# Lamar Consolidated Independent School District v. T.

> District Court, S.D. Texas · March 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10676359

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** March 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10676359

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10676359. Public record. Not legal advice.