L. v. Leander Independant School District

Filing 56

SUPPLEMENT TO 41 REPORT AND RECOMMENDATIONS re 6 Motion to Dismiss for Failure to State a Claim filed by Leander Independent School District, Bret A. Champion. Signed by Judge Andrew W. Austin. (jk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
C.L. BY NEXT FRIENDS AND
GUARDIANS, R.L. AND E.L.
v.
LEANDER INDEPENDENT SCHOOL
DISTRICT, et al.

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A-12-CA-589 LY

SUPPLEMENT TO REPORT AND RECOMMENDATION
AFTER RE-REFERRAL
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
This matter is before the Court on the re-referral of the case to the undersigned by Judge

Yeakel. On June 4, 2013, the undersigned issued a Report and Recommendation on the Motion to
Dismiss of Defendants Leander I.S.D. and Bret Champion (Dkt. No. 6). The motion to dismiss
addressed a number of claims. On Plaintiffs’ claim made under the ADA and § 504 of the
Rehabilitation Act, the Court relied in part on the panel opinion in Stewart v. Waco Indep. Sch. Dist.,
711 F.3d 513 (5th Cir. 2013), in concluding that Plaintiffs had adequately stated a claim that
survived the motion to dismiss. Unbeknownst to the Court, the day before, on June 3, 2013, the
panel in that case granted a motion for rehearing, withdrew its opinion, and remanded the case to the
district court for a ruling on whether the § 504 claim there was barred for failure to exhaust or was
untimely. Stewart v. Waco Independent School Dist., — F. App’x —, 2013 WL 2398860 (5th Cir.
June 3, 2013). As a result, the holdings in Stewart, relied on in the Report and Recommendation,
have been withdrawn. Based on these events, on June 26, 2013, Judge Yeakel referred the motion
to dismiss back to the undersigned to consider the impact of the Fifth Circuit’s actions in Stewart

on the recommendations made in the Report and Recommendation. The undersigned therefore
submits this Supplement to address that issue.
I.

Findings not affected by the withdrawal of the Stewart opinion
Before addressing the Stewart case, the Court briefly notes that the bulk of the Report and

Recommendation pertained to claims that are in no way impacted by the withdrawal of the Stewart
opinion. The parties have already filed their objections to the Report and Recommendation on these
issues, and the undersigned will leave those sections of the Report and Recommendation untouched.
The only portion of the Report and Recommendation that is impacted by the Fifth Circuit’s actions
in Stewart is Section II.B, found at pages 10-14 of the Report and Recommendation. The remainder
of the Report and Recommendation is therefore not amended by this Supplement, and has already
been objected to by the parties. That portion of the Report and Recommendation is therefore ripe
for review by the district judge.
II.

Withdrawal of section II.B
Based on the Circuit’s withdrawal of the decision in Stewart, the Court hereby withdraws

Section II.B of the Report and Recommendation dated June 4, 2013 (Dkt. No. 41), and in its place
submits the following:
B.

Disability Claims

C.L. also brings a claim under the ADA and § 504 of the Rehabilitation Act, alleging that
LISD failed to accommodate C.L.’s disabilities in several respects. Based on the allegations of the
Third Amended Complaint, as explained and clarified by C.L.’s counsel at the hearing on the motion
to dismiss, C.L. is asserting that LISD failed to modify the bathroom to make it accessible in a safe
environment, failed to provide C.L. with assistance in the bathroom, failed to have a safe emergency

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evacuation plan for C.L., failed to provide services to C.L. for his deteriorating vision, and failed to
provide C.L. homebound services after the assault in the bathroom.1
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. . . .” 29 U.S.C. § 794(a). The Fifth Circuit reviews § 504 claims under
the standard applicable to ADA claims. See, e.g., D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist.,
629 F.3d 450, 453 (5th Cir. 2010) (citing Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir.
2005) (en banc)).
“To establish a prima facie case of discrimination under the ADA, [a plaintiff] must
demonstrate: (1) that she is a qualified individual within the meaning of the ADA; (2) that she was
excluded from participation in, or was denied benefits of, services, programs, or activities for which
[the school district] is responsible; and (3) that such exclusion or discrimination is because of her
disability.” Greer v. Richardson Indep. Sch. Dist., 472 Fed.Appx. 287, 292 (5th Cir. 2012)
(unpublished) (citing Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir. 2004)).
“The only material difference between the two provisions lies in their respective causation
requirements.” Bennett–Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005) (citation

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LISD has asserted that C.L.’s disability claims are foreclosed by the settlement of a prior
IDEA proceeding. Defendants’ Reply (Dkt. No. 10). Plaintiff disputes this and cites portions of the
Settlement Agreement which explicitly preserved C.L.’s right to file a federal lawsuit raising the very
claims at issue here. (Dkt. No. 46). The determination of which claims were released in that
proceeding, and which were preserved, is a question dependent on the language of the parties’
Settlement Agreement, and potentially other evidence, and is thus not appropriate for resolution on
a 12(b)(6) motion.
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omitted). Section 504 prohibits discrimination “solely by reason” of a disability, whereas the ADA
applies even if discrimination is not “the sole reason” for the challenged action. Id.
“A plaintiff asserting a private cause of action for violations of the ADA [and the
Rehabilitation Act] . . . may only recover compensatory damages upon a showing of intentional
discrimination.” Delano–Pyle v. Victoria County, 302 F.3d 567, 575 (5th Cir. 2002) (citing Carter
v. Orleans Parish Pub. Sch., 725 F.2d 261, 264 (5th Cir. 1984)). Discriminatory intent is necessary
because the ADA incorporates the Rehabilitation Act’s remedies. See 42 U.S.C. § 12133. In turn,
the Rehabilitation Act incorporates the remedies of Title IV of the Civil Rights Act of 1964. See
29 U.S.C. § 794(a); 42 U.S.C. § 2000d. Under Title IV, and thus under the ADA, compensatory
damages are available only where there is “intentional discrimination.” Kolstad v. Am. Dental Ass’n,
527 U.S. 526, 533-34 (1999).
To show disability discrimination in the educational context, “something more than a mere
failure to provide the ‘free appropriate education’ required by [the IDEA] must be shown.” Bennett,
431 F.3d at 454 (quoting Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir. 1982)). The
plaintiff must show “that a school district has refused to provide reasonable accommodations for the
handicapped plaintiff to receive the full benefits of the school program.” Marvin H. v. Austin Indep.
Sch. Dist., 714 F.2d 1348, 1356 (5th Cir. 1983). The Fifth Circuit has explicitly adopted the holding
in Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir. 1982), and found that “facts creating an
inference of professional bad faith or gross misjudgment” are necessary to substantiate a cause of
action for intentional discrimination under § 504 or ADA against a school district predicated on a
disagreement over compliance with the IDEA. D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629
F.3d 450, 454 (5th Cir. 2010); Bennett, 431 F.3d at 455. Allegations that educational authorities
“exercised professional judgment,” even mistakenly, do not suffice unless they “depart grossly from
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accepted standards among educational professionals.” Bennett, 431 F.3d at 454–55 (quoting
Monahan, 687 F.2d at 1171). The ADA and Section 504 “do not create general tort liability for
educational malpractice.” D.A., 629 F.3d at 454; Smith ex. rel. Townsend v. Special Sch. Dist. No.
1, 184 F.3d 764, 769 (8th Cir. 1999).
There is room for disagreement regarding the proper standard to apply when a claim such as
C.L.’s is brought against a school district, a claim that is ultimately predicated on demonstrating that
the school district refused to grant a disabled student’s request for a reasonable accommodation.
The first possibility is requiring the plaintiff to demonstrate that the district engaged in “gross
misjudgment” in failing to accommodate the plaintiff’s disabilities. The second approach is to
require that the plaintiff prove the district acted with “deliberate indifference” in its actions. This
was the focus of the disagreement between Judges Haynes and Elrod, on the one hand, and Judge
Higginbotham on the other in Stewart v. Waco Indep. Sch. Dist., 711 F.3d 513 (5th Cir.), vacated
— Fed.Appx. —, 2013 WL 2398860 (5th Cir. June 3, 2013). Prior to the order remanding the case,
the majority on the panel wrote at some length to clarify the standard, “[g]iven the dearth of case law
directly addressing this issue.” 711 F.3d at 513. In dissenting, Judge Higginbotham disagreed with
the majority’s conclusion that a “refusal” to adopt a reasonable accommodation could be
demonstrated by “gross misjudgment,” as that standard is akin to something far less than a
refusal—something like oversight or negligence. Id. at 536 (Higginbotham, J. dissenting). Although
it is not clear from the subsequent (unanimous) panel decision to vacate the opinion and remand the
case, the panel apparently decided to postpone their discussion until it was clear that there was not
some other procedural defect (such as failure to exhaust) that might obviate the need to decide the
question. The unfortunate byproduct of that delay is a less-than-clear state of the law for trial courts
to apply in the meantime.
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Thankfully, the slate was not clean on this issue, as there are several precedents from the
Fifth Circuit that have considered this issue. In reaching its conclusion in Stewart that “gross
misjudgment” was the proper standard, the panel majority relied on existing Fifth Circuit precedents,
and particularly D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist. Indeed, in remanding the case,
the panel stated that:
Should the district court ultimately consider the merits, we note that such
consideration should be pursued in light of our prior precedents, see, e.g., D.A. ex rel.
Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir.2010), albeit the
reading of which produced a division in the now-vacated opinion which we do not
here resolve.
2013 WL 2398860 at *1. As noted earlier, in D.A. the Fifth Circuit quoted from and adopted the
Eighth Circuit’s approach in Monahan in concluding that “gross misjudgment” was the proper
standard to apply in a § 504 case in the educational context. The D.A. court explicitly recognized
that the Fifth Circuit had long held that a plaintiff pursing an ADA or § 504 claim for failure to
accommodate must show the school district “refused” to adopt the accommodation, but found it
nonetheless appropriate to apply a bad faith or gross misjudgment standard in making that
determination. 629 F.3d at 454-55. D.A. has not been overruled, and remains the law. Thus, while
the Court recognizes that there can be disagreement on this issue, it will apply the “gross
misjudgment” standard in reviewing the motion to dismiss this claim.2

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It is clear that the majority in Stewart reached this very same conclusion—that it was bound
by a prior circuit precedent—when it responded to the dissent’s criticism that their opinion had set
too low a standard, stating “that is an issue over which this panel has no control given D.A.’s prior
endorsement of Monahan.” 711 F.3d at 524 n.14. In his dissent, while Judge Higginbotham
disagrees with the majority’s reading of D.A., he fails to offer an alternative reading, but rather
appears to effectively be arguing that D.A. be overruled. Id. at 535-36 (Higgonbotham, J.
dissenting).
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C.L. has pled that LISD was notified by C.L.’s parents that he was subjected to bullying and
that in 2006 LISD was notified via e-mail by C.L.’s parents that he “was cornered in a boy’s
bathroom by several boys and it was really traumatic for him.” Third Amended Complaint at p. 11.
Additionally, C.L. has pled that his parents reported instances of bullying to the school in “countless
e-mails that specified dates and names.” Id. C.L. pleads that his parents presented a list of all the
acts of bullying that occurred in Debbie Johnson’s classroom to the ARD committee and that no
action was taken. C.L. also pleads that his parents were reassured that certain bullies would be kept
away from C.L. and LISD continued to send these children into the bathroom with C.L. without adult
supervision despite knowing about his inability to close the bathroom door and inability to urinate
without pulling down his pants. Id. at 15. These facts state a plausible claim that LISD committed
gross misjudgment in dealing with C.L. C.L. has pled that LISD knew of his disabilities but failed
to investigate disability-based discrimination and harassment complaints or to “take appropriate and
effective remedial measures once notice of [the] harassment was provided to school authorities.”
M.P. ex rel. K. v. Indep. Sch. Dist. No. 721, 439 F.3d 865, 868 (8th Cir. 2006). Dismissal of C.L.’s
Rehabilitation Act and ADA claims is therefore not appropriate at this juncture.
Finally, LISD contends that it cannot be held liable because C.L. never made an outcry of
sexual harassment until the incident that led him to leave the school, and thus it was not on notice
of a need to make accommodations that might have prevented the abuse. As noted, C.L. has alleged
that there were ongoing complaints by his parents regarding mistreatment and bullying by C.L.’s
classmates that was taking place in the bathroom. The fact that the bullying eventually escalated to
sexual acts is indicative of the continued power imbalance between C.L. and his nine and ten year
old classmates, and does not qualitatively change LISD’s responsibilities for the purposes of this
Court’s legal analysis. To put it another way, the abuse C.L. alleges in 2010 was, for all intents and
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purposes, a more grievous form of the bullying about which C.L. alleges he complained beginning
in 2006. Thus, the fact that the prior complaints of mistreatment in the bathroom had not involved
anything sexual in nature does not mean that LISD was not on notice of the risk of harm to C.L. if
it refused to make appropriate modifications to accommodate him in the bathroom.
For these reasons, the Court will recommend that the Motion to Dismiss be denied with
respect to C.L.’s claims under § 504 of the Rehabilitation Act and under the ADA.
III. RECOMMENDATION
For the reasons set forth above, the Court RECOMMENDS that Defendants’ Motion to
Dismiss be GRANTED IN PART AND DENIED IN PART. The Court RECOMMENDS that
the motion be DENIED as to Plaintiffs’ Section 504 and ADA claims against LISD and GRANTED
as to all other claims by Plaintiffs against both LISD and Champion.
IV. WARNINGS
The parties may file objections to this Report and Recommendation.3 A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and

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As noted above, this Supplement to the prior Report and Recommendation only addresses
Plaintiffs’ Section 504 and ADA claims against LISD and the undersigned has not altered the
findings and recommendations made in the original Report and Recommendation. Because the
parties have already made objections to the original Report and Recommendation, they need only
file objections to the findings and recommendations made in this supplement.
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recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 23rd day of July, 2013.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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