IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50040

JAMIE NEVILLS, as next friend A. N.; TROY NEVILLS, as next friend A. N., 

 Plaintiffs - Appellants

v.

MART INDEPENDENT SCHOOL DISTRICT, 

 Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:13-CV-2

Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Jamie and Troy Nevills, as next friend of their son, A.N., brought this 

action against Mart Independent School District claiming the district violated 

the Americans with Disabilities Act and the Rehabilitation Act. The district 

court granted summary judgment in favor of the school district. 

We AFFIRM.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 21, 2015

Lyle W. Cayce

Clerk

 

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FACTS AND PROCEDURAL HISTORY

A.N. attended school in the Mart Independent School District (“MISD”) 

from kindergarten until seventh grade, when his parents withdrew him as a 

result of the harassment underlying this suit. It is disputed whether A.N. 

suffers from a form of Tourette Syndrome. The Nevillses produced a letter from 

a doctor stating that he suffers from “tic disorder.” MISD claims it was 

unaware of the disorder while A.N. was at MISD. The Nevillses point out that 

on one year’s enrollment forms, they wrote “tics” in the “Other” category for 

particular medical conditions. On another occasion, they gave a note to a 

school nurse explaining A.N.’s disorder and need for medications. The disorder 

allegedly causes him to have facial and body tics, blurs his vision, and makes 

it difficult for him to speak or concentrate. 

The complaint alleges several specific examples of bullying that occurred 

during A.N.’s fifth-, sixth- and seventh-grade years and other more general 

instances that spanned the entire period. The general instances mostly 

involved name-calling. Students allegedly called A.N. “retard, chickenhead, 

twitch, tic-toc, and spaz.” A.N. stated that he frequently reported the namecalling, but was told to stop being a tattle-tale. One teacher stated that she 

sent some students to the principal’s office for name-calling on one occasion, 

but that they were never punished. 

Other teachers punished A.N. for being a tattle-tale, including one 

instance in which a teacher required him to write “I will not be a tattle-tale” 

repeatedly. He alleges that teachers also punished him when he exhibited tics 

and caused a disturbance. His teachers, on the other hand, state that they 

merely asked him to step into the hallway to calm down when he caused 

disturbances and that they punished him for excessive tardiness or 

misconduct.

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Regarding specific instances of bullying, A.N. alleges that in fifth grade 

a group of students took his clothes out of his locker during gym class and 

poured soap on them. Later that year, he alleges, they stole shoes from his 

locker; and when he wore new shoes to school, they threw the shoes in the toilet 

and urinated on them. He maintains that he reported the misconduct and that 

MISD failed to discipline any students. MISD, however, produced a 

disciplinary referral indicating an individual was punished for the shoe 

incident, stated that there was no evidence that they were taken as a result of 

A.N.’s disability, and noted that A.N. was assisted in washing his clothes and 

given clothes to wear for the remainder of the day. 

A.N. was involved in physical altercations on two occasions in fifth grade. 

One involved a disagreement between A.N. and another student. Both A.N. 

and the other student were punished. In the other, A.N. alleged another 

student punched him while he was experiencing tics, saying he was trying to 

“fix them.” A.N. states that he reported the incident, but that nothing was 

done because he did not report it until the next day. He alleges that later, the 

other student’s father came to the school and threatened him in the lunch 

room. Middle School Principal Dr. Tawnya Nail states that she looked at video 

from that day at the cafeteria and talked to the other student’s father. She 

determined the father made no threats. She also found that the altercation 

resulted from an argument between A.N. and the student that arose after the 

other student lost a classroom game, some name-calling, and the other 

student’s having stepped on A.N.’s jacket. After the incident, Nail hired an 

outside organization to conduct teacher training on bullying, scheduled a 

presentation for the fifth- and sixth-grade boys on bullying, and made plans to 

have an outside organization lead a bullying program for students during the 

following fall.

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The final fifth-grade incident occurred when A.N. and another student 

were cleaning tables in a classroom and the other student sprayed A.N. in the 

face with cleaning chemicals. A.N. had to go to the emergency room to have 

his eyes checked. Nail investigated the incident and found no indication – from 

A.N.’s, the teacher’s, or the other student’s reports of the incident – that the 

action was intentional. The school also took measures to adjust the way they 

cleaned the tables in the future.

In sixth grade, while A.N. was on crutches from an injury, a student 

knocked him down in the hallway. A.N. alleges the action was intentional and 

that another teacher witnessed it, but that nothing was done. He alleges 

students posted on Facebook that they were going to try to knock him down. 

The Nevillses reported the posts, but state that the school did nothing. Nail, 

however, emailed A.N.’s teachers about the posts and asked them to watch out 

for anyone attempting to push A.N. She interviewed the students who 

allegedly made the Facebook posts and disciplined one of them. Jamie Nevills 

states that the school superintendent told her that going to school to complain

about the incidents only made matters worse for A.N.

In the seventh grade, A.N. was involved in a fight in the locker room. He 

alleged that a student “slammed [his] head against the wall” and “said he was 

going to break his arm.” He states he was taken to the office and that he 

reported the incident. He also states that he started suffering from migraine 

headaches and that he has nerve damage above his right eye. Nail met with 

both boys and determined that they pushed each other and the fight started 

because A.N. turned off the lights in the locker room. Both boys were punished,

and the administration removed students’ access to the light switches. 

A week later, A.N. alleges, he “freaked out because there was a spider on 

[his] instrument.” He said the rest of the class was teasing him and the teacher 

told him to “quit being a baby.” He left the classroom, without permission, to 

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tell an administrator what happened. Nail put him in a room in the office and 

told him to learn to control himself. He alleged he wet his pants during that 

time because he was denied access to a restroom. Nail went to get gym clothes 

for him to change into afterwards. Jamie Nevills went to deliver medicine and 

clothes after she was told what happened. She was denied access to A.N. 

because, she was told, it “would be a ‘treat’ for A.N. leaving class” without 

permission. Nail contends that A.N. yelled at her and other administrators in 

the office and that there were no visible signs that he had wet his pants. A.N. 

was given a Disciplinary Referral for “lack of cooperation, being rude and 

discourteous, and for leaving class without permission.” 

A few weeks later, a student ripped off A.N.’s “tear-away” pants, which 

snapped down the side, at a pep rally. A.N. was wearing shorts underneath 

and a long shirt. He alleges MISD’s only response was to tell him not to wear 

those pants anymore. Nail alleges that the responsible student was given ten 

days of in-school suspension. Later that day, another student pushed A.N.’s 

face into the student’s crotch. Nail investigated the incident and disciplined 

the student. The Nevillses removed A.N. from school shortly after and he 

transferred to another school. The Nevillses report that he has had no 

behavioral issues since the transfer.

The Nevillses filed suit against the school district, claiming it violated 

the ADA and Section 504 of the Rehabilitation Act. They claimed MISD was 

deliberately indifferent to peer-to-peer harassment on the basis of A.N.’s 

Tourette Syndrome and that MISD intentionally discriminated against A.N. 

They also claimed MISD retaliated against A.N. in violation of the ADA and 

Section 504. The retaliation claim was not raised on appeal. 

MISD filed a motion for summary judgment, claiming that the Nevillses’ 

claims were subject to the Individuals with Disabilities Education Act and 

therefore they had failed to exhaust administrative remedies. The district 

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court held that they had not failed to exhaust administrative remedies, but 

that claim is not at issue on appeal. MISD alternatively claimed the Nevillses

had failed to demonstrate that: A.N. had a disability; he was harassed on the 

basis of the disability; that the harassment was severe and pervasive; MISD 

knew about the harassment; MISD was deliberately indifferent to the 

harassment; or MISD intentionally discriminated against A.N. on the basis of 

his disability. 

The district court granted MISD’s motion for summary judgment. It 

found there were genuine disputes of fact regarding whether A.N. had a

disability as defined by the ADA and Section 504 and whether MISD had 

knowledge of the disability and the harassment. But the court found the 

Nevillses failed to establish genuine disputes of fact regarding whether the 

alleged harassment or discrimination was based on the disability and whether 

MISD was deliberately indifferent to the harassment. The Nevillses appealed.

DISCUSSION

“We review a grant of summary judgment de novo, applying the same 

legal standards as do the district courts.” Vuncannon v. United States, 711 

F.3d 536, 538 (5th Cir. 2013). Summary judgment is proper when viewing the 

evidence in the light most favorable to the non-movant, “there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” FED. R. CIV. P. 56(a).

We first consider whether the district court erred in granting summary 

judgment on the Nevillses’ claim of peer-to-peer harassment due to a disability. 

This court recently analyzed a Section 504 or ADA1 claim based on peer-to1 The analysis under Section 504 and the ADA is the same. “Congress’ intent was that 

Title II extend the protections of the Rehabilitation Act to cover all programs of state or local 

governments, regardless of the receipt of federal financial assistance. . . . Jurisprudence 

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peer harassment for the first time. See Estate of Lance v. Lewisville ISD, 743 

F.3d 982 (5th Cir. 2014). We derived a version of the elements for peer-to-peer 

sexual harassment claims from a Supreme Court opinion to analyze the peerto-peer harassment claim. See id. at 995 (citing Davis v. Monroe Cnty. Bd. of 

Educ., 526 U.S. 629, 650 (1999)). We held, to survive summary judgment in a 

Section 504 or ADA peer-to-peer harassment case, a plaintiff must 

demonstrate a genuine issue of material fact as to the following: 

(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.

Id. at 996 (citation and quotations omitted). The district court used the same 

analysis, though it reached its decision before Lance was issued. The parties 

argue vigorously about whether there is a genuine dispute of material fact as 

to each of the five elements under Lance. It is sufficient for us to explain why 

we conclude there is no genuine dispute of material fact regarding the fifth 

element, which concerns deliberate indifference.

In Lance, we held a school district was not liable for peer-to-peer 

harassment when the plaintiffs failed to demonstrate that the school was 

deliberately indifferent. Id. at 996. Examining Davis, we explained that the 

deliberate indifference standard does not require schools to “purge” themselves 

of harassment and that the standard grants a high level of deference to a 

school’s judgment. Id. at 996-97. “The deliberate-indifference inquiry does not

transform every school disciplinary decision into a jury question.” Id. at 997 

(citation and internal quotations omitted). We noted that the district court 

interpreting either section is applicable to both.” Hainze v. Richards, 207 F.3d 795,799 (5th 

Cir. 2000) (citations and internal quotations omitted).

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found several instances where the school district had chosen inaction. Id. We 

held, though, “despite this broad negative characterization, the summaryjudgment evidence as to bullying incidents involving [the plaintiff] 

demonstrates that the School District responded in a manner that precludes a 

jury finding of deliberate indifference.” Id.

In Lance, the evidence showed that the principal investigated alleged 

altercations, punished students involved, talked to students in instances where 

punishment was not warranted, spoke with parents of involved students, 

monitored behavior, removed the plaintiff from situations when his own 

behavior caused problems, and utilized anti-bullying training programs. Id. at 

997-99. 

The Nevillses highlight the lack of evidence of students being punished 

for name-calling and argue that the school did not punish several other 

students involved in one of the fights, the cleaning spray incident, and the 

crutches incident. MISD uses Nail’s affidavit and her written notes from 

investigations of these incidents to support her decisions to discipline some

students and not others. In addition, MISD provided, to students and teachers, 

training to counter bullying. That training was conducted using “two 

nationally-recognized programs designed to teach kindness and compassion to 

students.”

In light of the high level of deference Lance granted to schools, we hold 

that MISD was not deliberately indifferent to harassment. Therefore, the 

district court did not err in granting summary judgment on the deliberate 

indifference element.

We now turn to the Nevillses’ second issue and consider whether the 

district court erred in granting summary judgment in favor of MISD on the 

Nevillses’ intentional discrimination claim. A disability-based intentional 

discrimination claim requires a plaintiff to show: “(1) that he has a qualifying 

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disability; (2) that he is being denied the benefits of services, programs, or 

activities for which the public entity is responsible, or is otherwise 

discriminated against by the public entity; and (3) that such discrimination is 

by reason of his disability.” Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011). 

Furthermore, compensatory damages are only available if the plaintiff also 

shows intentional discrimination. Delano-Pyle v. Victoria Cnty., Tex., 302 F.3d 

567, 574 (5th Cir. 2002). Because the existence of a qualifying disability was 

discussed above, only the second two elements need be discussed here.

The Nevillses base their entire discrimination claim on the argument

that teachers sent A.N. out of class because of behaviors caused by his 

disability. In response, MISD argues that no behavior documentation from the 

school district indicates that A.N.’s disability was the basis for any 

punishment. MISD alleges that he was removed only because of disruptive 

behavior, unexplained tardiness and absences, or inability to get along with 

others at school. The district court found that there was insufficient evidence 

that MISD ever punished A.N. as an act of intentional discrimination. We 

agree. There is insufficient evidence that A.N. was ever removed from class 

due to intentional discrimination based on his disability. 

AFFIRMED.

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