                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-3841
                         ___________________________

B.M., a Minor, by and through His Next Friends, Roger Miller and Sharon Miller;
            Roger Miller, Individually; Sharon Miller, Individually

                       lllllllllllllllllllll Plaintiffs - Appellants

                                            v.

                       South Callaway R-II School District

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
               for the Western District of Missouri - Jefferson City
                                 ____________

                          Submitted: September 26, 2013
                             Filed: October 17, 2013
                                 ____________

Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.
                              ____________

GRUENDER, Circuit Judge.

       B.M. and his parents, Sharon Miller (“Ms. Miller”) and Roger Miller
(collectively, “the Millers”), appeal the district court’s1 grant of summary judgment


      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
in favor of the South Callaway R-II School District (“the District”) on their claims
alleging violations of § 504 of the Rehabilitation Act of 1973 (“§ 504”), 29 U.S.C.
§§ 794 and 794a, and Title II of the Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12131 et seq. For the reasons discussed below, we affirm.

I. Background

      B.M., a fourteen-year-old boy, lives in Callaway County, Missouri, and has
attended public schools operated by the District since he was five years old. As a
young child, he never exhibited unusual behavioral difficulties. However, during the
spring of 2007—while he was in second grade—B.M. began to act out at school. In
early April 2007, he was sent to the principal’s office several times for disrupting
class. His misbehavior escalated later that month when he threw chairs, hit two
teachers, and bit and scratched John Elliston, the school’s principal. As a result, B.M.
received a day-and-a-half suspension. On May 1, within days of returning from his
suspension, B.M. threw a chair, overturned desks and a table, and used obscene
language. He was suspended again, this time for portions of four days.

       Being understandably concerned by B.M.’s progressively worsening behavior,
on May 4, 2007, Ms. Miller took him to see Dr. MacElroy, a pediatrician with
expertise treating children with behavioral problems. Dr. MacElroy did not diagnose
B.M. with any behavioral disorder, but rather referred him to the Thompson Center
for further evaluation. Dr. MacElroy also provided Ms. Miller with forms for B.M.’s
teachers to record their observations of his classroom conduct. The District’s
teachers promptly completed the forms. By the end of the 2006-2007 school year,
Ms. Miller had not requested that the District evaluate or accommodate her son under
either § 504 or the Individuals with Disabilities in Education Act (“IDEA”), 20
U.S.C. §§ 1400 et seq.




                                          -2-
       When B.M. returned for his third-grade year, his serious behavioral problems
resumed. That fall, Ms. Miller met several times with Elliston to discuss alternative
strategies for addressing B.M.’s behavior. Elliston encouraged her to take B.M. to
counseling, stressing that she should not delay seeking psychological treatment. He
gave her written information about outside resources that might be helpful. Ms.
Miller also had several extended meetings with Dr. Dustin Storm, the District’s
superintendent.

       In December 2007 or January 2008, Elliston proposed that the District evaluate
B.M. for accommodation under the IDEA. He provided Ms. Miller with forms
required to authorize an IDEA evaluation and asked that she return them to Angie
Tramwell, a school employee, when completed. Ms. Miller refused to complete the
authorization forms. Tramwell is a relative of Roger Miller, and Ms. Miller feared
that involving Tramwell might cause friction within the family and dissemination of
personal information to other family members. Three times Elliston requested that
Ms. Miller complete the authorization forms so that the District could commence the
IDEA process. And thrice Ms. Miller refused to do so, ultimately returning the forms
blank. In response, Elliston told Ms. Miller that she could obtain an evaluation from
an outside party.

      In February 2008, Ms. Miller took B.M. to the Thompson Center, where he was
diagnosed with ADHD. Skeptical of this diagnosis, Ms. Miller took B.M. to see Dr.
Jeff Tarrant, who diagnosed him with dysthymic disorder, a form of depression.
Neither physician recommended evaluation or accommodation under either § 504 or
the IDEA.

      Also in February 2008, B.M. began weekly counseling sessions with Kendall
Grayson. To facilitate her evaluations, the District permitted Grayson to observe
B.M. in class. Grayson recommended that the District provide a “chill-out room” for
B.M. when he became agitated. She also recommended that B.M. be placed with a

                                         -3-
particular teacher for the following school year. The District implemented both of
these recommendations. Despite these efforts, B.M.’s behavioral problems persisted.

        On September 18, 2008—early in B.M.’s fourth-grade year—Ms. Miller
requested for the first time that the District evaluate B.M. under § 504. The District
insisted that it first conduct an IDEA evaluation, which Ms. Miller authorized. When
Ms. Miller expressed concern over the District’s plan to place B.M. in special
education classes for part of the evaluation process, the District adopted her
recommendation that B.M. remain in ordinary classes with assistance from a
“facilitator.” Later, at Ms. Miller’s request, the District replaced the facilitator soon
thereafter. On either October 30 or 31, Ms. Miller again requested a § 504
evaluation, but the District informed her that it would not conduct a § 504 evaluation
until it had completed its IDEA evaluation.

       In late November, the District concluded that B.M. did not qualify for
accommodation under the IDEA and promptly provided Ms. Miller with a § 504
referral form. The District proposed a § 504 education plan on December 1 and
began implementing the plan on December 8. Ms. Miller objected to the details of
the plan and, consequently, pulled B.M. out of school. She also filed a complaint
with the United States Department of Education’s Office of Civil Rights (“OCR”),
alleging numerous statutory and regulatory violations. On January 8, 2009, District
officials presented a revised § 504 plan in a meeting with Ms. Miller, but she rejected
this plan as well. In March 2009, the District proposed yet another § 504 plan.
Finally, Ms. Miller permitted B.M. to return to school under that plan. The District
revised the plan once more in August 2009.




                                          -4-
      In May 2010, OCR completed its investigation and concluded that the District
had failed to comply with two regulations implementing § 504 and the ADA.2
However, OCR found that the record did not support Ms. Miller’s other twelve
complaints, including her allegations that the District failed to evaluate B.M.,
implement a § 504 plan, or consider adequately her input. The OCR decision did not
suggest any wrongful intent by the District.

       On January 20, 2011, the Millers filed this action raising claims under § 504
and the ADA. The Millers premised their claims on the District’s alleged failures to
evaluate and accommodate B.M. and to comply with statutory procedural
requirements. The District moved for summary judgment on several grounds. The
district court granted the District’s motion, holding that the Millers had failed to
exhaust their administrative remedies under the IDEA.3 The Millers filed a motion
for reconsideration, arguing that they should be excused from exhausting their
administrative remedies because exhausting those remedies would be futile. The
district court granted the Millers’ motion in part, vacated its prior order, and again
granted summary judgment in favor of the District, this time on the ground that there
was no genuine dispute whether the District had acted in bad faith or with gross
misjudgment. The Millers filed a second motion for reconsideration, arguing for the


      2
       OCR concluded that the District had used erroneous criteria in determining
whether its suspensions of B.M. constituted a significant change in educational
placement warranting a manifestation hearing. OCR further concluded that the
materials provided by the District explaining statutory procedural safeguards
provided inadequate detail regarding the complaint and hearing process. The District
entered into voluntary compliance agreements with OCR to remedy both violations.
      3
       Although the Millers did not raise claims under the IDEA, a party must
exhaust the administrative remedies available under the IDEA before bringing a claim
under a different statute seeking relief that is also available under the IDEA. J.B. ex
rel. Bailey v. Avilla R-XIII Sch. Dist., 721 F.3d 588, 592 (8th Cir. 2013) (citing 20
U.S.C. § 1415(l)).

                                         -5-
first time that they need not show that the District had acted in bad faith or with gross
misjudgment. The district court denied the motion, and the judgment became final.
The Millers timely appealed the grant of summary judgment.

II. Discussion

        We review a district court’s grant of summary judgment de novo, affirming if
“there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The non-moving party receives
the benefit of all reasonable inferences supported by the evidence, but has ‘the
obligation to come forward with specific facts showing that there is a genuine issue
for trial.’” Atkinson v. City of Mountain View, 709 F.3d 1201, 1207 (8th Cir. 2013)
(quoting Dahl v. Rice Cnty., 621 F.3d 740, 743 (8th Cir. 2010)). A complete failure
by the non-moving party “to make a showing sufficient to establish the existence of
an element essential to that party’s case . . . necessarily renders all other facts
immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

       Title II of the ADA prohibits public entities, including public schools, from
excluding qualified individuals with disabilities from participation in or benefits from
that entity’s services, programs, or activities. 42 U.S.C. § 12132. Similarly, § 504
of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a
disability . . . shall, solely by reason of his or her 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). “We
have held that the enforcement, remedies, and rights are the same under both Title II
of the ADA and § 504 of the Rehabilitation Act.” Birmingham v. Omaha Sch. Dist.,
220 F.3d 850, 856 (8th Cir. 2000). On appeal, the parties do not contest that these
statutes apply to the District or that B.M. is a qualified individual.




                                          -6-
       We have consistently held that “[w]here alleged ADA and § 504 violations are
based on educational services for disabled children, the plaintiff must prove that
school officials acted in bad faith or with gross misjudgment.” Birmingham, 220 F.3d
at 856; see also M.Y. ex rel. J.Y. v. Special Sch. Dist. No. 1, 544 F.3d 885, 888 (8th
Cir. 2008). Despite our longstanding adherence to this requirement, the Millers offer
several arguments for why we should not obligate them to show that the District acted
in bad faith or with gross misjudgment. The Millers did not contest application of the
bad faith or gross misjudgment requirement in their opposition to summary judgment.
Rather, they first challenged the requirement in their second motion for
reconsideration, and they raise some of their arguments for the first time on appeal.
“[I]n an appeal contesting an adverse grant of summary judgment,” “a party cannot
assert arguments that were not presented to the district court in opposing summary
judgment.” Trs. of Electricians’ Salary Deferral Plan v. Wright, 688 F.3d 922, 926
(8th Cir. 2012) (quoting Cole v. Int’l Union, 533 F.3d 932, 936 (8th Cir. 2008)); see
also Winthrop Res. Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 469 (8th Cir.
2004) (declining to consider arguments first raised in Rule 59(e) motion). The
Millers have not preserved these arguments for appellate review, and thus we will not
consider them. Accordingly, we proceed to consider whether the district court
properly concluded that there was no genuine dispute whether the District acted in
bad faith or with gross misjudgment.

        In order to establish bad faith or gross misjudgment, a plaintiff must show that
the defendant’s conduct “depart[ed] substantially from ‘accepted professional
judgment, practice or standards [so] as to demonstrate that the person[s] responsible
actually did not base the decision on such a judgment.’” M.Y., 544 F.3d at 889
(quoting Monahan v. Nebraska, 687 F.2d 1164, 1170-71 (8th Cir. 1982)) (third
alteration in original). Because the ADA and § 504 do not “creat[e] general tort
liability for educational malpractice,” bad faith or gross misjudgment requires
“something more” than mere non-compliance with the applicable federal statutes.
Monahan, 687 F.2d at 1170. The defendant’s statutory non-compliance must deviate

                                          -7-
so substantially from accepted professional judgment, practice, or standards as to
demonstrate that the defendant acted with wrongful intent. M.Y., 544 F.3d at 889.

       The Millers identify several facts that they believe support a showing of bad
faith or gross misjudgment by the District. They rely heavily on OCR’s findings that
the District failed to comply with certain regulations implementing § 504 and the
ADA. They also cite several other facts, including (1) the District’s repeated
suspensions of B.M.; (2) the District’s insistence that it first evaluate B.M. under the
IDEA, which could have resulted in him being placed in special education; (3) the
District’s failure to conclude that B.M. qualified for accommodation under § 504 until
December 2008, even though Elliston’s original proposal to evaluate him under the
IDEA suggests notice of his possible disability as early as December 2007; and (4)
the District’s failure to implement an adequate § 504 plan until March 2009.

      These facts, even when viewed in the light most favorable to the Millers, do not
show bad faith or gross misjudgment by the District. The Millers have not presented
any evidence regarding what an accepted professional judgment would have been
under the circumstances or how the District’s conduct substantially departed from
such a judgment. Nor do these facts support even an inference of wrongful intent by
the District. Most of the facts cited by the Millers amount to nothing more than
possible instances of statutory non-compliance. As noted above, statutory non-
compliance alone does not constitute bad faith or gross misjudgment. Our cases
require “something more,” and here the Millers have not made that showing.

       The Millers’ allegations that the District delayed § 504 evaluation and
accommodation, despite having notice of B.M.’s disability, do not support a finding
of bad faith or gross misjudgment. Under some circumstances, notice of a student’s
disability coupled with delay in implementing accommodations can show bad faith
or gross misjudgment. See, e.g., M.P. ex rel. K. v. Indep. Sch. Dist. No. 721, 326 F.3d
975, 982-83 (8th Cir. 2003). However, in this case, the delays must be evaluated

                                          -8-
within the context of the District’s numerous and continuous attempts to assist B.M.
The District was the first party to propose accommodation for B.M., repeatedly
seeking authorization to pursue the IDEA evaluation process. Ms. Miller refused
three times to authorize those evaluations. Even so, the District continued to
cooperate with Ms. Miller in seeking to address B.M.’s behavioral issues. Elliston
and Dr. Storm each met with Ms. Miller numerous times regarding B.M. Elliston
encouraged Ms. Miller to seek counseling for B.M. and provided her with
information about outside resources that might be helpful. The District’s teachers
cooperated with Dr. MacElroy’s request that they provide their observations of B.M.
at school. The District permitted Grayson to observe B.M. in class and implemented
her recommendations regarding the “chill-out room” and B.M.’s teacher assignment.
At Ms. Miller’s request, the District assigned B.M. a “facilitator” to assist him in
class and replaced the facilitator at Ms. Miller’s direction. Once the District finally
was able to complete an IDEA evaluation, it promptly implemented a § 504 plan and
then twice revised it to address Ms. Miller’s concerns. Nothing in the record suggests
anything more than disagreement between a school and a concerned parent as both
struggled to meet B.M.’s needs. Under these circumstances, the ADA and § 504 do
not permit the federal courts to second-guess the educational decisions of school
officials. In light of the District’s persistent efforts to aid B.M., no reasonable jury
could conclude that the delays in accommodating him resulted from bad faith or gross
misjudgment by the District. See Smith v. Hy-Vee, Inc., 622 F.3d 904, 907 (8th Cir.
2010) (explaining that summary judgment is appropriate when “no reasonable jury
could return a verdict for the non-moving party”).

III. Conclusion

       Because the Millers have failed to present evidence of bad faith or gross
misjudgment by the District—an essential element of their claims—we affirm the
district court’s judgment.
                       ______________________________

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