The Honorable H. Franklin Waters, Chief Judge, United States District Court 1

for the Western District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-3258

___________

Jacob Todd, by Father, Jim Todd, *

and Mother, Patsy Todd, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas.

Elkins School District No. 10; John *

R. Smith; Jane Vaught; Marsha * [UNPUBLISHED]

Wenzel; Jana Eaton; Ginny Kobe, *

*

Appellees. *

___________

 Submitted: April 17, 1998

 Filed: April 27, 1998

___________

Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

PER CURIAM.

Minor Jacob Todd, through his parents Jim and Patsy Todd, appeals the district

court&s grant of summary judgment to defendants in the Todds& action claiming

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violations of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and 42

U.S.C. § 1983. In a prior opinion, we affirmed the district court&s denial of qualified
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immunity to defendants, and directed the district court to dismiss the Todds& claim for

damages under the Individuals with Disabilities Education Act (IDEA). See Todd v.

Elkins School Dist. No. 10, No. 96-1520 (8th Cir. Jan. 10, 1997) (unpublished per

curiam).

According to the Todds, school officials violated section 504 by acting with

“thoughtless indifference and an intentional disregard” for Jacob&s safety. The Todds

alleged that Jacob was qualified to “receive the benefits and participate in the programs

provided” by defendants, and that the defendants excluded Jacob from these benefits

“solely because of his disability.” 

Undisputed facts demonstrate that Jacob, a fourth grade special education

student with muscular dystrophy, fell from his unbuckled wheelchair and broke his leg

while being pushed to the playground by a fellow student. The Individualized

Education Plan developed for Jacob did not provide for an adult aide, but one was

available to assist Jacob. Defendants, however, at times elected to have Jacob’s peers

transport Jacob to recess. 

The district court granted the defendants& summary judgment motion as to both

claims. The Todds appeal, suggesting that the district court applied the improper

standard for proving a section 504 claim.

We have stated that section 504 does not create “general tort liability for

educational malpractice,” but rather, requires a showing of either bad faith or gross

misjudgment to demonstrate a violation in the context of the education of handicapped

children. See Monahan ex rel. Monahan v. Nebraska, 687 F.2d 1164, 1170-71 (8th

Cir. 1982), cert. denied, 460 U.S. 1012 (1983). We have also emphasized that “[s]o

long as the state officials involved have exercised professional judgment, in such a way

as not to depart grossly from accepted standards among educational professionals, we

cannot believe that Congress intended to create liability under § 504.” Id. at 1171. 
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“[L]iability may be imposed only when the decision by the professional is such a

substantial departure from accepted professional judgment, practice or standards as to

demonstrate that the person responsible actually did not base the decision on such a

judgment.” Id. (quoting Youngberg v. Romeo, 457 U.S. 307, 323 (1982)).

Applying this standard, and viewing the evidence in the light most favorable to

the Todds, we agree with the district court that, as a matter of law, the defendants did

not discriminate against Jacob based on his disability in violation of section 504 of the

Rehabilitation Act. Evidence before the district court and undisputed by the Todds,

showed that the defendants, in exercise of their judgment, utilized Jacob&s peers for

transportation in an effort to encourage peer relationships and minimize the isolation

associated with Jacob&s disabilities. While defendants may have misjudged Jacob’s

transportation needs, we agree that their actions did not amount to such a substantial

departure from accepted professional judgment, practice or standards as to demonstrate

that they did not base their decision on such a judgment. See Hoekstra ex rel. Hoekstra

v. Independent Sch. Dist. No. 283, 103 F.3d 624, 626-27 (8th Cir. 1996) (applying

Monahan standard to Americans with Disabilities Act claim; three month delay in

providing elevator key to student for whom using stairs was painful did not constitute

bad faith or gross misjudgment; defendants claimed delay was occasioned by process

of making elevator safe) cert. denied, 117 S. Ct. 1852 (1997); Heidemann v. Rother,

84 F.3d 1021, 1031-32 (8th Cir. 1996) (no genuine issue of material fact as to § 504

violation, and defendants entitled to qualified immunity as a matter of law where

parents claimed school officials punished their child based on her disability by

wrapping her, i.e., binding her body with a blanket).

The Todds' section 1983 claim fails as well. See DeBord ex rel. DeBord v.

Board of Educ., 126 F.3d 1102, 1107 (8th Cir. 1997)(failure to show Rehabilitation Act

or violations of § 1983 “dooms” claims based on those federal laws), petition for cert.

filed, 66 U.S.L.W. 3532 (U. S. Feb. 06, 1998) (No. 97-1297).
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Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.