Federal appellate court rules disabled student failed to state a claim for peer sexual harassment under § 504, has valid claim under § 504 for district’s refusal to make reasonable safety accommodations to IEP
Stewart v. Waco Indep. Sch. Dist., 11-51067 (5th Cir. Mar. 14, 2013)
Abstract: A U.S. Court of Appeals for the Fifth Circuit (TX, LA, MS) three-judge panel, in a 2-1 decision, has ruled that a disabled student failed to state a claim for student-on-student sexual harassment under § 504 of the Rehabilitation Act of 1973. However, the panel’s majority concluded that she had stated a valid §504 claim that the school district committed gross misjudgment in failing to modify her IEP to safeguard her after three incidents of alleged sexual abuse by students. The also found that the student was not required to exhaust her administrative remedies because: (1) the school had failed to raise the argument on appeal; and (2) the § 504 claim was not seeking relief available under the Individuals with Disabilities Education Act (IDEA).
The dissent stated that the § 504 claim, which focused on complaints about the school district’s handling of her IEP, was barred by the plaintiff’s failure to exhaust her administrative remedies under the IDEA. The dissent also opined that the majority misapplies § 504 law to create tort liability for money damages against the school district.
Facts/Issue: Andricka Stewart, who suffers from mental retardation and speech and hearing impairments and qualifies as a person with a disability under the Americans with Disabilities Act (ADA) and Section 504, attended Moore Academy where she received special education services pursuant to an IEP. After an incident involving sexual contact with another student, Waco Independent School District (WISD) modified Stewart’s IEP to provide that she be separated from male students and remain under close supervision while at school.
However, Stewart claimed that she was involved in three other instances of sexual contact, which she characterizes as “sexual abuse.” In one incident a male student sexually abused Stewart in a school bathroom. WISD determined that Stewart “was at least somewhat complicit” in the incident and suspended her for three days. The next incident occurred when she was allowed to go to the restroom unattended, where she was again sexually abused by a male classmate. The final incident involved a male student exposing himself to Stewart. Stewart was again suspended for her role in the incident. According to Stewart, WISD failed to take any steps to further modify her IEP to prevent future abuse after any of the incidents.
Stewart filed suit in state court against WISD. WISD removed the case to federal district court on federal-question grounds. Stewart brought claims under § 504, alleging “gross mismanagement” of her IEP and failure to reasonably accommodate her disabilities. She asserted that the suspensions meted out deprived her of educational benefits. Stewart also brought claims under ADA and Title IX.
The district court dismissed all claims on the ground Stewart was attempting to hold WISD liable for “the actions of a private actor.” Although she did not appeal the Title IX claim, Stewart borrowed Title IX’s deliberate indifference standard, contending that she could state a claim under § 504 for WISD’s deliberate indifference to disability-related student-on-student sexual assault, in addition to “gross mismanagement” of her IEP. WISD argued that Stewart “has essentially packaged a dispute over its legitimate disciplinary and educational decisions as a civil-rights action.”
Ruling/Rationale: The Fifth Circuit panel’s majority reversed the lower court’s decision, reinstating Stewart’s § 504 claim that WISD acted with gross misjudgment in failing to further modify her IEP. It rejected Stewart’s Section 504 claim for deliberate indifference to student-on-student sexual harassment, because Stewart’s allegations did not meet the stringent standard established by the Supreme Court in Davis ex. rel. LaShonda D. v. Monroe Cnty Bd. of Educ., 526 U.S. 629 (1999).
The majority made short work of Stewart’s claim that WISD was liable for student-on-student sexual harassment under § 504. Citing the Supreme Court’s decision in Davis, the majority held that the Title IX standard for district liability was “deliberate indifference to known acts of harassment.” Noting that this is an “exceedingly high” standard, the majority found Stewart’s cursory allegations fell well short of the bar. Lacking in Stewart’s complaint was information on the “constellation of surrounding circumstances, expectations, and relationships” necessary to assess the school district’s actions.
The majority contrasted Stewart’s paucity of allegations with factors that courts had found “relevant in the context of student-on-student harassment under Title IX”:
The complaint fails to address the harassers’ identities and relationship to Stewart, the punishments meted out to the harassers, the nature of the abuse, the names and responsibilities of District personnel with knowledge of the harassment, the time-delay between the abuse and the District’s response, the extent of Stewart’s harm and exclusion from educational opportunities, the specific reasons why the District’s responses were obviously inadequate, or the manner in which such responses likely made Stewart susceptible to further discrimination.
The majority then turned to Stewart’s § 504 claim based on WISD’s alleged refusal to make reasonable accommodations for her disabilities. After noting the lack of case law on the issue, it pointed out “that bad faith or gross misjudgment are just alternative ways to plead the refusal to provide reasonable accommodations, an ambiguity potentially left open by our precedent in this area.”
Under this standard, it would be “immaterial whether the District explicitly refused to make reasonable accommodations; professionally unjustifiable conduct suffices.” This was necessary because a “contrary interpretation would limit § 504 claims only to where a school district literally refuses to make an accommodation.” The majority concluded that “a school district refuses reasonable accommodations under § 504 when it fails to exercise professional judgment in response to changing circumstances or new information, even if the district has already provided an accommodation based on an initial exercise of such judgment.”
While acknowledging that the gross-misjudgment inquiry borrows from the deliberate-indifference doctrine, the majority distinguished between the two theories by pointing out that ”deliberate indifference applies here only with respect to the District’s alleged liability for student-on-student harassment under a Title IX-like theory of disability discrimination.” ”On the other hand, ‘gross misjudgment’–a species of heightened negligence–applies to the District’s refusal to make reasonable accommodations by further modifying Stewart’s IEP.” The majority further explained, “Thus, although the inquiries have much in common, whether the District’s actions were ‘clearly unreasonable’ with respect to peer-occasioned disability harassment remains analytically separate from whether it acted with gross misjudgment as measured by professional standards of educational practice.”
Applying these principles to Stewart’s § 504 claim, the majority emphasized that while WISD may in its initial response have satisifed “its duty under a deliberate-indifference standard by taking remedial—but inadequate—action,” based on the record, it had an ongoing duty under the gross misjudgment standard to modify her IEP when shortcomings in it became apparent. As a result, the majority found, “on the record as it currently stands without the benefit of further discovery,” Stewart “plausibly states a claim that the District committed gross misjudgment in failing to implement an alternative approach once her IEP modifications’ shortcomings became apparent.”
The majority said that certain allegations, such as the closeness in time between the first two incidents involving Stewart’s use of the restroom, made for a plausible argument that WISD could have successfully modified Stewart’s IEP, e.g to prohibit her from going to the restroom unattended. It stated: “It is plausible that failing to further modify an IEP in such circumstances grossly departs from standard educational practice.” However, the majority warned that its opinion “should not be read to make school districts insurers of the safety of special-needs students.”
The dissent disagreed with the decision for the following two reasons. One, the majority ruling permits Ms. Stewart to use § 504 of the Rehabilitation Act to enforce her IEP even though she never exhausted her administrative remedies under the IDEA. Two, the majority misapplies § 504 to create tort liability for money damages against the school district.
The dissent contended that Stewart’s claims were subject to IDEA’s exhaust of administrative remedies requirement because the sole focus of the suit was the shortcomings of her IEP. It stated: “at the heart of Ms. Stewart’s lawsuit is a dispute over the content and implementation of her IEP, a matter that clearly falls within the purview of the IDEA and is capable of resolution through its administrative processes.”
In addition, the dissent opined that “the majority has in its application of controlling standards created tort liability for money damages, allowing Stewart to proceed on pleadings that, at best, state a plausible claim for oversight or negligence.” It stated:
[T]he majority allows parents unhappy with an IEP to bypass the comprehensive remedial scheme of the IDEA and sue under § 504 for money damages. It then misapplies § 504 to impose on schools a tort-like duty not to mismanage a disabled student’s IEP. This unfortunate consequence defies precedent.
Stewart v. Waco Indep. Sch. Dist., 11-51067 (5th Cir. Mar. 14, 2013)
[Editor's Note: In November 2012, Legal Clips published a Sua Sponte item announcing that NSBA, along with the Georgia School Boards Association, Georgia School Superintendents Association, and the Alabama Association of School Boards, had filed an amici curiae brief in Long v. Murray County School District, Docket No. 12-13248, now before the U.S. Court of Appeals for the Eleventh Circuit (AL, GA, FL). The appellate court will review the decision by the U.S. District Court for the Northern District of Georgia, as to whether it “correctly concluded, relying on Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999), that [the parents of a special education student] had not presented evidence of ‘deliberate indifference’ required to establish a peer-on-peer harassment claim” under Section 504 of the Rehabilitation Act or the Americans with Disabilities Act.
NSBA warns the Eleventh Circuit that the U.S. Supreme Court’s intentionally narrow Davis standard should not be expanded because it “would discount years of precedent regarding deference to public officials generally, and school officials in particular with respect to matters of school discipline and safety.” School officials are in the best position to develop effective strategies to create safe learning environments.
NSBA’s January 2013 Inquiry and Analysis, available to COSA members, featured an article by Ronald D. Wenkart, entitled The OCR created “Right” to a Free Appropriate Public Education under Section 504: Time for a Challenge, which reviews court decisions that have followed Davis rather that the more lenient standard pushed by OCR in its October 26, 2010 Dear Colleague Letter.
In December 2010, NSBA General Counsel Francisco Negrón, Jr. challenged the Dear Colleague Letter in a response to OCR citing Davis and other authorities.]