942 F.3d 1034
10th Cir.2019Background
- Nathan M., diagnosed with autism and ADHD, attended Alpine Autism Center (private ABA-focused program) under an IEP since 2012.
- In 2014–2016 the District reevaluated Nathan and convened multiple IEP meetings; the District proposed transitioning Nathan to Otero Elementary’s public autism program with a phased blending plan and a full-time one-on-one paraprofessional.
- Parent objected, sought an IEE, and filed complaints; a State Complaint Officer earlier found the District had predetermined placement in a prior year, so Nathan remained at Alpine under the IDEA "stay-put" rule.
- An ALJ held after a hearing that the 2016 IEP offered a FAPE; the district court affirmed. Parent appealed to the Tenth Circuit.
- By the time of appeal Nathan advanced to middle school, the District completed a 2019 triennial review and updated his IEP/BIP (now recommending Mountain Vista), and Parent did not identify a specific, recurring legal defect in the 2016 IEP.
- The Tenth Circuit concluded the dispute over the expired 2016 IEP is moot because Parent did not show the specific IDEA violations alleged are reasonably likely to recur.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness / capable-of-repetition exception | Parent argued substantive and procedural IDEA violations preserve jurisdiction because the parties will re-litigate Nathan’s needs annually. | District argued the 2016 IEP governed a past year, Nathan remained at Alpine (stay-put), and subsequent reevaluation/IEP changes make the challenge moot. | Case is moot; Parent failed to show a reasonable expectation that the specific violations alleged will recur, so exception does not apply. |
| Predetermination of placement | Parent claimed District had predetermined placement in Otero, denying meaningful participation. | District pointed to multiple meetings, facilitator involvement, Alpine participation at later meetings, and individualized evaluation. | Court found Parent did not demonstrate a reasonable likelihood that predetermination will recur; claim moot. |
| Failure to consider current evaluation data / Alpine attendance at IEP meetings | Parent asserted the District failed to use current data and did not ensure Alpine staff attended all meetings. | District highlighted the numerous meetings, parental participation, Alpine attendance at later meetings, and the 2019 reevaluation updating records. | Court held Parent did not carry burden of showing these procedural defects are likely to recur; moot. |
| Adequacy of BIP / behavioral supports | Parent argued the 2016 BIP lacked sufficient behavioral programming (e.g., ABA/BCBA services). | District showed the 2016 IEP/BIP included ABA-consistent supports and later updated the BIP in 2019; Otero offered ABA-specific training for staff. | Court found Parent’s allegations too vague and not shown likely to recur; moot. |
| Substantive FAPE adequacy | Parent contended the 2016 IEP failed to offer a FAPE tailored to Nathan’s needs. | District and ALJ argued the IEP was reasonably calculated to enable appropriate progress given Nathan’s circumstances; district court affirmed. | On the merits ALJ/district court found the IEP provided a FAPE, but the appellate court vacated and remanded to dismiss as moot (no live controversy). |
Key Cases Cited
- Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017) (IEP must be reasonably calculated to enable progress appropriate in light of the child’s circumstances)
- Steven R.F. ex rel. Fernandez v. Harrison Sch. Dist. No. 2, 924 F.3d 1309 (10th Cir. 2019) (capable-of-repetition analysis in IDEA context requires that the specific IDEA violations alleged be likely to recur)
- Honig v. Doe, 484 U.S. 305 (1988) (capable-of-repetition exception applied where future removals of disabled students from school were likely and defined a recurring policy question)
- Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982) (baseline IDEA obligations and historical context for FAPE analysis)
- Spencer v. Kemna, 523 U.S. 1 (1998) (framework for capable-of-repetition-yet-evading-review exception)