Maine School Administrative District No. 35 v. Mr. & Mrs. R. , 321 F.3d 9 ( 2003 )

United States Court of Appeals
For the First Circuit
No. 01-1714
MAINE SCHOOL ADMINISTRATIVE DISTRICT NO. 35,
Plaintiff, Appellee,
v.
MR. AND MRS. R., ON THEIR OWN BEHALF
AND ON BEHALF OF THEIR SON, S.R.,
Defendants, Appellants.
No. 02-1312
MR. AND MRS. R., ON THEIR OWN BEHALF
AND ON BEHALF OF THEIR SON, S.R.,
Plaintiffs, Appellants,
v.
MAINE SCHOOL ADMINISTRATIVE DISTRICT NO. 35,
Defendant, Appellee.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
[Hon. David M. Cohen, U.S. Magistrate Judge]
Before
Selya, Circuit Judge,
Farris,* Senior Circuit Judge,
and Howard, Circuit Judge.
Richard L. O'Meara, with whom Amy M. Sneirson and Murray,
Plumb & Murray were on brief, for appellants.
Eric R. Herlan, with whom Drummond Woodsum & MacMahon were on
brief, for appellee.
February 24, 2003
_______________
*Of the Ninth Circuit, sitting by designation.
SELYA, Circuit Judge. The Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. §§ 1400-1487 (1997), obligates
school districts to furnish a free appropriate public education
(FAPE) to children with disabilities. See id. §§ 1401(8),
1411(b)(2)(C), 1412(a)(1), 1413(i)(1), 1415(b)(1). That is the
good news. The bad news is that the IDEA is not self-executing,
and parents, school officials, bureaucrats, and judges alike have
struggled to master its intricacies.
These consolidated appeals illustrate the point. Taken
together, they present two loosely related questions. The first
concerns whether parents who successfully resist a school
district's effort, in an independent legal action, to overturn a
stay-put placement on the ground of the alleged dangerousness of a
child with disabilities are considered prevailing parties within
the purview of the IDEA's fee-shifting provision. The second
concerns the circumstances under which a learning-disabled child
who, by reason of his age, is no longer covered by the IDEA may
nonetheless be entitled to some relief to compensate him for the
deprivation of a FAPE during an earlier period. The district court
answered these questions in ways that pretermitted the appellants'
claims for attorneys' fees and compensatory education. Concluding,
as we do, that the court erred, we reverse the judgments below and
remand for further proceedings consistent with this opinion.
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I. BACKGROUND
We sketch the relevant facts. The appellants, Mr. and
Mrs. R., are the parents of S.R. S.R., who was born in December of
1980, suffers from Down's Syndrome. He has had special educational
needs throughout his formative years. During the times material
hereto, Maine School Administrative District No. 35 (the School
District) has had the responsibility of ministering to these needs.
Generally speaking, the IDEA obliged the School District
to furnish S.R. with a FAPE sufficient to confer some educational
benefit. See Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982);
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990).
Federal law directs school districts to carry out such a duty
through the development and implementation of an annual
individualized education program (IEP). See 20 U.S.C. §§ 1401(11),
1412(a)(4), 1414(d); see also 34 C.F.R. §§ 300.340-50. S.R. was
eligible for such special education services through the 2000-2001
school year (when he turned twenty years of age). See 20 U.S.C. §
1412(a)(1)(B)(i)-(ii) (linking eligibility for special education
services to state law); Me. Rev. Stat. tit. 20-A, § 5201(1)
(granting every student the right to public education through the
school year encompassing his or her twentieth birthday).
It would serve no useful purpose to discuss S.R.'s early
scholastic experiences. Rather, we begin with the 1999-2000 school
year (which encompassed S.R.'s nineteenth birthday). In
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furtherance of its responsibilities under the IDEA, the School
District prepared an IEP for that year. Under it, S.R. spent
mornings at Marshwood High School and afternoons at a work-site
training program (where he also received some special education
services).
During the 1999-2000 school year, S.R. displayed a
variety of behavioral problems, including verbal outbursts and
assaultive conduct. Believing that these problems stemmed from
S.R.'s "ineffective and frustrating" IEP, Mr. and Mrs. R.
repeatedly requested modifications. Officials of the School
District met with the family many times to address these
remonstrances, discuss S.R.'s current IEP, and ponder his future
curriculum.
In June of 2000, the School District proffered a new IEP
for the 2000-2001 school year. Under this proposal, S.R. was to be
relegated to a work-site training program for the entire school
day. His vocational training would be augmented with monthly
speech therapy, sign language lessons, behavioral consultations,
and social skills instruction.
S.R.'s parents rejected this proposal. They took
especial umbrage at the fact that the draft IEP completely removed
S.R. from a mainstream academic setting. Concluding that this
circumstance violated their son's right to receive educational
services in the least restrictive environment possible, see 20
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U.S.C. § 1412(a)(5), the parents sought a hearing before the Maine
Department of Education, see id. § 1415(f). The parents
simultaneously invoked the IDEA's stay-put provision, id. §
1415(j), so that S.R. would remain in his 1999-2000 educational
placement pending a resolution of his 2000-2001 IEP.1 The School
District defended the draft IEP, and, accordingly, resisted the
parents' administrative petition.
The School District then took a more unusual step: it
initiated a civil action in the United States District Court for
the District of Maine (the First Suit) seeking to bar S.R. from
returning to Marshwood High because his presence there would pose
(or so the School District alleged) a substantial risk of danger to
himself or others. Coincident with the filing of its complaint,
the School District moved for temporary and preliminary injunctive
relief. After reviewing the motion papers and the family's
objection, the district court refused to issue a temporary
restraining order (TRO). The effect of that ruling was to leave
1
The stay-put provision, with an exception not applicable
here, states:
[D]uring the pendency of any proceedings
conducted pursuant to [IDEA § 1415], unless
the State or local educational agency and the
parents otherwise agree, the child shall
remain in the then-current educational
placement of such child, . . . until all such
proceedings have been completed.
20 U.S.C. § 1415(j).
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the stay-put order (and, thus, S.R.'s placement at Marshwood High)
intact. The School District chose not to pursue the matter
further, but, rather, moved to dismiss its complaint. See Fed. R.
Civ. P. 41(a). The parents did not object but asserted an
entitlement to attorneys' fees and costs. See 20 U.S.C. §
1415(i)(3)(B). The district court granted the School District's
motion for voluntary dismissal but denied the parents' request for
remuneration on the ground that they were not a prevailing party.
Me. Sch. Admin. Dist. No. 35 v. Mr. & Mrs. R., Civ. No. 00-242 (D.
Me. Apr. 9, 2001). The parents filed a timely appeal.
Meanwhile, the administrative hearing anent the adequacy
of the proposed 2000-2001 IEP went forward on a parallel track. In
a decision dated October 31, 2000, the hearing officer approved the
concept of a totally non-scholastic placement but determined that
the IEP was inadequate in other respects. Consequently, he ordered
the School District to prepare an amended IEP. The parents
exercised their right to judicial review of this decision, see 20
U.S.C. § 1415(i)(2)(A); they commenced an action in the federal
district court (the Second Suit) in which they sought to overturn
the hearing officer's approval of S.R.'s work-site placement. The
School District filed a cross-complaint challenging other parts of
the administrative decision.
In December of 2001, S.R. reached his twentieth birthday.
The following June, he graduated from Marshwood High. Upon the
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occurrence of that event, the School District took the position
that the parents' appeal from the administrative decision had
become moot. In their reply, the parents gainsaid this contention.
They pointed out that S.R. had dropped out of his special education
program at Marshwood High during the 2000-2001 school year and
asserted that he was entitled to compensatory education to offset
the inadequate IEP that the School District had proposed.2 After
some skirmishing (the details of which need not concern us), the
district court ruled that the suit was not "procedural[ly] moot[]"
because the parents had raised the claim for compensatory education
in a timely fashion.3 Me. Sch. Admin. Dist. No. 35 v. Mr. & Mrs.
R., 176 F. Supp. 2d 15, 24-25 (D. Me. 2001). The court
2
We need not dwell on the withdrawal, as it is irrelevant to
the appellants' compensatory education claim. Cf. Zobrest v.
Catalina Foothills Sch. Dist., 509 U.S. 1, 4 n.3 (1993) (holding
that a school district's responsibility for providing appropriate
educational services is not discharged merely because the parents
voluntarily withdrew their child from a placement); Doe v.
Brookline Sch. Comm., 722 F.2d 910, 916 (1st Cir. 1983) (suggesting
that after withdrawal from a public school, a handicapped student
still may pursue funding for an appropriate placement during that
period). If it is eventually determined that S.R. would not have
received a FAPE had he remained at Marshwood under the stay-put
placement — a matter on which we take no view — his withdrawal
would not foreclose his claim for compensatory education.
3
The district judge — the same judge who earlier had dismissed
the First Suit without an award of attorneys' fees — referred the
School District's motion to dismiss to a magistrate judge. See 28
U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). He thereafter
accepted and adopted the magistrate judge's detailed report and
recommendation. For simplicity's sake, we do not distinguish
between the two judicial officers. Rather, we take an
institutional view and refer to the determinations below as those
of the district court.
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nevertheless dismissed the case for what it termed "substantive
mootness," declaring that "S.R. [had] received, for all that
appears in the record, the very relief he and his parents initially
sought in this action, by virtue of the . . . 'stay-put' ruling."
Id. at 25. The second appeal followed. We consolidated it with
the earlier appeal (which had been stayed) for briefing and
argument. We now resolve both appeals.
II. ANALYSIS
The parents — we henceforth shall refer to them as the
appellants — press ahead on two fronts. They assign error to the
lower court's determination that they were not prevailing parties
in the First Suit. They also protest the district court's
dismissal of the Second Suit as moot, pointing to the pendency of
their compensatory education claim. We address these points
sequentially.
A. The Attorneys' Fee Claim.
In most civil litigation, the parties are responsible for
paying their own attorneys' fees. See Buckhannon Bd. & Care Home,
Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 602
(2001); Gay Officers Action League v. Puerto Rico, 247 F.3d 288,
293 (1st Cir. 2001). Despite this general rule, Congress sometimes
chooses to allow for fee-shifting in particular situations, and it
chose to do so in connection with the IDEA. The statute provides
in relevant part:
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In any action or proceeding brought under
[section 1415 of the IDEA], the court, in its
discretion, may award reasonable attorneys'
fees as part of the costs to the parents of a
child with a disability who is the prevailing
party.
20 U.S.C. § 1415(i)(3)(B). Because this provision employs the
phrase "prevailing party" — a term of art — it must be interpreted
and applied in the same manner as other federal fee-shifting
statutes that use the same phraseology. See New Hampshire v.
Adams, 159 F.3d 680, 684 (1st Cir. 1998) (explaining that, in
construing the IDEA's fee-shifting provision, "cases decided under
kindred federal fee-shifting statutes, such as the Fees Act, 42
U.S.C. § 1988, furnish persuasive authority"); H.R. Rep. No. 105-
95, at 105-106 (1997), reprinted in 1997 U.S.C.C.A.N. 78, 103-104
(stating that section 1415(i)(3)(B) should be construed in keeping
with Hensley v. Eckerhart, 461 U.S. 424, 440 (1983), a Fees Act
case); see also Buckhannon, 532 U.S. at 603 (classifying
"prevailing party" as a term of art).
For purposes of a federal fee-shifting statute, a
prevailing party is any party who "succeed[s] on any significant
issue . . . which achieves some of the benefits plaintiffs sought
in bringing suit." Hensley, 461 U.S. at 433. The party's success
cannot be a hollow victory; it must materially alter the litigants'
legal relationship by modifying one party's behavior in a way that
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directly benefits the other.4 See Farrar v. Hobby, 506 U.S. 103,
111-12 (1992); Gay Officers, 247 F.3d at 293. Thus, the change
effected must be material; a purely technical or de minimis victory
cannot confer prevailing party status. Tex. State Teachers' Ass'n
v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989); Stanton v.
S. Berkshire Reg'l Sch. Dist., 197 F.3d 574, 576 (1st Cir. 1999).
It follows from the foregoing that a court faced with the
need to decide whether a litigant is (or is not) a prevailing party
must make a qualitative inquiry into the import of the result
obtained. Gay Officers, 247 F.3d at 293, 295; see also Christopher
P. v. Marcus, 915 F.2d 794, 804 (2d Cir. 1990) ("[I]t is helpful to
identify the relief sought by the plaintiff and compare it with the
relief obtained as a result of the suit."). Where, as here,
prevailing party status turns on a question of law, we afford
4
In a case involving the fee-shifting provisions of the
Americans with Disabilities Act, 42 U.S.C. § 12205, and the Fair
Housing Act Amendments, id. § 3613(c)(2), the Supreme Court
concluded that the change in the legal relationship must be one to
which a judicial imprimatur attaches. Buckhannon, 532 U.S. at 605.
We applied that rationale to a claim brought under the Fees Act, 42
U.S.C. § 1988. See New Engl. Reg'l Council of Carpenters v.
Kinton, 284 F.3d 9, 30 (1st Cir. 2002). Two of our sister circuits
have adopted Buckhannon's reasoning in connection with the IDEA's
fee-shifting provision. See John T. v. Del. County Intermed. Unit,
___ F.3d ___, ___ (3d Cir. 2003) [2003 WL 194874, at *8-*10]; J.C.
v. Reg'l Sch. Dist. 10, 278 F.3d 119, 123-24 (2d Cir. 2002). But
see TD v. La Grange Sch. Dist. No. 102, 222 F. Supp. 2d 1062, 1065
(N.D. Ill. 2002) (positing that "there exist critical distinctions
in the text and structure of the IDEA and the ADA and FHAA that
persuade me that the Court's ruling in Buckhannon was not meant to
extend to the IDEA"). These appeals do not require us to resolve
this conflict, and we therefore express no opinion as to whether
the Buckhannon rule applies in IDEA cases.
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plenary review. Gay Officers, 247 F.3d at 292-93; Domegan v.
Ponte, 972 F.2d 401, 406 (1st Cir. 1992). With this paradigm in
mind, we turn to the assignment of error.
The appellants ask for attorneys' fees referable only to
the First Suit. Their position is straightforward: the School
District commenced a civil action and the appellants successfully
defended against it (i.e., the School District did not receive any
of the relief that it sought and, eventually, threw in the towel).
The School District rejoins that this victory was merely
interlocutory — a single battle in the war over the 2000-2001 IEP
— and therefore is insufficient to support prevailing party status.
We test these hypotheses.
In general, the materiality requirement demands that a
party succeed on the merits of a claim or defense. Adams, 159 F.3d
at 684. But a party may be considered "prevailing" even without
obtaining a favorable final judgment on all (or even the most
crucial) of her claims. Buckhannon, 532 U.S. at 603; Rome Sch.
Comm. v. Mrs. B., 247 F.3d 29, 32 (1st Cir. 2001); see generally
William H. Danne, Jr., Annotation, Who Is Prevailing Party for
Purposes of Obtaining Attorney's Fees Under § 615(i)(3)(B) of
Individuals with Disabilities Education Act, 153 A.L.R. Fed. 1(1999) (collecting cases). Thus, interlocutory orders that confer
substantive injunctive relief often have been viewed as sufficient
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to carry the weight of a fee award.5 E.g., Haley v. Pataki, 106
F.3d 478, 483 (2d Cir. 1997); Pearson v. Fair, 980 F.2d 37, 45 (1st
Cir. 1992) (collecting cases).
On the other hand, interlocutory orders that serve merely
to maintain the status quo usually are deemed insufficient to buoy
a fee award. See LSO, Ltd. v. Stroh, 205 F.3d 1146, 1161 (9th Cir.
2000). Consequently, a successful invocation of the IDEA's stay-
put provision, on an interlocutory basis, ordinarily will not
confer prevailing party status. See, e.g., J.O. v. Orange Township
Bd. of Educ., 287 F.3d 267, 274 (3d Cir. 2002); Bd. of Educ. v.
Steven L., 89 F.3d 464, 469 (7th Cir. 1996).
This case, however, is not cut from the usual cloth. We
are dealing here not with a stay-put order issued, on an
interlocutory basis, in the course of ongoing judicial review.
Rather, the First Suit was an independent, free-standing civil
action, instituted by the School District, in which it sought to
enjoin the operation of the stay-put provision. That quest for
injunctive relief was the sole object — the raison d'être — of the
First Suit.
To be sure, the School District probably saw the First
Suit as a piece of a larger dispute between it and the appellants
over the 2000-2001 IEP. But a party's subjective view of a cause
5
We say "often" because the rule is not invariable. See,
e.g., Foreman v. Dallas County, 193 F.3d 314, 323 (5th Cir. 1999)
(stating that TROs can never constitute merits-based relief).
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of action counts for very little in determining prevailing party
status. See Tex. State Teachers' Ass'n, 489 U.S. at 791; Nadeau v.
Helgemoe, 581 F.2d 275, 280 (1st Cir. 1978). By the same token, it
is immaterial whether the School District ultimately withdrew its
complaint because it thought that the administrative decision had
rendered the request moot. See Watson v. County of Riverside, 300
F.3d 1092, 1095-96 (9th Cir. 2002); Bisciglia v. Kenosha Unified
Sch. Dist. No. 1, 45 F.3d 223, 230 (7th Cir. 1995). We search,
therefore, for more objective indicia.
We deem it important to emphasize that the School
District, not the appellants, brought the First Suit. The
appellants were haled into court as defendants and won a clear-cut
victory on the sole issue in the case (an issue that had been
framed by the School District). A triumphant defendant may qualify
as a prevailing party for the purpose of obtaining a fee award.
See, e.g., Weyant v. Okst, 198 F.3d 311, 316 (2d Cir. 1999)
(collecting cases); see also Burke v. Guiney, 700 F.2d 767, 771
(1st Cir. 1983). It follows inexorably that a defendant who
prevails on the only claim that justifies the presence of the case
in a federal court has a legitimate basis for asserting that she is
the prevailing party. See Perlman v. Zell, 185 F.3d 850, 859 (7th
Cir. 1999).
This conclusion is reinforced by our awareness that the
School District could have appealed the stay-put order as part and
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parcel of judicial review of the IEP, see 20 U.S.C. §
1415(i)(2)(A), but eschewed that course. It elected instead to
pursue an independent cause of action by invoking a statute that
permits temporary changes in a child's placement if a school
district can demonstrate "by substantial evidence that maintaining
the current placement of such child is substantially likely to
result in injury to the child or to others." Id. § 1415(k)(2)(A).
This statute does not carve out an exception to section 1415(j)'s
stay-put provision. See Honig v. Doe, 484 U.S. 305, 324-25 (1988);
Timothy W. v. Rochester, N.H., Sch. Dist., 875 F.2d 954, 972 (1st
Cir. 1989); cf. Orange Township, 287 F.3d at 272-73 (implying that
sections 1415(j) and 1415(k)(2) are independent in terms of
prevailing party determinations). Indeed, a restraining order
under section 1415(k)(2) requires the proponent to proffer
substantial evidence that the affected child's current placement
poses a significant and unreasonable likelihood of injury either to
himself or to others. 20 U.S.C. § 1415(k)(2)(A), (C). The merits
of the IEP dispute are almost wholly irrelevant. Cf. Honig, 484
U.S. at 324-25 (emphasizing the dichotomy between injunctions for
safety and stay-put placements).
In fine, the School District chose to make S.R.'s alleged
dangerousness a contested issue in and of itself and to try to
change his placement accordingly. That is to say, the injunctive
action that it brought under section 1415(k)(2) (the First Suit)
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attempted to work an autarkic material alteration in the legal
relations between the parties. Defeating that attempt, once and
for all, gave the appellants solid ground on which to base
prevailing party status.6
This result squares with commonly accepted notions of
materiality in the fee-shifting context. The materiality of a
judicial outcome depends in part on whether the result is purely
procedural or whether it actually accomplishes something
substantive for the winning party. See Adams, 159 F.3d at 685-86;
Krichinsky v. Knox County Sch., 963 F.2d 847, 849-50 (6th Cir.
1992); see also Hanrahan v. Hampton, 446 U.S. 754, 759 (1980).
Because the district court denied injunctive relief on the basis
that the School District had not adduced sufficient proof to
satisfy the section 1415(k)(2) standard, it is readily evident that
the appellants successfully defended the First Suit on the merits.
This thesis is confirmed by considering what would have
happened had the appellants not appeared in court to oppose the
School District's action. In that event, the court most likely
6
This result is not altered because the critical decision took
place on a motion for a TRO. The court below must have been
cognizant of the delays characteristic of administrative and
judicial proceedings under the IDEA. See Burlington Sch. Comm. v.
Mass. Dep't of Educ., 471 U.S. 359, 370 (1985) (describing such
proceedings as "ponderous"). Thus, the denial of the School
District's motion was effectively a final judgment on the merits of
the "dangerousness" claim that the School District had brought.
See Coalition for Basic Human Needs v. King, 691 F.2d 597, 600-01
(1st Cir. 1982).
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would have entered a default judgment and changed S.R.'s placement.
By defending, the appellants not only deprived the School District
of the benefit that it sought in bringing suit but also blocked it
from implementing a course of action inimical to S.R.'s interests.
The appellants' victory was, therefore, material. See Farrar, 506
U.S. at 111-12; Stanton, 197 F.3d at 576.
For these reasons, we conclude that the appellants were
the prevailing parties in the First Suit, and that the district
court erred as a matter of law in holding to the contrary.
Accordingly, we reverse the district court's order and remand the
First Suit so that the court may determine whether special
circumstances exist that might bar an award, and, if not, the
amount of attorneys' fees and costs to which the appellants are
entitled.
B. The Compensatory Education Claim.
We turn now to the justiciability of the appellants'
compensatory education claim. It is black-letter law that, in a
federal court, justiciability requires the existence of an actual
case or controversy. U.S. Const. art. III, § 2, cl. 1. Even if an
actual case or controversy exists at the inception of litigation,
a case may be rendered moot (and, therefore, subject to dismissal)
if changed circumstances eliminate any possibility of effectual
relief. CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d
618, 620-21 (1st Cir. 1995).
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In a suit seeking only injunctive relief, this ordinarily
means that once the act sought to be enjoined occurs, the suit must
be dismissed as moot. E.g., Oakville Dev. Corp. v. FDIC, 986 F.2d
611, 613 (1st Cir. 1993). If, however, a plaintiff seeks
alternative redress (such as money damages) in addition to
injunctive relief, the occurrence of the watershed event may not
render the controversy moot. CMM Cable Rep., 48 F.3d at 621;
Curtis Indus., Inc. v. Livingstone, 30 F.3d 96, 97-98 (8th Cir.
1994). We review de novo a lower court's dismissal of an action on
the ground of mootness. See Verhoeven v. Brunswick Sch. Comm., 207
F.3d 1, 5 (1st Cir. 1999); N.H. Right to Life Political Action
Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir. 1996).
In this instance, the question of mootness depends on the
viability of the appellants' compensatory education claim. We know
that a child eligible for special education services under the IDEA
may be entitled to further services, in compensation for past
deprivations, even after his or her eligibility has expired. See,
e.g., Adams, 159 F.3d at 682 n.1; Pihl v. Mass. Dep't of Educ., 9
F.3d 184, 188-89 & n.8 (1st Cir. 1993). Such a child's claim for
compensatory education begins to accrue when his or her IEP is so
inappropriate that the child is receiving no real educational
benefit. M.C. v. Cent. Reg'l Sch. Dist., 81 F.3d 389, 396 (3d Cir.
1996); Murphy v. Timberlane Reg'l Sch. Dist., 22 F.3d 1186, 1195
(1st Cir. 1994). The presence of an actionable claim for
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compensatory education will insulate an IDEA case against a
mootness challenge even after the child's eligibility for special
education services ends. Indep. Sch. Dist. No. 284 v. A.C., 258
F.3d 769, 774-75 (8th Cir. 2001); cf. Thomas R.W. v. Mass. Dep't of
Educ., 130 F.3d 477, 480 (1st Cir. 1997) (stating the negative of
the same proposition).
Orderly procedure suggests that we bifurcate our
discussion of this issue. We first must determine whether the
appellants timely asserted their claim for compensatory education.
If so, we then must address the question of whether S.R. arguably
suffered a deprivation of services that would give rise to such a
claim.
1. Timeliness. The district court concluded that the
appellants had advanced the compensatory education claim in a
timely manner. See Me. Sch. Admin. Dist., 178 F. Supp. 2d at 24-
25. We affirm that holding on the basis of the district court's
lucid analysis of the record and its perspicacious reasoning. See
id. We add only that, once the end of S.R.'s eligibility for
special education services loomed, the appellants acted
expeditiously to make known their desire that the School District
offset the inadequacies of the 2000-2001 school year by providing
compensatory education. No more was exigible. See Thomas R.W.,
130 F.3d at 480.
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In a related vein, we reject the School District's
importuning that the compensatory education claim was barred by a
failure to exhaust administrative remedies. The appellants'
objections to the IEP related only to S.R.'s final year in school.
S.R. was within the eligible age limits when that year began; by
the time that year ended, the administrative record had been closed
for quite some time and the case was pending before the district
court. Although parents ordinarily must exhaust their
administrative remedies before appealing to a federal court, see
Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 59, 63 (1st Cir.
2002), the appellants' failure to raise a then-nonexistent
compensatory education claim before the hearing officer is not
fatal to judicial review. See id. at 59; Pihl, 9 F.3d at 190-91.
Parents are not expected to have the gift of prophecy.
2. Mootness. We turn next to the district court's
holding that the compensatory education claim was substantively
moot. Me. Sch. Admin. Dist., 178 F. Supp. 2d at 25. In coming to
this conclusion, the court focused on the appellants' challenge to
the work-site placement. We think that this focus was too narrow.
S.R.'s placement at a work site rather than in a school
was only a part of the overall IEP. The record shows beyond hope
of contradiction that the appellants sought from the beginning an
appropriate IEP for the 2000-2001 school year — a new IEP that did
not merely replicate S.R.'s unsuccessful 1999-2000 IEP. The
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hearing officer responded to these expressed concerns, dissecting
the School District's suggested IEP, approving parts of it
(including the work-site placement) and disapproving other parts.
Although the appellants only sought judicial review of the
placement decision, not of the order to add other features to the
IEP, the fact remains that S.R. never enjoyed the benefits that
would have flowed from the implementation of those other features.
In short, while S.R. was not relegated to a work site for the 2000-
2001 school year, he may not have received an appropriate IEP for
that year (and, thus, may not have received the FAPE to which he
was entitled).
The School District attempts to cast doubt upon the
factual antecedents of the appellants' position. The attempt
fails. The record fully supports the appellants' asseveration
that, all along, they sought the development of an appropriate IEP,
different from both the previous IEP (1999-2000) and the proposed
IEP (2000-2001). Indeed, their criticisms of the 1999-2000 IEP
were vociferous. So viewed, the appellants have a colorable claim
that the continuation of this benighted placement into the 2000-
2001 school year deprived S.R. of the compendium of services
reasonably necessary to constitute a FAPE. See Roland M., 910 F.2d
at 992.
Let us be perfectly clear. We recognize that
compensatory education is not an appropriate remedy for a purely
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procedural violation of the IDEA. Erickson v. Albuquerque Pub.
Sch., 199 F.3d 1116, 1122-23 (10th Cir. 1999). In contrast, a
substantive violation may give rise to a claim for compensatory
relief. See Rome Sch. Comm., 247 F.3d at 31; Pihl, 9 F.3d at 188,
189-90 (collecting cases). Here, the prospective relief that the
appellants sought at the commencement of these proceedings was both
procedural and substantive. Thus, a claim for compensatory
education arguably lies — and their case is not moot.
In an effort to blunt the force of this reasoning, the
School District complains that the appellants forced it, through
the invocation of the stay-put provision, to maintain S.R.'s
contested 1999-2000 IEP throughout the 2000-2001 school year (or
nearly so). That is true as far as it goes — but it does not
advance the School District's cause. The appellants never sought
a stay-put placement as relief on the merits before either the
hearing officer or the district court. For them, the stay-put
placement was merely the lesser of two evils.7 See Burr v. Ambach,
863 F.2d 1071, 1076 (2d Cir. 1988) (describing the stay-put
provision as protection against an even worse placement during the
pendency of review proceedings). Conferring blanket immunity from
7
The School District did not seek to secure the parents'
agreement to an alternative interim placement. See 20 U.S.C. §
1415(j) (quoted supra note 1) (permitting such consensual
arrangements). Such an agreement would have averted any liability
for compensatory education. See W.B. v. Matula, 67 F.3d 484, 500
(3d Cir. 1995); see also Doe v. Defendant I, 898 F.2d 1186, 1189
(6th Cir. 1990).
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compensatory education claims during the course of a stay-put
placement would reward school districts for misfeasance or
nonfeasance in providing appropriate educational services. Cf.
Jefferson County Bd. of Educ. v. Breen, 853 F.2d 853, 857-58 (11th
Cir. 1988) (awarding compensatory education to deter school
districts from unnecessarily prolonging litigation); Doe v.
Brookline Sch. Comm., 722 F.2d 910, 916 (1st Cir. 1983) (condemning
a rule that would allow a party who shirks its duties during a
stay-put placement to escape liability for its laxity). The case
law, though sparse, suggests that courts should refuse to confer
any such blanket immunity. See, e.g., W.B. v. Matula, 67 F.3d 484,
500 (3d Cir. 1995); M.C. v. Voluntown Bd. of Educ., 56 F. Supp. 2d
243, 250 n.7 (D. Conn. 1999). We so hold: claiming to be caught
between a rock and a hard place is no excuse for dereliction of
duty. The IDEA charges school districts with making reasonable
efforts both to work with parents and to satisfy the needs of
special education students. That entails the responsibility to
find a path that runs between the rock and the hard place. Knee-
jerk compliance with a stay-put provision does not negate that
responsibility.
The School District also submits that the appellants
failed to allege specific facts in support of their claim for
compensatory education. They suggest that the appellants needed to
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show precisely what services S.R. should have received (but did
not) during the 2000-2001 school year. This sets the bar too high.
The IDEA constructs a framework that ensures procedural
due process in the IEP context. See 20 U.S.C. § 1415. It does not
attempt to delineate the specific substance of any particular
child's IEP. That is as it should be: IEPs are by their very
nature idiosyncratic, and the appropriate content of a particular
child's IEP for a given year can only be determined by those
assigned to evaluate the child and develop the IEP (with the help
of the parents). See id. §§ 1401(11), 1412(a)(4), 1414(d); 34
C.F.R. §§ 300.340-50. In mounting a challenge to a current or
proposed IEP, the most that parents can be expected to do is to
point out areas in which the IEP is deficient. See Rowley, 458
U.S. at 208-09; Erickson, 199 F.3d at 1123; Roland M., 910 F.2d at
992.
These tenets hold true vis-à-vis claims for compensatory
education. See Cent. Reg'l Sch. Dist., 81 F.3d at 397 (noting that
"a child's entitlement to special education should not depend upon
the vigilance of the parents"). The appellants, who pointed to
many problems in both the 1999-2000 IEP and the proposed 2000-2001
IEP, did their part. Consequently, we reject the School District's
suggestion that the appellants' compensatory education claim was
insufficiently precise.
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None of this is equivalent to saying that S.R. is
entitled to compensatory education. We hold only that the
appellants' claim for compensatory education deserves to be
considered on the merits and that the district court should not
have jettisoned it as moot. Accordingly, the order of dismissal
must be reversed and the compensatory education issue remanded to
the district court. If the district court does not believe that
the record is sufficient to permit it to make the highly nuanced
judgments necessary to resolve the claim for compensatory
education, it may remand the matter for further administrative
adjudication.
III. CONCLUSION
We need go no further.8 We hold that the appellants were
prevailing parties in the First Suit; that the claim for
compensatory education was properly raised, and remained viable, in
the Second Suit; and that, therefore, the district court erred in
its adjudication of appellants' claims. Hence, we reverse the
judgments below and remand for further proceedings consistent with
this opinion.
8
The appellants' complaint in the Second Suit also contained
claims under the Rehabilitation Act, 29 U.S.C. § 794, and Maine's
special education laws, Me. Rev. Stat. tit. 20-A, §§ 7001-8207.
The district court never addressed these claims, and the parties do
not discuss them on appeal. We therefore take no view as to their
justiciability.
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Reversed and remanded. Costs are taxed in favor of the
appellants.
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