                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 97-3258
                                    ___________

Jacob Todd, by Father, Jim Todd,        *
and Mother, Patsy Todd,                 *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Arkansas.
Elkins School District No. 10; John     *
R. Smith; Jane Vaught; Marsha           *     [UNPUBLISHED]
Wenzel; Jana Eaton; Ginny Kobe,         *
                                        *
             Appellees.                 *
                                   ___________

                          Submitted: April 17, 1998
                              Filed: April 27, 1998
                                  ___________

Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

       Minor Jacob Todd, through his parents Jim and Patsy Todd, appeals the district
court&s1 grant of summary judgment to defendants in the Todds& action claiming
violations of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and 42
U.S.C. § 1983. In a prior opinion, we affirmed the district court&s denial of qualified


      1
        The Honorable H. Franklin Waters, Chief Judge, United States District Court
for the Western District of Arkansas.
immunity to defendants, and directed the district court to dismiss the Todds& claim for
damages under the Individuals with Disabilities Education Act (IDEA). See Todd v.
Elkins School Dist. No. 10, No. 96-1520 (8th Cir. Jan. 10, 1997) (unpublished per
curiam).

       According to the Todds, school officials violated section 504 by acting with
“thoughtless indifference and an intentional disregard” for Jacob&s safety. The Todds
alleged that Jacob was qualified to “receive the benefits and participate in the programs
provided” by defendants, and that the defendants excluded Jacob from these benefits
“solely because of his disability.”

       Undisputed facts demonstrate that Jacob, a fourth grade special education
student with muscular dystrophy, fell from his unbuckled wheelchair and broke his leg
while being pushed to the playground by a fellow student. The Individualized
Education Plan developed for Jacob did not provide for an adult aide, but one was
available to assist Jacob. Defendants, however, at times elected to have Jacob’s peers
transport Jacob to recess.

      The district court granted the defendants& summary judgment motion as to both
claims. The Todds appeal, suggesting that the district court applied the improper
standard for proving a section 504 claim.

       We have stated that section 504 does not create “general tort liability for
educational malpractice,” but rather, requires a showing of either bad faith or gross
misjudgment to demonstrate a violation in the context of the education of handicapped
children. See Monahan ex rel. Monahan v. Nebraska, 687 F.2d 1164, 1170-71 (8th
Cir. 1982), cert. denied, 460 U.S. 1012 (1983). We have also emphasized that “[s]o
long as the state officials involved have exercised professional judgment, in such a way
as not to depart grossly from accepted standards among educational professionals, we
cannot believe that Congress intended to create liability under § 504.” Id. at 1171.

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“[L]iability may be imposed only when the decision by the professional is such a
substantial departure from accepted professional judgment, practice or standards as to
demonstrate that the person responsible actually did not base the decision on such a
judgment.” Id. (quoting Youngberg v. Romeo, 457 U.S. 307, 323 (1982)).

       Applying this standard, and viewing the evidence in the light most favorable to
the Todds, we agree with the district court that, as a matter of law, the defendants did
not discriminate against Jacob based on his disability in violation of section 504 of the
Rehabilitation Act. Evidence before the district court and undisputed by the Todds,
showed that the defendants, in exercise of their judgment, utilized Jacob&s peers for
transportation in an effort to encourage peer relationships and minimize the isolation
associated with Jacob&s disabilities. While defendants may have misjudged Jacob’s
transportation needs, we agree that their actions did not amount to such a substantial
departure from accepted professional judgment, practice or standards as to demonstrate
that they did not base their decision on such a judgment. See Hoekstra ex rel. Hoekstra
v. Independent Sch. Dist. No. 283, 103 F.3d 624, 626-27 (8th Cir. 1996) (applying
Monahan standard to Americans with Disabilities Act claim; three month delay in
providing elevator key to student for whom using stairs was painful did not constitute
bad faith or gross misjudgment; defendants claimed delay was occasioned by process
of making elevator safe) cert. denied, 117 S. Ct. 1852 (1997); Heidemann v. Rother,
84 F.3d 1021, 1031-32 (8th Cir. 1996) (no genuine issue of material fact as to § 504
violation, and defendants entitled to qualified immunity as a matter of law where
parents claimed school officials punished their child based on her disability by
wrapping her, i.e., binding her body with a blanket).

        The Todds' section 1983 claim fails as well. See DeBord ex rel. DeBord v.
Board of Educ., 126 F.3d 1102, 1107 (8th Cir. 1997)(failure to show Rehabilitation Act
or violations of § 1983 “dooms” claims based on those federal laws), petition for cert.
filed, 66 U.S.L.W. 3532 (U. S. Feb. 06, 1998) (No. 97-1297).


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Accordingly, we affirm the judgment of the district court.



A true copy.

      Attest:

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




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