Date: 03-14-2013

Case Style: Andricka Stewart v. Waco Independent School District

Case Number: 11-51067

Judge: Haynes

Court: United States Court of Appeals for the Fifth Circuit on appeal from the Western District of Texas (Bexar County)

Plaintiff's Attorney:

Defendant's Attorney:

Description: Plaintiff-Appellant Andricka Stewart appeals from the district court’s dismissal of her civil-rights action against Defendant-Appellee Waco Independent School District (the “District”). She seeks review only of her claim under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Because Stewart states a claim under one theory of liability, we REVERSE and REMAND for proceedings consistent with this opinion.

I. Facts and Procedural History

Because this appeal arises from a dismissal for failure to state a claim, we presume the truthfulness of well-pled allegations. See, e.g., Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999). This court reviews such cases de novo, construing facts “in the light most favorable to the non-movant.” Ill. Cent. R.R. Co. v. Cryogenic Transp., Inc., 686 F.3d 314, 316 (5th Cir. 2012) (citation omitted). “Dismissal [is] appropriate if [the plaintiff] fail[s] to allege facts supporting a plausible claim or fail[s] to raise her right to relief above a speculative level.” Id. (citation omitted).

As alleged in her first amended complaint: Stewart “suffers from mental retardation, speech impairment, and hearing impairment” and qualifies as a person with a disability under the Americans with Disabilities Act and the Rehabilitation Act. During the relevant time period, Stewart attended A.J. Moore Academy, then a District high school, as a special-education student. After an incident involving sexual contact between Stewart and another student in November 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.

Nonetheless, the complaint alleges that Stewart was involved in three other instances of sexual conduct, which she characterizes as “sexual abuse,” over the next two years.1 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.2

Stewart sued the District in state court, and the District removed on federal-question grounds.3 Relevant here, Stewart brings a claim under the Rehabilitation Act for the District’s alleged “gross mismanagement” of her IEP and failure to reasonably accommodate her disabilities. She asserts that the suspensions meted out after the second and fourth incidents deprived her of educational benefits.

The district court dismissed Stewart’s action in its entirety, concluding that her claims under § 504, the ADA, and Title IX failed because they attempted to hold the district liable for “the actions of a private actor.”4 Stewart filed a motion to reconsider, which the district court denied in a single-page order. She timely appealed.

On appeal, Stewart borrows from Title IX case law and contends that she can state a claim under § 504 for the District’s deliberate indifference to disability-related student-on-student sexual assault, in addition to “gross mismanagement” of her IEP. She also characterizes her claim as one based on the District’s “fail[ure] to provide her with the necessary accommodations to prevent repeated sexual abuse by her peers” and “plac[ing] her in a dangerous environment by failing to adhere to its own prescribed accommodations intended to protect her.”5

The District responds with three general arguments. It first contends that Stewart pleads no facts connecting the alleged sexual abuse solely to her disability. The District next argues that it was not deliberately indifferent because it investigated the alleged incidents and took action that it deemed appropriate under the circumstances. This argument notes that Stewart failed to directly allege that her disabilities contributed to the conduct underlying the two suspensions. Finally, the District asserts that Stewart fails to state a claim that the District acted in bad faith or with “gross misjudgment.” In the District’s opinion, Stewart has essentially packaged a dispute over its legitimate disciplinary and educational decisions as a civil-rights action.

II. Guiding Principles

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). This court has reviewed § 504 claims under the standard applicable to claims arising under the ADA. See, e.g., D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir. 2010) (citing, inter alia, 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 F. App’x 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 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 exclusion or denial of benefits.” Id. (citation omitted).

Because § 504 and the ADA focus on discrimination, students with disabilities may use them to supplement avenues of recovery available under the Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. See D.A., 629 F.3d at 453 (citing Marvin H. v. Austin Indep. Sch. Dist., 714 F.2d 1348, 1356 (5th Cir. 1983)). “[T]o establish a claim for 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.’” Id. at 454 (quoting Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir. 1982)) (last alteration in original). A plaintiff instead must “‘allege that a school district has refused to provide reasonable accommodations for the handicapped plaintiff to receive the full benefits of the school program.’” Id. (quoting Marvin H., 714 F.2d at 1356). This may be shown by “facts creating an inference of professional bad faith or gross misjudgment.” Id. at 455. Allegations that educational authorities “‘exercised professional judgment,’” even mistakenly, do not suffice unless they “‘depart grossly from accepted standards among educational professionals.’” Id. at 454-55 (quoting Monahan, 687 F.2d at 1171); cf. Youngberg v. Romeo, 457 U.S. 307, 323 (1982) (“[T]he decision, if made by a professional, is presumptively valid . . . .”).

III. Stewart Fails to Plead Student-on-Student Harassment

Stewart does not appeal the dismissal of her Title IX claim. She instead argues that she may state a § 504 claim under a theory of liability analogous to that applied to student-on-student sexual harassment claims under Title IX, given the two statute’s similar operative language. See Brown v. Sibley, 650 F.2d 760, 767 (5th Cir. Unit A 1981) (noting similarities). The Sixth Circuit has deployed that approach in education-related § 504 cases. See, e.g., S.S. v. E. Ky. Univ., 532 F.3d 445, 453-56 (6th Cir. 2008). Such analysis appears consonant with a bad-faith and gross-misjudgment standard,6 and also comports with the high standard applied in the context of a state actor’s liability for constitutional claims based on third-party harms. See, e.g., Covington, 675 F.3d 849.

We need not decide the viability of such a cause of action here. Even if Stewart’s Title IX-like theory of disability discrimination is actionable, she fails to plead facts sufficient to state such a claim. Plaintiffs may premise a Title IX claim against a school district based on student-on-student sexual harassment where the district “acts with deliberate indifference to known acts of harassment in its programs or activities.” Davis, 526 U.S. at 633; see also id. at 641 (noting that this “hold[s] the [state actor] liable for its own decision to remain idle in the face of known student-on-student harassment in its schools”).

The standard applied to such claims, however, is exceedingly high.

“Deliberate indifference is an extremely high standard to meet” in and of itself. Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001). It “generally requires that a plaintiff demonstrate ‘at least a pattern of similar violations.’” Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003) (citation omitted). A discrimination claim based on student-on-student harassment requires even more: the “action will lie only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Davis, 526 U.S. at 633. That is, a school district’s “response to the harassment or lack thereof [must be] clearly unreasonable in light of the known circumstances,” id. at 648, such that the district’s actions subjects the victim to further discrimination. Id. at 649; see also Williams v. Bd. of Regents, 477 F.3d 1282, 1296 (11th Cir. 2007) (holding that Davis requires plaintiffs to “allege that the Title IX recipient’s deliberate indifference to the initial discrimination subjected the plaintiff to further discrimination,” an element not present in pleading deliberate indifference in municipal-liability cases).

Stewart’s complaint falls short of this stringent standard.7 We assume without deciding that the abuse here qualifies as severe, pervasive, and objectively offensive behavior that effectively excluded Stewart from equal access to educational opportunities.8 The complaint’s largely cursory allegations, however, provide little information on the “‘constellation of surrounding circumstances, expectations, and relationships’” necessary to determine whether the District’s responses were “clearly unreasonable” under the circumstances.

The complaint fails to address the harassers’ identities and relationship to Stewart, the punishments meted out to the harassers, the nature of the abuse, the names and responsibilities of District personnel with knowledge of the harassment, the time-delay between the abuse and the District’s response, the extent of Stewart’s harm and exclusion from educational opportunities,9 the specific reasons why the District’s responses were obviously inadequate, or the manner in which such responses likely made Stewart susceptible to further discrimination. Courts have found these factors, among others, relevant in the context of student-on-student harassment under Title IX. See, e.g., Davis, 526 U.S. at 651-53; Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 364-65 (6th Cir. 2012), cert. denied, 133 S. Ct. 282 (Oct. 1. 2012); Rost v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1122-24 (10th Cir. 2008); Porto v. Town of Tewksbury, 488 F.3d 67, 73-76 (1st Cir. 2007); Williams, 477 F.3d at 1295-99; Hawkins v. Sarasota Cnty. Sch. Bd., 322 F.3d 1279, 1287-89 (11th Cir. 2003); Gabrielle M. v. Park Forest-Chicago Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 823-25 (7th Cir. 2003); Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 259- 63 (6th Cir. 2000); Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1247-49 (10th Cir. 1999).

The paucity of Stewart’s complaint, moreover, contrasts to the detailed allegations made in other cases decided at the motion-to-dismiss stage. See Davis, 526 U.S. at 633-35; Williams, 477 F.3d at 1288-91; Murrell, 186 F.3d at 1243-44 (student with disabilities). Stewart pleads four instances of abuse, to which the District responded initially by implementing IEP modifications and on two occasions by determining that Stewart was “complicit” in the misconduct and suspending her. We know little about the District’s response to the third incident. Stewart complains that the District failed to modify her IEP and to eliminate future harassment, but she gives no explanation as to what actions were taken, even as she omits any suggestion that the District did nothing. In the absence of allegations relevant to at least some of the factors listed above, we are asked to infer that the District’s responses were clearly unreasonable because it disciplined Stewart and the abuse did not end after the first three incidents.10

But, “the fact that measures designed to stop harassment prove later to be ineffective does not establish that the steps taken were clearly unreasonable in light of the circumstances known by [the district] at the time.” Porto, 488 F.3d at 74; see also Hawkins, 322 F.3d at 1287 (“[W]hether the [school] Board’s actions were clearly unreasonable must be measured by what was known.”). Davis specifically counsels against requiring that districts must “purg[e] their schools of actionable peer harassment or that administrators must engage in particular disciplinary action[s]” in order to avoid being deliberately indifferent. 526 U.S. at 648. Indeed, school districts have no obligation to accede to “particular remedial demands,” and “courts should refrain from second-guessing the disciplinary decisions made by school administrators.” Id.; see also Gabrielle M., 315 F.3d at 824-25. Yet, that is essentially what Stewart asks us to do, even while many facts crucial to her claim remain within her knowledge, but unpled. See Gabrielle M., 315 F.3d at 824-25 (“All that [the plaintiff] denies is the remedial effect of these steps, claiming that . . . [the harasser] continued to bother her. . . . . [The plaintiff] misunderstands the law.”).

Even so, the complaint as it stands allows us to conclude that this is not a case where the school district responded “by merely investigating and absolutely nothing more.” Vance, 231 F.3d at 260, 261-62 (affirming jury verdict for student on Title IX peer-harassment claim where the school district responded to years of repeated, escalating, and serious incidents of sexual harassment by merely “talking” to the harassers); see also Williams, 477 F.3d at 1296-97 (reasoning that rape victim sufficiently pled deliberate indifference where the university waited eight months to hold a disciplinary hearing and eleven months to implement “corrective actions,” despite identifying the rapists as other students within days of the incident and having actual knowledge that the victim would not return to school so long as the rapists remained on campus); Murrell, 186 F.3d at 1247-49 (concluding that a high school student capable of functioning at only a first-grade level sufficiently pled deliberate indifference under Title IX by alleging that she was subjected to a month-long pattern of severe sexual assault, that specific school personnel had actual knowledge of the incidents but refused to discipline the harasser or inform the student’s mother, and that the principal retaliated against the mother’s complaints by suspending the disabled student, despite the student having suffered psychological harm requiring her hospitalization and assignment to home-bound services).

Accordingly, although the District’s responses may leave something to be desired, the complaint provides insufficient facts to plausibly state that the District’s responses were so clearly unreasonable as to rise to the level of No. 11-51067 11 As we discuss below, ineffectiveness or inadequacy is highly relevant to the grossmisjudgment inquiry. 11 deliberate indifference to actionable student-on-student harassment under Davis. Compare Porto, 488 F.3d at 74 (ruling that school district was not deliberately indifferent because remedial efforts to keep the victim and harasser separated occasionally proved ineffective; school district’s failure to assign an aide to accompany victim to the bathroom “suggest[ed] only that [the district] may have been negligent”), with Doe ex rel. A.N. v. E. Haven Bd. of Educ., 200 F. App’x 46, 49 (2d Cir. 2006) (unpublished) (affirming jury verdict against school district in part because the jury reasonably could have concluded that the district was deliberately indifferent in waiting five weeks to take “concrete action” against student rapists who continued to harass the victim on a daily basis).

We believe this conclusion hews more faithfully to deliberate-indifference principles than the “inadequate” or “ineffective” response standard suggested in Vance, 231 F.3d at 261 (“Where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances.”). The ineffectiveness of a school district’s actions may serve as a factor tending to show deliberate indifference under certain circumstances.11 In light of Davis’s teaching, however, it cannot end the inquiry, even at the pleading stage. See Porto, 488 F.3d at 74 (“The test for whether a school should be liable . . . for student-on-student harassment is not one of effectiveness by hindsight.”). It also matters that the deliberate-indifference principles at play in a Title IX mode of analysis derive directly from those well-established in the § 1983 context. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290-91 (1998). Indeed, Vance acknowledges this doctrinal lineage and cites precedent holding that deliberate indifference requires knowledge of and an unreasonable response to “‘a substantial risk of serious harm.’” 231 F.3d at 260 (quoting Farmer v. Brennan, 511 U.S. 825, 847 (1994)).

Stewart pleads no facts showing that the District knew its responses to each incident created an obvious and substantial risk of recurring abuse, and municipal-liability precedent precludes equating negligence with deliberate indifference. See, e.g., City of Canton v. Harris, 489 U.S. 378, 388 n.7 (1989) (distinguishing “gross negligence” from “deliberate indifference”); Thompson v. Upshur Cnty., 245 F.3d 447, 459 (5th Cir. 2001) (“[D]eliberate indifference cannot be inferred merely from a negligent or even a grossly negligent response to a substantial risk of serious harm.” (citation omitted)); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (deliberate indifference not shown by “‘[m]ere negligence, neglect or . . . malpractice’” (citation omitted)). Accordingly, Stewart does not state a § 504 claim for deliberate indifference to student-on-student harassment.

IV. Stewart’s Claim for Gross Misjudgment Survives

Stewart may nonetheless state a § 504 claim based on the District’s alleged refusal to make reasonable accommodations for her disabilities. Given the dearth of case law directly addressing this issue, we explain in detail below some considerations relevant to such claims.

A. Gross Misjudgment and Reasonable Accommodations

We begin by clarifying that bad faith or gross misjudgment are just alternative ways to plead the refusal to provide reasonable accommodations, an ambiguity potentially left open by our precedent in this area. See D.A., 629 F.3d at 454-55 (noting this circuit’s “long-established rule” requiring a plaintiff to show that a district “‘refused to provide reasonable accommodations,’” but also considering whether the plaintiff showed bad faith or gross misjudgment (citation omitted)); Marvin H., 714 F.2d at 1356&n.13 (rejecting plaintiff’s § 504 claim because the case did “not involve a refusal to provide services[,] but rather a disagreement over the correctness of the services provided”). In this view, it is immaterial whether the District explicitly refused to make reasonable accommodations; professionally unjustifiable conduct suffices.

A contrary interpretation would limit § 504 claims only to where a school district literally refuses to make an accommodation. Although such cases are clear violations of § 504,12 situations may arise where a district’s course of action goes strongly against the grain of accepted standards of educational practice in ways that have nothing to do with affirmatively refusing a reasonable accommodation. For example, a district may exercise gross misjudgment in departing from an accommodation shown to be effective for a particular student in favor of a practice that achieves far less favorable outcomes, but nonetheless persists in the latter approach without adequate justification. Cf. Patterson v. Hudson Area Schs., 551 F.3d 438, 448 n.7 (6th Cir. 2009) (“[I]t is undisputed that [the district] was fully aware that use of the resource room in eighth grade impacted the amount of harassment that [the student] suffered and discontinuing the resource room in ninth grade correlated with a return to high levels of harassment. Thus, a reasonable jury could find that [the district] knew how to combat the harassment . . . and simply chose not to implement that known method of success.”).

Notably, a plaintiff also may plead gross misjudgment by alleging that a school district 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) (M.P. II). In sum, a school district refuses reasonable accommodations 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. B. Distinguishing Gross Misjudgment from Deliberate Indifference As the above discussion suggests, the gross-misjudgment inquiry borrows from deliberate-indifference doctrine. We emphasize, however, that the 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. See, e.g., Davis, 526 U.S. at 648. On the other hand, “gross misjudgment”—a species of heightened negligence—applies to the District’s refusal to make reasonable accommodations by further modifying Stewart’s IEP, a claim traditionally cognizable in some fashion via the IDEA, the ADA, and the Rehabilitation Act. See Sellers ex rel. Sellers v. Sch. Bd., 141 F.3d 524, 529 (4th Cir. 1998) (explaining that a grossmisjudgment standard applies where “plaintiffs allege a [§] 504 violation in the education context on the basis of negligence” (citing Monahan, 687 F.2d at 1170)).13 We adopted the gross-misjudgment approach in D.A., 629 F.3d at 454- 55.14

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. Compare Davis, 526 U.S. at 648-53 (Title IX liability for student-on-student sexual harassment obtains only when the harassment “is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”), with D.A., 629 F.3d at 454-55 (The “‘exercise[ of] professional judgment’” is sufficient unless it “‘depart[s] grossly from accepted standards among educational professionals.”’ (citation omitted)). Maintaining the distinction between these two separate claims comports with the Supreme Court’s observation in Davis that the relationship between the harasser and the victim to some degree controls a school district’s liability for the harassment. See Davis, 526 U.S. at 653 (“The relationship between the harasser and the victim necessarily affects the extent to which the misconduct can be said to breach Title IX’s guarantee of equal access to educational benefits and to have a systemic effect on a program or activity. Peer harassment, in particular, is less likely to satisfy these requirements than is teacher-student harassment.”).

C. Stewart’s Gross-Misjudgment Claim

Returning to this dispute, the District insists that Stewart’s complaint itself shows that the three additional incidents of sexual abuse do not state a gross-misjudgment claim. The District observes that § 504 does not “creat[e] ‘general tort liability for educational malpractice,’” D.A., 629 F.3d at 454, and notes that the three additional incidents occurred over a time period spanning eighteen months.15 The District also relies on the fact that it investigated the alleged incidents, contending that its responses prove that it was not deliberately indifferent. These arguments urge an impermissibly cramped view of the District’s obligations under § 504.

We have likened the effort to provide reasonable accommodations to an exercise in “bilateral cooperation.” Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 145 (5th Cir. 1982) (Title VII context). The “obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the [plaintiff] asks for a different accommodation or where the [defendant] is aware that the initial accommodation is failing and further accommodation is needed.” Humphrey v. Mem. Hosps. Ass’n, 239 F.3d 1128, 1138 (9th Cir. 2001) (emphasis added).

Thus, however appropriate the District’s initial response, it had an ongoing responsibility to calibrate Stewart’s IEP to effectively address the behaviors it intended to prevent by keeping her separated from males and under close supervision. Under § 504, it is not enough that the District might have discharged its duty under a deliberate-indifference standard by taking remedial—but inadequate—action. See M.P. ex rel. K. v. Indep. Sch. Dist. No. 721, 326 F.3d 975, 982 (8th Cir. 2003) (M.P. I) (Deliberate indifference “is irrelevant if it can be shown that the District acted in bad faith or with gross misjudgment.”). At this early stage, we conclude that even if the District provided Stewart with reasonable accommodations when it initially modified her IEP, the three subsequent instances of alleged sexual abuse could plausibly support a finding that the modifications were actionably ineffective.16

Thus, on the record as it currently stands without the benefit of further discovery, we conclude that Stewart plausibly states a claim that the District committed gross misjudgment in failing to implement an alternative approach once her IEP modifications’ shortcomings became apparent. 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.17 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.

We caution that this opinion should not be read to make school districts insurers of the safety of special-needs students. We emphasize that courts generally should give deference to the judgments of educational professionals in the operation of their schools. See, e.g., Davis, 526 U.S. at 648. This opinion neither alters that default rule nor lowers the high standards plaintiffs must satisfy to impose liability against school districts. Isolated mistakes made by harried teachers and random bad acts committed by students and other thirdparties generally will not support gross-misjudgment claims. At this stage in the case, we cannot say definitively that this case involves only the latter. Just as a pattern of constitutional violations increases the likelihood that a state actor has been deliberately indifferent, a district’s continued use of ineffective or inadequate methods when confronted with multiple instances of a specific type of misconduct becomes less defensible over time. At some point, the failure to act appropriately becomes “‘such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.’” Monahan, 687 F.2d at 1171 (quoting Youngberg, 457 U.S. at 323). Given the repeated and specific instances of sexual misconduct here, whether and at what point the District crossed that line is a question better reevaluated after discovery. For pleading purposes, Stewart’s gross-misjudgment theory raises more than a speculative claim for relief.

V. Stewart Need Not Have Exhausted Administrative Remedies

Before concluding, we address the dissenting opinion’s contention—unaddressed by either party’s briefs—that Stewart’s claims necessarily fail because she did not exhaust them through the IDEA’s administrative scheme. The dissenting opinion correctly observes that plaintiffs must administratively exhaust certain non-IDEA claims so long as they “seek[] relief that is also available under” the IDEA. 20 U.S.C. § 1415(l). Similarly, we agree that merely demanding monetary damages—which are unavailable under the IDEA—does not automatically remove a claim from the IDEA’s ambit. See, e.g., Payne v. Peninsula Sch. Dist., 653 F.3d 863, 873-74 (9th Cir. 2011) (en banc) (noting that the First, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits all hold that a plaintiff cannot avoid IDEA exhaustion simply by seeking damages), cert. denied,132 S. Ct. 1540 (Feb. 21, 2012); Polera v. Bd. of Educ., 288 F.3d 478, 483-86 (2d Cir. 2002) (drawing same conclusion from, inter alia, Fourth and Eighth Circuit case law). The IDEA makes “available” myriad remedies through its “related services” provision—many fairly characterized as compensatory—that go beyond day-to-day learning accommodations.18 See Charlie F. ex rel. Neil F. v. Bd. of Educ., 98 F.3d 989, 992-93 (7th Cir. 1996). Plaintiffs therefore generally cannot insulate claims for monetary damages from administrative review by “artful pleading” if the damages would be used to obtain the same compensatory or other services “also available under” the IDEA. See Payne, 653 F.3d at 875 (describing three situations in which administrative exhaustion applies); cf. Charlie F., 98 F.3d at 991 (construing “‘relief available’ to mean relief for the events, condition, or consequences of which the person complains, not necessarily relief of the kind the person prefers”). Ultimately, we disagree with the dissenting opinion for two reasons. As an initial matter, the District arguably forfeited administrative-exhaustion arguments. It failed to raise the issue on appeal or in its motion-to-dismiss briefing before the district court. Indeed, although the District pled IDEA exhaustion as an affirmative defense, it expressly disclaimed Stewart’s eligibility for IDEA relief in its first motion to dismiss.19 Despite this, the dissenting opinion addresses administrative exhaustion sua sponte.20 The only basis for doing so would have to be an implicit conclusion—unstated and unexamined—that the IDEA considers the issue jurisdictional.21 Our sister circuits, however, are split on that very issue. Compare Payne, 653 F.3d at 870- 71 (joining the Seventh and Eleventh Circuits in holding that IDEA exhaustion is not jurisdictional) and Charlie F., 98 F.3d at 991 (The “failure to exhaust administrative remedies does not deprive a court of jurisdiction; lack of exhaustion usually is waivable, as lack of jurisdiction is not.” (collecting Supreme Court precedent)), with Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d. Cir. 2008) (construing exhaustion as jurisdictional). We have declined to take sides in this debate, and we do so again today. See M.L. v. Frisco Indep. Sch. Dist., 451 F. App’x 424, 427 (5th Cir. 2011) (unpublished); Gardner v. Caddo Parish Sch. Bd., 958 F.2d 108, 112 (5th Cir. 1992).22 We need not decide whether exhaustion in general in this area is jurisdictional because Stewart would avoid dismissal even if the IDEA obligated us to consider exhaustion sua sponte as a jurisdictional prerequisite. Although the IDEA contemplates the channeling of some § 504 claims through administrative review,23 see 20 U.S.C. § 1415(l), Stewart’s claim is not such a claim according to her complaint.24 See Payne, 653 F.3d at 874 (observing that

IDEA exhaustion applies “only to the extent that the relief actually sought by the plaintiff could have been provided by the IDEA”); id. at 877 (“[W]e do not think, especially in the context of motions to dismiss or summary judgment motions, that it is proper for courts to assume that money damages will be directed toward forms of relief that would be available under the IDEA”). As pled, Stewart’s § 504 claim seeks monetary damages to hold the District accountable for exercising gross misjudgment in managing Stewart’s IEP, a form of disability discrimination that allegedly caused her to suffer repeated instances of sexual abuse. She specifically seeks damages for past “physical pain,” “medical expenses,” and “physical impairment,” as well as past and future “mental anguish” and “mental health expenses.” It may be that the IDEA provides or could have provided some of the relief demanded in Stewart’s complaint. But we cannot conclude on this record that Stewart actually seeks compensatory or prospective forms of educational relief or related services “also available under” the IDEA, 20 U.S.C. § 1415(l), that “may be required to assist [her so that she can] benefit from special education,” Id. § 1401(26)(A). See Payne, 653 F.3d at 875 (“[W]hether a plaintiff could have sought relief available under the IDEA is irrelevant—what matters is whether the plaintiff actually sought relief available under the IDEA. In other words, when determining whether the IDEA requires a plaintiff to exhaust, courts should start by looking at a complaint’s prayer for relief and determine whether the relief sought is also available under the IDEA. If it is not, then it is likely that § 1415(l) does not require exhaustion in that case.”).25

These conclusions comport with those from other circuits that have recognized the inadequacy of IDEA remedies in analogous circumstances, even some that consider exhaustion jurisdictional. See M.P. II, 439 F.3d at 868 (excusing failure to exhaust in gross-misjudgment case because § 504 claim was “wholly unrelated to the IEP process”; plaintiff alleged that the school district “failed to provide him with accommodations in the educational environment; failed to investigate allegations of disability discrimination, student-against-student harassment, [and] hostile education environment . . . ; and failed to take appropriate and effective remedial measures”); Polera, 288 F.3d at 489-90 (suggesting that administrative exhaustion is futile where a “school has failed to implement services that were specified or otherwise clearly stated in an IEP”); Padilla ex rel. Padilla v. Sch. Dist. No. 1, 233 F.3d 1268, 1275 (10th Cir. 2000) (Cases “that have required plaintiffs who seek damages to exhaust their IDEA administrative remedies have done so where the plaintiffs’ alleged injuries were educational in nature and therefore presumptively redressable through the IDEA’s administrative procedures.” (collecting cases)); Covington v. Knox Cnty. Sch. Sys., 205 F.3d 912, 917-18 (6th Cir. 2000) (holding that exhaustion was futile where plaintiff had graduated, his injuries and the conditions giving rise to them occurred in the past, and the IDEA afforded no real relief); Witte v. Clark Cnty. Sch. Dist., 197 F.3d 1271, 1273, 1276 (9th Cir. 1999) (allegations of past physical and psychological abuse and injury could not be remedied through the IDEA, as such injuries “typically are remedied through an award of monetary damages”), overruled in part on other grounds by Payne, 653 F.3d at 867.26

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.” Payne, 653 F.3d at 877. “Under these narrow circumstances, . . . the IDEA’s administrative remedies, oriented as they are to providing prospective educational benefits, [cannot] possibly begin to assuage . . . severe physical, and completely noneducational, injuries.” Padilla, 233 F.3d at 1274. Accordingly, we conclude that, at this pleading stage, Stewart need not have exhausted her § 504 claim under the IDEA before presenting it to the district court. See Payne, 653 F.3d at 871 (“Non-IDEA claims that do not seek relief available under the IDEA are not subject to the exhaustion requirement, even if they allege injuries that could conceivably have been redressed by the IDEA.”).27

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See: http://www.ca5.uscourts.gov/opinions%5Cpub%5C11/11-51067-CV0.wpd.pdf

Outcome: Because Stewart plausibly states that the District acted with gross misjudgment in failing to further modify her IEP, we REVERSE the district court’s dismissal of Stewart’s § 504 claim and REMAND for proceedings consistent with this opinion. Because Stewart appealed only the dismissal of that claim, we do not address the district court’s rulings as to her other claims. Although the case may go forward to the extent indicated, we note that the pleading is not a model of detail. Thus, the district court remains free to order that Stewart replead in conformity with the guidance provided in this opinion to state at least those facts that are within her control. In line with Payne’s “relief-centered” approach to exhaustion, moreover, the district court may reevaluate as the case proceeds whether each of Stewart’s damage claims actually seeks IDEA relief. See 653 F.3d at 882. The burden for showing that exhaustion applies, however, falls to the District. See, e.g., id. at 884 (Callahan, J., concurring).

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