Doe v. Gonzaga University

                   99 Wn. App. 338, DOE v. GONZAGA UNIV.
[No. 43437-3-I. Division One. January 31, 2000.]

JOHN DOE, Respondent, v. GONZAGA UNIVERSITY, ET AL., Appellants.

[1] Trial - Instructions - Sufficiency - Test. Jury instructions are
insufficient if they do not permit the parties to argue their theories of
the case, are misleading, or do not accurately inform the jury of the
applicable law.

[2] Libel and Slander - Elements - Publication--Communications Among
University Employees. An allegedly defamatory statement made only among
university employees is not "published" and is not actionable.

[3] Appeal - Review - Issues Not Raised in Trial Court Constitutional
Rights - In General. An issue that affects a fundamental constitutional
right may be raised for the first time on appeal.

[4] Libel and Slander - Qualified Privilege - Abuse - What Constitutes. A
person loses a qualified privilege by making an allegedly defamatory
statement with actual malice. Actual malice exists when the statement is
made with knowledge of, or with reckless disregard for, the falsity of the
defamatory matter.

[5] Libel and Slander - Actual Malice - Reckless Disregard for Truth -
Determination - Subjective Standard. The "reckless disregard" prong of the
actual malice standard in a defamation action is subjective and requires
proof that the defendant

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made the statement with a high degree of awareness of its probable falsity
or with serious doubts as to its truth.

[6] Libel and Slander - Actual Malice - Reckless Disregard for Truth -
Investigation. A declarant's unreasonable failure to investigate the truth
of an allegedly defamatory statement is insufficient, by itself, to
establish that the statement was made with reckless disregard for the
truth. However, evidence that the declarant conducted an investigation that
did not support the false statement or that brought to the declarant's
attention facts which rebut the false statement is relevant to the issue of
whether the declarant acted with reckless disregard for the truth.

[7] Trial - Taking Case From Jury - Sufficiency of Evidence - Directed
Verdict - Review - In General. An appellate court reviews a trial court's
denial of a motion for a directed verdict by applying the same standard as
applied by the trial court. A directed verdict is appropriate if the court,
after viewing the material evidence in the light most favorable to the
nonmoving party, determines that there is no substantial evidence or
reasonable inferences that would sustain a verdict for the nonmoving party.

[8] Appeal - Review - Issues Not Raised in Trial Court - Affirmative
Defense. An affirmative defense may not be raised for the first time on
appeal.

[9] Schools - Teachers - Certification - Allegations of Behavioral Problems
- University's Duty To Investigate. For purposes of WAC 180-75-082, which
requires a teacher certification applicant to file an affidavit of good
moral character and personal fitness completed by the designated official
at the applicant's school of education, a university does not have a duty
to conduct an independent evaluation of unfavorable allegations that arise
concerning the applicant's behavior or fitness.

[10] Privacy - Invasion of Privacy - Public Disclosure of Private
Information - Right of Action - University's Communications About Alleged
Behavioral Problems of Applicant for Teacher Certification. University
officials' discussions regarding potential behavioral problems of an
applicant for teacher certification and consultation with the state agency
that regulates education programs about those problems is not actionable as
an invasion of privacy by the student applicant. WAC 18075-082, which
requires a teacher certification applicant to file an affidavit of good
moral character and personal fitness completed by the designated official
at the applicant's school of education, authorizes such communications.

[11] Civil Rights - Deprivation - Elements - Deprivation of Federal Right.
A claim for damages is not established under 42 U.S.C. 1983 unless the
claimant has been deprived of a federally

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conferred right. The violation of a federal law that does not confer an
enforceable right will not support a claim.

[12] Civil Rights - Deprivation - Federal Right - What Constitutes - Test.
A federal statute does not confer a right enforceable by a private party in
a 42 U.S.C. 1983 action unless (1) the statute is intended to benefit the
plaintiff, (2) the private right protected by the statute is specific
enough to be judicially enforced, and (3) the statute imposes a binding
obligation on the government.

[13] Civil Rights - Deprivation - Federal Right - Education Records
Policies - Federal Funding Statute. The Family Educational Rights and
Privacy Act (20 U.S.C. 1232g(b)), which prohibits federal funding to
educational institutions that have a policy or practice of permitting the
release of education records of students without written consent from the
parents, does not create private rights that are privately enforceable
under 42 U.S.C. 1983.

[14] Colleges and Universities - Students - Student Handbook - Contractual
Rights - Teacher Certification Process. A university's student handbook
does not confer on students any substantive or procedural contractual
rights concerning the university's role under WAC 180-75-082(3) in the
teacher certification process.

[15] Discovery - Failure To Disclose - Sanctions - Review Standard of
Review. A trial court's decision not to impose a discovery sanction is
reviewed for an abuse of discretion.

[16] Discovery - Abuse of Discovery - Reasonable Inquiry Subjective or
Objective Standard. Whether an attorney has made a reasonable inquiry in
compliance with the discovery certification requirements of CR 26(g) is
judged by an objective standard.

[17] Discovery - Abuse of Discovery - Sanctions - Mandatory Nature. CR
26(g) requires that a person who violates the requirements of the rule be
sanctioned.

[18] Discovery - Abuse of Discovery - Sanctions - Degree Principles. A
trial court has wide latitude in imposing sanctions for a violation of CR
26(g). The court should impose the least severe sanction that is adequate
to serve the purposes of the particular type of sanction, without
undermining those purposes.

[19] Discovery - Abuse of Discovery - Sanctions - Purposes. The purposes of
imposing sanctions for a violation of CR 26(g) are to deter, to punish, to
compensate, and to educate.

[20] Evidence - Review - Standard of Review. An appellate court reviews a
trial court's decision to admit or exclude evidence for an abuse of
discretion.

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Nature of Action: A former student in a university's department of
education sought damages from the university and three of its staff members
for defamation, negligence, breach of educational contract, invasion of
privacy, and civil rights violations. The former student claimed that the
defendants had spread allegations that he had sexually assaulted another
student, had violated the Family Educational Rights and Privacy Act by
releasing his name to the Office of the Superintendent of Public
Instruction, and had improperly refused to submit a moral character
affidavit in support of the former student's application for teacher
certification.

Superior Court: The Superior Court for Spokane County, No. 94-2-03120-6,
Kenneth Kato, J., on April 22, 1997, entered a judgment on a verdict in
favor of the plaintiff.

Court of Appeals: The court holds that the trial court's erroneous failure
to instruct the jury that defamatory statements made only among university
employees are not actionable was not harmless, that the university did not
have a duty to conduct an investigation of unfavorable allegations
concerning the student's behavior before refusing to submit a moral
character affidavit, that the evidence is insufficient to support a claim
for invasion of privacy or breach of educational contract, that the Family
Educational Rights and Privacy Act does not create individual rights that
are privately enforceable under 42 U.S.C. 1983, that the trial court abused
its discretion in failing to impose discovery sanctions against the
university, and that the trial court abused its discretion in excluding a
settlement agreement between the plaintiff and the alleged sexual assault
victim. The court reverses the judgment and remands the case for a new
trial on the defamation claim.

Charles Kenneth Wiggins and Kenneth Wendell Masters, for appellants.

Lauren Hobbs Siddoway, for respondent.

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APPELWICK, J. - John Doe, a former student in Gonzaga University's
department of education, sued Gonzaga and three of its staff members for
spreading allegations that Doe had sexually assaulted another student, and
for refusing to submit a moral character affidavit supporting Doe's
application for teacher certification. The primary issues before us on
appeal are whether any of the defendants can be liable for allegedly
defamatory statements that Gonzaga employees made only to one another, and
whether Gonzaga was entitled to judgment as a matter of law on Doe's claims
for negligence, breach of educational contract, invasion of privacy, and
violation of 42 U.S.C. 1983. Holding in favor of Gonzaga on these issues,
we reverse and remand for a new trial on the defamation claim only. We also
reversecertain of the trial court's discovery and evidentiary rulings.

FACTS

On October 5, 1993, Roberta League, the certificate specialist in Gonzaga's
school of education, overheard Gonzaga student Julia Lynch telling a friend
the following:

[W]hen I was an RA, my resident, [Jane Doe], was in obvious physical pain.
She couldn't eat, she couldn't sleep, and she was having blood in her
urine, stomach cramps, she said it was a result of having sex with [John
Doe], this man she has been seeing, and no one from the school bothered to
ask her any

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questions or find out what really happened. They had a little bit of
information that she was hurt and tucked it away.

The conversation concerned League because John Doe, a student in the school
of education, was at that time student teaching. Soon afterward, League
discussed the matter with Dr. Susan Kyle, the director of field experience
for student teachers at Gonzaga.

Kyle and League decided that they needed to investigate the situation
further. They were concerned that the allegations League had overheard
about John Doe might affect the dean's ability to submit an affidavit
supporting Doe's application for teacher certification. Pursuant to RCW
28A.410.010, the Washington State Board of Education has promulgated rules
governing the teacher certification process. See WAC 180-77, 180-78,
180-86, 180-87, and former 180-75. The rules require a designated official
from a certification applicant's school to contact several members of the
faculty who know or knew the applicant. The dean must then swear that he or
she and the faculty members consulted have "no knowledge that the applicant
has been convicted of any crime and [have] no knowledge that the applicant
has a history of any serious behavioral problems." WAC 180-75-082(3). 1

On October 14, 1993, Kyle and League met with Lynch. According to written
declarations that Kyle and League drafted in February 1994, which were
admitted at trial, Lynch told them that Jane Doe had admitted to her that
John Doe had sexually assaulted her three times, in late November or
December, 1992. Lynch said further that Jane Doe had claimed that John Doe
verbally coerced her into participating in "aberrant sexual behavior" with
"other objects besides his penis," and had urged her to engage in multiple
partner sex. Lynch told League and Kyle that she

  ------------------------------------------------------------------------

1 WAC 180-75-082 was repealed, effective March 8, 1997. It was replaced by
WAC 180-79A-155, which similarly requires a teacher candidate to submit a
moral character affidavit from the school of education in support of the
application for certification. The change in the law does not affect the
outcome in this case.

  ------------------------------------------------------------------------

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had accompanied Jane Doe to the health center soon after the sexual
assaults, and that the nurse had concluded that Jane Doe was date raped. At
trial, however, Lynch testified that the behaviors Jane Doe had described
to her were in fact normal, nonaberrant sexual activities, and that she did
not remember telling League and Kyle about foreign objects. Lynch further
testified that she did not remember whether Jane Doe had told her that John
Doe said he wanted to sleep with more than one person at a time, only that
she told her that he wanted to sleep with both Jane Doe and another
girlfriend of his. League admitted at trial that Lynch told her in the
October 1993 meeting that Jane Doe had denied the rape allegations when
Lynch spoke to Jane Doe in December 1992.

At the meeting with Kyle and League, Lynch agreed to approach Jane Doe.
When she did, Jane Doe became angry and told Lynch that she did not want to
pursue a rape charge.

Soon after conferring with Kyle, League telephoned Adelle Nore, a senior
investigator with the Office of the Superintendent of Public Instruction
(OSPI), which regulates teacher education programs. All together, Gonzaga
personnel contacted Nore on at least six occasions in relation to the
allegations against John Doe. During this initial conversation, League told
Nore that a teacher education student had possibly date raped another
student. League identified John Doe by name in a subsequent telephone call.
Nore advised League to "talk to the girl who made the date rape charge in
person." In her notes, Nore recorded that League had informed her that the
"girl" was willing to come forward. Nore testified that her consistent
understanding in her conversations with League and Kyle, was that the
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. According to Kyle, Jane Doe would not comment on the
relationship, and stated, "I guess I don't really know what rape is," and,
"I

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promised [John Doe] I wouldn't tell. He made me promise." Jane Doe refused
to make a formal statement.

Immediately after leaving Kyle's office, Jane Doe met with Professor
William Sweeney. According to Sweeney, Jane Doe was "near hysteria" and
weeping uncontrollably. Sweeney testified that Jane Doe told him during the
meeting that John Doe had sexually assaulted her on three occasions, each
time more and more violent and abusive, and that she had 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.

On January 26, 1994, Jane Doe met with Janet Burcalow, chair of the
department of teacher education. Jane Doe tried to persuade Burcalow not to
pursue the matter. But according to Burcalow, Jane Doe refused to say that
nothing serious had happened in the relationship, and admitted being afraid
of what might happen if John Doe found out she had talked about their
relationship.

Cheryl Lepper, an instructor in the teacher education department, testified
that Jane Doe had told her about the sexual assaults in the spring of 1993.
According to Lepper, Jane Doe said that John Doe had restrained her and
forced her to have sex, and had then stalked her after she broke up with
him.

Some time in February 1994, Dr. Corrine McGuigan, the dean of the school of
education, met with Kyle, Burcalow, League, and Sweeney. The dean concluded
after the meeting that sufficient evidence of a serious behavioral problem
precluded her from signing the affidavit supporting John Doe's application
for teacher certification.

John Doe did not hear about Gonzaga's investigation into the date rape
allegations until March 4, 1994. On that date, Doe was called into Dean
McGuigan's office, where he was escorted to a private room, and left to
read a letter that the dean had signed. The letter informed Doe that the
dean would not give him the moral character affidavit required to support
his application for certification to teach,

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due to the sexual assault allegations. Doe was not told who had made the
allegations.

John Doe sued Jane Doe for defamation, and Gonzaga for defamation,
negligence, breach of educational contract, and violation of 42 U.S.C. 1983
for releasing his name to OSPI in violation of the Family Educational
Rights and Privacy Act (FERPA). Two years later, John Doe sued Lynch,
League and Kyle separately. The two actions were consolidated.

Jane Doe counter-claimed against John Doe for sexual assault. John Doe and
Jane Doe settled their lawsuit in 1996, dismissing their claims against
each other.

A jury trial was held between March 17 and April 1, 1997 on the remaining
claims. In response to pretrial and trial motions, the trial court made
several rulings that are at issue in this appeal. The court admitted
several documents that Gonzaga personnel had prepared at the request of
corporate counsel, over Gonzaga's objections that the documents were
protected by attorney-client privilege. The court refused to admit the
settlement agreement between John Doe and Jane Doe. The court also refused
to admit the testimony of two witnesses who came forward after trial had
begun; both witnesses would have testified that Jane Doe had told them that
she had been sexually assaulted by a boyfriend. Gonzaga offered the
evidence not to prove the truth of the allegation, but to impeach Jane
Doe's testimony that she had not used the terms "rape" or "date rape."

By the time of trial, Jane Doe had moved to North Carolina and was
unwilling to attend. Instead, John Doe presented Jane Doe's testimony
through a 1997 videotaped deposition, portions of which were shown to the
jury. In both the videotaped testimony and an earlier 1995 deposition, Jane
Doe essentially denied both that John Doe had sexually assaulted her, and
that she had made most of the statements that Gonzaga personnel attributed
to her. Specifically, in her videotaped testimony, Jane Doe testified that
Lynch had "really blown things out of proportion," and

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that there were "wild things" and other falsehoods in Kyle's, Sweeney's,
and Burcalow's testimonies. She denied speaking to Cheryl Lepper, using the
word "rape," or being afraid for her life. Jane Doe testified that she had
tried to dissuade Kyle and Burcalow from pursuing the allegations, but that
the two women were "trying to get me to agree that this had happened," and
were uninterested in hearing anything other than what they already
believed. Jane Doe admitted, however, that some things had happened in her
relationship with John Doe which had made her uncomfortable.

The jury returned a verdict for John Doe on all five theories of recovery.
The jury awarded damages in the following amounts:

Defamation $500,000

Invasion of privacy $100,000

Violation of FERPA $150,000

Punitive damages under FERPA $300,000

Breach of educational contract $55,000

Negligence $50,000

Total     $1,155,000

The jury was not instructed to segregate the damages, and did not specify
which of Gonzaga's wrongful behaviors gave rise to which damages. Gonzaga
now appeals.

DEFAMATION

A. Prins Instruction

The first issue before us is whether the trial court properly instructed
the jury regarding the defamation claim. Gonzaga asked the court to
instruct the jury that neither Gonzaga nor the individual defendants could
be liable for communications made only among Gonzaga personnel. The court
rejected the instruction. We hold that the court's decision was in error.

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[1] Jury instructions are sufficient if they permit each party to argue his
or her theory of the case, are not misleading, and when read as a whole,
properly inform the trier of fact of the applicable law. State v. Rice, 110
Wn.2d 577, 603, 757 P.2d 889 (1988).

Communications made only among corporate personnel are not published for
the purposes of defamation. Prins v. Holland-North Am. Mortgage Co., 107
Wash. 206, 208, 181 E 680, 5 A.L.R. 451 (1919). In Prins, the Court held
that a letter from one officer of a corporation to another did not
constitute publication because a corporation acting through its agents and
employees "is but communicating with itself." 107 Wash. at 208.

[2] Consistent with the Prins rule, Gonzaga University could not be liable
for any defamatory communications made only among its employees. Here, the
rule shields the individual defendants as well; after all, the corporation
can speak to itself only through the individuals who work for it.
Therefore, the trial court erred in rejecting Gonzaga's proposed Prins
instruction.

Moreover, the court's error was not harmless. Testimony at trial focused
primarily on the communications that Gonzaga personnel made only among
themselves. The only allegedly defamatory statements that fall outside the
Prins exception are those made to Adelle Nore at OSPI. Because the error
was not harmless, we reverse the defamation award and remand for a new
trial on that claim. On remand, the trial court is instructed to give the
jury a Prins instruction.

B. Actual Malice Instruction

Gonzaga also contests the trial court's defamation jury instructions on the
ground that they misstate the standard for determining whether the
communications at issue were protected by a qualified privilege. John Doe
responds that the error was not properly preserved because Gonzaga's
proposed instruction was deficient.

[3] A claim that the trial court has applied an incorrect

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standard of proof under the First Amendment may be considered for the first
time on appeal, because it is an issue affecting fundamental constitutional
rights. Richmond v. Thompson, 130 Wn.2d 368, 385, 922 P.2d 1343 (1996).
Therefore, even if Gonzaga's proposed instruction was deficient, it may
raise the issue for the first time on appeal.

Here, Gonzaga had a qualified privilege to make the allegedly defamatory
statements at issue. The WAC provision governing Gonzaga's role in the
teacher certification process, gives Gonzaga a qualified privilege to
contact several members of the faculty and staff about an applicant's
potential behavioral problems. See WAC 180-79A-122(3). This same provision
also implicitly grants Gonzaga a qualified privilege to seek guidance from
OSPI regarding the certification process. If not for this qualified
privilege, schools like Gonzaga would be discouraged from investigating
claims of a future teacher's potential behavioral problems. The ultimate
purpose of the qualified privilege is to protect school children.

[4-6] When a defendant like Gonzaga has a qualified privilege to
communicate potentially defamatory statements, the privilege may be lost by
showing that the defendant made the statements with actual malice. Parry v.
George H. Brown & Assocs., Inc., 46 Wn. App. 193, 197, 730 P.2d 95 (1986);
Story v. Shelter Bay Co., 52 Wn. App. 334, 342, 760 P.2d 368 (1988). Actual
malice exists when a statement is made with knowledge of its falsity or
with reckless disregard of whether it was false or not. Richmond v.
Thompson, 130 Wn.2d 368, 376, 922 P.2d 1343 (1996). "[R]eckless disregard"
is a subjective standard, and requires the plaintiff to prove that the
speaker "acted with a high degree of awareness of [the statement's]
probable falsity, or in fact entertained serious doubts as to [its] truth."
Story, 52 Wn. App. at 343. A plaintiff cannot show actual malice by merely
showing that a defendant unreasonably failed to investigate the truth of a
statement. See Parry v. George H. Brown & Assocs., Inc., 46 Wn. App. 193,
197, 730 P.2d 95 (1986). But when a speaker does in fact conduct

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an investigation and the investigation does not support the false statement
or brings to the speaker's attention facts that rebut the false statement,
that is evidence from which a jury can infer reckless disregard. Herron v.
KING Broad. Co., 112 Wn.2d 762, 776 P.2d 98 (1989).

Here, the court correctly instructed the jury that the statements at issue
were protected by a qualified privilege, and that John Doe had to prove by
clear and convincing evidence that Gonzaga had made the statements with
actual malice. The jury was further instructed that, "abuse of privilege
occurs if the maker of the allegedly false and defamatory statement knew,
at the time the statement was made, that the statement was false, or acted
with reckless disregard as to the truth or falsity of the statement." But
the court did not define "reckless disregard" for the jury. Gonzaga argues
that the court's instruction is deficient because it failed to make clear
to the jury that "reckless disregard" is a subjective standard. Gonzaga
contends that the jury could have incorrectly inferred that an unreasonable
failure to investigate the truth of the date rape allegations was evidence
of recklessness.

Gonzaga's argument is well taken. On remand, the court is directed to
instruct the jury regarding the subjective nature of the "reckless
disregard" standard.

SECONDARY CLAIMS

[7] Gonzaga next argues that the trial court erred in failing to grant it a
directed verdict on the remaining claims of negligence, invasion of
privacy, violation of 42 U.S.C. 1983, and breach of educational contract.
In reviewing a trial court's decision to deny a motion for directed
verdict, we apply the same standard as the trial court. A directed verdict
is appropriate if, when viewing the material evidence most favorable to the
nonmoving party, the court can say, as a matter of law, that there is no
substantial evidence or reasonable inferences to sustain a verdict for the
nonmoving party. Industrial Indem. Co. of the Northwest v. Kalleuig, 114
Wn.2d 907, 915-16, 792 P.2d 520 (1990).

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A. Negligence

[8] Gonzaga asserts it is immune from liability for negligent reporting
about John Doe, pursuant to RCW 4.24.510. We agree with John Doe, that this
claim is an affirmative defense which may not be raised for the first time
on appeal. We do not decide that the defense does or does not have
application to these facts.

Gonzaga next argues that it cannot be liable for negligence in this case
because it had no duty to John Doe to exercise reasonable care in
collecting information regarding his potential behavioral problems. John
Doe responds that we should create or extend such a duty. There are no
cases interpreting the WAC provision that governs Gonzaga's role in the
teacher certification process, to guide us in addressing this issue.

The WAC provision authorizing Gonzaga to collect information regarding a
teacher certification candidate's potential behavioral problems does not
expressly impose a duty on the university to investigate formally any
unfavorable allegations that arise. See WAC 180-75-082. To the contrary,
WAC 180-75-082 requires only that a designated official of an applicant's
school contact several faculty members who know or knew the applicant. Only
if both the school official and the faculty members consulted have "no
knowledge that the applicant has a history of any serious behavioral
problems" may the dean sign an affidavit under penalty of perjury
supporting the candidate's application. WAC 180-75-082.

In arguing that Gonzaga owed him a duty to investigate, John Doe analogizes
the present case to several cases that address Department of Social and
Health Services (DSHS) caseworkers' duties in reporting child abuse
allegations. In those cases, Washington courts held that caseworkers have a
duty to exercise reasonable care when investigating child abuse
allegations. But the caseworker cases are distinguishable because a statute
and administrative regulations impose a duty to investigate on caseworkers.
See Lesley v. Department of Soc. & Health Servs., 83 Wn. App. 263, 273,

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921 P.2d 1066 (1996) ("[A] specific statute provides that DSHS caseworkers
have a duty to investigate. RCW 26.44.050. A cause of action for negligent
investigation thus exists against DSHS caseworkers."); Yonker v. Department
ofSoc. & Health Servs., 85 Wn. App. 71, 81-82, 930 P.2d 958 (1997) (RCW
26.44.050 imposed duty to investigate reports of possible occurrence of
child abuse); Dunning v. Pacerelli, 63 Wn. App. 232, 239, 818 P.2d 34
(1991) (DSHS caseworkers potentially liable for negligent investigation
into allegations of child abuse).

In the alternative, John Doe contends that Gonzaga did undertake an
investigation in this case, and that once it began the investigation, it
owed a duty to Doe not to be negligent. But the cases that Doe cites in
support of this argument are not on point. In those cases, the courts held
that a person who chooses to assist another, even gratuitously, inducing
reliance on that assistance, may be liable for failure to exercise
reasonable care. See Alston v. Biythe, 88 Wn. App. 26, 943 P.2d 692 (1997);
Roth v. Kay, 35 Wn. App. 1, 664 P.2d 1299 (1983); Sheridan v. Aetna Cas. &
Sur. Co., 3 Wn.2d 423, 100 P.2d 1024 (1940). These principles are
inapplicable here because Gonzaga did not undertake to render aid or warn
John Doe.

WAC 180-75-082 requires the applicant for certification to submit an
affidavit about the applicant's criminal history, serious behavioral
problems and past teaching history. The applicant must also submit an
affidavit of good moral character and personal fitness from the designated
official at the school of education. The regulation provides that the
applicant must submit a statement, as opposed to an affidavit, if it is not
possible for the school official to execute an affidavit with the required
content. In that statement, the applicant must explain why it is impossible
or impractical to obtain the affidavit. In all respects the only duty
imposed is on the applicant.

The affidavit from the school of education contemplates signature under
penalty of perjury. The school official must attest to contacting "several
faculty" who know or knew

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the applicant. The regulation does not require contacting all faculty who
know or knew the applicant, nor those who know or knew the applicant best,
nor even anyone who knew the applicant most recently. The scope of the
effort is up to the school.

The affidavit, if filed, must indicate that the affiant and the several
faculty contacted have no knowledge that the applicant has not been
"convicted of any crime," nor that the applicant has "a history of any
serious behavioral problems." The regulation provides no further definition
of "crime," "serious behavioral problems" or "knowledge." The answers from
the faculty may be wholly subjective as a result. Any consulted faculty
member's belief, based on rumor or personal observation that an applicant
had a serious behavioral problem, is enough to prevent the execution of the
school's affidavit.

Clearly, this regulation does not contemplate the kind of investigation
undertaken by child protective services.

[9] Schools of education have a vested interest in seeing their graduates
certificated. The inability or unwillingness of the school to provide the
affidavit is evidence of concerns that overcome this vested interest. These
concerns about criminal conduct and serious behavioral problems are issues
that OSFI should hear about and should investigate. It is in the interest
of school children and the public to have such reporting by the schools of
education and investigation by OSFI.

We find no basis for the creation of a new duty on the part of the school
of education to conduct an independent investigation. That is a legislative
prerogative that we will not exercise. The judgment on the negligence claim
is therefore reversed.

B. Invasion of Privacy

Gonzaga next argues that it is entitled to judgment as a matter of law on
the invasion of privacy claim. We hold that the facts here do not support a
claim for invasion of privacy.

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99 Wn. App. 338

John Doe's invasion of privacy claim is based on RESTATEMENT (SECOND) OF
TORTS 652B (1977): "One who intentionally intrudes, physically or
otherwise, upon the solitude or seclusion of another or his private affairs
or concerns, is subject to liability to the other for invasion of his
privacy, if the intrusion would be highly offensive to a reasonable
person." The common law right to privacy exists in Washington, 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).

[10] The evidence here is insufficient to support a claim for invasion of
privacy. Again, WAC 180-75-082 authorizes officials from a teacher
certificate applicant's school to contact several faculty members regarding
the candidate's potential behavioral problems. The provision also
implicitly authorizes school officials to consult with OSPI regarding their
concerns about particular students. In this process, the school personnel
must be able to discuss highly personal matters, which may reasonably be
offensive to the certificate candidate in another context. But the
candidate waives his right to object to those discussions on the grounds of
invasion of privacy once he identifies himself as a potential candidate for
teacher certification. Gonzaga did not invade John Doe's privacy to any
greater degree than what the WAC provision contemplates. Therefore, we
reverse the invasion of privacy judgment.

C. 42 U.S.C. 1983

Gonzaga next argues that the court erred in refusing to grant it a directed
verdict on the 42 U.S.C. 1983 claim. Gonzaga argues that it cannot be
liable under 42 U.S.C. 1983 because the federal law at issue, Family
Educational Rights and Privacy Act (FERPA), does not create any right or
privilege that private individuals can enforce under 1983. Again, we agree.

[11] The Federal Civil Rights Act, 42 U.S.C. 1983, provides for a private
cause of action when a state violates certain federal statutory rights. See
Maine v. Thiboutot,

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448 U.S. 1, 4, 100 S. Ct. 2502, 2504, 65 L. Ed. 2d 555 (1980). Section 1983
provides a remedy for violation of federally conferred rights, not simply
violation of federal law. See Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498,
509, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990).

[12] A court must ask three questions in deciding whether a federal statute
gives rise to an enforceable right under 1983: (1) whether the provision in
question was intended 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 state. Wilder v. Virginia Hosp. Ass'n, 496 U.S.
498, 509, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990); Blessing v. Freestone,
520 U.S. 329, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997).

The question before us is whether FERPA creates a federal right that
individuals can enforce under 1983. U.S. Supreme Court case law provides
guidance in answering this question. In Wright v. City of Roanoke
Redevelopment & Hous. Auth., 479 U.S. 418, 107 S. Ct. 766, 93 L. Ed. 2d 781
(1987), the Court considered whether the Brooke Amendment gave rise to
individual rights enforceable under 1983. The Brooke Amendment and its
implementing regulations imposed a ceiling on the rent which public housing
projects could charge low-income tenants. The regulations defined rent to
include charges to tenants for " 'reasonable amounts of utilities,' " and
defined how that amount would be determined. Wright, 479 U.S. at 420-21
n.3, quoting 24 C.F.R. 860.403 (1982). The Court held that the law was
intended to benefit tenants, who could therefore sue to enforce the law
under 1983. Wright, 479 U.S. at 432. In Wilder v. Virginia Hosp. Ass'n, 496
U.S. 498, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990), the Court considered
whether the Boren Amendment to the Medicaid Act created individual rights
enforceable under 1983. The Boren Amendment required the states to
reimburse Medicaid providers according to rates that were

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" 'reasonable and adequate'" to meet the costs of "'efficiently and
economically operated facilities.'" Wilder, 496 U.S. at 503, quoting 42
U.S.C. 1396 (1982). Again the Court held that the law was intended to
benefit providers seeking reimbursement, who could therefore challenge the
state's rates by suing under 1983. In both Wilder and Wright, the laws at
issue were enforceable under 1983 because they were intended to provide
particular and well-defined benefits to the plaintiffs.

In two later cases, however, the Court held that certain federal laws did
not confer substantive rights on the plaintiffs. In Suter v. Artist M., 503
U.S. 347, 112 S. Ct. 1360, 118 L. Ed. 2d 1 (1992), the Court considered
whether private individuals had the right to enforce by suit a provision of
the Adoption Assistance and Child Welfare Act of 1980. The act required
participating states to submit a plan to the Secretary of Health and Human
Services. The plan had to provide that the state would make "reasonable
efforts" to avoid removing children from their homes, and to return
children to their homes. Suter, 503 U.S. at 351. The Court held that the
act did not create an enforceable right under 1983 because the term
"reasonable efforts" imposed "only a rather generalized duty on the State,
to be enforced not by private individuals, but by the Secretary." Suter,
503 U.S. at 363. In Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353,
137 L. Ed. 2d 569 (1997), custodial parents whose children were eligible to
receive child support services from the state pursuant to Title IV-D of the
Social Security Act, sued the director of Arizona's child support agency
under 1983. The act required participating states to certify that they
would operate a child support enforcement program in "substantial
compliance" with the act, and would submit a detailed plan to the Secretary
of Health and Human Services. The Court held that the act did not create
individual rights enforceable under 1983 because:

[f]ar from creating an individual entitlement to services, the
["substantial compliance"] standard is simply a yardstick for

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the Secretary to measure the systemwide performance of a State's Title IV-D
program. Thus, the Secretary must look to the aggregate services provided
by the State, not to whether the needs of any particular person have been
satisfied.

Blessing, 520 U.S. at 343. In both Suter and Blessing, the federal laws at
issue did not create individual substantive rights enforceable against the
states because they were not intended to confer particular benefits on the
plaintiffs.

[13] The case currently before us is more akin to Suter and Blessing than
to Wilder and Wright. The federal law at issue, FERPA, provides that "[n]o
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." 20 U.S.C. 1232g(b). Like the federal law
at issue in Blessing, FERPA requires participating schools to have in place
a system-wide plan; the law is not intended to ensure that "the needs of
any particular person have been satisfied." Blessing, 520 U.S. at 343. We
hold FERPA does not create individual rights privately enforceable under 42
U.S.C. 1983. Therefore, we reverse the 42 U.S.C. 1983 judgment.

Furthermore, 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. WAC 180-75-082
requires the candidate to file an affidavit from the school of education as
a precondition for the state's award of a teacher certificate. In the
affidavit, the dean must certify that he or she and several faculty members
who know the applicant have "no knowledge that the applicant has a history
of any serious behavioral problems." WAC 180-75-082. Moreover, the WAC
provision implicitly authorizes school officials to contact OSPI directly
with questions regarding the certification process. This process
necessarily entitles the school to release personally identifiable
information to OSPI. Gonzaga's actions did not exceed its authority in this
case.

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D. Breach of Contract

Gonzaga finally argues that it is entitled to judgment as a matter of law
on the breach of contract claim. Gonzaga argues that any implied agreement
between John Doe and Gonzaga does not apply to moral character affidavits.
Once again, we agree.

In its student handbook, Gonzaga states that the admission of a student to
the university constitutes 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 return, "the
University's responsibility is to provide an environment in which the
student's educational goals may be achieved." In the same paragraph,
Gonzaga further states that it "recognizes its obligation to provide
students with an opportunity to be heard in matters affecting their
welfare." In another section, the handbook also specifies that the
university will follow certain notice and hearing procedures when
disciplining students who misbehave. John Doe's theory at trial was that
Gonzaga breached this "agreement" by failing to discuss the sexual assault
allegations with him before reaching a final decision not to issue him an
affidavit.

[14] Without addressing whether the student handbook creates any
enforceable substantive or procedural rights with respect to purely
internal issues, we hold that the student handbook does not confer
substantive or procedural rights with respect to WAC 180-75-082(3), which
governs Gonzaga's responsibilities to the state in regard to the moral
character affidavit of applicants for teacher certification. Therefore,
Gonzaga is entitled to judgment on the contract claim as a matter of law,
and we reverse the award for breach of contract.

Even if we did not reach this result, we would nonetheless strike the
contract damages as duplicative. The jury was instructed to consider only
economic injury in deciding how much compensation to award on the breach of
contract claim. The only economic injury that John Doe alleged was

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the injury to his career resulting from Gonzaga's release of his name to
OSPI, and its decision not to sign the moral character affidavit. These
injuries flowed directly from the allegedly defamatory communications.
Therefore, the contract damages duplicate the defamation damages.

EVIDENTIARY AND DISCOVERY ISSUES

A. Work Product Documents

Gonzaga argues that the trial court abused its discretion in ordering it to
disclose, and admitting into evidence, four documents that Gonzaga
personnel prepared at the direction of corporate counsel. In his
cross-appeal, John Doe argues that the court erred in refusing to impose
sanctions on Gonzaga for its failure to produce one of those documents.

1. Discoverability

John Doe sought to discover four documents that certain Gonzaga employees
had prepared in anticipation of litigation in this case. Of greatest
concern here is a six-page chronology that Roberta League and Susan Kyle
prepared, which listed relevant dates and the events that occurred on those
dates. Gonzaga argued below that the chronology was not discoverable
because it was protected by attorneyclient privilege. The trial court
disagreed, characterizing the document as work product. The court allowed
discovery of the document, finding that John Doe had substantial need for
it and could not obtain the information that it contained in any other way.
Gonzaga argues again on appeal that the documents are privileged.

Documents prepared by a client or his or her attorney "in anticipation of
litigation" are characterized as work product. CR 26(b)(4). Work product is
not discoverable unless the party seeking discovery can show that he "has
substantial need of the materials in the preparation of his case and that
he is unable without undue hardship to obtain the substantial equivalent of
the materials by other means." CR 26(b)(4). John Doe concedes that the four
documents

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are work product. We cannot say that the trial court abused its discretion
in determining the issues of "substantial need" or "undue hardship." We
therefore affirm these rulings by the trial court.

Because John Doe now is familiar with the documents, and can obtain the
information they contain by deposing the relevant witnesses, he cannot show
substantial need for them on remand. Gonzaga is not required to produce
them on remand, and the documents remain privileged and inadmissible.

2. Discovery Sanctions

[15] In his cross-appeal, John Doe argues that the trial court should have
imposed sanctions on Gonzaga for failing to produce the chronology in
response to an interrogatory. We review sanctions decisions for abuse of
discretion. Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp.,
122 Wn.2d 299, 338, 858 P.2d 1054 (1993). We hold that the trial court
abused its discretion here.

Upon completion of early discovery in this case, John Doe pieced together
an initial chronology of Gonzaga's internal meetings and communications
regarding the sexual abuse allegations. John Doe then provided Gonzaga with
this chronology, along with an interrogatory asking Gonzaga to identify any
communications and meetings not reflected in the chronology. Gonzaga did
not answer the interrogatory, claiming that it was "unduly burdensome [and]
oppressive." Gonzaga assured John Doe that he already had all the
information he needed to answer the interrogatory. Several years later,
through an independent motion, John Doe's counsel finally received the
chronology at issue. John Doe claims the chronology contained numerous
references to meetings that Gonzaga had not previously disclosed, requiring
him to re-depose two witnesses. John Doe filed a CR 26(g) motion for
sanctions. The trial court found that John Doe had suffered no harm because
he ultimately obtained possession of the chronology; the court therefore
denied the motion for sanctions.

[16, 17] The relevant rule here is CR 26(g), which

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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. Whether an attorney has
made a reasonable inquiry is to be judged by an objective standard. Fisons,
122 Wn.2d at 343. The purpose of CR 26(g) is to encourage a "spirit of
cooperation and forthrightness during the discovery process." Fisons, 122
Wn.2d at 342. Sanctions are mandatory if the court finds that a party
violated the rule. Fisons, 122 Wn.2d at 346.

Here, the record reflects that Gonzaga responded to the interrogatory
without making reasonable inquiry. Gonzaga's counsel could have responded
to the interrogatory by asking his clients to provide a chronology of
relevant events based on their own knowledge. After all, Roberta League had
already prepared a chronology for Gonzaga. Gonzaga's response was also
misleading. Relying on Gonzaga's assurances that he already had all the
relevant information, John Doe did not move to compel a response. Gonzaga's
response was inconsistent with the spirit and intent of the rules. The
court therefore abused its discretion in failing to impose a sanction, and
is ordered to impose an appropriate sanction on remand.

[18, 19] In determining an appropriate sanction, the trial court has wide
latitude. Fisons, 122 Wn.2d at 356. The court must impose the least severe
sanction that will be adequate to serve its purposes, but the sanction
should not be so minimal that it undermines those purposes. Fisons, 122
Wn.2d at 356. The purposes of sanctions are to deter, to punish, to
compensate and to educate. Fisons, 122 Wn.2d at 356.

B. Settlement Agreement

Gonzaga next argues that the trial court abused its discretion in refusing
to admit the settlement agreement between John Doe and Jane Doe. Gonzaga
claims the settlement agreement is relevant in determining the credibility
of Jane Doe's testimony. We agree.

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[20] A trial court's decision to admit or exclude evidence is reviewed for
abuse of discretion. State v. Lynch, 58 Wn. App. 83, 792 P.2d 167 (1990).

According to ER 408, evidence of a settlement agreement is not admissible
to prove whether a party is liable on a particular claim. But the rule
"does not require exclusion when the evidence is offered for another
purpose, such as proving bias or prejudice of a witness." ER 408. The
purpose of the rule is to encourage parties to make whatever admissions may
lead to a successful compromise without sacrificing portions of their case
in the event these efforts fail. Comment ER 408.

Here, John Doe's and Jane Doe's settlement agreement and release provides
that John Doe may resume his lawsuit against Jane Doe if any new evidence
surfaces suggesting that Jane Doe has accused him of sexual assault. The
agreement therefore is probative of the truth of Jane Doe's claims in her
videotaped testimony that John Doe never assaulted her. Furthermore,
Gonzaga did not offer the settlement agreement as a means of proving Jane
Doe's liability;

she was no longer a party to the lawsuit. ER 408 allows admission of a
settlement agreement for Gonzaga's intended purpose-to prove Jane Doe's
bias. Therefore, the trial court abused its discretion in excluding the
settlement agreement. The court is instructed to admit evidence of the
agreement on remand.

C. Impeachment Evidence

Gonzaga argues that the trial court abused its discretion in refusing under
ER 613 to allow Gonzaga to admit the testimony of two witnesses who were
disclosed late into the trial. Gonzaga offered the testimony for the
purposes of proving that Jane Doe had made prior statements inconsistent
with her deposition testimony at trial. However, we need not reach this
issue in light of our decision to remand the case.

CONCLUSION

We reverse and remand for a new trial on the defamation

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claim. On remand, the trial court must include a Prins jury instruction.
The court must also define "reckless disregard" for the jury in a manner
that makes clear the subjective nature of that standard. We reverse the
negligence, invasion of privacy, 42 U.S.C. 1983, and breach of contract
judgments. On remand, Gonzaga need not produce the four work product
documents. The settlement agreement between Jane Doe and John Doe, and the
testimony of Ashlock and Green, are admissible. Reversed and remanded.

AGID, A.C.J., and ELLINGTON, J., concur.