UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
MS. C., on their her own behalf and as next No: 3:20-cv-00512 (KAD) Friends of A.N., Plaintiff,
v.
MIDDLETOWN BOARD OF September 29, 2021 EDUCATION, Defendant.
ORDER DISMISSING CASE
On July 20, 2021, this Court ordered the parties to file supplemental briefs addressing
whether this appeal from an administrative decision of the State of Connecticut Department of
Education dated March 25, 2020 brought by the Plaintiff (the “Parent”) under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., has been rendered moot.
Specifically, the Parent challenges the decision of the State’s Impartial Hearing Officer which held
that the Middletown Board of Education (the “Board”) met its substantive obligation to provide
A.N. (the “Student”) a free appropriate public education (“FAPE”) under the IDEA for the 2019-
2020 school year, including extended school year 2019. As noted previously, the individualized
education program (“IEP”) offered by the Board and approved by the Hearing Officer
recommended that A.N. be placed in-district at Spencer Elementary School with Intensive Case
Management (“ICM”) for the 2019-2020 school year. The Parent seeks reversal of the Hearing
Officer’s decision and an order directing that A.N. be placed at Intensive Education Academy
(“IEA”), a private special education placement in West Hartford, CT. The Court has reviewed the
parties’ supplemental briefs addressing whether a live controversy remains with respect to the
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challenged IEP. (ECF Nos. 26–28.) For the reasons that follow, the Court concludes that the
appeal is moot and the case is accordingly dismissed for lack of subject matter jurisdiction.
Legal Standard
“A party seeking to have a case dismissed as moot bears a heavy burden.” Lillbask ex rel.
Mauclaire v. State of Conn. Dep’t of Educ., 397 F.3d 77, 84 (2d Cir. 2005). “A case becomes moot
when it no longer satisfies the ‘case-or-controversy’ requirement of Article III, Section 2 of the
Constitution.” United States v. Williams, 475 F.3d 468, 478 (2d Cir. 2007). To satisfy this
“requirement, a party must, at all stages of the litigation, have an actual injury which is likely to be
redressed by a favorable judicial decision.” Id. at 479 (quotation marks and citations omitted).
“Generally, ‘if an event occurs during the course of the proceedings or on appeal that makes it
impossible for the court to grant any effectual relief whatever to a prevailing party, [the Court]
must dismiss the case.’” Id. (quoting United States v. Blackburn, 461 F.3d 259, 261 (2d Cir.
2006)). “Nonetheless, an exception exists for cases that are ‘capable of repetition, yet evading
review’—that is, cases where ‘(1) the challenged action is in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same
complaining party will be subjected to the same action again.’” F.O. v. New York City Dep’t of
Educ., 899 F. Supp. 2d 251, 254 (S.D.N.Y. 2012) (quoting Van Wie v. Pataki, 267 F.3d 109, 114
(2d Cir. 2001)). “[T]his ‘exception to mootness principles is severely circumscribed and applies
only in exceptional situations.’” Id. (quoting Knaust v. City of Kingston, 157 F.3d 86, 88 (2d Cir.
1998)) (brackets and ellipsis omitted).
Discussion
A.N. is eligible for special education services pursuant to the IDEA’s OHI-ADD/ADHD
classification. (See B-15 at 1.) She suffers from challenges with, inter alia, maintaining attention
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and regulating her behavior, a low IQ, and reduced proficiency in reading, math, and writing.1 In
this appeal, the Parent challenges the sufficiency of the IEP offered by the Board to the Student for
the 2019-2020 school year, during which time A.N. was in fourth grade.2 The Parent asserts that
the Board erred in failing to recommend A.N.’s continued placement at IEA, which A.N. attended
beginning in the middle of her second-grade year (2017-2018) following a settlement between the
parties regarding A.N.’s academic placement for the 2017-2018 and 2018-2019 school years.
Thus, two entire school years have passed since the Board presented the IEP that is the subject of
this appeal. And the Parent does not seek tuition reimbursement for A.N.’s prior attendance at
IEA; she instead prays for injunctive relief—requesting that the Court order A.N.’s continued
placement at IEA. However as the Board has confirmed in its supplemental brief, A.N. is now
subject to a new IEP, pursuant to which A.N. has been placed in the ICM program at Keigwin
Middle School in Middletown. In light of these developments, the question is whether the Parent’s
challenge to the 2019-2020 IEP is too short to be litigated fully prior to its expiration and, if so,
whether there is a reasonable expectation that the Student will be subject to the same IEP again so
as to satisfy the exception to mootness for cases that are capable of repetition yet evade judicial
review.
The parties agree that “because the administrative and judicial review of an IEP often takes
more than the nine months that any given school year is in session such that the review is not
complete until after the IEP has expired,” the instant “IEP dispute satisfies the first criteria for
1 The record in this case is expansive, to include eleven days of evidentiary hearings at the administrative level. The Court does not recount the factual or procedural history concerning the Student’s disability at the time of the Hearing Officer’s decision in light of its conclusion that it is without jurisdiction to reach the merits of the Parent’s claims. 2 The IEP is “[t]he centerpiece of the IDEA’s educational delivery system” and serves as “a written statement that sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.” D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 507–08 (2d Cir. 2006), opinion amended on denial of reh’g, 480 F.3d 138 (2d Cir. 2007) (quotation marks and citations omitted).
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avoiding a mootness dismissal.” B.J.S. ex rel. N.S. v. State Educ. Dep’t/Univ. of State of N.Y., 815
F. Supp. 2d 601, 612 (W.D.N.Y. 2011). However they disagree at the second step of the analysis
as to whether there is a reasonable expectation that the Board will subject A.N. to the same action
again, such that a live controversy remains as to the appropriateness of the 2019-2020 IEP.
In Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S.
176 (1982), the Supreme Court interpreted the standard under which courts are to assess whether
a student has been provided a FAPE under the IDEA’s predecessor statute. The dispute in that
case centered on the IEP provided a deaf student for a school year that had since passed. But the
Supreme Court observed that “[j]udicial review invariably takes more than nine months to
complete, not to mention the time consumed during the preceding state administrative hearings,”
and therefore concluded that the district court “retained jurisdiction to grant relief because the
alleged deficiencies in the IEP were capable of repetition as to the parties before it yet evading
review.” Id. at 186 n.9. The Parent argues that just “as in Rowley, this Student can be subject to
the same IEP,” as “[i]t is not only possible but highly likely that the student will continue to be
offered an IEP in public school in regular education grade level classes with minimal resource
support and related services, which is what was offered in the IEP in question.” (Pl.’s Supp. Br. at
3.) The Parent further notes that the challenged IEP does not specify placement at Spencer School
in Middletown but, rather, provides for placement within the more generic ICM model, which
remains a viable option from elementary through high school.
However the Second Circuit has cautioned that the mere possibility that a student will be
subject to the same placement as that proposed in a prior IEP is insufficient to satisfy the exception
to mootness, as such possibility “exists in the case of every disabled child who is presently in a
mainstream classroom and for whom a new IEP must be prepared annually.” Lillbask, 397 F.3d
at 88. Therefore, “[a] plaintiff must point to something more in the record to lift that possibility 4
beyond the speculative.”3 Id. In Lillbask, the Second Circuit held that the student’s challenge to
an IEP which offered him placement outside of the Redding, CT public schools was rendered moot
by the defendants’ acknowledgment that the student was now thriving in the Redding public
schools and by their representation that they would no longer seek to remove him from that
placement. See id. at 87–88. The Parent therefore argues that Lillibask is distinguishable because
the Board here has not signaled any intention to place A.N. at IEA and instead continues to
maintain the propriety of a public school placement.
The Parent also distinguishes other cases that similarly found that an intervening
circumstance rendered the contested IEP inapplicable or irrelevant. See, e.g., Ostby v. Manhattan
Sch. Dist. No. 114, 851 F.3d 677, 682 (7th Cir. 2017) (deeming appeal moot where the student was
“no longer subject to the challenged IEP” and the school district disavowed its further intent to
transfer him to the program reflected in the IEP to which the parents had objected); B.J.S. ex rel.
N.S., 815 F. Supp. 2d at 611–13 (finding challenge to proposed IEP moot where IEP was never
implemented and was subsequently superseded by new IEP); Patskin v. Bd. of Educ. of Webster
Cent. Sch. Dist., 583 F. Supp. 2d 422, 429 (W.D.N.Y. 2008) (holding that action was moot where
the student was no longer eligible for placement at the school recommended in the challenged IEP).
In her reply brief the Parent synthesizes these cases as standing for the categorical proposition that
“in order to be found moot the student would need to have moved, the parties would have had to
come to agreement or the Board would have had to agree to stop the challenged action.” (Reply
at 1.) She contrasts these factual scenarios with that presented in Student X v. New York City Dep’t
of Educ., No. 07-CV-2316 (NGG) (RER), 2008 WL 4890440 (E.D.N.Y. Oct. 30, 2008), where the
3 While, as noted, the defendant bears the burden of establishing mootness, it is the plaintiff who must “make a reasonable showing that [she] will again be subjected to the alleged illegality” when invoking the exception for cases that are capable of repetition yet evade review. City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983).
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district court held that a challenge to an IEP that had been superseded by a later IEP continued to
present a live controversy. There, the later IEP “was substantively identical to the” earlier IEP,
and the defendant had continued to defend both IEPs and had not changed its position that the
student did not require at-home services, which the plaintiffs contested. See id. at *14. The district
court accordingly concluded that the dispute was capable of repetition yet evading review. Id. The
Parent argues that the same reasoning applies here because the Board continues to defend its refusal
to place A.N. at IEA notwithstanding the development of a superseding IEP or IEPs.
It is true that the Board has not assented to the Parent’s requested placement at IEA and
continues to defend the appropriateness of the public school placement using the ICM model. As
the Board points out in its supplemental brief, however, the parties are in different positions today
than they were when the Hearing Officer issued her decision on March 25, 2020. While the Parent
initially maintained unilateral placement of A.N. at IEA, A.N. returned to Middletown Public
Schools in January 2021 and received virtual instruction under the hybrid learning model offered
during the 2020-2021 school year.4 (Farquharson Decl. ¶¶ 4–5, ECF No. 27-1.) Following
subsequent evaluation of A.N. and a PPT meeting held in February 2021, A.N. was placed in the
ICM program at Spencer School for the remainder of that school year. (Id. ¶¶ 6–7.) Another PPT
meeting was held in May 2021 and “[b]ased on the Student’s experience from January 2021 to
May 2021, the PPT again recommended placement in the ICM module at Keigwin Middle School
for the 2021-2022 school year.” (Id. ¶¶ 9–11.) A.N. is currently enrolled in the Middletown Public
Schools for the 2021-2022 school year. (Id. ¶ 12.)
4 In her reply the Parent asserts that the Board has “insert[ed] supplemental information into its brief including an affidavit with no authority to do so.” (Reply at 3.) However the Court specifically permitted the parties to “supplement the record, if appropriate” in its Order directing supplemental briefing. (ECF No. 23 at 5.) And it is well established that a court “may consider materials outside the record for the purpose of determining whether subject matter jurisdiction exists.” Guy v. Moynihan, No. 3:17-CV-00014 (SRU), 2017 WL 2661620, at *1 (D. Conn. June 20, 2017).
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As discussed above, mootness can derive from circumstances which render it impossible
for the Court to provide any redress for the claimed injury. Williams, 475 F.3d at 479.
And, therefore, the Court looks, in part, to the relief sought in making the assessment of whether a
claim is moot. See, e.g., Ramos v. New York City Dep’t of Educ., 447 F. Supp. 3d 153, 157
(S.D.N.Y. 2020) (“The hallmark of a moot case or controversy is that the relief sought can no
longer be given or is no longer needed.”) (quoting Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d
Cir. 1983)). Here, the Parent seeks only forward-looking placement at IEA for the 2021-2022
school year. But the information and data contained in the present record, which would inform the
Court’s analysis as to whether the Board denied A.N. a FAPE for the 2019-2020 school year and
whether she should have been placed at IEA during that school year, is completely different from
the information that would guide the question of whether to grant this relief today. That is, were
the Court to reverse the decision of the Hearing Officer and hold that the IEP recommending
placement at Spencer School for 2019-2020 was deficient, it does not follow that the Court could
order placement at IEA for 2021-2022 without consideration of A.N.’s more recent progress and
evaluations, which are not part of the record before the Court. Indeed, the Court is simply without
the information needed or the expertise required to determine whether A.N. should be placed in
IEA at this juncture of her education. See J. T. v. D.C., 983 F.3d 516, 524–25 (D.C. Cir. 2020)
(“[I]f we were to decide now whether the 2017 IEP provided V.T. with a FAPE in 2017, the
decision would not determine whether an IEP provides V.T. with a FAPE today or in the future,”
a “conclusion [which] necessarily follows from the IDEA’s requirement that every IEP include ‘a
statement of the child’s present levels of academic achievement and functional performance’ and
set out ‘measurable annual goals, including academic and functional goals.’”) (quoting 20 U.S.C.
§§ 1414(d)(1)(A)(i)(I)–(III)). Indeed, the Hearing Officer’s decision itself was confined to the
narrow issue of “whether IEA is the appropriate program for the student ‘and should the Board be 7
ordered to place the Student at IEA for the 2019-2020 school year’”—not whether the Board should
be ordered to place A.N. at IEA for any subsequent school years. (Hearing Officer Decision at 42
n.12, ECF No. 1-2.)
The Court therefore agrees with the Board that it is without authority to issue “an advisory
opinion concerning a prior school year for which no relief can be awarded,” that “would then bind
the parties in future years.” (Def.’s Br. at 6.) As the Seventh Circuit explained in a case involving
an IDEA appeal that became moot following the student’s transfer to another school district:
The dispute over the 2002–2003 IEP [when the student was in kindergarten] turned on whether Bobby was ready for full-time mainstream class. Now, as a nine-year old, Bobby’s readiness for mainstream education presents a different question calling for reassessment of his educational development. Were we to decide, at this later date, whether mainstreaming was right for Bobby back in 2002–2003, we would be issuing, in effect, an advisory opinion. Our decision would merely tell the parties who was correct about Bobby’s outdated IEP. It would do nothing to define the contours of the parties’ continuing legal relationship under the IDEA such that future repetitions of the injury could be avoided. Brown v. Bartholomew Consol. Sch. Corp., 442 F.3d 588, 599–600 (7th Cir. 2006). Here, too, a
favorable decision concluding that the Board violated A.N.’s right to a FAPE in 2019-2020 would
do little to inform the decision as to whether IEA is an appropriate placement for A.N. as a sixth
grader.5 See also Nathan M. by & through Amanda M. v. Harrison Sch. Dist. No. 2, 942 F.3d 1034,
1046 (10th Cir. 2019) (“concluding that “[a]lthough Parent and the District may continue to lock
horns over Nathan’s educational placement, their dispute has not sharpened into a specific legal
5 The Parent argues that Brown is distinguishable because the student in that case had moved to another school district, where he was subject to a new IEP. However the court’s mootness determination was predicated not on the relocation but, rather, on the fact that the parents had sought only injunctive relief and the court could not determine whether the student was entitled to that injunctive relief in the context of the student’s current grade level and on the basis of an outdated IEP. The same reasoning applies here. Cf. L.D. v. Sumner Cty. Sch., 299 F. Supp. 3d 901, 908–09 (M.D. Tenn. 2018) (“The fact that [the student] has unilaterally changed schools does not, by itself, make the case moot, particularly because his parents challenge to SCS’s decision was made prior to the move. What makes the case moot is any allegation or evidence from Plaintiffs that, if, and when [the student] returns to an SCS school, he will be the same boy as when he left, as opposed to an autistic child who presents ‘an evolving set of challenges for educators.’”) (quoting Brown, 442 F.3d at 599) (internal citations omitted).
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controversy that this court is capable of resolving,” where a “ruling on the merits . . . would tell
the parties who was right about Nathan’s 2016 IEP, but nothing more,”—a conclusion which was
“especially true given that, since 2016, Nathan has matriculated from elementary to middle school,
and the District now recommends he be placed in a different school . . . which may have different
capacities, offer different services, or present unique challenges to Nathan’s continuing education
and development”).
Nor is the Court persuaded by the Parent’s circular argument premised on the “stay put”
provision of the IDEA that “[if] this Court overturns the decision of the hearing officer, placement
at IEA becomes the ‘then current educational placement’ of the Student, not Middletown public
schools, and will remain the ‘then current educational placement’ throughout any further legal
action.” (Reply at 3 (citing 20 U.S.C. § 1415(j)).) This argument is, in essence, that the case is
not moot because if the Parent prevails she will procure the relief she seeks—a result that obtains
in any case resulting in a favorable decision for the plaintiff. That the Parent believes she is entitled
to a favorable decision is not questioned, but that does not change the inescapable fact that the
Court cannot order the redress she seeks on the basis of an outdated record and an outdated IEP.
Conclusion
For the foregoing reasons, this matter is dismissed for lack of subject matter jurisdiction
and the Clerk of the Court is directed to close the case.
SO ORDERED at Bridgeport, Connecticut, this 29th day of September 2021.
/s/ Kari A. Dooley KARI A. DOOLEY UNITED STATES DISTRICT JUDGE
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