Application of a Child with a Disability

STATE OF NEW YORK

OFFICE OF STATE REVIEW

04-038

Application of a CHILD WITH A DISABILITY for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Newburgh Enlarged City School District

Appearances:

Benjamin Ostrer & Associates, P.C., attorney for petitioner, Benjamin Ostrer, Esq., of counsel

Shaw & Perelson, LLP, attorney for respondent, Beth L. Sims, Esq., of counsel

Petitioner appeals from the decision of an impartial hearing officer which ordered the placement of a student in an interim alternative educational setting (IAES).  Respondent cross-appeals from that part of the decision of the impartial hearing officer which ordered a “paraprofessional” be provided as a supplemental aid and service and the IAES be in the least restrictive environment (LRE).   The appeal and cross-appeal must be dismissed.

On April 29, 2004, respondent appointed an impartial hearing officer to conduct an expedited due process hearing, pursuant to 8 NYCRR 201.11(a)(1), to hear its request for an order placing the student in an IAES (IHO Decision, p. 1; IHO Exs. I, II; Tr. p. 9).  The hearing was held over a period of four days, resulting in a decision rendered on May 20, 2004.  The impartial hearing officer ordered the student placed in an IAES at respondent’s Chestnut Street Annex through May 24, 2004, the date of the next meeting of the Committee on Special Education (CSE).  The hearing officer further ordered the CSE, at its May 24, 2004 meeting, to review the program it had previously provided to the student and to provide him with supplementary aids and services, including the assistance of a paraprofessional, and make program modifications to support his placement for the balance of the school year (IHO Decision, pp. 25-26).

Petitioner asserts that the hearing officer's determination is not supported by “beyond a preponderance of the evidence” in the record  (Pet. ¶¶ 3, 5, 50, 51).  Petitioner does not seek compensatory relief in this appeal.   Respondent asserts that the “matter is rendered moot by the student's receipt of a high school diploma and graduation from high school” (Answer ¶ 62).  Respondent also cross-appeals from the hearing officer’s decision and challenges, among other things, the modifications to the IAES that the hearing officer ordered for the period after May 24, 2004.

I agree with respondent’s assertion that the claims in the petition for review have been rendered moot by the student’s graduation from high school.  In general, a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome (Murphy v. Hunt, 455 U.S. 478, 481 [1982]). In determining whether a controversy has become moot, the relevant inquiry is whether the facts alleged, under all the circumstances, show that there is a substantial controversy of sufficient immediacy and reality to warrant relief (Christopher P. v. Marcus, 915 F.2d 794, 802 [2d Cir. 1990]).

An exception to mootness exists for claims that are “capable of repetition, yet evading review” (Honig v. Doe, 484 U.S. 305, 318 [1988]). The exception applies only in limited situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]). Controversies are “capable of repetition” when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 [1975]). To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Russman v. Bd. of Educ., 260 F.3d 114, 120 [2d Cir. 2001]). Consistent with the mootness doctrine, State Review Officers have determined that there is no need to decide issues on appeal that are no longer in controversy, or to make a determination that would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 02-110; Application of a Child with a Disability, Appeal No. 98-73; Application of a Child Suspected of Having a Disability, Appeal No. 95-60). Petitioner does not reply to respondent’s assertion in its answer that the student graduated.  Nor does petitioner assert that the student did not meet the requirements for a diploma and should not have graduated. Moreover, petitioner does not assert any exception to the mootness doctrine. Based on the record before me, I find that because the student has graduated from high school, this controversy is not capable of repetition and I cannot grant any meaningful relief.

Since a determination of petitioner’s and respondent’s claims regarding the appropriateness of the placement of the student in an IAES would have no practical effect on the parties, these claims have become moot and will not be further addressed here. Accordingly, both the appeal and cross-appeal must be dismissed.

In light of this determination, it is not necessary that I address the remaining issues raised by the parties.

THE APPEAL AND CROSS-APPEAL ARE DISMISSED.