Unified School Dist. No. 259 v. Disability Rights

• Decision Date: 25 June 2007
• Docket Number: No. 06-3057.,06-3057.
• Citation: 491 F.3d 1143
• Parties: UNIFIED SCHOOL DISTRICT NO. 259, SEDGWICK COUNTY, KANSAS, Plaintiff-Appellant, v. DISABILITY RIGHTS CENTER OF KANSAS, (DRC), Defendant-Appellee. Kansas Association of School Boards and National School Board Association, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

491 F.3d 1143

UNIFIED SCHOOL DISTRICT NO. 259, SEDGWICK COUNTY, KANSAS, Plaintiff-Appellant, v. DISABILITY RIGHTS CENTER OF KANSAS, (DRC), Defendant-Appellee.

Kansas Association of School Boards and National School Board Association, Amici Curiae.

No. 06-3057.

United States Court of Appeals, Tenth Circuit.

June 25, 2007.

Sarah J. Loquist (Thomas R. Powell and Roger M. Theis, with her on the briefs), Hinkle Elkouri Law Firm, LLC, Wichita, KS, for Plaintiff-Appellant.

Kirk W. Lowry, Disability Rights Center of Kansas, Topeka, KS (Summer A. Duke, Disability Rights Center, Topeka, KS with him on the brief), for Defendant-Appellee.

Cynthia Lutz Kelly, Kansas Association of School Boards, Topeka, KS, filed an amici curiae brief in support of Unified School District No. 259 on behalf of amici curiae Kansas Association of School Boards and National School Board Association.

Before TACHA, Chief Circuit Judge, EBEL, Circuit Judge, and KANE,^* District Judge.

EBEL, Circuit Judge.

This case involves a dispute about access to student records between a school district and a protection and advocacy ("P & A") agency. A P & A agency is an entity designated by the state to investigate abuse and neglect among individuals with disabilities, and through that designation it receives federal funding to provide protection and advocacy services. The school district asks us to resolve the tension between federal law that authorizes a P & A agency to have access to individuals' records in certain situations and a separate federal statute that penalizes school districts for unauthorized releases of student records. However, after the school district filed suit seeking a declaratory judgment to affirm its authority not to disclose the contested records, the P & A agency withdrew its request for the records. The district court concluded that, with no pending records request, the factual basis for the dispute has disappeared and rendered this case moot. We agree. Accordingly, we DISMISS this appeal for lack of jurisdiction.

I

The mother of a disabled student served by the Plaintiff-Appellant, Unified School District No. 259 ("USD 259") in Kansas, contacted Kansas's designated P & A agency, the Defendant-Appellee Disability Rights Center ("DRC"), to complain about USD 259's services. The student was seventeen years old and had neurofibromatosis, a condition manifested by tumors on the nerves in the face, neck and spine. According to DRC, "she had never received a public education at school. She was homebound, on a doctor's order, for all of her 17 years." The mother complained to DRC about the relatively small quantity of homebound instruction provided by USD 259's special education program. DRC began representing this student in a due process action, based on the disparity between the one to three hours of instruction per week in the student's homebound placement, and most students' approximately thirty hours of instruction in school.

Meanwhile, DRC began investigating whether USD 259 systemically denied educational services to disabled students in homebound placements. In a letter dated May 20, 2004, DRC requested information from USD 259 about students who, pursuant to an individualized education program ("IEP"), did not attend classes in district facilities. DRC cited its "probable cause" investigative authority under the federal Developmental Disabilities Assistance and Bill of Rights Act ("DDA"), 42 U.S.C. §§ 15041-15045, and Protection and Advocacy for Individuals with Mental Illness Act ("PAIMIA"), 42 U.S.C. §§ 10801 et seq. However, the DRC did not assert that it had probable cause to believe that these students had been subjected to abuse or neglect.

In the May 20, 2004, letter, DRC sought the identities of the students and the information necessary to contact their parents for their authorization to access the students' records. USD 259 replied several days later by providing cumulative figures about students who, pursuant to an IEP, did not attend class in district facilities during the day and were being "served through homebound instruction." USD 259 then stated that, pursuant to the federal Family Educational Rights and Privacy Act ("FERPA"), it could not release information from students' educational records — including the identity of students receiving special education services — without the consent of their parents or legal guardians.

DRC sent another letter to USD 259 on June 17, 2004, withdrawing its request for the students' names. Instead, DRC requested other details about each of the twenty-two students receiving homebound instruction, covering more than twenty categories of information. The data requested for each student included: date of birth; grade level; race; disabilities; cognitive level of functioning; supplemental and related services; physical education provided; transition plan; transportation services; date of last IEP meeting; date of last comprehensive evaluation for each student; hours of homebound services received each week; qualifications of persons providing services for each student; and percentage of time spent in core curriculum for each student in math, science, language arts and social studies. DRC stated that it was "asking these detailed questions because we want to get a full and more complete understanding of the characteristics of the students on homebound services in your school district."

In a letter dated August 10, 2004, USD 259 declined to provide the information. USD 259 stated that releasing the data requested would violate FERPA, because the information in the aggregate would make it relatively easy to identify each student. USD 259 noted that penalties for FERPA violations by school districts include revocation of all federal funding, and estimated this could total more than $57 million annually for USD 259.

USD 259 then filed a declaratory judgment action against DRC, asking that the U.S. District Court for the District of Kansas find that the DDA, PAIMI, and the Protection and Advocacy for Individual Rights Act "are not applicable to public schools" and to find that FERPA and the Individuals with Disabilities Education Act ("IDEA") "prohibit[ ] the release of the information requested."

During cross-motions for summary judgment, DRC filed a reply withdrawing its request for homebound students' records and guardian information.¹ DRC argued in its reply that while the "narrow issue of requests for homebound information is moot," "the broad issue" of P & A agency access to public school records "is not moot."

However, the District Court dismissed USD 259's complaint as moot. Unified Sch. Dist. No. 259 v. Kan. Advocacy & Protective Servs., Inc., No. 04-1279-JTM (D.Kan. Jan.11, 2006). Specifically, the court concluded that DRC's withdrawal of the record request "effectively deprives the court of the factual basis for issuing an order" and "any substantive ruling would be considered advisory." USD 259 timely appealed from this order.

II

Although we have jurisdiction of appeals from all final decisions of federal district courts, 28 U.S.C. § 1291, we have no subject matter jurisdiction over a case if it is moot. "Constitutional mootness doctrine is grounded in the Article III requirement that federal courts may only decide actual ongoing cases or controversies." Seneca-Cayuga Tribe v. Nat'l Indian Gaming Comm'n, 327 F.3d 1019, 1028 (10th Cir.2003) (quotation, alteration omitted). We review de novo the question of whether a case is moot. Prier v. Steed, 456 F.3d 1209, 1212 (10th Cir.2006).

Actions seeking a declaratory judgment "must comport with the same mootness principles as any other suit." Id. at 1213. "It is well established that what makes a declaratory judgment action `a proper judicial resolution of a "case or controversy" rather than an advisory opinion is the settling of some dispute which affects the behavior of the defendant toward the plaintiff.'" Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir.1994) (quoting Hewitt v. Helms, 482 U.S. 755, 761, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987) (alteration omitted)). "The crucial question is whether granting a present determination of the issues offered . . . will have some effect in the real world." Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir.2000) (quotation omitted).

The issue then is whether DRC's voluntary withdrawal of the contested records request moots this dispute, or whether its contention that it continues to have a right to such student records creates a case or controversy over which we can exercise jurisdiction. "[T]his court has explained that a plaintiff cannot maintain a declaratory or injunctive action unless he or she can demonstrate a good chance of being likewise injured by the defendant in the future." Cox, 43 F.3d at 1348 (quotation, alteration omitted). USD 259 argues that the case is not moot, because DRC's position makes it likely that DRC will make similar requests for student records in the future.

"An exception to the mootness doctrine exists when cases are capable of repetition, yet evading review." Disability Law Ctr. v. Millcreek Health Ctr., 428 F.3d 992, 996 (10th Cir.2005) (quotation omitted). For a case to dodge dismissal for mootness under the "capable of repetition, yet evading review" exception, "two prerequisites must be satisfied: (1) the duration of the challenged action must be too short to be fully litigated prior to its cessation or expiration; and (2) there must be a reasonable expectation that the same complaining party will be subjected to the same action again." Hain v. Mullin, 327 F.3d 1177, 1180 (10th Cir.2003) (en banc) (citing United States v. Seminole Nation, 321 F.3d 939, 943 (10th Cir.2002)).

We held that a dispute over the temporary orders of the National Indian Gaming Commission ("NIGC") closing certain gaming facilities of the Seminole Nation of Oklahoma was not moot, even though...