Doe v. Texas A&M University

October 06, 2022

IN THE UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

JANE DOE, et al., §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. H-21-3728

§

TEXAS A&M UNIVERSITY, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Plaintiffs, Jane Doe, John Doe, and A.T., bring this action

against defendant, Texas A&M University (“TAMU”), for violation of

civil rights guaranteed by § 504 of the Rehabilitation Act of 1973

(“§ 504 of the RA”), 29 U.S.C. § 794; the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq.; Title IX of

the Education Act of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq.;

and the United States Constitution pursuant to 42 U.S.C. § 1983

(“§ 1983”).1 Plaintiffs seek damages,2 equitable relief,3 and

“other relief that a Jury can give in law or in equity or both.”4

1Plaintiffs’ Second Amended Complaint, Docket Entry No. 28,

p. 2 ¶ 2. All page numbers for docket entries refer to the

pagination inserted at the top of the page by the court’s

electronic filing system, CM/ECF.

2Id. at 22-23 ¶ 82.

3Id. at 23 ¶ 84.

4Id. at 23 ¶ 83.

Pending before the court is Defendant’s Motion to Dismiss

Plaintiffs’ Second Amended Complaint Pursuant to Rules 12(B)(1) and

12(B)(6) (“Defendant’s Motion to Dismiss”) (Docket Entry No. 30).

Also before the court are Plaintiffs’ Response to Defendant’s

Motion to Dismiss Plaintiffs’ Second Amended Complaint Pursuant to

Rules 12(b)(1) and 12(b)(6) (“Plaintiffs’ Response”), Docket Entry

No. 33, and Defendant’s Reply in Support of Its Motion to Dismiss

Plaintiffs’ Second Amended Complaint Pursuant to Rule 12(B)(1) and

12(B)(6) (“Defendant’s Reply”), Docket Entry No. 34. After

carefully considering the pleadings, the law, and the parties’

arguments, Defendant’s Motion to Dismiss will be granted in part

and denied in part.

I. Standard of Review

Defendant TAMU seeks dismissal of Plaintiffs’ Second Amended

Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). Federal Rule of Civil Procedure 12(b)(1) governs

challenges to the court’s subject matter jurisdiction. “A case is

properly dismissed for lack of subject matter jurisdiction when the

court lacks the statutory or constitutional power to adjudicate the

case.” Home Builders Association of Mississippi, Inc. v. City of

Madison, Mississippi, 143 F.3d 1006, 1010 (5th Cir. 1998). Because

TAMU has not submitted evidence outside Plaintiffs’ pleadings in

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support of its Rule 12(b)(1) motion, the motion is a facial attack;

and the court’s review is limited to whether the complaint

sufficiently alleges jurisdiction. Plaintiffs, as the parties

asserting federal jurisdiction, have the burden of showing that the

jurisdictional requirement has been met. Alabama-Coushatta Tribe

of Texas v. United States, 757 F.3d 484, 487 (5th Cir. 2014).

A Rule 12(b)(6) motion tests the formal sufficiency of the

pleadings and is “appropriate when a defendant attacks the

complaint because it fails to state a legally cognizable claim.”

Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert.

denied sub nom Cloud v. United States, 122 S. Ct. 2665 (2002). The

court must accept the factual allegations of the complaint as true,

view them in a light most favorable to the plaintiff, and draw all

reasonable inferences in the plaintiff’s favor. Id. To defeat a

motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must plead

“enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974

(2007). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly,

127 S. Ct. at 1965).

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II. Factual Allegations5

Plaintiffs Jane and John Doe are parents of A.T., a young

adult with Down Syndrome who was born in 2000. Down Syndrome is a

genetic disorder caused by the presence of all or part of a third

copy of chromosome 21. People with Down Syndrome commonly exhibit

distinct physical characteristics, cognitive or intellectual

disability (“ID”), and deficits in social skills. While A.T. has

legal capacity to make her own decisions, A.T.’s ability to do so

is “overtly” diminished, and her need for more supervision than her

peers who do not have Down Syndrome is similarly overt.6

As a person with Down Syndrome, A.T. qualified for Special

Education Services pursuant to the Individual with Disabilities

Education Act for her pre-kindergarten through 12th grade school

years. The Special Education Services that A.T. received were

based on an Individual Education Plan, which included behavioral

supports and “a watchful eye of staff” that allowed her to learn in

a classroom environment with her non-disabled peers. Like many of

her peers, A.T. wanted to attend college.

Defendant TAMU is a large, public, state university that

receives federal funds. As a public university receiving federal

5The factual allegations are derived from Plaintiffs’ Second

Amended Complaint, Docket Entry No. 28, pp. 1-17, and accepted as

true for purposes of analyzing Defendant’s Motion to Dismiss.

6See Plaintiffs’ Second Amended Complaint, Docket Entry

No. 28, p. 8 ¶ 12.

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funds, TAMU must follow the requisites of § 504 of the RA, the ADA,

Title IX, and the United States Constitution. Accordingly, TAMU

has a “Disability Resources” program. In addition to the usual

accommodations a public entity must provide for persons with

disabilities, § 504 of the RA requires TAMU to develop

Accommodation Plans for eligible students with disabilities. TAMU

also has a Title IX Officer tasked with overseeing TAMU’s

compliance with Title IX and investigating allegations of bullying

and harassment based on sex and gender, including sexual assault.

Pursuant to the Higher Education Opportunity Act, 20 U.S.C.

§ 1140 et seq., TAMU offers “young adults with intellectual and

developmental disabilities who have exited high school” the Aggie

ACHIEVE (Academic Courses in Higher Inclusive Education and

Vocational Experiences) Program.7 The Aggie ACHIEVE Program is

designed to provide four years of inclusive college education

intended to equip students for employment in the community. Aggie

ACHIEVE students reside in residence halls at TAMU’s main campus in

College Station, Texas, and have access to all campus-related

activities. Those who graduate receive a Certificate in

Interdisciplinary Studies.

In April of 2019, A.T. and her parents visited the TAMU campus

and attended an Aggie ACHIEVE interview. While A.T. met separately

with staff, her parents met with Dr. Carly Gibson, Founder and

7Id. at 5 ¶ 4.

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Faculty Director of the Aggie ACHIEVE program. During the meeting

A.T.’s parents expressed concerns and raised issues related to the

program generally and A.T. specifically about use of free time,

supervision in and around the dormitories, and campus safety.

In August of 2019, A.T. and her parents met Dr. Olivia Hester,

the Aggie ACHIEVE Program Director. At this meeting, A.T.’s

parents asked how Aggie ACHIEVE students in general, and A.T. in

particular, would be provided accommodations to benefit from the

college experience. They expressed particular concerns that

planned supports and supervision were insufficient for A.T. and

other students in the dormitories. A.T.’s parents were told that

A.T. and others in the Aggie ACHIEVE Program were adults and would

be so treated. In the fall of 2019 A.T. entered the Aggie ACHIEVE

Program without an individualized § 504 Accommodation Plan.

While residing at the White Creek Dormitory, the situation

between A.T. and some of her dormitory mates, particularly C.O.,

deteriorated.8 C.O. was much larger than A.T., less cognitively

impaired, more verbal, and more socially skilled. On at least one

occasion, C.O. yelled at A.T. and shoved her, increasing A.T.’s

anxiety. A.T. became fearful of C.O. A.T. and her mother

expressed those fears to Dr. Hester, who did nothing. A.T. did not

8Id. at 11-12 ¶¶ 22-28, refers to both “C.O.” and “O.C.,” as

if they were the same person. For purposes of consistency, the

court will refer to that individual as “C.O.” See also Defendant’s

Motion to Dismiss, Docket Entry No. 30, p. 8 & n. 2 (same).

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understand that she could file a formal complaint against C.O.

A.T. became anxious, depressed, and struggled to wake up in time

for early classes.

On November 12, 2019, after receiving a report that A.T. was

threatening another student, Dr. Hester initiated Disciplinary

Proceedings for Dormitory infractions against A.T. Plaintiffs

allege that the report was false. Nevertheless, A.T. was suspended

from school for violating TAMU’s Code of Conduct. TAMU

Administration sent A.T. information about the disciplinary

process, the claims against her, and papers she was required to

sign but did not understand. TAMU neither appointed anyone to

assist A.T. in understanding the disciplinary process, nor allowed

her parents to assist her in any meeting. A.T. was forced to leave

the White Creek Dormitory. Although the disciplinary process did

not uphold her suspension, A.T. was not permitted to return to the

dormitory. Instead, A.T. was sent to the Gardens Apartments, which

were not within walking distance of a cafeteria where she could use

her meal plan ticket. A.T. had no food in her apartment and no way

to get food. A.T. spent much of her time alone in her room,

forgotten by Aggie ACHIEVE Program Administrators. After multiple

complaints by A.T.’s parents, TAMU agreed to modify the Dorm

Infraction and General Disciplinary Policy to better address the

needs of all Aggie ACHIEVE Program students.

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Plaintiffs met with the Dean of the College of Education,

Dr. Joyce Alexander to express concerns about safety and lack of

supervision of Aggie ACHIEVE students in general and A.T. in

particular. They specifically requested that a § 504 Accommodation

Plan be developed for A.T. to help transition her back into the

educational environment both academically and socially. Because

they were particularly concerned about A.T.’s safety and her

ability to be easily exploited, they asked that a resident mentor,

graduate student, ACHIEVEmate, or another person be required to

supervise A.T. more than her non-disabled peers. Plaintiffs

suggested that the mentor for A.T. be required to receive special

training about how to deal with a person with Down Syndrome.

Neither Dr. Alexander nor anyone else responded to their request

for a § 504 Accommodation Plan.

In February of 2020 A.T.’s father communicated directly with

Dr. Hester on a number of occasions about ongoing concerns he had

for A.T.’s safety. He asked that a plan be put in place to provide

A.T. greater supervision, but no such plan was implemented. In

early March of 2020 the COVID-19 pandemic forced A.T. to return

home to live with her family and to take classes remotely.

Plaintiffs planned for A.T. to return to the TAMU campus in the

fall of 2021 and hoped that by then the supervision of students

would be enhanced, and training for Resident Monitors and other

staff would be improved. But nothing changed.

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A.T. returned to the White Creek Dormitory for the 2021 fall

semester. The dormitory consisted of separate apartments, each of

which had four single bedrooms, a common living room, a kitchen,

laundry facilities, and two full bathrooms. Each apartment housed

three Aggie ACHIEVE students and one mentor. The mentor was a

full-time student who was not required to supervise the Aggie

ACHIEVE students. Instead, the mentor was there to help the Aggie

ACHIEVE students adjust to independent living by assisting with

cooking, keeping the apartment tidy, and emotional support.

On September 14, 2021, a freshman male student, N.M. with an

intellectual disability but not Down Syndrome, followed A.T. into

her private bedroom. N.M. did not ask A.T.’s permission to have

sex with her and A.T. did not consent to have sex with N.M.

Instead, taking advantage of A.T.’s Down Syndrome, her passive

nature, and lack of supervision, N.M. sexually assaulted A.T. N.M.

bragged about having sexually assaulted A.T. to his male friends,

J.E. and M.M.

J.E. was a large person weighing about 250 pounds who, like

N.M., was a freshman male student with an intellectual disability,

but not Down Syndrome. The night after N.M. sexually assaulted

A.T., J.E. and M.M. manipulated A.T. into visiting their apartment

after curfew. A.T. fell asleep but awoke when J.E. started to

sexually assault her. She asked J.E. to stop many times but he did

not stop. A.T. reported the sexual assault the next day.

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III. Analysis

TAMU seeks dismissal of all the causes of action asserted in

Plaintiffs’ Second Amended Complaint. TAMU argues that the claims

for violation of the United States Constitution that Plaintiffs

have asserted under 42 U.S.C. § 1983 should be dismissed because

they are barred by sovereign immunity; that the claims Plaintiffs

have asserted under Title IX should be dismissed because Plaintiffs

fail to allege that TAMU was deliberately indifferent to any

severe, pervasive, and objectively offensive conduct aimed at A.T.

because of her sex, and that the claims Plaintiffs have asserted

under § 504 of the RA and Title II of the ADA should be dismissed

because they fail to allege facts capable of establishing that A.T.

suffered any discrimination by reason of her disability.

A. Claims for Constitutional Violations and Equitable Relief

Plaintiffs assert claims pursuant to 42 U.S.C. § 1983 for

violation of rights guaranteed by the Fourteenth Amendment to

United States Constitution. Plaintiffs allege that TAMU had a

practice and custom of conscious and deliberate indifference to

federal law, rules, and directives, and to TAMU’s own policies and

procedures regarding § 504 of the RA, the ADA, and Title IX.

Plaintiffs allege that TAMU violated these rights by failing to

train staff regarding federal laws, regulations, and directives,

and their own policies and procedures regarding § 504 of the RA,

the ADA, and Title IX, and by failing to supervise staff regarding

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the unique and individualized needs of Aggie ACHIEVE students,

including A.T. and the young men who sexually assaulted her.9

Plaintiffs seek equitable relief requiring TAMU to “retain an

Independent Third [] party to complete a Quality Assurance review

[o]f the Aggie ACHIEVE Program in general and [whether] issues of

human sexuality are taught to a person with a disability

commensurate with the unique and individualized needs of that

person.”10

TAMU argues that Plaintiffs’ § 1983 claims and request for

equitable relief are subject to dismissal for lack of subject

matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)

because those claims are barred by sovereign immunity pursuant to

the Eleventh Amendment.11 “As to the 12(b)(1) Motion relative to

constitutional and equitable claims the TAMU argues the Court does

not have jurisdiction over such a claim. A.T. agrees and abandons

those claims.”12 Defendant’s Motion to Dismiss Plaintiff’s claims

for violation of the United States Constitution pursuant to 42

U.S.C. § 1983, and for equitable relief will therefore be denied as

moot.

9Plaintiffs’ Second Amended Complaint, Docket Entry No. 28,

pp. 17-18 ¶¶ 56-57.

10Id. at 23 ¶ 84.

11Defendant’s Motion to Dismiss, Docket Entry No. 30, pp. 12-

14.

12Plaintiffs’ Response, Docket Entry No. 33, p. 7 ¶ 2.

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B. Title IX

Defendant seeks dismissal of Plaintiffs’ Title IX claims under

Federal Rule of Civil Procedure 12(b)(6) by arguing that

[t]hey allege that A.T. was a victim of discrimination

based on her sex and gender because TAMU (1) failed to

provide adequate supervision to male Aggie ACHIEVE

students; (2) failed to provide A.T. with appropriately

tailored human sexuality education and social skills

training; and (3) created an unsafe and hostile

educational environment that made A.T. more vulnerable to

sexual assault. . . These allegations do not rise to a

violation of Title IX.13

Plaintiffs respond that their allegations satisfy the elements of

a heightened risk claim under Title IX because

A.T. can meet the elements that she was sexually harassed

and sexually assaulted, that it was severe and pervasive,

that staff with the ability to take corrective actions so

as to attempt to prevent the sexual harassment and

assaults failed to do so, and A.T. experienced a

deprivation of equal access to public educational

services . . .14

1. Applicable Law

Subject to exceptions not applicable here, Title IX prohibits

discrimination on the basis of sex in all federally-funded

educational programs by providing that

[n]o person in the United States shall, on the basis of

sex, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial

assistance.

13Defendant’s Motion to Dismiss, Docket Entry No. 30, p. 22.

14Plaintiffs’ Response, Docket Entry No. 33, pp. 8 ¶ 4.

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20 U.S.C. § 1681(a). “A school that receives federal funding may

be held liable for student-on-student sexual harassment.” I.L. v.

Houston Independent School District, 776 F. App’x 839, 842 (5th

Cir. 2019) (citing Davis v. Monroe County Board of Education, 119

S. Ct. 1661, 1669-70 (1999), and Sanches v. Carrollton-Farmers

Branch Independent School District, 647 F.3d 156, 165 (5th Cir.

2011)). To prove a typical Title IX claim based on student-on-

student harassment, a plaintiff must show that the defendant

(1) had actual knowledge of the harassment, (2) the

harasser was under the [defendant’s] control, (3) the

harassment was based on the victim’s sex, (4) the

harassment was so severe, pervasive, and objectively

offensive that it effectively barred the victim’s access

to an educational opportunity or benefit, and (5) the

[defendant] was deliberately indifferent to the

harassment.

I.L., 7/76 F. App’x at 842 (quoting Doe v. Columbia-Brazoria

Independent School District, 856 F.3d 681, 689 (5th Cir. 2017)

(quoting Sanches, 647 F.3d at 165)). “Deliberate indifference

under Title IX means that the school’s response or lack of response

was ‘clearly unreasonable in light of the known circumstances.’”

I.L., 776 F. App’x at 842 (quoting Sanches, 647 F.3d at 167-68).

But Plaintiffs are not asserting a typical Title IX claim.

Instead, citing Hernandez v. Baylor University, 274 F.Supp.3d 602

(W.D. Tex. 2017), Plaintiffs argue that their claim is a pre-

assault claim, i.e., that TAMU created a heightened risk that A.T.

would be assaulted.’

“Td. at 27 @ 49.

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While the Fifth Circuit has not recognized as cognizable a

Title IX claim for creation of a general heightened risk of

discrimination, it has not foreclosed the possibility that such a

claim may be cognizable in the context of student-on-student sexual

assault. See Poloceno v. Dallas Independent School District, 826

F. App’x 359, 363 (5th Cir. 2020)(per curiam). In Polocena the

court acknowledged that both the Ninth and Tenth Circuits have

recognized Title IX heightened risk claims in the context of

student-on-student sexual harassment or assault. Id. & n. 5

(citing Simpson v. University of Colorado at Boulder, 500 F.3d 1170

(10th Cir. 2007); Karasek v. Regents of University of California,

956 F.3d 1093 (9th Cir. 2020)).

In Simpson a group of female plaintiffs alleged that the

University of Colorado at Boulder’s (“UCB”) recruiting efforts

included showing football recruits a “good time” by pairing them

with female “Ambassadors,” and promising at least some recruits an

opportunity to have sex. 500 F.3d at 1173. Following a prior

assault, but before the plaintiffs were assaulted, a local district

attorney met with UCB officials to warn them of the risk that

sexual assault would occur if recruiting was not adequately

supervised. The district attorney told the officials that UCB

needed to implement sexual-assault-prevention training for football

players, and needed to develop policies for supervising recruits.

Id. But following the meeting, UCB officials did not heed the

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warning and “did little to change [UCB’s] policies or training.”

Id. Instead, “[t]he coaching staff . . . [although] informed of

sexual harassment and assault by players, . . . responded in ways

that were more likely to encourage than eliminate such misconduct.”

Id. at 1173-74. Describing the conduct by UCB officials as

“sanction[ing], support[ing], even fund[ing], a program (showing

recruits a ‘good time’) that, without proper control, would

encourage young men to engage in opprobrious acts[,]” id. at 1177,

the Tenth Circuit concluded that

a funding recipient can be said to have “intentionally

acted in clear violation of Title IX,” Davis, [119 S. Ct.

at 1671], when the violation is caused by official

policy, which may be a policy of deliberate indifference

to providing adequate training or guidance that is

obviously necessary for implementation of a specific

program or policy of the recipient.

Id. at 1178.

In Karasek three plaintiffs asserted an official policy claim

based on allegations that the defendant university intentionally

avoided Title IX reporting requirements by funneling sexual

harassment reports through an informal investigation process. The

Ninth Circuit, considering the elements of such an official policy

claim, and citing Davis, 119 S. Ct. at 1674-75, held that:

[A] pre-assault claim should survive a motion to dismiss

if the plaintiff plausibly alleges that (1) a school

maintained a policy of deliberate indifference to reports

of sexual misconduct, (2) which created a heightened risk

of sexual harassment that was known or obvious, (3) in a

context subject to the school’s control, and (4) as a

result, the plaintiff suffered harassment that was “so

severe, pervasive, and objectively offensive that it can

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be said to [have] deprive[d] the [plaintiff] of access to

the educational opportunities or benefits provided by the

school.”

956 F.3d at 1112.

Karasek requires the heightened risk to be known or obvious,

but does not require the school to have actual knowledge of a

particularized risk. Other courts, however, have required schools

to have actual knowledge of a particularized risk. See e.g., Does

I-VIII v. University of Tennessee, 186 F.Supp.3d 788, 792, 794,

804-08 (M.D. Tenn. 2016) (female plaintiffs were sexually assaulted

by male student athletes, the university had actual knowledge of

previous sexual assaults, but covered them up so the athletes could

continue to compete); Roskin-Frazee v. Columbia University, No. 17

Civ. 2032 (GBD), 2018 WL 6523721, at *5 (S.D.N.Y. November 26,

2018) (“Pre-assault cases have found that universities may be held

responsible for pre-assault, deliberate indifference when they have

‘actual knowledge of sexual assault(s) committed in a particular

context or program or by a particular perpetrator or

perpetrators.’”) (citations omitted). Cases within the Fifth

Circuit that have recognized Title IX pre-assault claims are based

on allegations that the defendants failed to address sexually

hostile environments after receiving reports of sexual assault.

See Does 1–10 v. Baylor University, 240 F.Supp.3d 646, 662 (W.D.

Tex. 2017); and Does 12-15, et al. v. Baylor University, 336

F.Supp.3d 763, 782-83 (W.D. Tex. 2018).

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2. Application of the Law to the Plaintiffs’ Allegations

Relying on Hernandez, 274 F.Supp.3d 602, Plaintiffs argue that

TAMU in the present case stands in the same shoes as did

the Baylor University. Issues of sexual discrimination

and the need for a specialized office to deal with sexual

harassment and assaults, creates an inference, if nothing

else, that [t]he TAMU was on notice to the general

problem. Moreover, TAMU developed the Aggie Achieve

[Program] and when inviting in a student like A.T. who

was cognitively impaired, it is readily foreseeable she

would be more easily victimized by her male peers as

compared to the typical Co-Ed at TAMU creating this

heightened risk as to her. In adding to the mix a number

of male students who are equally cognitively impaired

also with pre-adolescent type social skills it was quite

frankly “an accident waiting to happen.” In short, the

Aggie Achieve program both created and permitted an

environment to grow that created a heightened risk of

sexual assault to A.T. The TAMU Defendant can’t have it

both ways. If A.T. does not have a claim of failure to

keep safe from sexual assault under the ADA or Rehab Act

because the harassment morphed from assault to sexual

assault, then she surely has a plausible discrimination

based upon sex claim pursuant to Title Ix.'

TAMU replies that Plaintiffs’ reliance on Hernandez is misplaced

because Plaintiffs have not alleged facts showing that TAMU had

knowledge of objectively offensive conduct before the alleged

sexual assaults of A.T. and that TAMU could therefore not have been

deliberately indifferent to that conduct.*’ The court agrees.

In Hernandez the plaintiff was sexually assaulted by a member

of the Baylor football team. 274 F.Supp.3d at 610. The Title IX

claims that the plaintiff brought against Baylor included

pre-assault claims based on allegations that

“Td. at 29 51.

Defendant’s Reply, Docket Entry No. 34, p. 6.

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Baylor failed to address and actively concealed sexual

violence committed by its football players for several

years []; that university staff were repeatedly and

directly informed of sexual assaults committed by

football players and neither reported the misconduct nor

conducted appropriate investigations []; and that those

actions gave rise to an “overall perception that football

was above the rules and that there was no culture of

accountability for misconduct.”

Id. at 614 (internal citations omitted). The plaintiff also

alleged that Baylor knew of at least six previous assaults

committed by her assailant against female students, and that Baylor

was aware that he had been cited for misdemeanor sexual assault,

but failed to take any protective action. Id. Baylor moved to

dismiss, but the court held that the plaintiff had pled sufficient

facts to raise a plausible inference that Baylor had been

deliberately indifferent to sexual harassment of which it had

actual knowledge that was so severe, pervasive, and objectively

offensive that it could be said to deprive the plaintiff of access

to educational opportunities or benefits provided by the school.

Id. at 615.

The facts alleged in Plaintiffs’ Second Amended Complaint are

not analogous to the facts alleged in Hernandez or any of the other

decisions that have recognized Title IX claims for creation of a

heightened risk that the plaintiff would be sexually assaulted.

Plaintiffs do not allege that TAMU staff received reports of sexual

misconduct committed by Aggie ACHIEVE students, that TAMU failed to

address or actively concealed reports of sexual misconduct

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committed by Aggie ACHIEVE students, or that TAMU received reports

of sexual misconduct committed by A.T.’s assailants. Nor have

Plaintiffs plausibly alleged the existence of a TAMU official

policy or custom that created a heightened risk that women in the

Aggie ACHIEVE Program would be sexually assaulted. Instead,

Plaintiffs argue that

[i]ssues of sexual discrimination and the need for a

specialized office to deal with sexual harassment and

assaults, creates an inference, if nothing else that

[t]he TAMU was on notice to the general problem.

Moreover, . . . when inviting in a student like A.T. who

was cognitively impaired, it is readily foreseeable she

would be more easily victimized by her male peers as

compared to the typical Co-Ed at TAMU creating this

heightened risk as to her.18

But Plaintiff’s allegation that “TAMU has a designated Title IX

Officer to provide oversight to the University’s compliance with

Title IX mandates[, and a]mong other things . . . investigates

allegations [of] bullying and harassment based upon sex and gender,

including and especially sexual assault,”19 is not sufficient to

create a plausible inference that TAMU was deliberately indifferent

to a heightened risk of sexual harassment in the Aggie ACHIEVE

Program — of which it had actual knowledge — that was so severe,

pervasive, and objectively offensive that it could be said to

deprive A.T. of access to the educational opportunities or benefits

provided by TAMU.

18Plaintiffs’ Response, Docket Entry No. 33, p. 29 ¶ 51.

19Plaintiffs’ Second Amended Complaint, Docket Entry No. 28,

p. 8 ¶ 13.

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Missing from Plaintiffs’ Second Amended Complaint are facts

capable of showing that TAMU ignored reports of sexual assault or

harassment within the Aggie ACHIEVE program, or that before A.T.’s

alleged assaults Aggie ACHIEVE students reported sexual assaults,

or that TAMU maintained a policy or custom of mishandling such

reports. Moreover, Plaintiffs’ argument that “TAMU developed the

Aggie Achieve [Program] and when inviting in a student like A.T.

who was cognitively impaired, it is readily foreseeable she would

be more easily victimized by her male peers as compared to the

typical co-Ed at TAMU,” indicates that the heightened risk of which

they complain is based on A.T.’s cognitive impairment and not her

sex or gender. Nevertheless, assuming without deciding that the

Fifth Circuit would recognize Title IX pre-assault claims for

creation of a heightened risk as cognizable, the court concludes

that Plaintiffs have failed to state such a claim against TAMU

because they have failed to allege facts sufficient to allow a

plausible inference that TAMU was deliberately indifferent to

actual knowledge either that male Aggie ACHIEVE students in general

or A.T.’s alleged assailants in particular, needed additional

supervision to prevent sexual harassment of female Aggie ACHIEVE

students. Accordingly, Defendant’s motion to dismiss Plaintiffs’

Title IX claim will be granted.

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C. Section 504 of the Rehabilitation Act and the ADA

Defendant seeks dismissal of Plaintiffs’ § 504 and ADA claims

under Federal Rule of Civil Procedure 12(b)(6) by arguing that they

have failed to state a claim under the ADA or the RA for

two reasons. First, with respect to Plaintiffs’ failure-

to-accommodate claim, Plaintiffs did not request any

accommodation for A.T. in direct or specific terms. Nor

was any such accommodation open, obvious, and apparent to

TAMU. Second, Plaintiffs fail to allege any facts

demonstrating that A.T. was discriminated against by

reason of her disability.20

Plaintiffs respond that they have asserted three plausible claims

for disability discrimination: claims for failure to accommodate

and failure to keep safe in violation of Title II of the ADA and

§ 504 of the RA; and a disparate impact claim in violation of § 504

of the Rehabilitation Act.21

1. Applicable Law

Under § 504 of the RA

[n]o otherwise qualified individual with a disability in

the United States . . . shall, solely by reason of her or

his disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial

assistance.

29 U.S.C. § 794(a). The RA was enacted “‘to ensure that

handicapped individuals are not denied jobs or other benefits

20Defendant’s Motion to Dismiss, Docket Entry No. 30, p. 15.

21Plaintiffs’ Response, Docket Entry No. 33, p. 19 ¶ 33. See

also id. at 7-8 ¶¶ 2-3, and 20-26 ¶¶ 36-46.

-21-

because of prejudiced attitudes or ignorance of others.’” Delano-

Pyle v. Victoria County, Texas, 302 F.3d 567, 574 (5th Cir. 2002),

cert. denied, 124 S. Ct. 47 (2003) (quoting Brennan v. Stewart, 834

F.2d 1248, 1259 (5th Cir. 1988) (quoting School Board of Nassau

County v. Arline, 107 S. Ct. 1123, 1129 (1987))). “The ADA is a

federal anti-discrimination statute designed ‘[t]o provide a clear

and comprehensive national mandate for the elimination of

discrimination against individuals with disabilities.’” Id. at 574

(quoting Rizzo v. Children’s World Learning Centers, Inc., 173 F.3d

254, 261 (5th Cir. 1999)). Similar to § 504 of the RA, Title II of

the ADA states that “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation

in or be denied the benefits of the services, programs, or

activities of a public entity, or be subjected to discrimination by

any such entity.” 42 U.S.C. § 12132. “The close relationship

between [§$] 504 of the [RA] and Title II of the ADA means that

precedents interpreting either law generally apply to both.” Smith

v. Harris County, Texas, 956 F.3d 311, 317 (5th Cir. 2020) (citing

Delano-Pyle, 302 F.3d at 574). See also Kemp v. Holder, 610 F.3d

231, 234 (5th Cir. 2010) (per curiam)) (“The RA and the ADA are

judged under the same legal standards, and the same remedies are

available under both Acts.”); Bennett-Nelson v. Louisiana Board of

Regents, 431 F.3d 448, 454 (5th Cir. 2005), cert. denied, 126

S. Ct. 1888 (2006) (“The only material difference between the two

-22-

provisions lies in their respective causation requirements.”);

Harrison v. Klein Independent School District, 856 F. App’x 480,

482 n. 2 (5th Cir. 2021) (per curiam) (“The causation standard

under [§] 504 is ‘solely by reasons’ of disability, ‘whereas the

ADA applies even if discrimination is not the “sole reason” for the

challenged action.’”) (citations omitted).

Both § 504 of the RA and Title II of the ADA allow private

plaintiffs to enforce the statutory prohibitions on discrimination.

See Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir.

2011)(en banc), cert. denied, 132 S. Ct. 1561 (2012) (“It is

established that Title II and § 504 of the [RA] are enforceable

through an implied private right of action.”). To avoid dismissal

Plaintiffs must allege facts sufficient to prove that

(1) [A.T.] is a qualified individual within the meaning

of the ADA; (2) that [she] is being excluded from

participation in, or being denied benefits of, services,

programs, or activities for which the public entity is

responsible, or is otherwise being discriminated against

by the public entity; and (3) that such exclusion, denial

of benefits, or discrimination is by reason of [her]

disability.

Smith, 956 F.3d at 317 (quoting Melton v. Dallas Area Rapid

Transit, 391 F.3d 669, 671-72 (5th Cir. 2004), cert. denied, 125

S. Ct. 2273 (2005)). Plaintiffs can recover money damages only if

they also allege and prove that TAMU intentionally discriminated in

violation the ADA or the RA. See Delano-Pyle, 302 F.3d at 575

(“[I]n order to receive compensatory damages for violations of the

Acts, a plaintiff must show intentional discrimination.”).

-23-

2. Application of the Law to the Plaintiffs’ Allegations

(a) TAMU Is Not Entitled to Dismissal of Plaintiffs’

Failure-to-Accommodate Claim

“In addition to prohibiting discrimination, the ADA and the

[RA] . . . ‘impose upon public entities an affirmative obligation

to make reasonable accommodations for disabled individuals.’”

Smith, 956 F.3d at 317 (quoting Bennett-Nelson, 431 F.3d at 454).

To avoid dismissal on their failure-to-accommodate claim,

Plaintiffs must allege facts sufficient to prove that “(1) [A.T.]

is a qualified individual with a disability; (2) the disability and

its consequential limitations were known by the covered entity; and

(3) the entity failed to make reasonable accommodations.” Smith,

956 F.3d at 317 (quoting Ball v. LeBlanc, 792 F.3d 584, 596 n. 9

(Sth Cir. 2015)). “Plaintiffs ordinarily satisfy the knowledge

element by showing that they identified their disabilities as well

as the resulting limitations to a public entity or its employees

and requested an accommodation in direct and specific terms.” Id.

(citing Windham v. Harris County, 875 F.3d 229, 237 (5th Cir.

2017)). “When a plaintiff fails to request an accommodation in

this manner, he can prevail only by showing that ‘the disability,

resulting limitation, and necessary reasonable accommodation’ were

‘open, obvious, and apparent’ to the entity’s relevant agents.”

Id. at 317-18 (quoting Windham, 875 F.3d at 237 (quoting Taylor v.

Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert.

denied, 117 S. Ct. 586 (1996))).

-24-

Relying primarily on Windham, 875 F.3d at 229, TAMU argues

that Plaintiffs’ failure-to-accommodate claim should be dismissed

for failure to state a claim because Plaintiffs “have pled no facts

demonstrating: (1) that they requested any accommodation in direct

and specific terms; or (2) the existence of an accommodation that

was open, obvious, and apparent.”22 In Windham, the Fifth Circuit

analyzed whether giving a driver with a known neck condition a

particular type of field sobriety test was excessive force.

Asserting that “but for [the driver’s] neck condition . . .

administration of the . . . test would have been a perfectly

reasonable exercise of police authority,” 875 F.3d at 242-43, the

court concluded that “no reasonable jury could find that the

officers should have been on notice that [the driver’s] neck

condition was such that he would suffer injury if [the officer]

administered the test.” Id. at 243. The “open, obvious, and

apparent” standard is a “narrow exception” to “the generally

applicable rule that ‘[i]f the [plaintiff] fails to request an

accommodation, the [public entity] cannot be held liable for

failing to provide one.’” Id. at 239 (quoting Taylor, 93 F.3d at

165).

22Defendant’s Motion to Dismiss, Docket Entry No. 30, p. 18.

See also Defendant’s Reply, Docket Entry o. 34, p. 2 (“Plaintiffs

did not request any accommodation in ‘direct and specific

terms.’”).

-25-

Plaintiffs argue that their failure-to-accommodate claim is

plausible because TAMU knew that A.T. had a cognitive disability,

and that “by and through her acceptance into the Aggie Achieve

Program even more specifically knew of her limitations and

accommodations needed to address such limitations. Her

disabilities and need for related accommodations was open and

obvious.”23 Acknowledging that “[t]here is a fair question about

what accommodations were needed,”24 Plaintiffs argue that A.T.’s

parents answered that question. A.T.’s parents

repeatedly asked for the most reasonable accommodations

for their daughter, supervision commensurate with unique

and individualized needs of their daughter. The requests

became even more explicit when A.T. returned to campus

after the COVID 19 Virus hit. Even with both, the

obvious and the specific, TAMU did not provide the

accommodations she needed.25

TAMU does not dispute that A.T. is a qualified individual with

a disability and therefore satisfies the first element of a failure

to accommodate claim. And apart from granting A.T. admission to

the Aggie ACHIEVE Program, TAMU does not argue that it offered A.T.

any reasonable accommodations for her disabilities as required to

satisfy the third element of a failure to accommodate claim.

TAMU’s argument that Plaintiffs have failed to state an ADA or RA

claim is directed to the second element of a failure-to-accommodate

23Plaintiffs’ Response, Docket Entry No. 33, p. 22 ¶ 38.

24Id.

25Id.

-26-

claim, i.e., that A.T.’s disability and its consequential

limitations were known by the covered entity. But, as Plaintiffs

argue, they have alleged facts capable of satisfying this element

of their failure-to-accommodate claims in at least two ways.

First, Plaintiffs have alleged that A.T.’s disability and its

consequential limitations were known to TAMU by virtue of A.T.’s

admission to the Aggie ACHIEVE Program, a program expressly

designed for young adults with intellectual and development

disabilities,26 and by virtue of the fact that A.T. was born with

Down Syndrome, a genetic disorder usually associated with mild to

moderate ID, and with characteristic physical traits that include

short stature, poor muscle tone, and facial features such as

slanted eyes and a flattened forehead and nasal bridge.27 Second,

Plaintiffs allege that “[w]hile she is now twenty-one (21) years

old [A.T.] appears to be closer to fourteen (14) or fifteen (15)

years old,”28 and that A.T.’s

face and eyes are noticeably different. Her manner of

communication is noticeably slower and simpler more akin

to an emerging adolescent than a typical nineteen year

old co-ed. While many students with disability evidence

what is called pass and cover, meaning they attempt to

pass as normal and cover up their disability[,] a person

with Down Syndrom[e] may make this same attempt but is

26Plaintiffs’ Second Amended Complaint, Docket Entry No. 28,

pp. 5 ¶ 4, and 9-11 ¶¶ 15-19.

27Id. at 3-4 ¶ 1 & nn. 3-4.

28Id. at 3 ¶ 1.

-27-

obviously not able to do so. It is overt that A.T.

requires more supervision than her non-disabled peers and

while she may have the formal legal capacity to make her

own decisions, it is equally overt that capacity is

diminished.29

Plaintiffs have therefore alleged facts capable of establishing

that A.T.’s disability and limitations were not only known to TAMU

but also that they were open, obvious, and apparent. Moreover,

despite TAMU’s arguments to the contrary, Plaintiffs have alleged

facts that are capable of establishing that TAMU received direct

and specific requests that A.T. receive reasonable accommodations

for her disabilities on at least three occasions.

Plaintiffs allege that A.T.’s parents made an initial request

for accommodations

[o]n or about August 12th 2019, [when] A.T. and her

parents met the recently hired Aggie Achieve Program

Director, Dr. Olivia Hester for the first time. At this

meeting A.T.’s parents . . . very specifically asked her

how Aggie ACHIEVE students in general and how their

daughter in particular would be provided accommodations

to benefit from the college experience. They verbalized

their particular concerns that planned supports and

supervision was insufficient for A.T. and other students

in the dorm but the response was A.T. and others were

adults and would be treated as such.30

Plaintiffs allege that a second request for accommodations was

made in the late fall of 2019 following disciplinary proceedings

against A.T. for an alleged dormitory infraction. They allege that

29Id. at 8 ¶ 12.

30Id. at 10 ¶ 18.

-28-

Plaintiffs met with the Dean of the College of Education,

Dr. Joyce Alexander, to express concerns about and among

other things, lack of supervision of Aggie ACHIEVE

students and safety concerns both in general and specific

to A.T.

They very specifically requested that a [§] 504

Accommodation Plan be developed for A.T. to help

transition her back into the educational environment both

academically and socially. They were particularly

concerned about A.T.’s safety and being easily exploited

by others. Accordingly they asked that a “resident

mentor, graduate student, or ACHIEVEmate or another

person be required to supervise A.T. more than her non-

disabled peers. They suggested that the “mentor” for

A.T. be required to go through some special training on

how to deal with a person with Down Syndrome.

Neither Dr. Alexander nor anyone responded to this

very specific request for an Accommodation Plan.31

Plaintiffs allege that a third request for accommodations was

made in February of 2020 when “A.T.’s father communicated directly

with Dr. Hester about ongoing concerns he had about the safety of

his daughter. He asked that a plan be put in place to provide A.T.

greater supervision but it was not.”32

Plaintiffs have adequately alleged that they requested

reasonable accommodations for A.T. on at least three different

occasions. TAMU’s argument that the requests were not direct or

specific misapprehends the law. In Windham, the case on which TAMU

primarily relies, the Fifth Circuit recognized that requesting and

providing reasonable accommodations must be an interactive process.

31Id. at 14 ¶¶ 35-37.

32Id. ¶ 38.

-29-

The court explained that “because the ADA does not require

clairvoyance, the burden falls on the plaintiff to specifically

identify the disability and resulting limitations, and to request

an accommodation in direct and specific terms.” 875 F.3d at 236-

37. The court noted that “a plaintiff need not request, or even

know, the particular reasonable accommodation [s]he ultimately

requires. That judgment ‘is best determined through a flexible,

interactive process’ involving both the plaintiff and the public

entity.” Id. at 237 n. 11 (quoting Taylor, 93 F.3d at 165).

In Pickett v. Texas Tech University Health Sciences Center, 37

F.4th 1013 (5th Cir. 2022), the Fifth Circuit recently stated that

the need for an interactive process to determine a reasonable

accommodation applies to public institutions of higher education.

The Fifth Circuit analyzed whether a public graduate school of

nursing violated the ADA by dismissing a disabled student for

failing to satisfy academic requirements that the student alleged

she would have been able to satisfy if she had received reasonable

accommodations. The court explained that

in the employment context, we have noted that requesting

and providing reasonable accommodations must be an

“interactive process” that includes “the input of the

employee as well as the employer.” Loulseged v. Akzo

Nobel Inc., 178 F.3d 731, 735 (5th Cir. 1999). That’s

for good reason. The objective of the reasonable-

accommodation requirement is to find a solution that

works for both parties. The same is true in education.

37 F.4th at 1033.

-30-

Pursuant to both Windham and Pickett, and by analogy to the

employment context, the court concludes that Plaintiffs’

allegations that direct and specific requests for A.T. to receive

accommodations for her disabilities in the form of greater

supervision were made in August of 2019 and February of 2020 to

Dr. Hester, Aggie ACHIEVE Program Director, and in late fall of

2019 to Dr. Alexander, Dean of the College of Education, and that

TAMU neither responded to those requests nor initiated an

interactive process to identify reasonable accommodations, are

sufficient to allow a plausible inference that TAMU knew of A.T.’s

disability, its consequential limitations, and need for

accommodation. See Loulseged, 178 F.3d at 736 (citing Taylor, 935

F.3d at 165 (duty to launch interactive process is triggered by

request for an accommodation)). Accordingly, TAMU’s motion to

dismiss Plaintiffs’ failure-to-accommodate claims will be denied.

(b) TAMU Is Entitled to Dismissal of Plaintiffs’

Failure to Keep Safe Claim

Plaintiffs’ Second Amended Complaint alleges that

A.T. was also a victim of discrimination based upon

disability because the TAMU Defendant failed to provide

her, and the Aggie ACHIEVE male students who sexually

assaulted her, appropriately modified human sexuality

education and social skills training, which taken

together created an unsafe and hostile educational

environment for A.T.33

33Id. at 19 ¶ 63.

-31-

In support of this claim Plaintiffs point to three instances in

which A.T. was harassed by fellow Aggie ACHIEVE students. The

first instance occurred in the fall of 2019 when A.T. was allegedly

bullied, yelled at, and shoved by one of her dorm mates.34 The

second instance occurred on September 14, 2021, when A.T. was

sexually assaulted by freshman Aggie ACHIEVE student, N.M,35 and the

third instance occurred on September 15, 2021, when A.T. was

sexually assault by freshman Aggie ACHIEVE student, J.E.36

The Fifth Circuit has not determined whether hostile

educational environment claims are cognizable under the RA or the

ADA. See Harrison, 856 F. App’x at 487 n. 6 (“Because we find the

deliberate indifference element unmet here, we need not determine

whether our precedent supports a hostile educational environment

claim under the ADA or [RA].”). Nevertheless, in Estate of Lance

v. Lewisville Independent School District, 743 F.3d 982 (5th Cir.

2014), the Fifth Circuit stated that to plead a claim for a hostile

educational environment a plaintiff must allege that

(1) [she] was an individual with a disability, (2) [she]

was harassed based on [her] disability, (3) the

harassment was sufficiently severe or pervasive that it

altered the condition of [her] education and created an

abusive educational environment, (4) [Defendant] knew

about the harassment, and (5) [Defendant] was

deliberately indifferent to the harassment.

34Id. at 11-12 ¶¶ 22-28.

35Id. at 16 ¶¶ 47-48.

36Id. aat 16-17 ¶¶ 49-51.

-32-

Id. at 996 (quoting S.S. v. Eastern Kentucky University, 532 F.3d

445, 454 (6th Cir. 2008), and citing Davis, 119 S. Ct. at 1675

(“We thus conclude that funding recipients are properly held liable

in damages only where they are deliberately indifferent to sexual

harassment, of which they have actual knowledge, that is so severe,

pervasive, and objectively offensive that it can be said to deprive

the victims of access to the educational opportunities or benefits

provided by the school.”)).

Citing Woodberry v. Dallas Area Rapid Transit, No. 3:14-cv-

03980-L, 2017 WL 840976, at *6-7 (N.D. Tex. March 3, 2017), and

Woods v. G.B. Cooley Hospital Service District, No. 07-0926, 2007

WL 4812054, at *1-2 (W.D. La. Dec. 10, 2007), xreport and

recommendation adopted by 2008 WL 11509443 (W.D. La. January 28,

2008), TAMU argues that the claim must be dismissed because the

failure Lo prevent sexual assault does not constitute

discrimination under the ADA or the RA.” Citing Strange v.

Mansfield Independent School District, No. 4:18-cv-00101-0, 2018 WL

3950219, at *3 (N.D. Tex. August 17, 2018), TAMU also argues that

Plaintiffs do not allege that A.T. was singled out or

treated differently from other students in the Aggie

ACHIEVE Program because she was disabled. As another

federal district court in this state previously held,

alleged sexual assault cannot support a discrimination

claim where there is no evidence that the state

*"Defendant’s Motion to Dismiss, Docket Entry No. 30, pp. 18-

19.

~33-

“subjected [a plaintiff] to discrimination because [she

was] disabled.”*®

Asserting that TAMU “has characterized failure to keep safe

claim as solely related to the sexual assault A.T. experienced upon

her return to the University [in the fall of 2021],”°*? Plaintiffs

argue that TAMU does not address their allegations of bullying and

harassment that A.T. experienced in the fall of 2019, and that the

court should therefore consider TAMU to have waived any argument

that their hostile environment claim based on those allegations is

subject to dismissal.*® Citing Taylor v. Richmond State Supported

Living Center, No. 4:11-3740, 2012 WL 6020372 (S.D. Tex. November

30, 2012), Plaintiffs argue that

the facts and the reasonable inferences of the facts

support the proposition that [A.T.] was bullied and

harassed because she is cognitively impaired, has

deficient social skills and is easily exploited. The

fact that the exploitation was by other persons who were

equally disabled is of no matter.”

In Taylor the court denied a motion to dismiss § 504 claims based

on alleged physical abuse of a minor because the complaint

sufficiently alleged that the mistreatment was “because of or due

to his profound and unusual disabilities.” Id. at *5.

°8Td. at 19-20. See also Defendant’s Reply, Docket Entry

No. 34, pp. 3-4 (arguing that Plaintiffs’ “failure to keep safe”

claim is not cognizable under the ADA or RA).

**Plaintiff’s Response, Docket Entry No. 33, p. 23 9 40.

“Td. 7 39.

“Td. at 24 7 42. See also id. at 7-8 7 3.

-34-

TAMU replies that even if Plaintiffs have alleged that A.T.

was harassed based on her disability, the hostile educational

environment claim must be dismissed because Plaintiffs have not

alleged that the harassment A.T. suffered in the fall of 2019 was

sufficiently severe or pervasive that it altered the condition of

her education.42

(1) Plaintiffs Fail to Allege Facts Capable of

Establishing that the Harassment A.T. Suffered

in the Fall of 2019 was Severe or Pervasive

“To plead a hostile-environment claim, a complaint must allege

facts that could plausibly show continuous, nonepisodic abuse.”

Bryant v. Dayton Independent School District, No. H-21-1547, 2021

WL 3555947, *8 (S.D. Tex. August 11, 2021). “The alleged

harassment must have been so pervasive or severe that it ‘altered

[A.T.]’s conditions of [education] and create[d] an abusive

[educational] environment.’” Id. (quoting Buckhanan v. Shinseki,

No. 3:13-cv-278TSL-JMR, 2013 WL 5517903, at * 7 (S.D. Miss. October

3, 2013) (quoting Hiner v. McHugh, 546 F. App’x 401, 408 (5th Cir.

2013)(per curiam)). In determining whether the alleged harassment

was sufficiently severe or pervasive to state a claim for hostile

educational environment, courts consider the following factors:

(1) the frequency of the discriminatory conduct; (2) the severity

of the conduct; (3) whether the conduct was physically threatening

42Defendant’s Reply, Docket Entry No. 34, p. 4.

-35-

or humiliating, or merely an offensive utterance; (4) whether the

conduct interferes with educational performance; and (5) whether

the complained-of conduct undermines the plaintiff’s educational

competence. The alleged harassment must be so severe and pervasive

that it destroys the student’s opportunity to succeed in the

school, and it must be more than rude or offensive comments,

teasing, or isolated incidents. Bryant, 2021 WL 3555947, at *8

(citing inter alia Hiner, 546 F. App’x at 408).

Plaintiffs’ Second Amended Complaint does not allege facts

from which it can plausibly be inferred that any harassment A.T.

endured in the fall of 2019 was severe or pervasive. Plaintiffs

allege that

[t]he situation between A.T. and some of her dorm mates,

C.O. in particular was deteriorating.

For instance, there was another student named C.O.

who was much, much bigger than A.T., less cognitively

impaired, more verbal and more socially skilled. A.T.

became fearful of C.O.

A.T. and later her mother expressed those fears to

the Program Director Hester but she did not address the

issue. A.T. did not understand that she could file a

formal complaint against [C.O.]

A.T. started to become anxious and also depressed.

She started to struggle to awaken on time for early

classes. She told Program Director, Dr. Olivia Hester

she was suicidal.

Hester also failed to address A.T.’s emotional

deterioration, help her access psychological services or

a counselor, contact DISABILITY RESOURCES, help

facilitate the initiation of a long-overdue [§] 504

Accommodation Plan or anything for that matter.

-36-

Nor did Hester or anyone else for that matter

investigate concerns A.T. was a victim of bullying and

harassment.

Things between A.T. and [C.O.] worsened. On at

least one occasion [C.O.] yelled at A.T. and then shoved

her. Not surprisingly the harassment between [C.O.] upon

A.T. exacerbated A.T.’s anxiety.

Even after this physical bullying incident became

known to Hester and other ACHIEVE Staff, again no one

investigated the concerns A.T. was a victim of bullying

and harassment.43

Plaintiffs allege that A.T. became fearful of C.O., but do not

allege facts showing why A.T. became fearful of C.O. Plaintiffs

allege that A.T. started to become anxious and depressed but do not

allege facts linking A.T.’s anxiety and depression to the situation

with C.O. Plaintiffs allege that on one occasion C.O. yelled at

A.T. and then shoved her, and that that incident exacerbated A.T.’s

anxiety, but Plaintiffs do not allege that incident interfered with

A.T.’s educational performance or undermined her educational

competence. Because Plaintiffs’ have not alleged facts showing

that the harassment A.T. experienced in the fall of 2019 was

sufficiently severe or pervasive to interfere with her educational

performance or to undermine her educational competence, Plaintiffs

have failed to state a plausible hostile educational environment

claim based on the harassment A.T. experienced in the fall of 2019.

43Plaintiffs’ Second Amended Complaint, Docket Entry No. 28,

pp. 11-12 ¶¶ 22-29.

-37-

(2) Plaintiffs Fail to Allege Facts Capable of

Establishing that TAMU Was Deliberately

Indifferent to the Harassment A.T. Suffered in

the Fall of 2021

The sexual assaults that Plaintiffs allege A.T. experienced in

the fall of 2021 were sufficiently severe to interfere with her

educational performance and undermine her educational competence.

Nevertheless, the court concludes that Plaintiffs’ hostile

educational environment claim based on those sexual assaults either

by themselves or together with the harassment that A.T. allegedly

experienced in the fall of 2019, is subject to dismissal because

Plaintiffs have failed to allege facts capable of raising a

plausible inference that TAMU was deliberately indifferent to the

alleged harassment. Estate of Lance requires Plaintiffs to plead

facts giving rise to a plausible inference that TAMU was

deliberately indifferent to known acts of harassment from A.T.’s

peers. 743 F.3d at 996. Plaintiffs argue that their “failure to

keep safe claim is construed under a deliberate indifference

standard as contemplated by Davis, [119 S. Ct. at 1661], a Title IX

case.”44 In Estate of Lance, the Fifth Circuit stated that the

Davis decision instructs that

courts should refrain from second-guessing the

disciplinary decisions made by school administrators . .

. School administrators will continue to enjoy the

flexibility they require so long as funding recipients

are deemed ‘deliberately indifferent’ to acts of

student-on-student harassment only where the recipient’s

44Plaintiffs’ Response, Docket Entry No. 33, p. 21 ¶ 36.

-38-

response to the harassment or lack thereof is clearly

unreasonable in light of the known circumstances.

743 F.3d at 997 (quoting Davis, 119 S. Ct. at 1674). Neither

negligence nor mere unreasonableness will suffice. Id. “To act

with deliberate indifference, a state actor must know of and

disregard an excessive risk to the victim’s health or safety.”

Yarbrough v. Santa Fe Independent School District, No. 21-40519,

2022 WL 885093, at *2 (5th Cir. March 25, 2022) (quoting McClendon

v. City of Columbia, 305 F.3d 314, 326 n. 8 (5th Cir. 2002)(en

banc) (per curiam), cert. denied, 123 S. Ct. 1355 (2003)). Neither

Plaintiffs’ Second Amended Complaint nor their response includes

factual content that demonstrates or allows the court to draw a

plausible inference that TAMU knew of and disregard an excessive

risk to A.T.’s health or safety.

The allegations that A.T. became fearful of C.O., that on at

least one occasion C.O. yelled at A.T. and shoved her, and that

this incident increased A.T.’s anxiety are not sufficiently

threatening to create an inference that C.O. posed a risk of

excessive harm to A.T. Nor do these allegations contain any facts

allowing a plausible inference either that the harassment was based

on A.T.’s disability or her sex or gender. Moreover, because the

sexual assaults that A.T. experienced occurred approximately two

years later, in the fall of 2021, and did not involve C.O. but,

instead, freshman students, Plaintiffs have failed to allege facts

capable of showing that the bullying and harassment that Plaintiffs

-39-

allege occurred in the fall of 2019 was either severe or pervasive

or in any way related to the sexual assaults A.T. experienced in

the fall of 2021. Although the sexual assaults that A.T.

experienced were undoubtedly severe, Plaintiffs have failed to

allege facts capable of establishing that TAMU knew an excessive

risk of sexual assault existed and disregarded that risk. Nor have

Plaintiffs alleged facts capable of establishing that once TAMU

knew about the sexual assaults, TAMU responded with deliberate

indifference. Indeed, Plaintiffs Second Amended Complaint does not

allege any facts about TAMU’s response to the sexual assaults. And

for the reasons stated in § III.B, above, the court has already

concluded that Plaintiffs have failed to allege facts allowing a

plausible inference either that TAMU knew that male Aggie ACHIEVE

students, including A.T.’s alleged assailants, needed additional

supervision to prevent sexual harassment and assault of female

Aggie ACHIEVE students, including A.T, or that TAMU was

deliberately indifferent to any such knowledge.

(c) TAMU Is Entitled to Dismissal of Plaintiffs’ Disparate

Impact Claim

Plaintiffs’ Second Amended Complaint alleges that “in addition

and in the alternative to the above, [A.T.] was also a victim of

disparate impact under Section 504, by the acts and omissions of

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the Defendant.”45 Defendant’s Motion to Dismiss asserts that

“Plaintiffs’ claims should be dismissed in their entirety.”46 As

Plaintiffs recognize, Defendant did not separately address the

disparate impact claim asserted solely under § 504 of the R.A.47

Asserting that the disparate impact claim is plausible, Plaintiffs

argue that they have pled that A.T.

was a victim of disparate impact a separate

discrimination based upon disability claim. Disparate

impact discrimination[] addresses practices or policies

that are facially neutral in their treatment of a

protected group[] (like A.T.) but, in fact, have a

disproportionately adverse effect on such a protected

group. In disparate impact cases, proof or finding of

discriminatory motive is not required. . . The TAMU

Defendant has failed to address this claim and as such,

it is waived. See Audler v. CBC Innovis Inc., 519 F.3d

239, 255 (5th Cir. 2008), quoting Castro v. McCord, 259

F. App’x 664, 665 (5th Cir. 2007) [“A party waives an

issue if he fails to adequately brief it.”].48

Defendant replies that Plaintiffs’ disparate impact claim fails for

multiple reasons.49

Plaintiffs’ disparate impact claim is subject to dismissal

because it is nothing more than a conclusory, “unadorned, the

defendant-unlawfully-harmed-me accusation” that fails to state a

45Plaintiffs’ Second Amended Complaint, Docket Entry No. 28,

p. 20 ¶ 69.

46Defendant’s Motion to Dismiss, Docket Entry No. 30, p. 11.

47Plaintiffs’ Response, Docket Entry No. 33, p. 20 ¶ 35.

48Id. at 26 ¶ 46.

49Defendant’s Reply, Docket Entry No. 34, p. 5.

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claim. Iqbal, 129 S. Ct. at 1949 (citing Twombly, 127 S. Ct. at

1965). While a complaint need not contain detailed factual

allegations to survive dismissal under Rule 12(b)(6), it must

contain more than labels, conclusions, and formulaic recitation of

the elements of a cause of action. Twombly, 127 S. Ct. at 1965.

Plaintiffs assert that “[A.T.] was also a victim of disparate

impact,” without pointing to any facially neutral policies or

practices that have a disparate impact on her. These allegations

are not sufficient to state a disparate impact claim. Accordingly,

Defendant’s Motion to Dismiss Plaintiffs’ disparate impact claim

will be granted. See Smith v. City of Jackson, 125 S. Ct. 1536,

1545 (2005) (“it is not enough simply to allege that there is a

disparate impact . . . or point to a generalized policy that leads

to such an impact. Rather, [plaintiffs are] responsible for

isolating and identifying the specific . . . practices that are

allegedly responsible for any observed . . . disparities”).

IV. Conclusions and Order

For the reasons stated in § III.A, above, Defendant’s Motion

to Dismiss Plaintiffs’ constitutional claims and claims for

equitable relief is DENIED as MOOT.

For the reasons stated in § III.B, above, Defendant’s Motion

to Dismiss Plaintiffs’ Title IX claims is GRANTED, and those claims

are DISMISSED with PREJUDICE.

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For the reasons stated in § III.C.2(a), above, Defendant’s

Motion to Dismiss Plaintiffs’ failure-to-accommodate claim asserted

under § 504 of the Rehabilitation Act and Title II of the

Americans’ with Disabilities Act is DENIED.

For the reasons stated in § III.C.2(b), above, Defendant’s

Motion to Dismiss Plaintiffs’ failure to keep safe claims based on

creation of a hostile educational environment in violation of § 504

of the Rehabilitation Act and Title II of the Americans with

Disabilities Act is GRANTED, and those claims are DISMISSED with

PREJUDICE.

For the reasons stated in § III.C.2(c), above, Defendant’s

Motion to Dismiss Plaintiffs’ disparate impact claim asserted under

§ 504 of the Rehabilitation Act is GRANTED, and this claim is

DISMISSED with PREJUDICE.

Accordingly, Defendant’s Motion to Dismiss, Docket Entry

No. 30, is GRANTED in PART and DENIED IN PART.

SIGNED at Houston, Texas, on this the 6th day of October,

2022. ?

SIM LAKE

SENIOR UNITED STATES DISTRICT JUDGE

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