Antonio Hill, Apps./x-resps. V. Wa Interscholastic Activities Assoc., Resps./x-apps. ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ANTONIO HILL, individually; ISAIAH ) No. 80233-0-I
IFANSE, a minor through his mother )
JENNIFER IFANSE; and ERON ) DIVISION ONE
KROSS, individually, )
)
Appellants/Cross Respondents, )
)
v. )
)
THE WASHINGTON )
INTERSCHOLASTIC ACTIVITIES )
ASSOCIATION, a Washington non- )
profit Corporation, )
) UNPUBLISHED OPINION
Respondent/Cross Appellant, )
)
and )
)
BELLEVUE SCHOOL DISTRICT NO. )
405, a municipal corporation and )
subdivision of the State of Washington, )
)
Defendant. )
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
Citations and pin cites are based on the Westlaw online version of the cited material.
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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 asked
1 The Academic Institute is a small private school within the BSD that does not have an
athletics department. Students at a private school without a football team can play for a public
school in the same district.
2 Sources also accused BSD of lenient curriculum requirements for football players.
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BSD 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.
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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 a
3 Hill and Ifanse are black. Kross is white.
4 Ifanse’s mother Jennifer Ifanse was also a named plaintiff.
5 Plaintiffs also cited the WAC.
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process 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
6“The term ‘in loco parentis’ means, ‘[i]n the place of a parent; instead of a parent;
charged, factitiously, with a parent’s rights, duties, and responsibilities.’ ” Zellmer v. Zellmer, 164
Wn.2d 147, 164, 188 P.3d 497 (2008) (quoting BLACK’S LAW DICTIONARY 787 (6th ed.1990)).
7 The students do not appeal the dismissal of their claims against BSD.
8The Frye standard allows a court to admit scientific evidence only if it is generally
accepted in the relevant scientific community. State v. Copeland, 130 Wn.2d 244, 255, 922 P.2d
1304 (1996).
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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,” grants
9 See RCW 4.24.510.
10 The students also argue that WIAA is not a protected “person” under RCW 4.24.510
because it is an entity delegated to act by a government agency. But our Supreme Court recently
held in Leishman v. Ogden Murphy Wallace, PLLC, 196 Wn.2d 898, 899, 479 P.3d 688 (2021),
that a “government contractor hired to perform an independent investigation is a ‘person’ ” under
the anti-SLAPP statute.
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immunity 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. App. at
672-73. The employee reported the suspicions to police, confiscated her
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identification, and would not let her leave until police arrived to investigate. Tham
Thi Dang, 95 Wn. App. at 674. The police arrested Tham Thi Dang but later
determined the check was not fraudulent and released her. Tham Thi Dang, 95
Wn. App. at 675-76.
Tham Thi Dang sued the bank for unlawful imprisonment. Tham Thi
Dang, 95 Wn. App. at 676. The bank claimed immunity under the anti-SLAPP
statute and the trial court granted the bank’s summary judgment motion. Tham
Thi Dang, 95 Wn. App. at 681. We affirmed, adopting the reasoning from
Hunsucker v. Sunnyvale Hilton Inn, 28 Cal. Rptr. 2d 722, 724-25, 23 Cal. App.
4th 1498 (1994), that “it was indisputable that all the actions out of which the
plaintiff’s complaint arose were a result of the communication . . . to the police”
and “should be encompassed within the scope of the immunity.” Tham Thi Dang,
95 Wn. App. at 684-85. Allowing a cause of action for the events surrounding the
communication to police, while immunizing the communication itself, would
thwart the policies and goals underlying the immunity statute. Tham Thi Dang,
95 Wn. App. at 683.
Similarly, in Leishman, the Washington State Office of the Attorney
General (AGO) retained law firm Ogden Murphy Wallace (OMW) to “conduct an
independent investigation into Leishman’s discrimination complaint [against the
AGO] and his supervisor’s allegation that Leishman was inappropriate” during
their meeting to discuss his complaint. Leishman, 196 Wn.2d at 901. OMW
reported to the AGO that Leishman had not established discrimination and that
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his conduct during the meeting “ ‘violated expected standards of conduct for his
position.’ ” Leishman, 196 Wn.2d at 901. The AGO terminated Leishman.
Leishman sued OMW, arguing that OMW’s negligence, negligent
misrepresentation, fraud, and discrimination in investigating his discrimination
complaint and reporting his conduct during the meeting damaged him.
Leishman, 196 Wn.2d at 901-02. Our Supreme Court concluded that OMW was
immune from liability under the anti-SLAPP statute because “Leishman’s claims
regarding OMW’s conduct during the investigation are the starting point or
foundation of the communication to the government agency, and his damages all
stem from that final communication.” Leishman, 196 Wn.2d at 910-11.
Unlike Tham Thi Dang’s false imprisonment claim stemming from the
bank’s report that she tried to pass a fraudulent check, or Leishman’s termination
from employment stemming from OMW’s investigatory report, the students’ claim
of emotional distress does not stem from WIAA’s communication to BSD about
rule violations. Instead, their claim stems directly from the investigators’
misconduct. As a result, the students’ claim of emotional distress is not “based
upon”11 WIAA’s communication to BSD, and WIAA is not immune from civil
liability under the anti-SLAPP statute.12 The court did not err in rejecting WIAA’s
immunity defense.
11 RCW 4.24.510.
12 Nor would immunizing WIAA investigators from liability for racial discrimination and
bullying during the course of their investigation further the policies and goals of the anti-SLAPP
statute.
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Summary Judgment
The students assert the court erred in dismissing their claims against
WIAA on summary judgment. We review a trial court’s order granting summary
judgment de novo. Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 776,
249 P.3d 1044 (2011).
A trial court properly grants summary judgment when, viewing all facts and
reasonable inferences in the light most favorable to the nonmoving party, there is
no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. CR 56(c); Elcon Constr., Inc. v. E. Wash. Univ.,
174 Wn.2d 157, 164, 273 P.3d 965 (2012); Ranger Ins. Co. v. Pierce
County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). A defendant can prevail on a
motion for summary judgment by challenging the plaintiff’s ability to establish an
essential element of a cause of action. See Young v. Key Pharm., Inc., 112
Wn.2d 216, 225, 770 P.2d 182 (1989). The defendant bears the initial burden of
showing a lack of evidence. Young, 112 Wn.2d at 225 n.1. The burden then
shifts to the plaintiff to establish the essential elements of their claim. Young,
112 Wn.2d at 225. If the plaintiff does not do so, the defendant is entitled to
summary judgment. Young, 112 Wn.2d at 225.
Negligence Claim
The students allege that WIAA negligently inflicted emotional distress on
them because its investigators were “aggressive, demanding, and would only
take the answer they wanted to hear” when interviewing them as part of their
investigation into the BHS football cheating allegations. WIAA claims the
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No. 80233-0-I/11
students did not show evidence of objective symptomatology necessary to
support damages in a claim for negligent infliction of emotional distress. We
agree with WIAA.
To prevail on a claim of negligence, plaintiffs must show (1) the defendant
owed them a duty, (2) the defendant breached that duty, (3) the plaintiffs suffered
an injury, and (4) proximate cause between the breach and the injury. Tincani v.
Inland Empire Zoological Soc’y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994).
Failure to establish any of these essential elements is fatal to the students’ claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265(1986).
To prove negligent infliction of emotional distress, the plaintiffs must
establish the same elements necessary for a negligence action. Strong v.
Terrell, 147 Wn. App. 376, 387, 195 P.3d 977 (2008). But in deciding whether to
allow damages for emotional distress without physical injury,
Washington courts have balanced the right to compensation for
emotional distress against competing interests in preventing
fraudulent claims and ensuring that tortfeasors are held responsible
only insofar as commensurate with their degree of culpability.
Bylsma v. Burger King Corp., 176 Wn.2d 555, 560, 293 P.3d 1168 (2013).
As a result, we allow claims for emotional distress without physical injury
“only where emotional distress is (1) within the scope of foreseeable harm of the
negligent conduct, (2) a reasonable reaction given the circumstances, and (3)
manifested by objective symptomatology.” Bylsma, 176 Wn.2d at 560. “These
requirements were developed to address past concerns that feigned claims
of emotional distress would lead to ‘intolerable and interminable litigation.’ ”
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Bylsma, 176 Wn.2d at 560-6113 (quoting Corcoran v. Postal Tel.-Cable Co., 80
Wash. 570, 580, 142 P. 29 (1914)). Objective symptomology requires that a
plaintiff’s emotional distress “constitute a diagnosable emotional disorder” and
that objective medical evidence proves both “the severity of the distress, and the
causal link between the [negligent behavior] and the subsequent emotional
reaction.” Hegel v. McMahon, 136 Wn.2d 122, 135, 960 P.2d 424 (1998);
Haubry v. Snow, 106 Wn. App. 666, 678-79, 31 P.3d 1186 (2001).
Here, the students pleaded a negligence action, claiming only emotional
distress as damages. But they offered no evidence showing objective
symptomology of that emotional distress. While Hill, Ifanse, and Kross each
testified that he suffered sleepless nights, periods of depression, stress, and
anxiety, none sought medical intervention or mental health treatment. Nor did
they offer a medical diagnosis. Indeed, the students’ attorney told the court,
“[T]here’s emotional aspects to it, but not diagnosable, you know, necessarily
PTSD[14] type of harm. We’re not going to go there.” Instead, the students
offered the opinion of Dr. Cureton that the investigators engaged in
discriminatory conduct. But Dr. Cureton is not a medical doctor nor a mental
health professional and is not able to render a medical or mental health
diagnosis. As he candidly admitted, “I don’t diagnose anything. . . . I’m not
qualified to diagnose mental health symptoms.”
13 Internal quotation marks omitted.
14 Post-traumatic stress disorder.
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Because the students offer no evidence that they suffered a diagnosable
emotional disorder, they do not satisfy the element of damages necessary to
sustain a claim of negligent infliction of emotional distress. The trial court
properly dismissed their claim.15
WLAD Claim
Hill and Ifanse argue the trial court erred in dismissing their claims against
WIAA alleging disparate treatment in violation of the WLAD. We disagree.
The WLAD prohibits “any person or the person’s agent or employee [from
committing] an act which directly or indirectly results in any distinction, restriction,
or discrimination” based on a person’s membership in a protected class. RCW
49.60.215. The purpose of the WLAD is to deter and eradicate discrimination in
Washington. Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of
Fraternal Order of Eagles, 148 Wn.2d 224, 246, 59 P.3d 655 (2002). We
construe the WLAD “ ‘liberally for the accomplishment of the purposes thereof.’ ”
W.H. v. Olympia Sch. Dist., 195 Wn.2d 779, 784, 465 P.3d 322 (2020) (quoting
RCW 49.60.020).
To establish a prima facie case of discrimination under the WLAD, a
plaintiff must prove that (1) the plaintiff is a member of a protected class,16 (2) the
defendant’s establishment is a place of public accommodation, (3) the defendant
discriminated against the plaintiff when it did not treat the plaintiff in a manner
comparable to the treatment it provides to persons outside that class, and (4) the
15 Because we conclude that the students did not produce evidence of objective
symptomology, we do not reach the remaining elements of their negligence claim. Celotex Corp.,
477 U.S. at 322.
16 The parties agree that Hill and Ifanse are members of a protected class.
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plaintiff’s protected status was a substantial factor that caused the discrimination.
Floeting v. Grp. Health Coop., 192 Wn.2d 848, 853-54, 434 P.3d 39 (2019)
(citing Fell v. Spokane Transit Auth., 128 Wn.2d 618, 637, 911 P.2d 1319(1996)).
To establish a disparate treatment discrimination case, a plaintiff must
show that the defendant treated some people less favorably than it did others
because of their protected status. Alonso v. Qwest Commc’ns Co., 178 Wn.
App. 734, 743, 315 P.3d 610 (2013). To overcome summary judgment, a plaintiff
need only show that a reasonable jury could find the plaintiff’s protected trait was
a substantial factor motivating the defendant’s adverse actions. Scrivener v.
Clark Coll., 181 Wn.2d 439, 445, 334 P.3d 541 (2014). “ ‘This is a burden of
production, not persuasion, and may be proved through direct or circumstantial
evidence.’ ” Scrivener, 181 Wn.2d at 445 (quoting Riehl v. Foodmaker, Inc., 152
Wn.2d 138, 149, 94 P.3d 930 (2004), abrogated on other grounds by Mikkelsen
v. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 404 P.3d 464 (2017)).
The liability inquiry focuses on whether actions led to discrimination, not
whether the proprietor of a place of public accommodation intended to
discriminate. Floeting, 192 Wn.2d at 853.
“[T]he asserted discriminatory conduct must be objectively
discriminatory. By this we mean that it must be of a type, or to a
degree, that a reasonable person who is a member of the plaintiff’s
protected class, under the same circumstances, would feel
discriminated against.”
Floeting, 192 Wn.2d at 85817 (quoting Floeting v. Grp. Health Coop., 200 Wn.
17 Emphasis omitted.
14
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App. 758, 773-74, 403 P.3d 559 (2017)).
Hill and Ifanse do not argue that WIAA was wrong to seek them out for
interviews. As their attorney argued below, “The interview is not the problem.
We’re fine with the interview. It’s the particular questions at the end of the
interview that were discriminatory and harassing.” Specifically, Hill and Ifanse
accuse WIAA investigators of having a “racist mind-set” against players and
families of color. They claim that the transfer list created by the investigators
disproportionally included black players and that the investigators subjected
players of color to more disparaging questions during their interviews. The
record does not support their contentions.
Hill and Ifanse argue that the investigators’ initial list of 42 transfer
students targeted black players because 35 of the players were people of color,
and it is “statistically impossible” that the list proportionately represented the
black population in the Bellevue community. But WIAA did not compile its initial
list of transfer students from the Bellevue community at large. Because it was
investigating allegations of improper recruiting by the BHS football team,
investigators used a list of students who had gone through WIAA “eligibility
hearings” and the rosters of BHS football players from 2008 through 2015. Hill
and Ifanse offer no evidence of the racial composition of those records. And the
investigators eventually narrowed the initial list of 42 to only 9 students from
whom they requested interviews. Of those 9 players, 4 were white.18 Hill and
18Ultimately, seven of those nine students agreed to interviews. Of the seven players,
three were white and four were black.
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Ifanse offer no evidence that the investigators compiled the initial list of transfer
students or requested interviews based on race.
Hill and Ifanse next contend that WIAA did not subject white students to
belittling questions about their ability to afford living in Bellevue as the black
students were. But the record shows that investigators also questioned Kross
about why he selected Bellevue, whether his family rented or owned their home,
and about his mother’s employment. According to Kross, the investigators were
also aggressive and disparaging to him. Hill and Ifanse did not produce any
testimony from the other two white students interviewed. But the evidence in the
record suggests that the investigators asked all of the players similar questions
about the same topics regardless of race.19
Hill and Ifanse also contend that the investigators questioned black
students in more disparaging ways than white students, including asking whether
their parents cared for them, using aggressive tones, and not accepting answers
they did not like.20 According to Hill, investigators asked his mother whether she
cared about him and whether she talked to him. But the record shows that Hill’s
mother was absent from the state for long periods of time for military service. So
it does not follow that race was a substantial factor motivating the investigators to
ask those questions. And only Kross claimed investigators threatened he would
suffer adverse consequences if he spoke his opinions publicly that the
19 WIAA provided the investigators’ notes from the three interviews of the white players.
The notes reflect questions about living arrangements, how they financed gym training, and
recruiting inducements.
20 The investigators insisted they maintained a professional and polite demeanor during
the interviews.
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investigation was racially biased. None of the students of color reported similar
threats.
The record shows that nearly everyone who interacted with the WIAA
investigators complained that they were rude and unnecessarily aggressive.
Representatives from BSD complained the investigators launched unfounded
accusations and threats against them if they did not agree to the investigators’
demands. But none of those complaints included concerns that the investigators
asked racially motivated questions or that they treated people differently based
on their race. And Hill and Ifanse produced no evidence in support of their
allegation that the investigators were disproportionately rude and aggressive
toward them because of their race. The trial court did not err in dismissing their
claim under the WLAD.21
Exclusion of Dr. Cureton’s Testimony
Hill and Ifanse contend the trial court erred by excluding their expert
witness because his testimony would not help the jury under ER 702 and his
content analysis theory was not a generally accepted methodology to assess
21 Because the students do not establish disparate treatment, we do not address the
remaining elements of their WLAD claim, including whether we should consider WIAA a place of
public accommodation. Hill and Ifanse also asserted a discrimination claim under chapter
28A.642 RCW, the common school provision prohibiting discrimination in public schools. WIAA
claims that Title 28A RCW does not apply to the students’ private cause of action. Because we
conclude Hill and Ifanse fail to establish facts sufficient to show discrimination, we do not reach
that issue.
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discrimination and its effects. We disagree.22
We review evidentiary rulings for abuse of discretion. In re Det. of
McGary, 175 Wn. App. 328, 337, 306 P.3d 1005 (2013) (citing State v. Lormor,
172 Wn.2d 85, 94, 257 P.3d 624 (2011)). The trial court has broad discretion in
determining whether an expert’s testimony is admissible under ER 702. McGary,
175 Wn. App. at 339. ER 702 provides:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion or otherwise.
To admit expert testimony under ER 702, the trial court must determine that the
witness qualifies as an expert and that the testimony will assist the trier of fact.
Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 918, 296 P.3d 860 (2013).
Expert testimony assists the trier of fact under ER 702 if it helps the jury in
understanding matters outside the competence of ordinary lay persons.
Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 600, 260 P.3d 857(2011) (citing Reese v. Stroh, 128 Wn.2d 300, 308, 907 P.2d 282 (1995)). And
the testimony must be relevant to a fact at issue. State v. Greene, 139 Wn.2d
64, 73, 984 P.2d 1024 (1999) (citing State v. Riker, 123 Wn.2d 351, 364, 869
P.2d 43 (1994)). Scientific evidence that does not help the trier of fact resolve
22 WIAA asserts the students did not timely appeal the trial court’s order excluding Dr.
Cureton’s testimony under RAP 5.2. The students assert RAP 2.2(a)(13) allows them to appeal
the order. The students’ initial notice of appeal designated the trial court’s summary judgment
orders dismissing their various claims but did not specifically designate the trial court’s order
excluding Dr. Cureton’s testimony. Months later, the students filed an amended notice of appeal,
designating the order excluding Dr. Cureton’s testimony for the first time. We conclude the order
excluding testimony is sufficiently related to the dispositive orders on summary judgment to merit
review. See RAP 2.4(b); Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 146
Wn.2d 370, 378-81, 46 P.3d 789 (2002).
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any issue of fact is irrelevant and does not meet the requirements of ER 702.
Greene, 139 Wn.2d at 73.
Hill and Ifanse contend that Dr. Cureton’s testimony was relevant to show
that the WIAA investigators subjected them to racially motivated, disparate
treatment. It is true that Dr. Cureton concluded that the WIAA investigators
engaged in disparaging and humiliating conduct. But he also concluded that all
three players, regardless of their race, “were exposed to bullying, intimidation
and harassment ruthlessness and; therefore, equally shared in the humiliation,
dehumanization and personhood negation.” For example, Dr. Cureton
concluded:
Relentlessly bombarding student-athletes [Kross], [Hill] and [Ifanse]
with rhetorical questions, accusatory statements and questions with
pre-determined answers served the purpose of embarrassing,
humiliating and intimidating plaintiffs and their mothers. . . .
....
BSD and WIAA effectively dispossessed [Kross], [Hill] and
[Ifanse] of counter-acting forces that would protect them from the
abusive line of questions, investigative tactics, gestures and threats
issued by [the investigators]. In short, BSD discriminated against
[Kross], [Hill] and [Ifanse] because BSD failed to protect student-
athletes the same way they protected district employees. WIAA
discriminated against [Kross], [Hill] and [Ifanse] because WIAA
empowered and positioned [the investigators] to levy an unjust and
discretionary methodology that resulted in the dehumanization,
belittling, and intimidation of [the three students and their mothers].
...
[]
. . . In my professional opinion, BSD and WIAA are equally
complicit in discrimination by allowing [the investigators’] tactics to
be forced on Kross, Hill and Ifanse. Such tactics were oppressive,
maligning, alienating, marginalizing, culturally imposing, exploitive,
and power dynamic co-optation.
....
. . . Kross, Hill and Ifanse have suffered and will continue to
experience the lifelong effects of being the subject of discrimination
in this setting.
19
No. 80233-0-I/20
These conclusions do not reflect different treatment toward the families of
color. And Dr. Cureton did not contend that race motivated any differences in the
phrasing of the investigators’ questions. To the contrary, Dr. Cureton found that
all three players and their families “equally” suffered harassment by the
investigators, who abused their position of power over student athletes to bully
them into submission. The trial court did not abuse its discretion when it
determined Dr. Cureton’s testimony would not help the trier of fact.23
In sum, the trial court properly denied WIAA’s claim of immunity and did
not abuse its discretion in excluding Dr. Cureton’s testimony. Because the
students did not show objective symptomology of emotional distress or that racial
motivation caused investigators to treat them disparately, the trial court did not
err in dismissing their negligence and discrimination claims on summary
judgment.
Affirmed.
WE CONCUR:
Because we hold that Dr. Cureton’s testimony did not help the trier of fact under ER
23
702, we do not reach whether “content analysis theory” satisfies the Frye standard.
20