Disability harassment in schools: Fifth Circuit explains two legal theories
By Adrian Alvarez, Goldberg-Robb Attorney
Disability harassment in our schools is a serious problem. A recent study found that students with disabilities are more likely than their non-disabled peers to be bullied. The study also showed that students with disabilities tended to be less popular, have fewer friends, and struggle with loneliness.
As Public Justice gets its anti-bullying practice underway, I’ve been focusing on the different kinds of claims that victims of disability harassment can bring under Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act. A recent Fifth Circuit opinion, Stewart v. Waco Independent School District, has clarified that students who suffer disability harassment may have two different claims under these statutes — one based on the school district’s failure to respond adequately to the bullying, and one based on the district’s refusal to make reasonable accommodations for the disabled student to address the bullying.
Stewart is a female high school student who suffers from mental retardation and speech and hearing impairment. After an incident involving sexual contact with male students, school officials modified her “individualized education program” (IEP) to ensure that she remain separated from male students, and that school officials closely supervised her.
But the school district failed to prevent future abuse.
Over the next two years, Stewart was involved in three other incidents that she characterized as sexual abuse. In one, a male student sexually abused her in the restroom. But the school district said that she had been complicit in the incident, so Stewart was suspended from school for three days. On another occasion, Stewart was sexually assaulted after a school employee allowed her to go to the restroom unattended. Yet she was suspended again — this after a male student exposed himself to her.
Stewart sued the school district under Section 504. The federal district court dismissed the action for failure to state a claim. On appeal, Stewart argued that she had stated a claim against the school district for deliberate indifference.
Other appellate courts, such as the Sixth Circuit in S.S. v. Eastern Kentucky University, had applied a modified version of the deliberate indifference test that the Supreme Court articulated in Davis v. Monroe County Board of Education for Title IX peer harassment cases.
In S.S., the Sixth Circuit explained that to prove disability-based peer harassment under Section 504 or Title II, a plaintiff must show that “(1) [he or she] is an individual with a disability, (2) he or she was harassed based on that disability, (3) the harassment was sufficiently severe or pervasive that it altered the condition of his or her education and created an abusive educational environment, (4) the defendant knew about the harassment, and (5) the defendant was deliberately indifferent to the harassment.”
The Fifth Circuit in Stewart, however, found that it did not have to decide whether a Davis-style claim was available under Section 504 because Stewart had failed to state a claim for deliberate indifference against the school district. Nevertheless, the court held that Stewart had stated a gross misjudgment claim — another way of saying that a school district refused to provide a reasonable accommodation under the statute.
The court explained the difference between the deliberate indifference and gross misjudgment tests as follows:
[T]he two theories are distinct. Deliberate indifference applies here only with respect to the District’s alleged liability for student-on-student harassment under a Title IX-like theory of disability discrimination . . . On the other hand, “gross misjudgment” — a species of negligence — applies to the District’s refusal to make reasonable accommodations by further modifying Stewart’s IEP . . . Thus, although the inquiries have much in common, whether the District’s actions were “clearly unreasonable” with respect to peer-occasioned disability harassment remains analytically separate from whether it acted with gross misjudgment as measured by professional standards of educational practice.
The Fifth Circuit then explained that a school district’s refusal to provide a reasonable accommodation can take a variety of forms: it can take the form of exercising poor professional judgment or failing to take appropriate and effective remedial measures. It can also be a failure to respond to changing circumstances or new information.
In Stewart, the court held that the plaintiff had pleaded sufficient facts to state a claim for gross misjudgment because the school district refused to modify her IEP to account for the impact of the bullying.
Stewart makes clear that gross misjudgment, as “a species of negligence,” is a lower liability standard than deliberate indifference. Thus, where a school refused to make a reasonable accommodation, victims of disability harassment should assert such a claim. The limitation of a refusal-to-accommodate claim is that, by its very nature, it will only help resolve the disability harassment suffered by one student. If, however, many students with disabilities are being harassed in a school district and they want to make systemic change, they should assert a claim for disability harassment under the deliberate indifference standard.