1

The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-2723

___________

Timothy H. and Brenda H., *

Individually and as Guardians and *

Next Friends of Kratisha H., *

*

Plaintiffs - Appellees, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Cedar Rapids Community School *

District, Grant Wood Area *

Education Agency 10, and the *

Iowa Department of Education, *

*

Defendants - Appellants. *

___________

Submitted: April 19, 1999

Filed: May 21, 1999 

___________

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
2Regulations implementing the Rehabilitation Act and provisions of the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq.

(Supp. 1999), require the school district to provide a free appropriate public education

(“FAPE”) to Kratisha. See 20 U.S.C. §§ 1400(d) & 1401(8) (Supp. 1999) (purpose

of IDEA is to assure a FAPE to all children with disabilities); 34 C.F.R. § 104.33(a)

(1998) (recipient of federal funds that operates public secondary education program

must provide a FAPE to qualified handicapped persons in recipient’s jurisdiction).

3See 20 U.S.C. §§ 1401(11) & 1414(d) (Supp. 1999) (describing individualized

education program).

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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
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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 intradistrict 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
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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 onechild, 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.
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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 (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,
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Kratisha’s parents have failed to establish the second element of their Rehabilitation

Act claim.

The third factor relevant to Kratisha’s Rehabilitation Act claim is whether

Kratisha was discriminated against based on her disability when the school district

required her to provide her own transportation in order to participate in the intra-district

transfer program. There is no evidence of overt discrimination in the school district’s

intra-district transfer program, including its parental-transportation requirement,

because the program and its incorporated transportation policy are neutral,

“appli[cable] to all students regardless of disability,” and “unrelated to disabilities or

misperceptions about them.” DeBord v. Board of Educ., 126 F.3d 1102, 1105 (8th Cir.

1997) (refusal of school district to give dose of Ritalin to student with attention deficit

hyperactivity disorder when dose exceeded recommended maximum in Physician’s

Desk Reference did not violate section 504 of Rehabilitation Act), cert. denied, 118 S.

Ct. 1514 (1998). See also Davis, 138 F.3d at 756 (same). Further, there is no evidence

that the district’s transportation policy for intra-district transfer students was formulated

or implemented with disabilities in mind. DeBord, 126 F.3d at 1105. Kratisha is not

being denied access to the transfer program in this case because of her disability, but

because her parents do not wish to comply with the main condition of the program

applicable to all students who wish to participate -- parental transportation. 

To the extent Kratisha’s parents seek to prove unlawful discrimination based not

on disparate treatment, but on the effect the school district’s transportation policy has

on mobility-impaired students, we do not find a basis for concluding that the school

district’s policy has a discriminatory impact upon the disabled. The school board’s

facially neutral transportation policy in its intra-district transfer program makes no

distinction between students who will be required to provide their own transportation

to their school of choice and those who will be transported by the school district “on

the basis of any trait that the disabled or severely disabled are less or more likely to

possess.” DeBord, 126 F.3d at 1105 (citing Alexander v. Choate, 469 U.S. 287, 302
4The policy at issue requires all students -- whether they are disabled such that

they need a special mode of transportation to get to school, or whether they are not

disabled and simply have no access to a car, bike, or city bus due to personal

circumstances -- to provide their own transportation in order to participate in the intradistrict transfer program. 

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(1985) (assuming section 504 reaches disparate-impact discrimination, challenge to

state’s reduction in number of annual days covered by Medicaid for inpatient hospital

care was not cognizable under section 504 because policy was neutral on its face, not

alleged to rest on discriminatory motive, and did not deny the disabled equal access to

the benefits provided to everyone)). On the contrary, the school district requires that

all students, regardless of their personal transportation situation4, provide their own

transportation to their school of choice as a condition of participation in the intradistrict transfer program.

As we noted in Davis, 138 F.3d at 757, “[t]his court has not determined whether

the failure to make reasonable modifications in a policy is itself discrimination even

where the policy and its rationale cannot be shown to be discriminatory.” However,

even assuming the school district were required to modify its transportation policy to

accommodate Kratisha’s disability, the suggested accommodation considered by the

district court -- establishment of a special bus route for Kratisha -- is an undue financial

burden and a fundamental alteration in the nature of the intra-district transfer program.

Id.; Pottgen, 40 F.3d at 930. 

The evidence establishes that the school district would be required to spend

approximately $24,000 per year to establish a special bus route to enable Kratisha to

attend Kennedy High School, despite the undisputed fact that Kratisha’s neighborhood

high school has a special education program that meets her needs. While there is

evidence of other disabled children in the school district who need transportation

services to attend school, the evidence does not reflect whether the parents of the other

disabled students attending Kennedy High School would have used Kratisha’s
5Kratisha’s parents rely heavily on an opinion letter written by the Office of

Special Education and Rehabilitative Services to the Nebraska Commissioner of

Education regarding the duty of a school district to provide transportation services to

disabled children who choose to attend school in another school district. Response to

Lutjeharms, 16 EHLR 554 (OSERS 1990). We do not find this opinion letter

persuasive because, among other reasons, it is factually different from the case before

this court.

6

In their brief on appeal, Kratisha’s parents advance a “second and alternative

theory of relief” based on the Individuals with Disabilities Education Act, 20 U.S.C.

§§ 1400 et seq. although the district court granted relief to Kratisha and her parents

based solely on section 504 and its regulations. During oral argument, counsel for

Kratisha’s parents admitted that his arguments under section 504 and the IDEA were

duplicative. Therefore, we shall only address the section 504 claim. 

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particular bus route if one had been created such that economies of scale would reduce

the district’s cost in Kratisha’s case. Further, requiring the school district to spend any

amount of money to provide transportation to students participating in its intra-district

transfer program would fundamentally alter the main requirement of a program

designed to be of no cost to the school district -- parental transportation. In short,

establishment of a special bus route for a single student who admittedly receives a free

appropriate public education at her neighborhood school, but who wants to go to

another school for reasons of parental preference, is an undue burden on the school

district.5 

III.

Because Kratisha’s parents have not established that Kratisha was denied the

benefits of a program or activity of a public entity receiving federal funds or was

discriminated against based on her disability, they have failed to prove elements

necessary to their section 504 claim.6 Even if the elements of a 504 claim had been

established, the suggested accommodation would constitute an undue burden on the

school district, requiring judgment to be entered in favor of the school district.
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Therefore, the judgment of the district court in favor of the plaintiffs is reversed, and

this case is remanded to the district court for entry of a judgment consistent with this

opinion.

A true copy.

Attest:

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