Document Info

DocketNumber: No. 71419-8-I

Judges: Dwyer, Leach, Verellen

Filed Date: 4/13/2015

Status: Precedential

Modified Date: 11/16/2024

  • ¶106

    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 (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 on 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. *984Consistent 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.

    ¶107 I write separately because I would end the analysis at this point. For three reasons, I would not further explore the United States Department of Education 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 as 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 VI31 or Title IX32 for money damages implicating the federal spending clause. But what is the 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 IX, 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?33 If this question unfolds in a future appeal, I would prefer to address it under the *985then-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.

    Reconsideration denied June 18, 2015.

    Review denied at 184 Wn.2d 1024 (2015).

    Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7.

    Title EX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688.

    The 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.