                      United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3176
                                   ___________

Darlene Fick, on behalf of             *
Sarah Fick,                            *
                                       *
             Appellant,                *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of South Dakota.
Sioux Falls School District 49-5,      *
                                       *
             Appellee.                 *
                                  ___________

                              Submitted: May 16, 2003

                                  Filed: July 23, 2003
                                   ___________

Before BOWMAN and BYE, Circuit Judges, and ERICKSEN,1 District Judge.
                           ___________

BYE, Circuit Judge.

      This is a dispute over whether the Sioux Falls School District (the District)
must transport Sarah Fick to a day care center after school, rather than to her home,
in order to provide a free appropriate public education under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1487. Both a state hearing



      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota, sitting by designation.
examiner and the district court2 held the District did not violate the IDEA, because
transportation to the day care center was not necessary for Sarah to benefit
educationally from her individualized education plan (IEP). We affirm.

                                            I

       Sarah Fick suffers from epileptic seizures. When a seizure occurs, Sarah must
receive a shot of Valium from a qualified nurse within a short period of time. This
condition requires the District to provide Sarah transportation to and from school as
a "related service"3 under the IDEA. The District satisfies this requirement by
providing Sarah with a nurse-accompanied taxi ride to school in the morning, and
back to her home in the afternoon.

       The District has created geographical "cluster sites" within its boundaries to
provide better and more efficient education services to its students. For example, the
cluster sites allow children to be with the same neighborhood peer groups as they
move through elementary school, middle school, and high school. During the 2000-
2001 school year, the District had three cluster sites for its elementary school children
located at John Harris, John F. Kennedy, and Hawthorne Elementary Schools. Sarah
Fick lived in the John Harris cluster site.

        The District uses the cluster boundaries to establish transportation policies for
all children, both regular and special education, who are eligible for transportation to


      2
       The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
      3
        20 U.S.C. § 1401(22) of the IDEA defines "related services" in relevant part
as "transportation . . . as may be required to assist a child with a disability to benefit
from special education[.]"


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and from school. Students are allowed one designated pick-up address before school
and one drop-off address after school. The addresses do not have to be the same, but
both must be located within the child's cluster boundaries. The District will,
however, transport a disabled child outside her designated cluster site when the
transportation is necessary for the child to benefit from her IEP.

       In October 2000, Sarah's mother, Darlene, asked the District to change Sarah's
designated drop-off address from her home to an after-school day care center called
Liberty Center. The District refused to change Sarah's drop-off point because Liberty
Center was outside the boundaries of Sarah's cluster site. Darlene renewed her
request at an IEP meeting held in February 2001. When that request was denied as
well, Darlene filed a complaint with the state Office of Special Education (OSE).
After an informal investigation, the OSE determined the District violated the IDEA
by failing to accommodate the transportation request, and ordered the District to pay
for Sarah's transportation to Liberty Center.

      The District requested a due process hearing to contest the OSE's decision.
After a formal hearing, a state hearing examiner issued written findings of fact and
conclusions of law determining the District had not violated the IDEA. The state
hearing examiner concluded the transportation request was made for personal reasons
unrelated to Sarah's educational needs, and therefore the District was not required to
pay for the transportation.

       Darlene Fick challenged the hearing examiner's decision by filing suit in the
district court. Noting that Darlene made her request for personal reasons unrelated
to Sarah's educational needs, the district court also concluded the District had not
violated the IDEA by refusing to transport Sarah to a drop-off address outside her
designated cluster site. Ms. Fick timely appealed the district court's decision.




                                         -3-
                                            II

       In IDEA cases we review the district court's decision de novo, Strawn v. Mo.
State Bd. of Educ., 210 F.3d 954, 958 (8th Cir. 2000), but, like the district court we
must give "due weight" to the state administrative proceedings. Fort Zumwalt Sch.
Dist. v. Clynes, 119 F.3d 607, 610 (8th Cir. 1997).

       We believe our decision in Timothy H. v. Cedar Rapids Cmty. Sch. Dist., 178
F.3d 968 (8th Cir. 1999), is dispositive. That case, like this one, involved a parental
request to transport a disabled child to a school outside a neighborhood school
boundary. The Cedar Rapids School District had an intra-district transfer policy
which allowed parents to send their child to a school other than the neighborhood
school as long as the parents paid for transportation. We held the school district did
not violate Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, by
refusing to pay to transport a disabled child to a school outside the neighborhood
boundaries. Specifically, we said the child's parents failed to prove the child was
denied the benefits of participating in the intra-district transfer program, because all
parents in the district had to pay for transportation costs in order to participate in the
program. Id. at 971-72. We concluded all of the disabled child's educational needs
were being met by the school within the neighborhood boundaries, and the request
for transportation to a school outside the boundaries was "for reasons of parental
preference" only. Id. at 973.

       In short, Timothy H. indicates a school district may apply a facially neutral
transportation policy to a disabled child without violating the law when the request
for a deviation from the policy is not based on the child's educational needs, but on
the parents' convenience or preference. See also N. Allegheny Sch. Dist. v. Gregory
P., 687 A.2d 37, 40 (Pa. Commw. Ct. 1996) (holding IDEA requires transportation
of disabled child only to address his educational needs and does not require school
district to accommodate a parent's unrelated non-educational preferences). We

                                           -4-
conclude Timothy H. controls our decision here because the pertinent obligation of
the District under Section 504 is the same as its obligation under the IDEA: "To
provide disabled students with a free appropriate public education." Gill v. Columbia
93 Sch. Dist., 217 F.3d 1027, 1034 (8th Cir. 2000). We therefore affirm the decision
of the district court.

      A true copy.

             Attest:

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




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