J.S. v. Westerly Sch. Dist.

910 F.3d 4

J.S., Individually and as Parent and Legal Guardian of M.S., a Minor; T.S., Individually and as Parent and Legal Guardian of M.S., a Minor, Plaintiffs, Appellees,

v.The WESTERLY SCHOOL DISTRICT; The Westerly Public Schools, Defendants, Appellants,The State of Rhode Island Department of Education, Defendant.

Nos. 17-1311

17-1817

United States Court of Appeals, First Circuit.

December 6, 2018

Mary Ann Carroll, with whom Henneous Carroll Lombardo LLC was on brief, for appellants.

Gregory A. Mancini, with whom Sinapi Law Associates, Ltd. was on brief, for appellee.

Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

M.S. is a student who until recently was enrolled in the Westerly School District in Westerly, Rhode Island. M.S. suffers from Lyme Disease and other tick-borne illnesses, and she receives educational accommodations pursuant to Section 504 of the Rehabilitation Act of 1973. For over two years, her parents J.S. and T.S. unsuccessfully sought to have Westerly determine that M.S. was also eligible for an Individualized Education Program (IEP) under the Individuals with Disabilities Education Act (IDEA). M.S. and her parents have since moved out of the Westerly District, thereby mooting the dispute over M.S.'s entitlement to an IEP. In the course of the parties' dispute, however, the parents obtained an order from the district court forcing Westerly to forgo conducting its own evaluations and decide "post-haste" if M.S. was eligible for an IEP. Although that decision resulted in a determination that M.S. was not eligible, the district court subsequently awarded the parents attorneys' fees as the prevailing parties. Westerly now appeals both the district court's order compelling it to determine eligibility without first obtaining its own evaluations and the fee award. For the following reasons, we find the challenge to the order moot and the attorneys' fee award mistaken.

I.

A.

We begin with a basic description of the IDEA's framework for determining a student's eligibility for an IEP and the procedure for adjudicating a dispute over eligibility. The purposes of the IDEA include "ensur[ing] that all children with disabilities have available to them a free appropriate public education" and "ensur[ing] that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1)(A)-(B). To these ends, the IDEA offers federal funds to states that provide a free appropriate public education (FAPE) to children with disabilities. See generally id. §§ 1411–1412. Rhode Island accepted IDEA funding and agreed to provide FAPE to disabled children. See 21–2–54:A R.I. Code R. § 300.2(a).

Under the IDEA and its implementing regulations, parents may request an initial evaluation "to determine if the[ir] child is a child with a disability." 20 U.S.C. § 1414(a)(1)(B). Upon receipt of such a request, the local educational agency (LEA) "must conduct a full and individual initial evaluation ... before the initial provision of special education and related services to a child with a disability." 34 C.F.R. § 300.301(a). As part of this initial review, a team of professionals must "[r]eview existing evaluation data on the child, including ... [e]valuations and information provided by the parents of the child." Id. § 300.305(a); see also id. § 300.502(c) ("If the parent ... shares with the public agency an evaluation obtained at private expense, the results of the evaluation ... [m]ust be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child."). After reviewing any existing data, the LEA must "identify what additional data, if any, are needed to determine ... [w]hether the child is a child with a disability ... [and the LEA] must administer such assessments and other evaluation measures as may be needed to produce the data identified." Id. § 300.305(a),(c). Only then, "[u]pon completion of the administration of assessments and other evaluation measures," do a group of professionals and the parents of the child meet to determine whether the student is a child with a disability under the IDEA and the educational needs of the child. Id. at § 300.306(a). So, in sum, before making an IDEA eligibility determination, the LEA must (1) review existing data, including evaluations provided by the parents; (2) identify what additional data are needed to determine whether the child is eligible; and (3) administer evaluations to collect that additional data.

When the LEA decides that it needs additional data, the LEA must obtain parental consent before conducting its own evaluations of the child. See id. § 300.300(a)(1)(i) ("The public agency proposing to conduct an initial evaluation to determine if a child qualifies as a child with a disability under § 300.8 must, after providing notice ... obtain informed consent ... from the parent of the child before conducting the evaluation."). If the parents refuse to consent, the school can -- but is not required to -- pursue the evaluation through mediation or administrative procedures. See id. § 300.300(a)(3)(i). But "the public agency does not violate its obligation [to determine eligibility] if it declines to pursue the evaluation." Id. § 300.300(a)(3)(ii).

Parents who contest the identification, evaluation, or educational placement of a child with a disability can file a "due process complaint," which kicks off a state administrative process for adjudicating the dispute. See id. § 300.507(a). Any party aggrieved by the findings or decisions made in the administrative proceeding has a right to bring a civil action in a United States District Court. See id. § 300.516(a).

B.

We now sketch the relevant facts of this case. In the fall of 2015, J.S. and T.S. ("the parents") requested that Westerly determine that M.S. was eligible for special educational services under the IDEA. The school and the parents agreed to a meeting to be held on December 17, 2015. The parties had different expectations about the meeting. In a December 9 form sent to the parents, the school indicated that the purpose of the meeting was to "address a referral to the Evaluation Team." The parents replied that they expected the meeting to include not only a referral discussion, but also an eligibility determination, as there was "enough objective information for the team to consider and make a decision."

At the meeting, the parents brought with them two educational advocates and a neuropsychologist. M.S.'s personal physician and her audiologist phoned in. The medical professionals presented the results of their evaluations of M.S. and their recommendations for special educational services, and the parents provided the school with copies of the evaluations. Soon after the meeting, school officials wrote to the parents that, after considering the independent evaluators' opinions, "there remained significant questions," in part because "the results of the evaluations conducted [by the parents' experts] did not in many ways reflect what school staff who know [M.S.] have or are experiencing with her." Consistent with its obligations under the IDEA, Westerly undertook to "conduct evaluations to answer these questions and assist with the eligibility determination." Westerly therefore requested the parents' consent to conduct five educational evaluations and observation by the school social worker.

Rather than consent to the school's proposed evaluations, the parents filed a due process complaint with the Rhode Island Department of Education in February 2016, alleging that Westerly failed to identify M.S. as a child with a disability who was entitled to special educational services. In April 2016, the administrative hearing officer assigned to the case relied on the regulations discussed above to conclude that the district had a right to conduct its own evaluations before making an eligibility determination. The hearing officer consequently ordered the parents to "execute all releases necessary for school department to conduct appropriate evaluations of M.S." The parents did not provide consent, and in August 2016, the hearing officer dismissed the due process complaint based on the parents' failure to comply with its order. The parents appealed to the District Court of Rhode Island.

Following a March 17, 2017 hearing on cross motions for summary judgment, the district court eventually commanded Westerly to determine M.S.'s eligibility based on the existing information (without first conducting its own evaluations). While appealing, Westerly also complied with the district court's order by making an eligibility determination. M.S.'s teachers participated and described M.S.'s above-average academic performance. Unsurprisingly, Westerly's conclusion tracked what it told the parents when requesting the further evaluations that the parents had refused to permit: The evaluations provided by the parents were inconsistent with M.S.'s performance in the classroom. Therefore, Westerly concluded that M.S. was ineligible for special educational services. The family then moved out of the school district before any tribunal took any further action on the merits of the case.

In spite of the outcome of the eligibility determination, the district court subsequently found that the parents were "prevailing parties" under the IDEA, and granted their motion for $53,290.50 in attorneys' fees. Westerly appealed the attorneys' fees order to this court. We consolidated that appeal with Westerly's prior appeal.

II.

A.

Before assessing the district court's order that Westerly make an eligibility determination without first conducting its own evaluations, we must ask whether this issue remains justiciable. "A case that becomes moot at any point during the proceedings is ‘no longer a "Case" or "Controversy" for purposes of Article III,’ and is outside the jurisdiction of the federal courts." United States v....