Straube v. Florida Union Free School Dist.

• Decision Date: 25 August 1992
• Docket Number: No. 91 Civ. 1359 (GLG).,91 Civ. 1359 (GLG).
• Parties: Jack Jr., Jean, and Jack III STRAUBE, Plaintiffs, v. FLORIDA UNION FREE SCHOOL DISTRICT, Thomas Sobol, Thomas Neveldine, Commissioners, New York State Education Department, Defendants.
• Court: U.S. District Court — Southern District of New York

801 F. Supp. 1164

Jack Jr., Jean, and Jack III STRAUBE, Plaintiffs, v. FLORIDA UNION FREE SCHOOL DISTRICT, Thomas Sobol, Thomas Neveldine, Commissioners, New York State Education Department, Defendants.

No. 91 Civ. 1359 (GLG).

United States District Court, S.D. New York.

August 25, 1992.

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Cole, Schotz, Bernstein, Meisel & Forman, P.A. by Rebecca K. Spar, of counsel, Hackensack, N.J., for plaintiffs.

Serchuk & Zelermyer by Steven A. Coploff, of counsel, New York City, for defendant Florida Union Free School Dist.

Robert Abrams, Atty. Gen. by Martha O. Shoemaker, of counsel, New York City, for defendants Thomas Sobol and Thomas Neveldine.

OPINION

GOETTEL, District Judge.

Education plays a vital role in a free society. While not a fundamental right under the Constitution, our courts have consistently recognized that the opportunity to "acquire the minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process" should be available to all children equally. San Antonio School District v. Rodriguez, 411 U.S. 1, 37, 93 S.Ct. 1278, 1299, 36 L.Ed.2d 16 (1973). The Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA") (previously the Education for Handicapped Act ("EHA")¹), was passed by Congress to ensure educational services for the handicapped who, prior to the passage of the Act, were in many cases not receiving any education at all.

The case of Jacob Straube is sad, but perhaps not that unusual. Jack, as he is known, is almost eighteen years old and about to enter his senior year in high school. Although he possesses average to above average intelligence, just prior to entering tenth grade, Jack read only at a third grade level. This suit is based on the claim that the educational system has failed this boy. Underlying is the ultimate question — what should our educational system be doing for students with handicaps?

BACKGROUND

Jack Straube has dyslexia which is a developmental disorder which affects his ability to read and write. This dyslexia is compounded by a condition known as attention deficit disorder, manifested by impassivity and poor concentration. Jack has been classified as "learning disabled", as a result of these conditions, and is entitled, because of the IDEA, to receive, at public expense, specially designed instruction to meet his educational needs.

Jack is being educated in the Florida Union Free School District in Orange County, New York. He currently attends S.S. Seward Institute, the district's high school. The Florida school district is a small system serving roughly 400 students in total. Starting in third grade, Jack was evaluated annually by the district's Committee on Special Education ("CSE") and provided with an Individualized Education Program ("IEP") which was intended to address his needs as identified by the CSE. Over the years, the programs set up for Jack by the CSE included time in a special resource room, mainstreaming into regular classes, remedial reading, and counseling. Despite these efforts, in 1990-91 when Jack would have entered tenth grade, test scores showed he read only at a third grade level. The IEP for that school year was similar to that of previous years. Jack's parents decided that the school district had had enough time to teach their son to read and challenged his IEP as "inappropriate". Their goal was to place Jack in the Kildonan School in Armenia, New York, a residential school which purportedly has a high degree of success in teaching dyslexic children to read. The Kildonan School utilizes a teaching method known as Orton-Gillingham which is a multi-sensory approach to learning.

Under the IDEA, parents are provided with due process in order to challenge an IEP which they believe is "inappropriate". The Straubes requested such a hearing to review the IEP proposed for Jack's sophomore year in high school. Shortly after the hearing commenced in August 1990, the school district agreed to place Jack at Kildonan. The Straubes began the enrollment process but were then told that the district could not authorize the Kildonan placement because the school was not "approved" by the New York State Education Department. The Straubes nevertheless enrolled Jack at Kildonan after allegedly investigating other alternatives drawn from the "approved" list.

The impartial hearing, at which the Straubes were represented by a trained lay advocate, took place over several days. At the conclusion, the Impartial Hearing Officer ("IHO") concluded that the "programs provided over the years, as resulted in this 15 year old's reading at a third grade level, must be considered a failure." In the Matter of the Special Education Due Process Hearing on the Petition of J.S., Impartial Hearing Officer's Decision (November 27, 1990), at 6. He determined that the school district's proposed placement as described in the 1990-91 IEP was inappropriate. The IHO noted, however, that Jack could not be placed in Kildonan, although that school appeared to present the best hope because of its particular teaching methods, because the school was not approved by the State Education Department, a requirement under the IDEA. The IHO observed that "no private school either within or without the state dealing with this Child's severe learning disability, at his chronological age, is registered as an approved school." Id., at 8. The IHO remanded the case back to the CSE to reformulate Jack's IEP for the 1990-91 school year. The Straubes began this suit to challenge the IHO ruling and placed Jack in Kildonan.

After nine months in Kildonan, Jack's reading scores had improved dramatically.² Lacking the funds to continue his education there, the Straubes re-enrolled Jack in the Florida high school. The IEP fashioned for 1991-92 continued the same educational strategy as the other ones that had failed so miserably in the past: mainstreaming for all subjects but math and reading, special education reading, five hours per week in the resource room and counseling. The IEP noted that Jack required a multi-sensory approach to learning.

DISCUSSION

The Straubes, the Florida school district and the State are all moving for summary judgment. The Straubes seek conditional approval of Kildonan, compensatory damages and an order to the State to institute new procedures for the approval of schools. The State and the school district seek dismissal of the Straubes' complaint in its entirety. Several preliminary issues must be resolved before the substance of the motions can be addressed.

Mootness

The defendants argue that this case is mooted by the fact that there was a new IEP in place for Jack to which his parents have apparently assented. Defendants contend that the 1990-91 IEP is the subject of this litigation and would not be in effect regardless of its legal sufficiency. Since the dispute concerning the 1990-91 IEP no longer exists, defendants suggest that this court lacks jurisdiction to hear the Straube's complaint.

Article III of the United States Constitution requires that there be a "case or controversy" before a federal court can render a decision. "However, where the offensive conduct is `capable of repetition, yet evading review,' the rule that mootness strips the court of jurisdiction does not control." Christopher P. by Norma P. v. Marcus, 915 F.2d 794, 802 (2d Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1081, 112 L.Ed.2d 1186 (1991), (quoting Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982)). So where the complaining party would be subjected to the same action at some future point, mootness does not exist. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam); Daniel R.R. v. State Board of Education, 874 F.2d 1036, 1040 (5th Cir.1989).

It cannot be disputed that the 1990-91 IEP is no longer applicable to Jack. Yet judicial review is still available in light of the ponderous procedures of the IDEA. See Board of Educ. of the Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 186-87 n. 9, 102 S.Ct. 3034, 3041 n. 9, 73 L.Ed.2d 690 (1982) (allowing judicial review of an IEP which expired at the end of the school year); Frutiger v. Hamilton Central School Dist., 928 F.2d 68, 73 (2d Cir.1991). Moreover, the issues raised by his parents in their challenge to that program still continue. Indeed, Jack's IEP for 1991-92 merely continues the regime which had already been deemed "inappropriate" by the IHO although we are cognizant that as a result of his year at Kildonan, his needs may have changed. Assuming that Jack's needs have not changed, the fact remains that there is a very real possibility that the school district will continue to give Jack another inappropriate placement unless the question of whether the school district is limited to choices from the "approved list" in making placements.

In addition, the crux of the Straubes' complaint is that the State has failed to provide a continuum of educational options for the severely dyslexic student. As placement in any of the schools on the State's approved list had not been recommended by either the IHO or the 1991-92 CSE, the fundamental problem complained of by the Straubes — namely, that no viable educational option for Jack was provided by the State — continues to exist. See Honig v. Doe, 484 U.S. 305, 320-21, 108 S.Ct. 592, 602-03, 98 L.Ed.2d 686 (1988) (lack of policy concerning school response to disability related misconduct could continue to result in IDEA/EHA violations which could affect plaintiff who was 20 years old and still eligible for educational services); Daniel R.R., 874 F.2d at 1041 (primary controversy concerning extent of State's mainstreaming obligation likely to recur each year). We do not find therefore that his claim is moot.

Eleventh Amendment

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