# Doe v. Texas A&M University

> District Court, S.D. Texas · October 6, 2022

URL: https://www.frixlaw.com/law-library/cases/10675927

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** October 6, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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).

-3-
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.
-4-
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.
-5-
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).
-6-
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.
-8-
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.

-9-
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.
-11-
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.
-13-

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
-15-
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.
-l17-

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
-18-
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.
-19-
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.

-20-
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10675927. Public record. Not legal advice.