Divided Fifth Circuit Panel Decides Section 504 Student-on-Student Abuse Case

On Friday, the United States Court of Appeals for the Fifth Circuit issued an opinion in Stewart v. Waco Independent School District, --- F.3d ----, 2013 WL 1091654 (5th Cir., Mar. 14, 2013).  The facts of the case (based on the complaint, which is all that is before the court at this point) are quite sad. Andricka Stewart has an intellectual disability, as well as speech and hearing impairments.  In 2006 to 2007, when the events at issue in the case took place, she was a student at a high school operated by the defendant school district.  Late in 2005, after what the court calls "an incident involving sexual contact between Stewart and another student," the district modified her IEP to limit her contact with male students and ensure that she remain under close supervision while at school.  But, her complaint alleged, she experienced a number of further incidents of sexual abuse by other students.  The Fifth Circuit's opinion describes those incidents, as alleged in the complaint:

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.

Stewart sued under, among other statutes, Section 504 of the Rehabilitation Act.  The district court dismissed for failure to state a claim.

In a divided opinion, the Fifth Circuit reversed.  Judge Catharina Haynes wrote the majority opinion, for herself and Judge Jennifer Walker Elrod.  The majority first ruled that Stewart did not state a claim under a student-on-student harassment theory because the complaint did not allege sufficient facts to "plausibly state" that the school district was deliberately indifferent to known disability-based harassment.  

But the majority concluded that "Stewart may nonetheless state a § 504 claim based on the District's alleged refusal to make reasonable accommodations for her disabilities."  In so holding, the court put a helpful gloss on the "bad faith or gross misjudgment" standard that some circuits apply to Section 504 claims in the school context.  The majority explained that "bad faith or gross misjudgment" is not a requirement for 504 claims in this context but is instead simply an "alternative way[] to plead the refusal to provide reasonable accommodations."  In particular, the bad faith or gross misjudgment standard makes clear that a district has failed in its accommodation obligation not only when it explicitly refuses a requested accommodation but also "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."  The majority explained that a plaintiff can establish a violation of the reasonable accommodation requirement -- including under the bad faith or gross misjudgment standard -- without showing that the defendant school district's actions rose to the level of the deliberate indifference that is required to make a district liable for student-on-student harassment.  

Applying those standards to the facts as alleged in the complaint, the majority held that Stewart had plausibly alleged a violation of the school district's accommodation obligations.  The majority explained:

She alleges that she was sexually abused on campus on three separate occasions after the District initially modified her IEP. Regardless of what role Stewart allegedly played in facilitating this misconduct, her IEP was designed to prevent such encounters, and Stewart can plausibly argue at this stage that its effective implementation would have obviated any need for discipline. The complaint also contains allegations that the District knew of specific aspects of the alleged abuse that could have given rise to further modifications. For example, the first two additional instances both involved Stewart's use of the restroom and effectively occurred only three months apart, assuming an intervening three-month summer break, supporting a plausible argument that the District could have modified Stewart's IEP to prohibit her from going to the restroom unattended. It is plausible that failing to further modify an IEP in such circumstances grossly departs from standard educational practice.

The majority nonetheless "emphasize[d] that courts generally should give deference to the judgments of educational professionals in the operation of their schools."  And it reaffirmed that "[i]solated mistakes made by harried teachers and random bad acts committed by students and other third-parties generally will not support gross-misjudgment claims."  But it concluded that the complaint plausibly alleged something more than that.

Finally, the majority held that Stewart was not required to exhaust administrative remedies under the IDEA before bringing her Section 504 suit -- an issue that the school district had not raised before the Fifth Circuit, but that was the centerpiece of the dissent.  The majority noted, first, that the school district had "arguably forfeited administrative-exhaustion arguments" by failing "to raise the issue on appeal or in its motion-to-dismiss briefing before the district court."  As the majority observed, the circuits are split on the question whether IDEA exhaustion is jurisdictional.  The Fifth Circuit has not yet weighed in on that conflict.  And the majority saw no need to weigh in on it here, because it concluded that Stewart's was not the sort of case under which exhaustion was required under 20 U.S.C. § 1415(l):  "In short, Stewart's gross-misjudgment theory of liability—premised on sexual abuse fostered by the district's alleged disability discrimination—does not appear to seek damages 'as a substitute for relief under the IDEA'"(citing the Ninth Circuit's relatively recent decision in Payne v. Peninsula School District).

Judge Higginbotham dissented.  He argued that exhaustion of IDEA's administrative remedies was required because "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."  "Exhaustion aside," Judge Higginbotham argued that "when an IEP is in place, its shortcomings must find their answer within the detailed remedial scheme under the IDEA unless those shortcomings are somehow of a meaningfully distinct character."  To support this point, he relied on the Supreme Court's statement in Smith v. Robinson that "Congress did not intend a handicapped child to be able to circumvent [the IDEA's] requirements or supplement [its] remedies . . . by resort to the general antidiscrimination provision of § 504."  Judge Higginbotham failed to note, however, that Congress overturned Smith in Section 1415(l) -- the very statutory provision on which he relied for his exhaustion argument.  Section 1415(l) provides that, so long as the applicable exhaustion requirement is satisfied, the IDEA does not restrict the substantive rights accorded to kids with disabilities under Section 504 "or other Federal laws protecting the rights of children with disabilities."

Given the active circuit splits over the IDEA exhaustion requirement, which I've noted before, this may not be the last we hear of this case.  But Friday's opinion certainly makes me want to renew my membership in the Catharina Haynes fan club.