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 Sh ane his prescribed dose of Ritalin SR to treat an attention deficit hyperactivity disorder (ADHD) violates Title II of the Americans with Dis abilities Act (ADA), 42 U.S.C. §§ 12131 et seq., § 504 of the Rehabilitation Act,The Hon orable Donald J. Stohr, United States District Judge for the Easter n 1 District of Missouri. Powlishta’s predecessor administered Shane’s Ritalin from Januar y until August 2 1994, when she was replaced by Powlishta. Pow lishta’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 o f 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 h is school time dose for over
a year when she expressed concern to Mrs. Davis that his prescription might b e dan gerous or harmful because it far exceeded the recommended maximum of 6 0 milligrams in the Physician’s Desk Reference (PDR). After hearing a news story i n 2 March 1996 about a nurse in a nearby school district who had refused to administer a high dosage of Ritalin presc ribed by the same doctor, Powlishta consulted the district’s Nurse Co ordinator and its regular consulting pediatrician about the safety of Shane’ s prescription; both agreed with Powlishta that the prescription was excessive.

Al thoughthe Davises provided a second doctor’s opinion that the prescribe d amount of Ritalin was not having any harmf ul effects on Shane, Powlishta notified them on April 12, 1996 that she woul d no longer administer his school time dose because his presc ription exceeded the maximum recommended in the PDR, and the Assistan t Sup erintendent

supported her position when the Davises appealed to him. Accordin g to the district’s policy on medication procedures, the school nurse has the right an d 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 re fusal to administer the drug
as prescribed violated Title II of the ADA and § 504 of the Rehabilitation Act, an d deprived th em and their son of rights protected by § 1983. The district court initiall y 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 di strict on the basis that the plaintiffs had not produced evidence that Shane had bee n discriminated against because of a disability and that the alternative arrangement was a reasonable accommodation as a matter of law. The court also r uled that the Davises had no actionable federal statutory or fourteenth amendment claims under § 1983.

A gr ant of summary judgment is reviewed de novo. See Stevens v. St. Loui s Un iv. 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 i s no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Se e Kopp v. Samaritan Health Sys., Inc. , 13 F.3d 264, 268 (8th Cir. 1993). If th e nonm oving party fails to make a showing sufficient to establish the existence of a n es sential 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 argue s that summary judgment was proper because there was no evidence that Shane was treated differently on the basis of his disability. The district contends t hat it decided to stop administering Shane’s Ritalin because the size of hi s 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 non discriminatory. Under the policy many students with disabili ties receive Ritalin from the school nurse in doses below the PDR maximum, and re quests 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 reasonabl y acc ommodatedhis disability. They claim that the district’s refusal to give Shane hi s medic ation because his ADHD requires a dosage above the PDR recommendatio n amounts to disability-based discrimination. Their position is that Shan e’s need for a high dosage of Ritalin to control his ADHD symptoms cannot be distinguished from hi s disability.

Under both Tit le II and § 504, a plaintiff must show that he was a qualifie d individual with a disability and that he wa s 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 Sha ne’s disability rather than because of its policy and underlying concerns abou t student health a

nd 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 o f succeedin g on the merits because they did not show school district acted because o f disab ility). Although the Davises question the wisdom of the district’s policy and it s rationale, they have not challe nged the truthfulness of its stated reasons for its decision. They cannot show that the district’s policy is discriminatory because it “applies to al l students r egardless of disability” and rests on concerns “unrelated to disabilities o r 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 pre scribed 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 ac commodate Shane’s disability under the statutes. Under the Rehabilitation Act, reasonable a ccommodations may be required when a student with a disability is d enied meaningful access to a benefit, see Alexander
v. Choate , 469 U.S. 287, 301-02 (1985), and Title II regulations require reasonabl e modifications in policies when necessary to avoid discrimination on the basis o f disability u nless doing so would fundamentally alter the nature of the service, see 2 8 C.F.R. § 35.130(b)(7), or would create undue financial and administrative burdens, see Pottgen v. Missour

i State High Sch. Activities Ass’n , 40 F.3d 926, 930 (8th Cir. 1994) (quoting School Bd. of Nassau Cou nty v. Arline , 480 U.S. 273, 287 n.17 (1987)). This
cour t 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. Lo s 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 o n 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 (6 th Cir. 1997) (en banc) ( showing that public entity could have reasonably accommodated disability bu t refused is sufficient to show actions taken because of disability).

Even if t he school district were required to modify its procedure for th e administration of medication to accommodate Shane’s pre scription, its offer to allow the Davises or their designee to give Shane his Ritalin during the school day is a reasonable accommodati on 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 individ ual case. See id. ; cf. Pottgen , 40 F.3d at 931 (individual waiver of a n essen tial eligibility requirement is not required due to administrative and financia l burdens involved); McPherson , 119 F.3d at 462 (waiv er is unreasonable where case-bycase determinations are “near-impossible” and “would im pose an immense financial and adm inistrative burden”). By offering an alternative arrangement the district did no t prev ent Shane from receiving his medication and reasonably accommodated hi s disability as a matter of law. See DeBord , 126 F.3d at 1106.
The Davises also claim that the school district deprived them of thei r statutory and fou rteenth amendment rights under color of state law. See 42 U.S.C. § 1983. Th e 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 Davise s also have no actionable fourteenth amendment claims because they have not shown that Shane was treated differently from other students with p rescribed dosages exceeding the PDR maxim um, that the district’s action was not rationally related to its interests i n protectin g student health and preventing future liability, see id. at 1107, or that th e district’s refusal interfered with their right to determine their child’s medical care, see Davis , 104 F.3d at 206.
Appellant s attempt to distinguish the DeBord decision on the ground that th e D e Bords 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 year s without incident or complaint. This factual dif ference is not sufficient to distinguish this
case from DeBord . Both there and here the school districts set forth the same neutra l
conc erns in support of their refusal to administer medication in excess of the PD R 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 o f 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 i s undisputedthat the reason for [the student's] high dosage is probably her metabol ism, not the severity of her disability. [The student's] own doctor and others stated the amount o f Ritalin needed to treat ADHD is unrelated to the severity of the disorder in any particular patient. Thus, the polic y 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 . Whi le the medical
ca use/effect

relationship may be unknown, nevertheless to treat Shane's disability th e 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 an d inadequate medication for another child's similar disability, the school polic y discriminates.

How ever, assuming a disability situation for Shane greater than that for othe r students needing medication to treat their ADHD disabilities, I agree that the schoo l district has made a reasonable accommodation for Shane's disability.-8-

A true copy.

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