                         United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 96-4280EM
                                  _____________

Allen DeBord, Individually and as next *
friend for Kelly DeBord; Debra DeBord, *
Individually and as next friend for Kelly *
DeBord,                                   *
                                          *
                    Appellants,           * Appeal from the United States
                                          * District Court for the Eastern
       v.                                 * District of Missouri.
                                          *
Board of Education of the Ferguson-       *
Florissant School District; Shirley       *
Salmon; Joyce Dreimeier; Cindy            *
Ormsby,                                   *
                                          *
                    Appellees.            *
                                    _____________

                           Submitted: September 11, 1997
                               Filed: October 9, 1997
                                _____________

Before FAGG, WOLLMAN, and LOKEN, Circuit Judges.
                          _____________

FAGG, Circuit Judge.

      In this student disability discrimination case, parents Allen and Debra DeBord
appeal the district court’s grant of summary judgment to the Board of Education of the
Ferguson-Florissant School District and three individual defendants (collectively the
school district). We affirm.
        The DeBords’ eight-year-old daughter, Kelly, has attention deficit hyperactivity
disorder (ADHD). To treat her condition, Kelly’s doctor prescribed one hundred
milligrams of sustained release Ritalin when Kelly arises in the morning, and forty
milligrams of the drug at 3:00 in the afternoon while Kelly is still at school. The school
district provides health services to students, including administration of prescription
drugs during school hours, but the school district has a written policy against
administering prescription drugs in an amount exceeding the recommended daily
dosage listed in the Physicians’ Desk Reference (PDR). Joyce Dreimeier, the nurse at
Kelly’s elementary school, refused to give Kelly her afternoon dose because Kelly’s
daily intake of Ritalin exceeds the sixty milligram daily recommendation listed in the
PDR. The DeBords appealed to the Board of Education, providing a letter from
Kelly’s doctor confirming her prescription, some medical information about high dose
use of Ritalin, and an offer to sign a waiver of liability. The school board declined to
direct administration of Kelly’s prescription by the school, even though Kelly’s higher
dosage is necessary to treat her effectively, Kelly suffers no side effects, and no studies
show whether higher dosages are harmful. Instead, the school board offered several
alternatives, including alteration of Kelly’s class schedule to permit early dismissal and
home administration of both of Kelly’s doses, or administration of Kelly’s afternoon
dose at school by one of her parents or someone designated by them.

       Unhappy with the school district’s stance, the DeBords brought this action
alleging the school district’s refusal violates section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794 (1994); Title II of the Americans with Disabilities Act of 1990
(ADA), 42 U.S.C. §§ 12131-12165 (1994); and 42 U.S.C. § 1983 (1994). The district
court granted summary judgment to the school district. The district court concluded the
school district’s refusal was not based on Kelly’s disability, but on the district’s policy
stemming from concerns about potential harm to students and liability. The district
court also concluded the school district reasonably accommodated the DeBords.


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       We review the grant of summary judgment de novo. See Smith v. City of Des
Moines, 99 F.3d 1466, 1468 (8th Cir. 1996). We affirm if the record, viewed in the
light most favorable to the DeBords, shows there is no genuine issue of material fact
and the school district is entitled to judgment as a matter of law. See id. at 1469.
Before we turn to the DeBords’ contentions, we examine the discrimination law that
guides us.

       Both the Rehabilitation Act and the ADA prohibit discrimination on the basis of
disability. The Rehabilitation Act provides: “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 . . . .” 29 U.S.C. § 794(a)
(1994). Under regulations implementing the Rehabilitation Act, a recipient of federal
funds “that operates a public elementary or secondary education program shall provide
a free appropriate public education to each qualified handicapped person,” 34 C.F.R.
§ 104.33(a) (1996), including “the provision of regular or special education and related
aids and services,” id. § 104.33(b)(1). A recipient must give disabled students an equal
opportunity to participate in nonacademic and extracurricular services, including health
services. See id. § 104.37(a). The Rehabilitation Act requires a recipient of federal
funds to provide “an otherwise qualified handicapped individual . . . with meaningful
access to the benefit that the grantee offers.” Alexander v. Choate, 469 U.S. 287, 301
(1985). To assure meaningful access, the grantee may have to make reasonable
accommodations in its program or benefit. See id. & n.21; Alexander v. Pathfinder,
Inc., 91 F.3d 59, 62 (8th Cir. 1996); Lloyd v. Housing Auth., 58 F.3d 398, 399 (8th Cir.
1995).

         After the Rehabilitation Act had been law for several years, Congress enacted
the ADA. Title II of the ADA, applicable to public entities including public schools,
states that “no qualified individual with a disability shall, by reason of such disability,
. . . be denied the benefits of the services, programs, or activities of a public entity, or

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be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (1994). Title
II regulations require a public entity to “make reasonable modifications in policies . . .
when the modifications are necessary to avoid discrimination on the basis of disability,
unless the public entity can demonstrate that making the modifications would
fundamentally alter the nature of the service.” 28 C.F.R. § 35.130(b)(7) (1996).
Congress intended Title II and its implementing regulations to be consistent with the
Rehabilitation Act and its regulations. See Pottgen v. Missouri St. High Sch. Activities
Ass’n, 40 F.3d 926, 930 (8th Cir. 1994); McPherson v. Michigan High Sch. Athletic
Ass’n, Inc., 119 F.3d 453, 459-60 (6th Cir. 1997) (en banc); Urban v. Jefferson County
Sch. Dist. R-1, 89 F.3d 720, 727-28 (10th Cir. 1996). To succeed on their claims
under either Act, the DeBords must show the school district refused to administer
Kelly’s medication because of her disability. See Davis v. Francis Howell Sch. Dist.,
104 F.3d 204, 206 (8th Cir. 1997); McPherson, 119 F.3d at 460.

      The DeBords argue the school district’s refusal to provide the nonacademic
service of drug administration denies Kelly a free appropriate education because
without her full dosage of Ritalin, she cannot benefit from the school’s educational
program. See 34 C.F.R. §§ 104.33(a), .33(b)(1) (1996). The administrative agency
charged with enforcing the Rehabilitation Act in school districts has held that when a
“handicapped student[] requires the administration of medication in order to benefit
from his or her educational program, the [school district] is obligated to ensure that the
medication is administered.” Berlin Brothersvalley (PA) Sch. Dist., OCR Region III,
353:124 (Dec. 23, 1988). The agency concluded the Berlin district’s policy granting
school officials unspecified discretion to decline administration of medication and
requiring the student’s parents to release the district from liability violated 34 C.F.R.
§§ 104.33(a) and (b)(1). The DeBords rely heavily on this agency interpretation, and
say we must give it substantial deference. See Blum v. Bacon, 457 U.S. 132, 141
(1982).




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        Unlike the drug administration policy in Berlin, the policy here contains an
objective standard limiting administration of prescription medication only when the
prescription exceeds the maximum dosage recommended in the PDR. There is no
evidence that the school district had disabilities in mind when formulating or
implementing its policy. The DeBords do not question the truthfulness of the school
district’s expressed motivations of fear of student harm and potential liability. Instead,
the DeBords say the fears are invalid. Whether or not ill-founded, however, the school
district’s fears are unrelated to disabilities or misperceptions about them. The policy
is neutral; it applies to all students regardless of disability. A student’s excess
prescription, not the student’s disability, prevents the student from receiving medication
from the school nurse. See McPherson, 119 F.3d at 460-61. Although Kelly requires
Ritalin to treat her disability, it is undisputed that the reason for Kelly’s high dosage is
probably her metabolism, not the severity of her disability. Kelly’s own doctor and
others stated the amount of Ritalin needed to treat ADHD is unrelated to the severity
of the disorder in any particular patient. Thus, the policy does not discriminate against
the severely disabled, as the DeBords assert.

       The DeBords argue Kelly was treated differently than other students, but
students who received their medication at school did not have prescriptions exceeding
the PDR’s recommended daily dosage. It is undisputed that the school district did not
knowingly administer prescription drugs to any student, disabled or not, in excess of
the PDR’s recommendation. Disparate treatment is not the only way to prove unlawful
discrimination, but the record here offers no other basis to infer the school board’s
actions were based on Kelly’s disability. See Miners v. Cargill Communications, Inc.,
113 F.3d 820, 824 n.7 (8th Cir. 1997). The DeBords have not tried to show the policy
has the effect of discriminating against the disabled or the severely disabled. On the
record here, the school board’s facially neutral policy does not distinguish between
those who will receive their full prescription dose and those who will not on the basis
of any trait that the disabled or severely disabled are less or more likely to possess. See
Choate, 469 U.S. at 302 (rejecting Rehabilitation Act claim that state’s fourteen-day

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limit on Medicaid services had disparate impact on the disabled). In other words, the
DeBords have not shown disabled students are more likely than nondisabled students
to require prescription dosages exceeding the PDR’s recommendation. Although
Congress was concerned about the discriminatory effects of “overprotective rules and
policies” on the disabled, 42 U.S.C. § 12101(a)(5), nothing here suggests the policy or
its application has the purpose or effect of discriminating against disabled students.

       The DeBords also rely on 42 U.S.C. § 12182(b)(2)(A)(ii), a Title III statute
defining discrimination to include the failure to make reasonable modifications in
policies. The DeBords assert the school district’s failure to waive its policy for Kelly
violates this statute. Title III of the ADA applies to private entities providing public
accommodations, however, not to public entities. See 42 U.S.C. §§ 12181-82;
Sandison, 64 F.3d at 1036. Entities subject to Title III include private schools, but not
public ones. See 42 U.S.C. § 12181(7); 28 C.F.R. § 36.104. It is unclear whether §
12182(b)(2)(A)(ii) from Title III applies in a Title II case. See 1 Henry H. Perritt, Jr.,
Americans with Disabilities Act Handbook § 5.3, at 201-02 & n.21 (3d ed. 1997)
(preamble to ADA regulations says Title II intends to incorporate only those provisions
of Titles I and III that are consistent with Rehabilitation Act regulations); Innovative
Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997) (Heaney, J.,
sitting by designation) (ADA’s legislative history states Title II’s prohibitions are to be
identical to prohibitions of Titles I and III; no intent to excuse similar discriminatory
conduct by public entities). Title II does not define discrimination as including the
failure to make reasonable modifications, but a Title II regulation states a public entity
must make reasonable modifications in policies when necessary to avoid
discrimination. See 28 C.F.R. § 35.130(b)(7) (1996); see also Weinreich v. Los
Angeles County, 114 F.3d 976, 978-79 (9th Cir. 1997) (absent discrimination on basis
of disability, no duty under this regulation to make reasonable modifications). On the
other hand, public entities discriminate in violation of the Rehabilitation Act if they do
not make reasonable accommodations to ensure meaningful access to their programs.
See Choate, 469 U.S. at 301.

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        We need not resolve whether 42 U.S.C. § 12182(b)(2)(A)(ii) applies in a Title
II case, or whether a reasonable modification or accommodation requirement applies
absent a separate showing of discrimination. Even if either or both apply, we believe
the school board's proposals to establish workable schedules so Kelly's family can give
her the prescribed dosages of Ritalin satisfy these requirements, and anyway, the
waiver requested by the DeBords is not a reasonable modification or accommodation.
There is no precise reasonableness test, but an accommodation is unreasonable if it
either imposes undue financial or administrative burdens, or requires a fundamental
alteration in the nature of the program. See Pottgen, 40 F.3d at 930; Staron v.
McDonald’s Corp., 51 F.3d 353, 356 (2d Cir. 1995). Although the school district has
not made the assertion, adjudication of waiver requests would impose an undue
administrative burden on the school district to verify the safety of an excess dosage in
each individual case. See Pottgen, 40 F.3d at 931. At this time, no one knows what
the long term effects of high doses of Ritalin might be. A waiver of liability might not
be effective, and statutory immunity might not apply. These concerns may be
speculative, but they are not unreasonable. Significantly, the school district is not
preventing Kelly from receiving the medicine she needs for learning. The school
district offered to alter Kelly’s class schedule to permit home administration of Kelly’s
medicine, or to allow Kelly’s parents or their designee to administer her medicine at
school. Kelly’s parents are able to give Kelly her schooltime dose. Like the district
court, we conclude the school district reasonably accommodated Kelly’s ADHD as a
matter of law.

       Because the school district did not discriminate against Kelly on the basis of her
disability as a matter of law, the district court properly granted summary judgment to
the school district on the DeBords’ Rehabilitation Act and ADA claims. The failure
to show a violation of the Rehabilitation Act or the ADA dooms the DeBords’ § 1983
claims based on those federal laws. See Hoekstra v. Independent Sch. Dist. No. 283,
103 F.3d 624, 626 (8th Cir. 1996), cert. denied, 117 S. Ct. 1852 (1997); Pottgen, 40
F.3d at 931. The DeBords’ § 1983 claim based on a violation of the Fourteenth

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Amendment’s Equal Protection Clause also fails. The DeBords did not show the
school district treated Kelly differently from other children with prescriptions exceeding
the PDR’s recommended dosage, and the school district’s refusal to administer the
excess dose is rationally related to the legitimate state interest of protecting students’
health. See Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir. 1994).

      We affirm the district court.

      A true copy.

             Attest:

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




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