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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                   Fifth Circuit

                                                                      FILED
                                                                 February 28, 2014
                                No. 12-41139
                                                                   Lyle W. Cayce
                                                                        Clerk
ESTATE OF MONTANA LANCE; JASON LANCE; DEBORAH LANCE,

                                         Plaintiffs-Appellants
v.

LEWISVILLE INDEPENDENT SCHOOL DISTRICT,

                                         Defendant-Appellee




                Appeal from the United States District Court
                     for the Eastern District of Texas


Before REAVLEY, DAVIS, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
       When he was in the fourth grade, Montana Lance locked himself inside
of the school nurse’s bathroom and took his own life. Montana was a special-
needs student, and Montana’s parents sued the Lewisville Independent School
District (the “School District”) alleging, among other claims, that the School
District violated Montana’s constitutional rights under 42 U.S.C. § 1983 and
discriminated against him because of his disabilities under § 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794. The district court granted
summary judgment, and because the evidence does not create a genuine issue
of material fact as to these claims, we AFFIRM.
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                        FACTS AND PROCEEDINGS
      The School District holds an Admission, Review, and Dismissal
committee (“ARD”) meeting to decide whether a student qualifies for special
education services under the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. §§ 1400–1482 (2012). The ARD found that Montana
qualified for special services under IDEA to accommodate his speech
impediment (a lisp), learning disability (Attention Deficit Hyperactivity
Disorder), and, eventually, his emotional disturbance. Accordingly, the ARD
developed     an   Individual   Education    Plan    (“IEP”)    and   a Behavioral
Improvement Plan (“BIP”) for Montana while he attended Stewart’s Creek
Elementary School (“Stewart’s Creek”). Beginning when Montana was in
kindergarten, Stewart’s Creek provided Montana speech therapy, dyslexia
services, and counseling. 1 Montana was troubled, and when he was in second
grade his mother informed a teacher that “he was making verbal statements
about hurting himself at home.” Accordingly, the ARD requested that Montana
undergo a full psychological evaluation. A psychologist reviewing Montana’s
test results concluded that Montana should be identified as “Emotionally
Disturbed.”
      Montana’s peers picked on him at school. One documented altercation
took place on November 4, 2009 when “[a] student verbally provoked (or tried
to) Montana.” “Montana responded ‘I’m not afraid of you,’” pushed the student,
and the student then “pushed Montana into a stack of chairs.” In another
altercation on December 18, 2009, Montana pulled out a pocketknife. Montana
was playing outside when, according to Montana, another student told him to
stop playing like a ninja. Montana told this student that he was a “bully.” A


      1 The Lances consistently agreed with the ARD’s decisions throughout Montana’s
education at Stewart’s Creek.

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                                 No. 12-41139
second student then said “beat [Montana] up again” and the first student
picked up Montana and moved him. Montana explained, “I just pulled out my
knife, but I didn’t know it was there.”
      In response to the December incident, the School District placed
Montana in the Disciplinary Alternative Education Program (“DAEP”) for ten
days. Montana’s mother wrote the principal a letter arguing that the ten-day
transfer was too harsh: “Montana was being bullied by other students and felt
fearful. The other students actually picked Montana off of his feet.” Mrs. Lance
also wrote the Superintendent, explaining that Montana liked DAEP because
“he has not experienced the hazing and bullying from the other students in
contrast to the experiences he has at his home campus [at Stewart’s Creek].”
Accordingly, Mrs. Lance wrote, “I am concerned that this is more of a reward
to my child than a punishment.” The School District reduced Montana’s time
in DAEP to eight days.
      On January 4, 2010, Montana began his time at DAEP and met with a
school psychologist, Dr. Kelly Lawrence, for individual counseling. On January
12, 2010, Montana told his DAEP teacher that “he wanted to kill himself.”
Counselor Mike Riek met with Montana and notified Mr. Lance that Montana
had made suicidal statements. Riek concluded that the “lethality” of Montana’s
statements was low. The Lances arranged for Montana to meet with
psychologist Katie Besly. On January 18, 2010, Besly met with Montana. Besly
testified that Montana “did not give any indication that he was intending to
end his life.” On January 19, 2010, Montana returned to Stewart’s Creek. On
January 21, 2010, Montana and classmates had another altercation. According
to a classmate, Montana was in the breakfast line and “he was called a name.”
Montana “told the bullies to stop it, and he was shoved into the rods.” Montana
“stormed off and sat by himself at an empty table.” Later in the day a substitute


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teacher sent Montana and his classmate to the office for “talking” and “using
profanity.” Montana then met with the assistant principal, Amy Teddy.
      As required of all students who are sent to the office, Montana was
allowed to use only the nurse’s bathroom. Montana was using the nurse’s
bathroom when a significant amount of time passed. The nurse checked on
Montana, and he said “he’d be right out,” but Montana soon stopped
responding to the nurse’s inquiries. The nurse did not have a key to unlock the
door and called the custodian. The custodian did not have a key either. The
custodian then opened the door with a screwdriver. Upon entering the
bathroom, the nurse and custodian found Montana hanging from his belt,
which was secured to a metal rod in the ceiling. Montana had no pulse and was
pronounced dead upon arrival at the hospital.
      The Lances sued the School District, alleging claims under § 1983, § 504,
and Texas law. The School District moved to dismiss the Lances’ § 1983 claims
and claims for punitive damages. The magistrate judge recommended denying
the School District’s motion to dismiss the Lances’ § 1983 claims based on a
“special-relationship theory” but recommended dismissing the Lances’ § 1983
claims based on a “state-created danger” theory and dismissing the Lances’
claims for punitive damages. The district court adopted the report and
recommendation. The School District then filed, among other motions, motions
for summary judgment on the Lances’ § 504 claims and special-relationship
based § 1983 claims. The magistrate judge recommended, among other things,
granting the School District’s summary-judgment motions. The district court
overruled the parties’ objections and adopted the report and recommendation.
The Lances timely appealed.
                        STANDARDS OF REVIEW
      “We review a grant of summary judgment de novo, viewing all evidence
in the light most favorable to the nonmoving party and drawing all reasonable
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inferences in that party’s favor.” Pierce v. Dep’t of the U.S. Air Force, 512 F.3d
184, 186 (5th Cir. 2007). Summary judgment is proper if “the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
                                   ANALYSIS
      The Lances argue that they have raised fact issues as to their § 504
claims and their § 1983 claims.
                                        I.
      The Lances’ disability discrimination claims implicate three sources of
federal law: IDEA, the Americans with Disabilities Act (“ADA”), and § 504.
These statutes form a triptych in the school setting, guiding school
administrators on how to best serve special-needs students.
                                        A.
      “IDEA requires states and local educational agencies receiving federal
IDEA funds to make a [free appropriate public education] available to children
with certain disabilities between the ages of 3 and 21.” Pace v. Bogalusa City
Sch. Bd., 403 F.3d 272, 290–91 (5th Cir. 2005) (en banc). Specifically, IDEA
requires each federally funded school district to:
           (1) provide each disabled child within its jurisdictional boundaries
           with a “free appropriate public education” [a “FAPE”] tailored to
           his unique needs, and (2) assure that such education is offered, to
           the greatest extent possible, in the educational “mainstream,” that
           is, side by side with non-disabled children, in the least restrictive
           environment [the “LRE”] consistent with the disabled student’s
           needs.
Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247 (5th Cir.
1997) (footnote omitted); 20 U.S.C. §§ 1400(d)(1)(A), 1412(5). To achieve these
goals, school districts—through an ARD—must implement an IEP, which is “a
written statement prepared at a meeting attended by a qualified
representative of the school district, a teacher, the child’s parents or guardians,

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and when appropriate, the child himself.” Cypress-Fairbanks, 118 F.3d at 247.
An IEP need not “maximize the child’s educational potential”; it “guarantees
only a basic floor of opportunity for every disabled child, consisting of
specialized instruction and related services which are individually designed to
provide educational benefit.” Id. at 247–48 (internal quotation marks omitted);
see also Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v.
Rowley, 458 U.S. 176, 203–04 (1982). The IEP process is a collaborative effort,
and the student’s parents are guaranteed procedural safeguards to ensure
their involvement in the creation and implementation of their child’s IEP. See,
e.g., 20 U.S.C. §§ 1400(d)(1)(B) (“The purposes of this chapter are . . . to ensure
that the rights of children with disabilities and parents of such children are
protected.”), 1414(c)(3), 1415(a).
       Section 504 is an antidiscrimination statute; and, “[a]dmittedly different
from those underlying the IDEA, the Congressional objective of . . . § 504 is the
elimination of discrimination against individuals with disabilities.” Pace, 403
F.3d at 291. Section 504 mandates that “[n]o otherwise qualified individual
with a disability . . . 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). 2 This provision “broadly prohibit[s]



       2Section 504 provides:
              No otherwise qualified individual with a disability in the United States, as
              defined in section 705(20) of this title, 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 or under any program or activity conducted by any
              Executive agency or by the United States Postal Service. The head of each such
              agency shall promulgate such regulations as may be necessary to carry out the
              amendments to this section made by the Rehabilitation, Comprehensive
              Services, and Developmental Disabilities Act of 1978.
29 U.S.C. § 794(a) (emphasis added).
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discrimination against disabled persons in federally assisted programs or
activities.” D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 453
(5th Cir. 2010); see also M.P. ex rel. K. & D.P. v. Indep. Sch. Dist. No. 721, New
Prague, Minn., 439 F.3d 865, 867 (8th Cir. 2006) (“Section 504 is a proscriptive,
anti-discrimination statute that prohibits discrimination on the part of
governmental actors to avoid due process and equal protection violations.”); see
generally     Ruecker v. Sommer, 567 F. Supp. 2d 1276, 1288 (D. Or. 2007)
(providing a comprehensive overview of IDEA and § 504). In the school setting,
“[t]his court has previously determined that a cause of action is stated under
§ 504 when it is alleged 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). As with § 504, Title II of the Americans with Disability Act is
also an antidiscrimination statute. As such, “this court has equated liability
standards under § 504 and the ADA.” D.A., 629 F.3d at 453. 3




       3  Title II of the ADA provides, in pertinent part, “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. 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). The only “material difference” between § 504 and Title II of
the ADA “lies in their respective causation requirements.” Bennett-Nelson v. La. Bd. of
Regents, 431 F.3d 448, 454 (5th Cir. 2005). Section 504 provides that “[n]o otherwise qualified
individual with a disability . . . 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. . . .” 29 U.S.C. § 794(a) (emphasis added). Under Title II of the ADA,
however, “‘discrimination need not be the sole reason’ for the exclusion of or denial of benefits
to the plaintiff.” Bennett-Nelson, 431 F.3d at 454 (quoting Soledad v. U.S. Dep’t of Treasury,
304 F.3d 500, 503–04 (5th Cir. 2002)). The Lances do not bring a claim under the ADA.

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      The Lances’ § 504 claims highlight two differences between § 504 and
IDEA. First, § 504 and IDEA define disability differently. Compare 20 U.S.C.
§ 1401(3)(a) with 34 C.F.R. § 104.3(j)(1). Accordingly, while students may
qualify for special services under IDEA and also for protection under § 504,
some students may qualify for § 504 protection but not qualify for special
services under IDEA. See Ellenberg v. N.M. Military Inst., 572 F.3d 815, 819–
23 (10th Cir. 2009) (warning against “conflat[ing] the definition of a ‘disabled’
child under the IDEA with the definition of a ‘handicapped person’ under
Section 504” and noting that “Section 504 has a broader scope than the IDEA:
while the IDEA focuses on the provision of appropriate public education to
disabled children, Section 504 addresses the provision of state services to
disabled individuals generally”); Muller ex rel. Muller v. Comm. on Special
Educ., 145 F.3d 95, 99 & n.2 (2d Cir. 1998) (“For example, § 504’s reach extends
not only to individuals who in fact have a disability, but also to individuals who
are regarded as having such a disability (whether or not that perception is
correct).”); see also Mark C. Weber, Procedures and Remedies under Section
504 and the ADA for Public School Children with Disabilities, 32 J. Nat’l Ass’n
Admin. L. Judiciary 611, 618–19 (2012) (noting that the ADA Amendments Act
“dramatically expand[ed] the coverage of the ADA and section 504 with respect
to elementary and secondary students” but that “IDEA’s more restrictive
coverage provisions remain unchanged, so the Amendments Act creates the
likelihood there will be a large class of children eligible under the ADA and
section 504 who are not covered by IDEA”).
      Second, IDEA and § 504 define FAPE differently. IDEA’s statutory
definition of FAPE requires that a student’s IEP be “reasonably calculated to
enable the child to receive educational benefits.” White ex rel. White v.
Ascension Parish Sch. Bd., 343 F.3d 373, 378 (5th Cir. 2003) (quoting Rowley,
458 U.S. at 206–07). Conversely, § 504 does not have a statutory definition of
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FAPE; instead, it is § 504’s accompanying regulations that require school
districts to provide qualifying students a FAPE. Section 504’s regulations
provide that a school district satisfies the FAPE requirement when it provides
services “designed to meet individual educational needs of handicapped
persons as adequately as the needs of nonhandicapped persons are met.” 34
C.F.R. § 104.33(b)(1). The Department of Education described § 504’s FAPE
requirement as “generally conform[ing] to the standards established for the
education of handicapped persons in [IDEA].” Department of Education,
Establishment and Title and Chapters, 45 Fed. Reg. 92, 30951 (May 9, 1980);
see Mark H. v. Lemahieu, 513 F.3d 922, 933 (9th Cir. 2008) (“Although
overlapping in some respects, the two requirements contain significant
differences.”). One circuit has noted that “unlike FAPE under the IDEA, FAPE
under § 504 is defined to require a comparison between the manner in which
the needs of disabled and non-disabled children are met, and focuses on the
‘design’ of a child’s educational program.” Mark H., 513 F.3d at 933; see also
K.M. v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1097–1100 (9th Cir. 2013).
Section 504’s regulations further provide that establishing an IEP under IDEA
is one method for a school district to satisfy the substantive § 504 FAPE
requirement. See 34 C.F.R. § 104.33(b)(2) (“Implementation of an [IEP under
IDEA] is one means of meeting the standard” for § 504 FAPE); 34 C.F.R. Part
104, App. A to Part 104—Analysis of Final Regulation (“A new § 104.33(b)(2)
has been added, which allows this requirement to be met through the full
implementation of an individualized education program developed in
accordance with the standards of [IDEA].”).
                                     B.
      Against this backdrop, the Lances invoke § 504. The Lances’ first § 504
theory is that that the School District acted with gross professional
misjudgment by failing to provide Montana educational services necessary to
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                                       No. 12-41139
satisfy § 504’s FAPE requirement (the “failure-to-provide” claim). To prevail
on this claim the Lances must show that the School District “refused to provide
reasonable accommodations for the handicapped plaintiff to receive the full
benefits of the school program.” Marvin H., 714 F.2d at 1356.
                                             1.
       While they concede that Montana qualified for special services under
IDEA and that the School District implemented an IEP, the Lances’ complaint
does not allege that Montana was denied a FAPE under IDEA; instead, they
argue that Montana was denied a FAPE as defined by § 504’s regulations. The
Lances’ failure-to-provide claims, thus, are predicated on the correctness of
their contention that they “do not need to establish a violation of IDEA in order
to show Montana was denied a FAPE under § 504.” 4
       In D.A. we endorsed the view that “to establish a claim for disability
discrimination, in th[e] education context, ‘something more than a mere failure
to provide the ‘free appropriate education’ required by [IDEA] must be shown.”
D.A., 629 F.3d at 454 (emphasis added) (quoting Monahan v. Nebraska, 687
F.2d 1164, 1170 (8th Cir. 1982)). At a minimum, then, the Lances are required
to allege a denial of a FAPE under IDEA to sustain a § 504 claim based on the
denial of a § 504 FAPE because “§ 504 regulations distinctly state that adopting
a valid IEP is sufficient but not necessary to satisfy the § 504 FAPE
requirements.” Mark H., 513 F.3d at 933; see 34 C.F.R. § 104.33(b)(2); 34 C.F.R.
§ 104.36; Seth M. Galanter, Dear Colleague Letter, n.8 (Jan. 25, 2013),



       4 In their reply the Lances assert—for seemingly the first time, and in any event in
the alternative—that the School District’s actions “would constitute a violation under the
IDEA.” But “we do not generally consider issues raised for the first time in a reply brief.”
Carmona v. Sw. Airlines Co., 536 F.3d 344, 347 n.5 (5th Cir. 2008). Again, the Lances did not
allege that the School District violated IDEA in their complaint, and, as discussed below, the
Lances never appealed any ARD decision and there is nothing in the record to support that
the School District violated IDEA.
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http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html
(“One way to meet the Section 504 FAPE obligation is to implement an
individualized education program (IEP) developed in accordance with the
IDEA.”); see also K.M., 725 F.3d at 1099 (“Because a school district’s provision
of a FAPE under the IDEA meets Section 504 FAPE requirements, a claim
predicated on finding a violation of the Section 504 FAPE standard will fail if
the IDEA FAPE requirement has been met.”); Bryant v. N.Y. State Educ. Dep’t,
692 F.3d 202, 216 n.10 (2d Cir. 2012) (noting that the § 504 FAPE “obligation
can be satisfied by, inter alia, providing the student an IEP”); D.K. v. Abington
Sch. Dist., 696 F.3d 233, 253 n.8 (3d Cir. 2012) (“[O]ur finding that the School
District did not deny D.K. a FAPE [under IDEA] is equally dispositive of
Plaintiffs’ § 504 claim.”); D.A., 629 F.3d at 454 (“Thus, the resolution of an
IDEA claim in the school district’s favor will frequently preclude parents’
resort to redundant claims under § 504 and ADA.”); A.M. ex rel. Marshall v.
Monrovia Unified Sch. Dist., 627 F.3d 773, 782 (9th Cir. 2010) (“[A] school may
establish compliance with Section 504 by implementing a valid IEP.”); Miller
ex rel S.M. v. Bd. of Educ. of Albuquerque Pub. Schs., 565 F.3d 1232, 1246 (10th
Cir. 2009) (“The mere fact that complying with the IDEA is sufficient to
disprove educational discrimination does not mean that every violation of the
IDEA necessarily proves a discrimination claim.”); N.L. ex rel. Mrs. C. v. Knox
Cnty. Schs., 315 F.3d 688, 695–96 (6th Cir. 2003) (“[P]recedent has firmly
established that section 504 claims are dismissed when IDEA claims brought
on the theory of a denial of free appropriate public education are also
dismissed. These holdings make sense in light of section 504’s general
applicability and its status as an anti-discrimination statute.”); Kimble v.
Douglas Cnty. Sch. Dist. RE-1, 925 F. Supp. 2d 1176, 1182 (D. Colo. 2013)
(“Department of Education’s regulations provide that implementing an IEP


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                                       No. 12-41139
that provides a FAPE under the IDEA is sufficient, but not necessary, to satisfy
the FAPE requirements of Section 504.”); cf. Pace, 403 F.3d at 297.
       We take care here to explain the limits of this requirement. First,
“[f]ailing to provide a FAPE in violation of the IDEA . . . is not the sole basis
on which a student may bring a claim of discrimination under the ADA and
[§ 504].” CG v. Pa. Dep’t of Educ., 734 F.3d 229, 235 (3d Cir. 2013); 20 U.S.C.
§ 1415(l) (“Nothing in this Chapter shall be construed to restrict or limit the
rights, procedures, and remedies available under the [ADA or § 504].”).
Instead, § 504 claims “predicated on other theories of liability under that
statute and its implementing regulations . . . are not precluded by a
determination that the student has been provided an IDEA FAPE.” K.M., 725
F.3d at 1099. Section 504 is an antidiscrimination statute; therefore, “even if
plaintiffs conceded that [the School District] fully satisfied its IDEA obligations
. . . they could pursue claims under the ADA and the [§ 504] on the grounds
that [the student] was precluded from receiving a state benefit . . . provided to
her non-disabled peers.” Ellenberg v. N.M. Military Inst., 478 F.3d 1262, 1281–
82 (10th Cir. 2007); see also M.P., 439 F.3d at 867–68 (collecting examples of
successful § 504 claims). In this case, for instance, the Lances’ peer-on-peer
harassment claim is not necessarily predicated on the denial of FAPE. See 34
C.F.R. § 104.4(b)(1)(i)–(iv), (vii), (2), (3); Galanter, Dear Colleague Letter, (Jan.
25, 2013), n.7 (noting that “[a]mong the many specific applications of these
general requirements, Section 504 prohibits harassment on the basis of
disability”). 5



       5 See also M.P., 439 F.3d at 868 (“The School District’s alleged failure to protect M.P.
from unlawful discrimination on the basis of his disability is a claim that is wholly unrelated
to the IEP process, which involves individual identification, evaluation, educational
placement, and free, appropriate education (FAPE) decisions.”); Mark C. Weber, Disability
Harassment in the Public Schools, 43 Wm. & Mary L. Rev. 1079, 1112 (2002) (contending
that “[t]he emphasis in [IDEA] on educational and related services and the gaps in the
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       Second, a School District would never be able to invoke the sufficiency of
its implemented IEP for students who qualify under § 504 but do not qualify
for services under IDEA—there would be no IEP to implement. See, e.g., J.D.
ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60 (2d Cir. 2000); Galanter, Dear
Colleague Letter, (Jan. 25, 2013) (providing an example of a successful § 504
action against the school district for failing to provide special-needs assistance
for a student who is not eligible for services under IDEA).
                                              2.
       Applied here, the Lances cannot sustain their § 504 FAPE claim because
the School District “implement[ed] . . . an Individualized Education Program
developed in accordance with [IDEA.]” 34 C.F.R. § 104.33(b)(2). 6 The Lances
do not allege that Montana’s IEP was developed contrary to IDEA, nor would
we perceive such an IDEA violation on this record.
       First, the Lances consented to the design and implementation of
Montana’s IEP and BIP at every stage of Montana’s time at Stewart’s Creek
and they never raised any concerns about Montana not receiving meaningful
access to education. 7 For example, following an ARD meeting in 2006, Mrs.


coverage . . . make it a less than ideal avenue for relief in harassment cases,” but noting that
“[i]f the environment renders the education inappropriate for an eligible child’s needs, the
district has violated IDEA”). Indeed, the United States as Amicus Curiae argues that the
Lances’ have sustained a § 504 claim premised on the School District’s deliberate indifference
but takes “no position as to whether Montana was deprived of FAPE.”
        6 The Lances’ complaint does allege that “the failure of the school district to develop

an Individualized Education Plan, commensurate with his unique and individualized needs,
rises to the level of a gross mismanagement of his educational plan and is also a violation of
Section 504 thereby.” But this is not an allegation that Montana’s IEP was implemented in
violation of IDEA, it simply is an argument that it was inadequate. Nevertheless, as
discussed below, the summary judgment evidence demonstrates that Montana’s IEP was
developed in accordance with IDEA.
        7 As to placing Montana in DAEP, IDEA explicitly grants school districts discretion to

make disciplinary decisions resulting in a change of placement “for not more than 10 school
days.” See 20 U.S.C. § 1415(k)(1)(A) (“School personnel may consider any unique
circumstances on a case-by-case basis when determining whether to order a change in
placement for a child with a disability who violates a code of student conduct.”); 20 U.S.C.
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Lance acknowledged that she reviewed the ARD minutes and signed that she
“agree[d] with the decisions made.” On January 10, 2007, September 18, 2007,
and June 4, 2008, Mrs. Lance again signed that she agreed with the ARD’s
decisions regarding Montana’s IEP. Further, on April 14, 2008, Mrs. Lance
agreed to give permission for Montana to undergo a full psychological
evaluation at the request of the ARD. Finally, on November 11, 2009, Mr.
Lance attended Montana’s last ARD meeting, which took place two months
before his suicide. Mr. Lance agreed to the ARD’s proposed plan. As the
minutes reflect, the ARD “[r]eviewed proposed additional IEP goals and
objectives” and “[p]arent agreed with goals as written.” Accordingly, and
consistent with statutory protection afforded a special-needs student’s parents
in formulating an IEP, the School District executed the IEP and BIP as the
Lances agreed. See, e.g., 20 U.S.C. § 1414(c)(3) (“Each local educational agency
shall obtain informed parental consent . . . prior to conducting any reevaluation
of a child with a disability”); 20 U.S.C. § 1415(a) (“parents are guaranteed
procedural safeguards with respect to the provision for a free appropriate
public education”).
       Second, the evidence of the ARD deliberations demonstrates that
Montana was provided meaningful access to education consistent with IDEA
and § 504. In 2008, the ARD reviewed Montana’s progress and noted that
Montana had “A’s and B’s in all classes.” Further, Montana’s classroom teacher
reported that “Montana has made improvements in her class since the
beginning of the year. He is doing very well academically, and does not require
as much teacher attention. He still has emotional outbursts, but they have



§ 1415(k)(1)(B) (“School personnel under this subsection may remove a child with a disability
who violates a code of student conduct from their current placement to an appropriate interim
alternative educational setting . . . for not more than 10 school days (to the extent such
alternatives are applied to children without disabilities).”).
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                                 No. 12-41139
improved.” Additionally, the classroom teacher reported that Montana “is very
easily distracted and she has provided him with a seating arrangement to
minimize distractions.” The ARD also noted that Montana “has mastered his
BIP goals.” In 2009, the ARD met again and Mr. Lance attended. Again,
Montana’s teacher reported that “Montana has made progress” and is “doing
well in class.” The ARD minutes also recount that “[t]eachers have noted
significant improvement in his behavior with the medication and support with
the Behavior Intervention Plan. This is an improvement from last year.”
      The evidence establishes that the School District satisfied its § 504 FAPE
obligations by implementing a valid IEP under IDEA. 34 C.F.R. § 104.33(b)(2).
Montana’s IEP “was developed through [IDEA’s] procedures” and was
“reasonably calculated to enable the child to receive educational benefits.”
White, 343 F.3d at 378 (quoting Rowley, 458 U.S. at 206–07). Accordingly, and
because “to establish a claim for disability discrimination, in th[e] education
context, something more than a mere failure to provide the ‘free appropriate
education’ required by [IDEA] must be shown,” D.A., 629 F.3d at 454, summary
judgment was appropriate on the Lances’ failure-to-provide claim.
                                       3.
      The Lances’ second § 504 claim is that the School District discriminated
against Montana because it was deliberately indifferent to the disability-based
harassment that he suffered at the hands of his classmates. This claim derives
from Davis v. Monroe County Board of Education—a Title IX case. 526 U.S.
629 (1999). Davis held that school districts may be liable for failing to address
student-on-student sexual harassment “only where they are deliberately
indifferent to . . . harassment, of which they have actual knowledge, that 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.” 526 U.S. at 650. Circuit courts have extended Davis’s reasoning to
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                                  No. 12-41139
claims for student-on-student harassment under Title VI. See Zeno v. Pine
Plains Cent. Sch. Dist., 702 F.3d 655, 664–65 (2d Cir. 2012); Bryant v. Indep.
Sch. Dist. No. I-38, 334 F.3d 928, 934 (10th Cir. 2003); Saxe v. State Coll. Area
Sch. Dist., 240 F.3d 200, 206 & n.5 (3d Cir. 2001) (Alito, J.) (“Although both
Franklin and Davis dealt with sexual harassment under Title IX, we believe
that their reasoning applies equally to harassment on the basis of the personal
characteristics enumerated in Title VI and other relevant federal anti-
discrimination statutes.”); see also Monteiro v. Tempe Union High Sch. Dist.,
158 F.3d 1022, 1034 (9th Cir. 1998). Other circuits also have interpreted Davis
to apply with equal force in the § 504 setting. See, e.g., S.S. v. E. Ky. Univ., 532
F.3d 445, 453–56 (6th Cir. 2008) (noting, however, that the parties agreed that
Davis’s deliberate-indifference standard should apply, and explicitly reserving
the right to “consider[] a different standard of review if and when the issue is
presented to us in a future case of peer-on-peer harassment”); Long v. Murray
Cnty. Sch. Dist., 522 F. App’x 576, 577 & n.1 (11th Cir. 2013) (applying Davis
to a peer-to-peer harassment case under § 504 when parties “effectively agree
that the deliberate indifference standard” applies); cf. S.H. ex rel. Durrell v.
Lower Merion Sch. Dist., 729 F.3d 248, 264 (3d Cir. 2013) (assessing the
standard for intentional discrimination in a claim against a school district for
misdiagnosing a student’s disability but noting that “a showing of deliberate
indifference may satisfy a claim for compensatory damages under § 504”); M.L.
v. Fed. Way Sch. Dist., 394 F.3d 634, 650–51 (9th Cir. 2004) (“If a teacher is
deliberately indifferent to teasing of a disabled child and the abuse is so severe
that the child can derive no benefit from the services that he or she is offered
by the school district, the child has been denied a FAPE.”).
      One reason courts have applied Davis by analogy to student-on-student
harassment claims under § 504 is because § 504 is similarly worded to its


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                                       No. 12-41139
counterparts in Title II of the ADA, Title IX, and Title VI. 8 Additionally, § 504
and Title II incorporate Title VI’s rights and remedies. 9 In this case, the Lances
and the School District do not dispute that Davis’s test applies to § 504 claims.
       In the § 504 setting, Davis requires a plaintiff to show:
              (1) he was an individual with a disability, (2) he was harassed
              based on his disability, (3) the harassment was sufficiently severe
              or pervasive that it altered the condition of his education and
              created an abusive educational environment, (4) [defendant] knew
              about the harassment, and (5) [defendant] was deliberately
              indifferent to the harassment.
S.S., 532 F.3d at 454; see also Davis, 526 U.S. at 650. The parties agree that
Montana is an individual with a disability, but dispute the remaining four
elements. The district court focused on the difficulty of the second element—
that Montana was harassed based on his disability: “Nowhere in Plaintiffs’
voluminous record is there any evidence that Montana was bullied or treated
differently by school administration because of his disability.” Because the
Lances’ evidence does not create an issue of fact as to the School District’s
deliberate indifference, however, we address this final element.
                                              4.
       The final element of the Davis test is consequential. This element
requires that the Lances provide evidence that the School District was
deliberately indifferent to known acts of harassment and thus liable for


       8  Title II of the ADA provides, in pertinent part, “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. Title IX provides, “[n]o person in the
United States shall, on the basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any education program or activity
receiving Federal financial assistance.” 20 U.S.C. § 1681. Title VI provides: “No person in the
United States shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d.
        9 See 29 U.S.C. § 794a(a)(2); 42 U.S.C. § 12133.

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                                    No. 12-41139
disability-based discrimination. Davis, 526 U.S. at 642–43. The Supreme Court
has limited the deliberate-indifference standard: “We stress that our
conclusion here—that recipients may be liable for their deliberate indifference
to known acts of peer sexual harassment—does not mean that recipients can
avoid liability only by purging their schools of actionable peer harassment or
that administrators must engage in particular disciplinary action.” Id. at 648
(emphasis added). Section 504 does not require that schools eradicate each
instance of bullying from their hallways to avoid liability. Judges make poor
vice principals, 10 and as Davis instructs:
             courts should refrain from second-guessing the disciplinary
             decisions made by school administrators . . . [s]chool
             administrators will continue to enjoy the flexibility they require so
             long as funding recipients are deemed ‘deliberately indifferent’ to
             acts of student-on-student harassment only where the recipient’s
             response to the harassment or lack thereof is clearly unreasonable
             in light of the known circumstances.
Id. As such, the deliberate-indifference inquiry does not “transform every
school disciplinary decision into a jury question.” Gant ex rel. Gant v.
Wallingford Bd. of Educ., 195 F.3d 134, 141 (2d Cir. 1999). Instead, “[i]n an
appropriate case, there is no reason why courts, on a motion to dismiss, for
summary judgment, or for a directed verdict, could not identify a response as
not ‘clearly unreasonable’ as a matter of law.” Davis, 526 U.S. at 649.
      Though it granted summary judgment in favor of the School District, the
district court observed: “If Plaintiffs’—often uncontested—facts are to be
believed, the Defendants’ approach to what seems to be fairly wide-spread
bullying based on Plaintiffs’ summary judgment evidence is to bury their
collective heads in the sand. When faced with a fork in the road, the District’s


      10See generally Dennis Jacobs, The Secret Life of Judges, 75 Fordham L. Rev. 2855,
2861 (2007) (“Judges need a heightened respect for how nonlawyers solve problems, reach
compromises, broker risks, and govern themselves and their institutions.”).
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                                 No. 12-41139
choice seems to consistently be the path of inaction.” Despite this broad
negative characterization, the summary-judgment evidence as to bullying
incidents involving Montana demonstrates that the School District responded
in a manner that precludes a jury finding of deliberate indifference.
      First, the evidence demonstrates that in two documented altercations
involving Montana the School District both investigated the incidents and
punished all of the students involved. See Doe v. Bellefonte Area Sch. Dist., 106
F. App’x 798, 800 (3d Cir. 2004) (“The relevant inquiry for purposes of
evaluating whether the School District here was deliberately indifferent to
known circumstances of harassment is to review its response to reported
incidents of harassment.”).
      After the November 4, 2009 incident, in which Montana was provoked
and got in a shoving match with the other student, Vice Principal Amy Teddy
testified that she investigated the incident and “actually talked with the kids
a lot.” Teddy further testified that she was “working on rebuilding [the
quarreling students’] relationship with each other. . . . [And] . . . was working
with them . . . so they could form a friendship.” Further, the student who fought
with Montana that day “got a consequence as well”—specifically the other
student got an in-school suspension. Teddy then contacted both students’
parents and “checked back with [the students] days later to see how they were
doing and getting along.”
      After the December 18, 2009 incident when Montana pulled out his
pocketknife, Teddy testified that she (1) “interviewed all of the students
involved and documented their explanations of the events,” (2) “met
individually with all of the other students involved in the incident and asked
them whether they felt threatened when Montana took out the knife,” and (3)
“contacted Mr. Lance and [the other students’] parents and met with them in
person that day, along with notifying all the parents and students involved.”
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                                      No. 12-41139
Further, “[e]very child involved in th[e] incident received consequences,” and
“[e]very child with inappropriate behaviors received a suspension . . . of up to
three days.” The uncontested evidence also establishes that the other student
involved in the altercation “had not previously had conflicts with Montana at
school, nor had he had any previous disciplinary referrals during that year.”
       Second, and in response to allegations that Montana was bullied beyond
the two documented instances, 11 there also is affirmative evidence of the School
District’s pattern of responding to other incidents involving Montana and
promoting his relationship with other students. For example, a teacher
reported that “there is a student in the class that [Montana] does not get along
with and that the other student will intentionally upset Montana.” The school
psychologist summarized that there was a “classroom observation of Montana”
and instructed that Montana’s teacher “may want to seek guidance from the
general education counselor as well as document his behaviors and mood” if
the teacher has “any concerns regarding his behavior or mood.” See, e.g., S.S.,
532 F.3d at 455 (school district did not respond indifferently when it took
affirmative steps such as “monitoring” harassed student).
       Teddy also recounted other incidents involving Montana. On November
2, 2009, when Montana was sent to the office “for having pushed another
student at the end of gym class,” Teddy “met with Montana about the incident
and contacted his parents.” On December 12, 2009, Montana was also referred
to the office for “kicking three boys in the cafeteria line.” The supervising
teacher “removed Montana from the situation and gave him an opportunity to
cool down.” Teddy spoke “with Montana about the incident and with the


       11For example, a parent of another child at Stewart’s Creek testified that Montana
“was bullied at Stewarts[sic] Creek from the first through the fourth grade,” and that “[t]he
bullying worsened each year.” Montana’s classmate also testified that they saw students
bully Montana, that he was bullied “more than once a day,” and that the bullying got worse
as Montana got older.
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                                       No. 12-41139
supervising teacher involved,” but did not give a consequence because
“[g]enerally when a child regains his composure after an outburst I prefer to
return the child to class so he does not miss his academic learning.” Teddy also
intervened when Montana was having a tough time at recess. Teddy testified
that she “worked with Montana because he had been getting in trouble at
recess” by giving him “special access to some basketballs” and teaching him to
play the game “horse.”
       Kerry Woods, a teacher at Stewart’s Creek, also testified about her
responses to altercations involving Montana. When Woods “observed that
Montana had a great deal of difficulty getting along with another special
education student,” Woods “enforced their separation,” by “not allow[ing] them
to sit or stand near one another or be in small groups together.” As one student
testified, when Montana was physically bullied and he told the teacher, the
teacher would “[t]ell the one person that hit [Montana] that he was going to
get in big trouble.” 12
       Third, the Lances’ expert acknowledges that the School District’s anti-
bullying policies are “appropriate and up to national standards.” Equally, the
Lances’ expert acknowledges that the School District provided an employee
training presentation, entitled “Bullying and Harassment in Schools.” See Doe,
106 F. App’x at 800 (“The School District also held assemblies and enacted
policies addressing peer-to-peer harassment. Such actions are not clearly


       12 Mr. Lance’s testimony that Montana would complain about bullying to his teacher
and that the teacher would call him a “tattletale” is insufficient to sustain a deliberate-
indifference claim in light of the School District’s demonstrated responsiveness to the
aforementioned two documented incidents of bullying. See Werth v. Bd. of Dirs. of Pub. Schs.
of City of Milwaukee, 472 F. Supp. 2d 1113 (E.D. Wisc. 2007) (holding summary judgment
appropriate on deliberate-indifference when teacher failed to respond to student’s complaints
of physical harassment and recognizing, “[p]erhaps Kruzel could have handled the situation
better by talking with the students after the first incident, but no reasonable jury could find
that Kruzel’s failure to write Larry W. up immediately rather than after the second time he
threw wood blocks was ‘clearly unreasonable’”).
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                                        No. 12-41139
unreasonable.”). 13 One student also testified that a counselor at the school, Mr.
Glass, spoke to the students about bullying following Montana’s death and told
the students to stop bullying other students. That student testified also that
Mr. Glass had told the students to stop bullying before Montana’s death.
       Under our caselaw, the School District’s response was not clearly
unreasonable. See, e.g., Sanches, 647 F.3d at 168 (granting summary judgment
on deliberate indifference and noting that the “[i]neffective responses,
however, are not necessarily clearly unreasonable” and that the “district’s
responses here were not clearly unreasonable merely because the actions
continued”); Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 220 F.3d 380, 388 (5th
Cir. 2000) (holding that principal’s investigation not a clearly unreasonable
response to sexual abuse allegation because “we cannot say . . . that these
actions, though ineffective in preventing McGrew from sexually abusing
students, were an inadequate response to J.H.’s allegation”).
       Other circuits apply Davis similarly. See Long, 522 F. App’x at 577–78
(affirming grant of summary judgment because “the evidence shows a pattern
on the part of Defendants of responding promptly to reported incidents, and
we agree that Plaintiffs have failed to adduce evidence that would permit a
jury to reasonably find that Defendants’ disciplinary responses to the reported
harassment incidents were clearly unreasonabl[e]” (quotations omitted)
(alteration in original)); S.S., 532 F.3d at 455 (holding that “[t]he record in this


       13  The expert also opined that the School District’s “custom and practice was to
completely ignore or fail to adequately investigate, document, and report incidents of bullying
or alleged bullying.” This custom and practice, the expert continued, “reflect[ed] deliberate
indifference to [Montana’s] safety.” The district court excluded Dr. Poland’s testimony to the
extent it embraced an ultimate legal conclusion and found that his use of the term “deliberate
indifference . . . invaded the provinces of the jury.” Further, our court has noted that a school
district’s “‘failure to comply with [its] regulations . . . does not establish the requisite . . .
deliberate indifference.’” Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d
156, 169 (5th Cir. 2011) (quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291–
92 (1998)).
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                                       No. 12-41139
case does not give rise to an inference that Model was deliberately indifferent
to S.S.’s situation or that it had an attitude of permissiveness that amounted
to discrimination” because the School “took the affirmative steps described
above to address the incidents of harassment involving S.S. . . . specifically,
meeting with the students, communicating with parents, and disciplining the
offending students”); Doe, 106 F. App’x at 800 (summary judgment appropriate
for school district when “[e]ach and every time Doe complained, the School
District responded with reasonable actions which eliminated further
harassment between Doe and the student(s) involved in each incident . . .
[s]tudents were suspended and others were given warnings and counseled
regarding the seriousness of harassment”); cf. Mathis v. Wayne Cnty Bd. of
Educ., 496 F. App’x 513, 516 (6th Cir. 2012) (affirming denial of judgment as a
matter of law when “the testimony at trial suggested that WBOE took little to
no immediate action to protect James from the two forms of harassment he
endured . . . [t]hey[sic] jury was aware that WBOE did not conduct any
substantive investigation of either incident, nor did it promptly punish the
behavior” (emphasis added)).
       As was true in Sanches, the School District’s actions “stand in sharp
contrast to those in other cases in which school officials were deliberately
indifferent.” 647 F.3d at 168. In Patterson v. Hudson Area Schs., 551 F.3d 438,
448–49 (6th Cir. 2009), for instance, the school district responded to
harassment “largely by giving verbal reprimands to the perpetrators,” the
harassment escalated, and the school district’s “only response was to employ
the same type of verbal reprimands that it had used unsuccessfully.” 14 In


       14 Patterson also states that “We believe . . . that, even though a school district takes
some action in response to known harassment, if further harassment continues, a jury is not
precluded by law from finding that the school district's response is clearly unreasonable.” Id.
at 448. This interpretation of Davis is in tension with our recognition in Sanches that
“[i]neffective responses, however, are not necessarily clearly unreasonable.” Sanches, 647
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                                       No. 12-41139
Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 262 (6th Cir. 2000),
moreover, the court held that a jury could find deliberate indifference when:
              On one occasion, a student’s harassing conduct culminated in
              stabbing Alma in the hand. With the exception of talking to the
              student, there was no evidence before the jury or this Court that
              Spencer took any other action whatsoever. On another occasion,
              two male students held Alma while another took off his pants and
              others pulled her hair and attempted to rip off her clothes. With
              respect to that incident, the only evidence before the jury evincing
              Spencer’s response is that a class room teacher spoke to the boys
              and Alma. There is no evidence before this Court that Spencer ever
              disciplined the offending students nor informed law enforcement
              as a result of any of these incidents. On yet another occasion,
              Alma’s mother filed a detailed complaint with Spencer’s Title IX
              coordinator. An investigation, however, never resulted.
As Amy Teddy’s testimony demonstrates, the School District’s response to
documented instances involving Montana exceeded those of the school districts
in Patterson and Vance.
       In sum, under Davis, and specifically our application of its deliberate
indifference standard, school districts are afforded flexibility in responding to
unacceptable behavior and may tailor their responses to the circumstances. As
the Supreme Court has instructed: “We thus disagree with respondents’
contention that, if Title IX provides a cause of action for student-on-student
harassment, ‘nothing short of expulsion of every student accused of misconduct
involving sexual overtones would protect school systems from liability or
damages.’” Davis, 526 U.S. at 648. If, however, a school district consciously



F.3d at 168. Further, the dissenting judge in Patterson recognized a disharmony within the
Sixth Circuit on this point and highlighted that “a school acts appropriately if it investigates
what has already occurred, reasonably tries to end any harassment still ongoing by the
offenders, and seeks to prevent the offenders from engaging in such conduct again.”
Patterson, 551 F.3d at 458–60 (Vinson, J., dissenting); see also id. at 460 (Vinson, J.,
dissenting) (“To suggest otherwise . . . comes extremely close to requiring that schools be
‘purged’ of all offensive behavior and be completely harassment-free, which the Supreme
Court and Sixth Circuit have unequivocally held is not required—or possible.”).
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                                        No. 12-41139
avoids confronting harassment or responds to harassment in another clearly
unreasonable manner, which courts have equated with pretextual or
knowingly ineffective interventions, then it may be found to have
discriminated against the harassed student. Because the record evidences a
pattern of active responses by the School District to incidents involving
Montana, no such discriminatory intent against Montana and his disability
may be imputed to the School District. Summary judgment is appropriate on
this claim as well, therefore.
                                              II.
       The Lances asserted three theories of §1983 liability in the district court:
(1) a “special relationship” theory, (2) a “state-created danger” theory, and (3)
a “caused-to-be subjected” theory. On appeal, and in light of Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849 (5th Cir. 2012) (en banc),
the Lances have not briefed their “special-relationship theory.” Instead, they
argue only that they created an issue of fact under the “caused-to-be subjected”
theory and “state-created danger” theory. The Lances’ two theories have never
been adopted in this circuit, and, in any event, the “state-created danger”
theory fails on its own terms. 15
                                               A.
       The en banc court in Covington held that “a State’s failure to protect an
individual against private violence simply does not constitute a violation of the
Due Process Clause,” unless the “very limited” special-relationship exception
applies. Covington, 675 F.3d at 855–56 (quoting DeShaney v. Winnebago Cnty.



       15 The Lances’ state-created danger claim was apparently dismissed at the 12(b)(6)
stage. But, the district court again reiterated the invalidity of the state-created danger theory
in its order adopting the magistrate judge’s recommendation to grant summary judgment on
the other § 1983 claims. The School District, however, does not argue that we should review
the state-created danger claim under the Rule 12(b)(6) standard, but instead acknowledges
that we are reviewing all of the § 1983 claims under the summary-judgment standard.
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                                       No. 12-41139
Dep’t of Social Servs., 489 U.S. 189, 197 (1989)). Importantly, the en banc court
held that “a public school does not have a DeShaney special relationship with
its students requiring the school to ensure the students’ safety from private
actors.” Id. at 857. Nevertheless, the Lances argue that they have created an
issue of fact under the text of § 1983. 16 See Covington, 675 F.3d at 871
(Higginson, J., concurring) (“Set against this statutory language . . . [i]f the
complaint had asserted that the affirmative act of releasing Jane to Keyes was
a causal act of recklessness or deliberate indifference or intentionality that
caused her to be subjected to injury, and specifically to the deprivation of her
right to bodily integrity, the complaint properly would proceed through
discovery to trial.”). But under our court’s holding in Covington, to succeed
under § 1983 there must be a special relationship between the defendant and
the victim. Id. at 855–56. As in Covington, no special relationship exists in this
case. Id. at 857. Accordingly, the Lances cannot make a constitutional claim
based on student-to-student harassment or Montana’s own suicide.
                                              B.
       The en banc court in Covington also recognized that “we have never
explicitly adopted the state-created danger theory,” and “decline[d] to use th[e]
en banc opportunity to adopt the state-created danger theory in this case
because the allegations would not support such a theory.” 675 F.3d at 864, 865.



       16 Section 1983 provides:
                       Every person who, under color of [law] ... subjects, or causes to be
               subjected, any citizen of the United States or other person within the
               jurisdiction thereof to the deprivation of any rights, privileges, or immunities
               secured by the Constitution and laws, shall be liable to the party injured in an
               action at law, suit in equity, or other proper proceeding for redress . . . .
A viable claim under §1983 alleges (1) “a violation of a right secured by the Constitution or
laws of the United States,” and (2) “that the alleged deprivation was committed by a person
acting under color of state law.” Covington, 675 F.3d at 854 (citations and internal quotations
omitted).

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                                  No. 12-41139
Nevertheless, the en banc court applied the state-created danger framework to
plaintiffs’ claim and concluded that plaintiffs’ “allegations do not support a
claim under the state-created danger theory, even if that theory were viable in
this circuit.” Id. at 866. In light of Covington’s express decision not to recognize
the state-created danger theory our court has repeatedly noted its
unavailability, see, e.g., Whitley v. Hanna, 726 F.3d 631, 639 n.5 (5th Cir. 2013)
(“[T]his court has not adopted the state-created danger theory, . . . and Whitley
wisely has disclaimed reliance on it.”); Colomo v. San Angelo Indep. Sch. Dist.,
501 F. App’x 314 (5th Cir. 2012), or recognized that it is not viable but
dismissed the claim assuming its validity. See Guardiola v. Thaler, 529 F.
App’x 406 (5th Cir. June 18, 2013); Dixon v. Alcorn Cnty. Sch. Dist., 499 F.
App’x 364, 366–67 (5th Cir. 2012).
      Taking the view most favorable to the Lances—assuming that state-
created danger is a viable theory—the evidence does not create a genuine issue
of material fact. A state-created danger theory requires (1) “th[at] defendants
used their authority to create a dangerous environment for the plaintiff” and
(2) “that the defendants acted with deliberate indifference to the plight of the
plaintiff.” Covington, 675 F.3d at 865 (quoting Scanlan v. Tex. A&M Univ., 343
F.3d 533, 537–38 (5th Cir. 2003)).
            The second element is then subdivided into three prongs, which
            combine to subsume the first original element,” specifically, a
            plaintiff would have to show that “(1) the environment created by
            the state actor is dangerous, (2) the state actor must know it is
            dangerous (deliberate indifference), and (3) the state actor must
            have used its authority to create an opportunity that would not
            otherwise have existed for the third party’s crime to occur.”
Dixon, 499 F. App’x at 366–67 & n.3.; Piotrowski v. City of Houston, 237 F.3d
567, 585 (5th Cir. 2001).
      The Lances point to two invasions of Montana’s bodily integrity by
private actors: (1) bullying by his peers and (2) his own suicide. The Lances’
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                                 No. 12-41139
state-created danger theory as applied to the bullying fails because the School
District did not “create[] an opportunity that would not otherwise have
existed,” Johnson v. Dall. Indep. Sch. Dist., 38 F.3d 198, 201 (5th Cir. 1994),
or take any action that made Montana more likely to be bullied. See Rivera v.
Hous. Indep. Sch. Dist., 349 F.3d 244, 250 (5th Cir. 2003) (rejecting state-
created danger claim because that the school board was not “assiduous at
fighting gang activity . . . does [not] show that the Board affirmatively placed
Avila in a position of danger, namely in the situation where Balderas was a
greater threat to him than he would have been otherwise”). As discussed, the
evidence shows that the School District attempted to alleviate tensions
between Montana and other students, by, for instance, arranging his seating
in class away from a problematic student. Accordingly, this claim fails. See
Johnson, 38 F.3d at 201 (“The key to the state-created danger cases . . . lies in
the state actors’ culpable knowledge and conduct in affirmatively placing an
individual in a position of danger, effectively stripping a person of her ability
to defend herself, or cutting off potential sources of private aid.” (internal
quotations and citations omitted)).
      As to Montana’s suicide, the Lances point to no evidence that the School
District knew that Montana’s suicide was immediate. Instead, all of the
psychologists that met with Montana testified they did not think he would hurt
himself. Riek met with Montana after he made his suicidal outburst at DAEP,
and he testified that “after questioning him, observing his behavior, and
talking with him about many topics over the course of more than one hour, I
assessed the lethality of his statement as low.” Riek also followed up with
Montana and alerted Mr. Lance. Further, Riek testified, “I was convinced that
Montana was not an imminent danger to himself or others.” On January 18,
2010, days before his death, Montana met with a psychologist, Katie Besly.
Besly testified that Montana “did not give any indication that he was intending
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                                  No. 12-41139
to end his life.” Further, hours before his death, Montana met with Vice
Principal Teddy, who testified that his “demeanor was cheerful” and that “[h]is
death was a complete shock to me.”
      As in Covington, the evidence does not demonstrate that the “school
knew about an immediate danger to [Montana’s] safety.” Covington, 675 F.3d
at 866; see also Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1415 (5th Cir.
1997) (en banc) (“[T]he school district placed the student in the same area as a
school custodian who had no known criminal record, sexual or otherwise, with
school teachers in the same building but not in the immediate area. . . . Such
post hoc attribution of known danger would turn inside out this limited
exception to the principle of no duty.”).
      Further, the Lances cannot show that the School District created a
dangerous environment for Montana. See Sanford v. Stiles, 456 F.3d 298, 311–
12 (3d Cir. 2006) (holding that link between plaintiff’s suicide and defendants’
conduct was “far too attenuated to justify imposition of liability”). In Henjy v.
Grand Saline Indep. Sch. Dist., 420 F. App’x 473 (5th Cir. 2011), for example,
a plaintiff sued the school district after her daughter, E.R., attempted suicide
in a school restroom. No. 2-10-cv-50-TJW, 2010 WL 2521007, at *1 (E.D. Tex.
June 17, 2010). In November 2007, E.R. wrote “a missive about acts of violence
against others and herself,” which was confiscated by a school official and
brought to the principal’s attention. Id. E.R. was arrested the day before her
attempted suicide, and, upon bringing E.R. to school, Henjy told a secretary to
contact her if “anything happened during the school day.” Id. During class that
day, E.R. made a suicide threat to her friend, who told the teacher, who in turn
told the school counselor, Ms. Fisher. Id. Henjy alleged that Fisher, “with full
awareness of the suicide threat, sent E.R. back to class.” Id. E.R. requested to
be excused from the class to use the restroom, and attempted suicide. Id. The
district court declined to adopt a state-created danger theory, id. at *3, and our
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                                No. 12-41139
court affirmed. Henjy, 420 F. App’x at 473. Henji’s claim failed because there
was nothing to suggest that the School District affirmatively increased the
chance that she would commit suicide. For those same reasons, this case does
not sustain a state-created danger claim, even assuming that theory’s validity.
Accordingly, summary judgment was appropriate on the Lances’ § 1983 claims.
                               CONCLUSION
      Because the School District did not discriminate against Montana
because of his disability nor deprive Montana of a constitutional right, we
AFFIRM.




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