                     United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 02-2283
                                  ___________

Roy Sonkowsky, on behalf of his           *
minor son, Roy “Rocky” Sonkowsky,         *
                                          *
             Plaintiff - Appellant,       *
                                          * Appeal from the United States
       v.                                 * District Court for the District
                                          * of Minnesota.
Board of Education for Independent        *
School District No. 721; Independent      *
School District No. 721; Richard          *           [PUBLISHED]
Wilson, as an individual and in his       *
official capacity; Kristina Madigan,      *
as an individual and in her official      *
capacity; Joan Anderson, as an            *
individual and in her official capacity; *
                                          *
             Defendants - Appellees.      *
                                          *
                                     __________

                          Submitted: February 14, 2003
                              Filed: May 5, 2003
                                 ___________

Before WOLLMAN, HEANEY, and MELLOY, Circuit Judges.
                         ___________

PER CURIAM.
      In this appeal, Roy Sonkowsky challenges the district court’s1 adverse grant of
summary judgment. Sonkowsky, on behalf of his son, Roy “Rocky” Sonkowsky,
alleged free speech, due process and equal protection violations under the First and
Fourteenth Amendments of the United States Constitution, disability discrimination
under the Minnesota Human Rights Act (MHRA), and claims against Independent
School District (ISD) No. 721 for failure to train and supervise its employees. We
affirm.


                                          I.


       All of Sonkowsky’s claims revolve around Rocky’s treatment in conjunction
with a fourth-grade curriculum program called “Gridiron Geography.” The program
was designed to foster enthusiasm for American geography by incorporating
professional football concepts and trivia into class lessons. Rocky was an avid Green
Bay Packers fan and whenever possible he worked the Packers into his school
projects. Some projects did not allow for personal preference, however, and required
students to follow specific directions. For one assignment, Rocky refused to color a
picture of a football player in the purple and gold team colors of the Minnesota
Vikings, as directed by his teacher. When he turned in his picture in green and gold
Packers colors, he was told to redo it following directions. When he again turned in
a green and gold drawing, the teacher refused to accept it and would not hang it with
the others.


      As part of the Gridiron program, Rocky’s class participated in a statewide
contest in which students maintained a geography bulletin board. Prizes for the
winning class included a field trip to Winter Park, the Vikings’ practice facility, and

      1
        The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.

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lunch with Vikings player Cris Carter. As part of the contest, Rocky’s class had its
picture taken and sent to the Minnesota Vikings. Rocky was told he could not wear
his Packers jersey in the photo, although he was allowed to hold his Packers folder.
Rocky’s class won the contest and the trip to Winter Park but Rocky was not
permitted to attend. As reasons for his exclusion from the field trip, Rocky’s teachers
cited his 25 behavioral deficiencies over the previous months, his increasingly
disruptive behavior during the week before the trip, and their concern that he would
embarrass the school with disrespectful behavior and insults directed at the Vikings.
Around this same time, the class celebrated its Gridiron victory by riding on a float
in a local parade–but again Rocky did not participate. It is undisputed that Rocky did
not turn in the parental authorization form required to participate in the parade.
Rocky claims, however, that he was told he would not be allowed to ride on the float
if he showed up wearing his Packers jersey or jacket. According to Rocky, he had no
other jacket and thus could not attend the parade.


                                          II.


      We review a district court’s grant of summary judgment de novo, giving the
nonmoving party the most favorable reading of the record as well as the benefit of all
reasonable inferences that arise from the record. Gentry v. Georgia-Pacific Corp.,
250 F.3d 646, 649 (8th Cir. 2001). “Summary judgment ‘is appropriate where one
party has failed to present evidence sufficient to create a jury question as to an
essential element of its claim.’” Id. (quoting Whitley v. Peer Review Sys., Inc., 221
F.3d 1053, 1055 (8th Cir. 2000)).


      We agree with the district court that Sonkowsky has failed to establish the
deprivation of a constitutional right, an essential element of his § 1983 claims. See
42 U.S.C. § 1983 (2000); Lockridge v. Bd. of Trustees of the Univ. of Arkansas, 315


                                         -3-
F.3d 1005, 1009 (8th Cir. 2003). Assuming Rocky, as a fourth-grader, has a
constitutionally protected right to free expression at school, that right was not
violated when school officials required adherence to directions on school projects.
Rocky’s preference for the Packers does not trigger heightened protection, and thus
the teachers’ reasonable curriculum-based decisions with regard to appearance, and
attendance, at school-related functions will not support a § 1983 claim. Sonkowsky
has presented no evidence to refute the school’s explanations for its decisions
regarding Rocky’s participation in school activities, nor is there a supportable
inference that Rocky was disciplined, penalized, or discriminated against because of
his passion for Green Bay. Rather, the record overwhelmingly indicates that Rocky’s
conduct, independent of any expressive ideas, was the focus of the school’s concern.


       We also agree with the district court’s resolution of the state claims. Under the
MHRA, it is an unfair discriminatory practice for an educational institution to
discriminate against any person because of his disability. Minn. Stat. § 363.03 Subd.
5(1) (2001). To prevail on a disability discrimination claim, a plaintiff must show
that: (1) he is a qualified individual with a disability; (2) he was excluded from
participation in a public entity’s services, programs or activities; and (3) such
treatment was because of his disability. Moubry v. Indep. Sch. Dist. No. 696, 9 F.
Supp. 2d 1086, 1109 (D. Minn. 1998) (listing elements); see also Roberts v.
KinderCare Learning Ctrs., Inc., 86 F.3d 844, 846 n.2 (8th Cir. 1996) (applying ADA
analysis to MHRA claim in context of educational services for disabled children). In
the context of educational services, liability does not attach absent a showing of bad
faith or gross misjudgment on the part of the school officials. Hoekstra v. Indep. Sch.
Dist. No. 283, 103 F.3d 624, 627 (1996). It is undisputed that Rocky has ADHD and
that he was excluded from the field trip to the Vikings arena. However, Sonkowsky
has presented no evidence to suggest that the exclusion was based on Rocky’s
disability rather than on his documented misconduct in the weeks preceding the trip.



                                          -4-
Moreover, the record is devoid of any evidence that would support a finding of gross
misjudgment or bad faith on the school’s part.


      For these reasons, and those set out in the district court’s thorough and well-
reasoned opinion, we affirm the grant of summary judgment in the defendants’ favor.


      A true copy.


             Attest:


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




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