ESTATE OF Montana LANCE; Jason Lance; Deborah Lance, Plaintiffs-Appellants v. LEWISVILLE INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee
No. 12-41139
United States Court of Appeals, Fifth Circuit
Feb. 28, 2014
We therefore conclude that the district court erred in granting summary judgment to Parsons on MetroplexCore‘s promissory estoppel claim.
CONCLUSION
For the foregoing reasons, we AFFIRM the order granting summary judgment as to MetroplexCore‘s claims of breach of a joint venture agreement, fraudulent misrepresentation, and quantum meruit claims, but we REVERSE the order as to MetroplexCore‘s promissory estoppel claim and REMAND for further proceedings.
Thomas Phillip Brandt, Laura Dahl O‘Leary, Joshua Alan Skinner, Fanning Harper Martinson Brandt & Kutchin, P.C., Dallas, TX, for Defendant-Appellee.
Sasha M. Samberg-Champion, Esq., U.S. Department of Justice, Washington, DC, Lisa A. Brown, Esq., Amber K. King, Thompson & Horton, L.L.P., Houston, TX, Francisco Maria Negron, Jr., General Counsel, National School Boards Association, Alexandria, VA, for Amicus Curiae.
Before REAVLEY, DAVIS, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
When he was in the fourth grade, Montana Lance locked himself inside of the school nurse‘s bathroom and took his own life. Montana was a special-needs student, and Montana‘s parents sued the Lewisville Independent School District (the “School District“) alleging, among other claims, that the School District violated Montana‘s constitutional rights under
FACTS AND PROCEEDINGS
The School District holds an Admission, Review, and Dismissal committee (“ARD“) meeting to decide whether a student qualifies for special education services under the Individuals with Disabilities Education Act (“IDEA“),
Montana‘s peers picked on him at school. One documented altercation took place on November 4, 2009 when “[a] student verbally provoked (or tried to) Mon
In response to the December incident, the School District placed Montana in the Disciplinary Alternative Education Program (“DAEP“) for ten days. Montana‘s mother wrote the principal a letter arguing that the ten-day transfer was too harsh: “Montana was being bullied by other students and felt fearful. The other students actually picked Montana off of his feet.” Mrs. Lance also wrote the Superintendent, explaining that Montana liked DAEP because “he has not experienced the hazing and bullying from the other students in contrast to the experiences he has at his home campus [at Stewart‘s Creek].” Accordingly, Mrs. Lance wrote, “I am concerned that this is more of a reward to my child than a punishment.” The School District reduced Montana‘s time in DAEP to eight days.
On January 4, 2010, Montana began his time at DAEP and met with a school psychologist, Dr. Kelly Lawrence, for individual counseling. On January 12, 2010, Montana told his DAEP teacher that “he wanted to kill himself.” Counselor Mike Riek met with Montana and notified Mr. Lance that Montana had made suicidal statements. Riek concluded that the “lethality” of Montana‘s statements was low. The Lances arranged for Montana to meet with psychologist Katie Besly. On January 18, 2010, Besly met with Montana. Besly testified that Montana “did not give any indication that he was intending to end his life.” On January 19, 2010, Montana returned to Stewart‘s Creek. On January 21, 2010, Montana and classmates had another altercation. According to a classmate, Montana was in the breakfast line and “he was called a name.” Montana “told the bullies to stop it, and he was shoved into the rods.” Montana “stormed off and sat by himself at an empty table.” Later in the day a substitute teacher sent Montana and his classmate to the office for “talking” and “using profanity.” Montana then met with the assistant principal, Amy Teddy.
As required of all students who are sent to the office, Montana was allowed to use only the nurse‘s bathroom. Montana was using the nurse‘s bathroom when a significant amount of time passed. The nurse checked on Montana, and he said “he‘d be right out,” but Montana soon stopped responding to the nurse‘s inquiries. The nurse did not have a key to unlock the door and called the custodian. The custodian did not have a key either. The custodian then opened the door with a screwdriver. Upon entering the bathroom, the nurse and custodian found Montana hanging from his belt, which was secured to a metal rod in the ceiling. Montana had no pulse and was pronounced dead upon arrival at the hospital.
The Lances sued the School District, alleging claims under § 1983, § 504, and Texas law. The School District moved to dismiss the Lances’ § 1983 claims and claims for punitive damages. The magistrate judge recommended denying the School District‘s motion to dismiss the Lances’ § 1983 claims based on a “special-relationship theory” but recommended dismissing the Lances’ § 1983 claims based on a “state-created danger” theory and dismissing the Lances’ claims for punitive
STANDARDS OF REVIEW
“We review a grant of summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party‘s favor.” Pierce v. Dep‘t of the U.S. Air Force, 512 F.3d 184, 186 (5th Cir.2007). Summary judgment is proper if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
ANALYSIS
The Lances argue that they have raised fact issues as to their § 504 claims and their § 1983 claims.
I.
The Lances’ disability discrimination claims implicate three sources of federal law: IDEA, the Americans with Disabilities Act (“ADA“), and § 504. These statutes form a triptych in the school setting, guiding school administrators on how to best serve special-needs students.
A.
“IDEA requires states and local educational agencies receiving federal IDEA funds to make a [free appropriate public education] available to children with certain disabilities between the ages of 3 and 21.” Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 290-91 (5th Cir.2005) (en banc). Specifically, IDEA requires each federally funded school district to:
- (1) provide each disabled child within its jurisdictional boundaries with a “free appropriate public education” [a “FAPE“] tailored to his unique needs, and (2) assure that such education is offered, to the greatest extent possible, in the educational “mainstream,” that is, side by side with non-disabled children, in the least restrictive environment [the “LRE“] consistent with the disabled student‘s needs.
Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247 (5th Cir.1997) (footnote omitted);
The Lances’ § 504 claims highlight two differences between § 504 and IDEA. First, § 504 and IDEA define disability differently. Compare
Second, IDEA and § 504 define FAPE differently. IDEA‘s statutory definition of FAPE requires that a student‘s IEP be “reasonably calculated to enable the child to receive educational benefits.” White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 378 (5th Cir.2003) (quoting Rowley, 458 U.S. at 206-07). Conversely, § 504 does not have a statutory definition of FAPE; instead, it is § 504‘s accompanying regulations that require school districts to provide qualifying students a FAPE. Section 504‘s regulations provide that a school district satisfies the FAPE requirement when it provides services “designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met.”
Against this backdrop, the Lances invoke § 504. The Lances’ first § 504 theory is that that the School District acted with gross professional misjudgment by failing to provide Montana educational services necessary to satisfy § 504‘s FAPE requirement (the “failure-to-provide” claim). To prevail on this claim the Lances must show that the School District “refused to provide reasonable accommodations for the handicapped plaintiff to receive the full benefits of the school program.” Marvin H., 714 F.2d at 1356.
1.
While they concede that Montana qualified for special services under IDEA and that the School District implemented an IEP, the Lances’ complaint does not allege that Montana was denied a FAPE under IDEA; instead, they argue that Montana was denied a FAPE as defined by § 504‘s regulations. The Lances’ failure-to-provide claims, thus, are predicated on the correctness of their contention that they “do not need to establish a violation of IDEA in order to show Montana was denied a FAPE under § 504.”4
In D.A. we endorsed the view that “to establish a claim for disability discrimination, in th[e] education context, ‘something more than a mere failure to provide the “free appropriate education” required by [IDEA] must be shown.‘” D.A., 629 F.3d at 454 (emphasis added) (quoting Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir.1982)). At a minimum, then, the Lances are required to allege a denial of a FAPE under IDEA to sustain a § 504 claim based on the denial of a § 504 FAPE because “§ 504 regulations distinctly state that adopting a valid IEP is sufficient but not necessary to satisfy the § 504 FAPE requirements.” Mark H., 513 F.3d at 933; see
We take care here to explain the limits of this requirement. First, “[f]ailing to provide a FAPE in violation of the IDEA ... is not the sole basis on which a student may bring a claim of discrimination under the ADA and [§ 504].” CG v. Pa. Dep‘t of Educ., 734 F.3d 229, 235 (3d Cir.2013);
Second, a School District would never be able to invoke the sufficiency of its implemented IEP for students who qualify under § 504 but do not qualify for services under IDEA—there would be no IEP to implement. See, e.g., J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60 (2d Cir.2000); Galanter, Dear Colleague Letter, (Jan. 25, 2013) (providing an example of a successful § 504 action against the school district for failing to provide special-needs assistance for a student who is not eligible for services under IDEA).
Applied here, the Lances cannot sustain their § 504 FAPE claim because the School District “implement[ed] ... an Individualized Education Program developed in accordance with [IDEA.]”
First, the Lances consented to the design and implementation of Montana‘s IEP and BIP at every stage of Montana‘s time at Stewart‘s Creek and they never raised any concerns about Montana not receiving meaningful access to education.7 For example, following an ARD meeting in 2006, Mrs. Lance acknowledged that she reviewed the ARD minutes and signed that she “agree[d] with the decisions made.” On January 10, 2007, September 18, 2007, and June 4, 2008, Mrs. Lance again signed that she agreed with the ARD‘s decisions regarding Montana‘s IEP. Further, on April 14, 2008, Mrs. Lance agreed to give permission for Montana to undergo a full psychological evaluation at the request of the ARD. Finally, on November 11, 2009, Mr. Lance attended Montana‘s last ARD meeting, which took place two months before his suicide. Mr. Lance agreed to the ARD‘s proposed plan. As the minutes reflect, the ARD “[r]eviewed proposed additional IEP goals and objectives” and “[p]arent agreed with goals as written.” Accordingly, and consistent with statutory protection afforded a special-needs student‘s parents in formulating an IEP, the School District executed the IEP and BIP as the Lances agreed. See, e.g.,
Second, the evidence of the ARD deliberations demonstrates that Montana was provided meaningful access to education consistent with IDEA and § 504. In 2008, the ARD reviewed Montana‘s progress and noted that Montana had “A‘s and B‘s in all classes.” Further, Montana‘s classroom teacher reported that “Montana has made improvements in her class since the beginning of the year. He is doing very well academically, and does not require as much teacher attention. He still has emotional outbursts, but they have improved.” Additionally, the classroom teacher reported that Montana “is very easily distracted
The evidence establishes that the School District satisfied its § 504 FAPE obligations by implementing a valid IEP under IDEA.
3.
The Lances’ second § 504 claim is, that the School District discriminated against Montana because it was deliberately indifferent to the disability-based harassment that he suffered at the hands of his classmates. This claim derives from Davis v. Monroe County Board of Education—a Title IX case. 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). Davis held that school districts may be liable for failing to address student-on-student sexual harassment “only where they are deliberately indifferent to ... 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.” 526 U.S. at 650. Circuit courts have extended Davis‘s reasoning to claims for student-on-student harassment under Title VI. See Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 664-65 (2d Cir.2012); Bryant v. Indep. Sch. Dist. No. I-38, 334 F.3d 928, 934 (10th Cir.2003); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 206 & n. 5 (3d Cir.2001) (Alito, J.) (“Although both Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) and Davis dealt with sexual harassment under Title IX, we believe that their reasoning applies equally to harassment on the basis of the personal characteristics enumerated in Title VI and other relevant federal anti-discrimination statutes.“); see also Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1034 (9th Cir.1998). Other circuits also have interpreted Davis to apply with equal force in the § 504 setting. See, e.g., S.S. v. E. Ky. Univ., 532 F.3d 445, 453-56 (6th Cir.2008) (noting, however, that the parties agreed that Davis‘s deliberate-indifference standard should apply, and explicitly reserving the right to “consider[ ] a different standard of review if and when the issue is presented to us in a future case of peer-on-peer harassment“); Long v. Murray Cnty. Sch. Dist., 522 Fed.Appx. 576, 577 & n. 1 (11th Cir.2013) (applying Davis to a peer-to-peer harassment case under § 504 when parties “effectively agree that the deliberate indifference standard” applies); cf. S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 264 (3d Cir.2013) (assessing the standard for intentional discrimination in a claim against a school district for misdiagnosing a student‘s disability but noting that “a showing of deliberate indifference may satisfy a claim for compensatory damages under § 504“); M.L. v. Fed. Way Sch. Dist., 394 F.3d 634, 650-51 (9th Cir.2004) (“If a teacher is de
One reason courts have applied Davis by analogy to student-on-student harassment claims under § 504 is because § 504 is similarly worded to its counterparts in Title II of the ADA, Title IX, and Title VI.8 Additionally, § 504 and Title II incorporate Title VI‘s rights and remedies.9 In this case, the Lances and the School District do not dispute that Davis‘s test applies to § 504 claims.
In the § 504 setting, Davis requires a plaintiff to show:
- (1) he was an individual with a disability, (2) he was harassed based on his disability, (3) the harassment was sufficiently severe or pervasive that it altered the condition of his education and created an abusive educational environment, (4) [defendant] knew about the harassment, and (5) [defendant] was deliberately indifferent to the harassment.
S.S., 532 F.3d at 454; see also Davis, 526 U.S. at 650. The parties agree that Montana is an individual with a disability, but dispute the remaining four elements. The district court focused on the difficulty of the second element—that Montana was harassed based on his disability: “Nowhere in Plaintiffs’ voluminous record is there any evidence that Montana was bullied or treated differently by school administration because of his disability.” Because the Lances’ evidence does not create an issue of fact as to the School District‘s deliberate indifference, however, we address this final element.
midpage-fn n=“8“>8. Title II of the ADA provides, in pertinent part, “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.”4.
The final element of the Davis test is consequential. This element requires that the Lances provide evidence that the School District was deliberately indifferent to known acts of harassment and thus liable for disability-based discrimination. Davis, 526 U.S. at 642-43. The Supreme Court has limited the deliberate-indifference standard: “We stress that our conclusion here—that recipients may be liable for their deliberate indifference to known acts of peer sexual harassment—does not mean that recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particular disciplinary action.” Id. at 648 (emphasis added). Section 504 does not require that schools eradicate each instance of bullying from their hallways to avoid liability. Judges make poor vice principals,10 and as Davis instructs:
courts should refrain from second-guessing the disciplinary decisions made by school administrators ... [s]chool 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 response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.
Id. As such, the deliberate-indifference inquiry does not “transform every school disciplinary decision into a jury question.” Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 141 (2d Cir.1999). Instead, “[i]n an appropriate case, there is no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response as not ‘clearly unreasonable’ as a matter of law.” Davis, 526 U.S. at 649.
Though it granted summary judgment in favor of the School District, the district court observed: “If Plaintiffs‘—often uncontested—facts are to be believed, the Defendants’ approach to what seems to be fairly wide-spread bullying based on Plaintiffs’ summary judgment evidence is to bury their collective heads in the sand. When faced with a fork in the road, the District‘s choice seems to consistently be the path of inaction.” Despite this broad negative characterization, the summary-judgment evidence as to bullying incidents involving Montana demonstrates that the School District responded in a manner that precludes a jury finding of deliberate indifference.
First, the evidence demonstrates that in two documented altercations involving Montana the School District both investigated the incidents and punished all of the students involved. See Doe v. Bellefonte Area Sch. Dist., 106 Fed.Appx. 798, 800 (3d Cir.2004) (“The relevant inquiry for
After the November 4, 2009 incident, in which Montana was provoked and got in a shoving match with the other student, Vice Principal Amy Teddy testified that she investigated the incident and “actually talked with the kids a lot.” Teddy further testified that she was “working on rebuilding [the quarreling students‘] relationship with each other.... [And] ... was working with them ... so they could form a friendship.” Further, the student who fought with Montana that day “got a consequence as well“—specifically the other student got an in-school suspension. Teddy then contacted both students’ parents and “checked back with [the students] days later to see how they were doing and getting along.”
After the December 18, 2009 incident when Montana pulled out his pocketknife, Teddy testified that she (1) “interviewed all of the students involved and documented their explanations of the events,” (2) “met individually with all of the other students involved in the incident and asked them whether they felt threatened when Montana took out the knife,” and (3) “contacted Mr. Lance and [the other students‘] parents and met with them in person that day, along with notifying all the parents and students involved.” Further, “[e]very child involved in th[e] incident received consequences,” and “[e]very child with inappropriate behaviors received a suspension ... of up to three days.” The uncontested evidence also establishes that the other student involved in the altercation “had not previously had conflicts with Montana at school, nor had he had any previous disciplinary referrals during that year.”
Teddy also recounted other incidents involving Montana. On November 2, 2009, when Montana was sent to the office “for having pushed another student at the end of gym class,” Teddy “met with Montana about the incident and contacted his parents.” On December 12, 2009, Montana was also referred to the office for “kicking three boys in the cafeteria line.” The supervising teacher “removed Montana from the situation and gave him an opportunity to cool down.” Teddy spoke “with Montana about the incident and with the supervising teacher involved,” but did not give a consequence because “[g]enerally when a child regains his composure after an outburst I prefer to return the child to class so he does not miss his academic learning.” Teddy also intervened when Montana was having a tough time at recess. Teddy testified that she “worked with Montana because he had been getting in trouble at recess” by giving him “special access to some basketballs” and teaching him to play the game “horse.”
Kerry Woods, a teacher at Stewart‘s Creek, also testified about her responses to altercations involving Montana. When Woods “observed that Montana had a great deal of difficulty getting along with another special education student,” Woods “enforced their separation,” by “not allow[ing] them to sit or stand near one another or be in small groups together.” As one student testified, when Montana was physically bullied and he told the teacher, the teacher would “[t]ell the one person that hit [Montana] that he was going to get in big trouble.”12
Third, the Lances’ expert acknowledges that the School District‘s anti-bullying policies are “appropriate and up to national standards.” Equally, the Lances’ expert acknowledges that the School District provided an employee training presentation,
Under our caselaw, the School District‘s response was not clearly unreasonable. See, e.g., Sanches, 647 F.3d at 168 (granting summary judgment on deliberate indifference and noting that the “[i]neffective responses, however, are not necessarily clearly unreasonable” and that the “district‘s responses here were not clearly unreasonable merely because the actions continued“); Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 220 F.3d 380, 388 (5th Cir.2000) (holding that principal‘s investigation not a clearly unreasonable response to sexual abuse allegation because “we cannot say ... that these actions, though ineffective in preventing McGrew from sexually abusing students, were an inadequate response to J.H.‘s allegation“).
Other circuits apply Davis similarly. See Long, 522 Fed.Appx. at 577-78 (affirming grant of summary judgment because “the evidence shows a pattern on the part of Defendants of responding promptly to reported incidents, and we agree that Plaintiffs have failed to adduce evidence that would permit a jury to reasonably find that Defendants’ disciplinary responses to the reported harassment incidents were clearly unreasonabl[e]” (quotations omitted) (alteration in original)); S.S., 532 F.3d at 455 (holding that “[t]he record in this case does not give rise to an inference that Model was deliberately indifferent to S.S.‘s situation or that it had an attitude of permissiveness that amounted to discrimination” because the School “took the affirmative steps described above to address the incidents of harassment involving S.S. ... specifically, meeting with the students, communicating with parents, and disciplining the offending students“); Doe, 106 Fed.Appx. at 800 (summary judgment appropriate for school district when “[e]ach and every time Doe complained, the School District responded with reasonable actions which eliminated further harassment between Doe and the student(s) involved in each incident ... [s]tudents were suspended and others were given warnings and counseled regarding the seriousness of harassment“); cf. Mathis v. Wayne Cnty. Bd. of Educ., 496 Fed.Appx. 513, 516 (6th Cir.2012) (affirming denial of judgment as a matter of law when “the testimony at trial suggested that WBOE took little to no immediate action to protect James from the two forms of harassment he endured ... [t]hey[sic] jury was aware that WBOE did not conduct any substantive investigation of either incident, nor did it promptly punish the behavior” (emphasis added)).
As was true in Sanches, the School District‘s actions “stand in sharp contrast to those in other cases in which school officials were deliberately indifferent.” 647 F.3d at 168. In Patterson v. Hudson Area Schs., 551 F.3d 438, 448-49 (6th Cir.2009),
On one occasion, a student‘s harassing conduct culminated in stabbing Alma in the hand. With the exception of talking to the student, there was no evidence before the jury or this Court that Spencer took any other action whatsoever. On another occasion, two male students held Alma while another took off his pants and others pulled her hair and attempted to rip off her clothes. With respect to that incident, the only evidence before the jury evincing Spencer‘s response is that a class room teacher spoke to the boys and Alma. There is no evidence before this Court that Spencer ever disciplined the offending students nor informed law enforcement as a result of any of these incidents. On yet another occasion, Alma‘s mother filed a detailed complaint with Spencer‘s Title IX coordinator. An investigation, however, never resulted.
As Amy Teddy‘s testimony demonstrates, the School District‘s response to documented instances involving Montana exceeded those of the school districts in Patterson and Vance.
In sum, under Davis, and specifically our application of its deliberate indifference standard, school districts are afforded flexibility in responding to unacceptable behavior and may tailor their responses to the circumstances. As the Supreme Court has instructed: “We thus disagree with respondents’ contention that, if Title IX provides a cause of action for student-on-student harassment, ‘nothing short of expulsion of every student accused of misconduct involving sexual overtones would protect school systems from liability or damages.‘” Davis, 526 U.S. at 648. If, however, a school district consciously avoids confronting harassment or responds to harassment in another clearly unreasonable manner, which courts have equated with pretextual or knowingly ineffective interventions, then it may be found to have discriminated against the harassed student. Because the record evidences a pattern of active responses by the School District to incidents involving Montana, no such discriminatory intent against Montana and his disability may be imputed to the School District. Summary judg-
II.
The Lances asserted three theories of § 1983 liability in the district court: (1) a “special relationship” theory, (2) a “state-created danger” theory, and (3) a “caused-to-be subjected” theory. On appeal, and in light of Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849 (5th Cir.2012) (en banc), the Lances have not briefed their “special-relationship theory.” Instead, they argue only that they created an issue of fact under the “caused-to-be subjected” theory and “state-created danger” theory. The Lances’ two theories have never been adopted in this circuit, and, in any event, the “state-created danger” theory fails on its own terms.15
A.
The en banc court in Covington held that “a State‘s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause,” unless the “very limited” special-relationship exception applies. Covington, 675 F.3d at 855-56 (quoting DeShaney v. Winnebago Cnty. Dep‘t of Social Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). Importantly, the en banc court held that “a public school does not have a DeShaney special relationship with its students requiring the school to ensure the students’ safety from private actors.” Id. at 857. Nevertheless, the Lances argue that they have created an issue of fact under the text of § 1983.16 See Covington, 675 F.3d at 871 (Higginson, J., concurring) (“Set against this statutory language ... [i]f the complaint had asserted that the affirmative act of releasing Jane to Keyes was a causal act of recklessness or deliberate indifference or intentionality that caused her to be subjected to injury, and specifically to the deprivation of her right to bodily integrity, the complaint properly would proceed through discovery to trial.“). But under our court‘s holding in Covington, to succeed under § 1983 there must be a special relationship between the defendant and the victim. Id. at 855-56. As in Covington, no special relationship exists in this case. Id. at 857. Accordingly, the Lances cannot make a constitutional claim based on student-to-student harassment or Montana‘s own suicide.
B.
The en banc court in Covington also recognized that “we have never explicitly adopted the state-created danger theory,” and “decline[d] to use th[e] en banc opportunity to adopt the state-created danger
Taking the view most favorable to the Lances—assuming that state-created danger is a viable theory—the evidence does not create a genuine issue of material fact. A state-created danger theory requires (1) “th[at] defendants used their authority to create a dangerous environment for the plaintiff” and (2) “that the defendants acted with deliberate indifference to the plight of the plaintiff.” Covington, 675 F.3d at 865 (quoting Scanlan v. Tex. A & M Univ., 343 F.3d 533, 537-38 (5th Cir.2003)).
The second element is then subdivided into three prongs, which combine to subsume the first original element, specifically, a plaintiff would have to show that “(1) the environment created by the state actor is dangerous, (2) the state actor must know it is dangerous (deliberate indifference), and (3) the state actor must have used its authority to create an opportunity that would not otherwise have existed for the third party‘s crime to occur.” Dixon, 499 Fed.Appx. at 366-67 & n. 3.; Piotrowski v. City of Houston, 237 F.3d 567, 585 (5th Cir.2001).
The Lances point to two invasions of Montana‘s bodily integrity by private actors: (1) bullying by his peers and (2) his own suicide. The Lances’ state-created danger theory as applied to the bullying fails because the School District did not “create[ ] an opportunity that would not otherwise have existed,” Johnson v. Dall. Indep. Sch. Dist., 38 F.3d 198, 201 (5th Cir.1994), or take any action that made Montana more likely to be bullied. See Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244, 250 (5th Cir.2003) (rejecting state-created danger claim because that the school board was not “assiduous at fighting gang activity ... does [not] show that the Board affirmatively placed Avila in a position of danger, namely in the situation where Balderas was a greater threat to him than he would have been otherwise“). As discussed, the evidence shows that the School District attempted to alleviate tensions between Montana and other students, by, for instance, arranging his seating in class away from a problematic student. Accordingly, this claim fails. See Johnson, 38 F.3d at 201 (“The key to the state-created danger cases ... lies in the state actors’ culpable knowledge and conduct in affirmatively placing an individual in a position of danger, effectively stripping a person of her ability to defend herself, or cutting off potential sources of private aid.” (internal quotations and citations omitted)).
As to Montana‘s suicide, the Lances point to no evidence that the School District knew that Montana‘s suicide was immediate. Instead, all of the psychologists that met with Montana testified they did not think he would hurt
As in Covington, the evidence does not demonstrate that the “school knew about an immediate danger to [Montana‘s] safety.” Covington, 675 F.3d at 866; see also Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1415 (5th Cir.1997) (en banc) (“[T]he school district placed the student in the same area as a school custodian who had no known criminal record, sexual or otherwise, with school teachers in the same building but not in the immediate area.... Such post hoc attribution of known danger would turn inside out this limited exception to the principle of no duty.“).
Further, the Lances cannot show that the School District created a dangerous environment for Montana. See Sanford v. Stiles, 456 F.3d 298, 311-12 (3d Cir.2006) (holding that link between plaintiffs suicide and defendants’ conduct was “far too attenuated to justify imposition of liability“). In Hejny v. Grand Saline Indep. Sch. Dist., 420 Fed.Appx. 473 (5th Cir.2011), for example, a plaintiff sued the school district after her daughter, E.R., attempted suicide in a school restroom. No. 2-10-cv-50-TJW, 2010 WL 2521007, at *1 (E.D.Tex. June 17, 2010). In November 2007, E.R. wrote “a missive about acts of violence against others and herself,” which was confiscated by a school official and brought to the principal‘s attention. Id. E.R. was arrested the day before her attempted suicide, and, upon bringing E.R. to school, Hejny told a secretary to contact her if “anything happened during the school day.” Id. During class that day, E.R. made a suicide threat to her friend, who told the teacher, who in turn told the school counselor, Ms. Fisher. Id. Hejny alleged that Fisher, “with full awareness of the suicide threat, sent E.R. back to class.” Id. E.R. requested to be excused from the class to use the restroom, and attempted suicide. Id. The district court declined to adopt a state-created danger theory, id. at *3, and our court affirmed. Hejny, 420 Fed.Appx. at 473. Henji‘s claim failed because there was nothing to suggest that the School District affirmatively increased the chance that she would commit suicide. For those same reasons, this case does not sustain a state-created danger claim, even assuming that theory‘s validity. Accordingly, summary judgment was appropriate on the Lances’ § 1983 claims.
CONCLUSION
Because the School District did not discriminate against Montana because of his disability nor deprive Montana of a constitutional right, we AFFIRM.