                                  __________

                                    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 court1 determined
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.




     1
      The Honorable Lawrence L. Piersol, United States District
Judge for the District of South Dakota.
                                        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,




                                        2
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




                                             3
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.




                                        4
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 16.2      The court denied the request on the basis
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.




        2
      The Schramms had made the same request in its brief at the
administrative hearing level, but the hearing examiner's decision
did not address it.

                                       5
                                         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,




                                         6
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




                                             7
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




                                          8
when she finished ninth grade, it did not create a new IEP for her tenth
grade year.3        This appeal therefore does not focus on a disputed portion
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, self-
advocacy, 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."4             Id. § 1401(a)(1)(A).             Special education is
"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




        3
      Pursuant to IDEA's "stay-put" provision, the school
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).
        4
      The dissent describes the issue in this case as "whether a
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
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.5      See
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




     5
      The days when special education implied separate education
are over. Congress knew and intended that special education
would take place in regular classes. 20 U.S.C. § 1412(5)(B).

                                     10
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.




                                         11
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




     6
      The district court specifically found that "Tracy's
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
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).7   Both § 504 and IDEA have been interpreted as requiring states
to provide a free appropriate public education to qualified handicapped
persons, but only IDEA requires development of an IEP8 and specifically
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


     7
      29 U.S.C. § 794(a) provides in relevant part that

             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.
     8
      An IEP developed in accordance with IDEA may sometimes be
used to show compliance with § 504. See 34 C.F.R.
§ 104.33(b)(2).
     9
      The dissent suggests that we are second-guessing the school
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
     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




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
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.10   20 U.S.C. § 1412(2)(B).


                                      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




     10
      The Schramms concede that Tracy's eligibility for
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
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




                                          16
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.1           As the majority


      1
       The regulations define "special education" as

      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
acknowledges, Ms. Schramm is an "A"




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
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




     2
      The majority assumes that, were the school district to deny
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
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.3   I dissent.




     3
      As acknowledged by the school district, the issue in this
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
A true copy.


      Attest:


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




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