Timothy H. v. Cedar Rapids Community School Dist., 98-2723

• Decision Date: 21 May 1999
• Docket Number: No. 98-2723,98-2723
• Citation: 178 F.3d 968
• Parties: , TIMOTHY H. and Brenda H., Individually and as Guardians and Next Friends of Kratisha H., Plaintiffs--Appellees, v. CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT, Grant Wood Area Education Agency 10, and the Iowa Department of Education, Defendants--Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

178 F.3d 968 TIMOTHY H. and Brenda H., Individually and as Guardians and Next Friends of Kratisha H., Plaintiffs--Appellees, v. CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT, Grant Wood Area Education Agency 10, and the Iowa Department of Education, Defendants--Appellants.

No. 98-2723.

United States Court of Appeals, Eighth Circuit.

Submitted April 19, 1999.

Filed May 21, 1999.

Sue L. Seitz, Des Moines, Iowa, argued (Edward M. Mansfield, and Christie J. Scase, Des Moines, Iowa, and Matthew G. Novak, Cedar Rapids, Iowa, on the brief), for Defendants-Appellants.

Curt L. Sytsma, Des Moines, Iowa, argued, for Plaintiffs-Appellees.

Before: BEAM and HANSEN, Circuit Judges, and KOPF, ¹ District Judge.

KOPF, District Judge.

This is an appeal from the district court's decision that a school district violated section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1999), when it refused to provide Kratisha H., a special education student, with specialized transportation to a high school outside of her assigned attendance area pursuant to an intra-district transfer program. The transfer program allows students to attend schools in other attendance areas within the school district with permission from the district, subject to the requirement that parents provide the transferring student's transportation to and from school. We reverse.

I.

The parents of Kratisha H., a high school student with cerebral palsy, spastic quadriplegia, multiple orthopedic problems, and severe communication disabilities, brought this action on Kratisha's behalf, seeking to require their school district to provide specialized transportation to enable Kratisha to attend John F. Kennedy High School, a high school that is located within the school district, but is not Kratisha's regularly assigned neighborhood school. Kratisha's parents do not dispute that Kratisha's neighborhood school offers a "free appropriate public education" ² for her; they simply "prefer" the special education program available at Kennedy High School.

Kratisha has been educated pursuant to an annual Individualized Education Program ("IEP") ³ since her enrollment in the school district. Kratisha's IEP for 1994 to 1995 provided that she attend a class for students with severe and profound disabilities at Thomas Jefferson High School, her neighborhood school. The IEP also required special transportation services--a lift bus and establishment of a special route--which were provided to Kratisha when she attended her neighborhood school.

In 1995 Kratisha applied to attend the special education program at John F. Kennedy High School pursuant to an intra-district transfer program which allows all students to attend schools outside their assigned attendance areas with permission from the district and with transportation to be provided by the participating students' parents. The school district granted Kratisha's request, but advised Kratisha's parents that they would be required to transport Kratisha to Kennedy High School pursuant to the intra-district transfer policy, which provides in part: "Parents shall be responsible for the transportation of students not attending their resident area school...."

Kratisha's parents transported Kratisha to Kennedy High School during the 1995-1996 school year. Kratisha's severe mobility impairment prevented her from driving, biking, or taking ordinary public transportation to Kennedy High School. The school district continues to offer transportation for Kratisha in a special lift bus if she attends Thomas Jefferson High School, her neighborhood school.

It would cost the school district approximately $24,000 per year to provide a lift bus and to establish a special bus route to enable Kratisha to attend her school of choice. While there is evidence that there are other children in the school district with moderate to severe needs who also need transportation services, the evidence does not reflect whether the parents of the other students attending Kennedy High School would have used Kratisha's particular bus route if one had been created such that economies of scale would reduce the district's cost.

Kratisha's parents filed an appeal with the Iowa Department of Education pursuant to Iowa Code Ann. § 256B.6 (West Cum.Supp.1999) (parent of child denied entry in special education program appropriate to child's condition and needs may obtain review by state board of education) challenging the school district's refusal to provide Kratisha with transportation to the special education program at Kennedy High School. The administrative law judge ("ALJ") found in favor of the school district, stating that Kratisha's parents had "not established a need beyond parental preference leading to the provision of services at a school other than her neighborhood school setting. To open up the door to the commitment of what appears to be unnecessary expenditures of substantial district resources to solely respond to parental preference would seem to place an unfair burden on local districts."

Kratisha's parents appealed the ALJ's decision to the district court, which held that the school district's policy of refusing to provide Kratisha with specialized transportation to Kennedy High School impermissibly limited her opportunity to participate in the benefits of the district's transfer program on the basis of her disability, in violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1999). Further, the court found the school district failed to prove by a preponderance of the evidence that providing specialized transportation would be an undue financial or administrative burden. In making the latter finding, the court rejected the evidence that it would cost approximately $24,000 per year for the school district to provide a lift bus and establish a special bus route to enable Kratisha to attend Kennedy High School, stating that "it appears undisputed that there are a number of children similarly situated to Kratisha H., whose inclusion would result in economies of scale absent from the one-child, one-bus analysis. A fair and reasonable per-student cost analysis would have to include all students to whom the transportation requirement would be applicable."

Based on these findings, the district court ordered the school district to provide Kratisha with specialized transportation to Kennedy High School for as long as Kratisha's IEP calls for specialized transportation and Kratisha participates in the intra-district transfer program. The school district, an area education agency, and the state department of education ("the school district") appeal the district court's decision.

II.

We review the factual findings of the district court for clear error and its legal conclusions de novo. Wood v. Omaha School Dist., 25 F.3d 667, 669 (8th Cir.1994) (disability discrimination claim under Rehabilitation Act).

Section 504 of the Rehabilitation Act of 1973 provides in part: "No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...." 29 U.S.C. § 794(a). To prevail on a Rehabilitation Act claim under this section, a plaintiff must establish that she (1) is a qualified individual with a disability; (2) was denied the benefits of a program or activity of a public entity receiving federal funds; and (3) was discriminated against based on her disability. A defendant to such a claim is entitled to assert as an affirmative defense that a requested accommodation would constitute an undue burden. Gorman v. Bartch, 152 F.3d 907, 911 (8th Cir.1998). See also Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir.1999). "Accommodations are not reasonable if they impose 'undue financial and administrative burdens' or if they require a 'fundamental alteration in the nature of [the] program.' " Pottgen v. Missouri State High School Activities Ass'n, 40 F.3d 926, 930 (8th Cir.1994) (quoting School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n. 17, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987)). See also Davis v. Francis Howell School Dist., 138 F.3d 754, 757 (8th Cir.1998)

The parties in this case do not dispute that Kratisha is a qualified individual with a disability within the meaning of the Rehabilitation Act, the first relevant inquiry in a claim brought pursuant to 29 U.S.C. § 794(a). With regard to the second element, the evidence clearly establishes that Kratisha was not denied the benefit of participating in the school district's intra-district transfer program; that is, the school district considered and granted her application for participation, subject to the requirement, applicable to everyone, that Kratisha's parents transport her to her family's school of choice. Thus, Kratisha's parents have failed to establish the second element of their Rehabilitation Act claim.

The...