                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-1584
                                    ___________

M.P., by and through his parents and   *
natural guardians, K. and D.P.,        *
                                       *
            Appellant,                 *
                                       * Appeal From the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Independent School District No. 721,   *
New Prague, Minnesota,                 *
                                       *
            Appellee.                  *
                                  ___________

                              Submitted: November 16, 2005
                                 Filed: March 8, 2006
                                  ___________

Before SMITH, HEANEY, and BENTON, Circuit Judges.
                            ___________

HEANEY, Circuit Judge.

       M.P., by and through his parents, initiated this action against his former school
district, Independent School District No. 721 (School District), alleging in relevant
part claims under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-
1487 (2000) (IDEA), and Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 701-796
(2000). M.P.’s claims arose after the School District’s school nurse disclosed that he
is schizophrenic, prompting other students to verbally and physically harass him.1

        On May 14, 2002, the district court granted the School District’s motion for
summary judgment on all claims. The court dismissed the IDEA claim because M.P.
failed to exhaust his administrative remedies by enrolling in a school district outside
the School District prior to initiating his administrative proceedings. The court
dismissed the Rehabilitation Act claim because M.P. failed to present any evidence
of deliberate indifference. M.P. appealed to the Eighth Circuit Court of Appeals. On
April 16, 2003, this court affirmed the district court’s order with respect to the IDEA
claim, see M.P. v. Indep. Sch. Dist. No. 721, 326 F.3d 975, 980-83 (8th Cir. 2003),
and remanded the case with respect to the Rehabilitation Act claim to determine
whether the School District had “acted in bad faith or with gross misjudgment when
it failed to take appropriate action to protect M.P.’s academic and safety interests after
the disclosure.” Implicit in this court’s holding and remand was that M.P. could
pursue a Section 504 claim independent of his IDEA claims without exhausting his
administrative remedies.

       The School District filed a motion to dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(1) and (b)(6) for lack of subject matter jurisdiction over M.P.’s
remaining Rehabilitation Act claim. In the alternative, the School District filed a
motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Rather
than conduct an inquiry into M.P.’s claim as this court had ordered, the district court
granted the School District’s motion to dismiss because M.P. failed to exhaust his
administrative remedies, once again prolonging what we believe is M.P.’s entitlement
to present his Section 504 claims before the court.




      1
        The nature of the harassment that M.P. suffered is more thoroughly discussed
in our prior opinion, M.P. v. Indep. Sch. Dist. No. 721, 326 F.3d 975 (8th Cir. 2003).

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      M.P. appeals, arguing that he was not required to exhaust administrative
remedies for disability discrimination and harassment claims arising under the
Rehabilitation Act, and that state administrative IDEA hearings do not provide
students with relief or damages for disability discrimination and harassment claims.

       Because the district court dismissed the matter with prejudice pursuant to
Federal Rule of Civil Procedure 12(b)(1), this court’s standard of review is de novo.
Duncan v. Dep’t of Labor, 313 F.3d 445, 446 (8th Cir. 2000) (per curiam). M.P.
asserts that he can sue for damages under the Rehabilitation Act for violation of his
Section 504 rights without exhausting administrative remedies. We hold that he has
a right of action for damages under Section 504 and reverse the district court.

       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. To establish a prime facie case of disability discrimination
under Section 504, the plaintiff must prove: “(1) [he] is a qualified individual with
a disability; (2) [he] was denied the benefits of a program or activity of a public entity
receiving federal funds; and (3) [he] was discriminated against based on [his]
disability.” Timothy H. v. Cedar Rapids Cmty. Sch. Dist., 178 F.3d 968, 971 (8th Cir.
1999). The plaintiff must also show bad faith or gross misjudgment to make a
successful Section 504 violation claim. Monahan v. Nebraska, 687 F.2d 1164, 1171
(8th Cir. 1982). Examples of successful Section 504 claims include a blanket district-
wide policy that shortened the school day for autistic children, Christopher S. v.
Stanislaus County Office of Educ., 384 F.3d 1205, 1211-12 (9th Cir. 2004); a school
district’s refusal to place a student with fibromyalgia in an honors class or permit her
to obtain school credit by way of home instruction, Weixel v. Bd. of Educ., 287 F.3d
138, 148 (2nd Cir. 2002); and a request for monetary damages for physical abuse and
injury that a special education student suffered while at school, Witte v. Clark County
Sch. Dist., 197 F.3d 1271,1276 (9th Cir. 1999).



                                           -3-
       Our precedent indicates that even when a plaintiff’s IDEA claim fails for lack
of jurisdiction, a Section 504 claim may still be considered. In Thompson v. Bd. of
the Special Sch. Dist. No. 1, 144 F.3d 574, 576 (8th Cir. 1998), a student with various
learning disabilities and emotional behavioral disturbance (EBD) transferred to a
charter school outside of his school district once his parent determined that he was not
receiving adequate services there. We held that the student failed to state a cause of
action under the IDEA “because his request for a review [came] after he left the
District previously responsible for his education.” Id. at 578. Although the student
had failed to exhaust his administrative remedies under the IDEA, we considered his
Section 504 claims, which included improper diagnosis of his behavioral issues and
the district’s failure to alter its discipline policies to accommodate the student’s needs,
separately from his IDEA claims. Id. at 580. We held that it was unlikely that the
student had presented sufficient evidence to show that the District acted with bad faith
or gross misjudgment, and rejected his claims. Id.

        In the case before us, M.P. argues that the School District acted in bad faith or
with gross misjudgment because once his medical condition was disclosed, the School
District failed to provide him with accommodations in the educational environment;
failed to investigate allegations of disability discrimination, student-against-student
harassment, hostile education environment, and disclosure of personal information;
and failed to take appropriate and effective remedial measures once notice of his
harassment was provided to school authorities. 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.
We therefore hold that M.P. has a right of action for damages under Section 504.

      For the reasons cited above, we reverse the district court and remand for
proceedings consistent with this opinion. On remand, the court is to consider whether
the School District acted in bad faith or with gross misjudgment when it failed to take

                                           -4-
appropriate action to protect M.P.’s academic and safety interests after his disability
was disclosed to the student body.
                        ______________________________




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