Davis v. Francis Howell School Dist.
| Decision Date | 12 March 1998 |
| Docket Number | No. 97-2379,97-2379 |
| Citation | 138 F.3d 754 |
| Parties | 124 Ed. Law Rep. 840, 7 A.D. Cases 1614, 12 NDLR P 83 Mary DAVIS, Individually and as next friend for a minor Shane Davis; Bobby D. Davis, Individually and as next friend for a minor Shane Davis, Plaintiffs--Appellants, v. FRANCIS HOWELL SCHOOL DISTRICT; Roger Russell; Vicky Stewart; Joan Powlishta, Defendants--Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Rebecca S. Stith, St.Louis, MO, argued (Stephen E. Rothenberg, on the brief), for Plaintiffs-Appellants.
Robert J. Tomaso, St. Louis, MO, argued (Peter G. Yelkovac, on the brief), for Defendants-Appellees.
Before WOLLMAN, BRIGHT and MURPHY, Circuit Judges.
Mary and Bobby Davis sued the Francis Howell School District, claiming that its refusal to administer to their son Shane his prescribed dose of Ritalin SR to treat an attention deficit hyperactivity disorder (ADHD) violates Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131 et seq., § 504 of the Rehabilitation Act, 29 U.S.C. § 794, and 42 U.S.C. § 1983. The district court 1 granted summary judgment to the school district, and the Davises appeal. We affirm.
Shane's treating physician has prescribed a daily dosage of 360 milligrams of Ritalin SR to control his symptoms of ADHD, up to 120 milligrams of which must be administered during the school day in one or two doses. The nurse at Shane's elementary school, Joan Powlishta, had been administering his school time dose for over a year when she expressed concern to Mrs. Davis that his prescription might be dangerous or harmful because it far exceeded the recommended maximum of 60 milligrams in the Physician's Desk Reference (PDR). 2 After hearing a news story in March 1996 about a nurse in a nearby school district who had refused to administer a high dosage of Ritalin prescribed by the same doctor, Powlishta consulted the district's Nurse Coordinator and its regular consulting pediatrician about the safety of Shane's prescription; both agreed with Powlishta that the prescription was excessive.
Although the Davises provided a second doctor's opinion that the prescribed amount of Ritalin was not having any harmful effects on Shane, Powlishta notified them on April 12, 1996 that she would no longer administer his school time dose because his prescription exceeded the maximum recommended in the PDR, and the Assistant Superintendent supported her position when the Davises appealed to him. According to the district's policy on medication procedures, the school nurse has the right and obligation to question and verify potentially inappropriate prescriptions and "to refuse to give any medication that he/she feels does not meet the criteria established in Board Policy for giving medications." The school district offered to allow one of the Davises or their designee to come to the school to administer the medicine, and Mary Davis, who is a trained nurse, rearranged her work schedule in order to do so or else arranged for Shane's grandmother to give him his school time dose.
The Davises sued the school district alleging that its refusal to administer the drug as prescribed violated Title II of the ADA and § 504 of the Rehabilitation Act, and deprived them and their son of rights protected by § 1983. The district court initially granted them a temporary restraining order, but its denial of their request for a preliminary injunction was affirmed on an earlier appeal. See Davis v. Francis Howell Sch. Dist., 104 F.3d 204 (8th Cir.1997). Summary judgment was later granted to the district on the basis that the plaintiffs had not produced evidence that Shane had been discriminated against because of a disability and that the alternative arrangement was a reasonable accommodation as a matter of law. The court also ruled that the Davises had no actionable federal statutory or fourteenth amendment claims under § 1983.
A grant of summary judgment is reviewed de novo. See Stevens v. St. Louis Univ. Med. Ctr., 97 F.3d 268, 270 (8th Cir.1996). It will be affirmed if the record, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 268 (8th Cir.1993). If the nonmoving party fails to make a showing sufficient to establish the existence of an essential element of its case on which it bears the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
The school district argues that summary judgment was proper because there was no evidence that Shane was treated differently on the basis of his disability. The district contends that it decided to stop administering Shane's Ritalin because the size of his prescribed dosage conflicted with its policy of administering medication in conformity with the PDR in order to protect student health and minimize potential liability. The district asserts that its policy is nondiscriminatory. Under the policy many students with disabilities receive Ritalin from the school nurse in doses below the PDR maximum, and requests by nondisabled students for the administration of prescriptions in conflict with PDR recommendations are denied.
The Davises argue that summary judgment was not appropriate because issues of material fact were raised as to whether the school district discriminated against Shane by refusing to modify its policy and whether the alternatives it offered reasonably accommodated his disability. They claim that the district's refusal to give Shane his medication because his ADHD requires a dosage above the PDR recommendation amounts to disability-based discrimination. Their position is that Shane's need for a high dosage of Ritalin to control his ADHD symptoms cannot be distinguished from his disability.
Under both Title II and § 504, a plaintiff must show that he was a qualified individual with a disability and that he was denied the benefits of a program, activity, or services by reason of that disability. See 42 U.S.C. § 12132; 29 U.S.C. § 794(a). The Davises have not offered evidence that the school district's action was taken because of Shane's disability rather than because of its policy and underlying concerns about student health and potential liability. They have therefore failed to establish a required element of their claims. See DeBord v. Board of Educ., 126 F.3d 1102, 1105-06 (8th Cir.1997); cf. Davis, 104 F.3d at 206 (). Although the Davises question the wisdom of the district's policy and its rationale, they have not challenged the truthfulness of its stated reasons for its decision. They cannot show that the district's policy is discriminatory because it "applies to all students regardless of disability" and rests on concerns "unrelated to disabilities or misperceptions about them." DeBord, 126 F.3d at 1105. Because the school district's refusal to administer Shane's Ritalin was based on the conflict between the size of his prescribed dosage and the district's neutral policy, rather than on the type of disability Shane has or its severity, summary judgment was properly granted on the Davises' Title II and § 504 claims. See id. at 1105, 1106.
The Davises also argue that the district's policy and stated concerns about student harm and future liability do not excuse its duty to accommodate Shane's disability under the statutes. Under the Rehabilitation Act, reasonable accommodations may be required when a student with a disability is denied meaningful access to a benefit, see Alexander v. Choate, 469 U.S. 287, 301-02, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985), and Title II regulations require reasonable modifications in policies when necessary to avoid discrimination on the basis of disability unless doing so would fundamentally alter the nature of the service, see 28 C.F.R. § 35.130(b)(7), or would create undue financial and administrative burdens, see ...
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