United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-4280EM

_____________ Allen DeBord, Individually and as next * friend for Kelly DeBord; Debra DeBord, * Individually and as next friend for Kelly * DeBord, *
* Appellants, * Appeal from the United States

* District Court for the Eastern
v. * District of Missouri.
* Board of Education of the Ferguson- * Florissant School District; Shirley * Salmon; Joyce Dreimeier; Cindy * Ormsby, *
* Appellees. *

_____________ Submitted: September 11, 1997

Filed: October 9, 1997

_____________ Before FAGG, WOLLMAN, and LOKEN, Circuit Judges.

_____________ FAGG, Circuit Judge.

In this student disability discrimination case, parents Allen and Debra DeBord appeal the district court’s grant of summ ary judgment to the Board of Education of the Fergus on-Florissant

School District and three individual defendants (collectively th e school district). We affirm.-2-

The DeBords’ eight-year-old daughter, Kelly, has attention deficit hyperactivity dis order (ADHD). To treat her condition, Kelly’s doctor prescribed one hundre d milligrams of sustained release Ritalin when Kelly arises in the morning, and fort y milligrams of the drug at 3:00 in the afternoon while Kelly is still at school. The school district provides health services to students, including administration of prescription dru gs during school hours, but the school district has a written policy agains t adminis tering prescription drugs in an amount exceeding the recommended dail y dosage listed in the Physicians’ Desk Ref erence (PDR). Joyce Dreimeier, the nurse at Kelly’s elementary school, refused to give Kelly her afternoon dose because Kelly’ s daily intake of Ritalin exceeds the sixty milligram daily recommendation listed in the PDR. The De Bords appealed to the Board of Education, providing a letter fro m Kelly’s doctor confirming he r prescription, some medical information about high dose use of Rital in, and an offer to sign a waiver of liability. The school board declined to direct administration of Kelly’s prescription by the school, even though Kelly’s higher dosage is necessary to treat her effectively, Kelly suffers no side effects, and no studies show whether higher dosages are harmful. Instead, the school board offered several alternatives, including alteration of Kelly’s class s chedule to permit early dismissal and home administration of both of Kelly’s doses, or administration of Kelly’s afternoo n dose at school by one of her parents or someone designated by them.

Un happy with the school district’s stance, the DeBords brought this actio n al leging the school district’s refusal violates section 504 of the Rehabilitation Act o f 1973, 29 U.S.C. § 794 (1 994); Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12165 (1994); and 42 U.S. C. § 1983 (1994). The district court granted summary judgment to the school district. The district c ourt concluded the school district’s refusal was not based on K elly’s disability, but on the district’s policy stemming from concerns about potential harm to students and liability. The distric t court also concluded the school district reasonably accommodated the DeBords.-3-

W e review the grant of summary judgment de novo. See Smith v. City of Des Mo ines , 99 F.3d 1466, 1468 (8th Cir. 1996). We affirm if the record, viewed in th e light most favorable to the DeBords, shows there is no genuine issue of material fact and the school di strict is entitled to judgment as a matter of law. See id. at 1469. Before we turn to the DeBords’ contentions, we examine the discrimination law that guides us.
Both the Rehabilitation Act and the ADA p rohibit discrimination on the basis of disa bility. The Rehabilitation Act provides: “No otherwise qualified individual with

a disability . . . shall, solely by reason of her or his disability, be excluded from th e participation in, b e denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a ) (1994). Under r egulations implementing the Rehabilitation Act, a recipient of federal funds “that operates a public elementary or secon dary education program shall provide a free a ppropriate public education to each qualified handicapped person,” 34 C.F.R. § 104.33(a) (1996), including “the provision of regular or special education and related aids and services,” id. § 104.33(b)(1). A recipient must give disa bled students an equal opportunity to participate in nonacademic and extracurr icular services, including health

se rvices. See id. § 104.37(a). The Rehabilitation Act requires a recipient of federa l fu nds to provide “an otherwise qualified handicapped individual . . . with meaningful access to the benefit that the grante e offers.” Alexander v. Choate , 469 U.S. 287, 301 (198 5). To assure meaningful access, the grantee may have to make reasonabl e
accom modations in its program or benefit. See id. & n.21; Alexander v. Pathfinder , Inc. , 91 F.3d 59, 62 (8th Cir. 1996); Lloyd v. Housing Auth. , 58 F.3d 398, 3 99 (8th Cir. 1995).

After

the Rehabilitation Act had been law for several years, Congress enacted the ADA. Title II of the ADA, applicable to public entities including public schools, states that “no qual ified individual with a disability shall, by reason of such disability, . . . be denied thebenefits of the services, programs, or activities of a public entity, or-4-

b e subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (1994). Title II regulations require a public entity to “make reasonable modifications in policies . . . when the modifications are necessary to avoid discrimination on the basis of disability, unles s the public entity can demonstrate that making the modifications woul d fundamen tally alter the nature of the service.” 28 C.F.R. § 35.130(b)(7) (1996)

. Congress intended Title II and its implementing regulations to be consistent with the Rehabilitation Act and its regulations. See Pottgen v. Mis souri St. High Sch. Activities Ass’n , 40 F.3d 926, 930 (8th Cir. 1994); McPherson v. Michigan High Sch. Athletic Ass’n, Inc. , 119 F.3d 453, 459-60 (6th Cir. 1997) (en banc); Urban v. Jefferson County Sch. Di st. R-1 , 89 F.3d 720, 727-28 (10th Cir. 1996). To succeed on their claim s under eithe r Act, the DeBords must show the school district refused to administe r Kelly’s medication b ecause of her disability. See Davis v. Francis Howell Sch. Dist. , 104 F.3d 204, 206 (8th Cir. 1997); McPherson , 119 F.3d at 460.

The DeBor ds argue the school district’s refusal to provide the nonacademi c service of drug administration denies Kelly a free appropriate education becaus e without he r full dosage of Ritalin, she cannot benefit from the school’s educationa l progr am. See 34 C.F.R. §§ 104.33(a), .33(b)(1) (1996). The administrative agenc y charged with enforcing the Rehabilitation Act in school districts has held that when a “handic apped student[] requires the administration of medication in order to benefi t from his or her educational program, the [schoo l district] is obligated to ensure that the medication is administered.” Berlin Brothersvalley (PA) Sch. Dist. , OCR Region III, 353:124 (Dec. 2 3, 1988). The agency concluded the Berlin district’s policy granting school officials unspecified discretion to decline administration of medication an d requiring the student’s parents to release the district from liability violated 34 C.F.R. §§ 104.33(a) an d (b)(1). The DeBords rely heavily on this agency interpretation, and say w e must give it substantial deference. See Blum v. Bacon , 457 U.S. 132, 14 1 (1982).-5-

Unli ke the drug administration policy in Berlin , the policy here contains a n objective standard limiting administration of prescription medication only when th e prescription exceeds the maximum dosage recommended in the PDR. There is n o evid ence that the school district had disabilities in mind when formulating o r implementing its policy. The DeBords do not question the truthfulness of the school district’s expressed motivations of fear of student harm and potential liability. Instead, the DeBords say the fears are invalid. Whether or not ill-founded, however, the school di strict’s fears are unrelated to disabilities or misperceptions about them. The policy is neut ral; it applies to all students regardless of disability. A student’s exces s prescription, not the student’s disability, prevents the student from receiving medication from the school nurse. S ee McPherson , 119 F.3d at 460-61. Although Kelly requires Ritalin to treat her disability, it is undisputed that the reason for Kelly’s high dosage is prob ably her metabolism, not the severity of her disability. Kelly’s own doctor an d oth ers stated the amount of 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.

The DeBords argue Kelly was treated differently than other students, bu t students who received their me dication at school did not have prescriptions exceeding the PDR’s recommended daily dosage . It is undisputed that the school district did not knowingly administer prescription drugs to any student, disabled or not, in excess of the PDR’s recommendation. Disparate treatment is not the on ly way to prove unlawful discrimination, but the record here offers no other basis to infer the school board’ s actions were based on Kelly’s disability. See Miners v. Cargill Communications, Inc. , 113 F.3d 820, 824 n.7 (8th Cir. 1997). The DeBords have not tried to show the policy has the effect of discriminating against the disabled or the severely disabled. On the

recor d here, the school board’s facially neutral policy does not distinguish betwee n those who will re ceive their full prescription dose and those who will not on the basis of any trait that the disabled or severely disabled are less or more likely to possess. See Choate , 469 U.S. at 302 (rejecting Rehabilitation Act claim that state’s fourteen-day-6-

limit on Medicaid

services had disparate impact on the disabled). In other words, the DeBords have not shown disabled students are more likely than nondisabled students to require prescription dosages exceeding the PDR’s recommendation. Althoug h Congress was concerned about the discrim inatory effects of “overprotective rules and policies” on the disabled, 42 U.S.C. § 12101( a)(5), nothing here suggests the policy or its application has the purpose or effect of discriminating against disabled students.

The DeBords also rely on 42 U.S.C. § 12182(b)(2)(A)(ii), a Title III statut e defini ng discrimination to include the failure to make reasonable modifications i n policies. The DeBo rds assert the school district’s failure to waive its policy for Kelly violates this statute. Title III of the ADA applies to private entities providing publi c accommodations, however, not to public entities. See 42 U.S.C. §§ 12181-82 ; Sandison , 64 F.3d at 1036. Entities subje ct to Title III include private schools, but not public ones. See 42 U.S.C. § 12181(7); 28 C.F.R. § 36.104. It is unclear whether § 12182(b)(2)(A)(ii) from Title III appl ies in a Title II case. See 1 Henry H. Perritt, Jr., American s with Disabilities Act Handbook § 5.3, at 201-02 & n.21 (3d ed. 1997 ) (preamble to ADA regulations says Title II intends to incorpo rate only those provisions of Titles I and III that are consistent with Rehabilitation Act regulations); Innovative Health Sy s., Inc. v. City of White Plains , 117 F.3d 37, 47 (2d Cir. 1997) (Heaney, J., sitting by designation) (ADA’s legislative history states Title II’s prohibitions are to be identical to prohibitions of Titles I and III; no intent to excuse similar discriminatory conduct by public entities). Title II does not define discrimination as including th e failure to make reasonable modificat ions, but a Title II regulation states a public entity must make reasonable modifications in policies when necessary to avoi d discrimin ation. See 28 C.F.R. § 35.130(b)(7) (1996); see also Weinreich v. Lo s Angeles County , 114 F.3d 976, 978-79 (9 th Cir. 1997) (absent discrimination on basis of disability, no du ty under this regulation to make reasonable modifications). On the other hand, public entities discr iminate in violation of the Rehabilitation Act if they do not make rea sonable accommodations to ensure meaningful access to their programs. See Choate , 469 U.S. at 301.-7-

We n eed not resolve whether 42 U.S.C. § 12182(b)(2)(A)(ii) applies in a Title II case, or whether a reasonable modification or accommodation requirement applies absent a sep arate showing of discrimination. Even if either or both apply, we believe the school board's proposals to establish workable s chedules so Kelly's family can give her the prescribed dosages of Ritalin satisfy these requirements, and anyway, th e waiver requested by the DeB ords is not a reasonable modification or accommodation. There is no precise reasonableness test, but an accommodation is unreasonable if i t eith er imposes undue financial or administrative burdens, or requires a fundamenta l alte ration in the nature of the program. See Pottgen , 40 F.3d at 930; Staron v

. McDonald’s Corp. , 51 F.3d 353, 356 (2d Cir. 1995). Although the school district has not made the assertion, adjudication of waiver requests would impose an undu e administrative burden o n the school district to verify the safety of an excess dosage in each individual case. See Pottgen , 40 F.3d at 931. At this time, no one knows what the long term effects of high doses of Ritalin might be. A waiver of liability might not be ef fective, and statutory immunity might not apply. These concerns may b e speculati ve, but they are not unreasonable. Significantly, the school district is no t preven ting Kelly from receiving the medicine she needs for learning. The schoo l district offered to alter Kelly’s class sched ule to permit home administration of Kelly’s med icine, or to allow Kelly’s parents or their designee to administer her medicine a t school. Kelly’s parents are able to give Kelly her schooltime dose. Like the district court, w e conclude the school district reasonably accommodated Kelly’s ADHD as a matter of law.

Because the school district did not discrimi nate against Kelly on the basis of her disa bility as a matter of law, the district court properly granted summary judgment to the school district on the DeBords’ Rehabilitation Act and ADA claims. The failure to show a violation of the Rehabilitation A ct or the ADA dooms the DeBords’ § 1983 claims based on thos e federal laws. See Hoekstra v. Independent Sch. Dist. No. 283 , 103 F.3d 624, 626 (8th Cir. 1996), cert. denied , 117 S. Ct. 1852 (1997); Pottgen , 40 F.3d at 931. The DeBords’ § 1983 claim based on a violation of the Fourteenth-8-

Ame ndment’s Equal Protection Clause also fails. The DeBords did not show th e school district treated Kelly differently from other children with prescr iptions exceeding the PDR’s recommended dosage, and the school district’s refusal to administer th e
excess dose is rationally related to the legitimate state interest of protecting students’ health. See Klinger v. Department of Corrections , 31 F.3d 727, 731 (8th Cir. 1994).

We affirm the district court.

A true copy.

Attest:

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