* M.G. v. Yakima School District No. 7

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
M.G., by and with his Guardian ad Litem.
Priscilla G.
Appellants,
v.
YAKIMA SCHOOL DISTRICT NO. 7, a
municipal corporation,
Respondent.
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No. 38165-0-III
ORDER GRANTING MOTION
TO PUBLISH OPINION
THE COURT has considered the appellant’s motion to publish the court’s opinion
of December 6, 2022, and the record and file herein, and is of the opinion the motion to
publish should be granted. Therefore,
IT IS ORDERED, the motion to publish is granted. The opinion filed by the court
on December 6, 2022, shall be modified on page 1 to designate it is a published opinion
and on page 27 by deletion of the following language:
The majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record
pursuant to RCW 2.06.040.
PANEL: Judges Fearing, Lawrence-Berrey, Staab
FOR THE COURT:
________________________________
LAUREL H. SIDDOWAY
Chief Judge
FILED
FEBRUARY 14, 2023
In the Office of the Clerk of Court
WA State Court of Appeals Division III
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
M.G., by and with his Guardian ad Litem.
Priscilla G.
Appellants,
v.
YAKIMA SCHOOL DISTRICT NO. 7, a
municipal corporation,
Respondent.
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No. 38165-0-III
UNPUBLISHED OPINION
FEARING, J. — M.G. sues the Yakima School District for violating his
constitutional and statutory rights to attend high school absent an evidentiary
administrative hearing before expelling a student. We conclude that the school district,
with its unending suspension of M.G. from school, effectively expelled him in violation
of M.G.’s statutory procedural rights. Therefore, we reverse the superior court’s
summary dismissal of M.G.’s suit.
FILED
DECEMBER 6, 2022
In the Office of the Clerk of Court
WA State Court of Appeals Division III
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FACTS
M.G., born in 2005, commenced attending schools within the Yakima School
District in 2012. From 2017-19, he attended Franklin Middle School, where his
disruptive behavior resulted in disciplinary actions. In October 2017, the school district
required M.G. to enter a “gang contract” due to his unremitting refusal to wear blue
during gym class. Members of the Norteño gang wear red and shun blue, the color of
Sureños. The school district gang contract prohibits a student from engaging in gang
activity and lists indicators of such activity, including the wearing of distinctive colors
and clothing, executing unique hand signs, adorning distinctive haircuts, and maintaining
body markings with idiosyncratic meanings. Franklin Middle School suspended M.G.
several times for violating the gang contract.
In the fall of 2019, M.G. enrolled at Yakima School District’s Eisenhower High
School. M.G. then sported a Mongolian haircut popular among Norteños. During lunch
on September 5, M.G. and another student created disorder with a verbal altercation.
M.G., to his credit, retreated at least twice from the other student who sought a physical
fight. High school officials warned M.G. of consequences if altercations continued. The
school district later learned the opposing student was the brother of a girl who M.G. had
allegedly threatened with a gun the previous year. The girl had considered attending
online school because of her fear of M.G.
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Mongolian haircut
Later on September 5, 2019, M.G. walked into the Eisenhower High School
building, unzipped his sweatshirt, and revealed a red shirt underneath. He then, in
violation of his gang contract, met with two individuals also under a gang contract.
On September 5, 2019, Eisenhower High School expelled M.G. on an emergency
basis because of the lunchtime clash, the exposure of red clothing, and the rendezvous
with other gang members. A written notice of expulsion declared an expulsion for ten
days beginning September 5 and ending September 18, 2019.
Under a Washington regulation, an emergency expulsion cannot exceed ten
consecutive school days and must either end or be converted into another form of
discipline within ten days from the start of the emergency expulsion. WAC 392-400-
510(3). On September 17, 2019, the Yakima School District converted M.G.’s
emergency expulsion into a long-term suspension pursuant to WAC 392-400-510(3). A
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written notice only added two additional days to the initial ten-day emergency
suspension, such that the new suspension ending date was September 20.
On September 18, 2019, M.G. appealed his long-term suspension. The Yakima
School District convened an hour-long hearing on September 20 with M.G., his mother, a
hearing officer, and the principal and assistant principal of Eisenhower High School
attending. The hearing officer affirmed M.G.’s long-term suspension and updated the
duration section of the written notice to read that M.G. was suspended for twelve days
with a return date of September 23, 2019. The school district sent the new notice, based
on the hearing officer’s ruling, to M.G.’s home via certified mail on September 24. M.G.
did not appeal this decision, as his suspension ended before he received the written
decision.
The hearing officer’s decision included the following terse findings of fact:
1. On 9/5/19 [M.G.] has an incident during lunch with another
student. Not [M.G.]’s fault. He was sent back to class.
2. [M.G.] is on a gang contract from Franklin Middle School.
3. After school on 9/5/19 [M.G.] was seen on camera unzipping his
coat where he was wearing a red shirt under his coat.
4. He was emergency expelled. Admin spoke to other students
involved in the lunch incident.
5. Incident was with girl’s brother who claims [M.G.] had been
making comments about his sister since last year while at Franklin.
Continued into this school year.
6. Student was cooperative during the hearing.
7. Student was not aware that the gang contract followed him to high
school.
8. The students he has surrounded himself with is not a good
situation for [M.G.]
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9. Educational services were offered as printed on the emergency
expulsion written notice as well as the expulsion written notice.
10. Emergency expulsion and expulsion written notice forms were
both sent by certified mail to the home.
Clerk’s Papers (CP) at 23. The written decision’s “Other information” section read:
1. Parent believes school treated her son unfairly.
. . . .
3. [M.G.] believes he deserves a second chance.
. . . [I]ncident at Franklin MS [middle school] was reported to
[Yakima Police Department] because a gun may have been involved.
5. Eisenhower admin[istration] is requesting a move to a different
school.
CP at 23.
Despite the suspension ending on September 23, 2019, Yakima School District
executive director of student life Amanda Jewell, on September 22, sent a letter to M.G.’s
mother informing her that M.G. may not return to Eisenhower High School. The letter
mentioned that the Yakima School District School Transfer Committee met on
September 19 to consider M.G.’s request to remain at Eisenhower and thereafter decided:
Due to the serious nature of the threatening behavior towards
another student at Eisenhower High School, the Placement Committee is
upholding the determination to have [M.G.] attend a school other than
Eisenhower.
CP at 21. The September 22 letter cited Yakima School District Policy 3131, which
established a right to determine enrollment options to preserve the educational interest of
all students. Under the policy, the school district, when making placement decisions,
may consider “student disciplinary or safety circumstances.” CP at 21 (italics omitted).
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The September 22 missive omitted any mention of appealing the transfer committee’s
decision or any school to which the school district might transfer M.G.
We lack information as to what transpired between September 23, the date set by
the hearing officer’s ruling, for the return of M.G. to Eisenhower High School, and
October 24, 2019. On October 24, M.G. enrolled in two courses, Introduction to Art and
Physical Science, through Yakima Online. He later added Music Appreciation. When
attending Eisenhower High School, M.G. had taken core academic classes. Yakima
Online is a state-approved educational program wherein students enroll in online courses
and either study at a computer lab or at home.
M.G. performed poorly scholastically through Yakima Online. M.G. lacked
access to a computer or Internet at his home and took an hour-long bus ride to reach the
school district’s computer lab. Yakima Online generally requires a sixth-grade academic
level to participate; whereas, M.G. performed at or below a fourth-grade level.
On January 16, 2020, during a meeting with Amanda Jewell, Yakima School
District executive director of student services, M.G. petitioned for enrollment in the
school district’s Davis High School and, if not Davis, in Stanton Academy. On January
17, M.G.’s counsel sent a letter to Amanda Jewell that explained M.G. requested to
transfer from Eisenhower High School because of being the target of aggression and
unsubstantiated allegations. Counsel’s letter acknowledged that M.G.’s older brother
maintained gang affiliations, but asserted that M.G. did not participate in gang activity.
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The letter added that, in 2019, a young woman wrongly accused M.G. of gang activity in
order to retaliate against M.G.’s brother. Counsel attacked the gang policy as overly
broad. The letter suggested that the only impediment to M.G.’s reenrollment was his
hairstyle. M.G. refused to reconsider his hairstyle because it expressed his identity. The
letter complained about excluding M.G. from school on the basis of his hair. Counsel
thanked Jewell for offering to advocate for M.G.’s reenrollment at Davis High School or
Stanton Academy for spring semester.
On January 17, 2020, M.G. gave a false name to security personnel in order to
enter Davis High School. Around the same time, M.G. entered Stanton Academy during
school hours and flashed gang signs. Inside Stanton Academy he a wore red belt
inscribed with the number 14. Norteños identify with the number 14, because “n” is the
fourteenth number in the alphabet. We do not know why M.G. entered the respective
secondary schools.
On February 7, 2020, the Yakima School District denied M.G.’s request to transfer
to Davis High School or Stanton Academy. Amanda Jewell wrote in a letter to M.G.’s
mother:
This letter serves as a formal notification that the request to transfer
[M.G.] to Davis High School or to Stanton has been denied at this time.
The reason for denial is based on his refusal to comply with the request to
alter his current style of hair that is associated with gang membership
paired with the incidents of the week of January 17th 2020 at Davis High
School where [M.G.] gave a false name to Davis Security and at Stanton
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Academy where he was seen flashing gang signs. Each incident occurred
during school hours.
. . . .
I am in agreement his current online placement has not been meeting
his educational needs. His current Principal, Lois Menard will be working
with him directly to find a more appropriate platform and curriculum.
I am not able to process any further request without Yakima School
District’s Executive Director of Safety and Security. . . . You can [c]all her
directly . . . if you have any questions, concerns, or would like to schedule
an appointment.
CP at 33.
On February 14, 2020, M.G. appealed the denial of his school transfer request in a
letter to the president of the Yakima School District’s board, Raymond Navarro. The
letter avowed that M.G. discussed his enrollment at Davis High School or Stanton
Academy with Amanda Jewell, who promised to meet with the respective principals of
the secondary schools before school recommenced in January 2020. Jewell did not
contact M.G. again until after the school district denied him enrollment at both schools.
In the February 14 letter, M.G. requested reconsideration or an explanation for denial of
his transfer. The letter declared:
The District has accused [M.G.] of wearing the color red, of flashing
gang hand signals (an allegation that [M.G.] denies), and of wearing his
hair in a cut that aligns with gang hair style. [These allegations, even if
true], . . . are an insufficient basis to merit school exclusion.
CP at 80. The letter asserted that the school district failed to offer M.G. educational
opportunities or make accommodations to fit his learning needs.
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On February 25, 2020, a Yakima School District ad hoc committee convened to
address M.G.’s school transfer request. M.G.’s mother attended and challenged the proof
of the school district’s allegations, including whether M.G. had been at Stanton Academy
in January.
On March 3, 2020, the Yakima School District sent a letter to M.G. that denied his
appeal of the transfer request. The letter expressed the school district’s encouragement
about M.G.’s professed commitment to his education. CP 36. The letter read, in part:
Regarding the request for a transfer to Davis or Stanton, the
following information/evidence was provided to support the decision to not
allow enrollment at Davis or Stanton at this time:
1. Hairstyle. The Student Resource Officer (SRO) . . . stated that the
hairstyle [M.G.] is wearing is known as a Mongolian cut. Historically,
Mongolian soldiers wore this hairstyle to signify readiness to fight. Gangs
are now using this hairstyle for the same purpose, to signify allegiance to a
gang and to signify a readiness to fight rival gang members.
2. Other gang affiliated wear. The SRO stated that during an
incident in the spring of 2019, [M.G.] was found with a red belt inscribed
with the number 14 and a red bandana which are also indicative of gang
affiliation. The number 14 coincides with the letter “N” signifying an
affiliation with the Norteno [sic] gang.
3. [M.G.]’s presence at Stanton and at Davis was not authorized. . . .
during the school day the district[’s] expectations are that our campuses are
open to the students who attend their specific school.
4. Safety concerns. . . . Having gang members at a large school like
Davis signifying a willingness to engage and fight rival gang members
presents a significant safety concern.
This information presented . . . was not refuted. The evidence
demonstrates that [M.G.] had and continues to demonstrate gang affiliation.
Instead of refuting this evidence, there was [an] argument made on behalf
of the student that what constitutes a gang haircut is vague and that the
student was not aware that his hairstyle was gang-affiliated and was,
therefore, being denied due process. The evidence shows that [M.G] was
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specifically advised that his haircut was considered gang affiliated and that
it was not acceptable, but he chose to keep it in defiance of such notice.
The student further argued that his hairstyle is protected expression and,
that it serves as a means by which he expresses his individuality. The
ability to express oneself, however, must be weighed against the safety
concerns for the student, other students, staff, and any others that may be
present in the school building. Here, safety is a paramount concern and
outweighs the right to expression under these circumstances.
CP at 36-37. The March 3 letter enclosed a copy of the operational policy on student
enrollment and transfers, and highlighted the next steps in the process if M.G. disagreed
with the Yakima School District’s decision.
On March 13, 2020, M.G.’s Team Child advocate notified Amanda Jewell that
M.G. would appeal the ad hoc decision denying his transfer to Davis High School or
Stanton Academy from Yakima Online. The same day, M.G.’s advocate wrote a letter to
the Eisenhower High School principal demanding his return under WAC 392-400-
430(8)(b). M.G. argued that no exceptions to the rule applied and the high school must
permit him to return to his regular educational setting because his suspension had
concluded. CP 105. He requested a meeting to discuss the school district assisting in his
transition to Eisenhower High School.
On March 26, 2020, the Yakima School District’s legal counsel responded by e-
mail to M.G.’s request to return to Eisenhower High School. Counsel insisted that M.G.
could not return to the high school because he
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continues to exhibit the behavior that resulted in his removal from
Eisenhower; i.e[.,] the gang associated hairstyle among other things. That
suspension was in accordance with RCW 28A.600.455.
CP at 146. The letter added that M.G. had enrolled and began attending Yakima Online.
Accordingly, M.G. was not enrolled at Eisenhower High School. Counsel’s letter also
alleged M.G. had subjected an Eisenhower student to harassment and intimidation. The
e-mail concluded:
That student’s safety, as well as the safety of others, staff, and
[M.G.]’s own safety, are significant concerns when considering whether
[he] should return.
CP at 146.
In April 2020 and due to the COVID-19 pandemic, the Yakima School District
began offering students laptops and hotspots for remote learning. The school district
extended this offer to M.G. See CP 109-15. We assume that, beginning in spring 2020,
M.G. attended Eisenhower High School remotely as if he was under no suspension. In
December 2020, however, M.G. quit attending Eisenhower and ceased contact with the
school district. In December, M.G.’s family suffered eviction from its apartment and the
family lacked full-time housing until February 2021.
Beginning in June 2021, M.G. resided in Grandview with family members. That
autumn he enrolled at Grandview High School. In November 2021, M.G. returned to
Yakima when his mother found an affordable apartment.
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In December 2021, M.G. called Eisenhower High School Principal Lois Menard
and stated he had resided outside the school district but now desired to return to Yakima
Online or Open Doors. Menard told M.G. he needed to re-enroll.
M.G. enrolled in the Yakima School District’s Open Doors program, which helps
students obtain a GED. M.G. regularly attended the program. According to Lois
Menard, M.G. expressed a desire to continue the Open Doors program and has not
mentioned any desire to return to the general student population or Eisenhower High
School. M.G. was prohibited from attending Eisenhower online by March 2021 because
the school had resumed a hybrid schedule, and he could not access his online classes.
In a declaration, M.G. declares:
I still want to go to school and graduate, so I came back to Yakima
Online. It is my understanding that it’s [Yakima Online is] the only option
the school district will give me. . . . I signed up for the GED program
because the staff told me that was my best option. They told me it would
take a long time to get my diploma and I was too far behind on credits. I
don’t think I can pass classes to get a diploma in online school.
Appellant’s Resp. to Mot. to Dismiss, App. 1, at 15 (May 12, 2022) (Decl. of M.G.).
M.G. struggled with online learning and preferred to work from the computer lab. He
encountered difficulty understanding the assignments by himself and experienced trouble
reaching his teachers.
M.G. further declares:
18. I have been trying really hard to make online work, but it hasn’t.
I don’t feel like I’ve been learning since I’ve been online. Ideally, I’d want
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to go back to Eisenhower and get my diploma. I know I’m capable. I think
I would have done well if I could have stayed. I would have wanted to get
into sports, like football.
. . . .
20. I would like the school district to help me get an actual education to
meet my goals. I need to know how to read well, do basic math, and learn
practical skills to be successful. I think it would be helpful to have compensatory
education like a one-to-one teacher.
Appellant’s Resp. to Mot. to Dismiss, App. 1, at 17 (May 12, 2022) (Decl. of M.G.)
PROCEDURE
On April 24, 2020, M.G. filed in superior court a notice of appeal, pursuant to
RCW 28A.645.010, of the March 26 Yakima School District decision enveloped in the
school district’s letter from the school district’s counsel. He alleged the school district
violated Washington law by denying his return to Eisenhower High School, deprived him
of his constitutional right to an education, and violated due process by excluding him
from in-person schooling because of his hairstyle. Among other relief, M.G. sought a
declaratory ruling finding that the school district’s gang related behavior policy being
used to preclude M.G.’s returning to school on the basis of hairstyle is unconstitutionally
vague and void. M.G. asked that the superior court order the school district to return him
to Eisenhower High School and to afford him compensatory education services for the
106 days of education from which the district illegally excluded him.
On July 31, 2020, M.G. moved for summary judgment. He argued that the school
district denied him due process by failing to provide adequate notice of the alleged school
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district rule violation that formed the basis of his expulsion. He also contended that the
law demanded that the school district allow him to return to his regular educational
setting following his suspension. He highlighted that the legislature, in 2016, added this
stringent requirement with the express intent to reduce the amount of time minority
students were excluded from the classroom.
Six months later and on February 8, 2021, the Yakima School District filed its
response in opposition to M.G.’s motion for summary judgment and a cross-motion for
dismissal with prejudice. The school district denied that its policy was vague, argued that
the district warned M.G. about the nature of his hairstyle and its relationship to gangs,
and the district afforded M.G. due process when challenging the district’s decision. The
Yakima School District asserted that M.G.’s presence in school presented safety concerns
for students, teachers, and M.G. due to his gang affiliation. The school district submitted
declarations from school officials that included new allegations against M.G. We suspect
that the pandemic delayed the school district’s response to M.G.’s summary judgment
motion and any hearing on the motion.
M.G. moved to strike the Yakima School District’s declarations as evidence never
presented during the school district’s internal appeal proceedings. M.G. argued that the
superior court must entertain his appeal of the March 26 decision de novo and the court
may not consider evidence outside the administrative record.
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On March 16, 2021, the superior court entertained M.G.’s summary judgment
motion. At the commencement of the hearing, the parties discussed M.G.’s motion to
strike allegations forwarded by the Yakima School District not found in the
administrative record. The school district admitted that some of the assertions in its
officials’ declarations related to events that occurred after the district’s decision.
Nevertheless, all assertions addressed the school district’s ongoing safety concerns. The
school district argued that, assuming the superior court refused to entertain new evidence,
the court should remand to the district to consider the new assertions.
The superior court observed that M.G. appealed the Yakima School District’s
March 26, 2020 decision denying his request to return to Eisenhower High School. Thus,
the court ruled that it would limit its review to the transcript of a March 26 hearing.
March 26 is the date on which Yakima School District’s counsel responded by e-mail to
M.G.’s request to return to Eisenhower High School. The superior court then commented
that it lacked the transcript from the hearing. The school district responded: “there was
no hearing underlying [the] Decision.” Report of Proceedings (RP) at 6.
During the March 16, 2021 hearing, the superior court asked whether
RCW 28A.600.455 applied to the re-entry process following a suspension. The Yakima
School District argued against application of the statute:
Their [M.G.’s] argument is basically that there can never be an
indefinite suspension because the WAC says that . . . there should be some
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reasonable attempt to replace the student into their, their previous regular
educational setting.
. . . [T]hese WACs are promulgated in response to [RCW
28A.600.460] regarding suspensions . . . they should be of limited time but
it also acknowledges there could be situations where suspensions could go
on due to circumstances. . . . [N]othing in the Section is intended to limit
the authority of a school under existing Law and Rule to expel or suspend a
student for misconduct or criminal behavior.
So, there’s no limitation really. What they are [M.G. is] trying to do
is enforce the school to take a student back and then place other students in
potential [peril].
RP at 26-27.
The superior court ruled from the bench:
There was a determination made in the fall of 2019 that [M.G.], was
. . . somehow gang affiliated. . . . [O]ne of the reasons for his original
suspension was that he came to school wearing a red shirt and he knew . . .
that you couldn’t wear red and the haircut was just part of the reason that he
was suspended and we’ve already talked about this gang contract thing that
he signed.
So the question is what happened after that. Because the concern is
that this turned into an almost indefinite suspension without the school
making an effort to get him back into, into regular high school.
RP at 38.
The superior court rejected M.G.’s due process challenge to the Yakima School
District’s demand that he restyle his hair since the district had told M.G. to eliminate the
hairstyle because of its gang symbolism. Despite notice, M.G. refused to alter his hairdo.
The superior court extrapolated that this stubbornness showed M.G.’s unwillingness to
refute his gang connections. The court mentioned M.G.’s giving a false name to security,
flashing gang signs at Davis High School, and wearing a gang-related belt. M.G.
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presented no evidence that he did not violate his gang contract or school district’s safety
concerns.
The superior court, when affirming the Yakima School District’s actions,
reasoned:
I understand the argument that the re-entry process is different from
the suspension process. But . . . if a school has evidence that would
convince them [sic] to immediately suspend somebody, there’s no point in
allowing them [sic] to re-enter and then turning right around two minutes
later and say, okay now you’re suspended because of the, the gang
affiliated symbols and so on. So, it seems to me it makes more sense to say
that the school doesn’t have to allow somebody to re-enter if they haven’t
changed the behavior that caused them to get suspended in the first place.
RP at 41. The superior court highlighted M.G.’s lack of effort in Yakima Online and his
rejection of the school district’s offer of a tutor.
On March 25, 2021, the superior court entered an order denying M.G.’s motion for
summary judgment and dismissing the case. The court also entered an order
memorializing its oral ruling on the motion to strike the declarations that added facts
beyond that contained in the administrative record.
M.G. appealed. M.G. filed his opening brief in November 2021. In January 2022,
the Yakima School District moved to strike a portion of the brief that included argument
and data on disproportionate suspensions of students of color. M.G. resisted the motion
to strike because he had not asserted a new issue on appeal. M.G. claimed that he had
consistently raised the inequity in the school district’s disciplines of students.
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One week later, M.G. moved to strike the Yakima School District’s brief,
appendices to the brief, new declarations, and exhibits filed with its brief. M.G. also filed
a motion to redact all references relying on those documents. See Appellant’s Mot. to
Strike New Evid.; For Expedited Review or Add’l Time for Reply; and Sanctions
(January 18, 2022). He argued that the declarations and exhibits alleged occurrences
happening after his discipline and highlighted that the superior court already struck
declarations that added information beyond the facts in the administrative record. The
school district had not cross-appealed the superior court’s order to strike declarations.
This court’s commissioner referred the Yakima School District’s motion to strike
to this panel of judges. The commissioner granted M.G.’s motion to strike the school
district’s motion, declarations in support, and appendices, but indicated the school district
could submit those materials in support of its motion to dismiss the appeal in a separate
filing pursuant to RAP 17. See Comm’r’s Ruling at 2-3, 4-7 (March 31, 2022).
On May 2, 2022, the Yakima School District filed a motion to dismiss based on
mootness, failure to exhaust administrative remedies, and ripeness pursuant to RAP
17.4(d). The school district submitted the previously challenged and stricken
declarations in support of dismissal. On May 18, 2022, our court commissioner
determined that the Yakima School District’s motion to dismiss should be considered by
the panel at the same time it considers the merits of the appeal.
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LAW AND ANALYSIS
Mootness
The Yakima School District requests that we dismiss M.G.’s appeal as moot. We
disagree. The school district submitted declarations in support of its motion to dismiss.
This court generally refuses to consider new evidence. RAP 9.11; 2A ELIZABETH A.
TURNER, WASHINGTON PRACTICE: RULES PRACTICE RAP 9.11 authors’ cmts. (9th ed.
2022). We do, however, permit a party to introduce evidence outside of the trial court
record to support a motion in this court. 2A ELIZABETH A. TURNER, WASHINGTON
PRACTICE: RULES PRACTICE RAP 9.11 authors’ cmts. (9th ed. 2022). We summarized
the additional evidence submitted by the Yakima School District in our factual section of
this opinion. We do not consider the evidence when we reach the merits of the appeal.
Under RAP 18.9(c), we may dismiss an appeal if it is moot. A case is moot when
it involves only abstract propositions or questions, the substantial questions in the trial
court no longer exist, or a court can no longer provide effective relief. Spokane Research
& Defense Fund v. City of Spokane, 155 Wn.2d 89, 99, 117 P.3d 1117 (2005);
Josephinium Associates. v. Kahli, 111 Wn. App. 617, 622, 45 P.3d 627 (2002).
The Yakima School District first contends that M.G.’s appeal is moot because he
“left” the school district territory for an extended period of time. It argues that M.G. was
no longer “enrolled” under WAC 392-121-108(1), which provides:
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a student whose consecutive days of absence from school exceed
twenty school days . . . shall not be counted as an enrolled student until
attendance is resumed.
M.G. concedes he did not reside within the school district from June through November
2021. According to the school district, M.G. could not have been an enrolled student
during that period.
M.G. requested to return to Eisenhower High School in March 2020. M.G.
appeals the school district’s decision to deny that request. He remained “enrolled” in the
school district under the regulatory definition. M.G. did not voluntarily withdraw from
Eisenhower High School and permanently re-enroll in a different school. Although his
lack of housing required a stay in another school district, he returned to the Yakima
School District and sought to re-enroll at Eisenhower High School. Thus, his request for
equitable relief—that the court order Eisenhower to re-enroll him—is not moot. Finally,
M.G. seeks compensatory educational services for the days of exclusion from his regular
educational setting.
Exhaustion of Remedies
The Yakima School District next contends that M.G. failed to exhaust his
administrative remedies. Accordingly, the school district asks this court to dismiss
M.G.’s compensatory education claim as not ripe for review. We again disagree.
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The Yakima School District implies that, because M.G. seeks compensatory
education and those claims are only available in the context of special education, he was
required to exhaust administrative remedies. We again disagree.
Compensatory education refers to an award of services to compensate for a past
deficient program. Draper v. Atlanta Independent School System, 518 F.3d 1275, 1280
(11th Cir. 2008); Kevin Golembiewski, Compensatory Education Is Available to English
Language Learners Under the EEOA, 9 ALA. C.R. & C.L. L. REV. 57, 62 (2018).
Compensatory education serves as an equitable remedy to secure educational
opportunities denied the student. R.P. ex rel. C.P. v. Prescott Unified School District,
631 F.3d 1117, 1125 (9th Cir. 2011).
The remedy of compensatory education often arises in the context of special
education litigation. Parents of Student W. v. Puyallup School District, No. 3, 31 F.3d
1489, 1497 (9th Cir. 1994). Nevertheless, courts grant the remedy in other contexts such
as enforcing school desegregation decrees and the denial of enrollment in a gifted
program. Milliken v. Bradley, 433 U.S. 267, 284-85, 97 S. Ct. 2749, 53 L. Ed. 2d 745
(1977); McFadden v. Board. of Education for Illinois School District U-46, 984 F. Supp.
2d 882, 902-03 (N.D. Ill. 2013).
M.G. requests compensatory education to remedy the Yakima School District’s
purported denial of his educational opportunities due to a suspension. He seeks to earn
his high school diploma or GED and asserts that he needs assistance to read competently
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and perform basic math. He suggests that the school district should provide him with a
one-to-one teacher given his difficulties with online, remote learning. M.G. does not
seek any remedy under any disabilities act.
Return Following Suspension
We finally arrive at the heart of the appeal. M.G. contends that the Yakima
School District violated state law when prohibiting him from returning to school
following his suspension. The school district responds that it may prevent students from
returning to school based on safety concerns. Based on Washington statutes and
education regulations, we agree with M.G.
The parties advocate differing positions on the applicable standard of review.
M.G. requests de novo review. The school district contends this court must limit its
review to assessing whether the district’s decision was arbitrary, capricious, or contrary
to law.
This court reviews an appeal of a nonjudicial decision by an administrative agency
in accordance with the separation of powers doctrine. Porter v. Seattle School District
No. 1, 160 Wn. App. 872, 874, 248 P.3d 1111 (2011). We typically decide whether the
agency acted arbitrarily, capriciously, or contrary to law.
M.G. does not appeal a ruling issued by an administrative agency. He did not
appeal the hearing officer’s decision upholding his initial twelve-day suspension.
Instead, he challenges Yakima School District’s decision to exclude him indefinitely
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from Eisenhower High School. The school district afforded him no hearing before or
after it rendered this decision. The school district’s counsel rendered this ruling without
granting M.G. any right to appeal or a hearing. Thus, we do not defer to the agency’s
decision or the factual findings of the hearing officer.
M.G. challenges the Yakima School District’s failure to follow the statutory
procedures governing his return to school. This assignment of error requires us to
interpret relevant statutes and apply them to undisputed facts. We review de novo
questions of statutory construction. In re Post-Sentence Review of Allery, 6 Wn. App. 2d
343, 346, 430 P.3d 1150 (2018). The superior court simultaneously denied M.G.’s
motion for summary judgment and granted the school district’s motion to dismiss. We
review both of these trial court actions de novo. Eugster v. State, 171 Wn.2d 839, 843,
259 P.3d 146 (2011).
We proceed to examine whether the Yakima School District violated state law by
precluding M.G. from returning to Eisenhower High School. Chapter 28A.600 RCW and
392-400 WAC govern student disciplinary matters. RCW 28A.600.015(1) affords the
superintendent of public instruction authority to adopt reasonable rules prescribing the
substantive and procedural due process guarantees of all students in public schools.
Under RCW 28A.600.015, school districts may adopt informal procedures to
govern short-term suspension of students to the extent constitutionally permissible.
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Nevertheless, RCW 28A.600.015 precludes an expulsion or suspension of a student for
an indefinite time. The relevant subsections of the statute declare:
(4) School districts may not impose long-term suspension or
expulsion as a form of discretionary discipline.
(5) Any imposition of discretionary and nondiscretionary discipline
is subject to the bar on suspending the provision of educational services
pursuant to [RCW 28A.600.015(8)].
(6) . . . “[D]iscretionary discipline” means a disciplinary action taken
by a school district for student behavior that violates the rules of student
conduct adopted by a school district board of directors under RCW
28A.600.010 and this section, but does not constitute an action taken in
response to any of the following:
. . . .
(d) Behavior that adversely impacts the health or safety of other
students or educational staff.
(7) . . . [S]chool districts are not required to impose long-term
suspension or expulsion for behavior [defined in subsection 6] and should
first consider alternative actions.
(8) School districts may not suspend the provision of educational
services to a student as a disciplinary action. A student may be excluded
from a particular classroom or instructional or activity area for the period of
suspension or expulsion, but the school district must provide an opportunity
for a student to receive educational services during a period of suspension
or expulsion.
Consistent with RCW 28A.600.015, WAC 392-400-430 declares:
(8) End date.
(a) An expulsion or suspension of a student may not be for an
indefinite period of time and must have an end date.
(b) If a school district enrolls a student in another program or course
of study during a suspension or expulsion, the district may not preclude the
student from returning to the student’s regular educational setting following
the end date of the suspension or expulsion, unless:
(i) The school district superintendent or designee grants a petition to
extend a student’s expulsion under WAC 392-400-480;
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(ii) The student is excluded from the student’s regular educational
setting in accordance with WAC 392-400-810; or
(iii) The student is otherwise precluded under law from returning to
the student’s regular educational setting.
The last exception applies to students who commit certain criminal offenses against their
teachers or classmates and permits the school to prevent that student from being assigned
to a teacher victim’s classroom or to remove that student from the classroom of a student
victim. RCW 28A.600.460(2)-(3),
Yakima School District concedes that none of the exceptions listed in WAC 392-
400-430(8)(b) apply. The school district instead asserts broad statutory authority to
prohibit M.G.’s return based on safety concerns due to M.G.’s gang affiliation. We
disagree.
School districts possess statutory authority and responsibility to maintain order
and discipline in their schools and to protect the health and safety of their students. York
v. Wahkiakum Sch. Dist. No. 200, 163 Wn.2d 297, 332, 178 P.3d 995 (2008) (Johnson, J.,
concurring). The legislature granted school districts “broad discretionary power to
determine and adopt written policies not in conflict with other law” to develop and
implement programs that “[p]romote the effective, efficient, or safe management and
operation of the school district.” RCW 28A.320.015(1)(a). A school district has a duty
to exercise reasonable care, as a reasonably prudent person would under the
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circumstances, to protect students in its custody. N.L. v. Bethel School District, 187 Wn.
App. 460, 469, 348 P.3d 1237 (2015), aff’d, 186 Wn.2d 422, 378 P.3d 162 (2016).
Yakima School District highlights its own policy as justification for excluding
M.G. To repeat, District Operational Procedure 3131 states, in relevant part: “The
district makes placement decisions based on . . . student academic interest and ability,
student social development, special education . . . and student disciplinary or safety
circumstances.” CP at 147 (emphasis added). The school district argues this policy
permits it to prevent M.G. from in-person attendance because of his intimidation of other
students and his continued gang affiliation as shown by his insistence on wearing his
hairstyle. Nevertheless, a school district’s policy cannot conflict with state statutes.
We do not deny Yakima School District all action to ensure the safety of its
students. The school district may petition for an extended expulsion based on safety
concerns. WAC 392-400-430(8)(b)(i); WAC 392-400-480(1)(d)-(e). Nevertheless, the
school district did not follow these procedures. Instead, it extended M.G.’s long-term
suspension for an indefinite period of time in violation of RCW 28A.600.015(1).
M.G. also contends that his unending suspension breached his constitutional right
to due process. Because we resolve the appeal on other grounds, we do not address
M.G.’s constitutional argument.
M.G. insists that the Yakima School District discriminates against minority
students in its application of disciplinary rules. In turn, the school district requests that
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we strike filings with this court, on this subject, that M.G. never showed to the superior
court. We do not address this motion because our ruling moots the motion.
CONCLUSION
We remand to the superior court for further proceedings consistent with our
opinion.
The majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Lawrence-Berrey, A.C.J.
______________________________
Staab, J.
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