Mercer Island School District v. Office of the Superintendent of Public Instruction and parents of B.W.

On April 13, 2015, Division I issued its decision in the Mercer Island racial discrimination case that I previously wrote about here. Division I found that in the the administrative context (i.e., working with the school district and OSPI as opposed to filing a civil suit for damages in court), school districts that have actual or constructive notice (also known as the knew or should have known standard) of racial harassment, the school must take immediate and appropriate action to investigate or otherwise determine what occurred. It further requires that every investigation should be prompt, thorough, and impartial. Finally, it imposes upon the school the duty to take prompt and effective steps reasonably calculated to end harassment, eliminate any hostile environment and its effects, and prevent harassment from recurring.

The knew or should have known standard is a lower standard than the deliberate indifference standard. The court noted that even though the deliberate indifference standard creates a lower burden for a school district, to avoid administrative liability the school district still failed to meet the deliberate indifference test. The court likely went into this discussion to make sure that if the case was appealed to the State Supreme Court that the justices would not doubt how Division I would have ruled. This would mean if the State Supreme Court eventually reverses the knew or should have known standard, the overall holding of this case will not be reversed, because the court of appeals clearly demonstrated that they would have ruled the same way using the higher threshold.

Mercer Island School District, Res. V. N.W. And R.W., On Behalf Of B.w., Apps., Docket No. 71419-8-I, File Date: April 13, 2015; Opinion: Dwyer, Concurrence in part: Verellen; Counsel for Appellant: Ernest Saadiq Morris; Counsel for Respondent Parker a Howell and Jeffrey Ganson Counsel for OSPI and Amicus on behalf OSPI: Justin Kjolseth; Amicus on behalf of the ACLU: Sara Dunne and La Rond Baker

Oversimplified facts: A student targeted B.W., calling him names on multiple occasions. B.W. The targeted student’s grades dropped in that class. Part of the reason the grade dropped was that instead of writing on topic, he submitted two papers describing a random and violent accident happen to the aggressor student. Once the targeted student transferred out of the class, he began earning “A’s” and there were no more concerns about his behavior.

The court first focused on the deliberate indifference standard. In order to satisfy the deliberate indifference standard, the parents were required to establish: (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 targeted student of access to the educational opportunities or benefits provided by the school.

Per the opinion, the school made several mistakes in dealing with this situation. Based on the deliberate indifference standard, these include:

  • The school district looked at the incidents involving the harassment separately instead of holistically. A school district acts with deliberate indifference when it responds to report of a discriminatory act that is clearly unreasonable in light of all of the known circumstances. 
  • The  school failed to properly investigate the claim of discrimination, which resulted in a clearly unreasonable response to the harassment. 
    • Failed to have compliance coordinator/officer and failure to update its policies to reflect the nondiscrimination law and OSPI’s May 2011 regulations.
    • Co-principals conducted inadequate investigations, failing to follow even their own out-of-date policy and doing the following:
      • The school and the District only interviewed two of the four students working on the group project where the racial harassment incidents occurred. The reasons for not interviewing additional students were not credible, specifically that an Apserger’s diagnosis would have made B.W. mishear the racial comment. The District didn’t provide any any evidence to support that conclusion that an Asperger’s diagnosis would make B.W. unable to accurately hear and report a racial epithet.
      • The school failed to discover basic information that contextualized B.W.’s complaint and gave further credence to B.W.’s allegations.
      • The school continued to informally investigate the report after the parents told him they wished to file a formal complaint, which would have been handled by the District as opposed to the school.
      • The District did not discuss B.W.’s essay. The teacher expressed concern that if the parents saw the essay, the parents would see it as confirming the racial harassment allegations.
    • Formal investigation by the school’s frequently used outside counsel was “fraught with inadequacies.”
      • Attorney investigator did not ask B.W. about the two essays, nor did she ask the teacher or co-principals to explain why they withheld the existence of the essays from the parents. The reports weren’t even included in the text of the report, but they were appended to the report, which is the first time the parents learned of the existence of one of the essays.
      • 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.
      • She did not address the ostensible connection between the discussion of Mexico and the racially charged comments between two students and B.W.
    • District failed to meaningfully and appropriately discipline the aggressor student. He was only told not to use race as the basis for angry comments and to sign an “anti-harassment contract.”
    • District refused to consider any scenario in which B.W. was not to blame for the conflict with the aggressor student, believing the conflict was due to B.W.’s social deficits. Apparently the school was frustrated because shortly after entering this school district, B.W.’s IEP was withdrawn at the parent’s request.

Having satisfied the first three prongs of the deliberate indifference test, the next question is whether it was sufficiently severe, pervasive and objectively offensive so that it can be said to have deprived B.W. of access to educational opportunities or benefits provided by the school. The court said the racial comments were beyond simple teasing and name-calling, the student made it clear that it wasn’t that his skin color made him different, but that it made him stupid. It was also done in the context of group setting, increasing the humiliation B.W. felt. B.W. was new to this school, he cried in public, he wrote disturbing essays, and he received uncharacteristically low grades in this class.

Based on that, the court held that harassment was sufficiently severe. Then the question is – did it interfere with equal access to educational opportunities or benefits? The “dropoff” in grades can provide “necessary evidence of a potential link between” a students diminished educational opportunities.” B.W. was also forced to remain in the class with the harassing student. Once B.W.’s parents transferred him out of the class, his grades immediately went up to match his high achievement in his other classes.

Lower Standard Analysis 

After stating that the facts support a finding that the school district failed to meet the deliberate indifference standard, the court turned its discussion to the question of whether in the administrative context deliberate indifference applies. The Office of Civil Rights (of the U.S. Department of Education, the administrative agency tasked with enforcement of the Federal counterparts to the Washington nondiscrimination laws) requires “upon receiving actual or constructive notice of racial harassment, the school ‘take immediate and appropriate action to investigate or otherwise determine what occurred.'” Then the  District is required to take “prompt and effective steps” to end the harassment.” Applying this more lenient standard the court found that “it is abundantly clear that the District’s response violated the EEOL.” (EEOL is the Equal Education Opportunity Law prohibits discrimination on a several protected classes, including race.)

Concurrence

Verellan concurs that the District failed to meet the deliberate indifference standard in addressing the discrimination. Verellan would not take the next step and determine whether the OCR know or should have known standard should have been applied.

Take Away Points

When parents complain to the school district, or the school district knew or should have known about discrimination based on any of the of the protected classes identified in RCW 28A.642.010:

  • 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.
  • Sex (is covered under the Sex Equity Law RCW 28A.640)

a school must take immediate and appropriate action to investigate or otherwise determine what has occurred. The investigation should be prompt, thorough, and impartial. If discrimination exists (including harassment) the District must take prompt and effective steps to end the harassment.

Missing Parts of the Opinion

Difference between Federal and State Laws

I would have liked to see a greater discussion on state vs. federal law and whether or not the deliberate indifference standard is truly required in state discrimination cases. The other case decided by Division I on this issues, S.S. v. Alexander, 143 Wn. App. 75, 177 P3d 742 (2008) also did not discuss this issue. The court mentioned Title IX and Title IX, which are interpreted consistently with each other. Both are based on the Congress’s power under the Spending Clause. Basically compliance with nondiscrimination rules are ensured because the federal government can place conditions on the receipt of federal funds. If schools take federal funding, they agree to abide by the rules, in “what amounts essentially to a contract between the Government and the recipient of funds.”  (Citing Gebser v. Lago Visto Indep. Sch. Dist. 524 U.W. 274, 286 (1998). 

There is no express right to a private suit in Title VI or Title IX, but the Supreme court has held that both statutes are enforceable through an implied right of action. The Supreme Court clarified that this private right of action is only available when a school acts with deliberate indifference. It would be inconsistent with the SPending Clause origins of Title IX and Title CI to impose damages liability unless a school authority with the power to remedy the discrimination had actual notice of and was deliberately indifferent to the conduct.

Despite discussing the above reasoning and pointing out that Title IX and Title VI require a deliberate indifference standard, the court doesn’t discuss the state statues and how they are not based on the Spending Clause. States get to tell schools what kind of nondiscriminatory standards they must comply with without basing it on any condition of funding. Plus our state statutes have express rights to pursue actions in civil courts. It’s not implied. Schools are on constructive notice that the must not discriminate and if they discriminate there may be administrative and judicial consequences. This distinction seems very important but it isn’t discussed. (See Pages 32-34 of the court’s decision for more discussion on this).

Multiple Identities 

The court likely limited its discussion to race because that was the issue before it, but since there was so much discussion about the targeted student’s Asperger’s diagnosis, I would have like to have the court point out that the failure of the school district to believe the targeted student because of his Asperger’s diagnosis was also a form of discrimination. Students who have multiple identities are often targeted for bullying because of the fact that they have multiple identities and the decision was remiss to spend so much time discussing the way the Apserger’s diagnosis interfered with the District’s handling of the case without stating that was also discriminatory.

Distinction between harassment, intimidation and bullying (HIB) and discrimination.

I was disappointed that there was no discussion about the difference between harassment, intimidation and bullying (“HIB”) and discrimination. There has been a lot more emphasis put in schools about HIB, there are state model policies and procedures. On Page 12, the court noted that the District’s November 4 decision was pursuant to the District’s Harassment, Intimidation, and Bullying policy. This flags for me that it was the wrong policy as it is in connection with a different law. The distinction between generalized HIB and HIB targeted at a student based on one of the protected classes identified in the state statue trigger different requirements for action. HIB targeted based on a protected class is likely going to be discrimination. Generalized HIB require individualized responses. HIB against a student because of a protected class requires schools to address the school atmosphere/climate and review their policies and procedures to make sure the school is not contributing to the issue of discrimination. HIB based on federally protected classes may overlap with federal nondiscrimination laws and may require a concurrent Title VI or Title IX investigation.

 

Pending Education Discrimination Case

On February 26, 2015, Division I heard Mercer Island School District v. N.W. and R.W. (Case no. 71419-8 – follow this link and type the case number to find all materials related to this case).

The rough outline of the case is that a student of color was targeted with racial comments by one main student and a couple of that students friends. The school district did respond, but there seems to be questions of whether the school district responded in a timely and appropriate manner.

When the parents complained about the students behavior and the school’s response, the school said there was no discrimination. The parents appealed to the school board and the school board denied the existence of discrimination. The parents then appealed to the Office of the Superintendent of Public Instruction (OSPI) and there was a hearing before an administrative law judge (ALJ). The ALJ found the school had acted in a discriminatory manner. The school district appealed in Superior Court and the Superior Court overturned on the ALJ’s major findings. The parents appealed the Superior Court decision to Division I.

At oral arguments, the judges honed in on what standard should be used in the administrative context when determining the liability of a school district. The School District argued for a high standard of “deliberate indifference” and the attorney for the parents, Ernest Saadiq Morris, noted that the Administrative Law Judge did use the deliberate indifference standard but that even under this standards the school district did not prevail with the ALJ and that based on administrative law, the ALJ findings should be upheld. In response to the specific question regarding the appropriate standard, the parents agreed that in the administrative context it should be the lower standard known or should have known standard is more appropriate, although I got the impression there was a concession that the higher standard should apply in a monetary damages setting.

In the guidance that exists on this question of the standard in the administrative context, both the Department of Justice and OSPI have stated that the known or should have known standard should apply and that schools are required to take prompt action to correct the discrimination and the effects of discrimination.

The deliberate indifference standard the school district advocated is based on the case law regarding when a individual files a suit against a school district for monetary damages. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), while the U.S. Supreme Court found a school district could be liable under Title IX for peer based sexual harassment, the standard was deliberate indifference – recipients response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.

Based on oral arguments – it seems that the main question the court will answer in its opinion is – in the administrative context can schools be held liable in the sense of requiring administrative fixes, improving policies and procedures, based on the known or should have known standard?

An important distinction that I did not feel was teased out is the reason that the court found reached the deliberate indifference holding. Title IX is considered a spending clause law, meaning that in order to receive federal funds a school district has to agree not to discriminate. However, the statutes at play here are state statutes, not federal statutes. States do not have to rely on spending clauses or anything else. They get to make rules within their borders and the rules have to be followed. The nondiscrimination laws, coupled with our laws against harassment, intimidation and bullying, make it clear that our legislature intends on schools having an affirmative duty to make sure that kids are safe in schools, even for peer harassment issues.

One of the Judges on the panel hearing this case was Judge Dwyer. Judge Drwyer wrote the majority opinion in one of the only state based discrimination appellate decision, a 2008 Title IX case by the name of S.S. v. Roe/University of Washington, 143 Wn. App. 75 (Wash.App. Div 1 2000)(case involved a student football player raping a student and the University’s poor response). In this context, Division I upheld the deliberate indifference standard. This was a suit for monetary damages and there was not a significant discussion on and Division I cited the Davis court that “funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to educational opportunities or benefits provided by the school.”

Division I follows the deliberate indifference theory when looking at the University’s potential liability. Again, this was a Title IX case, not a case based on the state nondiscrimination or sex equity laws.

It will be interesting to see what the court decides and whether either of the parties will appeal the decision to our state supreme court.

Federal Guidance on Title VI vs. OSPI WACs

On October 1, 2014, the U.S. Department of Education Office for Civil Rights issued a Dear Colleague Letter. Dear Colleague letters are the Office of Civil Rights’ efforts to provide guidance for schools on what is needed to comply with federal laws. In this case, the letter focused on legal obligations under Title VI of the Civil Rights Act of 1965, which prohibits discrimination on the basis of race, color, or national origin.

The timing of this letter is interesting for in Washington, OSPI just went through a rule-making process on our state law that corresponds with the federal law. The proposed WACs are discussed in this blawg. So how do our state regulations compare to the federal guidance? As I noted in the prior blawg, the WACs are woefully inadequate to address remedying the discrimination that exists in our public schools. The Dear Colleague letter and guidance provide clear examples of the issues the WACs should have addressed (technology, teaching, etc.)

The Dear Colleague Letter starts by setting the stage, identifying history and present of unequal access to educational resources. It also discusses some of the factors that can be hard to measure that impact school success, including quality of building, experienced level of teachers, instructional materials and technology, and differences in teacher salaries. The WACs do not discuss this, although arguably that is what was discussed in the law and the WACs do not need to discuss this.

Then the Letter discusses intentional discrimination and identifies the following analysis for determining whether a school district intentionally discriminated in the allocation of its resources:

  1. Did the school district treat a student, or group of students differently with respect to providing access to educational resources as compared to another similarly situated student, or group of students, of a different race, color, or national origin (a prima facie case of discrimination)?
  2. Can the school district articulate a legitimate, nondiscriminatory, education reason for the different treatment? If not, OCR could find the district has intentionally discriminated on the basis of race. If yes, then:
  3. Is the allegedly nondiscriminatory reason a pretext for discrimination? If so, OCR would find the district has intentionally discriminated on the basis of race.

Then the letter discusses disparate impact. School districts also violate Title VI if they adopt facially neutral policies that are not intended to discriminate based on race, color, or national origin, bud do have an unjustified, adverse disparate impact on students based on race, color, or national origin. OCR applies the following analysis for disparate impact:

  1. Does the school distract have a facially neutral policy or practice that produces an adverse impact on students of a particular race, color, or national origin when compared to other students?
  2. Can the school district demonstrate that the policy or practice is necessary to meet an important educational goal? In conducting the second step of this inquiry OCR will consider both the importance of the educational goal and the tightness of the fit between the goal and the policy or practice employed to achieve it. If the policy or practice is not necessary to serve an important educational goal, OCR would find that the school district has engaged in discrimination. If the policy or practice is necessary to serve an important educational goal, then OCR would ask:
  3. Are there comparably effective alternative policies or practices that would meet the school district’s state educational goal with less of a discriminatory effect on the disproportionately affected racial group; or is, the identified justification a pretext for discrimination? If the answer to either question is yes, then OCR would find that the school disctrict had engaged in discrimination. If no, then OCR would likely not find sufficient evidence to determine that the school district had engaged in discrimination.

One of the major distinctions between this commentary and the proposed WACs is that several changes in the WACs make it sound like OSPI was trying to eliminate the disparate impact standard. That seems contrary to the intent of the state law to create a system that has fewer protections than the federal law.

Then the Letter goes on to discuss school funding. Again, the letter provides more guidance then the WACs.

A. Courses, Academic Programs, and Extracurricular Activities

The WACs have a limited discussion saying that no district shall provide any coursework based on a protected status. The Dear Colleague Letter requires that students have access to, and enroll in rigorous courses are more likely to go on to complete postsecondary education. It also notes that OCR will assess the types, quantity, and quality of programs available to students across a school district to determine whether students of all races have equal access to comparable programs both among schools and among students within the same school.

The Dear Colleague Letter discusses extracurricular activities, especially those that have been shown to support college and career readiness and high academic rigor, and states they must be offered on a nondiscriminatory basis. It notes that there will be a quantitative and qualitative review. The WAC only discusses recreational and athletic activities and states that no one be denied participation in based on a protected class. The focus in the WAC is based on athletics and demonstrates that it is the holdover from the state version of Title IX and providing equal athletic opportunities for girls.

The Dear Colleague Letter captures the intent of the legislation that was passed in Washington, it shows a demonstrated effort to outline for schools how to view their programs and make sure they are provided on a nondiscriminatory basis. It is not detailed and it won’t provide all the answers, but unlike the WACs, it makes an effort.

B. Strong Teaching, Leadership, and Support

The WACs don’t address the problem of the impact of teachers on education. The Dear Colleague Letter does and it notes that ensuring that schools have effective and stable teachers is a major component of ensuring that a school district does not discriminate based on race, color, or national origin. They will oook at turnover rates, teach qualifications, and experiences, school leadership, and support staff.

C. School Facilities 

Again because the WACs use as a starting point the Sex Discrimination WACs and did not actually try to examine the issue of what it means to address discrimination based on additional factors, the only reference to facilities is with regard to recreational and athletic activities. The Dear Colleague Letter addresses school facilities in terms of (1) physical environment – schools should be structurally sound and well-maintained; (2) Types and Design of Facilities – laboratories, auditoriums, and athletic facilities – must be provided on an equal basis.

D. Technology and Instructional Materials

When the WACs were originally written technology was a not an issue, the internet didn’t exist. So when they were simply modified by tacking on the additional protected classes to the existing sex discrimination regulations, there was no consideration of technology – so it’s no surprise the WACs are silent on the issue of technology. The Dear Colleague letter provides guidance that OCR will consider the number, type, and age of educational technology devices will be assessed in determining whether they are provided without regard to race, color, or national origin. They will also look at the size, content and age of a schools library collection considering quantity and quality of materials.

Prevention 

The WACs essentially limit proactive surveys and monitoring to athletics and recreational activity. The guidance of the Dear Colleague Letter notes that the assessment must be broader than recreational and athletic facilities – school districts need to compare how educational benefits and burdens are allotted.

Conclusion

The Dear Colleague letter makes it clear that OSPI is not providing sufficient guidance to assist schools in creating nondiscriminatory schools. A school that relied on the understanding that our state tries to go further in the protection of students than the federal government and relied on the WACs would fail to meet the federal standards.