Fwd: 5th Circuit decision - Not helpful to students with disabilities who are bullied

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Sent from my iPadOmayra Matamoros, MHSA, JDBegin forwarded message:Date: January 21, 2013 10:00:43 AM ASTTo: texas autism-advocacy <texas-autism-advocacy >Subject: 5th Circuit decision - Not helpful to students with disabilities who are bulliedReply-To: Texas-Autism-Advocacy

Federal Appellate Court Upholds Dismissal Of Student-On-Student Harassment SuitThe Fifth Circuit Court of Appeals last month dismissed a student-on-student harassment case, finding no constitutional violations on the part of the school district or its officials. Colomo was a high

school student with mental and physical impairments in the San Angelo Independent School District. In October of 2008, ph Fuller, another student with a disability, allegedly assaulted on campus. The parent reported the incident to a teacher, who instructed to take steps to protect herself. The teacher also instructed Fuller to leave alone and refrain from walking with her in between classes. The mother believed the district would do more to keep the two separated.Two years later, in November of 2010, Fuller allegedly assaulted . Similar incidents happened at least twice during a two-week period. reported Fuller’s assault to her mother, who in turn informed district officials. The district first suspended Fuller temporarily and changed the

students’ schedules so that they would not be in any of the same classes. Fuller was instructed to use the back door of the building, while was to use the front door. The district also assigned an aide to escort between classes and later assigned Fuller an escort instead. Shortly thereafter, Fuller withdrew from the district.On ’s behalf, the mother filed suit alleging, in part, violations of Title IX of the Education Amendments of 1972, the Americans with Disabilities Act (ADA), and § 504 of the Rehabilitation Act of 1973. The district sought pretrial judgment in its favor, arguing that the undisputed facts in the case did not support the claims. The trial court granted judgment in favor of the district prior to trial and appealed to the Fifth Circuit Court of

Appeals.The Fifth Circuit affirmed the trial court judgment in favor of the district defendants. The trial court had determined that the suit failed to allege a violation of ’s constitutional rights. On appeal, the plaintiff claimed that she was protected under the “special relationship†and “state-created danger†theories of liability. Generally, a “special relationship†imposes a constitutional duty to protect a citizen from harm only when the state takes a person into its custody and holds him against his will, such as when a person is incarcerated, institutionalized, or placed in foster care.Under the “state-created danger†theory, the government has a duty to protect a

person from private harm when it creates a known risk of harm to the person. The appeals court recently made it clear in Doe v. Covington County School District, that substantive due process does not impose a duty on state actors to protect citizens from harm inflicted by private actors. According to the appeals court, it was bound to follow its decision in Doe v. Covington County School District. Finding no error, the appeals court upheld the trial court judgment in favor of the district defendants.DB