

District (the District), Mohamed Abdelkadir and Reya Areyl commenced this

action, asserting that the District violated the Washington Law Against

Discrimination (WLAD), chapter 49.60 RCW, and that the District breached a

settlement agreement. The trial court granted summary judgment dismissal to

the District, accepting its contention that the Parents' WLAD claim was barred by

either claim or issue preclusion, and that there was no basis to assert that the

District had breached a settlement agreement. We affirm.

DIVISION ONE

No. 78628-8-1

UNPUBLISHED OPINION

FILED: September 3, 2019

1 For simplicity, we will refer to the appellants as the "Parents" unless context requires

otherwise.
No. 78628-8-1/2

I

S.A. resides with her parents, Mohamed Abdelkadir and Reya Arey, in the

Shoreline School District. For several years she was permitted to enroll in a

Seattle elementary school as a nonresident student. Each year she needed to

reapply for nonresident enrollment for the next school year. She most recently

attended a District school during .the 2015-16 academic year, when she

completed the fifth grade.

S.A. has a learning disability that makes her eligible for special education.

After S.A. entered the fifth grade, the Parents and the District disputed the

magnitude of S.A.'s disability and the services that she required. After mediation,

the parties signed a settlement agreement, pursuant to which the Parents would

arrange for S.A. to receive an independent education evaluation (IEE), paid for

by the District, which would then be considered in developing a new

Individualized Education Plan (IEP). Despite selecting a professional to conduct

it, the Parents never arranged the IEE. However, as S.A. completed the fifth

grade, the parties developed an IEP for the following school year, which provided

for S.A. to receive three 30-minute sessions each month from a speech language

pathologist (SLP).

Subsequently, the Parents submitted S.A.'s nonresident student

enrollment application for the 2016-17 school year. The application was referred

to the District's special education department to determine whether there would

be sufficient capacity, both in the classroom and in the SLP program, to enroll

S.A. at one of the middle schools she requested. At this time, the District's ability

2
No. 78628-8-1/3

to admit nonresidents was limited by a severe shortage of SLP staff to serve the

anticipated number of resident students who would require SLP involvement.

Thus, the District-wide SLP team leader recommended declining all nonresident

student applications for students requiring SLP services.

On July 8, 2016, the Parents received a letter denying S.A.'s application,

giving the following grounds for the decision:

We have determined that available capacity (if any) at the school grade

and/or program is needed to accommodate anticipated needs of resident

students; [and]

Accepting this student would create a financial hardship for

SPS. [2]

Pursuant to chapter 28A.225 RCW, the Parents appealed the District's

denial of S.A.'s nonresident enrollment application to the Office of the

Superintendent of Public Instruction (OSP1). An adjudicatory hearing was held

over two days—October 11 and November 8, 2016—before an administrative

law judge (AU). From the evidence, the AU J found as a fact that all

nonresidential transfer applications from students requiring SLP services had

been denied for the 2016-17 school year and that this was due to the District's

inability to fill SLP staff positions.3 The AU J also found that the unavailability of

SLPs district-wide, and not solely at S.A.'s requested middle schools, was a

proper consideration, as the District was actively mitigating its shortage by reassigning students from SLPs with high caseloads to those with lower caseloads.

2 Seattle Public Schools.

3The District's collective bargaining agreement in effect at the time set a targeted

maximum caseload of 47 students per SLP. In the fall of 2016, nearly half of the District's SLPs

had caseloads above this maximum. Furthermore, based on experience, the District anticipated

an increase in students requiring SLP services during the school year.

3
No. 78628-8-1/4

The AU J also reviewed the District's nonresident student enrollment policy,

adopted pursuant to RCW 28A.225.225, a statute that limits the discretion of

school districts to accept or reject nonresident students.4 This policy allows the

District's superintendent to accept or reject an application for nonresident

admission based on certain standards including, but not limited to,

A. Whether space is available in the grade level or classes at the

building in which the student desires to be enrolled;

B. Whether appropriate educational programs or services are

available to improve the student's condition as stated in

requesting release from his or her district of residence;

D. Whether the student's acceptance would constitute a financial

hardship for the district.

4 The pertinent subsection of the statute, RCW 28A.225.225, provides as follows:

(4) Except as provided in subsection (1) of this section, all districts

accepting applications from nonresident students or from students receiving

home-based instruction for admission to the district's schools shall consider

equally all applications received. Each school district shall adopt a policy

establishing rational, fair, and equitable standards for acceptance and rejection of

applications by June 30, 1990. The policy may include rejection of a nonresident

student if:

(a) Acceptance of a nonresident student would result in the district

experiencing a financial hardship;

(b) The student's disciplinary records indicate a history of convictions for

offenses or crimes, violent or disruptive behavior, or gang membership;

(c) Accepting of the nonresident student would conflict with RCW

28A.340.080; or

(d) The student has been expelled or suspended from a public school for

more than ten consecutive days. Any policy allowing for readmission of expelled

or suspended students under this subsection (4)(d) must apply uniformly to both

resident and nonresident applicants.

For purposes of subsection[] . . . (4)(b) of this section, "gang" means a

group which: (i) Consists of three or more persons; (ii) has identifiable leadership;

and (iii) on an ongoing basis, regularly conspires and acts in concert mainly for

criminal purposes.

4
No. 78628-8-1/5

The AU recited relevant portions of the District superintendent's

Procedures for Student Assignment that implement the nonresident enrollment

policy:

[Pursuant to Board Policy 3141,] SPS enrolls non-resident students

as long as the anticipated needs of resident students are met first;

acceptance of the non-resident student does not create a financial

hardship for SPS; . . .

Completed applications are generally processed in the order

received, although priority consideration may be given for

applicants who attend SPS in the school year immediately

preceding the application. Non-residents may only be assigned to

schools/grades/programs that have seats available and that are not

closed to non-residents. . . .

The AU rejected all of the Parents' challenges to the District's decision,

ruling that:

Consistent with RCW 28A.225.225(4), the District has

adopted a written policy establishing criteria for enrollment of

nonresident students. The District's acceptance of nonresident

students, subject to capacity, is rationally related to its legitimate

interest in meeting the needs of its resident students first. The

policy is fair in that it is an objective and uniform standard applied to

all applicants.

OSPI, as an executive branch administrative agency, is not vested with

authority to impose remedies for violation of the WLAD. Thus, the AU did not

rule on the merits of the Parents' claim that the policy, as applied to S.A., was in

contravention of the WLAD. However, in determining the issues presented, the

AU J did rule that the District's policy was "fair and equitable under equal

protection standards," and that "[t]he 'discrimination' that is occurring is between

resident students who need SLP services and nonresident students who need

those services." The AU rejected various of the Parents' proffered plans, which

5
No. 78628-8-1/6

purported to defray the cost of S.A.'s enrollment, as inconsistent with the statute.

The AU concluded:

[T]here is no legal basis to overturn the District's decision. While

the Parent may have good reasons for wanting the Student to

attend school in the District, this tribunal is without authority to

create additional bases, not authorized by the Legislature, for

requiring a school district to accept nonresident students. Likewise,

the District is without authority, under its own policy, to admit

nonresident students when it lacks capacity to fully serve its own

resident student[s], or to treat one nonresident applicant on an

unequal basis from other nonresident applicants.

On review, the superior court affirmed the administrative decision. While

that superior court decision was pending, the Parents commenced this action in

the same court. First alleging only a WLAD violation, the Parents later amended

the complaint to add a cause of action for breach of contract, due to what they

perceived as the District's failure to pay for S.A.'s forgone IEE under the parties'

2015 settlement agreement. The trial court granted summary judgment to the

District, dismissing all of the Parents' claims. In doing so, it accepted the

District's assertion that the WLAD claim was precluded by either res judicata or

collateral estoppel, although it did not specify which doctrine properly applied.

The court also ruled that the breach of contract claim was unfounded given that

the Parents never fulfilled the condition on which the District's performance was

predicated. The Parents now appeal.

11

The Parents contend that their WLAD claim was not barred by collateral

estoppel, as the AU analyzed whether discrimination took place through the lens

6
No. 78628-8-1/7

of the school choice statute and not the WLAD. However, their present claim is

indeed an attempt to relitigate ultimate facts found adversely to them by the AU.

We review a summary judgment order de novo. Lokan & Assocs., Inc. v. 

Am. Beef Processing, LLC,177 Wn. App. 490, 495, 311 P.3d 1285 (2013).

Thus, we engage in the same inquiry as the trial court, viewing the facts and all

reasonable inferences therefrom in the light most favorable to the nonmoving

party. Brown v. Brown, 157 Wn. App. 803, 812, 239 P.3d 602 (2010).

"[Summary judgment] should be granted if there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law." Mayer v. 

City of Seattle, 102 Wn. App. 66, 75, 10 P.3d 408 (2000).

We also review de novo whether collateral estoppel bars a particular legal

claim. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96

P.3d 957 (2004). Collateral estoppel promotes judicial economy, serves to

prevent inconvenience or harassment of parties, and implicates principles of

repose and concerns about the resources expended in repetitive litigation.

Christensen, 152 Wn.2d at 306-07. Collateral estoppel may only preclude those

issues that have been actually litigated and necessarily and finally determined in

an earlier proceeding. Christensen, 152 Wn.2d at 307; Shoemaker v. City of

Bremerton, 109 Wn.2d 504, 507, 745 P.2d 858 (1987).

"When an issue of fact or law is actually litigated and determined by

a valid and final judgment, and the determination is essential to the

judgment, the determination is conclusive in a subsequent action

between the parties, whether on the same or a different claim."

7
No. 78628-8-1/8

Nielson v. Spanawav Gen. Med. Clinic, Inc., 135 Wn.2d 255, 262, 956 P.2d 312

(1988) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 27 (Am. LAW INSTITUTE

1982)).

To establish that collateral estoppel bars a particular claim, four elements

must be proved:

(1) the issue decided in the earlier proceeding was identical to the

issue presented in the later proceeding; (2) the earlier proceeding

ended in a judgment on the merits; (3) the party against whom

collateral estoppel is asserted was a party to, or in privity with a

party to, the earlier proceeding; and (4) application of collateral

estoppel does not work an injustice on the party against whom it is

applied.

Christensen, 152 Wn.2d at 307. Furthermore, the party against whom the

doctrine is asserted must have had a full and fair opportunity to litigate the issue

in the earlier proceeding. Christensen, 152 Wn.2d at 307 (citing Nielson, 135

Wn.2d at 264-65).

Courts have frequently applied collateral estoppel to issues adjudicated in

an earlier administrative proceeding. Christensen, 152 Wn.2d at 307. Our

Supreme Court has explained that "'Rio hold otherwise would, as a general

matter, impose unjustifiably upon those who have already shouldered their

burdens, and drain the resources of an adjudicatory system with disputes

resisting resolution." Christensen, 152 Wn.2d at 308 (quoting Astoria Fed. Say. 

& Loan Ass'n v. Solimino, 501 U.S. 104, 107-08, 111 S. Ct. 2166, 115 L. Ed. 2d

96 (1991)).

The mere fact that unsuccessfully pursuing an administrative adjudication

may ultimately preclude a later tort claim due to an agency's factual findings does

8
No. 78628-8-1/9

not prevent the application of collateral estoppel. Christensen, 152 Wn.2d at

312-13.5 As our Supreme Court explained, "[T]his is the essence of collateral

estoppel. There is nothing inherently unfair about this result provided the party

has the full and fair opportunity to litigate, there is no significant disparity of relief,

and all the other requirements of collateral estoppel are satisfied." Christensen,

152 Wn.2d at 313.

Here, of the four elements, the Parents argue that two bar collateral

estoppel: they claim that the issues were not identical and that applying collateral

estoppel would result in an injustice. To the contrary, the ultimate facts, and the

applicable legal standard governing the dispositive issue, remain unchanged

between the administrative adjudication and the present action. No injustice

results from applying collateral estoppel herein.

A

The Parents first argue that the issues contested in the administrative

adjudication and this civil lawsuit are not identical because the AU J determined

only whether discrimination occurred in violation of RCW 28A.225.225, whereas

the WLAD claim involved a different standard. This argument fails because the

Parents relied on the same necessary facts in superior court as they did in the

administrative proceeding, and because the claimed difference between the two

5 Three additional criteria apply when applying collateral estoppel to an administrative

decision: "'(1) whether the agency acting within its competence made a factual decision; (2)

agency and court procedural differences; and (3) policy considerations.- Reninger v. State Dep't

of Corr., 134 Wn.2d 437, 450, 951 P.2d 782 (1998) (internal quotation marks omitted) (quoting

Stevedoring Servs., of Am., Inc. v. Eggert, 129 Wn.2d 17, 40, 914 P.2d 737 (1996)). Because the

Parents do not base their appellate argument on any of these additional criteria, we need not

further discuss them.

9
No. 78628-8-Ill 0

standards is illusory. The AL's findings of fact had a proper preclusive effect in

the superior court action. .

[A]pplication of collateral estoppel is limited to situations where the

issue presented in the second proceeding is identical in all respects

to an issue decided in the prior proceeding, and "where the

controlling facts and applicable legal rules remain unchanged."

Further, issue preclusion is appropriate only if the issue raised in

the second case "involves substantially the same bundle of legal

principles that contributed to the rendering of the first judgment,"

even if the facts and the issue are identical.

Lopez-Vasquez v. Dep't of Labor & Indus., 168 Wn. App. 341, 345-46, 276 P.3d

354 (2012) (alteration in original) (quoting LeMond v. Dep't of Licensing, 143 Wn.

App. 797, 805, 180 P.3d 829 (2008)).

Resolution of the Parents' administrative dispute with the District required

the All to determine whether the District's enrollment policy was discriminatory

as applied to S.A. The relevant question for determining the existence of

discrimination therein was whether the District's policy established "rational, fair,

and equitable standards for acceptance and rejection" of nonresident student

enrollment applications and considered S.A.'s application equally alongside all

other nonresidents. RCW 28A.225.225(4). If the standards were not met, RCW

28A.225.230 (governing appeals of nonresident enrollment denials) would

mandate S.A.'s enrollment in the District.

WAC 392-137-205(1)(b) provides guidance when implementing RCW

28A.225.230. It states: "The requirement to consider all applications equally

does not preclude the establishment of a priority system that is fair and equitable

under equal protection standards." WAC 392-137-205(1)(b).

10
No. 78628-8-1/11

Thus, to prevail, the Parents had to show that the District's standards were

not "rational, fair, and equitable" and that the priority system adopted was not

"fair and equitable under equal protection standards." Concluding that the

Parents failed to meet this burden, the AU J did more than simply conclude that

the District's rule complied with the statute. The All analyzed each of the

questions of fact purporting to preclude the rule's application. The All also

analyzed the Parents' proffered accommodations to circumvent the effect of the

District's policy. The AU J found the facts in a manner that supported the District's

decisions.

The legal issues on which the instant WLAD lawsuit is predicated are

identical to those in the administrative hearing. The WLAD recognizes a right to

be free from discrimination based on the presence of any sensory, mental, or

physical disability. RCW 49.60.030(1)(b). Our Supreme Court has stated that

the WLAD's "prohibition against discrimination stems from the constitutional

requirement for equal protection." Fell V. Spokane Transit Auth., 128 Wn.2d 618,

634, 911 P.2d 1319 (1996). Noting that this principle applies to disabled

individuals, the Fell court held that "there is discrimination only when the disabled

are not provided with comparable services." 128 Wn.2d at 635.

The court reasoned that

[i]f the public accommodation is synonymous with the entire service

area of the governmental unit and comparable treatment is not the

analytical touchstone, there is no basis upon which a governmental

body or a business could not do more to provide services to a

disabled person. There is no principled basis for a governmental

body ever to reduce or adjust services. To agree with the plaintiffs'

approach would be to effectively legislate an unrestricted right to

services. The certain result would be endless litigation over alleged

11
No. 78628-8-1/12

service entitlements, with the decision as to how an agency must

allocate its resources left to the judiciary, the branch of government

by design furthest removed from the will of the people.

Fell, 128 Wn.2d at 636-37.

In turn, we have clarified that, when the provision of similar treatment to

individuals with and without disabilities would defeat the purposes of WLAD,

"reasonable accommodation" must be made for an individual's disability. Negron 

v. Snoqualmie Valley Hosp.,86 Wn. App. 579, 586, 936 P.2d 55 (1997).6

To demonstrate a prima facie case of discrimination in public

accommodation, the plaintiff must prove:

(1) the plaintiff is a member of a protected class, (2) the defendant's

establishment is a place of 'public accommodation, (3) the

defendant discriminated against the plaintiff when it did not treat the

plaintiff in a manner comparable to the treatment it provides to

persons outside that class, and (4) the plaintiff's protected status

was a substantial factor that caused the discrimination.

Floeting v. Grp. Health Coop., 192 Wn.2d 848, 853, 434 P.3d 39 (2019)

(citing Fell, 128 Wn.2d at 637).

Here, the All's findings of fact, unchallenged by the Parents in the

administrative appeal, preclude a conclusion that the third element could be

met—that S.A. was discriminated against by receiving treatment not comparable

to that provided to individuals without disabilities. See Fell, 128 Wn.2d at 637.

To succeed on their WLAD claim, the Parents would need to prove that the

6"'Reasonable accommodation-is defined as "'action, reasonably possible in the

circumstances, to make the regular service of a place of public accommodation accessible to

persons who otherwise could not use or fully enjoy the services because of the person's sensory,

mental, or physical disability:" Wash. State Commc'n Access Proiect v. Regal Cinemas, Inc.,

173 Wn. App. 174, 194, 293 P.3d 413 (2013) (some emphasis omitted) (quoting WAC 162-26-

040(2)).

12
No. 78628-8-1/13

District did not accommodate S.A.'s disability to the extent reasonably possible

when it declined to enroll her. This is the core assertion that the All found to be

unsupported by the facts when rejecting the Parents' challenge to the District's

enrollment policy. While that challenge and the WLAD claim have distinct

elements, the Parents rely on the same underlying dispositive facts for both.

To determine whether discrimination took place, the All had to determine

whether the District's policy met equal protection standards as applied to S.A.

This meant that the All had to make a finding as to whether the District

discriminated against S.A. by failing to afford comparable treatment—the same

test that would be employed in a WLAD action to rule on the contested third

element of such a claim. The AL's findings of fact on this question foreclose a

ruling in favor of the Parents on the WLAD claim. Thus, the trial court correctly

ruled that identity of issues existed between the administrative and civil

proceedings.

B

The Parents next aver that, even if the issues before the All and the

superior court were identical, applying collateral estoppel would work an injustice

because it would prevent them from putting forth what they claim to be new

evidence that would undermine the District's reasons for enforcing its policy to

S.A.'s detriment. To the contrary, because this "evidence" is neither relevant to

nor at odds with the AL's determination, and because the Parents had a full and

fair opportunity to litigate the issue in the administrative proceeding, there is no

injustice in applying collateral estoppel.

13
No. 78628-8-1/14

While courts should not apply collateral estoppel when it would work an

injustice, this "component is generally concerned with procedural, not substantive

irregularity." Christensen, 152 Wn.2d at 309. The Supreme Court has explained

that "the party against whom the doctrine is asserted must have had a full and

fair opportunity to litigate the issue in the first forum," so "applying collateral

estoppel may be improper where the issue is first determined after an informal,

expedited hearing with relaxed evidentiary standards." Christensen, 152 Wn.2d

at 309. The injustice factor "'recognizes the significant role of public policy," but

the mere fact that an administrative proceeding may ultimately preclude a later

tort claim due to the agency's factual findings should not prevent courts from

applying collateral estoppel. Christensen, 152 Wn.2d at 309 (quoting State v. 

Vasquez,148 Wn.2d 303, 309, 59 P.3d 648 (2002)).

The Parents identify three differences between the administrative

proceeding and this case that, they contend, render unjust the application of

collateral estoppel. First, they argue that the AU did not possess the power to

inquire into the existence of disability discrimination at all, but was limited to

determining the parties' rights under the school choice statute—an argument

wholly addressed and foreclosed by the analysis above, as determining said

rights required finding whether disability discrimination took place.

Second, the Parents note that the District does not contend that admitting

S.A., individually, would work a financial hardship upon the District, and that it

has admitted that her admission would not necessarily displace any District

students. This, the Parents contend, undermines the District's bases for denying

14
No. 78628-8-1/15

S.A.'s application. The Parents point to the District's disclosures in discovery in

this case to support their assertion that, because admitting S.A., individually,

would not work a financial hardship upon the District and that no resident student

would necessarily be displaced as a result of S.A.'s admission, the District had

no legitimate reason for denying her application. They also appear to assert that,

because the Shoreline School District admitted three nonresident students from

the Seattle School District who required SLP services, S.A. is entitled to one of

the three "spaces" vacated by these students.

It is plain that none of these facts would have modified the AL's ruling

had these contentions been raised in that litigation. Indeed, the AU J had in fact

considered, and rejected, the cost argument, accounting for the notion that

admitting S.A., individually, would not work a hardship.

[T]he Parent argues that the financial burden of this one Student's

SLP services is small, and the penalty from the union contract for

overloading an SLP by one student is also small: $75 per year.

The Parent's argument is misplaced. This one Student cannot be

considered in isolation. It is not the cost of one, but the cost of all

nonresident applicants who require SLP services that must be

considered, because the law requires equal treatment of all

similarly-situated applicants.

Similarly, the AU J rejected the contention that the possibility that S.A.'s

admission would not necessarily mandate that a resident student be displaced

meant that the District had to admit S.A.

[The] District did exactly what its policy requires. That policy

provides: "SPS enrolls non-resident students as long as the

anticipated needs of resident students are met first." . . . It is

rational for the District to take into account not just resident needs

at the time a nonresident applies, but anticipated resident needs

during the full school year for which the nonresident seeks

admission. In this case, the District used consistent historical data

15
No. 78628-8-1/16

to anticipate 4.7% growth over the course of the school year in the

number of students needing SLP services.

The Parents' reference to this new "evidence" is merely an attempt to

relitigate the AL's findings of fact.

An issue on which relitigation is foreclosed may be one of

evidentiary fact, of "ultimate fact" (i.e., the application of law to fact),

or of law. . . . Thus, for example, if the party against whom

preclusion is sought did in fact litigate an issue of ultimate fact and

suffered an adverse determination, new evidentiary facts may not

be brought forward to obtain a different determination of that

ultimate fact.

RESTATEMENT (SECOND) OF JUDGMENTS § 27 cmt. C (Am. LAW INSTITUTE

1982). The Parents' arguments give no basis for departing from this rule.

The trial court was correct to decline to readjudicate the AL's findings of

fact.

Third, the Parents also aver that applying collateral estoppel would work

an injustice because the All did not consider their proffered methods of

accommodating S.A. in the context of the WLAD, but only in the context of the

school choice statute. However, there is no viable argument as to why these

purported accommodations—actually requests for special treatment—would be

analyzed differently under the WLAD. Initially, the Parents focus on the rejection

of their offer to pay the cost of speech therapy. In rejecting this proposal, the AUJ

stated:

[T]he Parent offered to pay the District the cost of providing his

daughter's SLP services. Were the District to grant nonresident

admission only to parents wealthy enough to make such payments,

the District would violate the statute requiring it to "consider equally

all applications." RCW 28A.225.225(4).m

7 Arguing that S.A. is nevertheless entitled to such an arrangement under WLAD places

the Parents in the same situation as the plaintiff in Hartleben v. University of Washington, 194

16
No. 78628-8-1/17

All of the Parents' other proposed "accommodations," in addition to being

barred by statute, would result in S.A. being treated with privileges not only

greater than those enjoyed by students without her disability, but greater than

that which other nonresident students with the same disability enjoy. From the

fact that the AU ruled out each on grounds independent of the WLAD, it does

not follow that preclusion of their relitigation in a WLAD action, when that law

does not support them, would work an injustice.

III

Finally, the Parents contend that the trial court should not have dismissed

their breach of contract claim with prejudice. To prevail on a breach of contract

claim, the plaintiff must show an agreement between the parties, a parties' duty

under the agreement, and a breach of that duty. Fid. & Deposit Co. of Md. v. 

Daily, 148 Wn. App. 739, 745, 201 P.3d 1040 (2009). "Settlement agreements

are governed by contract principles 'subject to judicial interpretation in light of the

language used and the circumstances surrounding their making." Sherrod v. 

Kidd, 138 Wn. App. 73, 75, 155 P.3d 976 (2007) (quoting Stottlemyre v. Reed,35

Wn. App. 169, 171, 665 P.2d 1383 (1983)).

Wn. App. 877, 378 P.3d 263 (2016). Therein, a graduate student suffered serious retrograde

amnesia that caused her to have no memory of taking five courses in her program. Hartleben,

194 Wn. App. at 879. She contended that being allowed to retake these five courses, without

paying tuition, would be a reasonable accommodation of her disability. Hartleben, 194 Wn. App.

at 880. However, evidence showed that all students at the University were required to pay tuition,

and that a tuition waiver was a request for "extra services that [the University] does not offer to

other students." Hartleben, 194 Wn. App. at 886. Citing to Fell the court reiterated that "[t]he

WLAD does not require a place of public accommodation to provide greater services to people

with disabilities than what is available to people without disabilities." Hartleben, 194 Wn. App. at

886.

17
No. 78628-8-1/18

Here, the parties had a settlement agreement pursuant to which the

District would "pay for an independent educational evaluation by a mutuallyagreed-upon evaluator outside the [D]istrict who is on the [D]istrict's list of IEE

providers." District Special Education Supervisor Sherry Studley, who was

involved with the mediation process and signed the parties' mediation

agreement, stated under oath that

[t]he family needed to identify a qualified individual to conduct the

evaluation, which they did. And I needed to set up a personal

services contract with that individual, which I did. And I notified Dr.

Garcia that he could commence with the evaluation, and 1 left a

voice mail for the family.

The parties do not dispute that this evaluation never occurred. After the

District made the necessary arrangements with a mutually-agreed-upon

evaluator, it was incumbent on the Parents to schedule the IEE. Until they did,

there was nothing that the District could fund under the agreement. To the

extent, as the Parents' brief states, that "[t]here is simply no evidence that the

District has fulfilled its obligation under the contract[,]" it is because there was no

obligation to fulfill. The parents did not prove a breach of the contract by the

District. The trial court properly so ruled. Because that ruling was one on the

merits—including an analysis of the evidence presented—the dismissal was

properly granted with prejudice.

18
No. 78628-8-1/19

Affirmed.

WE CONCUR:

19