Charles Kass v. W. Dubuque Comm. School Dist.

United States Court of Appeals
For the Eighth Circuit
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No. 22-3506
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Charles Kass, Parent/Guardian; Lisa Kass, Parent/Guardian; Brody Kass
Plaintiffs - Appellants
v.
Western Dubuque Community School District; Keystone Area Education Agency
Defendants - Appellees
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American Civil Liberties Union of Iowa; Council of Parent Attorneys and
Advocates, Inc.; National Disability Rights Network
Amici on Behalf of Appellants
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Appeal from United States District Court
for the Northern District of Iowa
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Submitted: September 20, 2023
Filed: May 10, 2024
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Before COLLOTON, 1 GRASZ, and KOBES, Circuit Judges.
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1
Judge Colloton became chief judge of the circuit on March 11, 2024. See 28
U.S.C. § 45(a)(1).
GRASZ, Circuit Judge.
Charles and Lisa Kass, parents of Brody Kass, sued the Western Dubuque
Community School District (the District). They alleged the District violated the
Individuals with Disabilities Education Act (IDEA) and other statutes when it
developed Brody’s individualized education program (IEP) for the 2020–21 school
year. The district court 2 found that the District complied with the law; the Kasses
dispute that conclusion on appeal. We affirm.
I. Background
Brody Kass has epilepsy, autism, attention deficit/hyperactivity disorder,
severe vision impairment, and intellectual disabilities. Due to his disabilities, IDEA
entitles Brody to a free appropriate public education (FAPE). See 20 U.S.C.
§§ 1401(3)(A), 1412(d)(1)(A). IDEA also requires school districts to create and
implement IEPs for disabled students. See id. § 1414(d)(2)(A). An IEP Team—
composed of the student’s parents, teachers, and administrators—is responsible for
the IEP’s development. See id. § 1414(d)(1)(B), (d)(3).
Brody attended District schools from kindergarten through the fifth grade,
moved elsewhere for a period, and returned during the ninth grade. During his senior
year of high school in 2019–20, Brody attended classes full time in the high school
and accumulated the requisite number of credits for graduation.
Despite Brody having enough credits to graduate, his IEP Team determined
he had unmet transitional needs and should remain in school. The IEP Team met
four times over the course of the 2019–20 school year to develop an IEP for the
2020–21 school year. After a meeting in May 2020, the IEP Team began to draft
the IEP.
2
The Honorable Leonard T. Strand, then Chief Judge, now United States
District Judge for the Northern District of Iowa.
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The District proposed that Brody would not enroll in general education
courses in the traditional classroom setting. Instead, Brody would spend a half-day
focusing on developing his reading and math skills through individualized and
practical training. The goal was to prepare Brody for his transition into a work
environment.
The draft IEP’s daily schedule included two hours of specially designed
instruction at the school or in the community, followed by work with a job coach at
a commercial establishment. The District would then provide Brody with
transportation to the Kass residence, a day care center, or a day habilitation facility,
where he would spend the afternoon.
The Kasses received the draft IEP in July 2020. The Kasses objected to the
proposed IEP and filed a complaint with the Iowa Department of Education under
20 U.S.C. § 1415(b)(6). The family alleged the District failed to provide Brody with
a FAPE during the 2018–19 and 2019–20 school years, and that the proposed IEP
from May 2020 would not provide Brody with a FAPE during the 2020–21 school
year.
During the administrative proceedings, the Kasses invoked their so-called
“stay-put” rights under the IDEA, which allowed Brody to remain in his then-current
educational placement for the 2020–21 school year and during the litigation. See id.§ 1415(j).
In April 2021, the administrative law judge (ALJ) ruled in favor of the District
on all claims. The ALJ concluded the District did not violate Brody’s right to a
FAPE in the 2018–19 or 2019–20 school years. The ALJ also determined neither
the draft IEP nor its development violated any procedural or substantive provisions
of the IDEA.
The IDEA and Iowa law require the provision of a FAPE until the end of the
academic year of a student’s twenty-first birthday. 20 U.S.C. § 1412(a)(1)(B)(i);
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Iowa Code § 256B.2(1)(a), (2)(a). Because Brody turned twenty-one in November
2022, and the parties were still in litigation through the end of the 2022–23 school
year, Brody completed his high school education entirely under his former IEP
because of the statute’s stay-put provision. The disputed draft IEP from May 2020
never went into effect.
The Kasses brought this action in federal district court, alleging violations of
the IDEA, the Americans with Disabilities Act (ADA), and the Rehabilitation Act.
In November 2022, the district court affirmed the ALJ’s decision on the IDEA
claims and dismissed the other claims as subsumed under the IDEA claims. On
appeal to this court, the Kasses no longer challenge Brody’s education during 2018–
19 and 2019–20, nor do they appeal the dismissal of their ADA claim. They only
advance their claims that the May 2020 IEP and its development process violated
the IDEA and § 504 of the Rehabilitation Act.
II. Analysis
A. Mootness
Before reaching the merits, we must first determine whether this case is moot
because Brody is now twenty-two years old and past the qualifying age for a FAPE
under the IDEA. “[A] case is moot when the issues presented are no longer ‘live’
or the parties lack a legally cognizable interest in the outcome.” Kennedy Bldg.
Assocs. v. Viacom, Inc., 375 F.3d 731, 745 (8th Cir. 2004) (quoting County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979)). This happens when, “during the course
of litigation, the issues presented in a case ‘lose their life because of the passage of
time or a change in circumstances . . . . and a federal court can no longer grant
effective relief[.]’” Haden v. Pelofsky, 212 F.3d 466, 469 (8th Cir. 2000) (omission
in original) (quoting Beck v. Mo. State High Sch. Activities Ass’n, 18 F.3d 604, 605
(8th Cir. 1994)).
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After the draft IEP from May 2020 was prepared, the Kasses invoked their
stay-put rights to have Brody educated under a former IEP through age twenty-one,
and the May 2020 IEP never took effect. Brody is now twenty-two years old and
past the qualifying age for a FAPE under the IDEA. The question before us is
whether compensatory education may be available beyond a student’s twenty-first
birthday.
We have previously held that compensatory education is a valid restorative
remedy, even after a student has left the district, to make up the years when a student
was eligible for a FAPE. See, e.g., Indep. Sch. Dist. No. 284 v. A.C. ex rel. C.C.,
258 F.3d 769, 774–75 (8th Cir. 2001); Indep. Sch. Dist. No. 283 v. E.M.D.H., 960
F.3d 1073, 1085 (8th Cir. 2020). We have also held that compensatory education
may be used for additional educational services. See Miener v. Missouri, 800 F.2d
749, 753 (8th Cir. 1986) (holding the plaintiff was entitled to recover compensatory
educational services rather than just retroactive reimbursements because “Congress
did not intend the . . . entitlement to a free education to turn upon [the] parent’s
ability to ‘front’ its costs”).
We now join our sister circuits and hold that compensatory education may be
available beyond a student’s twenty-first birthday. See, e.g., Pihl v. Mass. Dep’t of
Educ., 9 F.3d 184, 189 (1st Cir. 1993) (“[C]ompensatory education must be available
beyond a student’s twenty-first birthday.”); Ridgewood Bd. of Educ. v. N.E. ex rel.
M.E., 172 F.3d 238, 249 (3d Cir. 1999) (“An award of compensatory education
allows a disabled student to continue beyond age twenty-one in order to make up for
the earlier deprivation of a free appropriate public education.”); Bd. of Educ. of Oak
Park v. Ill. State Bd. of Educ., 79 F.3d 654, 656 (7th Cir. 1996) (noting the IDEA
“empowers a court to order adult compensatory education if necessary to cure a
violation”); Jefferson Cnty. Bd. of Educ. v. Breen, 853 F.2d 853, 857 (11th Cir. 1988)
(“Compensatory education, like retroactive reimbursement, is necessary to preserve
a handicapped [student’s] right to a free education.”).
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As the First Circuit noted in Pihl, if compensatory education is not an
available remedy beyond a student’s twenty-first birthday, “school districts simply
could stop providing required services to older teenagers, relying on the Act’s time-
consuming review process to protect them from further obligations.” Pihl, 9 F.3d at
189. See also Breen, 853 F.2d at 858 (“[P]roviding a compensatory education should
serve as a deterrent against states unnecessarily prolonging litigation in order to
decrease their potential liability.”). Such a situation would thwart IDEA’s remedial
goals. See, e.g., A.C., ex rel C.C., 258 F.3d at 774–75 (“The remedy sought is
compensatory. It does not matter whether the District has any present or future
obligation to develop a new IEP for her or to give her further hearings.”); E.M.D.H.,
960 F.3d at 1085 (“Because of this backward-looking nature, the purpose of any
compensatory-education award is restorative . . . .”).
A fundamental premise of the IDEA is that a student’s educational needs
change frequently—that is why a student’s IEP needs annual updates. See 20 U.S.C.
§ 1414(d)(1)(A)(i)(VIII), (d)(4). When a stay-put IEP is in place, that IEP is frozen
throughout the litigation’s course—often for several years. The stay-put provision
“operates as an automatic statutory injunction” against implementation of the new
IEP. See Patrick G. ex rel. Stephanie G. v. Harrison Sch. Dist. No. 2, 40 F.4th 1186,
1192 (10th Cir. 2022) (internal quotations omitted). It keeps the old IEP—“the
lesser of two evils”—in place until a resolution is reached; but the stay-put does not
provide “relief on the merits” unless the student seeks nothing more than the
injunction itself. Compare Maine Sch. Admin. Dist. No. 35 v. Mr. & Mrs. R., 321
F.3d 9, 18–19 (1st Cir. 2003) (holding compensatory education claim was not moot
despite no legal claim on appeal that the old, stay-put IEP was also inadequate 3) with
3
The dissent asserts we “inaccurately cite[ ]” to Maine School Administrative
District No. 35 because “the plaintiffs in that case vociferously objected to a former
IEP from 1999-2000,” but the dissent is mistaken. The plaintiffs in that case did not
pursue any claim on appeal as to the former IEP but only as to the IEP for the 2000–
2001 school year. It is true the plaintiffs argued the former IEP, implemented in the
1999–2000 school year, was inadequate. See Maine Sch. Admin. Dist. No. 35, 321
F.3d at 12. But they still preferred the former IEP to the 2000–2001 IEP, and so they
invoked the stay-put provision to keep the former IEP in place for the 2000–2001
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Moseley v. Bd. of Educ. of Albuquerque Pub. Schs., 483 F.3d 689, 694 (10th Cir.
2007) (finding case moot in light of the student’s graduation because the “tenor of
the entire complaint and proceedings” was “for injunctive relief”).
Here, the Kasses continued to seek compensatory education for the 2020,
2021, and 2022 school years—the years in which the stay-put was in place. By
maintaining a claim for compensatory education for the three stay-put school years,
the Kasses necessarily alleged Brody was denied a FAPE throughout the pendency
of the litigation. They sought more than just the full day of schooling Brody received
under the stay-put IEP. They still wanted “appropriate measurable postsecondary
goals,” which Brody arguably did not receive under the stay-put IEP. 4 There
remains a live controversy for compensatory education, and so we review this case
on the merits.
B. The IDEA Claim
We review de novo whether the District provided Brody with a FAPE under
the IDEA, “affording due weight to the outcome of the [hearing officer’s] decision
and accepting the district court’s factual findings as true unless they are clearly
erroneous.” D.L. ex rel. Landon v. St. Louis City Sch. Dist., 950 F.3d 1057, 1064
(8th Cir. 2020).
school year while pursuing their claim for compensatory education for the 2000–
2001 school year. Id. at 12–13. Thus, only the 2000–2001 proposed IEP was the
subject of the parents’ claim on appeal.
4
Indeed, the record supports the Kasses’ assertion that they sought the
development of an appropriate IEP for the 2020, 2021, and 2022 school years that
differed from both the stay-put IEP and the May 2020 proposed IEP. In the summer
of 2020, the Kasses filed a due process complaint, alleging that “Brody did not
receive a free appropriate public education during the past two years” and that the
draft IEP from May 2020 “will not provide Brody with FAPE.”
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The IDEA’s principal purpose is to ensure all students with disabilities “have
available to them a free appropriate public education.” Fry v. Napoleon Cmty. Schs.,
580 U.S. 154, 166 (2017) (quoting 20 U.S.C. § 1400(d)(1)(A)). A FAPE “consists
of educational instruction specially designed to meet the unique needs” of the student
and any services that are necessary to permit the student to benefit from the
instruction. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S.
176, 188–89 (1982). An IEP then serves as the vehicle for providing a FAPE, Fry,
580 U.S. at 167, which ensures schools give appropriate educational instruction and
related services to students with disabilities. Id. at 158.
The IDEA’s legal requirements are fulfilled if (1) a school district complies
with the law’s procedures in developing an IEP, and (2) the resulting IEP is
reasonably calculated to enable the student to make progress appropriate in light of
the student’s circumstances. See A.C., ex rel. C.C., 258 F.3d at 773; Endrew F. ex
rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 403 (2017). We
conclude the district court properly held the District met both requirements in the
May 2020 IEP.
i. The District Complied with the IDEA’s Procedures
The Kasses claim the May 2020 IEP violated IDEA’s procedures because (1)
the parents did not participate in the meeting where the content of the IEP was
discussed, and (2) there were no general education classes available to Brody. Both
claims are unpersuasive. The district court correctly held that the District complied
with the IDEA’s procedural requirements in drafting the May 2020 IEP.
a. Parental Participation
Drafting an IEP requires the input of the student’s parents. Albright ex rel.
Doe v. Mountain Home Sch. Dist., 926 F.3d 942, 948 (8th Cir. 2019). The IDEA
requires school districts to consider “the concerns of the parents for enhancing the
education of their child,” and to address “information about the child provided to, or
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by, the parents.” Fort Osage R-1 Sch. Dist. V. Sims ex rel. B.S., 641 F.3d 996, 1005
(8th Cir. 2011) (quoting 20 U.S.C. § 1414(d)(3)(A)(ii), (d)(4)(A)(ii)(III)).
An IEP is procedurally invalid “when a school district predetermines the
educational program to be provided to a disabled student . . . prior to meeting with
the parents and closes its mind to the concerns or evidence of the parents . . . .” Id.Such behaviors would inappropriately deprive the parents of the meaningful
opportunity to participate in the IEP’s formulation. Id.On the other hand, the “IDEA does not mandate that parental preferences
guide educational decisions.” M.M. v. Dist. 0001 Lancaster Cnty. Sch., 702 F.3d
479, 488 (8th Cir. 2012). Accordingly, there is no procedural error when there is
“an express finding that the School District was willing to listen to the [parents’]
evidence and concerns and work with them when drafting all of [the student’s]
IEPs.” Sims ex rel. B.S., 641 F.3d at 1005.
In this case, the District did not predetermine Brody’s IEP, as it “participated
in numerous meetings” with Brody’s parents. See M.M., 702 F.3d at 488–89 (noting
no procedural issue when the school district “participated in numerous meetings with
[the students’] parents”). The IEP Team involved Brody’s parents in meetings
leading up to the May 2020 IEP and documented the parents’ concerns for enhancing
Brody’s education. And the contentious topic of reduced school days “was
discussed in IEP . . . materials as early as October 24, 2019.”
The District also involved the Kasses in finalizing the May 2020 IEP. In July
2020, the District sent the Kasses the May 2020 IEP and Prior Written Notice, noting
it had provided a draft IEP. The email stated: “This is what we intend to have in
place at the start of the school year unless you request a meeting prior to this.” But
the Kasses did not request a meeting regarding the May 2020 IEP.
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In sum, the record indicates the Kasses were involved in drafting the IEP. The
district court did not err in finding the District has satisfied its obligation regarding
parental involvement.
b. General Education Classes
The Kasses claim the lack of general education classes in the May 2020 IEP
procedurally violated the IDEA. However, the IDEA does not require “that parental
preferences guide educational decisions,” M.M., 702 F.3d at 488, only that parental
preferences are “consider[ed]” and “address[ed],” see Sims ex rel. B.S., 641 F.3d at
1005. Here, the district court found the IEP Team considered the Kasses’ request
“that [Brody] receive instruction in core academics . . . .” But this request “was
rejected by the school team because the team believed focusing on functional skills
for Brody in the community setting was more appropriate.” The school team also
considered the Kasses’ suggestion that Brody “participate in art, P.E., sex education
and lunch at the school,” but rejected it because Brody had already taken these
courses as required for graduation. Although the Kasses preferred Brody to be in
general education classes, the District had no obligation to follow their preferences.
See M.M., 702 F.3d at 488.
The district court did not err in concluding there were no procedural violations
in the May 2020 IEP based on a lack of general education classes.
ii. The May 2020 IEP Substantively Provided a FAPE for Brody
Under the IDEA, if “progressing smoothly through the regular curriculum” is
not a reasonable prospect for a student, then the student’s “educational program must
be appropriately ambitious in light of his circumstances, just as advancement from
grade to grade is appropriately ambitious for most [students] in the regular
classroom.” Endrew F. ex rel. Joseph F., 580 U.S. at 402. Every student “should
have the chance to meet challenging objectives.” Id.
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However, “[a] FAPE does not necessarily fit precise parental preferences,
maximize a student’s potential, or provide the best possible education at public
expense.” D.L. ex rel. Landon, 950 F.3d at 1064. “The school is not required to
provide an optimal experience for a student with a disability, but instead must simply
provide the student with a FAPE consistent with the IEP.” Sneitzer v. Iowa Dep’t of
Educ., 796 F.3d 942, 948 (8th Cir. 2015).
Furthermore, our review under the IDEA is limited “[b]ecause judges are not
trained educators . . . .” E.S. v. Indep. Sch. Dist., No. 196, Rosemount-Apple Valley,
135 F.3d 566, 569 (8th Cir. 1998). Therefore, we should not substitute our own
notions of sound educational policy for those of the school authorities. Albright, 926
F.3d at 948. Our review is focused on whether an IEP is reasonable, not on whether
the IEP is ideal. Minnetonka Pub. Sch., Indep. Sch. Dist. No. 276 v. M.L.K. ex rel.
S.K., 42 F.4th 847, 852 (8th Cir. 2022).
The Kasses claim the May 2020 IEP is substantively deficient because the
shortened school days denied Brody substantive benefits derived from instruction in
physical education, art, sex education, and lunch. But this overlooks how Brody has
met all his graduation requirements in core academics. Moreover, a thorough
reevaluation in 2020 examined Brody’s entire education history, including all the
methodologies utilized to teach him, which led the school team to make an
individualized determination that he had only unmet transition needs.
Accordingly, the May 2020 IEP provided instruction in Brody’s areas of need
in both the school and community setting. The IEP involved: individualized
instruction on functional math, reading, and writing skills; time with a job coach;
and outings to community locations. Notably, the District did not simply shorten
Brody’s school day without providing additional services to fill in these gaps.
Rather, the May 2020 IEP provided reading and math instruction to help Brody
function in the community to the best of his ability. The IEP was designed to further
address his employability skills, behavior goals, social interaction skills, and
independent living skills.
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Finally, the Kasses claim Brody’s postsecondary goals are inadequate because
they are not sufficiently measurable. This claim also fails. The May 2020 IEP
reasonably addressed Brody’s measurable progress in achieving his goals based on
employability and behavior skills. As an example, the IEP described one of Brody’s
employability goals as to “increase his endurance to be able to participate and
complete expected tasks for 60 minutes with adult assistance and no more than one
10 minute break in at least 80% of opportunities without a behavior incident that
results in needing to leave early or quit working.”
The IEP also addressed Brody’s adaptive behavioral goals, which included
monitoring progress “through completion of an adaptive behavior skills chart,”
which tracks Brody’s level of independence with opportunities such as appropriate
interaction with adults, completing necessary money transactions, and advocating
for himself. Each opportunity is then rated on a scale of 0 to 3. Another behavioral
goal encouraged Brody to “utilize his schedule and routines to complete his arrival
routine (at school or work) with up to 2 minutes of think time with no more than 1–
2 verbal prompts.”
In sum, we agree with the district court that the May 2020 IEP’s specific and
measurable goals were reasonably calculated to enable Brody to progress in light of
his circumstances, and thus met the IDEA’s requirements.
III. Conclusion
We agree with the district court’s conclusion that the May 2020 IEP was
procedurally valid and substantively addressed Brody’s unmet transition needs in
employability and adaptive behavior. For the foregoing reasons, we affirm.
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COLLOTON, Circuit Judge, dissenting.
I conclude that this appeal is moot and that the case should be dismissed.
Where there is no live case or controversy, this court lacks jurisdiction to affirm the
judgment of the district court.
The Kasses advance several arguments about why the draft individualized
education program from May 2020 was inadequate and why the procedures used to
develop that IEP were flawed. But after the IEP was prepared, the Kasses invoked
their rights to have Brody educated under a former IEP through age 21, and the draft
IEP never took effect. The Kasses do not assert that Brody was deprived of a free
appropriate public education after the family invoked their right to “stay put” in a
former IEP. Their principal complaint with the draft IEP was that the District
scheduled Brody for only a half-day of education. By invoking their “stay-put”
rights, however, the Kasses were able to obtain for Brody a full day of education for
an additional three years. At this point, Brody is aged 22 years and is too old to
qualify for a free appropriate public education under the IDEA. Any dispute about
what the District would have provided under the draft IEP, or how that draft IEP was
developed, is moot.
The Kasses contend that the case is not moot because they have a live claim
for compensatory education. Compensatory education is a judicially created
equitable remedy that a court may award under the IDEA. See 20 U.S.C.
§ 1415(i)(2)(C)(iii); Ferren C. v. Sch. Dist. of Phila., 612 F.3d 712, 717-18 (3d Cir.
2010). This relief may be awarded to a student who is aged beyond 21 years where
appropriate to compensate the student for rights that a school district violated earlier.
The Kasses suggest that if the District’s proposed IEP for 2020-21 would not have
provided Brody with a FAPE, then they are entitled to an equitable remedy.
Even if the Kasses could establish that the proposed IEP for 2020-21 was
inadequate, however, they are not entitled to compensation for use of an IEP that
was never implemented. The Kasses did not argue in the district court or in their
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briefs on appeal that the then-current IEP failed to provide Brody with a FAPE
during 2020-21 and thereafter. Rather, they acknowledge that the “stay-put” IEP
“secured for Brody a full day of school for three years and academic classes which
the District refused him.” Appellants’ Br. 4. There is thus no live controversy that
could give rise to compensatory education.
The majority inaccurately cites a First Circuit decision for the proposition that
a claim for compensatory education presents a live controversy even when there is
“no legal claim on appeal that the old, stay-put IEP was also inadequate.” Ante, at
6. The majority states that “only the 2000-2001 proposed IEP was the subject of the
parents’ claim on appeal” in that case. Ante, at 6-7 n.3. To the contrary, the plaintiffs
in that case vociferously objected to a former IEP from 1999-2000 and argued on
appeal that the former IEP—when carried forward as a “stay-put” IEP—was
insufficient to provide a FAPE during 2000-01. Maine Sch. Admin. Dist. No. 35 v.
Mr. R., 321 F.3d 9, 13-14, 18-19 (1st Cir. 2003).
The majority incorrectly suggests that the Kasses have disputed whether
Brody received “appropriate measurable postsecondary goals” under “the stay-put
IEP.” Ante, at 7. The family’s argument on that score was directed only to the draft
IEP from May 2020. Appellants’ Br. 30-31 (arguing that “[t]he District denied
Brody a FAPE because the May 29, 2020 IEP did not have appropriate measurable
postsecondary goals”) (emphasis added). Where, as here, the plaintiffs do not argue
that the extant IEP failed to provide a FAPE, and challenge only the adequacy of a
draft IEP that was never implemented, the appeal is moot. Cf. Lillbask ex rel.
Mauclaire v. State of Conn. Dept. of Educ., 397 F.3d 77, 88 & n.6 (2d Cir. 2005).
The Kasses do allege shortcomings in the District’s procedures for developing
the proposed IEP for 2020-21. But as Brody was educated under a previous IEP that
the Kasses do not challenge, they have no live claim that the alleged procedural
deficiencies impeded Brody’s right to a FAPE or caused a deprivation of educational
benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii)(I), (III). Compensatory education is not
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an appropriate remedy for a procedural violation of the IDEA. C.H. v. Cape
Henlopen Sch. Dist., 606 F.3d 59, 66 (3d Cir. 2010).
The statute does provide that a court may find that a child did not receive a
free appropriate public education if procedural inadequacies “significantly impeded
the parents’ opportunity to participate in the decisionmaking process.” 20 U.S.C.
§ 1415(f)(3)(E)(ii)(II). There is no live controversy, however, about parental
participation in developing an IEP for 2020-21. Brody received education during
that school year under an IEP that the Kasses do not challenge, and there is no
outstanding decisionmaking process in which to participate. A “compensatory”
remedy would not redress any procedural injury from 2020. See T.P. ex rel. T.P. v.
Bryan Cnty. Sch. Dist., 792 F.3d 1284, 1293 (11th Cir. 2015). The Kasses’ claim
under § 504 of the Rehabilitation Act also seeks compensatory education based on
an alleged denial of a FAPE under the proposed IEP, so that claim is likewise moot.
The Kasses argue in their reply brief that there is a live dispute regarding their
entitlement to attorney’s fees. The Kasses suggest that they were a prevailing party
in this litigation because they succeeded in having Brody educated under his then-
current educational placement as required by statute. See 20 U.S.C. § 1415(j). But
an “interest in attorney’s fees is, of course, insufficient to create an Article III case
or controversy where none exists on the merits of the underlying claim.” Lewis v.
Cont’l Bank Corp., 494 U.S. 472, 480 (1990). And the Kasses did not file a timely
motion for attorney’s fees after entry of judgment in any event, see Fed. R. Civ. P.
54(d)(2), so there is no live dispute on any entitlement to fees.
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