* M.G. v. Yakima Sch. Dist. No. 7

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
M.G., by and with his Guardian ad Litem, 	)
Priscilla G., 	) 	No. 101799-5
)
Respondent, 	)
)
v. 	) 	En Banc
)
YAKIMA SCHOOL DISTRICT NO. 7, a 	)
municipal corporation, 	)
)
Petitioner. 	) 	Filed
________________________________________)
MADSEN, J.—Washington state law and administrative code regulate the
imposition of student discipline by school districts. Both prohibit the indefinite expulsion
or suspension of a student as a form of discretionary discipline. RCW 28A.600.015(1),
.020(6); WAC 392-400-430(8)(a). Here, Yakima School District No. 7 (District)
expelled a high school student, M.G., on an emergency basis and extended it to a long-
term suspension without providing M.G. with the statutorily required procedural
protections.
: March 7, 2024
FILE
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
MARCH 7, 2024
THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
MARCH 7, 2024
ERIN L. LENNON
SUPREME COURT CLERK
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The Court of Appeals held that M.G. was indefinitely suspended in violation of his
statutory procedural rights and reversed the superior court’s summary dismissal of
M.G.’s suit. The Court of Appeals also determined that the case is not moot since M.G.
did not voluntarily withdraw from high school in the District following the District’s
denial of his request to return to his regular educational setting. It concluded that M.G.’s
long-term suspension for an indefinite period of time violated RCW 28A.600.015(1) and
WAC 392-400-430(8). The court also found that M.G. was not precluded from seeking
compensatory education for the time he was excluded from his regular educational
setting. We affirm the Court of Appeals.
In addition, M.G. seeks to strike sections of the District’s responses to the amici
briefs. We grant the motion to strike in part.
BACKGROUND
M.G. and his mother live in Yakima County, Washington. He resides within the
boundaries of the District. In 2019, M.G. began attending Eisenhower High School.
While in middle school, M.G. had signed a behavior agreement, or “gang contract.”
Clerk’s Papers at 5-6.
Shortly after the 2019 school year began, the District emergency expelled M.G.
from Eisenhower for violating the gang contract. The basis for expulsion included M.G.
wearing a red shirt, which is affiliated with the Norteño gang, and M.G.’s altercation with
a student. Approximately two weeks later, the District converted M.G.’s 10-day
emergency expulsion into a long-term suspension, totaling 12 days. The District
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provided written notice to M.G. the next day. The notice stated in part, “Due to this
situation and the involvement in others, aka victim of previous threat, [the student] will
be long-term suspended and placed in an alternative educational setting.” Id. at 42, 77-
78.
M.G. appealed the suspension. Following a hearing, the District sent M.G. and his
mother a written hearing decision affirming the long-term suspension of 12 days and a
return date of September 23, 2019. M.G. did not appeal. However, one day prior to the
conclusion of the suspension, the District’s executive director of student life wrote to
M.G.’s mother, informing her that the District’s school transfer committee decided that
M.G. was prohibited from returning to Eisenhower. M.G. did not receive any notice
regarding the educational services he would be provided during his suspension.
Approximately one month after the conclusion of the suspension, the District
enrolled M.G. in Yakima Online, a computer online learning program established by the
District as an alternative learning experience. M.G. signed up for art, science, and music
classes. M.G. lacked a laptop at home, so he would travel to a distant computer lab to
access his classes.
M.G.’s performance was unsatisfactory. The District assessed M.G.’s academic
levels and found that he performed at a grade level below that required at Yakima Online.
Shortly after beginning Yakima Online, M.G., through counsel, spoke with Eisenhower’s
principal and vice principal. They acknowledged that M.G.’s suspension ended, but
stated that he could not return because of his gang-associated “Mongolian” hairstyle that
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violated school policy. Id. at 7. No new form of written discipline had been received in
relation to M.G.’s hairstyle.
In the following months, M.G.’s counsel initiated discussions with the District,
seeking a transfer for M.G. from the online classes to a building-based high school. At
one meeting, the District’s representative acknowledged that the online learning program
was not meeting M.G.’s needs. M.G. unsuccessfully sought reenrollment in another high
school in the District. The requested transfer was denied based on M.G.’s refusal to alter
his alleged gang-style haircut and on incidents in which M.G. visited different schools
under a different name and was seen flashing gang signs. The denial letter cited Yakima
School District Policy 3131, which gives the District the right and responsibility to enroll
students and determine enrollment options in classrooms.
In response, M.G. requested reconsideration of the District’s decision denying his
transfer request. A meeting was held with members of the District who participated in
the denial of the transfer decision. Shortly after that meeting, the principal of Yakima
Online provided an intervention plan to M.G. M.G. opposed the plan and instead sought
to return to his regular educational setting.
In March 2020, counsel for M.G. received a letter from the District, affirming the
previous denial of M.G.’s request to transfer to a high school within the District and cited
M.G.’s refusal to change his hairstyle as the basis for denial. M.G. then sent a letter to
Eisenhower two days after receiving the denial letter, requesting that he be allowed to
return to Eisenhower in accordance with WAC 392-400-430(8)(b). The letter identified
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Eisenhower as M.G.’s regular educational setting following the end date of his
suspension.
The District responded by e-mail and, without a hearing, denied M.G.’s request.
The District again invoked M.G.’s refusal to change his hairstyle and alleged gang
affiliation. However, considering the newly remote nature of education during the
COVID-19 pandemic (coronavirus disease 2019), the District allowed M.G. to attend
Eisenhower online and provided M.G. with a laptop and access to wireless Internet.
The following month, M.G. appealed the District’s March decision denying his
request to return to Eisenhower under chapter 28A.645 RCW. M.G. argued that he was
statutorily entitled to reinstatement at Eisenhower and that the District violated his
constitutional right to an education and to due process prior to denying him in-person
schooling due to his hairstyle and clothing.
For relief, M.G. sought an order under chapter 7.24 RCW, the Uniform
Declaratory Judgments Act (UDJA), requiring the District to return him to Eisenhower
and afford him compensatory education services for the time that he was excluded from
his regular educational setting following his suspension.
On M.G.’s motion for summary judgment, the superior court affirmed the
District’s decision to deny M.G. reentry into Eisenhower. The court denied M.G.’s
motion and dismissed the case.
M.G. appealed. The District moved to dismiss the appeal as moot. The District
argued that M.G. had left the school system for an extended period of time that exceeded
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20 days, and M.G. thus was no longer an enrolled student. M.G.’s family experienced a
period of homelessness, leading them to temporarily reside outside the District. M.G.
then returned and requested to be reenrolled in Yakima Online or an alternative program.
The Court of Appeals rejected the mootness argument, concluding that M.G. did
not voluntarily withdraw from Eisenhower but was forced to leave the District during the
pendency of his appeal from the March 2020 decision denying his return to Eisenhower.
M.G. v. Yakima Sch. Dist. No. 7, 24 Wn. App. 2d 703, 721, 524 P.3d 670 (2022). By the
time the March decision was made, M.G. returned to Yakima and sought reenrollment in
Eisenhower. The Court of Appeals further held that it could grant compensatory
educational services to M.G as an equitable remedy, reversing the superior court and
noting that none of the exceptions to the statutory and regulatory prohibition against
indefinite suspensions applied. Id. at 722. Thus, M.G. was indefinitely suspended in
violation of RCW 28A.600.015(1). Id. at 726. The Court of Appeals did not address
M.G.’s constitutional right to an education and due process arguments. It also did not
address whether the District discriminated against minority students in applying
disciplinary rules.
The District petitioned for review here, which we granted. M.G. seeks to strike
portions of the District’s responses to the amicus curiae briefs from both the American
Civil Liberties Union of Washington (ACLU) and Attorneys for Education Rights.
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ANALYSIS
Questions of statutory construction are reviewed de novo. El Centro de la Raza v.
State, 192 Wn.2d 103, 111, 428 P.3d 1143 (2018) (plurality opinion). “Our fundamental
objective in construing a statute is to ascertain and carry out the intent of the legislature.”
Fed. Way Sch. Dist. No. 210 v. Vinson, 172 Wn.2d 756, 765, 261 P.3d 145 (2011). When
construing the meaning of a statute, we look to its plain meaning. Dep’t of Ecology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 10, 43 P.3d 4 (2002). If the meaning cannot be
derived from looking at the language of the statutory text, then we look to related statutes
and the overarching statutory scheme. Id.
1. M.G. Was Indefinitely Suspended in Violation of Statutory and Regulatory
Disciplinary Procedures
The parties disagree about how to characterize the decision to exclude M.G. from
Eisenhower. The District contends it made a placement decision, while M.G. argues that
the District made a disciplinary decision entitling him to due process protections, which
the District failed to provide. We agree with M.G. and hold that the District’s decision
was disciplinary.
Students who face suspensions are entitled to due process, typically by being
provided notice of charges and an opportunity to be heard. Goss v. Lopez, 419 U.S. 565,
581, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). A student’s property interest in educational
benefits is substantial enough to warrant due process protection. Id. at 576. M.G. argues
that his constitutional right to due process was violated; however, this court will generally
avoid constitutional questions when a case can be decided on nonconstitutional grounds.
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See State v. Houston-Sconiers, 188 Wn.2d 1, 18 n.3, 391 P.3d 409 (2017); HJS Dev., Inc.
v. Pierce County, 148 Wn.2d 451, 469 n.75, 61 P.3d 1141 (2003). Because the
legislature has acted to provide protections, we resolve this case on statutory grounds.
The statute controlling expulsions and suspensions states,
(1) The superintendent of public instruction shall adopt and distribute to all
school districts lawful and reasonable rules prescribing the substantive and
procedural due process guarantees of pupils in the common schools. Such
rules shall authorize a school district to use informal due process
procedures in connection with the short-term suspension of students to the
extent constitutionally permissible: PROVIDED, That the superintendent of
public instruction deems the interest of students to be adequately protected.
. . . An expulsion or suspension of a student may not be for an indefinite
period of time.
(2) Short-term suspension procedures may be used for suspensions
of students up to and including, 10 consecutive school days.
(3) Emergency removals must end or be converted to another form
of corrective action within ten school days from the date of the emergency
removal from school. Notice and due process rights must be provided
when an emergency expulsion is converted to another form of corrective
action.
(4) School districts may not impose long-term suspension or
expulsion as a form of discretionary discipline.
RCW 28A.600.0151 (emphasis added). As noted, M.G. was removed from Eisenhower
on an emergency basis. About two weeks later, that emergency removal was converted
to a long-term suspension in accordance with RCW 28A.600.015(3). A hearing officer
affirmed the suspension on appeal. M.G.’s suspension was set to end, and he was set to
return on a specific date.
1 After accepting review of this case, RCW 28A.600.015 was amended in 2023 to use the term
“removal” instead of “expulsion” in .015(3). Since the amendments to the statute do not affect
the outcome of our decision, we cite to the current version of the statute.
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M.G. argues that after the long-term suspension was imposed, the District was
required to create a culturally responsive reengagement plan2 and failed to do so. M.G. is
correct. The District was required to convene a meeting with the student and the
student’s parents or guardians within 20 days of the student’s long-term suspension. See
RCW 28A.600.022(1) (“School districts must convene a meeting with the student and the
student’s parents or guardians within twenty days of the student’s long-term
suspension.”). The District did not do so here.
Instead, when M.G. attempted to return after his suspension ended, the District
informed M.G. that he would not be allowed to return to Eisenhower. No hearing
occurred regarding this decision.
After M.G.’s transfer requests were denied, he demanded to return to Eisenhower.
The District denied this request via e-mail, citing M.G.’s refusal to change the alleged
gang-associated hairstyle and M.G.’s behavior that had ultimately resulted in his
suspension. The reason for the denial was disciplinary in nature, and no new disciplinary
proceeding had been initiated against M.G. regarding the stated reasons for the denial.
Nor was M.G. afforded a hearing for the decision denying his request to return to
Eisenhower.
2 RCW 28A.600.022(1) concerns reengagement plans and explains, “School districts must
convene a meeting with the student and the student’s parents or guardians within twenty days of
the student’s long-term suspension or expulsion, but no later than five days before the student’s
enrollment, to discuss a plan to reengage the student in a school program. Families must have
access to, provide meaningful input on, and have the opportunity to participate in a culturally
sensitive and culturally responsive reengagement plan.”
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As the Court of Appeals correctly pointed out, if the District sought to extend the
suspension, it could have done so by petitioning the District superintendent to extend the
expulsion under WAC 392-400-480. We agree that a school district has the authority and
the duty to make decisions to ensure the safety of its students. However, the legislature
has put in place procedural safeguards to ensure students are provided due process when
these kinds of decisions are made that greatly impact their education. In this case, the
District was limited to following the conditions outlined in WAC 392-400-430 regarding
student disciplinary matters and failed to do so.
WAC 392-400-430(8) states,
(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;
(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.
(Emphasis added.) The District conceded below that none of the exceptions listed under
WAC 392-400-430(8)(b)(i)-(iii) apply here. Nevertheless, the District argues that this
was a discretionary placement decision based on safety concerns and that RCW
28A.320.015(1) grants to a school board broad discretionary power to address safety
concerns.3 The District also points to Yakima District Policy 3131, which it claims
3 Under RCW 28A.320.015,
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No. 101799-5
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establishes its right and responsibility to consider safety when it makes enrollment and
placement decisions. We disagree.
The plain reading of WAC 392-400-430(8)(b) demonstrates that the District was
required to allow M.G. to return to his regular educational setting upon the conclusion of
his suspension. Furthermore, RCW 28A.320.015(1)(a) makes clear that school boards
may not adopt written policies that conflict with other laws. If the District were allowed
to rely on Policy 3131 to justify M.G.’s exclusion, it would conflict with RCW
28A.600.015 and WAC 392-400-430 because M.G.’s suspension was meant to end after
12 days. By framing the denial of M.G.’s return to Eisenhower as an enrollment or
placement decision, the District essentially sidesteps the procedural due process
protections afforded to students under chapter 28A.600 RCW and WAC 392-400.
Agreeing with the District would undermine the legislature’s intent as expressed in RCW
28A.600.015 to “[r]educe the length of time students of color are excluded from school
due to suspension and expulsion and provide students support for reengagement plans.”
FOURTH SUBSTITUTE H.B. 1541, at 2, 64th Leg., Reg. Sess. (Wash. 2016). If the District
had additional behavior concerns to justify a continued suspension, it was required to
(1) The board of directors of each school district may exercise the following:
(a) The broad discretionary power to determine and adopt written policies
not in conflict with other law that provide for the development and
implementation of programs, activities, services, or practices that the board
determines will:
. . . .
(ii) Promote the effective, efficient, or safe management and operation of
the school district.
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follow the substantive and procedural limitations prescribed by RCW 28A.600.015-.022
and WAC 392-400-480.
The District characterizes M.G.’s claim as arguing for a right to an education in
the school of his choice and cites cases such as Parents Involved in Community Schools v.
Seattle School District No. 1, 149 Wn.2d 660, 72 P.3d 151 (2003). Pet’r’s Suppl. Br. at
2. But that case involved the denial of students’ preferred choice of school, not
placement related to discipline. M.G.’s case is different. He is not seeking to attend a
school he was never enrolled in; rather, he sought to be returned to his regular
educational setting, as set out in WAC 392-400-430, at the conclusion of his suspension.
Further, the District’s enrollment of M.G. in Yakima Online did not control whether
M.G. was entitled to return to Eisenhower. RCW 28A.600.015(8) requires school
districts to provide an opportunity for students to receive educational services during their
suspension, but those services are not a substitute for the student’s placement following
suspension.
The Court of Appeals correctly concluded that M.G. was indefinitely suspended
and was entitled to return to his regular educational setting following the conclusion of
his suspension absent further disciplinary action permitted by statute. We affirm that
decision.
2. M.G.’s Statutory Remedy
M.G. appealed the District’s decision preventing M.G. from reenrolling at
Eisenhower under chapter 28A.645 RCW and sought declaratory relief allowing him to
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return to Eisenhower and to provide him with compensatory education. See ch. 7.24
RCW. While chapter 28A.645 RCW is silent as to remedies, the UDJA provides for
equitable relief. RCW 7.24.080. M.G.’s supplemental briefing argues that in light of this
silence, a court should be able to craft equitable relief if it determines that there has been
a statutory violation. M.G. further argues that compensatory education should be an
equitable remedy under the UDJA and chapter 28A.645 RCW.
When no adequate legal remedy exists, a court may exercise its equitable powers
to grant equitable relief. Orwick v. City of Seattle, 103 Wn.2d 249, 252, 692 P.2d 793
(1984) (finding that the superior court had jurisdiction to grant equitable relief where the
petitioners alleged that there were system-wide violations of mandatory statutory
requirements by a municipal court). Where a statute provides a right of recovery, it is
incumbent on the court to devise a remedy. State v. Manuel, 94 Wn.2d 695, 699, 619
P.2d 977 (1980); see also Beggs v. Dep’t of Soc. & Health Servs., 171 Wn.2d 69, 78, 247
P.3d 421 (2011).
Considering the silence on remedies within the school disciplinary statutes and
regulations, as well as the statute authorizing appeals from school board decisions to the
superior court, we remand this case to the trial court to determine, in its discretion, the
type of equitable relief to which M.G. is entitled. See ch. 28A.645 RCW; ch. 28A.600
RCW; ch. 392-400 WAC. It will be for the trial court to decide what relief is an
appropriate remedy for the District’s statutory violations. This remedy may include
compensatory education as discussed below.
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3. Compensatory Education as an Equitable Remedy
The District claims the Court of Appeals erred when it held that M.G. was not
precluded from seeking compensatory education as an equitable remedy. It argues that
there is no precedent to support the award of compensatory education to students who
voluntarily absent themselves and choose not to avail themselves of educational services.
Moreover, it contends that compensatory education is limited to students who have not
received Free and Appropriate Education (FAPE) under the Individuals with Disabilities
Education Act (IDEA), Pub. L. No. 101-476, 104 Stat. 1142.4
M.G. argues that when the right to education is denied, a meaningful remedy is
necessary, and therefore, M.G. requested equitable relief in the form of compensatory
education under the UDJA. M.G. seeks to earn his high school diploma or GED (general
equivalency diploma) and suggests the District provide him with a one-to-one teacher.
We hold that compensatory education is a form of equitable relief available to M.G. for
the violation of rights created by the educational statutes discussed above.
Compensatory education seeks to “make up for ‘educational services the child
should have received in the first place.’” R.P. ex rel. C.P. v. Prescott Unified Sch. Dist.,
4 The District also argues that M.G.’s claim for compensatory education is moot since he left the
District and that he failed to exhaust administrative remedies for purposes of establishing a claim
for compensatory educational services. These two arguments are not convincing. M.G. returned
to the District during the pendency of the appeal and did not abandon his request for enrollment.
Continuity of residence cannot be a prerequisite to the grant of compensatory education since it
would allow school districts to stop providing required services with the goal of inducing the
student to move out of the district. D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488,
497 (3d Cir. 2012). Therefore, M.G.’s claim for compensatory education is not moot. Since
M.G. was not seeking compensatory education under any disabilities act, he was not required to
exhaust remedies.
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631 F.3d 1117, 1125 (9th Cir. 2011) (quoting Reid ex rel. Reid v. Dist. of Columbia, 365
U.S. App. D.C. 234, 401 F.3d 516, 518 (2005)). Trial courts have “‘broad discretionary
power to fashion equitable remedies.’” Borton & Sons, Inc. v. Burbank Props., LLC, 196
Wn.2d 199, 206, 471 P.3d 871 (2020) (quoting In re Foreclosure of Liens, 123 Wn.2d
197, 204, 867 P.2d 605 (1994)). Here, the Court of Appeals acknowledged that the
equitable remedy of compensatory education is most often awarded in the context of
special education litigation but held the remedy was not limited to cases involving special
education. See Milliken v. Bradley, 433 U.S. 267, 282, 97 S. Ct. 2749, 53 L. Ed. 2d 745
(1977) (holding that the district court did not abuse its discretion in ordering
compensatory educational programs for schoolchildren who had been subject to de jure
segregation); Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 778 F.2d
404, 408 (8th Cir. 1985) (finding that compensatory and remedial programs were
potential remedies for children who attended segregated schools). The District cites no
authority to support its claim that compensatory education is available only to a student
who has not received FAPE under the IDEA.
The essence of a court’s equity power lies in its inherent ability to adjust remedies
in a practical way to redress injuries resulting from a denial of a constitutional right.
Freeman v. Pitts, 503 U.S. 467, 487, 112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992). We hold
that compensatory education is a form of equitable relief available to those who have
been denied the rights guaranteed under the state’s educational statutes and remand this
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No. 101799-5
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case for the trial court to consider an appropriate remedy, which may include
compensatory education.
4. M.G’s Constitutional Right to an Education
Washington’s constitution provides that it is the State’s duty to “make ample
provision for the education of all [resident] children.” WASH . CONST . art. IX, § 1. It is a
positive constitutional right that does not constrain government action but, rather,
requires it. McCleary v. State, 173 Wn.2d 477, 519, 269 P.3d 227 (2012). We look to
“whether the state action achieves or is reasonably likely to achieve ‘the constitutionally
prescribed end.’” Id. (quoting Helen Hershkoff, Positive Rights and State Constitutions:
The Limits of Federal Rationality Review, 112 H ARV . L. REV . 1131, 1137 (1999)). The
word “education” consists of the opportunity to obtain the knowledge and skills described
in case law and legislatively enacted education goals but does not reflect a right to a
guaranteed educational outcome. Id. at 525-26.
M.G. contends that the education he was receiving after his enrollment at Yakima
Online was so deficient that it was unconstitutional. He claims that the District violated
his right to an education when it moved him to an online program without appropriate
academic support, without core classes for basic education, without needed technology,
and without a culturally competent reengagement plan. The District denies this and
claims that M.G. was unsuccessful due to his own failure to consistently attend classes.
The District also urges us to adopt a “total exclusion” standard used by other jurisdictions
to determine whether a student’s right to education has been violated. Under the total
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exclusion standard, students are deprived of their right to education only when they are
totally excluded from the educational process. See A.V. v. Plano Indep. Sch. Dist., 585 F.
Supp. 3d 881, 894 (E.D. Tex. 2022) (noting that courts will look at whether a student has
been totally excluded from the educational process to determine if their right to an
education has been violated).
Whether Yakima Online was sufficiently comparable to the regular educational
services at Eisenhower was not litigated below. Without a sufficient record, it is difficult
to determine whether M.G. was provided with the opportunity for an adequate education.
Moreover, because we remand for the trial court to determine an equitable remedy for
statutory violations, we decline to address this issue.
5. M.G.’s Motion To Strike
Finally, M.G. moves to strike portions of the District’s briefing. We grant M.G.’s
motion, in part.
M.G. moves to strike sections of the District’s response briefs to amici curiae.
M.G. contends the District violated RAP 10.3(a)(5). RAP 10.3(a)(5) states that a
reference to the record “must” be included for each factual statement. This appellate rule
concerns briefs of the appellant or petitioner—that is, briefs on the merits. The contested
briefs here are not merits briefs, they are answers to an amici. On its face, RAP
10.3(a)(5) does not apply.
The rule addressing answers to amici curiae briefs says only that they “should” be
limited to new matters raised in the amici brief. RAP 10.3(f). Generally, all briefing to
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No. 101799-5
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this court should provide citation to the record. See Hurlbert v. Gordon, 64 Wn. App.
386, 400, 824 P.2d 1238 (1992) (stating that the purpose underlying RAP 10.3(a)(5) and
related rules is to “efficiently and expeditiously” allow the court and opposing counsel to
review the accuracy of the facts and relevant legal authority). Specific record citations
are not expressly required in a party’s answer to amici, and the District largely cures that
failure by providing citations in its opposition to the motion to strike. RAP 10.4(f)
(“Reference to Record. A reference to the record should designate the page and part of
the record.” (emphasis added) (boldface omitted)).
Those record citations, however, do not support all of the challenged portions of
the District’s briefing. See Dep’t of Labor & Indus. v. Lanier Brugh, 135 Wn. App. 808,
822-23, 147 P.3d 588 (2006) (presenting facts outside the record is inappropriate for
consideration under RAP 9.1’s requirements for the composition of the record).5
Therefore, we strike two portions of the District’s answer to amicus curiae of the
ACLU that were not part of the record.
First, on page 15 of the District’s answer, M.G. asks us to strike the paragraph
beginning, “There was no evidence produced in any prior . . . .” Resp. to Br. of ACLU of
WA Found. at 15. This paragraph references gang-style haircuts, wearing of gang colors,
and potential for gang violence. The record supports all but one statement in this
5 Though we have at times taken judicial notice of facts outside the record provided by amicus,
e.g., New Meadows Holding Co. v. Washington Water Power Co., 102 Wn.2d 495, 502, 687 P.2d
212 (1984), no party in the present case has asked us nor would it be proper to do so here. See
Cameron v. Murray, 151 Wn. App. 646, 658-59, 214 P.3d 150 (2009) (noting courts may take
judicial notice of facts outside the record if they meet the criteria under ER 201 or if they are
considered legislative facts).
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No. 101799-5
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paragraph—that “M.G. is a well-known member of the Norteño gang.” Id. The record
does not appear to support this assertion.
Similarly, the second statement sought to be struck is on pages 17 to 18 of the
District’s answer. M.G. seeks to strike the paragraph starting, “The decision to not allow
M.G. among the general population . . . .” Id. at 17. This paragraph discusses the
ACLU’s assertion that M.G.’s gang affiliation was “perceived,” while the District
contends it was “real gang” activity. Id. at 17-18. The District’s support for its claim that
M.G. engaged in real gang activity and is a well-known gang member appears to come
from a motion in the Court of Appeals. In the court below, the District moved to dismiss
the case as moot; it included declarations stating that after his suspension, M.G. was
subsequently involved in a gang shooting where he shot and killed a rival gang member
and was the target of retaliation. Here, the District’s reference to these facts is not
connected to mootness, which was the original rationale for allowing the facts into
evidence at the Court of Appeals. If the District wished to rely on these facts outside the
context of mootness, it should have moved to supplement the record under RAP 9.11. It
did not. Accordingly, these facts exist outside the record and thus the motion to strike is
granted in part. RAP 10.7.
CONCLUSION
The District’s refusal to allow M.G. to return to Eisenhower was a disciplinary
decision. RCW 28A.600.015(1) and WAC 392-400-430(8) outline the procedures that
must be followed when subjecting students to disciplinary suspensions. We hold that the
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No. 101799-5
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District failed to follow these procedures, violating M.G.’s right to due process and
effectively indefinitely suspending M.G. from Eisenhower where he was entitled to
return. We further find that compensatory education is a potential equitable remedy for
violations of student disciplinary statutes and regulations. Accordingly, we affirm the
Court of Appeals and remand to the superior court to determine the appropriate remedy.
___________________________________
Madsen, J.
WE CONCUR:
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