John Doe v. Gonzaga University, No. 69456-7, (Slip Op., May 31, 2001).
May 2001 JOHN DOE v. GONZAGA UNIVERSITY 1
Cause No. 69456-7
[No. 69456-7. En Banc.]
Argued January 18, 2001. Decided May 31, 2001.
JOHN DOE, )
)
Petitioner, ) No. 69456-7
)
v. )
) En Banc
GONZAGA UNIVERSITY, )
a Washington nonprofit corporation, ) Filed: May 31, 2001
JULIA M. LYNCH, )
ROBERTA S. LEAGUE, and )
SUSAN J. KYLE, )
)
Respondents. )
__________________ )
Trial Court: Superior Court, Spokane County,
No. 94-2-03120-6, Kenneth H. Kato, J.
Randall & Danskin, by Laurel H. Siddoway, George M. Ahrend and
David Groesbeck, for petitioner.
Wiggins Law Office, by Charles K. Wiggins and Kenneth W. Masters,
for respondents.
Warren H. Fischer Jr., amicus curiae on behalf of Superintendent
of Public Instruction
Davis Wright Tremaine, by Bruce Edward H. Johnson, Eric Stahl and
Diana C. Tate, amicus curiae on behalf of Association of Washington
Business
Davis Wright Tremaine, by Bruce Edward H. Johnson, Eric Stahl and
Diana C. Tate, amicus curiae on behalf of Washington Association of
Independen
Warren H. Fischer Jr., counsel for other parties.
IRELAND, J. - Petitioner John Doe sought review of a Court of Appeals'
decision reversing the jury's award of damages (based on claims of
defamation, negligence, invasion of privacy, violation of his rights
under the Family Educational Rights and Privacy Act of 1974 (FERPA), and
breach of contract) and remanding the case for retrial solely on the
defamation claim. We hold that the jury was properly instructed and that
there is substantial evidence to sustain the jury's verdict on the
defamation, invasion of privacy, violation of FERPA, and breach of
contract claims. Because Gonzaga had no duty to investigate allegations
against John Doe, there is no cognizable claim for negligence.
Therefore, the Court of Appeals' decision is affirmed in part and
reversed in part. The case is remanded to reinstate the judgment on all
claims except negligence, which is to be dismissed.
FACTS
The witnesses presented widely divergent accounts of the facts in
this case.
In late 1992, while John Doe was an elementary education student at
Gonzaga University (Gonzaga), he had a sexually intimate relationship
with Jane Doe, a student who was studying special education at Gonzaga. /1
In October 1993, Roberta League (League), Gonzaga's teacher
certification specialist, overheard student Julia Lynch (Lynch) talking
with another student about Lynch's dissatisfaction with the way the
school dealt with complaints of date rape. Lynch said that when she had
been a resident assistant, she had observed Jane Doe in obvious physical
pain, which Jane Doe said was the result of having sex with "John."
Lynch was angry that no one from Gonzaga had bothered to find out what
had happened.
League recognized the name "John"; she knew John Doe was a student
teacher in the education program at Gonzaga. Two days later, League told
Dr. Susan Kyle (Kyle), Gonzaga's director of field experience for student
teachers, what she had overheard. Kyle and League decided that they
needed to investigate the situation. /2 League was concerned that the
allegations she had overheard about John Doe might affect the dean's
ability to submit an affidavit supporting John Doe's application for
teacher certification. /3
The two women met with Lynch on October 14, 1993. According to
Lynch, Jane Doe told Lynch that John Doe had sexually assaulted her three
times in late November or December 1992. Lynch also said that she
accompanied Jane Doe to the student health center soon after the last
assault, and the nurse concluded that Jane Doe had been date raped. /4
According to League and Kyle, Lynch said that Jane Doe claimed John Doe
verbally coerced her into participating in "aberrant sexual behavior"
with "other objects besides his penis," and urged Jane Doe to engage in
multiple partner sex. /5 Clerk's Papers (CP) at 98, 195.
At the conclusion of the meeting, League and Kyle asked Lynch to see
if Jane Doe would speak with them about her relationship with John Doe.
Lynch did, and Jane Doe became angry and told Lynch that she did not want
to make a complaint. Lynch told Kyle and League of Jane Doe's response.
League also contacted Adelle Nore, an investigator for the Office of
the Superintendent of Public Instruction (OSPI), the state agency which
certifies teachers. League and other Gonzaga personnel spoke with Nore
by telephone numerous times about the allegations of John Doe's sexual
misconduct, and League identified John Doe to Nore by name.
Nore testified that she believed Gonzaga personnel needed to speak
with both John Doe and Jane Doe about the allegations. However, Gonzaga
personnel did not ask her for her advice and did not tell Nore that they
had not talked to John Doe. It was Nore's understanding in her
conversations with League and Kyle that the alleged victim was credible
and prepared to make a statement.
On October 28, 1993, Kyle met with Jane Doe, and told her about the
date rape allegations. During the meeting, Jane Doe stated, "I guess I
don't really know what rape is," and "I promised [John] I wouldn't tell."
CP at 99. Jane Doe refused to make a formal statement.
After leaving Kyle's office, Jane Doe talked with Professor William
Sweeney (Sweeney), who later described her as near hysteria and weeping
uncontrollably. Sweeney testified that Jane Doe told him that John Doe
had sexually assaulted her on three occasions, each time more violent and
abusive, and that she screamed and tried to get away. According to
Sweeney, Jane Doe also said that John Doe repeatedly threatened her life,
and that she did not believe the university could protect her from him. /6
In January 1994, Jane Doe asked Janet Burcalow (Burcalow), chair of
the department of teacher education, not to pursue the matter. But
according to Burcalow, Jane Doe would not say that nothing happened, and
Jane Doe admitted being afraid that John Doe would be angry if he found
out she had talked about their relationship. Jane Doe testified that
Burcalow told her that Burcalow already knew something bad had happened.
Jane Doe told Burcalow these things were not true. Then Burcalow shook a
finger at Jane Doe and asked her if she knew "where people who lie go."
CP at 1886, 1925.
Cheryl Lepper, an instructor in the teacher education department,
testified at trial that Jane Doe told her in the spring of 1993 that John
Doe had forced Jane Doe to have sexual intercourse with him. According
to Lepper, Jane Doe said John Doe had restrained her, forced her to have
sex, and had then stalked her after she broke up with him.
In February 1994, Dr. Corrine McGuigan (McGuigan), dean of the school
of education, met with League, Kyle, Burcalow, and Sweeney. McGuigan
obtained written summaries of the narratives they presented to her, and
later concluded that there was sufficient evidence of a serious
behavioral problem to preclude her from signing the moral character
affidavit supporting John Doe's application for teacher certification. /7
John Doe first learned about Gonzaga's investigation of him on March 4,
1994, the same day he made his final payment of fees and tuition to
Gonzaga. John Doe received a call asking him to come to McGuigan's
office. He was escorted to a private room and left to read a letter from
McGuigan. The letter explained that in light of allegations of sexual
assault, McGuigan would not give John Doe the moral character affidavit
required to support his application for certification to teach. McGuigan
refused to tell John Doe who had made the allegations against him.
Testimony was also presented that when John Doe and his parents asked
about their appeal rights, they were told there were none.
By the time of trial, Jane Doe had married and was attending graduate
school in another state. Because she was unavailable, John Doe presented
her testimony through portions of a 1997 videotaped deposition, which
were shown to the jury. In both the videotaped deposition and a 1995
deposition, Jane Doe denied that John Doe had sexually assaulted her. She
denied that she had made many of the statements that Gonzaga personnel
attributed to her. She testified that Lynch had "really blown things out
of proportion," and that there were falsehoods in the declarations of
Kyle, Burcalow, and Sweeney. Report of Proceedings (RP) at 877. Jane
Doe denied speaking about personal matters to Lepper. She testified that
she had tried to dissuade Kyle and Burcalow from pursuing the
allegations. Jane Doe felt that Burcalow "wasn't interested in hearing
anything other than what she already believed." CP at 1887. Jane Doe
told McGuigan that Gonzaga personnel were "wrong in their assumptions"
about what had happened in her relationship with John Doe. Id.
She testified that some of the things that happened in her sexual
relationship with John Doe made her uncomfortable.
John Doe testified that he and Jane Doe had sexual intercourse on five
occasions. He said he stopped when she seemed uncomfortable, and she
never asked him to stop. John Doe presented the testimony of roommates
that they never saw or heard any indication that Jane Doe was unwilling
to engage in sexual intercourse. He presented the testimony of two
former girl friends that John Doe never pressured them to engage in
sexual activity, never tried to talk them into sexual activity
uncomfortable to them, and never criticized them for not engaging in sex.
John Doe testified that he found "a lot of lies" when he read the
declarations of League, Kyle, Burcalow, and Sweeney. RP at 449. The
declarations made him disgusted and angry. John Doe said that Gonzaga
destroyed his career in teaching, his goals, and his dreams.
PROCEDURAL HISTORY
In June 1994, John Doe brought an action against Jane Doe and Gonzaga.
John Doe sued Jane Doe for falsely accusing him of sexual assault or
rape; he sued Gonzaga for republishing the accusations "both between and
among staff and faculty of Gonzaga and by reporting the same to the
Office of the Superintendent of Public Instruction." CP at 13. John Doe
sought to recover from Gonzaga for defamation, negligence, and breach of
educational contract. He also brought a separate action against Lynch,
League, and Kyle, individually, and the two actions were consolidated by
stipulation.
Jane Doe cross-claimed against Gonzaga, alleging defamation and
negligent investigation. She counterclaimed against John Doe for
sexually assaulting her. John Doe and Jane Doe agreed to dismiss their
claims against each other in September 1996.
Jane Doe later filed a notice of dismissal of her claims against
Gonzaga, leaving only John Doe's claims against Gonzaga and its employees
for trial. John Doe's amended complaint asserted claims for defamation,
intrusion into his private affairs, and a 42 U.S.C. § 1983 claim for
violation of 20 U.S.C. § 1232g(b) (FERPA) against all parties, and claims
for negligence and breach of educational contract against Gonzaga.
Following a trial held in Spokane County Superior Court between March
17 and April 1, 1997, the jury returned a verdict in John Doe's favor,
awarding him damages as follows:
Defamation $500,000
Breach of Educational Contract 55,000
Negligence 50,000
Invasion of Privacy 100,000
Violation of "FERPA" Rights 150,000
Punitive Damages for FERPA Violation 300,000
--------
TOTAL $1,155,000
The trial court entered judgment on the verdict and also awarded John Doe
attorney fees and costs under 42 U.S.C. § 1988.
Gonzaga appealed to the Court of Appeals, seeking review of the
judgment and the trial court's rulings denying Gonzaga's posttrial
motions and awarding attorney fees to the plaintiff. John Doe cross-
appealed, seeking review of the trial court's order denying his motion
for CR 26(g) sanctions. By order of the Court of Appeals, the matter was
transferred from Division Three to Division One.
The Court of Appeals reversed the negligence, invasion of privacy,
42 U.S.C. § 1983, and breach of contract awards and remanded for a new
trial on the defamation claim. The appellate court also held that the
trial court abused its discretion in failing to impose CR 26(g) sanctions
against Gonzaga for discovery abuse. The trial court was ordered "to
impose an appropriate sanction on remand." Doe v. Gonzaga
Univ., 99 Wn. App. 338, 361, 992 P.2d 545 (2000).
This Court granted John Doe's petition for review of the Court of
Appeals' decision. Doe v. Gonzaga Univ., 141 Wn.2d 1023, 10
P.3d 1075 (2000).
ANALYSIS
Standard of Review
Questions of law are reviewed de novo. Mountain Park Homeowners
Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994). Factual
findings are reviewed under the substantial evidence standard: "The
record must contain a sufficient quantity of evidence to persuade a
rational, fair-minded person of the truth of the premise in question."
Canron, Inc. v. Fed. Ins. Co., 82 Wn. App. 480, 486, 918 P.2d
937 (1996).
An appellate court may overturn a jury's verdict only if the verdict
is "clearly unsupported by substantial evidence." Burnside v.
Simpson Paper Co., 123 Wn.2d 93, 108, 864 P.2d 937 (1994). The
court may not substitute its judgment for that of the jury when there is
evidence that, if believed, would support the verdict rendered.
Id.
A trial court's evidentiary rulings are upheld on appeal absent an
abuse of discretion. Sunbreaker Condo. Ass'n v. Travelers Ins.
Co., 79 Wn. App. 368, 372, 901 P.2d 1079 (1995). Abuse of
discretion is "discretion manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons." State ex rel. Carroll
v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Issues /8
In addition to certain evidentiary and procedural questions, the
primary issues in this case may be stated as follows:
1. Whether Gonzaga or its employees may be held liable for defamatory
statements made only among Gonzaga personnel.
2. Whether Gonzaga has a duty to exercise reasonable care in
collecting information or investigating whether a candidate for
certification as a teacher has a history of serious behavioral problems.
3. Whether a candidate for certification as a teacher waives his or
her common law right to privacy.
4. Whether FERPA creates any right or privilege which can be enforced
by individuals under 42 U.S.C. § 1983.
5. Whether statements in Gonzaga's bulletin and other publications
agreeing to provide an opportunity for students to be heard in matters
affecting their welfare constitute an enforceable contract with regard to
Gonzaga's issuance of an affidavit for teacher certification.
1. Defamation
"In Washington, a defamation plaintiff must show four essential
elements: falsity, an unprivileged communication, fault, and damages."
Commodore v. Univ. Mech. Contractors, Inc., 120 Wn.2d 120,
133, 839 P.2d 314 (1992). Liability for defamation requires that
the defamation be communicated to someone other than the person defamed;
in other words, there must be a "publication" of the defamation.
Pate v. Tyee Motor Inn, Inc., 77 Wn.2d 819, 821, 467
P.2d 301 (1970). The Court of Appeals vacated John Doe's defamation
award and directed that the jury be instructed on remand that Gonzaga
cannot be held liable for communications among its own employees.
More than 80 years ago, this Court held that intracorporate
communications are not "published" for purposes of defamation. "For a
corporation . . . acting through one of its agents or representatives, to
send a libelous communication to another of its agents or representatives
cannot be a publication of the libel on the part of the corporation. It
is but communicating with itself." Prins v. Holland-North Am.
Mortgage Co., 107 Wash. 206, 208, 181 P. 680 (1919). The plaintiff
there was a Seattle branch manager of a company headquartered in the
Netherlands. The alleged defamation was contained in a letter sent by
the main office and read only by the plaintiff's comanager and a
bookkeeper. The Prins court held that there had been no
publication of the allegedly defamatory statements.
In the case before us, the Court of Appeals reasoned that, likewise,
the conversations and memoranda between Gonzaga's employees regarding
John Doe should be characterized as the university communicating with
itself-not the kind of "publication" required to support a defamation
claim.
John Doe contends that the common interests of a corporation's
employees create only a qualified privilege. "A privileged communication
involves the occasion where an otherwise slanderous statement is shared
with a third person who has a common interest in the subject and is
reasonably entitled to know the information." Pate, 77 Wn.2d at 820-21.
The plaintiffs in Pate were chambermaids who sued their
employer and its supervisors for defamation. The alleged slander was a
supervisor's statement that the plaintiffs were sneaking around joining a
union-actions which amounted to Communism. The statement was made in a
meeting attended by both the plaintiffs and nonunion housekeepers. The
opinion noted that the supervisor had no duty to comment upon the
ideology of unions in the ordinary course of her work, which took her
statement outside the circumstances and principles of Prins.
Because the employees in Prins were clearly acting "within
the limits of their employment," the court was not required to address
the nature of any privilege on the communications among them.
Prins, 107 Wash. at 208. However, when the supervisor in
Pate made comments not "[i]n the ordinary course of her work,"
she could be held liable for publishing a defamatory statement to third
persons, even though the third persons were also employees of the
corporation. Pate, 77 Wn.2d at 821. Under these cases,
intracorporate communications are not absolutely privileged. When a
corporate employee, not acting in the ordinary course of his or her work,
publishes a defamatory statement, either to another employee or to a
nonemployee, there can be liability in tort for resulting damages.
In the instant case, from the evidence presented at trial, it could
reasonably be found that Julia Lynch was not acting in the ordinary
course of her work as an office assistant when she told another student
that John Doe had injured Jane Doe during a sexual relationship. It
could also be found that Roberta League was not acting in the ordinary
course of her work as a certificate specialist when she eavesdropped on
Lynch's conversation and shared her concerns of possible misconduct with
Susan Kyle. Likewise, it could be found that Roberta League and Susan
Kyle were not acting in the ordinary course of their work when they
questioned Lynch about alleged sexual assaults of Jane Doe by John Doe
and then disclosed John Doe's identity and details about his sexual
relations to Adelle Nore at OSPI.
The Court of Appeals reversed the trial court for refusing to give
Gonzaga's proposed Prins jury instruction. However, the
doctrine of Prins has been refined by Pate. The holding
of Prins must be read in conjunction with the later holding of
Pate. There is a qualified privilege for communications made
between coemployees, but that privilege may be lost if the employees are
not acting in the ordinary course of their work. The trial court's
instructions fully encompassed the principles of publication and
qualified privilege in a corporate context as announced in Pate.
Therefore, the jury was properly instructed.
When a defendant has a qualified privilege to communicate a potentially
defamatory statement, the privilege may also be lost by showing that the
defendant made the statement with actual malice. Caruso v. Local
Union No. 690, 107 Wn.2d 524, 530-31, 730 P.2d 1299 (1987). Actual
malice exists when a statement is made "with knowledge of its falsity or
with reckless disregard of its truth or falsity." Herron v. KING
Broad. Co., 109 Wn.2d 514, 523, 746 P.2d 295 (1987). "To prove
actual malice a party must establish that the speaker knew the statement
was false, or acted with a high degree of awareness of its probable
falsity, or in fact entertained serious doubts as to the statement's
truth." Story v. Shelter Bay Co., 52 Wn. App. 334, 343, 760
P.2d 368 (1988).
The Court of Appeals held that the trial court's actual malice
instruction was deficient because it failed to set forth the subjective
nature of the reckless disregard standard. John Doe contends Gonzaga's
own proposed instruction was deficient. Gonzaga's instruction reads as
follows:
"Actual malice" or "lack of good faith," when used in these
instructions, means that the defendant knew that a statement
was false or acted with reckless disregard as to whether a
statement made was true or false. One acts with "reckless
disregard for the truth or falsity of a statement" when one
knows of the existence of information which would render a
statement false and, nevertheless, without reasonable
justification, disregards the information. The plaintiff has
the burden of proving "actual malice" or "lack of good faith"
by clear and convincing evidence.
CP at 1441.
The requested instruction sets forth the correct standard of proof-clear
and convincing evidence. However, it defines a knowingly false
statement, not a statement made with recklessness. The case law cited by
Gonzaga in support of its instruction tracks the language of the
instruction given by the trial court. Gonzaga cannot be heard to
complain.
Under Washington law, the trial court properly instructed the jury
regarding the defamation claim. There was sufficient evidence for the
jury to find that communications among Gonzaga personnel and statements
made to OSPI were not privileged. Therefore, the jury's verdict and
damage award for John Doe's defamation claim are reinstated.
2. Negligence
At trial, John Doe contended that when examining witnesses and
investigating the details of his private life, Gonzaga owed a duty of
care to conduct its investigation reasonably.
The language of former WAC 180-75-082 (1989), repealed by
St. Reg. 97-04-088 (Mar. 8, 1997), the administrative regulation
authorizing Gonzaga to collect information regarding a teacher
certification candidate's potential behavioral problems, does not impose
an affirmative duty on the university to formally investigate a
candidate's personal history. /9 In fact, the regulation requires only
that a designated university official contact several faculty members who
know or knew the applicant in order to ascertain whether they have any
knowledge that the applicant has been convicted of a crime or has a
history of any serious behavioral problems.
As noted by the Court of Appeals, no statute or administrative
regulation applicable to this case imposed an affirmative duty on Gonzaga
to investigate allegations of behavioral problems among its education
students. Absent a duty to investigate, there can be no breach of duty.
Although John Doe urged the courts below to imply a duty to act
reasonably when Gonzaga voluntarily undertook to investigate, there is no
basis to create such a duty. Because Gonzaga had no duty to conduct an
independent investigation, a claim of negligent investigation cannot be
supported. The Court of Appeals properly reversed the judgment on John
Doe's negligence claim, and the claim was not pursued before this Court.
3. Invasion of Privacy
"[T]he common law right of privacy exists in this state and . . .
individuals may bring a cause of action for invasion of that right."
Reid v. Pierce County, 136 Wn.2d 195, 206, 961 P.2d 333 (1998).
The jury was properly instructed, based on Restatement (Second) of
Torts § 652B (1977), concerning John Doe's claim-
With respect to plaintiff's claim for "invasion of
privacy," the plaintiff has the burden of proving each of the
following elements by a preponderance of the evidence:
1. An intentional intrusion, physically or otherwise, upon
the solitude or seclusion of plaintiff, or his private affairs;
2. With respect to the matter or affair which plaintiff claims was
invaded, that plaintiff had a legitimate and reasonable expectation of
privacy;
3. The intrusion would be highly offensive to a
reasonable person; and
4. That the defendant's conduct was a proximate cause of
damage to plaintiff.
CP at 1478.
Gonzaga asserts that there was nothing "highly offensive" about its
attempts to determine the facts about John Doe's relationship with Jane
Doe. However, the jury heard testimony that Gonzaga personnel had
inquired into the personal relationships, habits, and even anatomy of
John Doe. Although state regulation authorizes officials from a teacher
certificate applicant's school to contact faculty members regarding the
applicant's history of serious behavioral problems, the provision does
not contemplate an investigation by nonfaculty school personnel into the
intimate details of a candidate's sex life:
"Every individual has some phases of his life and his
activities and some facts about himself that he does not expose
to the public eye, but keeps entirely to himself or at most
reveals only to his family or to close personal friends.
Sexual relations, for example, are normally entirely private
matters. . . . When these intimate details of his life are
spread before the public gaze in a manner highly offensive to
the ordinary reasonable man, there is an actionable invasion of
his privacy . . . ."
Cowles Publ'g. Co. v. State Patrol, 109 Wn.2d 712, 721, 748 P.2d
597 (1988) (quoting Restatement (Second) of Torts § 652D, at 386
(1977)).
The jury was presented with sufficient evidence of Gonzaga's
investigative activities to determine that John Doe's privacy had been
invaded and that such an intrusion would be highly offensive to a
reasonable person. The facts support John Doe's claim for invasion of
privacy. The jury's verdict and damage award for this claim are
reinstated.
4. FERPA
John Doe asserted Gonzaga's violation of his rights FERPA as the basis
for his claims for damages under the Federal Civil Rights Act (42 U.S.C.
§ 1983). John Doe argues that Gonzaga violated FERPA by disclosing
confidential information about him to OSPI.
The FERPA statute provides in pertinent part as follows:
No funds shall be made available under any applicable program
to any educational agency or institution which has a policy or
practice of permitting the release of education records (or
personally identifiable information contained therein . . .) of
students without the written consent of their parents . . . .[/10]
20 U.S.C. § 1232g(b)(1).
Gonzaga's alleged violation of FERPA rights grew out of a disclosure
practice developed by Gonzaga personnel and OSPI. The jury heard
testimony that Gonzaga personnel routinely called OSPI, before a
student's application for certification was submitted, to talk about
students as to whom they had "cause for concern" and to obtain advice.
Nore testified that the calls about John Doe that OSPI received from
League and others were typical of conversations she had with Gonzaga
personnel. In preapplication conversations, Nore would often be told the
names of the student candidates. Substantial evidence supports a
determination that Gonzaga had a "policy or practice" of disclosing
personally identifiable information contained in education records-in
violation of FERPA.
Courts have held that FERPA itself does not give rise to a private
cause of action. E.g., Fay v. S. Colonie Cent. Sch.
Dist., 802 F.2d 21, 33 (2d Cir. 1986). However, John Doe does not
allege a private cause of action under FERPA. Instead, he asserts the
FERPA violation as the basis for a claim under section 1983, which
provides a remedy for violation of federally conferred rights.
Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 509, 110 S. Ct. 2510,
110 L. Ed. 2d 455 (1990).
The Supreme Court has provided guidance on the ability of a claimant to
bring a section 1983 claim premised on the violation of a federal
statute. To determine whether a particular statutory provision gives
rise to a federal right, a court must examine the following three
factors: (1) whether Congress intended the provision in question to
benefit the plaintiff; (2) whether the right protected by the statute is
so "vague and amorphous" that its enforcement would strain judicial
competence; and (3) whether the statute imposes a binding obligation on
the states. Blessing v. Freestone, 520 U.S. 329, 329-30, 117 S.
Ct. 1353, 137 L. Ed. 2d 569 (1997).
Applying this three-factor test favors the conclusion that the FERPA
provision at issue here gives rise to a federal right enforceable under
section 1983.
First, the statute is intended to benefit students. The joint
statement in explanation of FERPA states:
The purpose of the Act is two-fold-to assure parents of
students, and students themselves if they are over the age of
18 or attending an institution o[f] postsecondary education,
access to their education records and to protect such
individuals' rights to privacy by limiting the transferability
of their records without their consent.
120 Cong. Rec. 39,862 (1974).
Second, the right is not so "vague and amorphous" that the court
cannot enforce it. Courts routinely review the policies and practices of
entities and individuals for statutory compliance.
Finally, the FERPA provision provides a binding obligation. If an
educational institution does not require student consent before it
releases educational records, "[n]o funds shall be made available under
any applicable [federal educational] program." 20 U.S.C. § 1232g(b)(1).
The Court of Appeals relied on United States Supreme Court decisions
regarding other federal statutes for guidance as to whether FERPA creates
an enforceable individual right. /11 Reasoning by analogy from these
cases, the Court of Appeals held that Gonzaga is not liable because
"FERPA does not create individual rights privately enforceable under 42
U.S.C. § 1983." Doe v. Gonzaga Univ., 99 Wn. App. at 357.
However, the Supreme Court has not ruled on FERPA, the law at issue in
this case.
Federal appellate decisions which have specifically addressed FERPA
have held that the statute creates rights actionable under section 1983. /12
These well-reasoned decisions, which are directly applicable to the
instant case, are more persuasive than those relied upon by the Court of
Appeals. In the instant case, FERPA does create individual rights
privately enforceable under section 1983.
In order to prevail on a section 1983 claim, "(1) the plaintiff must
show that some person deprived . . . [him or her] of a federal
constitutional or statutory right; and (2) that person must have been
acting under color of state law." Sintra, Inc. v. City of
Seattle, 119 Wn.2d 1, 11, 829 P.2d 765 (1992). As discussed above,
the statutory right at issue arises under FERPA.
Section 1983 itself provides in pertinent part as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States . . .
to the deprivation 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.
42 U.S.C. § 1983.
Gonzaga argues that there was no substantial evidence that it was
acting under color of state law. However, at trial, Janet Burcalow, who
served for several years as the dean's designee, testified that Gonzaga
acts for the State when it completes the moral affidavit for a student.
Burcalow confirmed that she viewed the "Gonzaga certificate department as
helping OSPI fulfill a duty that had been given to them by the
legislature." RP at 829. When asked if there is a common interest
between Gonzaga and OSPI, Burcalow responded, "Well, we work together on
the matter of certification." RP at 861. Roberta League, Gonzaga's
certification specialist, confirmed that Gonzaga is an agent of the State
in the certification process. League testified about "my job in
compliance with what I was supposed to do for the State of Washington for
certification." RP at 759.
Whether the defendants were acting under color of state law is an
issue of fact for the jury. Where there is joint action of the sort
described at trial, the jury had substantial evidence to find that action
under color of state law is present. See Kuehn v. Renton Sch. Dist.
No. 403, 103 Wn.2d 594, 602, 694 P.2d 1078 (1985) ("`It is enough
that [a private person] is a willful participant in joint action with the
State or its agents.'" (alteration in original) (quoting Dennis v.
Sparks, 449 U.S. 24, 27, 66 L. Ed. 2d 185, 101 S. Ct. 183 (1980))).
As an alternative justification for its reversal of the jury's
verdict on John Doe's FERPA claim, the Court of Appeals acted sua sponte
in holding that "even if FERPA did create individual rights enforceable
under § 1983, we would nonetheless hold that a teacher candidate
waives those rights when he or she applies for teacher
certification." Doe v. Gonzaga Univ., 99 Wn. App. at 357
(emphasis added). The Court of Appeals offers no statute, case law, or
public policy in support of its holding.
Waiver is the intentional and voluntary relinquishment of a known
right; it may be either express or implied. Jones v. Best,
134 Wn.2d 232, 241, 950 P.2d 1 (1998). To constitute implied waiver, there
must be unequivocal acts or conduct evidencing an intent to waive; intent
will not be inferred from doubtful or ambiguous factors. Wagner v.
Wagner, 95 Wn.2d 94, 102, 621 P.2d 1279 (1980). Under the facts of
this case, no such waiver by John Doe is demonstrated. In addition, John
Doe's application for teacher certification had not been submitted to
OSPI when personally identifiable information about his alleged sexual
misconduct was communicated by Gonzaga. The Court of Appeals' holding
that teacher candidates waive their FERPA rights enforceable under
section 1983 when applying for certification cannot be supported.
At trial, evidence was presented to show that personally
identifiable allegations of sexual misconduct were communicated to OSPI
by Gonzaga. The allegations became part of the public record. The jury
was properly instructed, and substantial evidence supported its unanimous
award of punitive damages to John Doe. We reinstate the jury's verdict
and damage awards for John Doe's FERPA claim.
5. Breach of Contract
Gonzaga argues that John Doe never articulated a coherent breach of
contract theory. However, at trial, Gonzaga's student handbook was
introduced. Under the heading "Mutual Responsibility," the handbook
states as follows:
The admission of a student to Gonzaga University and the
student's acceptance of that admission constitute an agreement
of mutual responsibility. The student's obligation is to
accept the published policies of the University and to act in a
manner consistent with these policies. In turn, the
University's responsibility is to provide an environment in
which the student's educational goals may be achieved. The
University also recognizes its obligation to provide students
with an opportunity to be heard in matters affecting their
welfare.
RP at 335-36.
The jury received the following proper instruction concerning the
breach of contract claim:
The relationship between a student and a university is
primarily contractual in nature. Since a formal contract is
rarely prepared, the general nature and terms of the agreement
are usually implied. Specific terms can be found in the
university bulletin and other publications.
Implied contracts arise by inference or implication in some
act or conduct. You may find implied contract by inference or
implication from circumstances which, according to the ordinary
course of dealing and people's common understanding, shows a
mutual intention on the part of the parties to contract with
each other.
The interpretation of the terms of the contract that existed
between Gonzaga and [John Doe] is for you to determine, from
the university bulletin and other publications and from all of
the facts and circumstances.
CP at 1471.
The jury was presented with Gonzaga's written representations
concerning its agreement with its students and heard extensive testimony
about the conduct of Gonzaga personnel toward John Doe. John Doe argued
that Gonzaga breached its agreement by failing to discuss the sexual
assault allegations with him before reaching a final decision not to
issue him an affidavit. John Doe testified that his long-term
educational goal was to become a teacher. Sufficient evidence was
presented for the jury to determine the existence, terms, and breach of a
contract between Gonzaga and John Doe. The jury's verdict and damage
award for John Doe's breach of contract claim are reinstated.
6. Evidentiary Issues
The trial court did not abuse its discretion in admitting four
documents prepared by Gonzaga employees in anticipation of litigation or
in refusing to admit the settlement agreement between John Doe and Jane
Doe and the testimony of two witnesses disclosed by Gonzaga late in the
trial.
7. Duplication of Damages
Gonzaga argues that the trial court judgment was excessive because
the damages awarded by the jury on John Doe's claims overlap and are
duplicative. The verdict form is actually structured so that the jury
was required to consider each of the distinct claims for damages and to
make individual determinations as to each defendant for each claim. In
addition, the jury was instructed as follows:
In this case plaintiff makes five separate claims for
damages. Previously in these instructions the court has
instructed you as to the elements of each claim and the burden
of proof applicable to each claim. If you find that Plaintiff
has not met his burden of proof on a claim then you need not
and should not consider the issue of damages with respect to
that claim.
If, on the other hand, you find that Plaintiff has sustained
his burden of proof with respect to a claim, then you should
award any damage proved with respect to that claim.
CP at 1495.
Nothing in the verdict form or the jury instruction supports the
argument that damages awarded on John Doe's claims overlap or are
duplicative. In addition, when the verdict was entered, Gonzaga made no
request for its clarification.
8. Discovery Sanctions
After document discovery and a series of depositions of Gonzaga
employees in 1994, John Doe prepared a chronology of meetings and
communications among Gonzaga personnel based on that discovery. He asked
Gonzaga, by interrogatory, to review the document, to identify any
inaccuracies, and to provide the dates and participants for any relevant
meetings and communications not listed in the chronology.
Gonzaga objected to the interrogatory, asserting it was unduly
burdensome and oppressive. Gonzaga answered by referring John Doe to
depositions and to documents and answers to interrogatories already
supplied by Gonzaga to him. Gonzaga also stated as follows: "All of the
information supplied, in the aggregate, will support the accuracy or the
inaccuracy of the `chronology.'" CP at 1320. By this statement, Gonzaga
implied that all responsive information was contained in material already
produced.
About six weeks before the 1997 trial, through an independent
motion, Gonzaga was ordered to produce documents earlier withheld on the
basis of the attorney-client privilege or as attorney work product. In
particular, John Doe obtained a chronology prepared in 1994 by Gonzaga
personnel. John Doe claims the chronology contained references to
meetings and conversations that Gonzaga had not previously disclosed,
requiring John Doe to re-depose two witnesses.
John Doe filed a CR 26(g) motion for sanctions. The trial court found
that he suffered no ultimate harm because the document was eventually
produced; therefore, the motion for sanctions was denied.
Civil Rule 26(g) requires an attorney to respond to a discovery request
after making "reasonable inquiry," and to certify that the response is:
(1) consistent with the rules, (2) not interposed for any improper
purpose, and (3) not unreasonable or unduly burdensome or expensive.
This Court has held that if a certification is made in violation of the
rule, sanctions are mandated. Wash. State Physicians Ins. Exch. &
Ass'n v. Fisons Corp., 122 Wn.2d 299, 355, 858 P.2d 1054 (1993).
In the case before us, the record reflects that Gonzaga responded to
John Doe's interrogatory without making reasonable inquiry. It was
unreasonable for Gonzaga's counsel not to ask his clients if Gonzaga
personnel had, in fact, prepared a chronology of events. Gonzaga's
representation that it would be unduly burdensome or unreasonable to
provide a chronology was misleading in that it served to deflect a motion
to compel a response to the interrogatory. Gonzaga's response was
inconsistent with the spirit and intent of the rules. For these reasons,
the Court of Appeals properly found that the trial court abused its
discretion in failing to impose CR 26(g) sanctions against Gonzaga.
We affirm the Court of Appeals' order that the trial court impose an
appropriate sanction against Gonzaga for violation of CR 26(g) on remand.
CONCLUSION
The Court of Appeals' decision is reversed and the judgment is
reinstated on the jury verdict as to John Doe's claims for defamation,
invasion of privacy, violation of his rights under FERPA, and breach of
contract.
The Court of Appeals' rulings dismissing John Doe's negligence claim
and remanding to the trial court for imposition of an appropriate
sanction against Gonzaga for violation of CR 26(g) are affirmed.
The trial court's supplemental judgment for attorney fees and costs
is reinstated, and John Doe is awarded reasonable attorney fees and
expenses on appeal pursuant to RAP 18.1.
ALEXANDER, C.J., SMITH, JOHNSON, SANDERS, BRIDGE, CHAMBERS and
OWENS JJ., concur.
_______________
1 Although the real names of the plaintiff and his sexual partner
appear in the trial transcript, the plaintiff filed suit as "John Doe"
and is so denominated here. As in the Court of Appeals' decision, John
Doe's partner is identified as "Jane Doe."
2 Trial testimony showed that the investigation eventually included
the following Gonzaga personnel: Julia Lynch, Chris Earnest, Roberta
League, Susan Kyle, Janet Burcalow, Corrine McGuigan, Jon Sunderland,
John Balog, Colleen Farrell, Sue Weitz, Kermit Rudolf, Father Coughlin,
Vicki Loveland, Maureen Sheridan, William Sweeney, Vicki Howard, Cheryl
Lepper, Tim McLaughlin, and Leo Driscoll.
3 Applicants for certification are required to demonstrate their
character and fitness for teaching, including a questionnaire, a
fingerprint check, and an affidavit from the dean of the college or the
school of education. The dean is to certify under penalty of perjury as
follows:
I swear (or affirm) that several faculty members have been
contacted who personally know or knew __________, who is a
candidate for certification. They have no knowledge and I have
no knowledge that the applicant has been convicted of any crime
or has a history of any serious behavioral problems.
Br. of Appellants at 5.
4 At trial, Nurse Vicki Olson (Olson) testified that she did not
perform a physical examination of Jane Doe. She recorded Jane Doe's
subjective symptoms and scheduled an appointment for her with Dr. Nancy
Crotty (Crotty). When Olson asked Jane Doe if she wanted to report a
rape, Jane Doe said no. Crotty testified that when she examined Jane Doe
the following day, her findings were consistent with intercourse. Crotty
testified that Jane Doe did not accuse John Doe of date rape or sexual
assault. Crotty suggested that Jane Doe seek counseling if she felt that
she had been unwillingly involved in intercourse. John Doe testified
that Jane Doe told him the nurse or doctor had said the intercourse
appeared forced. When John Doe asked Jane Doe, "Well, was it?", she
responded, "I don't know. Was it?" Report of Proceedings (RP) at 366,
536.
5 Lynch testified at trial that the conduct Jane Doe had described to
her was normal, nonaberrant sexual activity. Lynch, League, and Kyle
could not say at the time of trial what they discussed that led to
references in the Kyle and League declarations to seamy and deviant
activities and sexual penetration with foreign objects. Kyle admitted
that she may have misunderstood, and that Lynch may only have spoken of
John Doe's wanting to date two women simultaneously-not of proposing
m‚nage … trois. The women's conversation included discussion of whether
there were erotic pictures in his room, whether John Doe was circumcised,
and how often he changed his condoms.
6 Sweeney prepared a written declaration in which he stated that Jane
Doe told him John Doe had "physically forced her, as well as verbally
threatened her, to have both vaginal as well as anal intercourse."
Clerk's Papers (CP) at 202. When questioned about the statement at
trial, Sweeney testified that "[t]he 'anal' should have been 'oral' and
I made a mistake in that." RP at 1389.
7 McGuigan testified at trial that "it's easy for people's reputation
to be slandered, specially in the case of a teacher if it is sexual
misconduct that is alleged." RP at 1495.
8 As a threshold matter, Gonzaga moves to strike John Doe's reply to
Gonzaga's answer to the petition for review. A party may not reply to an
answer unless the answer raises a new issue. RAP 13.4(d). In its
answer, Gonzaga presented arguments as to why review should be denied.
However, Gonzaga did not request that this Court address additional
issues. Therefore, Gonzaga's motion to strike is granted.
9 At the time of the events in question, WAC 180-75 (1989) detailed
the application process for teacher certification. The chapter was
repealed in 1997 and was reenacted as a part of WAC 180-79A and 180-86.
10 The statute defines "education records" as "those records, files,
documents, and other materials which . . . contain information directly
related to a student; and . . . are maintained by an educational agency
or institution or by a person acting for such agency or institution." 20
U.S.C. § 1232g(a)(4)(A).
When a student has reached 18 years of age, or is attending an
institution of postsecondary education, required consent and rights
accorded to the student's parents are to be accorded to the student. 20
U.S.C. § 1232g(d).
11 The cases include Wright v. City of Roanoke Redev. & Hous.
Auth., 479 U.S. 418, 107 S. Ct. 766, 93 L. Ed. 2d 781 (1987) (Brooke
Amendment); Wilder v. Va.. Hosp. Ass'n, 496 U.S. 498, 110 S. Ct.
2510, 110 L. Ed. 2d 455 (1990) (Boren Amendment); Suter v. Artist
M., 503 U.S. 347, 112 S. Ct. 1360, 118 L. Ed. 2d 1 (1992) (Adoption
Assistance and Child Welfare Act of 1980); and Blessing v.
Freestone, 520 U.S. 329, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997)
(Title IV-D of the Social Security Act).
12 Falvo v. Owasso Indep. Sch. Dist. No. I-011, 233 F.3d 1203
(10th Cir. 2000); Brown v. City of Oneonta Police Dep't, 106
F.3d 1125 (2d Cir. 1997); Lewin v. Med. Coll. of Hampton Roads,
931 F. Supp. 443 (E.D. Va. 1996), aff'd, 131 F.3d 135 (4th Cir.
1997); Tarka v. Cunningham, 917 F.2d 890 (5th Cir. 1990);
Tarka v. Franklin, 891 F.2d 102 (5th Cir. 1989).