By Peggy Burns, Esq.

School districts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, and the Dakotas can breathe a sigh of relief now that the 8th Circuit Court of Appeals has issued its ruling in Timothy H. v. Cedar Rapids Community School District. The case concerned Kratisha, a special education student whose parents wanted to have her "choiced in" to a school in the district which was not her neighborhood school. Kratisha, who has cerebral palsy, spastic quadriplegia, multiple orthopedic problems, and severe communication disabilities, attended Thomas Jefferson High School, where it is not contested that she was receiving a free appropriate public education (FAPE).

Her IEP required special transportation services - a lift bus and establishment of a special route - which were provided when she attended her neighborhood school. Her parents wanted her to attend John F. Kennedy High School under the district's intra-district transfer policy. That policy provided in part: "Parents shall be responsible for the transportation of students not attending their resident area school." When the district refused, the parents filed a claim under Section 504 of the Rehabilitation Act of 1973 ("§504").

The school district demonstrated that it would cost approximately $24,000 per year to provide the needed specialized transportation services in connection with her attendance at Kennedy. But the actual amount involved did not matter to the 8th Circuit. Instead, the court ruled that "requiring the school district to spend any amount of money to provide transportation to students participating in its intra-district transfer program would fundamentally alter the main requirement of a program designed to be of no cost to the school district - parental transportation." Thus, the court said that the specialized transportation would amount to an undue burden on the school district, and it was not necessary to provide it.

In rendering its decision, the court noted that Kratisha was not denied the benefits of an education program receiving federal funds (an essential element of a §504 claim). Indeed, the district had granted her application of transfer. Moreover, the applicable transportation policy was applied across the board to all students, whether disabled or non-disabled. No special treatment was given to anyone whether or not they had access to transportation necessary to allow them to attend a choice school.

This case is of considerable importance to transporters. So long as your school district's intra-district transfer, or "choice," policy uniformly provides that parents are responsible for transportation to choice schools, you can argue that any additional expense to the district which would result from the provision of transportation to any student would fundamentally alter the choice program. Under §504, districts do not need to provide accommodations which fundamentally alter a program, or would otherwise provide an undue burden to school districts. Such accommodations are not considered to be "reasonable accommodations." Remember: for this argument to apply, the student must be receiving FAPE at the neighborhood school.

While the 8th Circuit Court of Appeals found irrelevant the actual amount of money the requested transportation would cost, school districts should be able to present good evidence to establish the relevant expense, if challenged.

* Source: Reprinted from the August 1999 edition of School Transportation News