Hill v. Wash. Interscholastic Activities Ass'n

• Decision Date: 10 May 2021
• Docket Number: No. 80233-0-I,80233-0-I
• Court: Washington Court of Appeals
• Parties: ANTONIO HILL, individually; ISAIAH IFANSE, a minor through his mother JENNIFER IFANSE; and ERON KROSS, individually, Appellants/Cross Respondents, v. THE WASHINGTON INTERSCHOLASTIC ACTIVITIES ASSOCIATION, a Washington nonprofit Corporation, Respondent/Cross Appellant, and BELLEVUE SCHOOL DISTRICT NO. 405, a municipal corporation and subdivision of the State of Washington, Defendant.

ANTONIO HILL, individually;ISAIAH IFANSE, a minor through his mother JENNIFER IFANSE;and ERON KROSS, individually, Appellants/Cross Respondents, v. THE WASHINGTON INTERSCHOLASTIC ACTIVITIES ASSOCIATION,a Washington nonprofit Corporation, Respondent/Cross Appellant,and BELLEVUE SCHOOL DISTRICT NO. 405, a municipal corporationand subdivision of the State of Washington, Defendant.

No. 80233-0-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

May 10, 2021

UNPUBLISHED OPINION

BOWMAN, J. — A group of former Bellevue High School (BHS) students sued the Bellevue School District (BSD) and the Washington Interscholastic Activities Association (WIAA), alleging that investigations into possible athletic rule violations were negligent and discriminatory contrary to the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW; and the common school provisions of chapter 28A.642 RCW. WIAA argued it was immune from liability under the Washington Act Limiting Strategic Lawsuits Against Public Participation (anti-SLAPP) statute, RCW 4.24.510. The trial court concluded that immunity did not protect WIAA but dismissed the students' claims on summary judgment. We affirm.

FACTS

WIAA is a nonprofit organization authorized to oversee and administer policies, rules, and regulations for high school interscholastic activities, including athletics, for nearly 800 member schools in Washington. BSD is a member school district of WIAA.

The BHS football program is "one of the most successful . . . in the entire nation." In 2015, BSD asked WIAA to investigate claims of rule violations by the BHS football program that had appeared in a Seattle Times news article. Sources accused the school of improperly recruiting athletes from outside the district and subsidizing their tuition at the Academic Institute Inc.,¹ housing, and athletic training after relocating to the city of Bellevue.² WIAA hired two former federal prosecutors experienced with public school district inquiries to investigate the allegations.

The investigators asked BSD to provide a list of transfer students and their records to help focus the investigation. BSD refused, citing the family educational and privacy rights act, 20 U.S.C. § 1232g. Since the investigators were not agents or employees of the school, attorneys for BSD would not disclose the information without parent authorization. The investigators askedBSD to commission them as agents to gain access to the records but BSD refused.

Without help from the school, the investigators compiled a list of 42 current and former football players they believed had transferred to BSD between 2008 and 2015. An anonymous source told them that certain players on the list had lied about their addresses so they would be eligible to play football at BHS. An interview with a coach outside the district corroborated the tip. Acting on the information, investigators requested interviews with 9 students. BSD sent a letter to the students' parents and guardians, encouraging them to "support your son meeting with the WIAA investigators to answer their questions" and welcoming the parents' presence at the interviews. The letter clarified that the interviews were voluntary but also that "[a] failure to cooperate may contribute to an adverse inference in the investigative report[,] which may be detrimental to the interests of [BHS] and its football program."

Of the nine students that received interview requests, seven agreed to the interviews—three white students and four students of color. A parent and school administrator was present for each interview. The school administrator and the investigators agreed on the scope of the interviews beforehand. During the interviews, investigators would seek to answer five specific questions:

[1.] Whether coaches directed athletes to attend the Academic Institute

[2.] Whether [the] Booster [Club] had paid tuition of athletes at [the] Academic Institute

[3.] Whether athletes used false addresses to gain eligibility

[4.] Whether athletes received subsidized housing to gain eligibility

[5.] Whether coaches are coordinating tuition payment for athletes.

After the interviews, students Antonio Hill, Isaiah Ifanse, and Eron Kross accused investigators of using aggressive, bullying tones and mannerisms and asking inappropriate questions about socioeconomic circumstances beyond the investigation's scope. Hill and Ifanse also alleged that the investigators targeted them based on their race.³ The three students filed harassment, intimidation, and bullying complaints with BSD. The district determined that some of the investigators' interview questions exceeded the scope of the investigation but did not rise to the level of harassment, intimidation, or bullying.

The students then filed a complaint for damages in superior court.⁴ They alleged BSD and WIAA conducted their investigation negligently. Hill and Ifanse also sought damages for racial discrimination under the WLAD; chapter 28A.642 RCW, the common school provision prohibiting discrimination in public schools; and the right to freedom from discrimination statute, RCW 49.60.030.⁵ The complaint sought attorney fees and costs and damages for emotional distress.

BSD and WIAA each filed motions for summary judgment. WIAA argued that the negligence and discrimination claims failed as a matter of law. WIAA also asserted immunity from any liability under RCW 4.24.510.

In opposition to WIAA's motion for summary judgment, the students offered expert testimony from University of North Carolina Greensboro Associate Professor Dr. Steven Cureton. Dr. Cureton has a doctorate in sociology with an emphasis on criminology, family, and race in America. Dr. Cureton used aprocess called "content analysis theory," which examines words and word patterns to identify discriminatory themes and resulting adverse symptomology. He applied this analysis to Kross, Hill, and Ifanse's depositions. Dr. Cureton also used "critical race theory" to interpret their depositions. Dr. Cureton concluded that all three students experienced discrimination.

The trial court granted BSD's motion for summary judgment with prejudice and dismissed BSD as a defendant. The court concluded BSD owed no duty to the students because it was not acting in loco parentis⁶ at the time of the interviews.⁷ The trial court granted in part and denied in part WIAA's motion for summary judgment. It determined that WIAA was not immune under RCW 4.24.510 but dismissed the students' negligence claims because they "failed to meet the objective symptomology requirement to support their claim." Hill and Ifanse's discrimination claims remained.

WIAA then moved to exclude Dr. Cureton's testimony. The trial court granted WIAA's motion, finding that "it would not be helpful" to the trier of fact under ER 702. The court also concluded that "content analysis is not a generally accepted methodology to assess discrimination and its effects" under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).⁸

The trial court then dismissed Hill and Ifanse's remaining claims under the WLAD and chapter 28A.642 RCW. The court concluded that "WIAA is not a place of [public] accommodation" under chapter 49.60 RCW and Title 28A RCW did not establish a cause of action against WIAA.

The students appealed. WIAA cross appealed, arguing the trial court erred in dismissing its immunity defense.

ANALYSIS

Anti-SLAPP Immunity

WIAA argues that the trial court "improperly rejected" their immunity defense because the students' allegations "all 'stem from' the investigators' report that WIAA provided to BSD," and the anti-SLAPP statute "immunizes all such claims." The students argue the anti-SLAPP statute does not confer immunity to WIAA because the investigators' conduct was not "based upon"⁹ WIAA's communication to BSD.¹⁰ We agree with the students.

We review the grant or denial of an anti-SLAPP motion de novo. Dillon v. Seattle Deposition Reporters, LLC, 179 Wn. App. 41, 70, 316 P.3d 1119 (citing City of Longview v. Wallin, 174 Wn. App. 763, 776, 301 P.3d 45, review denied, 178 Wn.2d 1020, 312 P.3d 650 (2013)), review granted, 180 Wn.2d 1009, 325 P.3d 913 (2014). RCW 4.24.510, also known as the "anti-SLAPP statute," grantsimmunity from civil liability to a person who reports potential wrongdoing to government authorities. RCW 4.24.510 states, in pertinent part:

A person who communicates a complaint or information to any branch or agency of federal, state, or local government, or to any self-regulatory organization that regulates persons involved in the securities or futures business and that has been delegated authority by a federal, state, or local government agency and is subject to oversight by the delegating agency, is immune from civil liability for claims based upon the communication to the agency or organization regarding any matter reasonably of concern to that agency or organization.

The legislature enacted the anti-SLAPP statute to encourage the reporting of potential wrongdoing to governmental entities by protecting reporting parties from the threat of retaliatory lawsuits. Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp. 2d 1104, 1109 (W.D. Wash. 2010). The statute recognizes that "information provided by citizens concerning potential wrongdoing is vital to effective law enforcement" and that "the threat of a civil action for damages could be a deterrent to citizens who wish to report such information to law enforcement agencies." Tham Thi Dang v. Ehredt, 95 Wn. App. 670, 681, 977 P.2d 29 (1999) (citing RCW 4.24.500).

Relying on Tham Thi Dang, WIAA argues that it is immune from liability for any discriminatory conduct by its investigators because the anti-SLAPP statute "extends not only to allegations based expressly on communications to public entities, but also to allegations based on conduct leading to such communications." In Tham Thi Dang, a bank employee suspected Tham Thi Dang was trying to cash a fraudulent check. Tham Thi Dang, 95 Wn....