Difficulties in Pursuing Bias Claims – Especially when Unrepresented
In April 2016, the Washington State Court of Appeals (Division II), issued an unpublished opinion of a case involving claims of discrimination based on race (African American family) and religion (Muslim family). An unpublished opinion is an opinion that the court believes does not contain facts/law that create a situation where the opinion can be useful in subsequent cases. Until recently, parties could not cite to unpublished decisions, this rule is changing and parties may be able to provide it to a court, but a Court of Appeals may not rely on the case in a subsequent case, meaning an unpublished case does not create case law that must be followed in future cases.
Ahsson And Kari Spry, Appellants V Peninsula School District, Respondent, Docket No. 46782-8; Opinion Author – Melnick; joined by Maxa and Sutton. Attorneys for Appellants – Pro se (no attorney representation). Attorneys for Respondent – Jessie Lee Harris and Marshall Ferguson -Williams Kastner & Gibbs PLLC
Washington Law Against Discrimination
This case is noteworthy, even though it is not published, because it discusses use of the Washington Law Against Discrimination in filing a claim against a school district. There appears to be no dispute that the WLAD applies to schools as places of accommodation.
The court used the McDonnell Douglas burden shifting framework (McDonnell Douglas is a U.S. Supreme Court case that addressing employment discrimination). The court found that the Sprys carried the initial burden to prove a prima facie case and that they must do more than express an opinion or make conclusory statements. Do this this they must establish, “specific and material facts to support each element of his or her prima facie case.”
The plaintiff must show:
(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 plaintiff by not treating him in a manner comparable to the treatment it provides to persons outside that class; and
(4) the protected class status was a substantial factor causing the discrimination.
The parties, represented themselves, and did not provide examples of how the schools treatment, particularly filing CPS reports and discipline measures against the children, compared to other students.
It was not argued, but as soon as the school new there was a complaint regarding racial discrimination, they had an affirmative duty to investigate and provide a report to the parents under the state nondiscrimation in education law. However, this law was not discussed in the case.
Negligence and Negligent Inflection of Emotional Distress
The Sprys argued that the school was also negligent and its actions resulted in negligent inflection of emotional distress. This also demonstrates a problem with the Sprys representing themselves because they did not brief this issue on appeal and at the trial level they did not respond to the school’s motion for summary judgment that the negligence claim should be dismissed.
This case is likely unpublished because the family did not argue their position in the same way as it could have been argued if they had the resources to hire an attorney to argue the case for them. The litigation system is overwhelming and when people represent themselves, they are required to follow the legal and procedural rules in the same way as attorneys. While courts will often provide pro ses with a little leniency when pro se individuals are clearly attempting to do their best to follow the rules, they have the discretion to decide that a side is not properly pursuing its claim and to continue to allow it to proceed is a waste of judicial resources.