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 Elkins School District No. 10; John * R. Smith; Jane Vaught; Marsha * [UNPUBLISHED] Wenzel; Jana Eaton; Ginny Kobe, * * Appellees.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 p arents Jim and Patsy Todd, appeals the district court & s grant of summary judgment to defendants in the Todds & action claimin g

1 violations of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and 4 2 U.S.C. § 1983. In a prior opinion, we affirmed the district court & s denial of qualified-2-

immunity to defendants, and directed the district court to dismiss the Todds & claim for d amages under the Individuals with Disabilities Education Act (IDEA). See Todd v. Elkins Schoo l Dist. No. 10 , No. 96-1520 (8th Cir. Jan. 10, 1997) (unpublished pe r curiam). According to the Todds, school officials violated section 504 by acting with “thoughtless indiff

erence and an intentional disregard” for Jacob & s safety. The Todds alleged that Jacob was qualified to “receive the benefits and par ticipate in the programs pro vided” by defendants, and that the defendants excluded Jacob from these benefits “solely because of his disability.”

Un disputedfacts demonstrate that Jacob, a fourth grade special educatio n student with muscular dystrophy, fell from his unbuckled wheelchair and broke his leg while being pushed to the playground by a fellow student. The Individualize d Ed ucationPlan developed for Jacob did not provide for an adult aide, but one wa s available to assist Jacob. Defendants, h owever, 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. Th e Todds appeal, suggesting that the district court applied the imprope r standard for proving a section 504 claim.

We ha ve stated that section 504 does not create “general tort liability fo r ed ucational malpractice,” but rather, requires a showing of either bad faith or gros s 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 profess ional judgment, in such a way as not to depart grossly fro m accepted standards among educational professionals, we cannot believe that Congress intended to create liability under § 504.” Id. at 1171.-3-

“[L]iability may be imposed only when the decision by the professional is such a substantial departure from ac cepted professional judgment, practice or standards as to demonstrat e 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 thi s 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 bas ed on his disability in violation of section 504 of the Rehabilit ationAct. Evidence before the district court and undisputed by the Todds , showed that the defendants, in exercise of their judgment, utilized Jacob & s peers fo r 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 standa rds as to demonstrate that they did not base their decision on such a judgment. See Hoek stra ex rel. Hoekstra
v. Independent Sch. Dist. No. 283 , 103 F.3d 624, 626-27 (8th Cir. 1996) (applyin g Mon ahanstandard to Americans with Disabilities Act claim; three month delay i n providing eleva

tor key to student for whom using stairs was painful did not constitute bad faith or gro ss 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 wher e parent s claimed school officials punished their child based on her disability b y wrapping her, i.e., binding her body with a blanket).

The To dds' 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 Rehab ilitation 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).-4-

Accordingly, we affirm the judgment of the district court.

A true copy.

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