A recent case of interest is Burke v. Hillsborough County School Board, No. 8:17–CV–993–T–33JSS, 2018 WL 1139064, 71 IDELR 187 (M.D. Fla. Mar. 2, 2018), appeal filed, No. 18-11257 (11th Cir. Mar. 29, 2018). The case involved a gifted third grader with autism who was prone to destructive and dangerous conduct, including assaults on others and running away. Equipment in the classroom needed to be removed or locked away so he would not damage it or hurt himself or others with it. Among the accommodations the school offered the student were a behavior plan and personnel to accompany the student throughout the day.

The parent filed a due process complaint alleging that the student’s IEP and behavior plan were not being followed and objecting to the school system’s proposal to reassign the student from the neighborhood school to a different school where more supports were available. The parent lost before the Administrative Law Judge. After filing an appeal in district court, the parent relocated from Florida to Alexandria, Virginia pursuant to a military reassignment.

The court ruled that the appeal was moot. It declared:

Burke asks this Court to “return A.B. to a placement in the general education classroom with appropriate support services as identified in the IEP dated September 19, 2016” and to “identify what actions will be taken against school personnel for the predetermination of student placement and assignment.” (Doc. # 9 at 5; Doc. # 26 at 21). This is not relief that this Court can grant for a student located outside of the Hillsborough County School District.

Id. at *3.

The court said that the possibility that the parent could be assigned back to the air force base in Hillsborough County did not save the case. Although a case may not be moot when the claim is capable of repetition yet evading review, the parent did not establish the applicability of that rule to the court’s satisfaction. And although the complaint in court sought money damages, which would keep the case from being moot even if prospective relief were unavailable, the court held that the relief had not been sought in the administrative hearing, and so was barred by exhaustion doctrine. In the due process complaint, the parent had requested an “Award of compensatory consideration for the amount of time and services denied the student as a result of the denial of a free and appropriate public education,” but he never raised the issue in the hearing despite placing in a proposed order a statement that the parent provided “279 hours of ABA therapy” when the child was at Hillsborough and that the parent should be entitled to reimbursement for it. The court ruled that the request for reimbursement was abandoned.

Mootness is a recurrent issue in due process litigation. In an unpublished opinion in January, the Second Circuit overturned a mootness dismissal, relying on the doctrine concerning cases capable of repetition yet evading review and stating that the time period typically covered by an IEP is too short for a claim to be fully litigated. Toth v. New York City Dep’t of Educ., 720 F. App’x 48, 71 IDELR 76 (2d Cir. 2018). In that case, however, subsequent IEPs created a valid risk that the denial of services being challenged would recur. Before dismissing a case on grounds of mootness, an impartial hearing officer needs to consider the applicability of potential exceptions to the mootness doctrine.

The Burke case also underlines the importance of the hearing officer working through the due process complaint during a prehearing conference to specifically identify the issues to be determined and the relief being sought, and then, when rendering a decision, ruling on every issue so that if a claim is abandoned, that outcome will be obvious from a review of the due process decision.