Nieshe v. Concrete School Dist.

Decision Date09 August 2005
Docket NumberNo. 54451-9-I.,54451-9-I.
CourtWashington Supreme Court
PartiesJennifer D. NIESHE and Lory Dan Nieshe, Respondents, and James M. Past and Vicki Past, Plaintiffs, v. CONCRETE SCHOOL DISTRICT, Appellants, and Janis D. Schweitzer, William Giller, Gil Johnson, Concrete School Board, Defendants.

William Coats, Daniel C. Montopoli, Tacoma, for Appellants

K. Garl Long, Mount Vernon, for Respondents.

BAKER, J.

¶ 1 We are asked to decide whether the superior court erred by sustaining a jury verdict in favor of Jennifer Nieshe on a 42 U.S.C. § 1983 claim, under which she argued that the Concrete School District denied her due process when it arbitrarily and capriciously excluded her from participating in a high school graduation ceremony. We conclude that the court erred, and reverse. Nieshe did not have a cognizable right under § 1983 because participation in a graduation ceremony is not a life, liberty, or property interest protected by the Due Process Clause of the Federal Constitution.1

I

¶ 2 Jennifer Nieshe (formerly Jennifer Past) became pregnant during her senior year at Concrete High School. In order to graduate, Nieshe had to pass a course called "Current World Problems" (CWP). Students needed a grade of D, or 60 percent, to pass CWP.

¶ 3 During the second half of the last semester, when Nieshe was already several months pregnant, her grade in CWP fell below her previous C minus average. The final exam consisted of two quizzes worth 50 points each. Nieshe received 22 percent on the first quiz. Her teacher, Janis Schweitzer, warned Nieshe that she was in danger of failing CWP, and told her that she needed at least a B on the final quiz in order to pass the class and graduate. Nieshe took the second quiz the day before graduation and received a C, which gave her a grade for the semester of 58.8 percent.

¶ 4 The next morning, on the day of graduation, Principal William Giller met with Nieshe, Schweitzer, and Nieshe's mother to determine whether Nieshe had been treated fairly. Giller reviewed Schweitzer's records and concluded that Nieshe's grade could not be raised to 60 percent under the class grading policy. Giller told Nieshe that she would not graduate just hours before the ceremony was scheduled to begin. Nieshe was not permitted to participate in the graduation ceremony.

¶ 5 The following month, Dr. Marie Phillips became superintendent of Concrete School District. Nieshe's parents contacted Dr. Phillips and informed her of Nieshe's situation. She met with the family and suggested that the school could use a 504 plan to increase Nieshe's grade in CWP. A 504 plan is a type of special education plan, which is applied to students with temporary or permanent disabilities. The plan is not routinely used for pregnant students, but could properly be applied. Dr. Phillips drafted an agreement using the 504 plan, under which the total points that Nieshe could have earned in CWP were reduced by participation points that she was unable to earn due to excused absences. This adjustment allowed Nieshe to graduate.

¶ 6 Almost three years after she was prevented from attending her graduation ceremony, Nieshe, her husband, and her parents filed suit against the District and three individual defendants under 42 U.S.C. § 1983, alleging discrimination and a due process violation. The superior court dismissed Nieshe's parents as plaintiffs for lack of standing and the individual defendants based on qualified immunity. The District moved to exclude evidence of the 504 plan agreement, arguing that it was an offer of compromise and a subsequent remedial measure. The superior court disagreed and denied the motion.

¶ 7 Nieshe asked the superior court to sanction the District for a discovery violation. Nieshe argued that the District violated the discovery rules because it did not produce a computer disk that was in Schweitzer's possession, which contained data of grade reports for the 1999 CWP students. During discovery, Nieshe had requested from the defense "grading records or documents related to grades or grading." Although the District provided the plaintiffs hard copies of Nieshe's grading report, it did not produce the disk until the first day of trial. Schweitzer said that she found the disk while looking for a software program that she had used for grading during the 1998-1999 school year. Schweitzer did not find a copy of the program, but she decided to turn over the disk that she found. The plaintiffs were unable to access the information on the disk. The court concluded that there may have been a discovery violation because the disk was within the scope of discovery and was not produced before trial, but decided that sanctions were not warranted because the information on the disk could not be retrieved.

¶ 8 A jury found that the District violated Nieshe's right to due process by arbitrarily and capriciously violating its own policies and excluding her from the graduation ceremony. It awarded $5,000. The jury found that the District did not discriminate against Nieshe, however. Nieshe moved for entry of judgment and an award of attorney fees and the District moved for judgment as a matter of law and reconsideration. The court denied the District's motion. It entered judgment and awarded Nieshe $5000, $30,864.60 in attorney fees, and $854.60 in costs.

II.

¶ 9 The District makes three arguments on appeal: (1) Nieshe's due process claim was untimely; (2) the trial court erred by not granting the District's motion for judgment as a matter of law; and (3) the trial court erred by admitting evidence of the 504 plan agreement. On cross-appeal, Nieshe argues that the superior court erred by not sanctioning the District for violating the discovery rules.

¶ 10 Whether the statute of limitations bars a claim is a legal question, which we review de novo.2 We also review an order on a motion for judgment as a matter of law de novo.3 The trial court's decisions to admit evidence and not to impose discovery sanctions are reviewed for an abuse of discretion.4

¶ 11 The District first argues that Nieshe's claim was governed by RCW 28A.645.010, which provides that anyone aggrieved by a school official's decision must appeal the decision within 30 days. But Nieshe filed her due process claim under 42 U.S.C. § 1983, which provides that any state actor who deprives another "of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."5 When a person acting under the color of state law deprives an individual of due process guaranteed by the federal constitution, the individual may sue under § 1983 for damages. "Section 1983 is derived from § 1 of the Civil Rights Act of 1871," and "was intended to create `a species of tort liability' in favor of persons deprived of federally secured rights."6 The United States Supreme Court has held that the applicable state law period for personal injury torts is the appropriate limitations period for § 1983 claims arising under the Constitution.7 Thus, the three year statute of limitations for personal injury torts under Washington law applies to a § 1983 action alleging due process violations.8

¶ 12 The jury was not instructed on Nieshe's claim under § 1983, however. The parties entered an agreement, in which Nieshe stipulated to simplifying the jury instructions in exchange for the defendant waiving its right to appeal issues relating to the instructions. The parties complicated matters by stipulating to the sole jury instruction on due process, which states: "To establish the due process claim, the plaintiffs have the burden of proving that the school district arbitrarily or capriciously violated its own policies and, in so doing, excluded Ms. Nieshe from her graduation ceremony."9 The parties agreed that this instruction was adequate for both the state and federal due process claims, and that a verdict for the plaintiff on the due process claim would be regarded in every way as a verdict for the plaintiff on both the state and federal claims.10 Additionally, the parties agreed not to instruct the jury on § 1983, stipulating that "a verdict in favor of the plaintiff will be regarded in every way as a verdict on the section 1983 claims."

¶ 13 Nieshe contends that the District thus stipulated away its right to claim that she had no valid § 1983 claim. But the District maintained its objection that the due process claim was not valid. At the point it stipulated to the jury instructions, the court had already decided that there was a cognizable § 1983 claim, and rejected the District's motion to dismiss for timeliness. The District maintained that there was no federally protected interest in a graduation ceremony, that the only due process required was that provided by state law, and therefore Nieshe's claim was necessarily governed by the 30-day statute of limitations. The District excepted to the due process instruction on the grounds that the claim was precluded because it was subject to the 30-day statute of limitations.

¶ 14 Nieshe did not have a cognizable claim under § 1983. Section 1983 only provides a cause of action when an individual has been deprived of a right secured under the laws and Constitution of the United States.11 We conclude that attending a high school graduation ceremony is not a federally protected right.12

¶ 15 Nieshe's due process claim could only arise under the United States Constitution. The Due Process Clause provides two kinds of protection, procedural due process and substantive due process. Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property.13 Substantive due process generally asks whether the government abused its power by arbitrarily...

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