     Case: 11-51067   Document: 00512174769      Page: 1   Date Filed: 03/14/2013




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

                                                                    FILED
                                                                March 14, 2013

                                 No. 11-51067                    Lyle W. Cayce
                                                                      Clerk

ANDRICKA STEWART,


                                            Plaintiff – Appellant

v.

WACO INDEPENDENT SCHOOL DISTRICT,


                                            Defendant – Appellee




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



Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
      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.
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                                        No. 11-51067

                          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


      1
          The District disputes whether the incidents qualify as sexual abuse under Texas law.

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                                        No. 11-51067

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


       2
          Stewart generically alleges that she “has a history of being harassed by other students
due to her disability, including intimidation by other students, physical assaults, being beat
up, and having other kids call her names.” She contends that her grandmother put District
officials on notice of these incidents, to no avail.
       3
         Stewart’s filed her complaint almost three years from the final instance of alleged
sexual abuse to file suit. The District pled limitations as an affirmative defense in its answer,
but it has not raised the issue here, and we express no opinion on it.
       4
         Stewart’s complaint and the progression of the case at the district court level focused
on § 1983 claims premised on substantive due process violations under state-created-danger
and special-relationship theories. We note that the district court’s dismissal of those claims
is supported by our subsequent opinion in Doe ex rel. Magee v. Covington County School
District ex rel. Keys, 675 F.3d 849, 854-66 (5th Cir. 2012) (en banc). Stewart does not challenge
this portion of the district court’s judgment.

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                                        No. 11-51067

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

       5
         Stewart also suggests that the District violated § 504 by virtue of the suspensions.
By itself, though, discipline of a special-needs student is not a violation of § 504. The law is
clear that a school district may discipline a special-education student like any other
student—even with removal from her normal educational environment—so long as the
predicate incident is not a “manifestation” of the student’s disability. See, e.g., S-1 v.
Turlington, 635 F.2d 342, 346-49 (5th Cir. Unit B 1981), abrogated on other grounds by Honig
v. Doe, 484 U.S. 305, 317 (1988)); Doe ex rel. Gonzales v. Maher, 793 F.2d 1470, 1482 (9th Cir.
1986) (“When a child’s misbehavior does not result from his handicapping condition, there is
simply no justification for exempting him from the rules, including those regarding expulsion,
applicable to other children.”); see also Halpern v. Wake Forest Univ. Health Sci., 669 F.3d 454,
465 (4th Cir. 2012) (“A school, if informed that a student has a disability with behavioral
manifestations, may be obligated to make accommodations to help the student avoid engaging
in misconduct. But, the law does not require the school to ignore misconduct that has occurred
because the student subsequently asserts it was the result of a disability.”). Stewart fails to
plead that she was disciplined for conduct attributable to manifestations of her disabilities or
to describe how her disabilities manifest themselves in the educational environment.

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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

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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




       6
         The Eighth Circuit has briefly considered a § 504 claim apparently brought under a
Title IX theory of liability under a bad-faith and gross-misjudgment analysis. See Bradley v.
Ark. Dep’t of Educ., 301 F.3d 952, 956 (8th Cir. 2002).

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                                       No. 11-51067

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




       7
          We may ascertain the unreasonableness of a school district’s actions from the
pleadings. See Davis, 526 U.S. at 649 (“This is not a mere ‘reasonableness’ standard, as the
dissent assumes. In 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.” (internal citation omitted)).

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                                       No. 11-51067

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,

       8
          See Davis, 526 U.S. at 650-51 (using, as an example of qualifying misconduct,
deliberate indifference to “overt, physical deprivation of access to school resources,” such as
“a case in which male students physically threaten their female peers every day, successfully
preventing the female students from using a particular school resource”); id. at 652-53
(requiring that the “behavior be serious enough to have the systemic effect of denying the
victim equal access to an educational program or activity” and be “played out on a ‘wide-spread
level’ among students”).
       9
         Stewart mentions the two in-school suspensions, but these were only wrongful if they
were based on conduct attributable to manifestations of her disabilities. She instead asserts
that the suspensions were inappropriate because “she was only a freshman and was mentally
retarded.” Compl. ¶ 15. This says only that Stewart was young and that she had a disability,
facts insufficient without more to permit the inference that the District was clearly
unreasonable in disciplining her.

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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



       10
         The reasonableness of the District’s response may depend, for example, on whether
Stewart was abused by the same student or whether the harassers understood the “severity
and offensiveness of their actions,” Gabrielle M., 315 F.3d at 823, which they might not if they
were students with certain types of disabilities.

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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



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                                     No. 11-51067

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
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

       11
        As we discuss below, ineffectiveness or inadequacy is highly relevant to the gross-
misjudgment inquiry.

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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

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                                         No. 11-51067

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

       12
          See Weixel v. Bd. of Educ., 287 F.3d 138, 148 (2d Cir. 2002) (holding, in a case
presenting extreme allegations of misconduct, that plaintiff stated § 504 claims where she
alleged a school district refused to provide her with “the home instruction necessitated by her
disability” and to “evaluate [her] and to place her appropriately according to her evaluation”);
Smith ex rel. Townsend v. Special Sch. Dist. No. 1, 184 F.3d 764, 769 (8th Cir. 1999) (rejecting
§ 504 claim in part because nothing suggested that the district “had the chance to formulate
[an IEP] and failed to do so” (citation omitted)); see also M.P. ex rel. K. v. Indep. Sch. Dist. No.
721, 326 F.3d 975, 982 (8th Cir. 2003) (M.P. I) (“One could therefore find that the District
acted in bad faith or with gross misjudgment on the basis of its failure to return M.P.’s
mother’s repeated phone calls regarding the safety of her son, the school administrators’
proposals to either drastically alter M.P.’s school day or send him to an alternative school for
behaviorally troubled students, and the District’s assurance that it could cover the costs of
M.P.’s transportation to the Northfield School District, and rescission of that offer once M.P.
had enrolled in Northfield.”); cf. Sellers ex rel. Sellers v. Sch. Bd., 141 F.3d 524, 529 (4th Cir.
1998) (affirming dismissal of a § 504 claim that alleged nothing more than a “failure to timely
assess and diagnose”).

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                                  No. 11-51067

[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 gross-
misjudgment standard applies where “plaintiffs allege a [§] 504 violation in the
education context on the basis of negligence” (citing Monahan, 687 F.2d at

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                                        No. 11-51067

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

        13
            See also Cnty. Sch. Bd. v. A.L., 194 F. App’x 173, 182 n.10 (4th Cir. 2006)
(unpublished) (“[A] failure to provide an appropriate IEP under the IDEA would not, in and
of itself, establish discrimination under the Rehabilitation Act, absent some evidence of ‘bad
faith or gross misjudgment’ on the part of the school authorities.” (citations omitted)); Shirey
ex rel. Kyger v. City of Alexandria Sch. Bd., 229 F.3d 1143, *4-5 (4th Cir. 2000) (table)
(unpublished) (same); Jeremy H. ex rel. Hunter v. Mt. Lebanon Sch. Dist., 95 F.3d 272, 278-79
(3d Cir. 1996) (discussing interplay of IDEA, ADA, and Rehabilitation Act); cf. K.R. ex rel.
Riley v. Sch. Dist. of Phila., 373 F. App’x 204, 207-08 (3d Cir. 2010) (unpublished) (construing,
in jury charge context, a claim that the school district failed to “‘take[] more or different
measures to protect [the student] from the alleged student-on-student harassment’” to
sufficiently explain the concept of “reasonable accommodation”).
        14
          The dissenting opinion contends that gross-misjudgment sets an unacceptably low
bar for § 504 liability, but that is an issue over which this panel has no control given D.A.’s
prior endorsement of Monahan. Our precedents, in any case, explain the difference between
gross negligence—from which gross misjudgment derives—and deliberate indifference.
“Although these terms are sometimes used interchangeably, ‘gross negligence’ and ‘deliberate
indifference’ involve different degrees of certainty, on the part of an actor, that negative
consequences will result from his act or omission. Whereas the former is a ‘heightened degree
of negligence,’ the latter is a ‘lesser form of intent.’” Doe v. Taylor Indep. Sch. Dist., 15 F.3d
443, 453 n.7 (5th Cir. 1994) (en banc) (citation omitted).

                                               15
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                                     No. 11-51067

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


      15
           February and August 2006, and October 2007.

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                                       No. 11-51067

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



       16
          There is much we do not know at this juncture. As counsel observed at oral
argument, it is unclear from the complaint whether the three additional incidents may be
attributed to isolated and unrelated events or to a more widespread practice of disregarding
Stewart’s IEP. The closer the facts are to the latter, the more likely it is that the District
exercised gross misjudgment in managing Stewart’s IEP.
       17
           It therefore makes no difference to this claim whether Stewart explicitly pled that
she was suspended for conduct that could be characterized as a manifestation of her
disabilities, such as hypersexuality or a unique susceptibility to sexual abuse. Thus, the
district’s argument that Stewart does not allege that the sexual abuse was “solely” caused by
her disability misses the mark. Stewart’s gross misjudgment claim can survive at this early
stage if it plausibly alleges that the District’s gross mismanagement of her IEP—not the
sexual abuse it allegedly allowed—was solely related to her disablity.

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                                 No. 11-51067

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 third-
parties 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



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                                       No. 11-51067

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.

        18
          See 20 U.S.C. § 1401(26)(A) (“The term ‘related services’ means transportation, and
such developmental, corrective, and other supportive services (including . . . psychological
services, physical and occupational therapy, recreation, including therapeutic recreation, . . .
counseling services, including rehabilitation counseling, orientation and mobility services, and
medical services, except that such medical services shall be for diagnostic and evaluation
purposes only) as may be required to assist a child with a disability to benefit from special
education . . . .”).

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                                         No. 11-51067

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


        19
          Specifically, the District observed: “Clearly, Plaintiff has not pled for any relief that
is available for any alleged IDEA violation.”
        20
           We previously have cautioned against raising affirmative defenses sua sponte. See
Warnock v. Pecos Cnty., 116 F.3d 776, 778 (5th Cir. 1997) (res judicata context); cf. Carbe v.
Lappin, 492 F.3d 325, 328 (5th Cir. 2007) (recognizing, in PLRA context, that exhaustion is
an affirmative defense that “is waived if not asserted,” unless the complaint facially shows the
plaintiff failed to exhaust (citing Jones v. Bock, 549 U.S. 199 (2007))). Stewart pled that she
is exempt from administrative exhaustion on futility grounds. See Honig v. Doe, 484 U.S. 305,
327 (1988).
        21
         The Supreme Court recently has attempted to “bring some discipline to the use” of
the term “jurisdictional.” Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202
(2011). That precedent suggests that we should be especially cautious in addressing whether
the IDEA-exhaustion requirement is a jurisdictional one; we should do so only after careful
analysis. See Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1244 (2010) (“Our recent cases
evince a marked desire to curtail such ‘drive-by jurisdictional rulings,’ which too easily can
miss the ‘critical difference[s]’ between true jurisdictional conditions and nonjurisdictional
limitations on causes of action.” (alteration in original) (citations omitted)); Union Pac. R.R.
Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 130
S. Ct. 584, 596 (2009) (“Recognizing that the word ‘jurisdiction’ has been used by courts,
including this Court, to convey ‘many, too many, meanings,’ we have cautioned, in recent
decisions, against profligate use of the term.” (quoting Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 90 (1998))).

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                                       No. 11-51067

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


       22
         The Gardner court nonetheless doubted that exhaustion is jurisdictional given the
existence of judicial exceptions like futility an inadequacy, 958 F.2d at 112, a view that is
consistent with recent Supreme Court precedent. See Union Pacific, 130 S. Ct. at 596
(“Subject-matter jurisdiction properly comprehended, we emphasize[], refers to a tribunal’s
‘power to hear a case,’ a matter that ‘can never be forfeited or waived.’” (quoting Arbaugh v.
Y&H Corp., 546 U.S. 500, 514 (2006) (emphasis added)).
       23
          There is no basis for the dissenting opinion’s suggestion that Congress intended the
IDEA to largely supplant the protections otherwise afforded to plaintiffs under § 504. See
Dissenting Op. at 3 (citing Smith v. Robinson, 468 U.S. 992, 1011-12 (1984)). Indeed, Congress
specifically—and swiftly—repudiated Smith’s contrary interpretation. See, e.g., A.W. v. Jersey
City Pub. Schs., 486 F.3d 791, 796 (3d Cir. 2007) (en banc) (“Congress enacted § 1415(l) of the
IDEA[] to countermand Smith and make clear that actions can be maintained under the
Constitution or under federal laws protecting the rights of children with disabilities
notwithstanding the fact that the IDEA also protects these rights.”)(emphasis added).
       24
          Stewart pled futility; as with the exhaustion argument in general, the parties have
not addressed the issue. We discuss the issue here because we cannot exercise “hypothetical
jurisdiction.” See Steel Co., 523 U.S. at 101-02. If IDEA exhaustion is jurisdictional, as the

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                                       No. 11-51067

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


dissenting opinion implicitly suggests, then we must conclusively establish the basis for our
jurisdiction. That necessarily requires us to analyze whether Stewart needed to first
administratively exhaust her § 504 claim before presenting it to the district court.
       25
          As the en banc Ninth Circuit cautioned in Payne, we must be careful at this stage to
avoid using exhaustion as a license to speculate about whether plaintiffs like Stewart intend
to use a damage award on something conceivably available under the IDEA. See 653 F.3d at

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                                       No. 11-51067

       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


877 (“Particularly in contexts where courts are expected to draw inferences in favor of
plaintiffs, we do not think it is appropriate to make what are essentially merits
determinations in the context of evaluating the need for exhaustion. Nothing in the IDEA
protects a school from non-IDEA liability simply because it was making a good-faith attempt
to educate its disabled students. If the school’s conduct constituted a violation of laws other
than the IDEA, a plaintiff is entitled to hold the school responsible under those other laws.”).
It is unnecessary here for us to determine whether the Payne analysis should be fully adopted
by our circuit. We simply cite it to show that exhaustion is not necessary under either of the
tests commonly utilized.

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                                         No. 11-51067

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 non-
educational, 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

       26
          See also McCormick v. Waukegan Sch. Dist. No. 60, 374 F.3d 564, 569 (7th Cir. 2004)
(“The nature of [the plaintiff’s] claim is not educational; no change to his IEP could remedy,
even in part, the damage done to [his] body. By adding [a claim that could provide damages]
to his complaint, [the plaintiff] only seeks to recover for the arguably outrageous actions of
[school personnel].”); Heldman ex rel. T.H. v. Sobol, 962 F.2d 148, 158 n.11 (2d Cir. 1992)
(referencing legislative history explaining that IDEA exhaustion is particularly inappropriate
where a school district fails to abide by a student’s IEP (citations omitted)); cf. Frazier v.
Fairhaven Sch. Comm., 276 F.3d 52, 57-64 (1st Cir. 2002) (concluding that exhaustion applied
to plaintiff’s claim for money damages under 42 U.S.C. § 1983 premised on school district’s
alleged failure to provide a free appropriate public education).
       27
           The dissenting opinion puts undue reliance on cases where a school district allegedly
violated the IDEA for improperly implementing an IEP. See Dissenting Op. at 1 n.1. The
plaintiffs in Bobby R., for example, brought a claim under only the IDEA and alleged that the
school district failed to provide a free appropriate public education by crafting and negligently
implementing inadequate IEPs. See Hous. Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 343-45
(5th Cir. 2000). The Bobby R. plaintiffs sought IEP modifications and reimbursement for
private-placement expenses, relief clearly available under the IDEA. Id.
        Cases like Bobby R. provide scant guidance here. It did not concern exhaustion. Nor
did it involve a § 504 claim, and this circuit had not yet adopted the gross-misjudgment
standard. If it had, however, IDEA exhaustion “is not intended to temporarily shield school
officials from all liability for conduct that violates constitutional and statutory rights that exist
independent of the IDEA and entitles a plaintiff to relief different from what is available under

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                                        No. 11-51067

                                         Conclusion
       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).




the IDEA.” Payne, 653 F.3d at 876. A school district may simultaneously be liable for both
violations of the IDEA and other remedial statutes. See id. at 881 (“The dissent would hold
that if [an IDEA remedy] could correct a student’s injuries, then exhaustion is required even
if the injuries were caused by a non-IDEA violation for which federal law authorizes remedies
apart from the IDEA. . . . The dissent’s approach would effectively refashion § 1415(l) from
a provision designed to facilitate the coexistence of the IDEA with other forms of relief into one
designed to preempt all cases involving the mistreatment of disabled students by a school. We
do not think that the IDEA’s exhaustion requirement was intended to penalize disabled
students for their disability. This is not what § 1415(l) says, and we think it is not what
Congress intended.”).

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                                        No. 11-51067

PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting:
       This is a suit for money damages against a school district for failing to
modify or properly enforce Ms. Stewart’s IEP to protect her from sexual contact
with fellow students. In reversing the district court’s dismissal, the panel
majority permits Ms. Stewart to use § 504 of the Rehabilitation Act to enforce
her IEP though she never exhausted her administrative remedies under the
IDEA. The majority then misapplies § 504 to create tort liability for money
damages against the school district. I respectfully dissent.


                                                I.
       Drawing upon a notion of “bilateral cooperation” from Title VII, the
majority concludes that § 504 imposed on the school district “an ongoing
responsibility to calibrate Stewart’s IEP to effectively address the behaviors
intended to be prevented by keeping her separated from males and under close
supervision.” The majority reverses the dismissal below because Stewart’s
complaint — which devotes itself to chronicling the shortcomings of her IEP —
“plausibly states that the [school] [d]istrict acted with gross misjudgment.” It
reaches this holding “regardless of what role Stewart allegedly played in
facilitating th[e] misconduct,” because “effective implementation [of Stewart’s
IEP] would have obviated any need for discipline.”
       Yet for all the majority’s focus on Stewart’s IEP, it fails to recognize that
the IEP is a creature, not of § 504, but of the IDEA, a quite distinct federal
statute. True enough, the IDEA imposes an obligation on the school district to
provide an appropriate education that entails furnishing those “related services”
necessary to that end — here, amending and enforcing Ms. Stewart’s IEP to keep
her separated from her male classmates.1 The IDEA contains its own detailed

       1
        See 20 U.S.C. §§ 1400(d)(1), 1401(26)(a), 1412, 1414, 1415; see also Houston Indep.
Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000) (holding that a school district violates

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                                        No. 11-51067

remedial scheme — an “interactive process” between parents and school districts
whose absence the majority bemoans.2 This process is enabled by congressional
insistence that a disabled student exhaust her remedies before resorting to the
courts, at least where she “seek[s] relief that is also available under” the IDEA.3
       Here, neither the complaint nor the amended complaint suggests that Ms.
Stewart’s parents or guardians ever contacted the school district about any of
the alleged instances of sexual abuse, much less the district’s responses to them.
Ms. Stewart nevertheless attempts to avoid exhaustion by requesting money
damages. But at the heart of Ms. Stewart’s lawsuit is a dispute over the content
and implementation of her IEP, a matter that clearly falls within the purview
of the IDEA and is capable of resolution through its administrative processes.4
Stewart’s allegations leave little doubt on this point:
•      [Paragraph 15:] In February 2006, even though [Stewart’s] IEP dictated
       that she was to be kept separate from male classmates and was to be closely
       supervised, she was again sexually abused by another student, this time


the IDEA where it “fail[s] to implement substantial or significant provisions of the IEP.”);
Sumter Cnty. Sch. Dist. 17 v. Heffernan ex rel. TH, 642 F.3d 478, 484 (4th Cir. 2011) (holding
that “a material failure to implement an IEP . . . violates the IDEA.”); Van Duyn ex rel. Van
Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 (9th Cir. 2007) (holding that “a material failure
to implement an IEP violates the IDEA.”); Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027
n.3 (8th Cir. 2003) (holding that “fail[ure] to implement an essential element of [an] IEP that
was necessary for the child to receive an educational benefit” violates the IDEA).
       2
         Cf. Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359,
368 (1985) (“In several places, the [IDEA] emphasizes the participation of the parents in
developing the child’s educational program and assessing its effectiveness.”); Klein Indep. Sch.
Dist. v. Hoven, 690 F.3d 390, 395 (5th Cir. 2012) (“The IDEA requires that school districts
allow parents to play a significant role in the development of IEPs for each child with a
disability. . . [and] also requires states to establish procedures to resolve IEP-related disputes
between parents and school districts.”).
       3
           See 20 U.S.C. § 1415(l).
       4
         See, e.g., Rose v. Yeaw, 214 F.3d 206, 210 (1st Cir. 2000) (rejecting a § 504 claim
predicated on the school district’s alleged “general[] fail[ure] to implement [the plaintiff’s]
Plan,” observing that the claim “relate[s] unmistakably to the evaluation and educational
placement of [the plaintiff] . . . and to the provision of a free appropriate education”).

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                                  No. 11-51067

      in the bathroom. Again, Waco ISD officials were aware of the incident but
      her IEP was unmodified and no additional steps were taken to protect
      [Stewart] from further sexual abuse.

•     [Paragraph 16:] In August 2006, with [Stewart’s] IEP still mandating that
      she be kept separate from male classmates and be closely supervised, she
      was permitted to go to the bathroom unattended. . . . Unfortunately and
      unsurprisingly, [Stewart] was sexually abused in the bathroom by [a] male
      classmate. Waco ISD officials were again aware of this incident and again
      did not make any changes to [Stewart’s] IEP or take any steps to ensure
      that she would not be sexually abused in the future.

•     [Paragraph 17:] In October 2007, with [Stewart’s] IEP still mandating that
      she be kept separate from male classmates and be closely supervised, she
      was again sexually abused by a male classmate who exposed himself to
      her. Again . . . school officials suspended [Stewart] from school, depriving
      her of an educational benefit.

•     [Paragraph 21:] There is nothing indicating any efforts by Waco ISD to
      properly train and supervise Waco ISD staff in the effective implementation
      of [Stewart’s] IEP. As a result, staff members repeatedly failed to follow the
      requirements of [Stewart’s] IEP.

•     [Paragraph 22:] Despite the determinations by school officials that
      [Stewart] was complicit in some of these instances of sexual abuse, there
      is nothing indicating that any sort of sexual education was contemplated
      by her ARD Committee and her IEP did not dictate any sort of education
      for [Stewart] in the inappropriateness of sexual contact at school.

•     [Paragraph 26:] [Stewart] asserts that Waco ISD has violated [her] rights
      pursuant to [§504 of the] Rehabilitation Act. Defendant’s practices and/or
      proposed actions, set out in detail above, have, together and separately,
      contributed to violating her rights under [§504].

•     [Paragraph 27:] In addition and in the alternative, the failure of the school
      district to keep [Stewart] safe from a known harm while on campus
      constitutes a gross mismanagement of her educational plan and also a
      violation of the Rehabilitation Act thereby.

•     [Paragraph 28:] Furthermore, the failure to train or supervise Waco ISD
      staff to ensure that [Stewart’s] IEP was properly carried out constitutes a


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                                         No. 11-51067

       gross mismanagement of her education plan and a violation of the
       Rehabilitation Act thereby.
In such circumstances, the mere fact that Ms. Stewart prefers a monetary
remedy does not exempt her from the statute’s exhaustion requirement.5 For the
same reason, Ms. Stewart’s perfunctory allegation that exhaustion would be
“futile” is unpersuasive.6
       That we cannot know with certainty what Stewart’s timely recourse to her
IDEA remedies would have produced is inherent in the requirement of
exhaustion. Perhaps those remedies would have avoided all that has followed,
or perhaps they would have ultimately fallen short. But “parents cannot know
that without asking, any more than we can.”7                    The cardinal function of
exhaustion is to “enable the agency to develop a factual record, to apply its
expertise to the problem, to exercise its discretion, and to correct its own
mistakes.”8 Other than in exceptional circumstances that clearly fall outside of
the purview of the IDEA, we ought not allow litigants to short-circuit this
inherently discretionary process with their own predictions as to what results




       5
          See Charlie F. v. Bd. of Educ. of Skokie Sch. Dist., 98 F.3d 989, 992 (7th Cir. 1996)
(Easterbrook, J.) (rejecting the argument that a suit for money damages is automatically
exempt from the IDEA’s exhaustion requirement, reasoning that “‘relief available’ . . . mean[s]
relief for the events, condition, or consequences of which the person complains, not necessarily
relief of the kind the person prefers.”).
       6
           See Rose, 214 F.3d at 210–11.
       7
           Charlie F., 98 F.3d at 993.
       8
           Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1094 (1st Cir. 1989).

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                                          No. 11-51067

it might have produced.9 Here, the allegations in Stewart’s complaint leave me
convinced “that at least in principle[,] relief is available under the IDEA.”10
       The majority passes over the threshold question of exhaustion because the
school district “failed to raise the issue on appeal or in its motion-to-dismiss
briefing before the district court.” But we are reviewing the judgment of the
district court and can affirm its dismissal on any ground raised below and
supported by the pleadings.11 Here, Stewart pleaded exception to exhaustion.
The district’s answer not only denied those pleadings but asserted Stewart’s
failure to exhaust as an affirmative defense.                     The exhaustion issue was
indisputably presented to the district court. We not only have the authority to
affirm on that basis, but the duty, as the district court’s judgment is plainly
sound, albeit for reasons it did not reach.
       The majority also suggests that exhaustion does not apply because Stewart
seeks damages for past physical harms, not “prospective forms of educational
relief or related services.” To the extent any injury suffered by Stewart as a
result of the school district’s alleged mismanagement of her IEP — physical or
otherwise — cannot now be redressed through the IDEA’s administrative
processes, this result is itself the consequence of Stewart’s failure to timely
exhaust. To hold that a disabled student can avoid exhaustion simply by waiting




       9
         Cf. e.g., Padilla v. Sch. Dist. No. 1, 233 F.3d 1268, 1274 (10th Cir. 2000) (“[T]he
dispositive question generally is whether the plaintiff has alleged injuries that could be
redressed to any degree by the IDEA’s administrative procedures and remedies. . . . Where the
IDEA’s ability to remedy a particular injury is unclear, exhaustion should be required in order
to give educational agencies an initial opportunity to ascertain and alleviate the alleged
problem.”).
       10
            Charlie F., 98 F.3d at 993.
       11
         Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d 145, 148–49 (5th Cir. 2010)
(Haynes, J.) (“[I]t is well established . . . that the court of appeals ‘may affirm a district court’s
Rule 12(b)(6) dismissal on any grounds raised below and supported by the record.’”).

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                                       No. 11-51067

to bring her damages claim until administrative remedies are no longer useful
would gut the exhaustion requirement of all meaning.12
       Congress has elected to channel disputes over the difficulties encountered
in mainstreaming disabled children first to the school house, bringing parent
and teacher to the conference table. The congressional judgment is that the
overwhelming majority of disputes will be resolved in the process. If the effort
fails to achieve the desired result, parents can resort to the courts. At that
juncture, there is less reason to look forward, and more reason to look backward
and allocate responsibility for a failure.


                                             II.
       Exhaustion aside, the majority is obligated to read § 504 in harmony with
the IDEA and abide the statutes’ differences. As the Supreme Court recognized
in Smith v. Robinson, “Congress did not intend a handicapped child to be able
to circumvent [the IDEA’s] requirements or supplement [its] remedies . . . by
resort to the general antidiscrimination provision of § 504.”13 This means that
when an IEP is in place, its shortcomings must find their answer within the
detailed remedial scheme under the IDEA unless those shortcomings are
somehow of a meaningfully distinct character. That distinction inheres in the



       12
         Cf. Polera v. Board of Educ. of the Newburgh Enlarged City Sch. Dist., 288 F.3d 478
(2d Cir. 2002) (“We . . . consider it incongruous that [the plaintiff] waited years before
pursuing any remedy, yet now claims that the remedy available to her at the time — the
[IDEA’s] administrative process — would have been too slow.”).
       13
          Smith v. Robinson, 468 U.S. 992, 1011–12 (1984). Smith is merely one manifestation
of the principle that “a precisely drawn, detailed statute pre-empts more general remedies.”
Brown v. Gen. Servs. Admin., 425 U.S. 820, 834 (1976) (holding that “[t]he balance,
completeness, and structural integrity” of Title VII evidence that Congress intended it to
provide the exclusive remedy for claims of discrimination in federal employment); see also
Preiser v. Rodriguez, 411 U.S. 475, 489–90 (1973) (holding that challenges to the fact or scope
of imprisonment must be brought under the habeas statute, not § 1983, as the former is the
“more specific act.”).

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                                        No. 11-51067

language of § 504 as read by the Supreme Court and this Circuit — it is
triggered by a “refusal” by the school district to grant a disabled student’s
request for a reasonable accommodation.14
       Several courts have gone a step further, substituting “gross misjudgment
or bad faith” for refusal.15 But that was to address the reality that a literal
insistence upon a request for accommodation could frustrate the core purpose of
§ 504 — to prevent discrimination against persons with disabilities.16 It was not
to expand the statute’s reach.                Accepting this judicial effort, if the
congressionally stated liability of § 504 is not to be expanded to reach negligent
conduct, then at the least, the words substituted for “refusal” must do no more
than capture non-literal refusals. “Bad faith” appears to be fit for this surrogate
task, with its draw upon intentionality. “Gross misjudgment” less so. And
potentially devastatingly less so. It appears to be not a surrogate for refusal, but
“a species of heightened negligence.” Yet as the majority correctly suggests, the
level of culpability actionable under § 504 should be “consonant with” the
“deliberate indifference” we require under the virtually identical discrimination
prohibition of Title IX.17 As we observed in Brown v. Sibley, “[t]he overwhelming


       14
         Davis, 442 U.S. at 412–13; D.A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 454 (5th
Cir. 2010) (“Further constraining the viability of claims under the disability
non-discrimination laws is this courts long-established rule that[] a cause of action is stated
under § 504 when it is alleged that a school district has refused to provide reasonable
accommodations.”).
       15
            See, e.g., Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir. 1982).
       16
         See D.A., 629 F.3d at 454 (“[We] used the term ‘refusal’ because the statute requires
intentional discrimination against a student on the basis of his disability. This is consistent
with [Monahan].”).
       17
          See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998) (noting that to
merit an award of damages under Title IX, the school’s response “must amount to deliberate
indifference to discrimination”); see also S.S. v. Eastern Kentucky Univ., 532 F.3d 445 (6th Cir.
2008) (evaluating a § 504 claim predicated on disability-based peer-on-peer harassment under
the “deliberate indifference” standard).

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                                        No. 11-51067

similarity of these . . . passages is no accident. Congress expressly modeled the
discrimination prohibition contained in section 504 after the prohibitory
language contained in . . . Title IX.”18
        Here, the majority observes, Ms. Stewart’s amended complaint alleges
that the school district responded to the first incident of misconduct by
modifying Stewart’s IEP and the second and fourth by investigating the
respective incidents and suspending her.                  Thus, the majority concludes,
“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 deliberate
indifference.” But the majority continues on, drawing an inference of “bad faith
or gross misjudgment” from the school district’s alleged mismanagement of
Stewart’s IEP — now relying on “the three subsequent instances of alleged
sexual abuse.” This, notwithstanding the fact that Stewart’s “cursory” amended
complaint, filed with time for discovery, is bereft of detail,
       fail[ing] 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, 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.
With all respect, the majority has in its application of controlling standards
created tort liability for money damages, allowing Stewart to proceed on
pleadings that, at best, state a plausible claim for oversight or negligence.19 It

       18
        650 F.2d 760, 768 (5th Cir. 1981) (citing S. Rep. No. 93-1297 (1974), reprinted at 1974
U.S.C.C.A.N. 6373, 6390–91).
       19
         Stewart’s bald allegations of “sexual abuse” fail the federal pleading standard. See
Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (“To be clear, we do not reject these bald allegations

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                                      No. 11-51067

signifies that Ms. Stewart in her original complaint characterized the school
district’s failure to abide her IEP as “actionable negligence,” a characterization
carefully omitted from the amended complaint.20


                                           III.
       Today, the majority allows parents unhappy with an IEP to bypass the
comprehensive remedial scheme of the IDEA and sue under § 504 for money
damages. It then misapplies § 504 to impose on schools a tort-like duty not to
mismanage a disabled student’s IEP. This unfortunate consequence defies
precedent. I would hold that Ms. Stewart’s failure to exhaust administrative
remedies under the IDEA bars her from seeking money damages under § 504.
Alternatively, I would hold that bad faith, gross misjudgment, and deliberate
indifference all rest upon substantially identical levels of culpability — levels
that approximate the discriminatory animus § 504 was intended to capture. On
either wing, the district court’s dismissal ought be affirmed.




on the ground that they are unrealistic or nonsensical. . . . It is the conclusory nature of
respondent’s allegations . . . that disentitles them to the presumption of truth.”).
       20
          Ms. Stewart’s amended complaint departs from her state-court complaint in another
noteworthy regard. Whereas the amended complaint suggests that school officials took no
action to protect Stewart from peer-on-peer sexual contact in school bathrooms, the original
complaint represented that Ms. Stewart’s “special education teacher reports that the school
did make some attempt to address this problem by permitting [Ms. Stewart] to go to the
bathroom after a tardy bell, while the restroom and hall were supposedly clear of any other
students.”).

                                            34
