Lamar Consolidated Independent School District v. T.

March 26, 2023

Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAMAR § CIVIL ACTION NO

CONSOLIDATED § 4:20-cv-02353

INDEPENDENT §

SCHOOL DISTRICT, §

Plaintiff, §

§

§

vs. § JUDGE CHARLES ESKRIDGE

§

§

J.T. b/n/f APRIL S., §

Defendant. §

OPINION AND ORDER GRANTING

MOTION FOR SUMMARY JUDGMENT

The motion by Plaintiff Lamar Consolidated

Independent School District for summary judgment is

granted. Dkt 33.

1. Background

This case concerns alleged discrimination by Lamar

Consolidated Independent School District against an

intellectually disabled student named J.T. April S. is his

mother.

J.T. attends (or perhaps by now, attended) George

Ranch High School. George Ranch is part of Lamar CISD

and is located in Fort Bend County, Texas, roughly ten

miles southwest of Sugar Land. J.T. started at George

Ranch in the Fall of 2018 upon transfer into Lamar CISD.

AR 6; see also Dkt 1 at ¶ 4.1.

J.T. has various learning disabilities, including

Rubenstein-Taybi syndrome. Among other symptoms, this

causes him to experience limited strength, heightened

alertness to stimuli, subaverage general intellectual

functioning, deficits in adaptive behavior, impaired

articulation, and mood changes (including temper

outbursts and anxiety). Due to his various disabilities, J.T.

occasionally becomes very upset and reacts angrily, at

times by yelling or throwing his belongings. AR 6–7; see

also Dkt 1 at ¶ 4.1.

As a disabled student in a school district receiving

federal funding, J.T. was entitled to receive a free,

appropriate education (or FAPE) under the Individuals

with Disabilities in Education Act. See 20 USC

§ 1412(a)(1)(A). The Act requires that each FAPE be

tailored to the needs of the individual student according to

the design of an independent educational plan (known as

an IEP) or behavioral intervention plan (known as a BIP).

See 20 USC §§ 1414(d) & 1415(k).

The appropriate instructive response to the occasional

outbursts by J.T. is addressed in his designated BIP. Much

of this dispute concerns how one former teacher responded

to such outbursts and otherwise treated J.T. That teacher

was Regina Thurston, who was new to George Ranch at the

start of the Fall 2018 semester and resigned at its end.

AR 39 & 3285. Thurston had the following inappropriate

interactions with J.T. during that one semester:

o On November 29th, Thurston forcefully

grabbed J.T. in the midst of an outburst while

he was on the ground and threw his shoes

across the room. Video Ex 28.

o On December 14th, while students waited to get

on the bus, Thurston told J.T. “if you want to

kick me then walk over here and kick me”—and

when he did, Thurston then kicked J.T. in the

shin. Video Ex 25.

o On December 18th, J.T. became upset in

response to a loud video and turned over his

desk, after which Thurston dumped additional

items on the floor and yelled at him to “pick it

up.” Video Ex 29.

o On December 19th, J.T. became physically

aggressive, in response to which Thurston

grabbed him by the arm and shoved him to the

ground. Video Ex 26.

o On December 20th, after J.T. threw his desk to

the ground, Thurston pushed J.T. from a ball

chair onto the floor. Video Ex 30.

AR 17–20. Recordings of each incident were submitted as

exhibits together with the administrative record.

The December 14th and 19th incidents—and how

Lamar CISD responded to them—are the most important

for purposes of the current motion.

As for the December 14th incident, video captures only

a brief encounter between J.T. and Thurston. Close

inspection does show Thurston kicking J.T. in the shin.

Video Ex 25 at 1:03–1:10. An employee reported this

incident the day it occurred, prompting the school to open

an investigation. AR 17, 3221. Assistant Principal Shawna

Jennings claims to have been informed of the incident on

December 18th by an associate principal named Greg

Tielke. Tielke later asked Jennings to review video of the

incident as part of the investigation. Her first attempt to

do so (on December 19th) was unsuccessful, apparently

having been directed to watch the wrong tape. She tried

again successfully on the 20th. But she says that she was

unable to confirm the allegation because she didn’t know

how to slow the video to see what exactly transpired. She

directed Tielke to review the video further, and he

confirmed the allegation. Dkt 33-1 at 2.

As for the December 19th incident, video captures

approximately thirty minutes of J.T. throwing items and

knocking over chairs, with staff—primarily Thurston—

confronting and sometimes attempting to calm him.

Jennings can be seen coming in and out of the room

throughout the incident. She first enters when Thurston is

quite close to J.T. and directing him to pick up chairs he

had knocked to the floor. Around this time, J.T. moves like

he’s going to throw another chair, and Thurston grabs him

and forces him onto his ball chair. Video Ex 26 at 9:40–

10:00. This occurs within Jennings’s line of view, but she

looks away momentarily and claims not to have seen “their

interactions when he was on the ball chair.” Dkt 33-1 at 3.

Jennings is still near the main door when the most

inappropriate behavior by Thurston occurs, not more than

thirty seconds later. The video shows J.T. throwing a chair

into the classroom’s kitchen, which is tucked away in the

back corner of the classroom and partly separated from the

main room by storage cubbies. Thurston follows J.T. to the

kitchen after the chair lands there. The video shows her

swatting a small trash can from his hands, then grabbing

him and forcing him to the ground, bringing herself down,

too. Video Ex 26 at 10:12–10:38. Jennings claims that she

saw none of this from the entry of the classroom, in part

because the cubbies obstructed her view. Dkt 33-1 at 3.

On December 20th, Thurston called April S. to inform

her that she was about to be fired for having kicked J.T. on

the 14th—further explaining that “they’ve been out to get

me,” referring to school officials. AR 3221. That same day,

April S. was asked to watch the video of Thurston kicking

J.T. in the shin. AR 3222. This apparently prompted her to

request to watch other videos, leading to the discovery of

the incidents on November 29th, December 18th, and

December 20th. See AR 20–21, 3227, 3254; Dkt 12 at

¶¶ 30, 53.

Under pressure of the investigation and potential

termination, Thurston resigned at the end of the semester.

Nothing indicates that the November 29th, December 18th,

or December 20th incidents were brought to the attention

of school officials before Thurston resigned.

April S. filed a complaint with the Texas Education

Agency on behalf of J.T., alleging that Lamar CISD had

denied him the FAPE to which he was entitled under the

IDEA. A special education hearing officer of the TEA

conducted a hearing and eventually determined that J.T.

was denied a FAPE for the Fall 2018 semester. AR 1–53.

Lamar CISD then initiated this action with a

complaint filed in July 2020 to appeal this administrative

decision. Dkt 1. J.T. answered and asserted counterclaims

for violations of Title II of the Americans with Disabilities

Act, Section 504 of the Rehabilitation Act, and equal

protection under the Fourteenth Amendment pursuant to

42 USC § 1983. See Dkts 10 & 12 at ¶¶ 164–206. April S.

also brought a counterclaim in her individual capacity for

economic loss and emotional distress. Dkt 12 at ¶¶ 207–

210.

Lamar CISD previously moved for partial summary

judgment to reverse and vacate certain aspects of the

decision by the hearing officer. That motion was granted

upon determination that Lamar CISD had provided J.T. a

FAPE during the Fall 2018 semester. Dkt 32. In particular,

it was determined that the school district had designed and

implemented an appropriate IEP for J.T. And although the

school district had fallen short in some respects in

monitoring Thurston, it had promptly responded to and

remediated any such shortcomings. Id at 7–14.

That ruling left remaining only the counterclaims by

J.T. and April S. Now pending is a further motion by Lamar

CISD for summary judgment on those claims. Dkt 33.

2. Legal standard

Rule 56(a) of the Federal Rules of Civil Procedure

requires a court to enter summary judgment when the

movant establishes that “there is no genuine dispute as to

any material fact and the movant is entitled to judgment

as a matter of law.” A fact is material if it “might affect the

outcome of the suit under the governing law.” Sulzer

Carbomedics Inc v Oregon Cardio-Devices Inc, 257 F3d 449,

456 (5th Cir 2001), quoting Anderson v Liberty Lobby Inc,

477 US 242, 248 (1986). And a dispute is genuine if the

“evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Royal v CCC & R Tres

Arboles LLC, 736 F3d 396, 400 (5th Cir 2013), quoting

Anderson, 477 US at 248.

The summary judgment stage doesn’t involve weighing

the evidence or determining the truth of the matter. The

task is solely to determine whether a genuine issue exists

that would allow a reasonable jury to return a verdict for

the nonmoving party. Smith v Harris County, 956 F3d 311,

316 (5th Cir 2020). Disputed factual issues must be

resolved in favor of the nonmoving party. Little v Liquid

Air Corp, 37 F3d 1069, 1075 (5th Cir 1994). All reasonable

inferences must also be drawn in the light most favorable

to the nonmoving party. Connors v Graves, 538 F3d 373,

376 (5th Cir 2008).

The moving party typically bears the entire burden to

demonstrate the absence of a genuine issue of material

fact. Nola Spice Designs LLC v Haydel Enterprises Inc,

783 F3d 527, 536 (5th Cir 2015); see also Celotex Corp v

Catrett, 477 US 317, 322–23 (1986). But when a motion for

summary judgment by a defendant presents a question on

which the plaintiff bears the burden of proof at trial, the

burden shifts to the plaintiff to proffer summary judgment

proof establishing an issue of material fact warranting

trial. Nola Spice, 783 F3d at 536. To meet this burden of

proof, the evidence must be both “competent and

admissible at trial.” Bellard v Gautreaux, 675 F3d 454, 460

(5th Cir 2012).

3. Analysis

Lamar CISD is entitled to summary judgment on the

Section 1983 claim and the claims brought by April S. in

her individual capacity, which J.T. didn’t attempt to defend

in response. More importantly, summary judgment is also

appropriate on the Title II and Section 504 claims,

primarily because J.T. hasn’t shown that the school district

intentionally discriminated against him.

a. ADA and Rehabilitation Act

Title II of the ADA and Section 504 of the

Rehabilitation Act both prohibit covered public entities

from discriminating on the basis of disability. 42 USC

§ 12132; 29 USC § 794. “The remedies, procedures, and

rights available under the Rehabilitation Act parallel those

available under the ADA.” Cadena v El Paso County,

946 F3d 717, 723 (5th Cir 2020). “Jurisprudence

interpreting either section is applicable to both.” Hainze v

Richards, 207 F3d 795, 799 (5th Cir 2000).

To make out a prima facie case of disability

discrimination under both statutes, a plaintiff must show

that (i) he’s a qualified individual within the meaning of

the ADA; (ii) he’s 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 (iii)

such exclusion, denial of benefits, or discrimination is by

reason of his disability. Cadena, 946 F3d at 723, quoting

Melton v Dallas Area Rapid Transit, 391 F3d 669, 671–72

(5th Cir 2004). But more is required when (as here) a

plaintiff seeks compensatory damages rather than

injunctive relief. A plaintiff must in that case prove that

the defendant intentionally discriminated against him. Id

at 724, citing Delano-Pyle v Victoria County, 302 F3d 567,

574 (5th Cir 2002). While the Fifth Circuit hasn’t

“delineate[d] the precise contours” of this intentional-

discrimination standard, it clearly entails showing

“something more than ‘deliberate indifference.’” Ibid, citing

Miraglia v Board of Supervisors of Louisiana State

Museum, 901 F3d 565, 575 (5th Cir 2018).

A public entity may be held vicariously liable for

discriminatory conduct of employees in this Circuit.

Delano-Pyle, 302 F3d at 574–75. But J.T. notably doesn’t

pursue vicarious-liability claims against Lamar CISD. He

instead seeks to hold Lamar CISD directly liable for its

alleged failures in addressing or preventing Thurston’s

conduct. For example, see Dkt 12 at ¶¶ 2, 172.

J.T. advanced several distinct theories of discrimina-

tion in seeking to hold Lamar CISD directly liable. Each is

considered below.

i. Claim regarding response to abuse

J.T. first seeks to hold Lamar CISD liable on a theory

that it “failed to respond appropriately to known abuse” by

Thurston. Dkt 12 at ¶¶ 172, 188. The parties don’t dispute

in this regard that J.T. has a disability that affords him the

protections of Title II and Section 504—satisfying the first

element of his prima facia case. Their dispute instead

pertains to proper analysis of whether disability

discrimination occurred under the second and third

elements.

Lamar CISD proposes application of the framework

adopted by the Supreme Court in the Title IX decision of

Gebser v Lago Vista Independent School District, 524 US

274, 290 (1998). Dkt 33 at 14. As modified to this context,

Gebser would require J.T. to show that (i) an appropriate

person working for Lamar CISD, (ii) had actual notice of

discrimination by Thurston, and (iii) responded with

something more than deliberate indifference. See 524 US

at 290. Gebser defined appropriate person as “an official

who at a minimum has authority to address the alleged

discrimination and to institute corrective measures on the

[district’s] behalf.” Ibid.

J.T. opposes this framework. In doing so, however, he

does little more than argue that Gebser doesn’t apply

because it’s a Title IX case. Dkt 40 at 14. He offers no

coherent alternative framework for analyzing his claims.

Lamar CISD cites in its reply a recent, unpublished

Fifth Circuit decision that applied the Gebser framework to

Title II and Section 504 claims. Dkt 43 at 3, citing Harrison

v Klein Independent School District, 856 F Appx 480, 483–

84 & n 5 (5th Cir 2021); accord J.S. III ex rel J.S. Jr. v

Houston County Board of Education, 877 F3d 979, 987

(11th Cir 2017). It will thus be applied in this case as well,

if for no other reason than no suitable alternative is

suggested. Whether the Gebser framework should apply in

all Title II and Section 504 cases (including those alleging

vicarious liability) is unnecessary to decision and thus left

unaddressed.

As to the first Gebser prong, the parties agree that

Assistant Principal Jennings is an appropriate person.

Dkts 33 at 14 & 40 at 14.

As to the second Gebser prong, viewed in the light most

favorable to J.T., Jennings had actual notice. By her own

account, she was made aware on December 18th of the

allegation that Thurston had on December 14th kicked J.T.

in the shin. Dkt 33-1 at 2. The video of the December 19th

incident provides further support that Jennings had actual

notice of possible discrimination. Jennings was in the room

for the most concerning parts of Thurston’s interaction

with J.T. And although she doesn’t appear to have seen

what transpired in the kitchen, she does appear to have

seen some of the confrontation on the ball chair shortly

before.

As to the third Gebser prong, the Supreme Court and

the Fifth Circuit “recognize that in ruling on a motion for

summary judgment, a district court can determine, as a

matter of law, that a party was not deliberately

indifferent.” I.F. v Lewisville Independent School District,

915 F3d 360, 370 (5th Cir 2019), citing Davis ex rel

LaShonda D. v Monroe County Board of Education, 526 US

629, 649 (1999). Regardless of the exact contours of the

standard for intentional discrimination, deliberate

indifference is a lesser (though still “extremely high”)

standard to meet. Domino v Texas Department of Criminal

Justice, 239 F3d 752, 756 (5th Cir 2001). Fifth Circuit

precedent makes it clear that “merely unreasonable

conduct” isn’t enough, and that “negligent delays, botched

investigations of complaints due to the ineptitude of

investigators, or responses that most reasonable persons

could have improved upon do not equate to deliberate

indifference.” I.F., 915 F3d at 369 (Title IX case) (citations

omitted).

No one disputes that Thurston’s conduct was

inexcusable. But J.T. hasn’t sponsored evidence providing

any reasonable basis to conclude that Lamar CISD

responded with deliberate indifference to disability

discrimination. The response by Jennings and other school

employees subordinate to her certainly wasn’t deliberately

indifferent. Unrebutted evidence instead shows that

someone reported the December 14th incident shortly after

it occurred. The school promptly opened an investigation,

which was itself ongoing when the December 19th incident

occurred five days later. Jennings played a role in this

investigation after Tielke (an associate principal) informed

her of the abuse on the 18th. By the evening of the 19th,

Jennings had attempted to watch the video of the

December 14th incident but had trouble doing so. By the

20th, Tielke had confirmed the allegation at the request of

Jennings, and April S. was called to the school to review

the video. Dkt 33-1 at 2; AR 20. Thurston meanwhile had

been told that her employment would be terminated on

account of what the investigation uncovered. AR 3221. She

instead decided to resign at the end of that semester. See

AR 3285.

All told, Thurston was a teacher at George Ranch for a

single semester. And not a full week had passed between

the report of the December 14th incident and her being on

the way out the door. Even less time had passed between

Jennings first becoming aware of the incident and

Thurston’s exit. The deliberate-indifference standard isn’t

met on undisputed facts such as these. And because J.T.

can’t satisfy that standard, it follows that he likewise can’t

clear the higher intentional-discrimination standard. See

Dkt 43 at 2.

ii. Failure to accommodate

J.T. separately asserts Title II and Section 504 claims

on a theory that Lamar CISD failed to accommodate his

disability. Dkt 12 at ¶¶ 168, 171, 186. The exact nature of

the accommodation that J.T. says was necessary is unclear

from his pleading. In response to the motion for summary

judgment, he only generally asserts—without specification

of record evidence—that Lamar CISD “failed to make

reasonable accommodations and modifications for J.T.’s

limitations through their failure to provide necessary,

appropriate, competent, appropriately supervised, and

trained support staff.” Dkt 40 at 19.

Fifth Circuit decisions of course recognize that failing

to accommodate a disabled person can itself qualify as

disability discrimination under Title II and Section 504. A

failure-to-accommodate claim requires proof that the

public entity knew of both the disability suffered by the

plaintiff and the limitations experienced as a result of the

disability. To prevail on such a claim, the plaintiff typically

must have expressly requested and been denied an

accommodation. Windham v Harris County, 875 F3d 229,

236–37 (5th Cir 2017). But proof of a request for an

accommodation isn’t necessary when “‘the disability,

resulting limitation, and necessary reasonable

accommodation’ were ‘open, obvious, and apparent’ to the

entity’s relevant agents.” Id at 237, quoting Taylor v

Principal Financial Group Inc, 93 F3d 155, 165 (5th Cir

1996). The defendant’s failure to act when it has notice (in

either respect) that an accommodation is necessary may

amount to intentional discrimination. See Phillips ex rel

J.H. v Prator, 2021 WL 3376524, *3 (5th Cir 2021)

(unpublished).

Lamar CISD was no doubt on notice of the need for an

accommodation for J.T.’s learning disability. But it’s been

previously determined by prior order that Lamar CISD, as

a matter of law, provided J.T. a FAPE during the semester

that Thurston was employed. Dkt 32. Provision of such a

FAPE itself indicates that J.T.’s disability and attendant

limitations were accommodated during the same semester.

Cf D.A. ex rel Latasha A. v Houston Independent School

District, 629 F3d 450, 454 (5th Cir 2010) (noting that

“resolution of an IDEA claim in the school district’s favor

will frequently preclude parents’ resort to redundant

claims under § 504 and ADA”); Estate of Lance v Lewisville

Independent School District, 743 F3d 982, 992–93 (5th Cir

2014) (discussing similar propositions).

Beyond this, J.T. hasn’t shown other “indications that

further accommodations were necessary”—or that the

school district failed to provide them. Smith v Harris

County, 956 F3d 311, 320 (5th Cir 2020). The only allegedly

“obvious” deficiency in support staff for J.T. was Thurston.

And the undisputed evidence shows that her deficiency was

brought to the attention of Lamar CISD on December 18th,

leading to an investigation that prompted her resignation

within approximately one week. This deficiency in

Thurston was thus promptly and directly addressed by the

school district.

J.T. hasn’t submitted evidence to support allegations of

broader staff deficiencies that might amount to failing to

accommodate J.T.’s disability. Indeed, his claims are

largely conclusory in this respect. As such, they are

unavailing.

iii. Other theories

The counterclaims brought by J.T. potentially suggest

other theories under Title II and Section 504. One pertains

to a hostile educational environment. Another references

enforcement of regulations enacted under Title II and

Section 504. Dkt 12 at ¶¶ 173, 175, 190.

Lamar CISD moves against these to the extent stated.

Dkt 33 at 18–20. J.T. in response elliptically notes that he

didn’t intend to bring the former claim. Dkt 40 at 19–20.

And he doesn’t attempt to defend the latter. Such claims

are thus deemed abandoned and will be dismissed. See

Henderson v Wells Fargo Bank NA, 974 F Supp 2d 993,

1017 (ND Tex 2013), citing Black v North Panola School

District, 461 F3d 584, 588 n 1 (5th Cir 2006).

iv. Emotional distress damages

J.T. seeks to recover damages for emotional distress.

See Dkt 12 at 224. Lamar argues that such damages aren’t

available under either Title II or Section 504. Dkt 33 at 20–

21. J.T. concedes their unavailability under Section 504 but

argues their potential under the ADA. Dkt 40 at 21.

Given the above resolution, whether the ADA permits

emotional distress damages needn’t be decided. But see

Montgomery v District of Columbia, 2022 WL 1618741, *23

(DDC) (finding such damages unavailable under the ADA).

Even assuming their availability in some instances, they

aren’t available on the facts here, where no underlying

violation occurred.

v. Conclusion

All theories under which J.T. pleaded his Title IT and

Section 504 claims fail. Summary judgment will thus be

granted on these claims.

b. Remaining claims

J.T. brought a claim under Section 1983 in addition to

his claims under Title I] and Section 504. Dkt 12 at {4 192-

206. April S. also brought vague claims in her individual

capacity for economic loss and emotional distress. Id at

{4 207-10. Lamar CISD identifies serious deficiencies

with these claims in its motion for summary judgment.

Dkt 33 at 21-26. J.T. nowhere defends the claims in

response. They are thus treated as abandoned and will be

dismissed. See Henderson, 974 F Supp 2d at 1017.

4. Conclusion

The motion by Plaintiff Lamar Consolidated

Independent School District for summary judgment is

GRANTED. Dkt 33.

This action will be DISMISSED WITH PREJUDICE.

A final judgment will issue by separate order.

SO ORDERED.

Signed on March 24, 2023, at Houston, Texas.

Che □ Fluke

Hon. Charles Eskridg

United States District Judge

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