Decision Date05 May 2005
Docket NumberDocket No. 252428.,Docket No. 252288
Citation701 N.W.2d 195,266 Mich. App. 258
PartiesMICHIGAN DEPARTMENT OF EDUCATION, Petitioner-Appellee, v. GROSSE POINTE PUBLIC SCHOOLS, Respondent-Appellant. Grosse Pointe Public Schools, Plaintiff-Appellant, v. Michigan Department of Education, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and D.J. Pascoe, Assistant Attorney General, for the Department of Education.

Clark Hill PLC (by Robert A. Lusk, James E. Brenner, and Paul C. Smith), Detroit, for the Grosse Pointe Public Schools.

LaPointe & Associates, P.C. (by Jeffrey J. Butler and Paul J. Zimmer), Okemos, for the Wayne County Regional Educational Service Agency and the Michigan Association of School Boards.

Before: TALBOT, P.J., and JANSEN and GAGE, JJ.


Grosse Pointe Public Schools appeals as of right a circuit court order of dismissal. Following a Michigan Department of Education administrative decision requiring the Grosse Pointe Public School District to provide D.G., a student voluntarily attending a private school, an individual educational evaluation (IEE)1 at public expense, appellant filed two actions in circuit court: an appeal seeking review of the administrative decision (Lower Court No. 03-304444-AA), and a complaint for declaratory and injunctive relief (Lower Court No. 03-304443-CZ). The two cases were consolidated in the circuit court and resolved by the same "order of dismissal." Appellant filed an application for leave to appeal the administrative review (Docket No. 252288), and this Court granted the application and consolidated it with the appeal as of right of the dismissal of the request for declaratory and injunctive relief (Docket No. 252428).2


D.G. is a minor in remission from a brain tumor who voluntarily attends a private school located within the limits of the Grosse Pointe School District (the School District). He and his mother, S.G., reside outside the school district.3 In September 2002, S.G. requested that the School District evaluate D.G.'s physical therapy needs because he had developed problems walking. After an evaluation, the School District stated that D.G. did not need any physical therapy in addition to the group therapy he was already receiving at the private school. S.G. disagreed with this conclusion, and requested that the School District grant her son an IEE. The School District denied the request for an IEE, claiming "that an independent evaluation is not an ancillary service under Michigan law that the District must provide to private schools."

Following the School District's denial of the request for an IEE, S.G. filed a complaint with the Wayne County Regional Educational Service Agency (Wayne RESA). Wayne RESA addressed the complaint, indicated that the governing regulations were 34 CFR 300.457, promulgated under the Individuals with Disabilities Education Act (IDEA), 20 USC 1400 et seq., and MCL 380.1296,4 which is the Michigan auxiliary services act (ASA), and concluded that D.G. was not entitled to an IEE on the basis that IEEs are not included in the definition of auxiliary services provided in MCL 380.1296. Subsequently, S.G. sent a letter to the Policy, Planning, and Compliance Program of the Michigan Department of Education (MDE) appealing the School District's and Wayne RESA's decisions denying D.G. an IEE, pursuant to 1999 AC, R 340.1852.

The MDE conducted an investigation and issued a report finding that the School District had violated 1999 AC, R 340.17015 by denying the request because of MCL 380.1296; Chapter X of the State Plan; and 1999 AC, R 340.1723c.6 The MDE's findings stated that MCL 380.1296 and Chapter X of the State Plan7 provide that students voluntarily enrolled in private schools are entitled to the same rights to an evaluation and procedural safeguards as public school students, including the IEEs provided for in Rule 340.1723c.8 The MDE further stated that, in response to S.G.'s request for an IEE, the School District had an obligation to either grant the request or to request a due process hearing to address the matter. And, the MDE concluded, by not doing either, the School District violated Rule 340.1701. The MDE ordered the School District to either provide an IEE at public expense or to request a due process hearing within two days of receiving the report. The School District paid $125 for D.G. to have the IEE.

Thereafter, appellant filed a complaint for declaratory and injunctive relief in the Wayne Circuit Court. In the complaint, appellant alleged violations of the IDEA; the ASA: § 504 of the Rehabilitation Act of 1973, 29 USC 794 (§ 504); Title II of the Americans with Disabilities Act (ADA), 42 USC 12131 et seq.; the Administrative Procedures Act, MCL 24.201 et seq.; and a part of the Headlee Amendment, Const 1963, art 9, § 29. Appellant requested that the State Plan be declared illegal to the extent that it required any school district to provide special education procedural safeguards to students voluntarily enrolled in nonpublic schools, and that the court permanently enjoin the MDE from enforcing the State Plan to require any school district to provide special education procedural safeguards to voluntarily enrolled private school students.

The circuit court's decision stated that MCL 380.1701,9 which is part of the Michigan mandatory special education act (MMSEA), clearly indicates that the State Board of Education's duties are not limited to special education programs in public schools for public school students. The circuit court noted and relied on the all-inclusive nature of the language from MCL 380.1701, which provides for "every handicapped person" and "all special education programs and services." The circuit court then cited Rule 340.1723c as the basis for the decision that D.G. was entitled to an IEE. The circuit court concluded that Rule 340.1723c extends to handicapped persons in both public and private schools, and further authorizes an IEE at public expense if the parent disagrees with a public agency's evaluation because MCL 380.1701 and Rule 340.1723c, the rule promulgated under that statute, "afford handicapped students in private schools the same procedural protections of students in private schools including an IEE." The circuit court dismissed as irrelevant appellant's arguments premised on the mistaken assumption that its duty to provide an IEE derived from the State Plan, because that duty results only from Rule 340.1723c. The MDE's decision was affirmed and the complaint for declaratory and injunctive relief was dismissed.

Appellant filed an application for leave to appeal the decision on administrative review, and appealed as of right the dismissal of the request for declaratory and injunctive relief. This Court entered an order granting appellant's application for leave and, on its own motion, consolidated the appeals.


As an initial matter we must address whether the issues presented are moot. The MDE contends that the issues are moot because appellant has already paid for the IEE and is not entitled to reimbursement, regardless of whether the initial ruling was valid. We disagree.

"A case is moot when it presents only abstract questions of law that do not rest upon existing facts or rights." B P 7 v. Bureau of State Lottery, 231 Mich.App. 356, 359, 586 N.W.2d 117 (1998). A reviewing court will not reach moot issues or declare principles or rules of law that have no practical effect on the case before it "unless the issue is one of public significance that is likely to recur, yet evade judicial review." Federated Publications, Inc. v. City of Lansing, 467 Mich. 98, 112, 649 N.W.2d 383 (2002). This Court can grant declaratory relief only if there is an actual controversy. MCR 2.605; Shavers v. Attorney General, 402 Mich. 554, 588, 267 N.W.2d 72 (1978). Because of the requirement of an actual controversy, this Court may not "decide moot questions in the guise of giving declaratory relief." Dep't of Social Services v. Emmanuel Baptist Preschool, 434 Mich. 380, 470, 455 N.W.2d 1 (1990) (opinion of Boyle, J.), citing McMullen v. Secretary of State, 339 Mich. 175, 63 N.W.2d 599 (1954).

Appellant has already paid for D.G. to have the IEE, and D.G. has already received the IEE, regardless of what happens in these proceedings; thus, there is no actual controversy. Consequently, this Court should only review appellant's issues if they are of "public significance" and "likely to recur, yet evade judicial review." Federated Publications, Inc., supra at 112, 649 N.W.2d 383. The issues have public significance, both for public school districts and for the special education students they serve. Appellant paid for the IEE rather than request a due process hearing under the rules and, instead of challenging the decision administratively, appealed the decision to the circuit court. Although the School District already has paid for D.G.'s IEE, this issue could likely recur with other special education students. The issues could likely recur and evade review even if school districts refused to pay for the IEEs, because it may be difficult both for a student to challenge that action and for an actual controversy to exist given "the transitory nature of the educational process...." Dep't of Civil Rights ex rel Forton v. Waterford Twp. Dep't of Parks & Recreation, 425 Mich. 173, 176 n. 1, 387 N.W.2d 821 (1986), citing Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). This type of issue could evade review if school districts refused to pay because, with time, the student could move on and potentially be done with school before the matter made it through the judicial process. We will address the issues raised because they have public significance, both for public school districts and for the special...

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