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 their

orthopedically impaired daughter, Tracy, to assist her passage from high

school to independent living at college. The district court determined

1

that the Yankton School District continued to be responsible for providing

Tracy with services under the Individuals with Disabilities Education Act

(IDEA), 20 U.S.C. § 1400 et. seq. The court also awarded the Schramms

attorney fees and costs as the prevailing parties. The school district

appeals from the judgment. We affirm with one modification.
2

I.

Tracy Schramm is now eighteen years old and will be a senior this

fall at Yankton High School. She was born with cerebral palsy and has been

classified as orthopedically impaired since the third grade. As a result

of her impairment, her hand strength is weak, her right hand is stiff and

lacks dexterity, her hand-eye coordination is limited, she writes and types

slowly, and she uses a walker for short distances and a wheelchair for

longer ones. She cannot function independently in her personal life. She

needs 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 school

district's special education program in the fall of 1979 as a preschool

student. From that time she began to receive special instruction and

related services tailored to her needs through an individualized education

program (IEP). Her last written IEP, dated May 10, 1993, included only

adaptive physical education, physical therapy, and transportation. Yankton

School District has provided her with several additional services, however,

not specified in her IEP. These include assistance in moving between

classes, getting on and off the school bus, going up and down stairs in the

school building, carrying a lunch tray, and setting up the saxophone she

plays in the band. The school district has also provided Tracy with

shortened writing assignments, photocopies of her teachers' class notes,

computers for certain classes, special instruction on how to type with one

hand, and four separate 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 to

participate in the regular classes at school. She has earned grades in the

"A" range by studying four to five hours a night,
3

five nights a week. In addition to her class work, 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, the

school district met with Tracy and her mother to discuss providing

transition services under IDEA. Transition services include instruction,

community experiences, and training in daily living skills that prepare

students about to leave high school for independent living, postsecondary

education, and community participation. See 20 U.S.C. § 1401(a)(19).

Because of Tracy's desire to attend college away from home, she wanted

specially designed instruction in driver's education, self-advocacy, and

independent living skills such as cooking and cleaning. The Schramms

received limited information from the school district but signed a

transition plan that placed nearly all responsibility for Tracy's

transition planning on them.

In early 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 Yankton High School Principal, Dr. David Bitter, expressing their

disagreement with the planned dismissal. Shortly thereafter, Tracy and her

parents met with Dr. Bitter and other school personnel to discuss the

matter. Physical education was not provided beyond the ninth grade, and

the district informed the Schramms that Tracy had satisfied its

requirements in that area. Since Tracy's last IEP had offered special

education only in physical education, the district felt Tracy no longer had

special education needs under IDEA. On the addendum attached to Tracy's

IEP that day, Tracy's mother wrote that the Schramms disagreed with the

district's decision and believed that Tracy remained eligible for special

education. Nevertheless, the district dismissed Tracy from its special

education program under
4

IDEA.

Two weeks later, the South Dakota Advocacy Services, a publicly

funded legal services group which had been working with the Schramms during

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 that

Tracy would have many transition needs requiring specialized instruction,

which the district had failed to consider properly. For these reasons, the

Schramms requested an impartial due process hearing.

A due process hearing was held before a state appointed hearing

examiner on August 22, 1994. See 20 U.S.C. § 1415(b)(2). The examiner

determined that Tracy remained eligible for IDEA benefits because the

specially designed instruction and related services not included in the May

1993 IEP were in fact necessary as a result of her orthopedic impairment.

In addition, the examiner stated that the transition services Tracy needed

because of her impairment also constituted a type of special education.

The examiner concluded that Tracy should receive the requested transition

services and that the district's March 1994 transition plan improperly

shifted responsibility for such transition planning to Tracy's parents.

Finally, the examiner noted that he was inclined to award attorney fees to

the Schramms but believed he lacked the authority to do so.

The school district appealed the examiner'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 education

under IDEA. Yankton School District v. Schramm, 900 F. Supp. 1182 (D.S.D.

1995). It based Tracy's eligibility under IDEA on its finding that her

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, and

at least annually thereafter. The district court also found that Tracy's

impairment adversely affected her educational performance because she would

not be able to benefit from regular classroom instruction without the

instructional modifications and related services that made it possible for

her to achieve. The court held that the March 1994 transition plan failed

to comply with IDEA requirements and ordered that a new plan be formulated

with specific goals and objectives to enable Tracy to attend college.

The district court went on to address the Schramms' request for an

award of compensatory education services and attorney fees. The Schramms

had requested extra months of transition services to compensate for the

failure to provide for appropriate transition services beginning in April

1994, when Tracy turned 16. The court denied the request on the basis

2

that Tracy would remain eligible for transition services until age 21 and

there were no egregious circumstances to justify such relief. The

Schramms' request for $7,633.71 in attorney fees and costs was granted,

however. The district had objected to an award of fees based on the

novelty of legal issues involved in the case, its good faith in applying

the statute, and the Schramms' free legal representation. 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 under

IDEA and that it abused its discretion in granting attorney fees to the

Schramms.
6

II.

The Individuals 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 free

appropriate public education." 20 U.S.C. § 1400(c); Board of Educ., Etc.

v. Rowley, 458 U.S. 176, 203 (1982). At the time of EHA's passage, an

estimated 1.75 million handicapped children were not receiving any

educational services and another 2.5 million were not receiving an

appropriate education. Rowley, 458 U.S. at 191. EHA was intended to

provide a "basic floor of opportunity" by opening the door of public

education to disabled children, with the hope of integrating them in

regular classrooms as much as possible. Id. at 192; Light v. Parkway C-2

School District, 41 F.3d 1223, 1227 (8th Cir. 1994); cert. denied, 115

S.Ct. 2557 (1995).

All children 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" means

"specially designed instruction . . . 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" include

physical therapy, "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).

A "free appropriate public education" under IDEA requires special

education and related services from preschool through secondary school,

tailored to a disabled child's unique needs by means of an "individualized

education program" or IEP. 20 U.S.C. § 1401(a)(18). An IEP is a written

statement developed by school officials, teachers, the parents, and the

child if appropriate,
7

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

§§ 1401(a)(20), 1413(a)(11). It must include the child's present

educational level and goals, specific educational services to be provided,

needed transition services, and criteria for progress evaluation. Id.

§ 1401(a)(20).

The transition services available under IDEA for disabled children

consist of

a coordinated set of activities for a student, designed within an

outcome-oriented process, which promotes movement from school to

post-school activities, including post-secondary education,

vocational training, integrated employment (including supported

employment), continuing and adult education, adult services,

independent living, or community participation. The coordinated set

of activities shall be based upon the individual student's needs,

taking into account the student's preferences and interests, and

shall include instruction, community experiences, the development of

employment and other post-school living objectives, and, when

appropriate, acquisition of daily living skills and functional

vocational evaluation.

Id. § 1401(a)(19). A statement of a child's needed transition services and

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).

IDEA provides significant procedural safeguards to ensure that

parents and guardians actively participate in their child's education. Id.

§ 1415; Rowley, 458 U.S. at 205. Parents help formulate their child's IEP

and are entitled to notice of proposed changes in the educational program.

20 U.S.C. § 1415(b)(1)(C). If disagreements arise, an impartial due

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 must

independently determine, based on a preponderance of the evidence, and

giving "due weight" to the state administrative proceedings, whether the

state has complied with IDEA's requirements. Rowley, 458 U.S. at 206;

Independent School District No. 283 v. S.D., 88 F.3d 556, 560 (8th Cir.

1996). A state must have adopted the "plan, policies, and assurances

required by the Act" to provide free appropriate public education for all

children with disabilities, and have created an IEP for the individual

child in conformance with the statutory requirements. Id. at 206 n.27.

If the content of an IEP is being challenged, a court must also assess

whether it is "reasonably calculated to enable the child to receive

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, quite narrow"). A district

court's findings of fact must be upheld unless clearly erroneous. Parkway

C-2 School District, 41 F.3d at 1229.

A.

The heart of the dispute in this case concerns whether Tracy still

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 her parents and Tracy, must create an IEP that provides for the

special education and related services she needs as a result of her

disability. Id. § 1401(a)(18); Rowley, 458 U.S. at 206 n.27. Because

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 portion

3

of an IEP, but whether an IEP comporting with statutory requirements needs

to be furnished. Since she became 16 in April 1994, Tracy's IEP would have

to include a statement of any needed transition services, the anticipated

dates for their initiation and duration, and, if appropriate, the

interagency responsibilities for them. Id. § 1401(a)(20). The types of

transition services that Tracy requested, such as driver's education, selfadvocacy, and independent living skills, are not beyond the statutory

scope. Id. § 1401(a)(19).

Tracy is a disabled child under IDEA because the orthopedic

impairment caused by her cerebral palsy still requires "special education

and related services." Id. § 1401(a)(1)(A). Special education is

4

"specially designed instruction . . . 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 teachers 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 the

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 receives

transportation to school by a lift bus, mobility assistance in the school

building, and assistance in carrying her lunch tray and setting up her

saxophone for band practice. The district also provides separate textbooks

at different locations so that Tracy need not carry them with her. These

supportive services comport with Congressional intent to integrate children

with disabilities, like Tracy, with children who are not disabled. See

5

Rowley, 458 U.S. at 202-03; Parkway C-2 School District, 41 F.3d at 1227.

Although Yankton School District acknowledges that Tracy has an

orthopedic impairment, it argues that a regulation adopted under IDEA

forecloses her eligibility because her impairment does not adversely affect

her educational performance. See 34 C.F.R. § 300.7(b)(7) (an orthopedic

impairment is "a severe orthopedic impairment that adversely affects a

child's educational performance"). In its view, Tracy was eligible for

special education in her last IEP only because her disability affected her

performance in physical education. Once she completed ninth grade, the

district was no longer required to provide her with physical education, and

her need for special education thus ended. Since Tracy receives excellent

grades, the district reasons that Tracy's impairment does not affect her

ability in any other area, which means she is not disabled within the

meaning of IDEA. It cites
11

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

Rowley turned on the content of an eligible child's IEP. The issue

there was whether a particular education service had to be furnished, that

is whether a hearing-impaired student was entitled to a sign language

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 grade. Id. at 209-10. The

Supreme Court reasoned that her performance showed that her IEP already

provided sufficient educational benefit without the requested interpreter.

Id. The focus on her performance occurred in the context of deciding

whether adequate services were being provided. In the case before the

court the school district determined that Tracy was not eligible for any

IDEA services after she finished ninth grade. The issue here is not

whether current IDEA services are adequate, but whether Tracy remains

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 opinion's discussion of the

statute's background is favorable to its position. Rowley noted that

IDEA's predecessor, EHA, required states to educate handicapped children

who were receiving no education or an inadequate one. 458 U.S. at 181.

In the district's view, Tracy can receive an adequate education without

IDEA services despite her handicap. Tracy's continued eligibility under

IDEA does not rest just on the presence of an orthopedic impairment,

however. Her eligibility continues because that impairment requires

specially designed instruction in the classroom and mobility assistance and

other related services 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 definition requires that the impairment adversely affect a child's

educational performance, but the regulation does not elaborate on what is

meant by an adverse affect on performance. The record here establishes

that but for the specialized instruction and services provided by the

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 specially designed instruction in one-handed typing and shortened

writing assignments, Tracy would have difficultly taking notes or

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 and her long hours of study. Her impairment would adversely

affect her performance in the regular classroom setting absent the

personalized 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 requirements. 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).

 The 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, extra

textbooks, mobility assistance between classes, modified writing

assignments, and a modified chemistry lab station. It argues, however,

that it provides them under Section 504 of the Rehabilitation Act, 29

U.S.C. § 794, not under IDEA.

Although an individual who is eligible for services under IDEA may

also qualify for assistance under the Rehabilitation Act of 1973, the

school district must comply with both statutes. Section 504 of the

Rehabilitation Act prohibits discrimination on the basis of handicap in a

variety of 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 provide a free appropriate public education to qualified handicapped

persons, but only IDEA requires development of an IEP and specifically

8

provides for transition services to assist students prepare for a post-high

school environment. See 20 U.S.C. § 1401(a)(20). Under the statutory

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 mean

they are not "specially designed instruction" under IDEA. Since Tracy

still requires and receives special education and related services as

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 school district also contends that the district court erred in

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 award of compensatory education

in the area of transition services. In denying any compensatory award, the

court reasoned that Tracy'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 free

appropriate public education 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 South 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 age of 21. SDCL § 13-28-5.

Tracy plans on graduating from high school at the end of the 1996-97 school

year, at which time she will be 19 years old. Assuming that she graduates

as planned, the district is correct that it will not be responsible for

providing her with transition 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 abused

its discretion in awarding the Schramms attorney fees and costs. It points

out that the Schramms received free legal representation by a publicly

funded group called the South Dakota Advocacy Services, and contends that

an award penalizes it for grappling with complex legal issues in the

attempt to comply with IDEA requirements.

Under the statute, a court has discretion to award reasonable

attorney fees 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 prevails

if it succeeded on any significant issue which achieved some of the benefit

it sought. Borengasser 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 award of attorney fees and costs to the Schramms was not an

abuse of discretion. The Schramms were the prevailing parties because they

succeeded on the issues 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 fees. 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 for

transition services and other benefits until she graduates from high school

(or reaches the age of 21 without having graduated). With this

modification of the district court's disposition, the judgment is affirmed.

MAGILL, Circuit Judge, dissenting.

I respectfully dissent. The real issue of this case is who is to

foot the bill for Ms. Schramm's transition from high school to college: Ms.

Schramm and her parents, or the Yankton School District. Ms. Schramm is

a demonstrably bright, academically gifted student who requires no special

education programs to excel in her course work. This case therefore

presents the legal question of whether a student who is capable of

achieving academic success without special education programs is

nevertheless entitled to transition services under the Individuals with

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 intended to mandate this delivery

of patently unnecessary services.

The majority declares that "Tracy is a disabled child under IDEA

because the orthopedic impairment caused by her cerebral palsy still

requires 'special education and related services.'" Maj. Op. at 9 (quoting

20 U.S.C. § 1401(a)(1)(A)). I disagree with this pivotal conclusion.

While Tracy is undeniably "disabled" under various definitions, including

Section 504 of the Rehabilitation Act of 1974, 29 U.S.C. § 794, and is

therefore entitled to reasonable accommodations such as modified

transportation assistance, the IDEA has a specialized definition which

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 special

education and related services.

(emphasis added). Under 34 C.F.R. § 300.7(b)(7), an "'[o]rthopedic

impairment' means a severe orthopedic impairment that adversely affects a

child's educational performance." Here, Ms. Schramm's educational

performance clearly has not been adversely affected by her impairment, and

she does not require special education programs. As the majority

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 nondisabled

classmates--for college. The last "special education" required by Ms.

Schramm was for physical education; because her physical education

requirements were met, the Yankton School District appropriately

discontinued Ms. Schramm's special education program.2

The purpose of the IDEA is not to "require states to provide each

handicapped child with the best possible education at public expense,"

Petersen v. Hastings Pub. Sch., 31 F.3d 705, 708 (8th Cir. 1994)

(quotations and citation omitted, emphasis in original), but rather to

"assure that all children with disabilities have available to them . . .

a free appropriate public education which emphasizes 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 has

met her special needs. Ms. Schramm has achieved considerable success in

her education, and the Yankton School District determined 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

determination was fully supported by the facts of this case, and by the

IDEA and its enabling regulations.

Because Ms. Schramm did not meet the regulatory definition of

disabled, the IDEA has not been violated by the Yankton School District's

decision that Ms. Schramm was no longer entitled to special education

services, and Ms. Schramm is not entitled to transition services. "In

assuring that the requirements of the [IDEA] have been met, courts must be

careful to avoid imposing their view of preferable educational methods upon

the States." Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176,

207 (1982). Ignoring that "courts lack the specialized knowledge and

experience necessary to resolve persistent and difficult questions of

educational policy," id. at 208 (quotations and citation omitted), the

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.