Mercer Island School District, Res. v. N.w. And R.w., On Behalf Of B.w., Apps.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MERCER ISLAND SCHOOL
DISTRICT, DIVISION ONE

Respondent, No. 71419-8-1
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N.W. and R.W., on behalf of B.W., a
minor child,

Appellants. FILED: April 13, 2015

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 specific compliance 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 of racial 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,
after a one week trial 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 of racial 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 that day, B.W. was working
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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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 co-
principal, for further action.

On October 10, B.W. told his Parents that Student A had 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 to their 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 as the 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 he was 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,
whether academic or otherwise. Notably, the meeting was unrelated to the

allegation of racial harassment.
The second incident took place on October 25. On thatday, the class was
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 of the 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 of race. 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

months in 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 of B.W., Piano asked the District's director of special
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 anti-
bullying 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 District s
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 [Student A] 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 discuss it
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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the following:

Just so you know all the facts. What [the Mother] and [the Father]
are reacting to is the ... expository paragraph in which [Student A]
gets hurt. This is NOT the . . . narrative that Igave to you which
was way worse 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 I corrected 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 I see it as double
the meanness. Iwill put a copy of both papers in your box today.

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 that they
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 of racial 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 as the 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 basis for 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 slurs in 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 or tended 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 Parents tended 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 of Mexico and Mexican food in Brousseau's class on the day of
the second incident (a fact that had come to light as a result of her
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 as to
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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whether the District's actions in response to the Parents' complaint were

adequate to ensure a positive educational environment.
It was also so that, even during the course of Ms. Miller's investigation,

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

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 of directors. The board ofdirectors found that the District's
policies and procedures had not been violated and that there was no significant
evidence that B.W. had been subject to harassment or discrimination. 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, as required by chapter 392-190 WAC.
11 Only two were admitted.

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No. 71419-8-1/17

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

findings offact and drew conclusions of law. 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 or an 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 of taking 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 that this
court had, in the case of S.S. v. Alexander, 143 Wn. App. 75, 177 P.3d 742
(2008), "provided guidance on the legal standard to be used in cases of student-
on-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, 143 Wn. 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
as required 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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allegations; misrepresenting to the Parents that Ms. Miller was an outside

attorney working for all parties involved; 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 least three
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 ethnic origin 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 to the incidents of racial
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 superior court'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.
-19-
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 that this standard was
inappropriate. The proper standard, they contend, was that which is used by the
United States Department of Education's Office of Civil 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 under the standards set forth in chapter

34.05 RCW, the Washington Administrative Procedure Act (WAPA). Gradinaru
v.Dep't of Soc.& 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 as the 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 as found by the ALJ, we treat those findings as

13 42 U.S.C. §§ 2000d to 2000d-7.

-20-
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
as found 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
-21 -
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." Laws of 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
-22-
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 to this 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. This time, 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.

-23-
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

benefit from 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 is sufficiently 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 or fails to
take prompt and effective steps reasonably calculated to end the
harassment, eliminate the hostile environment, prevent its
recurrence, and, as appropriate, remedy its effects.
(2) For purposes 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, or in the exercise of reasonable care should have
known, about the harassment.

WAC 392-190-0555.

24
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 by the legislature. In

the EEOL, the legislature expressly included a private right of action and
authorized relief in the form of damages: "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 of directors. 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 that would be of most 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 has since
interpreted, and then amended, its own regulations. Nonetheless, because the
events occurred at the time that they did, we are left with the task of determining
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 to federal 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 a written decision
to the parties that addresses the allegations in the complaint and any other noncompliance issues
uncovered during the investigation. WAC 392-190-075.

-26-
No. 71419-8-1/27

C

Title VI provides that "[n]o person . .. shall, on the grounds of race, color,
or national origin, be excluded from participation in, be denied 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.

-27
No. 71419-8-1/28

return for federal 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] or is 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 that recipients of United States Department of Education funding
are in compliance with Titles VI and IX has been left to that department's Office
of Civil Rights (OCR). To that end, the OCR has set forth 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 peer racial
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.

-29-
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, 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." Racial Harassment Letter at 2. Once a school has actual or

constructive notice of peer racial 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 at Educational 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 of action. 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 enforce Title 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 a Title 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 monetary awards 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 that time, "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 teacher-
student 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 of Title IX to impose damages liability
on funding recipients based on principles of constructive notice or
respondeat superior 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 of discrimination 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 of Gebser was 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 at that 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
-33-
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's order on the basis of the OCR Standard. The District maintains that,
were the Parents permitted to argue for a more lenient standard, the District would be unfairly
prejudiced and the Parents would be unfairly benefited. We disagree.
"'Judicial estoppel is an 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 Bartley-
Williams v. Kendall. 134 Wn. App. 95, 98, 138 P.3d 1103 (2006)). The doctrine is meant 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 or mistake-
influenced, 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 the doctrine ofjudicial estoppel.
26 The Parents followed the administrative procedure prescribed by the OSPI. Initially,
they filed a complaint 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, the Court 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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No. 71419-8-1/37

at 287 (quoting Franklin, 503 U.S. at 74). Nevertheless, where a "funding
recipient engages in intentional conduct that violates the clear terms of the
statute," the Court has held that damages may be awarded. Davis. 526 U.S. at
642. However, liability must arise 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.

37
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 our inquiry.
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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No. 71419-8-1/39

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 not deliberately 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 that they 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 of the 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 of decisions in 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,, 143 Wn. App. at 104. Yet, "Conducting an

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No. 71419-8-1/40

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 is frequently 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 of the District's failure to amend its Nondiscrimination Policy and
Procedure, the Parents were not aware of their rights at the 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 the four students working together on the same
group project. While Mr. Miller did manage to interview all of the students
involved in the second incident, he failed 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 four students 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, that the group had been discussing
Mexico, which, as found 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 she wished 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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No. 71419-8-1/42

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 of B.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 of Mexico 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 ofthe second 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 A had 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 err in concluding that the District was deliberately indifferent. Yet, we
must also consider whether the harassment was sufficiently severe, pervasive,

and objectively offensive so that it can be said to have deprived B.W. of access
to the educational opportunities or benefits provided by the school.
B

The District contends that, 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 so that 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 a Title IX claim. See Zeno v.
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No. 71419-8-1/44

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 his skin 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 name-
calling"); 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 as to 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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No. 71419-8-1/45

disturbing essays to his teacher 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 must still
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. was forced to remain in
the same class with his harasser for a period of time, 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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No. 71419-8-1/46

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 the ALJ,
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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No. 71419-8-1/47

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 its failure 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 superior court'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.

^9-
We concur:

47
 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, I would 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, I would 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.