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Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Barker Central School District


Andrew K. Cuddy, Esq., attorney for petitioner

Hodgson Russ LLP, attorneys for respondent, Jerome D. Schad, Esq., of counsel


       Petitioner appeals from the decision of an impartial hearing officer granting respondent's motion to dismiss based upon a finding that the matter was moot. The hearing officer found that the relief requested by petitioner was not available as the student no longer resided in respondent's school district. The appeal must be dismissed.

        The student was 16 years old and resided in respondent's school district, but was not enrolled in its public school system when the hearing began in August 2002. She was initially classified as learning disabled by respondent's Committee on Special Education (CSE) when she was in the sixth grade during the 1997-98 school year.

        On July 29, 2002, petitioner requested an impartial hearing, claiming that respondent failed to recommend a program for her daughter for the 2002-03 school year (Exhibit 2). After the hearing commenced on August 21, 2002, the CSE met and prepared an individualized education program (IEP) for the student for the 2002-03 school year. Petitioner then amended her hearing request to include a claim that the IEP was inappropriate.

        On September 12, 2002, petitioner and her daughter moved to the Springville-Griffith Institute Central School District (Springville-Griffith), and petitioner's daughter began attending school in that district. When the hearing reconvened on September 16, 2002, respondent moved to dismiss the matter, claiming that the hearing officer lacked authority to conduct proceedings for a student who no longer resided in the school district and that he could not issue an enforceable order in favor of the parent against the school district. The September 16, 2002 hearing was limited to respondent's motion to dismiss.

        The hearing officer rendered his decision on respondent's motion on October 3, 2002. He found that petitioner and her daughter permanently changed their place of residence and no longer resided within the territorial jurisdiction of respondent's school district. He determined that the only relief that could be awarded to petitioner was prospective relief, which was not available to a student who no longer resided in the school district from which the relief is sought. Accordingly, the hearing officer found that the matter was moot and he granted respondent's motion to dismiss.

        Petitioner appeals from the hearing officer's decision, asserting that her case satisfies the "capable of repetition, yet evading review" exception to the mootness doctrine because there is a reasonable expectation that her daughter will return to school in respondent's district given her ties to the district. She further claims that she was deprived of the opportunity to present evidence of her ties to the district.

        In general, a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome (Murphy v. Hunt, 455 U.S. 478, 481 [1982]). In determining whether a controversy has become moot, the relevant inquiry is whether the facts alleged, under all the circumstances, show that there is a substantial controversy of sufficient immediacy and reality to warrant relief (Christopher P. v. Marcus, 915 F.2d 794, 802 [2d Cir. 1990]). The State Review Officer is not required to determine issues which are no longer in controversy or to make a determination which would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 97-17; Application of a Child with a Disability, Appeal No. 94-9).

        An exception to mootness exists for claims that are "capable of repetition, yet evading review" (Honig v. Doe, 484 U.S. 305, 318 [1988]). The exception applies only in exceptional situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]). Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 [1975]). To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Russman v. Bd. of Educ., 260 F.3d 114, 120 [2d Cir. 2001]). Petitioner claims that her case survives the mootness doctrine because there is a reasonable expectation that her daughter will return to respondent's school district given her ties to the district, and that if she does return, there is no assurance that respondent would provide her daughter a free appropriate public education (FAPE). There is nothing in the record suggesting that petitioner intends to have her daughter return to respondent's district even if it offers a FAPE or that her move to Springville-Griffith was temporary. Rather, petitioner offers various scenarios that might potentially result in her daughter returning to respondent's district, and then assumes, without any showing, that respondent would deny her daughter a FAPE. Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation of recurrence (Video Tutorial Services, Inc. v. MCI Telecommunications Corp., 79 F.3d 3, 6 [2d Cir. 1996]). Furthermore, the responsibility for providing a FAPE to a student rests with the school district in which the student resides (N.Y. Educ. Law §§ 3202[1], 4401-a, and 4402[1][b][2]). Upon the student's enrollment at Springville-Griffith on September 12, 2002, Springville-Griffith became responsible for providing a FAPE to the student and for providing all of the related procedural safeguards under the Individuals with Disabilities Education Act (IDEA), for as long as the student remains a resident of that district and remains eligible for IDEA services.

        Finally, though not specifically addressed by petitioner, there is nothing in the record to demonstrate that the conduct complained of would evade review. Should the student return to respondent's school district, its CSE would be required to develop an IEP for her. If the CSE failed to develop an IEP or otherwise failed to comply with the IDEA, petitioner would be entitled to exercise her due process rights, including the right to an impartial hearing (See Christopher P., 915 F.2d at 802). Based upon the foregoing, I concur with the hearing officer's well-reasoned decision, and I find that the claim is moot and that the facts alleged do not meet the "capable of repetition, yet evading review" exception to the mootness doctrine.