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.

Horrid Student-on-Student Harassment Case

Yesterday, Judge David G. Larimer of the United States District Court for the Western District of New York issued an opinion denying the defendants' motion to dismiss in Preston v. Hilton Central School District, --- F.Supp.2d ----, 2012 WL 2829452 (W.D.N.Y., July 11, 2012).  The plaintiffs brought this case on behalf of their son, A.P., who has Asperger's Syndrome, to challenge what, if the complaint is to be believed, was a vastly inadequate school response to truly horrendous harassment.  The case isn't especially legally significant, but the facts were so striking (though, alas, not unique) that I thought I would share them at length:

Plaintiffs contend that throughout the 2009–2010 school year, A.P. was routinely bullied by students in a Basic Electronics Class at Hilton High School, who harassed and mocked him on a daily basis, including calling him, “fucking retard,” “asshole,” “faggot,” and “bitch,” and subjecting him to frequent comments of a sexual nature, as well as comments disparaging his cognitive abilities, such as, “Fuck you, you autistic piece of shit.” Plaintiffs also allege that the classroom teacher, Helmer, used profanity and shared inappropriately sexual stories and anecdotes in class. Plaintiffs state that they e-mailed Bartalo concerning the harassment as early as October 10, 2009 and were assured by Bartolo that the incidents would be investigated and that Helmer would be admonished. Helmer apologized to the plaintiffs shortly thereafter, and Bartolo assured plaintiffs that A.P.'s one-on-one aide, Frey, would attend the Basic Electronics class with him for the remainder of the semester as a deterrent to further bullying. However, according to plaintiffs, Frey's presence has no affect on the students' continued sexual comments and insults toward A.P., and Frey stopped accompanying him to class after a few weeks. 

Plaintiffs allege that neither Bartalo nor Helmer took any further action to deter the harassment of A.P. or to discipline the students involved. In November 2009, plaintiffs complained about the continuing harassment to MacDonald, a special education teacher, and Cowey. Plaintiffs met with Bartalo in December 2009, and e-mailed MacDonald in January 2010, to ask why Frey was no longer attending classes with A.P. Plaintiffs also contacted Helmer to report that students were continuing to ridicule A.P. Notwithstanding these contacts, plaintiffs allege that the defendants took no meaningful action. 

After the Basic Electronics class concluded mid-way through the school year, A.P. enrolled in a Construction class. According to the amended complaint, the environment in the Construction class was even more abusive, and from the start of classes on February 1, 2010, other students in that class openly mocked A.P., calling him “gay,” “homo,” “retard,” “asshole,” “faggot,” “bitch” and “loser” during virtually every class. Once again, the District arranged for Frey to attend classes with A.P., but her presence was ineffective at curbing the harassment and as before, she stopped accompanying A.P. to classes after a few weeks. Thereafter, A.P. was allegedly subjected to constant vulgar and/or offensive language directed at his perceived mental capacity and/or sexual preference, including being asked whether he watched pornography, was gay, or masturbated, and whether he would perform oral sex on another male student “for $10.” On one occasion, A.P. was asked by a male classmate, “can I put my dick in your ass?” Students in the class threw small objects such as pencils and small pieces of wood at A.P., and drew sexually explicit pictures on the blackboard. Plaintiffs allege that A.P. complained to the Construction class teacher, Loe, who was present during much of the harassment, but that Loe took no action except to have the offensive drawings erased, and did not discipline or rebuke A.P.'s tormentors. Plaintiffs allege that they complained to Loe, MacDonald, Cowey, and Bartalo, each of whom cautioned that “teens will be teens” but promised they would address the problem, yet did nothing to stop or punish the ongoing harassment. Plaintiffs contend that near the end of the school year, the daily bullying of A.P. was being perpetrated by approximately half of the students in Loe's Construction class. 

On May 6, 2010, the students allegedly surrounded A.P. in the classroom and openly ridiculed a model home project he had completed, but Loe, who was present, did not intervene. Later, a student falsely accused A.P. of smashing that student's model home project. A.P.'s parents alerted MacDonald about the bullying conduct of other students toward A.P., and informed him that as a result, A.P. was having increasing difficulty completing assignments, and was developing serious emotional issues. The following day, A.P. found himself emotionally and mentally unable to complete the school day, and disclosed to his parents several occasions of harassment that he had not previously shared. 

Plaintiffs thereafter met with Bartalo and MacDonald, and learned that AP's grades had dropped by 40% in two of his classes, which plaintiffs attributed to the bullying and harassment of A.P. A.P.'s parents agreed to send A.P. back to school for the remainder of the year. Two return attempts were made, but proved unsuccessful. Plaintiff allege that A.P. continued to be sexually harassed and insulted by other male students each time he attempted to return to the classroom, to the point where he was unable to function emotionally or academically. In an attempt to ensure that A.P. received credit for his course work, plaintiffs located a qualified individual who was able to administer A.P.'s final exams to him outside and independent from the school. A.P. twice attempted to take the exams, but allegedly experienced emotional breakdowns that made him unable to complete them. 

Plaintiffs attempted to have A.P. accepted into the Communications and Social Skills program for children with Asperger's syndrome, but found that if A.P. was accepted to the program, he could not enroll until January 2011, and would be required to attend Hilton Central High School in the interim, an option plaintiffs determined to be a non-viable, given A.P.'s refusal and apparent psychological inability to return. 

The plaintiffs sued under, among other statutes, Title II of the ADA and Section 504 of the Rehabilitation Act.  The school district moved to dismiss those claims on the ground that the harassment was not disability based.  The district court quite properly concluded that the allegations in the complaint were sufficient to make out a case that the students were motivated by A.P.'s disability in harassing him, and that the school district was deliberately indifferent to the harassment.

Sixth Cuit Decides Workplace Disability Harassment Case

On Wednesday, the United States Court of Appeals for the Sixth Circuit issued an opinion in McKelvey v. Secretary of United States Army.  The facts of the case should make any American upset.  The plaintiff, whose hand was blown off when he was trying to defuse a roadside bomb during his United States Army service in Iraq, returned to a civilian position with the Army in Michigan.  In that position, he was, according to the record in the case, subjected to rather intense and ongoing harassment by a coworker and his supervisor.  Here's how the court of appeals described the events:

In March or April 2006, one of McKelvey's coworkers told him that his supervisor, Alan Parks, was “going around telling everybody you're all fucked up from the war, you're a piece of shit, that he should have never hired you, you're worthless.” R.102 at 63. Parks did not assign McKelvey enough work to keep him busy, even though his coworkers were “slammed” with work. R.102 at 66–67. And the work Parks did assign tended toward the menial. When one employee asked for help moving some boxes, Parks “kind of chuckled and he [said] . . . ‘I'll send McKelvey down. He's worthless anyhow. I'll send the cripple down to you.’ “ R.98 at 21. 

Other colleagues were equally abusive. One, Maurice “Bud” Spaulding, got “pretty indignant” about the fact that McKelvey had a handicapped parking permit even though he was not mobility-impaired, and would sometimes call McKelvey “lefty” or “cripple.” R.102 at 64–65. McKelvey initially took these comments to be poor attempts at humor, and he asked Parks's supervisor, Deputy Garrison Commander Robert Graves, to suggest to Parks and Spaulding that they tone it down. 

That did not happen. Between June and August 2006, the comments “changed in tone. They didn't seem like they were meant to be a joke, and they were coming more frequently than previously.” R.102 at 70. Parks and Spaulding regularly called McKelvey a “fucking cripple” and became “agitated” with him for no apparent reason. R.102 at 70. Parks continued to assign McKelvey less work than his colleagues. In August or September, McKelvey complained again to Graves about his work environment, but nothing changed. Around this time, McKelvey also sought help from Mark Lewis, the office's Equal Employment Opportunity counselor, who encouraged him to file a formal complaint, but McKelvey preferred to try to work things out on his own. McKelvey began applying for other jobs in the federal government, but could not find any in Michigan. 

Things got worse. By September and October, the workplace abuse “picked up a lot,” with the taunting and name-calling becoming a weekly occurrence. R.102 at 80–81. At one point, Parks sought out McKelvey to ask him to destroy boxes of paper in an industrial shredder. McKelvey said he was not comfortable putting his only good hand into the machine, which prompted Parks to call him a “fucking cripple” and walk out of the room. R.102 at 81–82. Parks also excluded McKelvey from a meeting about a planning exercise that McKelvey was supposed to coordinate.

McKelvey eventually quit and sued under the Rehabilitation Act.  A jury found that he had experienced hostile-environment harassment and was constructively discharged; it awarded no compensatory damages for the harassment, but it awarded over $4 million in front pay for the constructive discharge.  The district court then granted a motion for judgment as a matter of law on the constructive discharge claim.  It concluded that no reasonable jury could have found that McKelvey was constructively discharged and that in any event the proper remedy for constructive discharge would have been reinstatement, not front pay.

The court of appeals reversed in part and affirmed in part.  Disagreeing with the district court, the appellate court concluded that McKelvey had presented sufficient evidence to support a finding of constructive discharge.  But the court of appeals concluded that the district court had not abused its discretion in declining to award front pay.  The court of appeals remanded "for proceedings consistent with [its] opinion, including a calculation of the amount McKelvey should receive in back pay for the period of time between his discharge and the Secretary’s offer of reinstatement."