                           ___________

                           No. 96-1785
                           ___________

Rebecca Hoekstra, by and         *
through her parents, John and    *
Sandra Hoekstra,                 *
                                 *
          Plaintiff-Appellant,   *
                                 *   Appeal from the United States
     v.                          *   District Court for the
                                 *   District of Minnesota.
Independent School District,     *
No. 283,                         *
                                 *
          Defendant-Appellee.    *

                           ___________

                  Submitted:    November 20, 1996

                      Filed: December 23, 1996
                           ___________

Before BEAM, LAY and LOKEN, Circuit Judges.

                           ___________

LAY, Circuit Judge.


     Rebecca Hoekstra is a fourteen-year-old Minnesota public
school student who suffers from achondroplasia and a central
auditory processing disfunction.      These physical disabilities
qualify her for special education in her school district,
Independent School District No. 283 (the District). Rebecca, by
and through her parents, John and Sandra Hoekstra (the Hoekstras),
filed suit in federal district court against the District asserting
(1) the District deliberately deprived Rebecca of a free
appropriate   public   education   under   the   Individuals   with
Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (IDEA), thus
violating 42 U.S.C. § 1983, and (2) the District denied Rebecca
independent access and use of a lift elevator during part of the
1993-94 school year, in violation of the Americans with
Disabilities Act (ADA). The district court1 granted the District's
summary judgment motion on both claims, holding the Hoekstras
"failed to produce any evidence sufficient to satisfy at least one
essential element of either her § 1983 claim or her ADA claim."
Hoekstra v. Independent Sch. Dist. No. 283, 916 F. Supp. 941, 949
(D. Minn. 1996). The Hoekstras appeal. We affirm.

BACKGROUND


     In Rebecca's fourth grade year,2 the Hoekstras disagreed with
her educational program. The parties were unable to resolve their
disputes, and in February 1994, the Hoekstras requested a due
process hearing to determine whether the District had provided
Rebecca with a free appropriate public education as guaranteed by
the IDEA.


     The hearing was held on ten non-consecutive days in March and
April 1994.     The hearing officer (HO) determined Rebecca's
educational program was procedurally flawed; nonetheless, it did
not rise to the level of a denial of a free appropriate public
education under the IDEA. The Hoekstras appealed the HO’s decision
to a hearing review officer (HRO), who reversed the HO, finding an
IDEA violation. See In re Indep. Sch. Dist. No. 283, 22 IDELR 47,
55 (Minn. Aug. 1, 1994).    The HRO determined that to cure the
violation, the District must, among other things, provide Rebecca
with 108 hours of compensatory tutoring. Neither party appealed
the HRO decision.


     Rebecca's compensatory tutoring began November 9, 1994.   The

    1
     The Honorable Paul A. Magnuson, United States District Judge
for the District of Minnesota.
     2
      In 1992, when Rebecca was in the third grade, the Hoekstras
disagreed with the educational services the District provided her.
The Hoekstras and the District settled the dispute without a formal
administrative hearing.

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District claims it began searching for a tutor early in September,
but experienced difficulty in finding someone to fill the position.
At the end of the academic year, the District had provided 87 of
the 108 hours of tutoring to Rebecca. She received an additional
12.5 hours during the summer of 1995, and her parents refused the
District's offer to provide the remaining 8.5 hours.

Section 1983
     The Hoekstras' § 1983 claim asserts that the District's delay
in providing Rebecca with tutoring constituted a deliberate
deprivation of her right to a free appropriate public education
under the IDEA. The district court determined the Hoekstras had
not met their burden of proving the District acted under any
official policy or custom when it delayed her tutoring.         The
Hoekstras urge us to reverse this determination. It appears to us,
however, that the Hoekstras cannot obtain money damages for
Rebecca, and it is therefore unnecessary for us to reach the issues
underlying the § 1983 claim.


      In their Complaint, the Hoekstras claim Rebecca has "suffered
educationally from Defendants' actions" and requests that "the
Defendants be ordered to pay damages of no less than $50,000.00"
Compl. at 4.    Since the district court filed its opinion, this
court clarified the law on damages available under the IDEA. In
Heidemann v. Rother, the plaintiff sought damages in a § 1983
action based on alleged violations of the IDEA.     84 F.3d 1021,
1032-33 (8th Cir. 1996). This court, agreeing with Sixth Circuit
precedent, held that "plaintiffs' claims based upon defendants'
alleged violations of the IDEA may not be pursued in this § 1983
action because general and punitive damages for the types of
injuries alleged by plaintiffs are not available under the IDEA."
Id. at 1033; see Crocker v. Tennessee Secondary Sch. Athletic
Ass’n, 980 F.2d 382, 386 (6th Cir. 1992) ("[W]e do not find case
authority interpreting the [IDEA] to allow an award of general
damages for emotional injury or injury to a dignitary interest.").

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     Damages are the Hoekstras' only possible avenue to relief in
this case. First, the Hoekstras' Complaint requests only damages.
Second, the facts as presented here preclude the possibility of
compensatory services or reimbursement for such services.       The
District has provided Rebecca with all but 8.5 hours of tutoring,
and has offered to provide the remainder, an offer which the
Hoekstras rejected.    Thus, the Hoekstras have refused the only
remedy allowed under the IDEA. Finally, the Hoekstras' attorney
conceded at oral argument that Heidemann precluded relief in the
form of damages, and admitted she was bringing the claim "on
principle." Under these circumstances, it is clear that we cannot
redress the Hoekstras' claim. The Hoekstras have failed to state
a claim under the IDEA, and thus have failed to state a claim under
§ 1983. Therefore, though for different reasons, we affirm the
district court's dismissal of the Hoekstras' § 1983 claim.

ADA
     The Hoekstras have also asserted a claim under the ADA.
Rebecca's condition makes it painful for her to use the stairs, and
so on the advice of her physical therapist, she requested her own
key to the elevator at her school.     The elevator is actually a
lift, with no top, sides which reach approximately chest height on
a child, and an open gate across the front. Rebecca had access to
the lift by informing an adult she needed to use it. Though the
date of her first request for her own key is in dispute, it
occurred no later than the first due process hearing, in March
1994.   At that hearing, apparently in response to Rebecca's
request, the District claims it was in the process of establishing
criteria for safe and independent access to and operation of the
lift. The District developed this criteria in late April 1994, and
gave Rebecca her own key on June 3, 1994.       The HRO found the
initial denial of a personal lift key to Rebecca was not a
violation of her right to a free appropriate public education.


      The district court dismissed the Hoekstras' ADA claim because,

                                -4-
inter alia, it failed to find the District acted in bad faith or
exercised gross misjudgment in delaying Rebecca's acquisition of
the elevator key.3 In Monahan v. State of Nebraska, this court
held that "either bad faith or gross misjudgment" must be shown in
order to impose liability under § 504 of the Rehabilitation Act.
687 F.2d 1164, 1171 (8th Cir. 1982).     In Heidemann, this court
reaffirmed application of the Monahan standard to cases brought
under § 504, which is a predecessor to the ADA. 84 F.3d at 1032.
The district court in this case, consistent with other district
court decisions in this circuit, applied the Monahan standard to
the ADA.   Hoekstra, 916 F. Supp. at 948; see Fort Zumwalt Sch.
Dist. v. Missouri State Bd. of Educ., 865 F. Supp. 604, 607 & n.3
(E.D. Mo. 1994) (dismissing a § 1983 claim alleging violations of
the ADA and § 504 in part because "the parents have failed to
allege 'bad faith or gross negligence,' which is required to
substantiate a § 504 claim in the context of education," and
concluding "the same analysis applies ... under the ADA"); see also
Brantley v. Independent Sch. Dist. No. 625, 936 F. Supp. 649, 654
(D. Minn. 1996) (agreeing with the district court opinion in
Hoekstra and applying the Monahan standard to the ADA).


     The Hoekstras urge that the ADA is meant to provide greater
protection for disabled individuals than is available under § 504,
and therefore the ADA must be interpreted more broadly. This court
has held that enforcement remedies, procedures and rights under
Title II of the ADA are the same as under § 504, and has
consistently applied § 504 case law to ADA cases.       Allison v.


      3
       The district court also held that (1) the Hoekstras were
required to, and did not, exhaust their ADA claims under the IDEA
before bringing the ADA claim in federal court; and (2)
notwithstanding the bad faith requirement, the Hoekstras failed to
produce evidence of pretext to rebut the District's claim that it
delayed giving Rebecca an elevator key for safety reasons. Because
we determine that an ADA claim in this context requires a showing
of bad faith or gross misjudgment, and none was shown here, we
decline to reach these additional issues.

                               -5-
Department of Corrections, 94 F.3d 494, 497 (8th Cir. 1996);
Pottgen v. Missouri State High Sch. Activities Ass’n, 40 F.3d 926,
930 (8th Cir. 1994). In applying a bad faith/gross misjudgment
standard to § 504, the Monahan court reasoned that such a standard
harmonizes the Education for All Handicapped Children Act of 1975
(a predecessor to the EHA and the IDEA) and § 504 by balancing "the
rights of handicapped children, the responsibilities of state
educational officials, and the competence of courts to make
judgments in technical fields." 687 F.2d at 1171. The Monahan
court gave deference to experts dealing with the special needs of
disabled children, reasoning that § 504 was not intended to create
general tort liability for educational malpractice.            This
deference, and the reasoning behind it, is as appropriate under the
ADA as it is under § 504. Therefore, we hold that in the context
of educational services for disabled children, a showing of gross
misjudgment or bad faith on the part of school officials is
necessary to succeed on an ADA claim. The Hoekstras have not made
such a showing, and therefore their ADA claim must fail.


                                                JUDGMENT AFFIRMED.


     A true copy.


          Attest:


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




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