               United States Court of Appeals
                FOR THE EIGHTH CIRCUIT



                      No. 97-3288


Leroy Thompson, a minor, by *and
through his parent and legal* guardian,
Synarvia Jene Buckhanon,    *
                            *
         Appellant,         *
                            *
         v.                 *
                            *
Board of the Special School *District
                               Appeal from the United
States
No. 1, (Minneapolis); Peter *Hutchinson,
                               District Court for the
in his official capacity as *Superintendent;
                               District of Minnesota.
Bruce Johnson, in his official
                            *    capacity
only as Commissioner of the *Minnesota
Department of Children, Families
                            *      and
Learning, (MDCFL); MDCFL; Board
                            *
of Education, sed as Minnesota
                            *    State
Board of Education;         *
                            *
         Appellees.         *


              Submitted:    March 11, 1998

                      Filed:     May 19, 1998
Before BEAM and HEANEY, Circuit Judges, and WATERS,1
District Judge.


HEANEY, Circuit Judge.

    Leroy Thompson (Thompson), by and through his mother,
Synarvia Jene Buckhanon (Buckhanon), appeals the district
court’s grant of summary judgment and motion to dismiss
in favor of Minneapolis Special School District No. 1
(District). Thompson sued the District, claiming that it
violated various civil rights statutes by denying him a
free,   appropriate,   public   education;   failing   to
accommodate his disability properly; and discriminating
against him because of his race. We affirm.

                                         I.

    Thompson is currently an eighth-grade student at New
Visions, a charter school in Minneapolis.       Prior to
enrolling at New Visions, Thompson attended another
charter school, the Minneapolis Community Learning Center
(MCLC). Before that, Thompson was a student in several
District schools.       Thompson has various learning
disabilities and is diagnosed as having emotional
behavioral disturbance (EBD).

    Thompson first enrolled in the District for the 1989-
90 school year as a kindergartner at Tuttle Marcy
Elementary School (Tuttle). Thompson remained at Tuttle
through part of second grade. He had behavioral problems


      1
        The Honorable H. Franklin Waters, United States District Judge for the Western
District of Arkansas, sitting by designation.
                                          2
while a first grader and, as a second grader, he was
suspended six times for such things as hitting, kicking,
biting, and threatening teachers. Because of Thompson’s
behavior problems, the District informed Buckhanon that
it wanted to assess her son to see if he needed special
education services. Buckhanon consented.




                           3
    After conducting the assessment, the District
proposed that Thompson work one on one with an assistant
and that Thompson be rewarded for exhibiting good
behavior. Additionally, Thompson would be removed from
the classroom and school when his behavior became
physically dangerous to himself or others around him.
Because his behavior did not improve, Buckhanon consented
to Thompson’s placement at Andersen D, another District
elementary school, in a program tailored for children
with EBD.    An individualized education plan (IEP) was
developed for Thompson. Although Buckhanon agreed to the
placement, a district social worker questioned whether
Andersen D was the proper placement for Thompson.
Buckhanon worked at the school and helped assist her son.
Following his enrollment at Andersen D, Buckhanon claimed
that her son was improperly placed in “time-out” rooms
and isolated when he misbehaved.

    Nevertheless, Thompson made significant progress
while attending Andersen D. By third grade, he had a new
IEP and began attending mainstream classes in the morning
at another public elementary school, Wilder Math and
Science Tech (Wilder).    By April 1993, Thompson began
attending Wilder on a full-time basis.        Because of
continuing behavioral problems, Thompson was suspended
twice in third grade. Despite these problems, Thompson
remained at Wilder in fourth grade. He was reassessed
and again diagnosed with EBD and a specific learning
disability.   A new IEP was developed to help Thompson
with reading and behavioral problems.          Thompson’s
behavioral problems got worse, and in January 1994,
Thompson was suspended for two days because of fighting.
On February 3, 1994, Thompson started grabbing, pushing,

                            4
and kicking other students. School officials called the
police, who took Thompson home. Upset that the police
intervened, Buckhanon decided not to send her son back to
school.

    In mid-February 1994, Buckhanon met with Wilder
personnel to discuss placement options for her son.
Everyone at the meeting agreed that Thompson should
attend the SIMS program at Lyndale Elementary School,
another District school,




                            5
because it was supposed to have a strong program for
students with learning disabilities. For the remainder of
fourth grade and part of fifth grade Thompson attended
SIMS. In October 1994, Thompson underwent a reassessment.
Both Buckhanon and Thompson’s teachers received forms to
assess his behavior. The teachers found that Thompson was
borderline delinquent.    Buckhanon, on the other hand,
rated her son as showing some aggressive behavior, but to
a lesser extent than the teachers.       The reassessment
indicated that Thompson’s primary disability was EBD.
Before a new meeting was convened to reconsider Thompson’s
placement, Buckhanon removed her son from the SIMS program
and put him in the MCLC charter school, where he completed
the fifth grade.

    In June 1995, Buckhanon requested a due process
hearing to challenge the District’s assessment of her son
and the education he was provided before leaving the
District and attending MCLC. Thompson was not a student
in the District when Buckhanon requested a due process
hearing.     The District referred the matter to an
independent hearing officer (HO). The HO agreed that the
District lacked jurisdiction to hear the matter because
Thompson no longer attended a school within the District.
Buckhanon appealed to a hearing review officer (HRO).
While waiting for the HRO’s decision, Buckhanon placed her
son in the New Visions charter school. The HRO affirmed
the HO’s decision, and shortly thereafter, Buckhanon
commenced this suit on her son’s behalf. Buckhanon is
satisfied with her son’s current education and does not
request a new assessment or a due process hearing related
to his education at New Visions, but challenges many



                            6
aspects of the education he received while attending
school in the District.

    Thompson’s suit alleges that:       (1) the District
violated his due process rights under the Fourteenth
Amendment, the Individuals with Disabilities Education Act
(IDEA), 42 U.S.C. § 1983, the Minnesota Constitution, and
Minnesota statutory law by denying him a hearing to
challenge his IEP and overall education while a student in
the District; (2) the District discriminated against him
because of his race in violation




                            7
of Title VI of the 1964 Civil Rights Act and state law by
denying him certain educational services and by improperly
disciplining him; (3) the District discriminated against
him because of his disability under the Americans with
Disabilities Act (ADA), Section 504 of the Rehabilitation
Act (Section 504), and state law by failing to modify
discipline policies to accommodate his disability
properly; (4) Peter Johnson, the head of the Minnesota
Department of Children, Families, and Learning (MDCFL),
the MDCFL, and State Board of Education (SBE) failed to
provide a proper due process hearing; and (5) the MDCFL
and SBE have wrongfully created or interpreted state laws
by establishing a charter school system that deprived
Thompson   of   a   hearing  under   the   United   States
Constitution, IDEA, § 1983, and Minnesota law.

     The district court granted the District’s motion to
dismiss on claims 1, 4, and 5 listed above and granted
summary judgment for the District on claims 2 and 3 listed
above. Thompson appeals.

                           II.

    In analyzing Thompson’s numerous claims, we address
three distinct issues: (1) whether Thompson has stated a
claim under IDEA and Minnesota state law; (2) whether
there are genuine issues of material fact as to whether
the District discriminated against Thompson under the ADA,
Section 504, and Minnesota law; and (3) whether there are
genuine issues of material fact as to whether Thompson was
discriminated against because of his race under Title VI
of the 1964 Civil Rights Act and under state law.



                            8
    Whether a complaint sufficiently states a cause of
action is a legal question subject to de novo review.
Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.
1990) (citations omitted).     In reviewing a motion to
dismiss, we assume all facts alleged by the plaintiff are
true. Id. Dismissal is only proper if it appears that a
plaintiff is unable to prove any set of facts entitling
the plaintiff to relief. Id.




                            9
    We review a district court’s grant of summary judgment
de novo. United States ex. rel. Glass v. Medtronic, Inc.,
957 F.2d 605, 607 (8th Cir. 1992). In considering whether
to grant summary judgment, a court examines all the
“pleadings, depositions, answers to interrogatories . . .
admissions on file . . . [and] affidavits.” Fed. R. Civ.
P. 56(c).    After viewing the record in a light most
favorable to the nonmoving party, summary judgment is
appropriate only where there is “no genuine issue of
material fact and . . . the moving party is entitled to
judgment as a matter of law.” Langley v. Allstate Ins.
Co., 995 F.2d 841, 844 (8th Cir. 1993) (citations
omitted).

                     A.   IDEA CLAIMS

    IDEA was enacted to ensure that children with
disabilities   receive   a   free,   appropriate,   public
education. 20 U.S.C. § 1400(c). Under IDEA, a parent or
guardian is entitled to procedural safeguards to ensure
that his or her disabled child’s educational needs are
being met by the student’s school district. For example,
20 U.S.C. § 1415(b)(1)(E) allows a parent or guardian “an
opportunity to present complaints with respect to any
matter relating to the identification, evaluation, or
educational placement of the child, or the provision of a
free appropriate public education to such child.”      Id.
After making a complaint, the child is entitled to an
impartial due process hearing. Id. § 1415(b)(2). Under
the Minnesota implementing statute for IDEA, a parent may
obtain an impartial due process hearing when he or she
objects to a proposed assessment; transfer or placement of
a child; and to the addition, provision, denial, or

                            10
removal of educational services. Minn. Stat. § 120.17,
subd. 3b(e)(1)-(5). Under Minnesota law, a due process
hearing shall be “initiated and conducted by and in the
school district responsible for assuring that an
appropriate program is provided.” Id. subd. 3b(e).

    Thompson has not stated a cause of action under IDEA
because his request for a review comes after he left the
District previously responsible for his education. At the
time Thompson brought suit, Minnesota law considered a
charter school a separate




                           11
school district. Minn. Stat. § 120.064, subd. 12. IDEA
provides a mechanism for challenging the education a
student has been provided within a school district. If a
student changes school districts and does not request a
due process hearing, his or her right to challenge prior
educational services is not preserved.          Subsequent
challenges to the student’s previous education become moot
because the new school district is responsible for
providing a due process hearing.      Buckhanon correctly
argues that the United States Supreme Court has allowed
for reimbursement of private school tuition where a parent
unilaterally removes a child from a public school during
the pendency of formal proceedings and the public school
has not provided a free, appropriate, public education.
See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7,
15 (1993). The Court has also allowed reimbursement for
out-of-pocket expenditures where a child left the school
district during the pendency of formal proceedings, and it
was ultimately determined that the child did not receive
a free, appropriate, public education. School Comm. of
Burlington v. Department of Educ. of Mass., 471 U.S. 359,
369 (1985).

    This case is distinguishable from those cited above.
In this case, Thompson transferred to a Minneapolis
charter school, a different school district under
Minnesota law, and Buckhanon did not incur any tuition
charges.   Additionally, Buckhanon did not preserve her
rights by instituting a due process hearing prior to
Thompson’s transfer. A parent or guardian has the right
to request a due process hearing whenever he or she is
dissatisfied with an aspect of a child’s education. 34
C.F.R. § 300.506(a).    Under Minnesota regulations, the

                            12
District was responsible for informing Buckhanon that she
had the right to request a due process hearing if she
disagreed with the District’s efforts to provide her son
with a free, appropriate, public education.      Minn. R.
3535.3300(A)-(G).    From a careful review of the record,
it appears that the District provided Buckhanon with
sufficient notice and the opportunity to request a due
process hearing.2




      2
       At oral argument, Buckhanon complained that she did not know she could
request a hearing until after her son had left the District. In particular, in 1994 she
claimed to have protested the District’s reassessment of her son. The record, however,
shows that she consented to the reassessment. The record also shows that she was
informed of her right to request a due process hearing. (J.A. App. at 61.)
                                          13
    Contrary to Buckhanon’s assertions, her need to
preserve the right to challenge Thompson’s prior
educational services is not simply a procedural barrier.
The purpose of requesting a due process hearing is to
challenge an aspect of a child’s education and to put the
school district on notice of a perceived problem. Once
the school district receives notice, it has the
opportunity to address the alleged problem.          Under
Buckhanon’s theory, a school would be potentially liable
for unanticipated costs for alleged problems of which it
is totally unaware.3 “Recovering tuition [or costs] is a
remedy only if the free and appropriate public education
(FAPE)   guarantee    has   been   violated,    exhaustive
administrative remedies have been tried before placement,
and the school has been notified.” Cindy L. Skaruppa, Ann
Boyer & Oliver Edwards, Tuition Reimbursement for Parent’s
Unilateral Placement of Students in Private Institutions:
Justified or Not?, 114 Educ. Law Rep. 353, 354 (West
1997).

          Buckhanon argues that the 1997 IDEA amendments
impose an obligation on local school districts to provide
the same services for charter school students as it does
its own. While we do not decide the issue, Buckhanon’s
argument fails for two reasons.     First, this case was
brought well before the IDEA amendments went into effect.
Second, if Buckhanon believes that Thompson is not



      3
        Here, for example, Buckhanon claims that she spent roughly $2,000 on tutoring
fees for her son so that he could keep up in school. While this may have been of great
benefit to Thompson, we cannot agree that a school district must reimburse a parent for
unchecked educational expenses.
                                          14
receiving a free, appropriate, public education, she is
currently entitled to request a due process hearing.

    As part of her IDEA claim, Buckhanon requests monetary
damages as well as one-on-one tutoring services for
Thompson. If Buckhanon believes that her son’s




                            15
current education is insufficient, she may request
tutoring services from his current school or seek a due
process hearing and request such services.      We note,
however, that Buckhanon has said that she is presently
satisfied with her son’s education. As to compensatory
damages, a claim “based upon defendants’ alleged
violations of the IDEA may not be pursued in this . . .
action because general and punitive damages . . . are not
available under IDEA.” Heidemann v. Rother, 84 F.3d 1021,
1033 (8th Cir. 1996).

    Finally, Thompson’s § 1983 claims must also fail.
There is no evidence of a violation of Thompson’s rights
under IDEA or the Fourteenth Amendment. We note that the
district court held that the MDCFL, SBE, and individuals
sued in their official capacity are immune from suit in
federal court.     Because there is no evidence that
Thompson’s rights were violated, we decline to reach the
issue of immunity.

                           B.     DISABILITY CLAIMS

    Thompson also asserts causes of action against the
District under the ADA, Section 504, and the Minnesota
Human Rights Act (MHRA).4 Buckhanon claims that her son
was improperly diagnosed as EBD and mistreated because the
school failed to alter its discipline policies to
accommodate her son.     As to the improper diagnosis,
Buckhanon points to the testimony of a district social


      4
         Because the state law claims are analyzed in the same manner as the federal
civil rights claims, we treat them together. Brantley v. Independent Sch. Dist. 625, 936
F. Supp. 649, 657 n.16 (D. Minn. 1996).
                                           16
worker who believed that Thompson was not EBD and that
Thompson’s placement at Andersen D was improper.      In
support of her failure to accommodate claim, Buckhanon
asserts that her son was put in “time-out” rooms and
isolated when he misbehaved and was suspended on several
occasions.




                           17
    In the context of a school case, in order to make out
a prima facie case under the ADA and Section 504,
Buckhanon must show bad faith or an exercise of gross
misjudgment by the District. Hoekstra,103 F.3d at 626-27.
Although Thompson’s presentation of the district social
worker’s testimony might have created fact issues showing
bad faith by the District, the district court properly
excluded this evidence because Thompson’s attorney
presented it to the court two months past the court’s
deadline. While the district court properly excluded the
evidence, had the testimony been considered, it is
unlikely that it would have supported a finding of bad
faith or gross misjudgment.       The District evaluated
Thompson on several occasions with Buckhanon’s consent.
Although the social worker might be correct that
Thompson’s disruptive behavior resulted from frustration
as a result of his learning problems, at most, this
testimony   shows   a   professional  disagreement   over
diagnosis. We are not persuaded that such disagreement
rose to the level of bad faith or gross misjudgment.
Consequently, we reject Buckhanon’s ADA, Section 504, and
MHRA claims challenging Thompson’s EBD diagnosis.

    Buckhanon’s claim that the District mistreated
Thompson arises from allegations that Thompson did not
receive an education for part of the 1994 school year and
was frequently suspended.     Buckhanon’s argument fails
because she chose to take her son out of school after the
1994 police intervention.        Even if Buckhanon was
frustrated by the police involvement, she failed to
challenge the District’s actions.     Instead, after the
incident, she collaborated with the District in choosing
a different placement for her son. As to the frequent

                           18
suspensions, the record is clear that Thompson’s
suspensions were for exhibiting dangerous behavior to
himself and to others.       Consequently, we reject
Buckhanon’s claims.

                  C.   TITLE VI CLAIMS

    Finally, Thompson argues that the District identified
him as EBD, provided him with an inferior education, and
disciplined him because of his race and that these




                           19
actions prevented him from receiving an appropriate
education. To establish the elements of a prima facie
case under Title VI, a complaining party must demonstrate
that his/her race, color, or national origin was the
motive for the discriminatory conduct. See Brantley v.
Independent Sch. Dist. 625, 936 F. Supp. 649, 657 n.16 (D.
Minn. 1996) (citing 42 U.S.C. § 2000d).

    As to identifying Thompson as EBD because of his race,
Buckhanon participated in all of Thompson’s placement
decisions and agreed that her son should attend Andersen
D because of his EBD.     The record clearly shows that
Thompson exhibited disruptive behavior. The record also
shows that nonminority children with EBD were treated
similarly when they exhibited disruptive behavior. For
example, they were put in time-out rooms and similarly
disciplined. In short, there is no evidence showing that
the District acted in a discriminatory manner in
identifying Thompson as EBD or in the way he was treated.



    Regarding Thompson’s claim that he did not receive an
appropriate education because of his race, Thompson’s
suspensions were motivated by such acts as physically
assaulting other children and for threatening his
teachers. Thompson presents no evidence that race was the
motivating factor in his suspensions. We note that his
longest absence was due to his mother’s decision to pull
him out of school after the 1994 police incident. We will
not impute that absence to the school system.

    Buckhanon claims that her son, like many other
children at Andersen D, was placed in the school because

                            20
of his race. Buckhanon, who worked at Andersen D, claims
that the racial composition of     the school was almost
entirely African American. The head of the EBD program
while Thompson was a student at Andersen D, however,
provided uncontroverted evidence of the actual demographic
breakdown showing that at the time Thompson was a student
“the percentage of African American students enrolled at
Andersen D was nearly proportionate to district-wide
enrollment.” (J.A.




                            21
at 140.)5   Assuming arguendo that the African American
enrollment at Andersen D was higher than the rest of the
District, Thompson failed to provide any evidence of
racial discrimination.      Therefore, for the reasons
discussed above, his Title VI and other race-based claims
fail.

                                      III.

    For the foregoing reasons, we affirm the district
court’s grant of summary judgment and motion to dismiss in
favor of the District.

      A true copy.

            Attest.

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




      5
      According to this uncontroverted testimony, the actual demographic breakdown
was African Americans = 63%, Native Americans = 12%, Hispanic Americans = 1%
and European American students = 24%. (J.A. at 140.)
                                        22
