5th Circuit rejects section 504 peer bullying claim, where student committed suicide, finding school was not deliberately indifferent to events
Estate of Montana Lance v. Lewisville Indep. Sch. Dist., No. 12-41139 (5th Cir. Feb. 28, 2014)
Abstract: A U.S. Court of Appeals for the Fifth Circuit three-judge panel has ruled that a Texas school district did not violate a disabled student’s right to a free appropriate public education (FAPE) under section 504 of the Rehabilitation Act because the individualized education plan the district developed for the student provided him with a FAPE under the Individuals with Disabilities Educational Act. It also rejected the family’s claim that the school district failed to adequately response to incidents of peer harassment/bullying in violation of section 504. The panel, applying the “deliberate indifference” standard established in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), determined that the district’s response to the incidents was not “clearly unreasonable” and, therefore, not deliberately indifferent.
In addition, the panel rejected the family’s § 1983 claims based on a “caused-to-be subjected” theory and “state-created danger” theory. It stated that neither had ever been adopted by the Fifth Circuit. The panel also found that the “state-created danger” theory failed on its own terms because “to succeed under § 1983 there must be a special relationship between the defendant and the victim” and in the present case “no special relationship exist[ed]” between the school district and the student.
Facts/Issues: Montana Lance attended Stewart’s Creek Elementary School (SCES) where he received special education services for his disabilities in accordance with his individualized education plan (IEP). When Montana was in second grade his mother informed a teacher that “he was making verbal statements about hurting himself at home.” The school obtained a full psychological evaluation, and as a result Montana was identified as “Emotionally Disturbed.”
Throughout his time at SCES, Montana was subjected to peer bullying. On January 12th of his fourth grade year, Montana told a teacher he wanted to commit suicide. School Counselor Mike Riek concluded that the “lethality” of Montana’s statements was low, but still notified Montana’s father. Montana’s parents arranged for him to meet with a psychologist, on January 18th, who said Montana gave no indication that he was intending to commit suicide.
On January 21st some students called Montana a name and pushed him into the rails of the cafeteria serving line. Montana “stormed off and sat by himself at an empty table.” Later that day, Montana was sent to the school office for talking in class. While in the office he was allowed to use the nurse’s bathroom. When a significant amount of time passed, the nurse checked on Montana, and he said “he’d be right out.” However, Montana soon stopped responding to the nurse’s inquiries. Because the nurse did not have a key, the custodian had to use a screwdriver to open the door. When the nurse and custodian entered the bathroom, they found Montana hanging from his belt, which was secured to a metal rod in the ceiling. Montana had no pulse and was pronounced dead upon arrival at the hospital.
The Lance family sued LISD in federal district court. They alleged claims under § 1983, section 504, and state law. LISD filed a motion for summary judgment on the family’s section 504 claims and special-relationship based § 1983 claims. The district granted LISD’s motion.
Ruling/Rationale: The Fifth Circuit panel affirmed the lower court’s decision.
One of the family’s claims was that LISD “acted with gross professional misjudgment by failing to provide Montana educational services necessary to satisfy § 504’s FAPE requirement (the “failure-to-provide” claim). To prevail on this claim the Lances must show that the School District ‘refused to provide reasonable accommodations for the handicapped plaintiff to receive the full benefits of the school program.’ Marvin H. v. Austin Indep. Sch. Dist., 714 F.2d 1348, 1356 (5th Cir. 1983).”
The panel rejected this claim because LISD had provided Montana a FAPE under the IDEA and the “§ 504 regulations distinctly state that adopting a valid IEP is sufficient but not necessary to satisfy the § 504 FAPE requirements.” The parents never challenged the sufficiency of Montana’s IEP or the process through which it was developed. In sum, the court ruled that:
The evidence establishes that the School District satisfied its § 504 FAPE obligations by implementing a valid IEP under IDEA. 34 C.F.R. § 104.33(b)(2). Montana’s IEP “was developed through [IDEA’s] procedures” and was “reasonably calculated to enable the child to receive educational benefits.” Accordingly, and because “to establish a claim for disability discrimination, in th[e] education context, something more than a mere failure to provide the ‘free appropriate education’ required by [IDEA] must be shown,” summary judgment was appropriate on the Lances’ failure-to-provide claim. [citations omitted].
The parent’s second 504 claim was that LISD was deliberately indifferent to the disability-based harassment Montana received from his peers. The court set the legal stage:
This claim derives from Davis v. Monroe County Board of Education—a Title IX case. 526 U.S. 629 (1999). Davis held that school districts may be liable for failing to address student-on-student sexual harassment “only where they are deliberately indifferent to . . . harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” 526 U.S. at 650. Circuit courts have extended Davis’s reasoning to claims for student-on-student harassment under Title VI [citations omitted]…. Other circuits also have interpreted Davis to apply with equal force in the § 504 setting [citations omitted]….In this case, the Lances and the School District do not dispute that Davis’s test applies to § 504 claims.
In the § 504 setting, Davis requires a plaintiff to show: (1) he was an individual with a disability, (2) he was harassed based on his disability, (3) the harassment was sufficiently severe or pervasive that it altered the condition of his education and created an abusive educational environment, (4) [defendant] knew about the harassment, and (5) [defendant] was deliberately indifferent to the harassment.
The panel focused on the deliberate indifference element, and noted that the Supreme Court in Davis narrowed its application. The panel found this section of Davis instructive:
courts should refrain from second-guessing the disciplinary decisions made by school administrators . . . [s]chool administrators will continue to enjoy the flexibility they require so long as funding recipients are deemed “deliberately indifferent” to acts of student-on-student harassment only where the recipient’s response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.
In the panel’s words, “Section 504 does not require that schools eradicate each instance of bullying from their hallways to avoid liability. Judges make poor vice principals.”
The panel determined that deliberate indifference could not be attributed to LISD for three reasons. First, LISD had fully investigated the two documented incidents of harassment and punished all of the students involved. Second, LISD staff had responded to Montana’s needs in a proactive manner, often intervening or showing initiative in helping him. Third, the family’s expert acknowledged that LISD’s anti-bullying policies are “appropriate and up to national standards” and testified that LISD “provided an employee training presentation, entitled ‘Bullying and Harassment in Schools.’”
Relying on Fifth Circuit precedent, the panel concluded LISD’s “response was not clearly unreasonable.” It emphasized that the fact that the response proves ineffective does not necessarily equate to it being “clearly unreasonable.” The panel, citing Long v. Murray Cnty. Sch. Dist., 522 Fed. App’x 576 (11th Cir. 2013), also pointed out that other federal circuits have applied Davis in a similar manner.
The panel also rejected the parents various state-created danger theories under § 1983. The theories have never expressly been adopted in the fifth circuit. Furthermore, there was no special relationship between LISD and Montana nor any evidence that the school knew about an immediate danger to Montana’s safety.
Estate of Montana Lance v. Lewisville Indep. Sch. Dist., No. 12-41139 (5th Cir. Feb. 28, 2014)
[Editor's Note: In August 2013, Legal Clips published a Sua Sponte item reporting that the National School Boards Association (NSBA) and the Texas Association of School Boards Legal Assistance Fund (TASBLAF), which includes the Texas Association of School Boards, the Texas Association of School Administrators, and the Texas Council of School Attorneys, filed an amicus brief in Lance v. LISD. The NSBA/TASBLAF brief, filed in support of the school district, asked the Fifth Circuit to affirm the decision of the federal district court.
In June 2013 Legal Clips reported on Long v. Murray Cnty. Sch. Dist., No. 12-13248 (11th Cir. Jun. 18. 2013), in which the Eleventh Circuit adopted the deliberate indifference standard in ruling that a Georgia district was not liable for suicide attributed to peer harassment.]