     Case: 11-51067       Document: 00512259884         Page: 1     Date Filed: 06/03/2013




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

                                                                            FILED
                                                                            June 3, 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
                             USDC No. 6:10-CV-311




       ON PETITION FOR REHEARING AND REHEARING EN BANC
Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
     Case: 11-51067        Document: 00512259884          Page: 2     Date Filed: 06/03/2013



                                        No. 11-51067

       The Petition for Rehearing is GRANTED.1 Our prior opinion is vacated
and withdrawn, and this opinion is substituted in its place. Plaintiff-Appellant
Andricka Stewart appeals from the district court’s dismissal of her civil-rights
action against Defendant-Appellee Waco Independent School District. She seeks
review only of her claim under § 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794. Stewart’s § 504 claim presents difficult questions that, in our view,
should not be reached unless necessary. The district court did not address
whether Stewart’s claim was barred by any alleged failure to exhaust or as
untimely, defenses that may be dispositive of the entire matter.2 Because the
district court ought consider, in the first instance, the merits of each defense, we
VACATE the judgment of the district court dismissing Stewart’s § 504 claim,
AFFIRM in all other respects, and REMAND for further proceedings consistent
with this opinion.




       1
         No member of this panel nor judge in regular active service on the court having
requested that the court be polled on Rehearing En Banc (FED. R. APP. P. and 5th CIR. R. 35)
the Petition for Rehearing En Banc is DENIED.
       2
          Should the district court ultimately consider the merits, we note that such
consideration should be pursued in light of our prior precedents, see, e.g., D.A. ex rel. Latasha
A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir. 2010), albeit the reading of which
produced a division in the now-vacated opinion which we do not here resolve.

                                               2
