As a matter of first impression, a federal district court ruled that a student can pursue a peer harassment claim under § 504 of the Rehabilitation Act. M.J. was a student in the Marion Independent School District who was diagnosed with bipolar disorder and Attention Deficit Hyperactivity Disorder (ADHD). His disabilities caused him to have panic attacks, paranoia, and hallucinations. In a lawsuit filed against the school district, M.J. and his parents alleged that M.J. was the target of verbal and physical harassment and bullying between 2005 and 2009. The suit alleged that the district failed to remedy the harassment and the abuse caused M.J. to become anxious, depressed, angry, and suicidal.
According to the lawsuit, in March of 2010, student, A.B., punched M.J. in the face, causing a fracture to his sinus. As a result, M.J. underwent surgery to remove bone fragments and blood clot. Following this incident, the parents enrolled M.J. in a private school for the 2009-10 school year.
Federal district judge David Alan Ezra held that M.J. raised genuine issues of material fact and could pursue a claim for disability discrimination under § 504 based on peer harassment at school. 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 . . .”
Here, the suit alleged that the district violated M.J.’s rights under § 504 by failing to prevent or remedy the alleged harassment by M.J.’s peers. Recently, in Stewart v. Waco Independent School District, 711 F .3d 513, 519 (5th Cir. 2013), the Fifth Circuit discussed the viability of such a cause of action. However, it declined to decide whether the plaintiff’s theory of liability based on peer harassment was viable, finding that “[e]ven if [the plaintiff’s] Title IX-like theory of disability discrimination [was] actionable, she fail[ed] to plead facts sufficient to state such a claim.” [See Texas School Administrators’ Legal Digest, April 2013].
Thus, whether a school’s inadequate response to disability-based peer-on-peer harassment is actionable under § 504 was a matter of first impression in this circuit, according to the trial court. Citing cases from the Sixth Circuit, the trial court held that M.J. here could pursue such a claim. In order to do so, the plaintiffs had to prove that: (1) M.J. was an individual with a disability; (2) he was harassed because of his disability; (3) the harassment was so severe or pervasive that it altered the conditions of M.J.’s education and created an abusive educational environment; (4) the district knew about the harassment; and (5) the district reacted with deliberate indifference.
The trial court held that the plaintiffs had established a genuine issue for trial as to each element of their § 504 disability-based, peer-on-peer harassment claim. M.J. claimed to have repeatedly reported harassment by A.B. to his math lab teacher, and she apparently failed to take any action on some occasions. M.J. also claimed to have complained of the same harassment at a February 2009 ARD meeting, to no avail. There existed a fact question regarding whether A.B.’s harassment was motivated by M.J.’s disability, and whether the harassment was sufficiently severe and pervasive enough to impose liability on the school. The trial court, therefore, denied the district’s request for judgment prior to trial on the student’s § 504 claim alleging peer-on-peer harassment.
This case is one to watch. It demonstrates that some courts will be very critical when disability harassment claims are involved. It also opens the door to a new line of peer harassment suits under § 504. The plaintiffs have cleared a big hurdle, essentially getting an opportunity to take their case to the next level. Many bullying cases do not survive a defendant’s motion for summary judgment, as the plaintiffs did here. The case is M.J. v. Marion ISD, Dkt. No. SA-10-CV-00978-DAE (S.D. Tex., May 3, 2013); 2013 WL 1882330; 113 LRP 19278 (2013).
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