Stewart v. Waco Indep. Sch. Dist.

• Decision Date: 14 March 2013
• Docket Number: No. 11–51067.,11–51067.
• Citation: 711 F.3d 513
• Parties: Andricka STEWART, Plaintiff–Appellant v. WACO INDEPENDENT SCHOOL DISTRICT, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

711 F.3d 513

Andricka STEWART, Plaintiff–Appellant

v.WACO INDEPENDENT SCHOOL DISTRICT, Defendant–Appellee.

No. 11–51067.

United States Court of Appeals, Fifth Circuit.

March 14, 2013.

Steven Gregory White, Waco, TX, Martin J. Cirkiel, Cirkiel & Associates, P.C., Round Rock, TX, for Plaintiff–Appellant.

Philip E. McCleery, Peter Kelley Rusek, Sheehy, Lovelace & Mayfield, Waco, TX, for Defendant–Appellee.

Appeal from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Plaintiff–Appellant Andricka Stewart appeals from the district court's dismissal of her civil-rights action against Defendant–Appellee Waco Independent School District (the “District”). She seeks review only of her claim under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Because Stewart states a claim under one theory of liability, we REVERSE and REMAND for proceedings consistent with this opinion.

I. Facts and Procedural History

Because this appeal arises from a dismissal for failure to state a claim, we presume the truthfulness of well-pled allegations. See, e.g., Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). This court reviews such cases de novo, construing facts “in the light most favorable to the non-movant.” Ill. Cent. R.R. Co. v. Cryogenic Transp., Inc., 686 F.3d 314, 316 (5th Cir.2012) (citation omitted). “Dismissal [is] appropriate if [the plaintiff] fail[s] to allege facts supporting a plausible claim or fail[s] to raise her right to relief above a speculative level.” Id. (citation omitted).

As alleged in her first amended complaint: Stewart “suffers from mental retardation, speech impairment, and hearing impairment” and qualifies as a person with a disability under the Americans with Disabilities Act and the Rehabilitation Act. During the relevant time period, Stewart attended A.J. Moore Academy, then a District high school, as a special-education student. After an incident involving sexual contact between Stewart and another student in November 2005, the District modified Stewart's Individualized Education Program (“IEP”) to provide that she be separated from male students and remain under close supervision while at school.

Nonetheless, the complaint alleges that Stewart was involved in three other instances of sexual conduct, which she characterizes as “sexual abuse,” over the next two years.¹ In February 2006, a male student sexually abused Stewart in a school restroom. The District concluded that Stewart “was at least somewhat complicit” in the incident and suspended her for three days. In August 2006, school personnel allowed Stewart to go to the restroom unattended, and she was again sexually abused by a male classmate. Finally, in October 2007, a male student “exposed himself” to Stewart. The District suspended her again. In none of these instances, according to Stewart, did the District take any steps to further modify her IEP or to prevent future abuse.²

Stewart sued the District in state court, and the District removed on federal-question grounds.³ Relevant here, Stewart brings a claim under the Rehabilitation Act for the District's alleged “gross mismanagement” of her IEP and failure to reasonably accommodate her disabilities. She asserts that the suspensions meted out after the second and fourth incidents deprived her of educational benefits.

The district court dismissed Stewart's action in its entirety, concluding that her claims under § 504, the ADA, and Title IX failed because they attempted to hold the district liable for “the actions of a private actor.” ⁴ Stewart filed a motion to reconsider, which the district court denied in a single-page order. She timely appealed.

On appeal, Stewart borrows from Title IX case law and contends that she can state a claim under § 504 for the District's deliberate indifference to disability-related student-on-student sexual assault, in additionto “gross mismanagement” of her IEP. She also characterizes her claim as one based on the District's “fail[ure] to provide her with the necessary accommodations to prevent repeated sexual abuse by her peers” and “plac[ing] her in a dangerous environment by failing to adhere to its own prescribed accommodations intended to protect her.” ⁵

The District responds with three general arguments. It first contends that Stewart pleads no facts connecting the alleged sexual abuse solely to her disability. The District next argues that it was not deliberately indifferent because it investigated the alleged incidents and took action that it deemed appropriate under the circumstances. This argument notes that Stewart failed to directly allege that her disabilities contributed to the conduct underlying the two suspensions. Finally, the District asserts that Stewart fails to state a claim that the District acted in bad faith or with “gross misjudgment.” In the District's opinion, Stewart has essentially packaged a dispute over its legitimate disciplinary and educational decisions as a civil-rights action.

II. Guiding Principles

Section 504 provides that “no otherwise qualified individual with a disability in the United States, ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....” 29 U.S.C. § 794(a). This court has reviewed § 504 claims under the standard applicable to claims arising under the ADA. See, e.g., D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir.2010) (citing, inter alia, Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir.2005) (en banc)). “To establish a prima facie case of discrimination under the ADA, [a plaintiff] must demonstrate: (1) that she is a qualified individual within the meaning of the ADA; (2) that she was excluded from participation in, or was denied benefits of, services, programs, or activities for which [the school district] is responsible; and (3) that such exclusion or discrimination is because of her disability.” Greer v. Richardson Indep. Sch. Dist., 472 Fed.Appx. 287, 292 (5th Cir.2012) (unpublished) (citing Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir.2004)). “The only material difference between the two provisions lies in their respective causation requirements.” Bennett–Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir.2005) (citation omitted).Section 504 prohibits discrimination “solely by reason” of a disability, whereas the ADA applies even if discrimination is not “ ‘the sole reason’ for the exclusion or denial of benefits.” Id. (citation omitted).

Because § 504 and the ADA focus on discrimination, students with disabilities may use them to supplement avenues of recovery available under the Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C. § 1400, et seq.See D.A., 629 F.3d at 453 (citing Marvin H. v. Austin Indep. Sch. Dist., 714 F.2d 1348, 1356 (5th Cir.1983)). “[T]o establish a claim for disability discrimination, in [the] educational context, ‘something more than a mere failure to provide the “free appropriate education” required by [the] [IDEA] must be shown.’ ” Id. at 454 (quoting Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir.1982)) (last alteration in original). A plaintiff instead must “ ‘allege that a school district has refused to provide reasonable accommodations for the handicapped plaintiff to receive the full benefits of the school program.’ ” Id. (quoting Marvin H., 714 F.2d at 1356). This may be shown by “facts creating an inference of professional bad faith or gross misjudgment.” Id. at 455. Allegations that educational authorities “ ‘exercised professional judgment,’ ” even mistakenly, do not suffice unless they “ ‘depart grossly from accepted standards among educational professionals.’ ” Id. at 454–55 (quoting Monahan, 687 F.2d at 1171);cf. Youngberg v. Romeo, 457 U.S. 307, 323, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (“[T]he decision, if made by a professional, is presumptively valid....”).

III. Stewart Fails to Plead Student–on–Student Harassment

Stewart does not appeal the dismissal of her Title IX claim. She instead argues that she may state a § 504 claim under a theory of liability analogous to that applied to student-on-student sexual harassment claims under Title IX, given the two statute's similar operative language. See Brown v. Sibley, 650 F.2d 760, 767 (5th Cir.Unit A 1981) (noting similarities). The Sixth Circuit has deployed that approach in education-related § 504 cases. See, e.g., S.S. v. E. Ky. Univ., 532 F.3d 445, 453–56 (6th Cir.2008). Such analysis appears consonant with a bad-faith and gross-misjudgment standard, ⁶ and also comports with the high standard applied in the context of a state actor's liability for constitutional claims based on third-party harms. See, e.g., Covington, 675 F.3d 849.

We need not decide the viability of such a cause of action here. Even if Stewart's Title IX-like theory of disability discrimination is actionable, she fails to plead facts sufficient to state such a claim. Plaintiffs may premise a Title IX claim against a school district based on student-on-student sexual harassment where the district “acts with deliberate indifference to known acts of harassment in its programs or activities.” Davis, 526 U.S. at 633, 119 S.Ct. 1661;see also id. at 641, 119 S.Ct. 1661 (noting that this “hold[s] the [state actor] liable for its own decision to remain idle in the face of known student-on-student harassment in its schools”).

The standard applied to such claims, however, is exceedingly high. “Deliberate indifference is an extremely high standard to meet” in and of itself. Domino v. Tex. Dep't. of Crim. Justice, 239 F.3d 752, 756 (5th Cir.2001). It “generally requires that a plaintiff demonstrate ‘at least a pattern of...