Boose v. Dist. of Columbia, 14–7086.

• Decision Date: 26 May 2015
• Docket Number: No. 14–7086.,14–7086.
• Citation: 786 F.3d 1054
• Parties: Latonya BOOSE, Appellant v. DISTRICT OF COLUMBIA, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

786 F.3d 1054

Latonya BOOSE, Appellant

v.DISTRICT OF COLUMBIA, Appellee.

No. 14–7086.

United States Court of Appeals, District of Columbia Circuit.

Argued May 8, 2015.

Decided May 26, 2015.

Douglas W. Tyrka argued the cause and filed the briefs for appellant. Nicholas Ostrem entered an appearance.

Richard S. Love, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With him on the brief were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.

Before: ROGERS, TATEL, and SRINIVASAN, Circuit Judges.

Opinion

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

In this case arising under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., plaintiff seeks an order requiring the District of Columbia Public Schools to provide her son with compensatory education to make up for the period during which the school system, allegedly in violation of the statute, failed to identify and evaluate him. The school system responded with an individualized education plan that is, by all accounts, adequate to keep the child on track going forward, and the district court dismissed the suit as moot. But because the district court failed to address whether A.G. was entitled to compensatory education—a remedy that remains available—we reverse.

I.

The Individuals with Disabilities Education Act aims to ensure that every child has a meaningful opportunity to benefit from public education. To serve that goal, the statute requires that public school systems provide all resident children with disabilities a “free appropriate public education,” or FAPE. Id. § 1412(a)(1)(A). It also requires that school systems promptly “identif [y], locate[ ], and evaluate[ ]” every “child[ ] with disabilities residing in the [district] ... who [is] in need of special education and related services”—a requirement known as “child find.” 20 U.S.C. § 1412(a)(3)(A). Once such a child is identified, located, and evaluated, the school system must develop an “individualized education plan,” or IEP, for the child. Id. §§ 1412(a)(4), 1414(d).

If a school district fails to satisfy its “child-find” duty or to offer the student an appropriate IEP, and if that failure affects the child's education, then the district has necessarily denied the student a free appropriate public education. See Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828, 834 (D.C.Cir.2006) (a FAPE denial is actionable if it “affect[s] the student's substantive rights”) (emphasis omitted). And when a school district denies a child a FAPE, the courts have “broad discretion” to fashion an appropriate remedy. See Florence County School District Four v. Carter, 510 U.S. 7, 15–16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993). That equitable authority, this court has held, must include the power to order “compensatory education”—that is, education services designed to make up for past deficiencies in a child's program. Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 522–23 (D.C.Cir.2005). If compensatory education were unavailable, after all, a child's access to appropriate education could depend on his parents' ability to pull him out of the deficient public program and front the cost of private instruction—a result “manifestly incompatible with IDEA's purpose of ‘ensur[ing] that all children with disabilities have available to them a free appropriate public education.’ ” Id. at 522–23 (quoting 20 U.S.C. § 1400(d)(1)(A) ); see also School Committee of the Town of Burlington, Massachusetts v. Department of Education of Massachusetts, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (compelling reimbursement for private instruction to avoid the same harm). Worse yet, “students who remained in public school [without an appropriate plan] would lack any effective redress for FAPE denials, even those extending over many years.” Reid, 401 F.3d at 523. To be sure, such students could seek a satisfactory IEP. But because the Supreme Court has held that IEPs need do no more than provide “some educational benefit” going forward, Board of Education of the Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, 200, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), an education plan conforming to that standard will speak only to “the child's present abilities,” Reid, 401 F.3d at 523. Unlike compensatory education, therefore, an IEP “carries no guarantee of undoing damage done by prior violations,” id., and that plan alone cannot take the place of adequate compensatory education.

Latonya Boose, the plaintiff in this case, seeks compensatory education for her son, A.G. Now nine years old and about to enter the fourth grade, A.G. exhibited behavioral problems during the first few months of kindergarten at Kimball Elementary School—the kinds of things that may signal attention and hyperactivity disorders. Although his performance improved enough for him to advance with his class, issues arose again at the beginning of his first-grade year. Responding to those difficulties, A.G.'s teacher evaluated him for attention-deficit disorder

, attention-deficit hyperactivity disorder, and anxiety. Before anything came of that evaluation, Boose filed an administrative complaint alleging that DCPS had failed “to identify, locate, and evaluate” A.G., who, it should have known, was “a student with a suspected disability.” That is, Boose alleged that DCPS had violated its “child-find” obligations. A Hearing Officer denied the claim, finding that A.G. had had the benefit of a FAPE during kindergarten and the beginning of first grade. As evidence, the Hearing Officer noted that although A.G. had fallen behind at the beginning of both academic years, his performance and behavior had improved to the point that he was keeping up with his class. Hearing Officer Determination 5–7.

That decision, however, addressed only DCPS's liability for failing to identify and evaluate A.G.—that is, the Hearing Officer determined that the school system had not denied A.G. a FAPE up to that point. Because it was still possible that A.G. needed special education going forward, Boose formally asked DCPS to evaluate the child to determine whether he needed such services. After three months in which DCPS failed to act, Boose asked the district court to step in, challenging both the Hearing Officer's retrospective compensatory-education ruling and the school system's failure to offer a prospective IEP. See Compl. 7.

Before the court could issue a decision, DCPS completed the comprehensive evaluation Boose had asked for. As a result of that evaluation, school officials determined that A.G. was in fact eligible for special education going forward, and they developed an IEP for him. But as DCPS concedes, that IEP included no education to compensate for the period—kindergarten through the first few weeks of first grade—during which A.G. allegedly lacked an appropriate education plan. See Boose v. District of Columbia, 44 F.Supp.3d 10, 12 (D.D.C.2014).

Although the IEP was no doubt helpful, and Boose has never challenged its adequacy, she believed that DCPS still owed A.G. compensatory education, so she continued to pursue her lawsuit. As it stands, then, this case is about A.G.'s right to compensatory education, a remedy he has yet to receive. Although Boose continued to pursue compensatory education for A.G. even after school officials evaluated him, DCPS urged the district court to dismiss the case as moot. According to DCPS, Boose seeks redress for alleged violations of the child-find provision of IDEA and, if it were granted, “such redress ... would consist of an order requiring DCPS to evaluate A.G. in order to determine his eligibility for special education and other related services.” Id. at 13. That evaluation, of course, had already happened by the time the court took up Boose's case, and, in fact, DCPS had found that A.G. is entitled to special education....