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Last week the Fifth Circuit Court of Appeals issued an important ruling addressing liability standards under Section 504.  The court held that a special education student could maintain a § 504 claim against the Waco Independent School District stemming from alleged peer sexual harassment on campus.  In Stewart v. Waco ISD, __ F.3d __, 2013 WL 1091654 (5th Cir. 2013), Andricka Stewart 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.

The suit alleged, however, that Stewart was involved in three other instances of sexual conduct, which she characterized as “sexual abuse” over the next two years.  In February of 2006, a male student sexually abused her in a restroom.  Finding that Stewart was “at least somewhat complicit” in the activities, the district suspended Stewart for three days.  A similar incident occurred in August of 2006, when school personnel allowed her to go to the restroom unattended.  Then, in October of 2007, a male student “exposed himself” to her.  The district allegedly suspended Stewart again as a result of this incident.  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 claims.

The Fifth Circuit held that Stewart had stated valid claims under § 504.  Under § 504, “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 . . .”  To establish a claim for disability discrimination, a student must allege that the school district has “refused to provide reasonable accommodation for the handicapped plaintiff to receive the full benefits of the school program.”  This standard can be met by facts creating an inference of “professional bad faith or gross misjudgment,” which the appeals court defined as a gross departure from accepted standards among educational professionals.

The appeals court differentiated this § 504 standard of liability from Title IX’s deliberate indifference standard, which is a more stringent standard.  Under Title IX, a discrimination claim based on peer harassment requires a showing that the district’s response was clearly unreasonable in light of the known circumstances, such that the district’s actions subjected the student to further discrimination.  In addition, the harassment must be so severe, pervasive, and objectively offensive that it effectively bars a student from access to an educational opportunity or benefit.  Here, Stewart’s factual allegations failed to state that the district’s responses to the incidents were so unreasonable as to rise to the level of deliberate indifference under a Title IX theory of liability.

According to the appeals court, however, Stewart could state a viable § 504 claim based on the district’s alleged refusal to make reasonable accommodations for her disabilities.  The Fifth Circuit clarified that “bad faith or gross misjudgment are just alternative ways to plead the refusal to provide reasonable accommodations.”  To establish a claim, a plaintiff need not show that the district explicitly refused to make reasonable accommodations.  Instead, professionally unjustifiable conduct would suffice.  According to the appeals court, a school district can be held liable 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.”

In this case, even if the district provided Stewart with reasonable accommodations initially when it changed her IEP, the three subsequent incidents of alleged sexual abuse could support a finding that the modifications were ineffective.  The lawsuit adequately stated a claim that the district “committed gross misjudgment in failing to implement an alternative approach once her IEP modifications’ shortcomings became apparent.”

The dissenting opinion by Judge Patrick E. Higginbotham argued that Stewart could not maintain her § 504 claim because she did not exhaust administrative remedies under the Individuals with Disabilities Education Act (IDEA).  The appeals court agreed that plaintiffs must administratively exhaust certain non-IDEA claims so long as they seek relief that is also available under the IDEA.  However, the district had not raised this issue on appeal.  Further, non-IDEA claims that do not seek relief available under the IDEA are not subject to the exhaustion requirement.  At this early stage of the litigation, it appeared that Stewart’s gross-misjudgment theory of liability did not seek damages as a substitute for relief under the IDEA.  Thus, she was not required to exhaust administrative remedies on that claim.  The appeals court reversed the dismissal of Stewart’s § 504 claim and returned the case to the trial court for further proceedings.

Watch for more information on this important case in upcoming issues of the Texas School Administrators’ Legal Digest. 

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