A Bad Idea: Mootness and IEPs

Before Congress enacted legislation, “the educational needs of millions of children with disabilities were not being fully met.”[1]  Congress responded with the Individuals with Disabilities Education Act (“IDEA”) (20 U.S.C. § 1400 et seq.).[2]  A core component of IDEA is the required annual individualized education plan (“IEP”).[3]  Unfortunately, IDEA’s beneficiaries often face a hurdle to vindicate their rights.  The mootness doctrine requires an ongoing controversy for courts to have jurisdiction, and many IDEA claims requesting injunctive relief are vulnerable because IEPs last only one year.  In those cases, the ability to fully litigate an issue depends on the application of the “capable of repetition, yet evading review” exception.

Courts have developed two approaches to the application of the “capable of repetition, yet evading review” mootness exception to IDEA claims.  Courts generally agree that the evading review element is met because of IEPs’ short duration.  But courts differ over how specific the controversy must be when evaluating the likelihood of repetition element.  Some courts take a generous approach, finding when there is a fundamental disagreement about educational placement, the violation is likely to repeat because there will be subsequent IEPs.  However, most courts take a strict approach, requiring the injury to be construed in terms of specific facts when determining repeatability.[4]   This approach undermines IDEA’s purpose and is unnecessary under the mootness doctrine.

IDEA & Mootness

IDEA requires states to provide children with disabilities a “free appropriate public education” (“FAPE”)^[5] in the “least restrictive environment.”^[6]  Thus, school districts must “[t]o the maximum extent appropriate,” integrate children with disabilities into regular educational environments.^[7]  

To ensure FAPE is provided, IDEA requires districts to create an IEP for each eligible child^[8]  that must be reviewed at least annually.^[9]  Parents who contest an IEP are entitled to an administrative due process hearing and redress in court.^[10]  Until this process is completed, IDEA’s “stay-put” provision entitles students to remain in their current placement.^[11]  Because IEPs last only one year and this administrative process can be lengthy, many claims for injunctive relief that reach the court are moot.

The mootness doctrine requires a live controversy throughout the litigation for the court to have jurisdiction.^[12]  A case becomes moot when a court cannot grant effective relief because of the passage of time or because the dispute has been otherwise resolved.^[13]  However, there is an exception when the challenged action cannot be fully litigated, and the plaintiff may be resubjected to the same action.^[14]

Generally, the mootness doctrine is not a problem when the remedy is damages, but many IDEA claims request injunctive relief based on the appropriate educational placement.[15]  A commonly cited Supreme Court case dealing with this exception is Honig v. Doe.^[16]  In Honig, two students claimed their indefinite suspensions due to misconduct related to their disabilities violated a “stay-put” provision.^[17]  The schools maintained a state-wide policy that all districts retained the authority to exclude children with disabilities for dangerous conduct related to their disability.[18]  The Court explained: “[W]e have jurisdiction if there is a reasonable likelihood that respondents will again suffer the deprivation of [statutory] rights that gave rise to this suit.”^[19]  The Court stated that claims “are not moot if the conduct he originally complained of is ‘capable of repetition, yet evading review.’”^[20]  The Court concluded there was a reasonable expectation that the still eligible student would be subjected to a unilateral change in placement because of the policy.^[21]  Modern courts have applied Honig and the exception to IDEA cases in two fundamentally different ways.

Likelihood of Repetition Approaches

Currently, courts take two approaches to the exception with IDEA claims for injunctive relief: a “generous” approach and a “strict” approach.^[22]  Some courts take a generous approach, under which Honig appears to control.[23]  In K.A. v. Fulton County School District, the court stated so explicitly and then found that the repetition prong was met because the parents and the school district had a fundamental disagreement about the appropriate level of mainstreaming.[24]  However, a growing majority of courts take a strict approach.  These courts distinguish Honig because the specific IDEA violations alleged are unlikely to be repeated.[25]  Courts adopting this approach reason that claims for a FAPE denial in one year will have no real-life impact regarding whether the district will provide a FAPE in subsequent years.[26] 

Three recent Tenth Circuit cases exemplify this stricter approach.  Relying on its decision in Steven R.F.[27] regarding procedural violations, the Tenth Circuit in Nathan M. required a high level of specificity for substantive IDEA claims.[28]  The Tenth Circuit explained the parent must establish the likelihood “that the District will again violate . . . IDEA in the specific ways” alleged in the present case.[29]  The Nathan M. court concluded “[a] pattern of related but distinct and factually specific controversies” is insufficient because resolving those will not prevent future disputes.[30]  The Tenth Circuit reaffirmed this reasoning in Patrick G., stating the issue must be framed with specificity,[31] and addressing claims regarding placement during one IEP would be an advisory opinion regarding subsequent IEPs.[32]

Flaws in the Strict Approach

The strict approach is ill-suited to apply the “capable of repetition, yet evading review” exception to substantive IDEA claims for three reasons: (1) if the student is eligible, the basic factual situation will arise again; (2) it creates a requirement that an identical injury will likely happen again; and (3) it imposes an excessive burden on those asserting IDEA rights.

The strict approach overlooks that because a new IEP is required annually, the basic situation will arise again.[33]  This approach places undue focus on the changing details of an IEP.[34]  The courts should look to other areas where the situation is likely to recur even if the details change.  For instance, courts have not required such a high level of factual repeatability in licensing cases, where an annual license renewal would likely result in a rejection for similar reasons in subsequent years.[35] 

Likewise, because the strict approach requires specificity for substantive IDEA claims, a claim must show the student will likely suffer an identical injury.  It can be tempting to reason that because each year requires a new IEP, each IEP must be considered as an entirely separate legal issue.  However, that position goes against the purpose of the “capable of repetition, yet evading review” exception.  For instance, in Honig, the Court asked if the conduct originally complained of was capable of repetition.^[36]  The Court responded saying, it did not matter that the student was not facing a current proposed expulsion or suspension.[37]  Rather, the Court asked whether the student was likely to misbehave again and whether the school was likely to subject him to a unilateral change in placement.[38]  “Plaintiffs need not demonstrate with ‘mathematical precision’ that they will be subject to the same illegality; rather, Plaintiffs just need to show ‘a reasonable expectation’ that the challenged illegality will reoccur.”[39]  Under the strict approach, because an IEP might call for a slightly different level of mainstreaming the next year, a student would not be able to fully vindicate his rights by using the full appeals process. 

Furthermore, cutting off the appeals process and forcing new litigation for each IEP places an undue burden on IDEA’s intended beneficiaries.  Initiating a due process hearing or a district court appeal can be a struggle for parents attempting to assert their children’s IDEA rights, especially for parents who “lack influence or legal resources.”[40]  The strict approach exacerbates this imbalance because it requires parents to file a complaint each year and creates an opportunity for the districts to wage a war of attrition.[41]  Concern that a more generous approach would flood the courts is misplaced because parents still need to “point to something more in the record to lift that possibility beyond the speculative” for the exception to apply.[42] 

Finally, the strict approach is unnecessary for the courts to avoid issuing advisory opinions.  The concern that an opinion on the merits regarding a past IEP “could have no effect ‘in the real world’” and “could do nothing to avoid future conflict” underlies the rationale for the strict approach.[43]  While a valid concern given the purpose of the mootness doctrine, this position discounts the real world impacts a court decision would have on subsequent IEP negotiations.  Although the year has passed, having a baseline from which to begin discussions can be extremely beneficial to the development of an adequate IEP regardless of a change in the student’s abilities.  Having a judicial determination of whether a past IEP was adequate is a powerful, real tool for the parties to use in the development of new IEPs.  To think otherwise underestimates the influence of a court decision on how the parties may act in the future.

Conclusion

The strict approach to the “capable of repetition, yet evading review” exception regarding substantive IDEA claims is unnecessary to avoid advisory opinions and undermines IDEA.  By requiring a highly specific injury to be likely to be repeated, the strict approach uses IDEA’s design against the assertion of those rights by discounting that the basic situation will arise again.  A requirement that the repeatable injury be factually identical also goes against the idea of the exception.  Additionally, it requires parties to file new complaints every year, placing a heavy burden on IDEA’s intended beneficiaries.  

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[1]  20 U.S.C. § 1400(c)(1).  IDEA applies to all states that accept federal special education funds.

[2]  20 U.S.C. § 1400(c)(3)–(4). 

[3]  See Patrick G. v. Harrison Sch. Dist. No. 2, 40 F.4th 1186, 1190 (10th Cir. 2022) (quoting Miller v. Bd. of Educ., 565 F.3d 1232, 1236 (10th Cir. 2009); see also 20 U.S.C. § 1412(a)(4) (instituting IEPs).

[4] Three recent Tenth Circuit cases exemplify this approach.  See generally Steven R.F. v. Harrison School District No. 2, 924 F.3d 1309 (10th Cir. 2019) (applying the strict approach to claims of procedural violations for an IEP of a preceding year); Nathan M. v. Harrison School District No. 2, 942 F.3d 1034 (10th Cir. 2019) (explaining the approach adopted in Steven R.F. and clarifying that it applies to substantive IDEA claims as well); Patrick G. v. Harrison School District No. 2, 40 F.4th 1186 (10th Cir. 2022) (affirming Steven R.F. and Patrick G.).

^[5]  20 U.S.C. §1412; Patrick G. v. Harrison Sch. Dist. No. 2, 40 F.4th 1186, 1190 (10th Cir. 2022). The main purpose of IDEA is to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” 20 U.S.C. § 1400(d)(1)(A).

^[6]  See 20 U.S.C. § 1412(a)(5).

^[7]  20 U.S.C. § 1412(a)(5)(A).

^[8]  Patrick G. v. Harrison Sch. Dist. No. 2, 40 F.4th 1186, 1190 (10th Cir. 2022) (quoting Miller v. Bd. of Educ., 565 F.3d 1232, 1236 (10th Cir. 2009); see 20 U.S.C. § 1412(a)(4) (instituting IEPs).

^[9]  Patrick G., 40 F.4th at 1191 (quoting Ellenberg v. N.M. Mil. Inst., 478 F.3d 1262, 1268 (10th Cir. 2007). Although annual review of IEPs required, they may be revised more often.  See id.  An IEP must include an educational placement, meaning a program not a particular institution. See 20 U.S.C. §§ 1414(d)(1)(B), (d)(1)(A)(vi).

^[10]  20 U.S.C.S. § 1415(b)(6); 20 U.S.C.S. § 1415(f)(3)(B); Patrick G., 40 F.4th at 1191.

^[11]  § 1415(j).  “The stay-put provision thus operates as an ‘automatic statutory injunction.’” Patrick G., 40 F.4th at 1191­–92.

^[12]  13 Charles Alan Wright, Arthur R. Miller, Vikram David Amar, Jeffery Bellin, Daniel D. Blinka, Edward H. Cooper, Richard D. Freer, Kenneth W. Graham, Jr., Victor J. Gold, Peter J. Henning, Helen Hershkoff, Mary Kay Kane, Charles H. Koch, Jr., Andrew D. Leipold, Richard L. Marcus, Ann Murphy, Richard Murphy, A. Benjamin Spencer, Adam M. Steinman, Catherine T. Struve & Sarah N. Welling, Federal Practice and Procedure § 3529 (3d ed. 2022); see also 15 James WM. Moore, Moore’s Federal Practice §§ 101.90–91 (Matthew Bender 3d ed. 2023).

^[13]  Moore, supra note 13, at § 101.93.

^[14]  Steven R.F. v. Harrison Sch. Dist. No. 2, 924 F.3d 1309, 1313 (10th Cir. 2019) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam)).

[15]  An educational placement required by an IEP is a program not a particular institution.  See 20 U.S.C. §§ 1414(d)(1)(B), (d)(1)(A)(vi).

^[16]  Honig v. Doe, 484 U.S. 305 (1988).  This case involved a controversy under IDEA’s predecessor statute.

^[17]  Id. at 312–13.  The stay-put provision at issue here was part of the predecessor statute, the Education of the Handicapped Act (EHA).

[18] Id. at 318–20.

^[19]  Id. at 318. One student was no longer eligible under EHA, and thus the issue was moot as to him. Id. But the other student was still eligible and still resided in California. Id.

^[20]  Id. at 318 (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)) (emphasis added).

^[21]  Id. at 318–20.

^[22]  Under both approaches the first prong of the exception is met because IEPs last at most one year.  J. T. v. District of Columbia, 983 F.3d 516, 52–24 (U.S. App. D.C. 2020); Rome Sch. Comm. v. Mrs. B., 247 F.3d 29, 31 (1st Cir. 2001) (collecting examples regarding IEPs that ‘are likely to evade review because the administrative and judicial review of an IEP is ponderous and usually will not be complete until a year after the IEP has expired’ (internal quotation marks omitted)); Brown v. Bartholomew Consol. Sch. Corp., 442 F.3d 588, 599 (7th Cir. 2006); Bd. of Educ. v. Rowley, 458 U.S. 176, 186 n.9 (1982) (allowing challenge to past IEP after school year had ended, noting “[j]udicial review invariably takes more than nine months to complete”).

[23]  K.A. v. Fulton Cnty. Sch. Dist., 741 F.3d 1195 (11th Cir. 2013); Zearley v. Ackerman, 116 F. Supp. 2d 109 (D.D.C. 2000); Hudson by & Through Hudson v. Bloomfield Hills Pub. Sch., 108 F.3d 112, 113 (6th Cir. 1997); Sacramento City Unified Sch. Dist., Bd. of Educ. v. Rachel H., 14 F.3d 1398 (9th Cir. 1994) (not properly briefed, but the court found that this type of disagreement would be easily repeated because the district and the parents disagree generally about placement); Jenkins v. Squillacote, 290 U.S. App. D.C. 137, 935 F.2d 303 (1991); Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036 (5th Cir. 1989).

[24] 741 F.3d 1195, 1200–01 (11th Cir. 2013).  The court went so far as to state that the likelihood of recurrence was stronger, despite the lack of a stated policy.  Id. at 1201 (explaining that there was no reason to think that the positions of the school or the parents would change and that “[w]e are likely looking at the same procedural battle between [the] school and [the] parents every year, devolving into complaints, ‘stay put’ requirements, and appellate processes addressing the year already past, until one side or the other gives up.”).

[25]  E.g., Steven R.F. v. Harrison Sch. Dist. No. 2, 924 F.3d 1309, 1315–16 (10th Cir. 2019).

[26]  J. T. v. District of Columbia, 983 F.3d 516, 524 (U.S. App. D.C. 2020) (“Importantly, if 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.”); see also Brown v. Bartholomew Consol. Sch. Corp., 442 F.3d 588 (7th Cir. 2006); Bd. of Educ. v. Steven L., 89 F.3d 464 (7th Cir. 1996) (rejecting the lower court’s rationale that the case was not moot because “conflicting educational philosophies and perceptions of the mainstreaming and methodological requirements under the IDEA”); Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ., 397 F.3d 77, 80 (2d Cir. 2005).

[27]  Steven R.F. v. Harrison Sch. Dist. No. 2, 924 F.3d 1309 (10th Cir. 2019).

[28]  Nathan M. v. Harrison Sch. Dist. No. 2, 942 F.3d 1034, 1042 (10th Cir. 2019).

[29] Id. at 1043 (quoting Steven R.F., 924 F.3d at 1316).

[30] Id. (citing People for the Ethical Treatment of Animals v. Gittens, 396 F.3d 416, 424 (D.C. Cir. 2005).  In formulating this requirement for a high level of specificity in the alleged violations, the Nathan M. court relied multiple times on People for the Ethical Treatment of Animals v. Gittens.  See e.g., id. (quoting Gittens in a parenthetical: “[A] ‘legal controversy so sharply focused on a unique factual context’ w[ill] rarely ‘present a reasonable expectation that the same complaining party would be subjected to the same actions again.’” (quoting Spivey v. Barry, 665 F.2d 1222, 1234–35 (D.C. Cir. 1981)).  However, that case looked at the repeatability of a First Amendment violation that occurred during a one-time contest.  People for the Ethical Treatment of Animals v. Gittens, 396 F.3d 416, 423–24 (D.C. Cir. 2005).

[31] Patrick G. v. Harrison Sch. Dist. No. 2, 40 F.4th 1186, 1203 (10th Cir. 2022) (citing Nathan M., 942 F.3d at 1046) (“Vague assertions that a school district and a student’s parents will continue to ‘lock horns’ over a student’s placement cannot, on their own, make out a reasonable probability that the same legal controversy will repeat itself.”).

[32] Id. at 1204 (citing Brown v. Bartholomew Consol. Sch. Corp., 442 F.3d 588, 599–600 (7th Cir. 2006)).

[33] In the Tenth Circuit cases, this flaw can be seen through the reliance on Gittens.  Gittens was quoted for much of the language requiring specificity and that preciseness of the controversy.  See Nathan M. at 1043.  But that case concerned alleged violations of the First Amendment during a contest that might never be run again. People for the Ethical Treatment of Animals v. Gittens, 396 F.3d 416, 423–24 (D.C. Cir. 2005).  The court’s focus therefore was on the likelihood of recurrence given (1) the highly factual claims regarding (2) a situation that may not arise again.  Furthermore, that court pointed out that “[t]here is ‘a long line of Supreme Court pronouncements counseling judicial restraint in constitutional decisionmaking.’”  Id. at 420 (quoting Kalka v. Hawk, 215 F.3d 90, 97 (D.C. Cir. 2000)).  Thus, the Gittens case is different from alleged violations in IDEA claims, because unlike a one-time contest, IEPs are required every year a student is eligible.  Therefore, the basic situation undoubtedly will recur.  Additionally, this is not a constitutional right that the court is considering, but a statutory one.

[34] See 13C Charles Alan Wright, Arthur R. Miller, Vikram David Amar, Jeffery Bellin, Daniel D. Blinka, Edward H. Cooper, Richard D. Freer, Kenneth W. Graham, Jr., Victor J. Gold, Peter J. Henning, Helen Hershkoff, Mary Kay Kane, Charles H. Koch, Jr., Andrew D. Leipold, Richard L. Marcus, Ann Murphy, Richard Murphy, A. Benjamin Spencer, Adam M. Steinman, Catherine T. Struve & Sarah N. Welling, Federal Practice and Procedure § 3533.8.1 (3d ed. 2022) (citing many IDEA claims cases including J. T. v. District of Columbia, 983 F.3d 516 (D.C. Cir. 2020); Nathan M. v. Harrison Sch. Dist. No. 2, 942 F.3d 1034 (10th Cir. 2019); and Steven R.F. v. Harrison Sch. Dist. No. 2, 924 F.3d 1309 (10th Cir. 2019)).

[35] See Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., 274 F.3d 377, 391 (6th Cir. 2001) (finding that a corporation’s claims regarding a licensing requirement were within the mootness exception capable of repetition, yet evading review because “there is a reasonable probability that a future person connected with the 822 Corporation will have a criminal history that renders the Corporation ineligible for a license under the civil disabilities provisions.”).

^[36] Honig v. Doe, 484 U.S. 305, 318 (1988).

[37]  Id.

[38]  Id. at 318–19.

[39]  Catholic Leadership Coalition of Texas v. Reisman, 764 F.3d 409, 422 (5th Cir. 2014) (citing Honig, 484 U.S. at 318 n.6). Under the strict approach, courts might be tempted to differentiate Honig because the unilateral change in placement was based on an announced policy.  See Patrick G. v. Harrison Sch. Dist. No. 2, 40 F.4th 1186, 1206 (10th Cir. 2022).  However, this undermines IDEA, because it would allow districts to create de facto policies that then could not be fully litigated.  For instance, there could be an unstated policy of trying to remove all students receiving district funds from private institutions—regardless of whether the available mainstreaming programs were appropriate.  While IDEA does preference mainstreaming, such a policy going unchallenged would undermine the more fundamental idea—that each child should get FAPE based on that child’s needs.

[40]  See Arkansas Advisory Committee, IDEA Compliance and Implementation in Arkansas Schools 3 (Jan. 2023) (“Parents with less formal education may not fully understand their legal rights and thus are often reluctant to ask questions during mandatory Individualized Education Plan (IEP) meetings; at times they may be intimidated by school staff.  Legal guidelines regarding special education process timetables are less apt to be followed for parents who lack influence or legal resources.”)

[41] See K.A. v. Fulton Cnty. Sch. Dist., 741 F.3d 1195, 1201 (11th Cir. 2013) (pointing out that the disagreement between the parents and the school district would likely continue “until one side or the other gives up”).

[42] Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ., 397 F.3d 77, 88 (2d Cir. 2005).

[43] Nathan M. v. Harrison Sch. Dist. No. 2, 942 F.3d 1034, 1046 (10th Cir. 2019) (quoting Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1110 (10th Cir. 2010); and then citing Steven R.F. v. Harrison Sch. Dist. No. 2, 924 F.3d 1309, 1316 (10th Cir. 2019).