Impartial Hearing Decision

ORDER ISMISSAL

511189

Student Name:

Date of Birth: November 31 2000

District:

Hearing Requeste By: Parent/Guardian

Dates of Hearing: None

Actual Record Cl se Date: August 11 2018

Hearing Officer: Jeffrey J. Schiro, Esq.

RECEIVED

AUG 1 0 2018

OFflCE OF SPECIAL EDUCATION

DUE PROCESS UNIT

ND TITLES OF PER

Parent/Guardian

I. PROCEDURAL HISTORY

This impartial due process proceeding ises under the Individuals with Disabilities Education Act C'lDEA"), 20 U.S.C, §§ 1400-1 2, and Article 89 of the New York State Education Law. This hearing was requested by he student1 s guardian in a January 9, 201S due process complaint (Ex. IH0-1). On January 10, 201 S, the School District (the

"Dis.trict") appointed me to preside over this m ter. See 8 NYCRR § 200.50)(3)(i). In a letter dated March 5, 2018, I informed the parties of y prior professional background, highlighted the applicable legal standards, and sought the parti , availability for a prehearing conference (Ex.

IHO-II). Prehearing conferences with the parti were held on April 23, 2018 and July 18, 201 B to clarify the hearing issues and set dates for th impartial hearing. See 8 NYCRR §

200.5O)(3)(x.i).

On July 25, 2018, the District moved to ismiss the parent's due process complaint (Ex.

IHO-III). The student's guardian opposes the istrict's motion (Ex. IHO-IV). For the reasons set furth below, the District's motion to dismiss January 2018 due process complaint is

GRANTED.

II. FINDIN

As a general matter, although the use of ummary disposition procedures akin to those used in judicial proceedings are permissible un r the IDEA, they should be used with caution and are appropriate in instances in which the pa ies have had a meaningful opportunity to present evidence and the nonmoving party is un ble to identify a genuine issue of material fact.

See J.D. v. Pawlet Sch. Dist., 224 F.3d at 60, 69 (2d Cir. 2000); Application ofa Student with a Disability (New York City Sch. Dist.), Appeal o. 11-090 at 3 n.3 (SRO Sept. 15, 2011); App/icalton ofa SiudenJ S!,1Spected ofHCI\'ing a isobilit:y, Appeal No. 11-044 at 5 n.5 (SRO June 22, 201 I).

Based on the analysis set forth below, I nclude that the matter should be dismissed with prejudice as moot. It is well settled that the dis ute between the parties must at all stages be "real and live," and not "academic," or it risks oming moot. See Li/lb011kv. State of Ccmn,

Dep'I of Educ., J97 F.3d 77, 84 (2d Cir. 2005); a/skin v. Bd of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008); JN v. Depew Union Free S Dist., 2008 \VL 4501940, at •3.•4 (W.D.N.Y.

Sept. 30, 2008); see al.so Cherder v. Richard W. 82 N.Y.2d 830, 832 (1993); Hearsr Corp. v.

Clym, 50 N. Y.2d 707, 714 ( 1980). In determin ng who:rther a controversy has become moot, the relevant inquiry is whether the facts alleged, u er all circumstances, show that there is a substantial controversy ofsufficient immediacy and reality to Wairant relief. See Christopher P.

v. Marcus, 915 F.2d 794, 802 (2d Cir. 1990). ootness may be raised at any stage of litigation.

See In re Kurtwrr:111, 194 f.3d 54, 58 (2d Cir. I

Administrative decisions rendered in ca that concern such issues that arise out of school years since expired may no longer appro riatcly address the current needs of the student.

See Daniel RR. v. El Paso lndep. Sch. Dist., 81 F.2d 1036, 1040 (5th Cir. 1989); }vf.S~ v. New

York City Dept. of Educ., 734 F. Supp. 2d 271, 80-81 (E.D.N.Y. 2010). In genera!, cases dealing with issues such as desired changes in I Ps, specific placements, and implementation disputes may become moot at the end of the sch ol year because no meaningful relief can be granted. See V:M. v. Na. Colonie Cent. Sch. Di t., 2013 WL3l87069, at•13.•15 (N.D.N.Y.

June 20, 2013); Application ofa Student with a isabi/ity (New York City Dep't of Educ.), Appeal No, 12-205 at 8 (SRO July 31, 2014).

The case is now moot as there is no live controversy, nor meaningful relief that I can grant the student at this time. In her January 20 8 due process complaints the student's guardian asserted that he was not allowed to retum to his lacement following an out-of-school suspension, The evidence contained in the g record reflects that the disputed school year, i.e., the 2017/18 school year, has now expired d that the District's Committee on Special Education (the ~•cSE") reconvened to recomme d that the student return to the guardian's preferred placement. On April 19, 2018, the C E recommended that the student receive the majority of his instruction in an 8:1+1 special c s operated by the ma public school (Ex. IHO-V).

Alternatively, an exception to the mootn s doctrine provides that a claim may not be moot. if the conduct complained of is "capable frepetition, yet evading review." See Honig v,

Doe, 484 U.S. 305, 318~23 (1988); Lillbask1 39 P.3d at 84-85; Daniel R.R., 874 F.2d at 1040.

The exception applies only in Jimited situations see City of Los Angeles v. Lyons, 461 U.S. 95,

I09 (1983), and is severely circumscribed, see naust v. City of Kingston, 157 P.3d 86. 88 (2d Cir. 1998). First1 it must be apparent that "the c atlenged action was in its duration too short to be fully litigated prior to its cessation or expi.rat on. 11 See Murphy -v. Hunt, 455 U.S. 478, 482

(1982); Knaus~ 157 F.3d at 88. Second, contro ersies are "capable ofrepetitionn when there is a reasonable expectation that the same complaini g party would be subjected to the same l:l.ction again. See Weinstein v. Bradford, 423 U.S. 147 149 (1975); Hearst Carp.~ 50 N.Y.2d at 714-15.

To create a reasonabJe expectation of recurren • repetition must be more than theoretically possible. See Murphy, 455 U.S. at 482; Russm v, Board of Educ,, 260 F.3d 114, 120 (2d Cir.

200 l ). Mere speculation that the parties will be involved in a dispute over the same issue does net rise to the level of a reasonable expectation r demonstrated probability of recurrence. See

Russman, 260 F.3d st 120.

Here, there is nothing in the limited rec d before me to demonstrate that the conduct the student's guardian complained of would evade view. If the CSE fails to implement the April 2018 IEP, or otherwise fails to comply with the DEA, the student,s guardian is entitled to exercise her due process rights, including the r' ht to an impartial hearing. See Christopher P.,

915 F.2d at 802.

While complaints seeking compensato education or compensatory additional services c1J.n survive a mootness challenge as they prese an ongoing and live controversy beyond a given school year or a student's graduation, see, e.g., Application ofa Student »1th a Disability (New Ycrk City Dep•t of Educ.), Appeal No. 1 -179 at 9 (SRO March 26, 2015); Application of a Student wilh a Disability (Orchard Park Cent. Sch. Dist.), Appeal No. 13-189 at 7 {SRO April lo. 20 I :S), the guardian; s January 2018 due pro ess complaint does not .seek such relief, only the student's return to his placement, whic the April 2018 CSE has agreed to do (Exs.

IHO-l, lHO-V). 1

1Compensatory education is a form of relief ava fable where lhere has been a denial ofa FAPE. See E.M.

11. New YorA: Cit); De.p't of Educ., 758 F.3d 442,451 {'2rl r. 2014}; Frrtf"/Ch-v. New York State .Dep't of Educ., 476 Fed, A.pp'x 468, 471-72 (ld Cir. Nov. 31 lOI 1}; P. v. New ngkm Bd afEduc,, 546 F,3d 111. 123 {2d Cir. '2008). Compensatory ed1,1cation is an equitable remedy that is ta lored to meet the unlque circumstances ofeach case. See Wenger 11. Cal'laslofa Cent. Sch Dut.• 919 F. Supp. 147, SO·Sl (N,0.N.Y. 1997). affd208 F.3d 204 (2d Or. 2000), cert. denied 531 U.S. 1019 {2000). With!n the S ond Circuit~ compemntory education hu been awm"dod to studen1s who ure ineligible by reoson of age ~ graduatio ifthere has been a gross 't'iolation of th IDEA resulting In the denial of, or exclusion from, edocational services a substantial period oftime-. Sse Somom v. New Yol'k Cizy Dr!p'I of Educ., 538 F.3d 106, 109 n.2, l 13 n.6 {2d Cr, 2008); Mr.'1. C v. Whi.aton, 916 F.2d 69, 75 (2d Cir. 1990}. Burr"'· Ambach, 363 F.2d J07I (2d Cir. 19&3), C pensatory education relief may also be awarded to a student with D disability who remains eligible for instruct n under the IDEA. See 20 U.S.C. §§ 1401(3), l412(aXlXB}; N.Y. Educ. Law§§ 3202(1), 4401(1). 440 (5). SROs have awarded compensatory services to students who remain eligible to attend school and have n denied approp:riate setvlces, if such d\lprivatlon of instruction could be remedied through the pro't'ision ofad itional services before the student becomes ineligibll:' for

III. ORQIB

NOW, IBEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED THAT:

The Districfs motion to dismiss the Jan ary2018 due process complaint is GRANTED and the matter is hereby DISMISSE.D in its ent

Dated: August 7, 2018

instruction by reason ofage or graduation. See Board of due. of City Si:h. Dist. of Buffalo v. Munaz, 16 A.D.3d 1142 (4J.h Dep't 2005 ).

PLEASE TAKE NOTICE

Within 40 days of the date of this dee lun, the parent and/or the public school district bas a right to appeal the decision to State Review Officer ("SRO") of the New York State Education Department under Se tion 4404 of the Education Law and the Individuals with Disabilities Education Act

If either party plans to appeal the dee slon, a notice of intention to seek review shall be personally served upon the opposing pa no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for revi shall be personally served upon the opposing party within 40 days from the date f the decision sought to be reviewed. An appealing party shall file the notice ofintent n to seek re,iew, notice of requeat for review, request for review, and proof of service with be Office of State Review of the State Education Department within 2 days afters Ice of the request for revi~w is complete. The rules of procedures for appeals before a SRO are found in Part 279 of the Regulations of the CommissionerofEducati n. A copy of the rulea in Part 279 and model forms are available at http://www.sro.nysed. ov.

DOCUMENTATION ENTERED INTO THE

None

SCHOOL DISTRICT

None

IMPARTIAL HEARING OFFICER

l. Due Process Complaint Notice/!mparti Hearing Request, 1/9/18, 2pgs.

II. Letter to parties from IHO Jeffrey J. Sc iro, 3/5/18, 6 pgs. II!. District's Motion to Dismiss, 7/25/18, 2 pgs.

IV. Email from Student's Guardian, 7/31/1 . I pg.

V. Individualized Education Program (IEP , 4119/18, IO pgs.