Earlier this year, we reported a peer harassment case premised, in part, on § 504 of the Rehabilitation Act. In Stewart v. Waco ISD, the Fifth Circuit allowed a § 504 peer harassment claims to proceed, denying a motion to dismiss. However, in the latest ruling in the matter, the Fifth Circuit granted a request by the school district to rehear the case, and vacated its prior opinion.
Andricka Stewart, a student in the Waco Independent School District, sued the school district claiming that she had mental retardation, a speech impairment, and a hearing impairment. She attended high school in the district and received special education services. After an incident involving sexual contact between Stewart and another student in November of 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.
Stewart claimed, however, that she was involved in several other instances of sexual conduct, which she characterized as “sexual abuse” over the next two years. According to the suit, the district did not take any steps to further modify her IEP or to prevent further abuse. Stewart sued the school district alleging claims under Title IX of the Education Amendments of 1972, the Americans with Disabilities Act (ADA), and § 504 of the Rehabilitation Act of 1973. The trial court dismissed the case in its entirety because it was an attempt to hold the district liable for the actions of a private actor. Stewart appealed to the Fifth Circuit Court of Appeals, but only with respect to the dismissal of the § 504 claim. The Fifth Circuit held that Stewart had stated a valid claim under § 504 based on the peer harassment allegations. The school district then sought rehearing of the case.
Vacating its earlier ruling, the Fifth Circuit observed that Stewart’s appeal presented “difficult questions that, in our view, should not be reached unless necessary.” The district court had not addressed whether Stewart had exhausted administrative remedies or whether her alleged failure to do so barred the claims. The issue of exhaustion may be dispositive of the entire matter, according to the appeals court. The 5th Circuit held that the trial court should have considered the district’s defense regarding exhaustion of administrative remedies. Because no ruling had been made on that issue, the Fifth Circuit vacated its early ruling and returned the case to the trial court.
This is a significant turn of events because the original decision could have opened the door to much more liability under § 504. It is yet to be seen whether the case will be dismissed after the trial court considers whether Stewart exhausted administrative remedies. This is one to watch as the Fifth Circuit could potentially recognize legal claims for student peer harassment under § 504. To read the latest opinion, click here: http://www.ca5.uscourts.gov/opinions%5Cunpub%5C11/11-51067.0.wpd.pdf
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