In 2007, Montana Lance attended elementary school in Lewisville ISD. Montana received special education services under the Individuals with Disabilities Education Act (IDEA) for emotional disturbance, learning disability, and a speech impairment. From 2007 to 2010, students bullied Montana and taunted him because of his speech impediment and harassed him by calling him gay. The court noted that the record showed the district took few, if any, steps to address these issues or alert his parents to them. After a confrontation in class, Montana was sent to the nurse’s office to be placed in ISS. In ISS, Montana requested to go to the nurse’s restroom, where he hanged himself.

Montana’s parents filed suit against the district asserting claims under Section 504 of the Rehabilitation Act and a Fourteenth Amendment constitutional claim under 42 U.S.C.  1983. Relying on Doe v. Covington County School District, which had not yet been overruled en banc, the court ruled that similar elements had been met: Montana was very young, suffered a disability, the school took little or no action to protect him, and the district took him into its custody and placed him in an isolated setting. The court stated that the district additionally exhibited deliberate indifference by its lack of action with respect to Montana’s suicide threats and emotional disabilities.

On September 11, 2012, the federal district court dismissed the plaintiff’s claims against Lewisville ISD in light of the holding in Doe ex rel. Magee v. Covington County School District, 675 F.3d 849 (5th Cir. 2012) (en banc). The parents appealed the dismissal of their claims to the Fifth Circuit Court of Appeals.

TASB LAF, joined by NSBA, filed an amicus brief to the Fifth Circuit arguing that damages are not available for violations of Section 504 unless the plaintiff can establish “intentional discrimination,” which, at a minimum, requires proof of “deliberate indifference,” and that the district’s failure to prevent Montana from taking his life was not actionable under Section 504. Lance v. Lewsiville Indep. Sch. Dist., No. 12-41139 (Fifth Circuit Court of Appeals). LAF’s Attorney: Lisa A. Brown, Thompson & Horton, LLP, Houston.