### The Honorable Lawrence L. Piersol, United States District 1 

### Judge for the District of South Dakota. __________ 95-3343

__________ Yankton School District, * * Appellant, * * Appeal from the United States v. * District Court for the * District of South Dakota. Harold and Angie Schramm, * * Appellees. *

__________ Submitted: May 17, 1996

Filed: August 22, 1996

__________ Before MAGILL, ROSS, and MURPHY, Circuit Judges.

__________ MURPHY, Circuit Judge.

Harold and Angie Schramm sought transition services for thei r orthopedicallyimpaired daughter, Tracy, to assist her passage from high school to independent living at college. The district court determine d 1 that the Yankton School District continued to be responsible for providing Tracy with services u nder the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et. seq. The court also awarded the Schramm s attorneyfees and costs as the prevailing parties. The school distric t appeals from the judgment. We affirm with one modification.

### 2 I.

Tracy Sch ramm is now eighteen years old and will be a senior thi s fall at Yankton High School. She was born with cerebral palsy and has bee n classified as orthope dically impaired since the third grade. As a result of her impairment, he r hand strength is weak, her right hand is stiff and lacks dexterity, her hand-eye coordination is limited, she writes and type s slowly, and she uses a walker for short distances and a wheelchair fo r longer ones. She cannot function independently in her personal life. She
nee ds help in getting dressed, putting on her shoes, pouring beverages , cooking, and cleaning . She cannot drive a car. Although she has learned to play the saxophone, she cannot play at certain speeds.

Due to Tracy's orthopedic impairment, she entered the schoo l district's special education program in the fall of 1979 as a preschoo l student. From that time she began to receive special instruction an d related services tailored to her needs through a n individualized education program ( IEP). Her last written IEP, dated May 10, 1993, included onl y adaptive physical education, physical therapy, and transportation. Yankto n School District has provided her with several additional services, however , not specif ied in her IEP. These include assistance in moving betwee n classes, getting on and off the school bus, going up and down stairs in th e school building, carrying a lunch tray, and setting up the saxophone she plays in the band. The school district has also provided Tracy wit h shortened writing assignments, photocopies of her teachers' class notes, computers for certain classes, special instructi on on how to type with one hand, and four separa te sets of text books for her home and school use so that she need not carry books from one location to another.

These services and specialized instruction have enabled Tracy t o participate in the regular classes at school. She has earned grades in th e "A" range by studying four to five hours a night,

### 3

five nights a week. In addition to her class wo rk, Tracy has participated in the school band, newspaper, and a public speaking program. She hopes to attend college and study civil engineering and computer science.

In March 1994, two weeks before Tracy's sixteenth birthday, th e school d istrict met with Tracy and her mother to discuss providin g transition services u nder IDEA. Transition services include instruction,
commun ityexperiences, and training in daily living skills that prepar e students about to lea ve high school for independent living, postsecondary educat ion, and community participation. See 20 U.S.C. § 1401(a)(19)

. Becau se of Tracy's desire to attend college away from home, she wante d specially designed instruction in driver's education, self-advocacy, and indepen dent living skills such as cooking and cleaning. The Schramm s receiv ed limited information from the school district but signed a tra nsition plan that placed nearly all responsibility for Tracy' s transition planning on them.

In ear ly June 1994, at the end of Tracy's ninth grade school year , the Schramms learned that the district planned to dismiss Tracy from its special education program under IDEA. Tracy's parents wrote a letter to the Ya nkton High School Principal, Dr. David Bitter, expressing thei r disagreement with the planned dismissal. Shortly thereafter, Tracy and he r parents me t with Dr. Bitter and other school personnel to discuss th e matter. Physical education was not provided beyond the ninth grade, and the di strict informed the Schramms that Tracy had satisfied it s requi rements in that area. Since Tracy's last IEP had offered specia l education only in physical education, the district felt Tracy no longer ha d special education needs under IDEA. On the addendum attached to Tracy's IEP that day, Tracy's mother wrote that the Schramms disagreed with th e district's decision a nd believed that Tracy remained eligible for special educat ion. Nevertheless, the district dismissed Tracy from its specia l education program under

### 4

IDEA.

Two weeks later, the South Dakota Advocacy Services, a publicl y funded legal services group which had been working with the Schramms durin g the past year, wrote a letter on their behalf to the school district. The letter explained the Schramms' disagreement with the district's decision that Tracy was ineligible for special education under IDEA. It stated tha t Tracy would have many transition needs requiring specialized instruction, which the district had failed to consider properly. For these reasons, th e Schramms requested an impartial due process hearing.

A due pro cess hearing was held before a state appointed hearin g examine r on August 22, 1994. See 20 U.S.C. § 1415(b)(2). The examine r determ ined that Tracy remained eligible for IDEA benefits because th e specially designed instruction and related services not included in the Ma y 1993 IEP were in fact necessary as a result of her orthopedic impairment. In addition, the examiner stated that the transi tion services Tracy needed bec ause of her impairment also constituted a type of special education

. The examiner conclude d that Tracy should receive the requested transition servic es and that the district's March 1994 transition plan improperl y shifted responsibility for such transition planning to Tracy's parents

. Finally, the examiner noted that he was inclinedto award attorney fees to the Schramms but believed he lacked the authority to do so.
The school district appealed the exa miner's decision to the district court. See 20 U.S.C. § 1415(e)(2). Following a hearing in August 1995, the court held that Tracy qualified for a free appropriate public educatio n under IDEA. Yankton School District v. Schramm , 900 F. Supp. 1182 (D.S.D. 1995). I t based Tracy's eligibility under IDEA on its finding that he r orthopedic impairment necessitated the specially designed instruction and related services she had been receiving from the school district.

### The Schramms had made the same request in its brief at the 2 

### administrative hearing level, but the hearing examiner's decision did not address it.
5 It ordered these to be included in her IEP for the 1995-96 school year, an d at least annually the reafter. The district court also found that Tracy's impairment adversely affected her educational performance because she woul d not be able to benefit from regular classroom instruction without th e instructional modifications and related services that made it possible for her to achieve. The court held that the March 1 994 transition plan failed to comply with IDEA requirements and ordered tha t a new plan be formulated with specific goals and objectives to enable Tracy to attend college.

The dis trict court went on to address the Schramms' request for a n award of compensatory education services and attorney fees. The Schramms had requested extra months of transition services to compensate for th e failure to provide fo r appropriate transition services beginning in April 1994, when Tracy turned 16. The court denied the request on the basi s 2 that Tracy would rema in eligible for transition services until age 21 and there we re no egregious circumstances to justify such relief. Th e Sch ramms' request for $7,633.71 in attorney fees and costs was granted , however. The district had objected to an award of fees based on th e noveltyof legal issues involved in the case, its good faith in applying the statute, and the Schramms' free legal repres entation. The court found that none of these factors justified denying a fee award to the Schramms as the prevailing parties.
The school district argues on appeal to this court that the district court erroneously determined that Tracy qualified as a disabled child unde r IDEA and that it abused its discretion in granting attorney fees to th e Schramms.

### 6 II.

The Indiv iduals with Disabilities Education Act of 1990, originally enacted in 1975 as the Education for All Handicapped Children Act (EHA),
ensures that all children with disabilities have access to "a fre e appropriate public ed ucation." 20 U.S.C. § 1400(c); Board of Educ., Etc.

v. R owley , 458 U.S. 176, 203 (1982). At the time of EHA's passage, a n estimated 1.75 million handicapped children were not receiving an y educat ional services and another 2.5 million were not receiving a n app ropriate education. Rowley , 458 U.S. at 191. EHA was intended t o prov ide a "basic floor of opportunity" by opening the door of publi c educ ation to disabled children, with the hope of integrating them i n regular classrooms as much as possible. Id. at 192; Light v. Parkway C-2 Schoo l District , 41 F.3d 1223, 1227 (8th Cir. 1994); cert. denied , 11 5 S.Ct. 2557 (1995).

All c hildren with disabilities, such as an orthopedic impairment , "who, by reason thereof, need special education and related services" fall within IDEA's scope. Id. § 1401(a)(1)(A). "Special education" mean s "specially designed i nstruction . . . to meet the unique needs of a child with a disability," and includes instruction in the classroom, home, and in physical education. Id. § 1401(a)(16). "Related services" includ e physical therapy, "transportation, and such deve lopmental, corrective, and other supportive serv ices . . . as may be required to assist a child with
a disability to benefit from special education . . . ." Id. § 1401(a)(17)

.

A "fr ee appropriate public education" under IDEA requires specia l education and related services from preschool through secondary school , tailored to a disabled child's unique needs by m eans of an "individualized education program" or IEP. 20 U.S.C. § 1401(a)(18). An IEP is a written statem ent developed by school officials, teachers, the parents, and th e child if appropriate,

### 7

th at is reviewed and subject to revision at least annually. Id

. §§ 140 1(a)(20), 1413(a)(11). It must include the child's presen t educational level and goals, specific educationa l services to be provided, needed transition services, and criteria for progress evaluation. Id

. § 1401(a)(20).

Th e transition services available under IDEA for disabled childre n consist of

a coo rdinated set of activities for a student, designed within a n ou tcome-oriented process, which promotes movement from school t o pos t-school activities, including post-secondary education , voca tional training, integrated employment (including supporte d employment), continuing and adult education, adult services , independent living, or community par ticipation. The coordinated set of activities shall be based upon the individual student's needs , taking into account the student's preferences and interests, an d shall include instruction, community experiences, the development of employ ment and other post-school living objectives, and, whe n appropriate, acquisition of daily living skills and functiona l vocational evaluation.

Id. § 1401(a)(19). A statement of a child's needed transition services an d the anticipated dates of initiation and duration must be included in his
or her IEP beginning no later than age 16, and annually thereafter. Id. § 1401(a)(20)(D) & (E). A statement of the interagency responsibilities for these transition services must be included, when appropriate, before the student leaves the school setting. Id. § 1401(a)(20)(D).

IDEAprovides significant procedural safeguards to ensure tha t parents and guardians actively participate in their child's education. Id

. § 1415; Rowley , 458 U.S. at 205. Parents help f ormulate their child's IEP and are entitled to notice of proposed changes i n the educational program. 20 U .S.C. § 1415(b)(1)(C). If disagreements arise, an impartial du e process hearing is held, id. § 1415(b)(2), following which any aggrieved party may file a civil action in state or federal court. Id. § 1415(e)(2)

. A court has

### 8

discretion to award reasonable attorney fees as part of the costs to the parents if they are the prevailing party. Id. § 1415(e)(4)(B).

In suits brought under § 1415(e)(2), a reviewing court mus t indepe ndentlydetermine, based on a preponderance of the evidence, an d giving "due weight" to the state administrative proceedings, whether the state has complied with IDEA's requirements. Rowley , 458 U.S. at 206 ; Independe nt School District No. 283 v. S.D. , 88 F.3d 556, 560 (8th Cir

. 1996). A state must have adopted the "plan, policies, and assurance s required by the Act" to provide free appropriate public education for all children with disabilities, and have created an IEP for the individua l child in conformance with the statutory requirements. Id. at 206 n.27

. If the c ontent of an IEP is being challenged, a court must also asses s whether it is "reasonably calculated to enable the child to receiv e educational benefits." Id. at 207. Courts are not to rely on their own notions of educational policy, however. Id. at 206, 208; Petersen v
. Hastings Public Schools , 31 F.3d 705, 707 (8th Cir. 1994) (review of the state administrative decision "is, in reality, q uite narrow"). A district court's findings of fact must be upheld unless c learly erroneous. Parkway C-2 School District , 41 F.3d at 1229.

A.

The hea rt of the dispute in this case concerns whether Tracy stil l has a disability within the meaning of IDEA which entitles her to a free appropriate public education. 20 U.S.C. § 1400( c). If Tracy's disability falls within the scope of IDEA, then the school district, in conjunction with h er parents and Tracy, must create an IEP that provides for th e special e ducation and related services she needs as a result of he r disability. Id. § 1401(a)(18); Rowley , 458 U.S. at 206 n.27. Becaus e Yankton School District dismissed Tracy from its special education program

### Pursuant to IDEA's "stay-put" provision, the school 3 

### district did not fashion a new IEP for Tracy until the district court issued its order in September 1995. See 20 U.S.C. § 1415(e)(3) (disabled child "shall remain in the then current educational placement" during pendency of administrative or judicial review). The dissent describes the issue in this case as "whether a 4 

### student who is capable of achieving academic success without special education programs is nevertheless entitled to transition services . . . ." Neither the district nor the Schramms dispute that Tracy continues to require the special services discussed in the text. The legal question is thus whether those services constitute "special education and related services" under the IDEA. 9 when she finished ninth grade, it did not create a new IEP for her tenth grade year. This appeal therefore does not focus on a disputed portio n 3 of an IEP, but whether an IEP comporting with st atutory requirements needs to be furnished. Since she became 16 in April 1994, Tracy's IEP would hav e to include a statemen t of any needed transition services, the anticipated dates for their initiation and duration, and, if appropriate, th e interagencyresponsibilities for them. Id. § 1401(a)(20). The types of transition services that Tracy requested, such as driver's education, self

advoca cy, and independent living skills, are not beyond the statutor y scope. Id. § 1401(a)(19).

Tracyis a disabled child under IDEA because the orthopedi c impairment caused by her cerebral palsy still requires "special education
an d related services." Id. § 1401(a)(1)(A). Special education i s 4 "specially designed i nstruction . . . to meet the unique needs of a child with a disability," and includes instruction in the classroom, home, and in physical education. Id. § 1401(a)(16). Tracy's unique needs include slowness and fatigue when writing and stiffness and lack of dexterity in her right hand. To meet her needs, Tracy's teac hers shortened or modified the length and nature of her writing assignments , provided her with copies of their notes, and taught her how to type using only her left hand and th e first finger of her right hand. None of this individualized instruction would have been necessary but for her

### The days when special education implied separate education 5 

### are over. Congress knew and intended that special education would take place in regular classes. 20 U.S.C. § 1412(5)(B).
10 orthopedic impairment.

The district has also provided related services to address Tracy' s slowness in walking and lack of hand strength. Related services include "transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education . . . ." Id. § 1401(a)(17). Tracy receive s transportation to sch ool by a lift bus, mobility assistance in the school build ing, and assistance in carrying her lunch tray and setting up he r saxophone for band practice. The district also provides separate textbook s at different location s so that Tracy need not carry them with her. These supportive services comport with Congressional intent to integrate childre n with d isabilities, like Tracy, with children who are not disabled. Se e 5 Rowley , 458 U.S. at 2 02-03; Parkway C-2 School District , 41 F.3d at 1227.

Alt hough Yankton School District acknowledges that Tracy has a n orthop edic impairment, it argues that a regulation adopted under IDE A forecloses her eligibility because her impairment does not adversely affec t her educational performance. See 34 C.F.R. § 300.7(b)(7) (an orthopedic impair ment is "a severe orthopedic impairment that adversely affects a chi ld's educational performance"). In its view, Tracy was eligible fo r special education in her last IEP only because h er disability affected her per formance in physical education. Once she completed ninth grade, th e district was no longer required to provide her with physical education, an d her need for special education thus ended. Sinc e Tracy receives excellent grades, the district reasons that Tracy's impairment does not affect her abi lityin any other area, which means she is not disabled within th e meaning of IDEA. It cites

### 11

Board of Educ., Etc. v. Rowley , 458 U.S. 176 (1982), in support.

Rowley tu rned on the content of an eligible child's IEP. The issue there was whether a particular education service had to be furnished, that is whet her a hearing-impaired student was entitled to a sign languag e interpreter. Rowley , 458 U.S. at 184. The student was already receiving personalized instruction in a regular classroom, had higher than average grades, and was advancing easily from grade to g rade. Id. at 209-10. The Sup reme Court reasoned that her performance showed that her IEP alread y provided sufficient educational benefit without the requested interpreter. Id. The focus on her performance occurred in the context of decidin g wheth er adequate services were being provided. In the case before th e court the school district determined that Tracy was not eligible for any IDEA s ervices after she finished ninth grade. The issue here is no t whethe r current IDEA services are adequate, but whether Tracy remain s entitled to receive any benefits under IDEA.
The school district acknowledges that Rowley did not decide any issue of eligibility under IDEA, but it believes the o pinion's discussion of the statute 's background is favorable to its position. Rowleynoted tha t IDEA's predecessor, EHA, required states to educate handicapped children who wer e receiving no education or an inadequate one. 458 U.S. at 181

. In the district's view, Tracy can receive an adequate education withou t IDEAservices despite her handicap. Tracy's continued eligibility under IDEA does not rest just on the presence of an orthopedic impairment , ho wever. Her eligibility continues because that impairment require s specially designed instruction in the classroom and mobility assistance an d other related service s that help her to benefit from that education. See 20 U.S.C. § 1401(a)(1)(A).

The regulation defining an orthopedic impairment, 34 C.F.R

. § 300.7(b)(7), does not make Tracy ineligible for IDEA services.

### The district court specifically found that "Tracy's 6 

### orthopedic impairment adversely affects her educational performance." Schramm , 900 F. Supp. at 1191. For example, Tracy received the teacher's notes in several classes because "she writes too slowly to take adequate notes." Id. at 1189. We are bound by these factual determinations since they are not clearly erroneous. Light v. Parkway C-2 School District , 41 F.3d 1223, 1229 (8th Cir. 1994). Likewise, the hearing examiner found that the special education and related services the district had been providing Tracy were "appropriate and, in fact, necessary for Tracy's continued enrollment in the regular curriculum." This finding is entitled to due weight. Independent School District No. 283 v. S.D. , 88 F.3d 556, 560 (8th Cir. 1996). A very bright, disciplined, and determined student, Tracy appears to be headed for college. Preparing disabled students for postsecondary education is one of the reasons for transition services under the IDEA. 20 U.S.C. § 1401(a)(19). Under the statute, her success in high school, due in part to the special education she receives, should not prevent her from receiving whatever transition services she may need to be equally successful in college.
12 The de finition requires that the impairment adversely affect a child' s educational performan ce, but the regulation does not elaborate on what is meant by an adverse affect on performance. The record here establishe s that bu t for the specialized instruction and services provided by th e school district, Tracy's ability to learn and do the required class work would be adversely affected by her cerebral palsy. For example, without the spe cially designed instruction in one-handed typing and shortene d wri ting assignments, Tracy would have difficultly taking notes o r completing her assignments. Without the mobility assistance services and provision of multiple text books, Tracy would be late to class and unable to take her books. Tracy's academic success has depended on these special
measures a nd her long hours of study. Her impairment would adversel y affect her performance in the regular classroom setting absent th e pe rsonalized instructions and supplementary services she has received. 6 Even though the district failed to include these services in her last IEP, her need for them did not end upon her completion of the district' s physical education re quirements. Application of the regulation would not

### 29 U.S.C. § 794(a) provides in relevant part that 7 

### 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 or under any program or activity conducted by any Executive agency of the United States Postal Service. An IEP developed in accordance with IDEA may sometimes be 8 

### used to show compliance with § 504. See 34 C.F.R. § 104.33(b)(2).
T he dissent suggests that we are second-guessing the school 9 

### district's assessment of Tracy's educational needs because the district's determination that she is not eligible for IDEA services is a matter of educational policy within its expertise. The district explicitly asserted that this is not its position. See 13 bar consideration of her claim under IDEA.

The school district provides Tracy with physical therapy, extr a textbooks, mobility assistance between classes, modified writin g
ass ignments, and a modified chemistry lab station. It argues, however , that it pr ovides them under Section 504 of the Rehabilitation Act, 2 9 U.S.C. § 794, not under IDEA.

Although an individual who is eligible for services under IDEA ma y also qu alify for assistance under the Rehabilitation Act of 1973, th e school di strict must comply with both statutes. Section 504 of th e Rehabilitation Act pr ohibits discrimination on the basis of handicap in a varietyof programs and activities receiving federal aid. See 29 U.S.C. § 794(a). Both § 504 and IDEA have been interpreted as requiring states

7 to pro vide a free appropriate public education to qualified handicappe d pers ons, but only IDEA requires development of an IEP and specificall y 8 provides for transition services to assist students prepare for a post-hig h schoo l environment. See 20 U.S.C. § 1401(a)(20). Under the statutor y scheme, the school district is not free to choose which statute it prefers , as Yankton School District acknowledges in its reply brief. 9

### Appellant's Reply Brief at 8 n.1. It acknowledges that whether

or not a child is entitled to receive services under IDEA is statutorily defined and not a matter of educational policy. While school authorities are better situated than courts to determine what educational practices and materials to include in a child's IEP, they may not choose to exclude qualified children from receiving IDEA services. See Rowley , 458 U.S. at 208 ("once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States").

14 If a student is eligible under IDEA, appropriate services, including transition benefits, shall be provided. Id. § 1401(a)(20). That some of those services may also be mandated by the Rehabilitation Act does not mea n theyare not "specially designed instruction" under IDEA. Since Trac y still requires and receives special education and related services a s defined by IDEA, the district remains obligated to cooperate in fashioning an IEP for the coming year to include necessary transition services. Id.

B.

The scho ol district also contends that the district court erred i n stating that Tracy's eligibility for transition services under IDEA would continue until age 21 . The district court made this statement during its discussion of the Schramms' request for an awardof compensatory education in the area of transition services. In denying any compensatory award, th e court reasoned that T racy's eligibility for transition services until age 21 would give sufficient time for her to benefit from them.

All children with disabilities are generally entitled to a fre e appropriate public ed ucation under IDEA between the ages of 3 and 21. 20 U.S.C. § 1412(2)(B). An exception exists where state law or practice does not provide for free public education for students between the ages of 18 and 21. Id. Under S outh Dakota law, a free public education is provided until a student has

### The Schramms concede that Tracy's eligibility for 10 

### transition services will most likely end upon her graduation from high school. They argue that they are nevertheless entitled to these services as an award of compensatory education because the school district failed to provide adequate transition services from March 1994 to September 1995, the date a new IEP was constructed per the district court's order. Because the Schramms have not appealed the district court's decision denying their request for compensatory education, that issue is not properly before us. See National Farmers Union Standard Ins. Co. v. Souris River Telephone Mut. Aid Co-op. , 75 F.3d 1268, 1271 (8th Cir. 1996).

15 completed the secondary program or reached the a ge of 21. SDCL § 13-28-5. Tracy plans on graduating from high school at the end of the 1996-97 schoo l year, at which time she will be 19 years old. A ssuming that she graduates
as planne d, the district is correct that it will not be responsible fo r providing her with tr ansition services under IDEA after her completion of high school. 20 U.S.C. § 1412(2)(B). 10

C.
Finally, the school district argues that the district court abuse d its discretion in awarding the Schramms attorney fees and costs. It point s out that the Schramms received free legal representation by a publicl y funded group called t he South Dakota Advocacy Services, and contends that
an a ward penalizes it for grappling with complex legal issues in th e attempt to comply with IDEA requirements.

Under the statute, a court has discretion to award reasonabl e attorneyfees as part of the costs to prevailing parents or guardians of
a child or youth with a disability. Id. § 1415(e)(4)(B). A party prevail s if it succeeded on any significant issue which achieved some of the benefi t it sought. Borengass er v. Arkansas State Bd. of Educ. , 996 F.2d 196, 200 (8th Cir. 1993). Unless "special circumstances" exist to make an award

### 16

unjust, attorney fees should ordinarily be awarded to the prevailing party

. Id. at 199. We review an award of fees for abuse of discretion. Id.

The aw ard of attorney fees and costs to the Schramms was not a n abuse of discretion. The Schramms were the prevailing parties because the y succeeded on the issu es of Tracy's eligibility under IDEA and entitlement to transition services. The fact that they were represented by publicly funded counsel does not affect their right to fe es. See Eggers v. Bullitt County School Dist. , 854 F.2d 892, 899 (6th Cir. 1988). Nor does the fact that the school district may have acted in good faith. Borengasser , 996 F.2d at 200. No special circumstances exist to justify denial of an award to the Schramms as prevailing parties. See id.

III.

In sum, Tracy remains eligible as a disabled child under IDEA fo r transition services and other benefits until she graduates from high schoo l (or rea ches the age of 21 without having graduated). With thi s modification of the district court's disposition, the judgment is affirmed

. MAGILL, Circuit Judge, dissenting.

I resp ectfully dissent. The real issue of this case is who is t o foot the bill for Ms. Schramm's transition from high school to college: Ms

. Schrammand her parents, or the Yankton School District. Ms. Schramm is a demonstrably bright, academically gifted stude nt who requires no special educ ation programs to excel in her course work. This case therefor e pre sents the legal question of whether a student who is capable o f achie ving academic success without special education programs i s nevertheless entitled to transition services under the Individuals wit h Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1490o. Contrary to the

### The regulations define "special education" as 1 

### specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including-- (i) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (ii) Instruction in physical education. 34 C.F.R. § 300.17(a)(1). See also 34 C.F.R. § 300.17 n.1 ("The
17 majority, I do not believe that Congress intende d to mandate this delivery of patently unnecessary services.

Th e majority declares that "Tracy is a disabled child under IDE A becaus e the orthopedic impairment caused by her cerebral palsy stil l requires 'special education and related services.'" Maj. Op. at 9 (quotin g 20 U.S. C. § 1401(a)(1)(A)). I disagree with this pivotal conclusion

. While Tracy is undeni ably "disabled" under various definitions, including Section 504 of the Rehabilitation Act of 1974, 29 U.S.C. § 794, and i s there fore entitled to reasonable accommodations such as modifie d tran sportation assistance, the IDEA has a specialized definition whic h Tracy simply does not meet.
20 U.S.C. § 1401(a)(1)(A) provides that:

The term "children with disabilities" means children-- (i) with . . . orthopedic impairments . . . ; and (ii ) who, by reason thereof, need specia l education and related services

.
(empha sis added). Under 34 C.F.R. § 300.7(b)(7), an "'[o]rthopedi c impairment' means a s evere orthopedic impairment that adversely affects a child's educational performance." Here, Ms. Schramm's educationa l performance clearly has not been adversely affec ted by her impairment, and she does not require special education programs. As the majorit y 1

### definition of special education is a particularly important one

under these regulations, since a child does not have a disability under this part unless he or she needs special education ." (emphasis added)).
18 acknowledges, Ms. Schramm is an "A"

### The majority assumes that, were the school district to deny 2 

### Ms. Schramm every reasonable accommodation to her disability, her academic performance would be adversely affected by her impairment. See Maj. Op. at 12. While I tend to believe that Ms. Schramm's academic success is more dependent on "her long hours of study" than on "these special measures," id. , I note that all of the accommodations provided to Ms. Schramm are mandated by § 504. Because Ms. Schramm will continue to receive these reasonable accommodations regardless of her status under the IDEA, I perceive no reason to disregard their existence and to speculate on what impact Ms. Schramm's impairments could have on her academic performance without them.
19 level student bound--unlike, I would venture, many of her nondisable d classm ates--for college. The last "special education" required by Ms

. Schrammwas for physical education; because her physical educatio n requi rements were met, the Yankton School District appropriatel y discontinued Ms. Schramm's special education program. 2

The purpo se of the IDEA is not to "require states to provide eac h handic apped child with the best possible education at public expense, " Pe tersen v. Hastings Pub. Sch. , 31 F.3d 705, 708 (8th Cir. 1994 ) (quota tions and citation omitted, emphasis in original), but rather t o "assure that all children with disabilities have available to them . . . a free appropriate public education which emphas izes special education and related services designed to meet their unique needs . . . ." 20 U.S.C. § 1400(c). Ms. Schramm has received a free appropriate education which ha s met her special needs. Ms. Schramm has achieved considerable success in her education, and the Yankton School District d etermined that Ms. Schramm was no longer in need of special education services. This

### As acknowledged by the school district, the issue in this 3 

### case is not whether the school district can choose to supply an eligible student with special education services. See Appellant's Reply Br. at 8 n.1 ("It is not the District's position that the District could refuse to provide special education to an eligible student under the guise of 'educational methodology' as alleged by Appellees; it is, however, the school's position that a student may be eligible for services pursuant to Section 504 but not for services pursuant to IDEA."). Rather, the issue is whether Ms. Schramm's orthopedic disability necessitates special education at all, a matter which clearly is within the school district's expertise. The school district has determined that Ms. Schramm only required special education services for her physical education needs, which have already been met. Despite acknowledging that "school authorities are better situated than courts to determine what educational practices and materials to include in a child's IEP," Maj. Op. at 14 n.9, the majority nevertheless mandates that the school district now provide a far broader range of special education services than found necessary by the school district. In light of this, I find the majority's apparent objection that it is not second-guessing the school district's assessment of Ms. Schramm's needs, see id. at 13-14 n.9, less than convincing.
20 determina tion was fully supported by the facts of this case, and by th e IDEA and its enabling regulations.

Because Ms. Schramm did not meet the regulatory definition o f disabled, the IDEA ha s not been violated by the Yankton School District's decisio n that Ms. Schramm was no longer entitled to special educatio n servi ces, and Ms. Schramm is not entitled to transition services. "I n assuring that the requirements of the [IDEA] hav e been met, courts must be careful to avoid imposing their view of preferable educational methods upo n the States." Hendric k Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 207 (19 82). Ignoring that "courts lack the specialized knowledge an d experie nce necessary to resolve persistent and difficult questions o f educat ional policy," id. at 208 (quotations and citation omitted), th e majority now second-guesses the Yankton School District's assessment of Ms

. Schramm's educational needs. I dissent. 3

### 21 A true copy.

Attest:

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