United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-2379

___________

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, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Francis Howell School District; *

Roger Russell; Vicky Stewart; *

Joan Powlishta, *

*

Defendants - Appellees. *

___________

Submitted: January 12, 1998

Filed: March 12, 1998

___________

Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.

___________

MURPHY, Circuit Judge.

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,
The Honorable Donald J. Stohr, United States District Judge for the Eastern

1

District of Missouri.

Powlishta’s predecessor administered Shane’s Ritalin from January until August 2

1994, when she was replaced by Powlishta. Powlishta’s recollection was that she first

raised her concerns with Mrs. Davis sometime during the 1995-96 school year.

-2-

29 U.S.C. § 794, and 42 U.S.C. § 1983. The district court granted summary judgment 1

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). After hearing a news story in

2

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
-3-

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 (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
-4-

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 (plaintiffs did not establish likelihood of

succeeding on the merits because they did not show school district acted because of

disability). 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
-5-

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 (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

Pottgen v. Missouri State High Sch. 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)). This

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. See DeBord, 126 F.3d at 1106. Compare Weinreich v. Los

Angeles County Metro. Transp. Auth., 114 F.3d 976, 979 (9th Cir. 1997) (reasonable

modifications required only where individual with disability is denied meaningful access

to a benefit on the basis of that disability), cert. denied, 118 S.Ct. 423 (1997), with

McPherson v. Michigan High Sch. Athletic Ass’n, 119 F.3d 453, 460 (6th Cir. 1997) (en

banc) (showing that public entity could have reasonably accommodated disability but

refused is sufficient to show actions taken because of disability). 

Even if the school district were required to modify its procedure for the

administration of medication to accommodate Shane’s prescription, its offer to allow the

Davises or their designee to give Shane his Ritalin during the school day is a reasonable

accommodation as a matter of law. See DeBord, 126 F.3d at 1106. The Davises’

alternative proposal that the district waive its policy is not reasonable because it would

impose undue financial and administrative burdens on the district by requiring
-6-

it to determine the safety of the dosage and the likelihood of future harm and liability in

each individual case. See id.; cf. Pottgen, 40 F.3d at 931 (individual waiver of an

essential eligibility requirement is not required due to administrative and financial

burdens involved); McPherson, 119 F.3d at 462 (waiver is unreasonable where case-bycase determinations are “near-impossible” and “would impose an immense financial and

administrative burden”). By offering an alternative arrangement the district did not

prevent Shane from receiving his medication and reasonably accommodated his

disability as a matter of law. See DeBord, 126 F.3d at 1106.

The Davises also claim that the school district deprived them of their statutory and

fourteenth amendment rights under color of state law. See 42 U.S.C. § 1983. The

Davises’ cannot pursue statutory claims under § 1983 when they have failed to show a

violation of the underlying statutes. See DeBord, 126 F.3d at 1106-07. The Davises

also have no actionable fourteenth amendment claims because they have not shown that

Shane was treated differently from other students with prescribed dosages exceeding the

PDR maximum, that the district’s action was not rationally related to its interests in

protecting student health and preventing future liability, see id. at 1107, or that the

district’s refusal interfered with their right to determine their child’s medical care, see

Davis, 104 F.3d at 206.

Appellants attempt to distinguish the DeBord decision on the ground that the

DeBords were seeking to have the school nurse administer an excess dose for the first

time while Shane had previously received his prescribed dosage for over two years

without incident or complaint. This factual difference is not sufficient to distinguish this

case from DeBord. Both there and here the school districts set forth the same neutral

concerns in support of their refusal to administer medication in excess of the PDR

maximum and the plaintiffs failed to produce evidence that the refusal was actually based

on the students’ ADHD. See DeBord, 126 F.3d at 1105.
-7-

Since the school district was entitled to summary judgment on all of the plaintiffs’

claims, the judgment of the district court is affirmed.

BRIGHT, Circuit Judge, concurring separately.

I concur as the decision, DeBord v. Board of Educ., 126 F.3d 1102 (8th Cir.

1997), governs this case. However, I question the rationale that the amount of

medication necessary for treatment of ADHD does not relate to a student's disability.

This court articulated its reasoning in DeBord as follows:

Although [the student] requires Ritalin to treat her disability, it is

undisputed that the reason for [the student's] high dosage is probably her

metabolism, not the severity of her disability. [The student's] own doctor

and others stated the amount of Ritalin needed to treat ADHD is unrelated

to the severity of the disorder in any particular patient. Thus, the policy

does not discriminate against the severely disabled, as the DeBords assert.

126 F.3d at 1105.

The medical testimony in this case is similar to that in DeBord. While the medical

cause/effect relationship may be unknown, nevertheless to treat Shane's disability the

doctor prescribes a high dosage. That treatment is for his disability. Thus, it seems to

me that if the school administers adequate medication for one child's disability and

inadequate medication for another child's similar disability, the school policy

discriminates.

However, assuming a disability situation for Shane greater than that for other

students needing medication to treat their ADHD disabilities, I agree that the school

district has made a reasonable accommodation for Shane's disability.
-8-

A true copy.

Attest:

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