Jenkins v. Squillacote, 90-7172

Decision Date30 July 1991
Docket NumberNo. 90-7172,90-7172
Citation935 F.2d 303
Parties, 68 Ed. Law Rep. 248 Andrew JENKINS, Officially, Superintendent D.C. Public Schools, Appellant, v. Theresa M. SQUILLACOTE, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia.

Susan S. McDonald, Asst. Corp. Counsel, District of Columbia, with whom John Payton, Acting Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, were on the brief, Washington, D.C., for appellant.

Matthew B. Bogin, with whom Michael J. Eig was on the brief, Washington, D.C., for appellees.

Before EDWARDS, BUCKLEY and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

The appellant, Dr. Andrew Jenkins, Superintendent of the District of Columbia Public Schools, appeals a ruling by the District Court holding that his law suit under the Individuals with Disabilities Education Act has been rendered moot by the passage of the school year at issue. See Jenkins v. Squillacote, Civ. Action No. 89-2542, 1990 WL 157876 (D.D.C. Oct. 5, 1990). We reverse the District Court on the grounds that the wrong alleged--misapplication of the legal standard governing the notice that public school systems must give parents before altering the educational plans for their children--is "capable of repetition, yet evading review."

A. Statutory Framework

As a recipient of federal funds under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.A. Sec. 1400 et seq. (West 1990 & Supp.1991), 1 the District of Columbia ("the District") is required to provide all disabled children within its jurisdiction with "a free appropriate public education." See 20 U.S.C.A. Sec. 1412(1) (West Supp.1991). Under the statute, the District is obligated to devise Individualized Education Programs ("IEPs") for each eligible child, mapping out specific educational goals and requirements in light of the child's disabilities and matching the child with a school capable of fulfilling those needs. See 20 U.S.C.A. Secs. 1412(4), 1414(a)(5), 1401(a)(20) (West Supp.1991). If no suitable public school is available, the District must pay the costs of sending the child to an appropriate private school, see School Comm. of the Town of Burlington, Mass. v. Department of Educ. of Mass., 471 U.S. 359, 369, 105 S.Ct. 1996, 2002, 85 L.Ed.2d 385 (1985) ("Town of Burlington "); however, if there is an "appropriate" public school program available, i.e., one " 'reasonably calculated to enable the child to receive educational benefits,' " the District need not consider private placement, even though a private school might be more appropriate or better able to serve the child, see Kerkam v. Superintendent, D.C. Public Schools, 931 F.2d 84, 86 (D.C.Cir.1991) (quoting Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). In short, "the inquiry as to the appropriateness of the State's program is not comparative." Id. at 88; see also Roland M. v. Concord School Comm., 910 F.2d 983, 992-93 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1122, 113 L.Ed.2d 230 (1991).

Any time the District devises or alters an IEP, it is required by the statute to provide advance notice to the parents of the affected child. See 20 U.S.C. Sec. 1415(b)(1)(C) (1988). By regulation, this notice must explain the proposed action and the reasons underlying it. See 34 C.F.R. Sec. 300.505(a) (1990). If a parent disagrees with the IEP, she or he may demand a "due process hearing" before an outside examiner, during which the parent may contest the proposed action. See 20 U.S.C. Sec. 1415(b)(2) (1988). "Any party aggrieved by the findings and decision" of the hearing examiner may seek review in district court. See 20 U.S.C. Sec. 1415(e)(2) (1988).

B. Factual Background

Karl Stand is a disabled seven-year-old child living in the District of Columbia and is eligible for "a free appropriate public education" under the IDEA. After observing Karl in a laboratory classroom and reviewing his medical and educational records, the District devised an IEP which stated that Karl was "multiply handicapped" and that he should be placed in a school where he could receive both occupational and physical therapy in addition to educational programs geared toward his learning disability. See IEP (Apr. 7, 1989), reprinted in Appendix ("App.") 16. Four days later, the District advised Karl's parents that it intended to assign Karl to the Sharpe Health School, a public school that specializes in the education of children with multiple handicaps. See Notice of Proposed Change in Educational Placement (Apr. 11, 1989), reprinted in App. 44. Karl's parents acknowledge that Sharpe Health School is the only public school capable of providing the physical therapy Karl needs. See Brief for Appellees at 1 n. 3, 17.

Karl's parents, who preferred that Karl attend Ivymount, a private school, objected to the proposed placement and demanded a hearing. At the hearing on June 28, 1989, the examiner ruled that the notice provided by the District to Karl's parents was deficient because it did "not contain an explanation of how DCPS [D.C. Public Schools] designated Karl Stand as multiply handicapped," and because it did "not set out why Karl Stand cannot be placed in a program solely for one of the impairments" rather than a program geared for children with multiple handicaps. See Hearing Officer's Determination (July 6, 1989), reprinted in App. 73, 77. The hearing examiner then ordered the District to provide Karl's parents with "a corrected notice." Id.

Two days later, the District provided Karl's parents with a revised placement notice. In it, the District explained what it meant by "multiply handicapped" and why it assigned Karl to the Sharpe school over Ivymount. See Notice of Proposed Change in Educational Placement (June 30, 1989) ("Ivymount was rejected because of the amount of travel time required from Karl's home. The D.C.P.S. program is also more likely to provide Karl an opportunity for mainstreaming."), reprinted in App. 57 58. Karl's parents again objected and sought a second hearing.

At the new hearing, the examiner again found the District's notice deficient under the statute. According to the examiner, "the notice does not specify which problems are the result of which handicapping condition[,] thus obscuring why Karl could not be placed in a program solely for one of the impairments." See Hearing Officer's Determination (Aug. 11, 1989), reprinted in App. 79, 84. Because the commencement of the school year was then imminent, the hearing examiner simply ordered Karl's placement at Ivymount for the 1989-1990 school year rather than permitting the District another chance to perfect notice of its chosen placement. Id., reprinted in App. 87.

The District, in the name of Andrew Jenkins, Superintendent of Schools, filed this action in District Court on September 11, 1989, seeking review of the hearing officer's determinations concerning the sufficiency of the notice provided to Karl's parents. The District's complaint included two counts: the first alleged that the notice that had been provided was entirely sufficient and that the hearing officer's finding to the contrary was legally incorrect; the second alleged that "any defect with DCPS' Notice and Revised Notice was non-prejudicial and should not have precluded DCPS from moving forward" with its proposed placement. See Complaint pp 24-27, reprinted in App. 8, 12.

As the pleadings and argument have made clear, this case is not simply about where Karl Stand would attend school for the 1989-1990 school year, but rather about what sort of legal standard the District must meet in providing notice to Karl's parents, and to other parents as well, concerning a proposed change in the educational placement of a handicapped child. The District appears to take the view that it need only provide parents with a summary explanation of its reasoning and conclusions in making a placement decision, deferring a more exhaustive explanation until any hearing on the merits of the decision; the hearing examiner, however, has consistently demanded a more detailed justification of the decision in the initial notice itself. 2

On September 28, 1989, Karl's parents filed a motion to dismiss the District's action. They alleged that the case was moot because the District's complaint attacked only the hearing officer's finding of inadequate notice without expressly refuting his remedial finding that Ivymount represented an "appropriate" placement for Karl. The District answered that motion on December 7, 1989, pointing out that its complaint attacked the basis of the hearing officer's rejection of the District's chosen placement and that "whether or not plaintiff appealed the finding of Ivymount's appropriateness is irrelevant." See Plaintiff's Memorandum of Points and Authorities in Opposition to Defendants' Motion to Dismiss or in the Alternative for Summary Judgment, Jenkins v. Squillacote, Civ. Action No. 89-2542 (D.D.C. Oct. 5, 1990).

The District Court held the matter under advisement for 10 months. On October 5, 1990, the court held that the case was moot, not on the grounds suggested by the appellees, but rather because, by the time of the court's ruling, the 1989-1990 school year had passed. See Jenkins v. Squillacote, Civ. Action No. 89-2542, mem. order at 2 (D.D.C. Oct. 5, 1990). The District then took this appeal.


The District contends that this case is not moot, despite the passing of the 1989-1990 school year at issue in the hearing examiner's placement order, for several reasons: (1) a favorable court ruling assertedly would enable the District to seek reimbursement of tuition funds it has already spent...

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