Mohamed Abdelkadir v. Seattle School District

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MOHAMED ABDELKADIR, individually
and as limited guardian ad litem for DIVISION ONE
SERGO ABDELKADIR, and REYA
AREY, No. 78628-8-1
Appellants, UNPUBLISHED OPINION
V.
FILED: September 3, 2019
SEATTLE SCHOOL DISTRICT,
Res•ondent.
DWYER, J. — After an unsuccessful administrative appeal from the denial
of their daughter's nonresident enrollment application to the Seattle School
District (the District), Mohamed Abdelkadir and Reya Areyl commenced this
action, asserting that the District violated the Washington Law Against
Discrimination (WLAD), chapter 49.60 RCW,and that the District breached a
settlement agreement. The trial court granted summary judgment dismissal to
the District, accepting its contention that the Parents' WLAD claim was barred by
either claim or issue preclusion, and that there was no basis to assert that the
District had breached a settlement agreement. We affirm.
1 For simplicity, we will refer to the appellants as the "Parents" unless context requires
otherwise.
No. 78628-8-1/2
I
S.A. resides with her parents, Mohamed Abdelkadir and Reya Arey, in the
Shoreline School District. For several years she was permitted to enroll in a
Seattle elementary school as a nonresident student. Each year she needed to
reapply for nonresident enrollment for the next school year. She most recently
attended a District school during .the 2015-16 academic year, when she
completed the fifth grade.
S.A. has a learning disability that makes her eligible for special education.
After S.A. entered the fifth grade, the Parents and the District disputed the
magnitude of S.A.'s disability and the services that she required. After mediation,
the parties signed a settlement agreement, pursuant to which the Parents would
arrange for S.A. to receive an independent education evaluation (IEE), paid for
by the District, which would then be considered in developing a new
Individualized Education Plan (IEP). Despite selecting a professional to conduct
it, the Parents never arranged the IEE. However, as S.A. completed the fifth
grade, the parties developed an IEP for the following school year, which provided
for S.A. to receive three 30-minute sessions each month from a speech language
pathologist(SLP).
Subsequently, the Parents submitted S.A.'s nonresident student
enrollment application for the 2016-17 school year. The application was referred
to the District's special education department to determine whether there would
be sufficient capacity, both in the classroom and in the SLP program, to enroll
S.A. at one of the middle schools she requested. At this time, the District's ability
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to admit nonresidents was limited by a severe shortage of SLP staff to serve the
anticipated number of resident students who would require SLP involvement.
Thus, the District-wide SLP team leader recommended declining all nonresident
student applications for students requiring SLP services.
On July 8, 2016, the Parents received a letter denying S.A.'s application,
giving the following grounds for the decision:
We have determined that available capacity (if any) at the school grade
and/or program is needed to accommodate anticipated needs of resident
students;[and]
Accepting this student would create a financial hardship for
SPS.[2]
Pursuant to chapter 28A.225 RCW,the Parents appealed the District's
denial of S.A.'s nonresident enrollment application to the Office of the
Superintendent of Public Instruction (OSP1). An adjudicatory hearing was held
over two days—October 11 and November 8, 2016—before an administrative
law judge (AU). From the evidence, the AUJ found as a fact that all
nonresidential transfer applications from students requiring SLP services had
been denied for the 2016-17 school year and that this was due to the District's
inability to fill SLP staff positions.3 The AUJ also found that the unavailability of
SLPs district-wide, and not solely at S.A.'s requested middle schools, was a
proper consideration, as the District was actively mitigating its shortage by re-
assigning students from SLPs with high caseloads to those with lower caseloads.
2 Seattle Public Schools.
3 The District's collective bargaining agreement in effect at the time set a targeted
maximum caseload of 47 students per SLP. In the fall of 2016, nearly half of the District's SLPs
had caseloads above this maximum. Furthermore, based on experience, the District anticipated
an increase in students requiring SLP services during the school year.
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No. 78628-8-1/4
The AUJ also reviewed the District's nonresident student enrollment policy,
adopted pursuant to RCW 28A.225.225, a statute that limits the discretion of
school districts to accept or reject nonresident students.4 This policy allows the
District's superintendent to accept or reject an application for nonresident
admission based on certain standards including, but not limited to,
A. Whether space is available in the grade level or classes at the
building in which the student desires to be enrolled;
B. Whether appropriate educational programs or services are
available to improve the student's condition as stated in
requesting release from his or her district of residence;
D. Whether the student's acceptance would constitute a financial
hardship for the district.
4 The pertinent subsection of the statute, RCW 28A.225.225, provides as follows:
(4) Except as provided in subsection (1) of this section, all districts
accepting applications from nonresident students or from students receiving
home-based instruction for admission to the district's schools shall consider
equally all applications received. Each school district shall adopt a policy
establishing rational, fair, and equitable standards for acceptance and rejection of
applications by June 30, 1990. The policy may include rejection of a nonresident
student if:
(a) Acceptance of a nonresident student would result in the district
experiencing a financial hardship;
(b) The student's disciplinary records indicate a history of convictions for
offenses or crimes, violent or disruptive behavior, or gang membership;
(c) Accepting of the nonresident student would conflict with RCW
28A.340.080; or
(d) The student has been expelled or suspended from a public school for
more than ten consecutive days. Any policy allowing for readmission of expelled
or suspended students under this subsection (4)(d) must apply uniformly to both
resident and nonresident applicants.
For purposes of subsection[]. . .(4)(b) of this section,"gang" means a
group which: (i) Consists of three or more persons; (ii) has identifiable leadership;
and (iii) on an ongoing basis, regularly conspires and acts in concert mainly for
criminal purposes.
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No. 78628-8-1/5
The AU recited relevant portions of the District superintendent's
Procedures for Student Assignment that implement the nonresident enrollment
policy:
[Pursuant to Board Policy 3141,] SPS enrolls non-resident students
as long as the anticipated needs of resident students are met first;
acceptance of the non-resident student does not create a financial
hardship for SPS;. . .
Completed applications are generally processed in the order
received, although priority consideration may be given for
applicants who attend SPS in the school year immediately
preceding the application. Non-residents may only be assigned to
schools/grades/programs that have seats available and that are not
closed to non-residents. . . .
The AU rejected all of the Parents' challenges to the District's decision,
ruling that:
Consistent with RCW 28A.225.225(4), the District has
adopted a written policy establishing criteria for enrollment of
nonresident students. The District's acceptance of nonresident
students, subject to capacity, is rationally related to its legitimate
interest in meeting the needs of its resident students first. The
policy is fair in that it is an objective and uniform standard applied to
all applicants.
OSPI, as an executive branch administrative agency, is not vested with
authority to impose remedies for violation of the WLAD. Thus, the AU did not
rule on the merits of the Parents' claim that the policy, as applied to S.A., was in
contravention of the WLAD. However, in determining the issues presented, the
AUJ did rule that the District's policy was "fair and equitable under equal
protection standards," and that "[t]he 'discrimination' that is occurring is between
resident students who need SLP services and nonresident students who need
those services." The AU rejected various of the Parents' proffered plans, which
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No. 78628-8-1/6
purported to defray the cost of S.A.'s enrollment, as inconsistent with the statute.
The AU concluded:
[T]here is no legal basis to overturn the District's decision. While
the Parent may have good reasons for wanting the Student to
attend school in the District, this tribunal is without authority to
create additional bases, not authorized by the Legislature, for
requiring a school district to accept nonresident students. Likewise,
the District is without authority, under its own policy, to admit
nonresident students when it lacks capacity to fully serve its own
resident student[s], or to treat one nonresident applicant on an
unequal basis from other nonresident applicants.
On review, the superior court affirmed the administrative decision. While
that superior court decision was pending, the Parents commenced this action in
the same court. First alleging only a WLAD violation, the Parents later amended
the complaint to add a cause of action for breach of contract, due to what they
perceived as the District's failure to pay for S.A.'s forgone IEE under the parties'
2015 settlement agreement. The trial court granted summary judgment to the
District, dismissing all of the Parents' claims. In doing so, it accepted the
District's assertion that the WLAD claim was precluded by either res judicata or
collateral estoppel, although it did not specify which doctrine properly applied.
The court also ruled that the breach of contract claim was unfounded given that
the Parents never fulfilled the condition on which the District's performance was
predicated. The Parents now appeal.
11
The Parents contend that their WLAD claim was not barred by collateral
estoppel, as the AU analyzed whether discrimination took place through the lens
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No. 78628-8-1/7
of the school choice statute and not the WLAD. However, their present claim is
indeed an attempt to relitigate ultimate facts found adversely to them by the AU.
We review a summary judgment order de novo. Lokan & Assocs., Inc. v.
Am. Beef Processing, LLC, 177 Wash. App. 490, 495, 311 P.3d 1285 (2013).
Thus, we engage in the same inquiry as the trial court, viewing the facts and all
reasonable inferences therefrom in the light most favorable to the nonmoving
party. Brown v. Brown, 157 Wash. App. 803, 812, 239 P.3d 602(2010).
"[Summary judgment] should be granted if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law." Mayer v.
City of Seattle, 102 Wash. App. 66, 75, 10 P.3d 408 (2000).
We also review de novo whether collateral estoppel bars a particular legal
claim. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wash. 2d 299, 305, 96
P.3d 957 (2004). Collateral estoppel promotes judicial economy, serves to
prevent inconvenience or harassment of parties, and implicates principles of
repose and concerns about the resources expended in repetitive litigation.
Christensen, 152 Wash. 2d at 306-07. Collateral estoppel may only preclude those
issues that have been actually litigated and necessarily and finally determined in
an earlier proceeding. Christensen, 152 Wash. 2d at 307; Shoemaker v. City of
Bremerton, 109 Wash. 2d 504, 507, 745 P.2d 858 (1987).
"When an issue of fact or law is actually litigated and determined by
a valid and final judgment, and the determination is essential to the
judgment, the determination is conclusive in a subsequent action
between the parties, whether on the same or a different claim."
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No. 78628-8-1/8
Nielson v. Spanawav Gen. Med. Clinic, Inc., 135 Wash. 2d 255, 262, 956 P.2d 312
(1988)(quoting RESTATEMENT(SECOND)OF JUDGMENTS § 27(Am. LAW INSTITUTE
1982)).
To establish that collateral estoppel bars a particular claim, four elements
must be proved:
(1) the issue decided in the earlier proceeding was identical to the
issue presented in the later proceeding;(2) the earlier proceeding
ended in a judgment on the merits;(3) the party against whom
collateral estoppel is asserted was a party to, or in privity with a
party to, the earlier proceeding; and (4) application of collateral
estoppel does not work an injustice on the party against whom it is
applied.
Christensen, 152 Wash. 2d at 307. Furthermore, the party against whom the
doctrine is asserted must have had a full and fair opportunity to litigate the issue
in the earlier proceeding. Christensen, 152 Wash. 2d at 307 (citing Nielson, 135
Wash. 2d at 264-65).
Courts have frequently applied collateral estoppel to issues adjudicated in
an earlier administrative proceeding. Christensen, 152 Wash. 2d at 307. Our
Supreme Court has explained that "'Rio hold otherwise would, as a general
matter, impose unjustifiably upon those who have already shouldered their
burdens, and drain the resources of an adjudicatory system with disputes
resisting resolution." Christensen, 152 Wash. 2d at 308 (quoting Astoria Fed. Say.
& Loan Ass'n v. Solimino, 501 U.S. 104, 107-08, 111 S. Ct. 2166, 115 L. Ed. 2d
96 (1991)).
The mere fact that unsuccessfully pursuing an administrative adjudication
may ultimately preclude a later tort claim due to an agency's factual findings does
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No. 78628-8-1/9
not prevent the application of collateral estoppel. Christensen, 152 Wash. 2d at
312-13.5 As our Supreme Court explained, "[T]his is the essence of collateral
estoppel. There is nothing inherently unfair about this result provided the party
has the full and fair opportunity to litigate, there is no significant disparity of relief,
and all the other requirements of collateral estoppel are satisfied." Christensen,
152 Wash. 2d at 313.
Here, of the four elements, the Parents argue that two bar collateral
estoppel: they claim that the issues were not identical and that applying collateral
estoppel would result in an injustice. To the contrary, the ultimate facts, and the
applicable legal standard governing the dispositive issue, remain unchanged
between the administrative adjudication and the present action. No injustice
results from applying collateral estoppel herein.
A
The Parents first argue that the issues contested in the administrative
adjudication and this civil lawsuit are not identical because the AUJ determined
only whether discrimination occurred in violation of RCW 28A.225.225, whereas
the WLAD claim involved a different standard. This argument fails because the
Parents relied on the same necessary facts in superior court as they did in the
administrative proceeding, and because the claimed difference between the two
5 Three additional criteria apply when applying collateral estoppel to an administrative
decision: "'(1) whether the agency acting within its competence made a factual decision;(2)
agency and court procedural differences; and (3) policy considerations.- Reninger v. State Dep't
of Corr., 134 Wash. 2d 437, 450, 951 P.2d 782(1998)(internal quotation marks omitted)(quoting
Stevedoring Servs., of Am., Inc. v. Eggert, 129 Wash. 2d 17, 40, 914 P.2d 737(1996)). Because the
Parents do not base their appellate argument on any of these additional criteria, we need not
further discuss them.
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No. 78628-8-Ill0
standards is illusory. The AL's findings of fact had a proper preclusive effect in
the superior court action. .
[A]pplication of collateral estoppel is limited to situations where the
issue presented in the second proceeding is identical in all respects
to an issue decided in the prior proceeding, and "where the
controlling facts and applicable legal rules remain unchanged."
Further, issue preclusion is appropriate only if the issue raised in
the second case "involves substantially the same bundle of legal
principles that contributed to the rendering of the first judgment,"
even if the facts and the issue are identical.
Lopez-Vasquez v. Dep't of Labor & Indus., 168 Wash. App. 341, 345-46, 276 P.3d
354(2012)(alteration in original)(quoting LeMond v. Dep't of Licensing, 143 Wn.
App. 797, 805, 180 P.3d 829 (2008)).
Resolution of the Parents' administrative dispute with the District required
the All to determine whether the District's enrollment policy was discriminatory
as applied to S.A. The relevant question for determining the existence of
discrimination therein was whether the District's policy established "rational, fair,
and equitable standards for acceptance and rejection" of nonresident student
enrollment applications and considered S.A.'s application equally alongside all
other nonresidents. RCW 28A.225.225(4). If the standards were not met, RCW
28A.225.230 (governing appeals of nonresident enrollment denials) would
mandate S.A.'s enrollment in the District.
WAC 392-137-205(1)(b) provides guidance when implementing RCW
28A.225.230. It states: "The requirement to consider all applications equally
does not preclude the establishment of a priority system that is fair and equitable
under equal protection standards." WAC 392-137-205(1)(b).
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No. 78628-8-1/11
Thus, to prevail, the Parents had to show that the District's standards were
not "rational, fair, and equitable" and that the priority system adopted was not
"fair and equitable under equal protection standards." Concluding that the
Parents failed to meet this burden, the AUJ did more than simply conclude that
the District's rule complied with the statute. The All analyzed each of the
questions of fact purporting to preclude the rule's application. The All also
analyzed the Parents' proffered accommodations to circumvent the effect of the
District's policy. The AUJ found the facts in a manner that supported the District's
decisions.
The legal issues on which the instant WLAD lawsuit is predicated are
identical to those in the administrative hearing. The WLAD recognizes a right to
be free from discrimination based on the presence of any sensory, mental, or
physical disability. RCW 49.60.030(1)(b). Our Supreme Court has stated that
the WLAD's "prohibition against discrimination stems from the constitutional
requirement for equal protection." Fell V. Spokane Transit Auth., 128 Wash. 2d 618,
634, 911 P.2d 1319 (1996). Noting that this principle applies to disabled
individuals, the Fell court held that "there is discrimination only when the disabled
are not provided with comparable services." 128 Wash. 2d at 635.
The court reasoned that
[i]f the public accommodation is synonymous with the entire service
area of the governmental unit and comparable treatment is not the
analytical touchstone, there is no basis upon which a governmental
body or a business could not do more to provide services to a
disabled person. There is no principled basis for a governmental
body ever to reduce or adjust services. To agree with the plaintiffs'
approach would be to effectively legislate an unrestricted right to
services. The certain result would be endless litigation over alleged
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No. 78628-8-1/12
service entitlements, with the decision as to how an agency must
allocate its resources left to the judiciary, the branch of government
by design furthest removed from the will of the people.
Fell, 128 Wash. 2d at 636-37.
In turn, we have clarified that, when the provision of similar treatment to
individuals with and without disabilities would defeat the purposes of WLAD,
"reasonable accommodation" must be made for an individual's disability. Negron
v. Snoqualmie Valley Hosp., 86 Wash. App. 579, 586, 936 P.2d 55 (1997).6
To demonstrate a prima facie case of discrimination in public
accommodation, the plaintiff must prove:
(1) the plaintiff is a member of a protected class,(2) the defendant's
establishment is a place of'public accommodation,(3) the
defendant discriminated against the plaintiff when it did not treat the
plaintiff in a manner comparable to the treatment it provides to
persons outside that class, and (4) the plaintiff's protected status
was a substantial factor that caused the discrimination.
Floeting v. Grp. Health Coop., 192 Wash. 2d 848, 853, 434 P.3d 39(2019)
(citing Fell, 128 Wash. 2d at 637).
Here, the All's findings of fact, unchallenged by the Parents in the
administrative appeal, preclude a conclusion that the third element could be
met—that S.A. was discriminated against by receiving treatment not comparable
to that provided to individuals without disabilities. See Fell, 128 Wash. 2d at 637.
To succeed on their WLAD claim, the Parents would need to prove that the
6 "'Reasonable accommodation- is defined as "'action, reasonably possible in the
circumstances, to make the regular service of a place of public accommodation accessible to
persons who otherwise could not use or fully enjoy the services because of the person's sensory,
mental, or physical disability:" Wash. State Commc'n Access Proiect v. Regal Cinemas, Inc.,
173 Wash. App. 174, 194, 293 P.3d 413(2013)(some emphasis omitted)(quoting WAC 162-26-
040(2)).
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No. 78628-8-1/13
District did not accommodate S.A.'s disability to the extent reasonably possible
when it declined to enroll her. This is the core assertion that the All found to be
unsupported by the facts when rejecting the Parents' challenge to the District's
enrollment policy. While that challenge and the WLAD claim have distinct
elements, the Parents rely on the same underlying dispositive facts for both.
To determine whether discrimination took place, the All had to determine
whether the District's policy met equal protection standards as applied to S.A.
This meant that the All had to make a finding as to whether the District
discriminated against S.A. by failing to afford comparable treatment—the same
test that would be employed in a WLAD action to rule on the contested third
element of such a claim. The AL's findings of fact on this question foreclose a
ruling in favor of the Parents on the WLAD claim. Thus, the trial court correctly
ruled that identity of issues existed between the administrative and civil
proceedings.
B
The Parents next aver that, even if the issues before the All and the
superior court were identical, applying collateral estoppel would work an injustice
because it would prevent them from putting forth what they claim to be new
evidence that would undermine the District's reasons for enforcing its policy to
S.A.'s detriment. To the contrary, because this "evidence" is neither relevant to
nor at odds with the AL's determination, and because the Parents had a full and
fair opportunity to litigate the issue in the administrative proceeding, there is no
injustice in applying collateral estoppel.
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No. 78628-8-1/14
While courts should not apply collateral estoppel when it would work an
injustice, this "component is generally concerned with procedural, not substantive
irregularity." Christensen, 152 Wash. 2d at 309. The Supreme Court has explained
that "the party against whom the doctrine is asserted must have had a full and
fair opportunity to litigate the issue in the first forum," so "applying collateral
estoppel may be improper where the issue is first determined after an informal,
expedited hearing with relaxed evidentiary standards." Christensen, 152 Wash. 2d
at 309. The injustice factor "'recognizes the significant role of public policy," but
the mere fact that an administrative proceeding may ultimately preclude a later
tort claim due to the agency's factual findings should not prevent courts from
applying collateral estoppel. Christensen, 152 Wash. 2d at 309 (quoting State v.
Vasquez, 148 Wash. 2d 303, 309, 59 P.3d 648 (2002)).
The Parents identify three differences between the administrative
proceeding and this case that, they contend, render unjust the application of
collateral estoppel. First, they argue that the AU did not possess the power to
inquire into the existence of disability discrimination at all, but was limited to
determining the parties' rights under the school choice statute—an argument
wholly addressed and foreclosed by the analysis above, as determining said
rights required finding whether disability discrimination took place.
Second, the Parents note that the District does not contend that admitting
S.A., individually, would work a financial hardship upon the District, and that it
has admitted that her admission would not necessarily displace any District
students. This, the Parents contend, undermines the District's bases for denying
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No. 78628-8-1/15
S.A.'s application. The Parents point to the District's disclosures in discovery in
this case to support their assertion that, because admitting S.A., individually,
would not work a financial hardship upon the District and that no resident student
would necessarily be displaced as a result of S.A.'s admission, the District had
no legitimate reason for denying her application. They also appear to assert that,
because the Shoreline School District admitted three nonresident students from
the Seattle School District who required SLP services, S.A. is entitled to one of
the three "spaces" vacated by these students.
It is plain that none of these facts would have modified the AL's ruling
had these contentions been raised in that litigation. Indeed, the AUJ had in fact
considered, and rejected, the cost argument, accounting for the notion that
admitting S.A., individually, would not work a hardship.
[T]he Parent argues that the financial burden of this one Student's
SLP services is small, and the penalty from the union contract for
overloading an SLP by one student is also small: $75 per year.
The Parent's argument is misplaced. This one Student cannot be
considered in isolation. It is not the cost of one, but the cost of all
nonresident applicants who require SLP services that must be
considered, because the law requires equal treatment of all
similarly-situated applicants.
Similarly, the AUJ rejected the contention that the possibility that S.A.'s
admission would not necessarily mandate that a resident student be displaced
meant that the District had to admit S.A.
[The] District did exactly what its policy requires. That policy
provides:"SPS enrolls non-resident students as long as the
anticipated needs of resident students are met first." ... It is
rational for the District to take into account not just resident needs
at the time a nonresident applies, but anticipated resident needs
during the full school year for which the nonresident seeks
admission. In this case, the District used consistent historical data
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No. 78628-8-1/16
to anticipate 4.7% growth over the course of the school year in the
number of students needing SLP services.
The Parents' reference to this new "evidence" is merely an attempt to
relitigate the AL's findings of fact.
An issue on which relitigation is foreclosed may be one of
evidentiary fact, of "ultimate fact" (i.e., the application of law to fact),
or of law. . .. Thus, for example, if the party against whom
preclusion is sought did in fact litigate an issue of ultimate fact and
suffered an adverse determination, new evidentiary facts may not
be brought forward to obtain a different determination of that
ultimate fact.
RESTATEMENT(SECOND)OF JUDGMENTS § 27 cmt. C(Am. LAW INSTITUTE
1982). The Parents' arguments give no basis for departing from this rule.
The trial court was correct to decline to readjudicate the AL's findings of
fact.
Third, the Parents also aver that applying collateral estoppel would work
an injustice because the All did not consider their proffered methods of
accommodating S.A. in the context of the WLAD, but only in the context of the
school choice statute. However, there is no viable argument as to why these
purported accommodations—actually requests for special treatment—would be
analyzed differently under the WLAD. Initially, the Parents focus on the rejection
of their offer to pay the cost of speech therapy. In rejecting this proposal, the AUJ
stated:
[T]he Parent offered to pay the District the cost of providing his
daughter's SLP services. Were the District to grant nonresident
admission only to parents wealthy enough to make such payments,
the District would violate the statute requiring it to "consider equally
all applications." RCW 28A.225.225(4).m
7 Arguing that S.A. is nevertheless entitled to such an arrangement under WLAD places
the Parents in the same situation as the plaintiff in Hartleben v. University of Washington, 194
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No. 78628-8-1/17
All of the Parents' other proposed "accommodations," in addition to being
barred by statute, would result in S.A. being treated with privileges not only
greater than those enjoyed by students without her disability, but greater than
that which other nonresident students with the same disability enjoy. From the
fact that the AU ruled out each on grounds independent of the WLAD, it does
not follow that preclusion of their relitigation in a WLAD action, when that law
does not support them, would work an injustice.
III
Finally, the Parents contend that the trial court should not have dismissed
their breach of contract claim with prejudice. To prevail on a breach of contract
claim, the plaintiff must show an agreement between the parties, a parties' duty
under the agreement, and a breach of that duty. Fid. & Deposit Co. of Md. v.
Daily, 148 Wash. App. 739, 745, 201 P.3d 1040 (2009). "Settlement agreements
are governed by contract principles 'subject to judicial interpretation in light of the
language used and the circumstances surrounding their making." Sherrod v.
Kidd, 138 Wash. App. 73, 75, 155 P.3d 976(2007)(quoting Stottlemyre v. Reed, 35
Wash. App. 169, 171, 665 P.2d 1383 (1983)).
Wn. App. 877, 378 P.3d 263(2016). Therein, a graduate student suffered serious retrograde
amnesia that caused her to have no memory of taking five courses in her program. Hartleben,
194 Wash. App. at 879. She contended that being allowed to retake these five courses, without
paying tuition, would be a reasonable accommodation of her disability. Hartleben, 194 Wash. App.
at 880. However, evidence showed that all students at the University were required to pay tuition,
and that a tuition waiver was a request for "extra services that[the University] does not offer to
other students." Hartleben, 194 Wash. App. at 886. Citing to Fell the court reiterated that "[t]he
WLAD does not require a place of public accommodation to provide greater services to people
with disabilities than what is available to people without disabilities." Hartleben, 194 Wash. App. at
886.
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Here, the parties had a settlement agreement pursuant to which the
District would "pay for an independent educational evaluation by a mutually-
agreed-upon evaluator outside the [D]istrict who is on the [D]istrict's list of IEE
providers." District Special Education Supervisor Sherry Studley, who was
involved with the mediation process and signed the parties' mediation
agreement, stated under oath that
[t]he family needed to identify a qualified individual to conduct the
evaluation, which they did. And I needed to set up a personal
services contract with that individual, which I did. And I notified Dr.
Garcia that he could commence with the evaluation, and 1 left a
voice mail for the family.
The parties do not dispute that this evaluation never occurred. After the
District made the necessary arrangements with a mutually-agreed-upon
evaluator, it was incumbent on the Parents to schedule the IEE. Until they did,
there was nothing that the District could fund under the agreement. To the
extent, as the Parents' brief states, that "[t]here is simply no evidence that the
District has fulfilled its obligation under the contract[,]" it is because there was no
obligation to fulfill. The parents did not prove a breach of the contract by the
District. The trial court properly so ruled. Because that ruling was one on the
merits—including an analysis of the evidence presented—the dismissal was
properly granted with prejudice.
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Affirmed.
WE CONCUR:
19