Russman v. Bd. of Edu. City of Watervliet

• Decision Date: 01 December 2000
• Docket Number: PLAINTIFF-APPELLANT,Docket No. 00-7612,DEFENDANT-APPELLEE
• Citation: 260 F.3d 114
• Parties: (2nd Cir. 2001) COLLEEN RUSSMAN, A CHILD WITH DISABILITIES, BY HER PARENTS, PATRICIA AND PAUL RUSSMAN,, v. THE BOARD OF EDUCATION OF THE ENLARGED CITY SCHOOL DISTRICT OF THE CITY OF WATERVLIET, Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 114

260 F.3d 114 (2nd Cir. 2001)

COLLEEN RUSSMAN, A CHILD WITH DISABILITIES, BY HER PARENTS, PATRICIA AND PAUL RUSSMAN, PLAINTIFF-APPELLANT, v. THE BOARD OF EDUCATION OF THE ENLARGED CITY SCHOOL DISTRICT OF THE CITY OF WATERVLIET, DEFENDANT-APPELLEE.

Docket No. 00-7612

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: December 1, 2000

Decided: Aug. 3, 2001

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[Copyrighted Material Omitted]

Nancy M. Maurer, Esq., Civil Rights and Disabilities Law Project, Albany Law School, Albany, New York, for plaintiff-appellant Russman.

Jay Worona, Esq., New York State School Boards Association, Albany, New York (Stephen F. Bailly, Esq., Hicks & Bailly, Pilar Sokol, Esq., on the brief), for defendant-appellee.

James R. Sheldon, Jr., Esq., Neighborhood Legal Services, Buffalo, New York (Ronald M. Hager, Esq., Jonathan Feldman, Esq., Public Interest Law Office of Rochester, Rochester, New York, on the brief), for amicus curiae Western New York Disability Law Coalition.

David Zwiebel, Esq., Agudath Israel of America, New York, New York (Eytan A. Kobre, on the brief), for amicus curiae Agudath Israel of America.

Before: Walker, Chief Judge, Pooler, Circuit Judge, and Hall, District Judge.^*

John M. Walker, Jr., Chief Judge

Plaintiff Colleen Russman appeals from a judgment of the United States District Court for the Northern District of New York (Ralph W. Smith, Jr., Magistrate Judge) granting a motion for summary judgment by defendant Board of Education of the Enlarged City School District of the City of Watervliet ("the Board") and dismissing the complaint. On appeal, Russman argues that the Free Exercise Clause of the First Amendment to the United States Constitution and section 3602-c of the New York Education Law require the Board to fund on-site special-education services for Colleen at a private parochial school. We conclude that the case has become moot and accordingly vacate the district court's grant of summary judgment on the merits and remand with direction to dismiss the case for lack of jurisdiction.

BACKGROUND

Because this case has been here before, our discussion of the facts and proceedings presumes some familiarity with our prior decisions. See Russman v. Bd. of Educ., 150 F.3d 219 (2d Cir. 1998) ("Russman II"); Russman v. Sobol, 85 F.3d 1050 (2d Cir. 1996) ("Russman I"), vacated sub nom Bd. of Educ. v. Russman, 521 U.S. 1114 (1997).

In 1991, the Russmans notified the Board that they intended to enroll their daughter Colleen, who is mentally retarded, in a local parochial school, St. Brigid's Regional Catholic School ("St. Brigid's"), and requested that the Board fund on-site special-education services at St. Brigid's. The Board declined to do so. Because of the Board's refusal and her parents' inability to pay for those services, Colleen has been enrolled in the Watervliet public schools throughout this litigation. Under an Individualized Education Program ("IEP") prepared pursuant to N.Y. Educ. Law § 4401-a, Colleen attended classes with non-disabled students with the assistance of aides and therapists. At the end of the 1999-2000 school year, Colleen received an "IEP diploma" from Watervliet High School certifying completion of her IEP. Since then, Colleen has not been enrolled in any school, public or parochial, and her parents have not indicated any intention to re-enroll her in such a school.

On being denied their request for on-site services at St. Brigid's, the Russmans pursued available administrative remedies without success and then brought suit on Colleen's behalf in district court on July 8, 1993. They claimed that the Board was obligated by the First Amendment of the United States Constitution, the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-87, and New York state law to provide special-education services on site at St. Brigid's. The Board responded in a summary judgment motion not only that it was not required to provide such services, but also that the First Amendment's Establishment Clause prohibited it from doing so.

The lawsuit has since made two appearances in this court and one in the United States Supreme Court. Earlier iterations of the case have settled the following points: (1) the Establishment Clause of the First Amendment does not bar the Board from providing on-site special-education services at parochial schools, see Russman I, 85 F.3d at 1053-54, and (2) the IDEA does not mandate that the Board provide such services, see Russman II, 150 F.3d at 222. In Russman II, we expressly left to the district court on remand the task of deciding whether the Free Exercise Clause of the First Amendment or section 3602-c of the New York Education Law mandates on-site provision of the special-education services. Id. The district court concluded that neither provision does so and granted the Board's motion for summary judgment on the merits. The Russmans appealed.

DISCUSSION

Because we conclude that the case is moot, we are no longer faced with a justiciable controversy and therefore do not address the merits of the case.

I. Mootness

The federal courts are courts of limited jurisdiction, their powers circumscribed at their most basic level by the terms of Article III of the Constitution, which states that they may hear only "Cases" or "Controversies." U.S. Const. art. III, § 2, cl. 1. Although the "case or controversy" requirement has itself been a fertile ground for controversy through the years, at its uncontroverted core lies the principle that, at all times, the dispute before the court must be real and live, not feigned, academic, or conjectural.

The requisite dispute must persist throughout the litigation - in a case such as this, from first filing in the district court through its many ascents and descents of the appellate ladder - and if the dispute should dissolve at any time due to a change in circumstances, the case becomes moot. See DeFunis v. Odegaard, 416 U.S. 312, 316-17 (1974) (per curiam); Fox v. Bd. of Trs. of the State Univ. of N.Y., 42 F.3d 135, 139-40 & n.2 (2d Cir. 1994). Whenever mootness occurs, the court -whether trial, appellate, or Supreme - loses jurisdiction over the suit, which therefore must be dismissed.¹ See, e.g., Fox, 42 F.3d at 140.

The Supreme Court has recognized an exception, however, where the dispute is "capable of repetition, yet evading review." S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). The capable-of-repetition principle applies only "where the following two circumstances are simultaneously present: (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Spencer v. Kemna, 523 U.S. 1, 17 (1998) (internal quotation marks omitted). A recurrent dispute will "evade review" if it could not be entirely litigated before again becoming moot, including prosecution of appeals as far as the Supreme Court. See, e.g., Honig v. Doe, 484 U.S. 305, 322-23 (1988) (noting the likely mooting "by the time review can be had in this Court" of any future lawsuit brought by plaintiff). Given these strictures, it has been said that the exception "applies only in exceptional situations," Spencer, 523 U.S. at 17, and is "severely circumscribed," Knaust v. City of Kingston, 157 F.3d 86, 88 (2d Cir. 1998). See also Muhammad v. City of N.Y. Dep't of Corr., 126 F.3d 119, 123 (2d Cir. 1997) (holding that the exception is "applied `only in exceptional situations'").

Mootness is a recurring phenomenon in students' suits to vindicate constitutional rights associated with the conditions of their education: a student's graduation ends his individual interest in the conditions of education at his former school. See, e.g., Bd. of Sch. Comm'rs of Indianapolis v. Jacobs, 420 U.S. 128, 129-30 (1975) (per curiam); Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 74 (2d Cir. 2001), petition for cert. filed, 70 U.S.L.W. 3026 (U.S. June 25, 2001) (No. 00-1932); Fox, 42 F.3d at 140; Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993). As the student's interest evaporates, so does the requisite case or controversy. Moreover, the finality of graduation means that "in the absence of a class action, the `capable of repetition, yet evading review' exception is not available when the issue is students' rights and the complaining students have graduated from the defendant institution." Altman, 245 F.3d at 71.

In the present case, Colleen has received her IEP diploma from Watervliet High School. She is no longer attending school, public or parochial, and her parents have expressed no intention to re-enroll her in the future. For these reasons, a favorable decision from this court would not immediately inure to her benefit, rendering the case moot. See United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 469 (2d Cir. 1996).

The Russmans nevertheless urge that the case is "capable of repetition, yet evading review" because an IEP diploma, unlike an ordinary high-school diploma, does not terminate a recipient's entitlement to a free appropriate public education ("FAPE"). A school district may "award a high school [IEP] diploma... upon a finding that [a] student has achieved the educational goals... specified in the student's current [IEP]." N.Y. Comp. Codes R. & Regs. tit. 8, § 100.9(c). The IEP diploma does not mean that the student has graduated in the traditional sense, however:

its recipient shall continue to be eligible to attend the public schools of the school district in which the student resides without the payment of tuition until the student has earned a high school diploma or until the end of the school year of such student's 21st birthday, whichever is earlier.

N.Y. Comp. Codes R. & Regs. tit. 8, § 100.9(e); see also N.Y. Comp. Codes R. & Regs. tit. 8, § 100.5(b)(7)(iii) (stating that "[e]arning... an [IEP]...