Mootness, effect of subsequently issued IEP, pendency, comp ed, attorney fees

Student X, by his mother v. NYC Dept. of Educ., Slip Copy, 2008 WL 4890440(E.D.N.Y. Oct 30, 2008) (NO. 07-CV-2316(NGG)RER): The parent in this case lost on the FAPE claims but the case is extremely important for a variety of reasons. First, the Court dealt what hopefully is a knockout blow to SRO Paul Kelly’s overly restrictive view of the mootness doctrine. The Court found that an IEP issued subsequent to the challenged IEP did not moot the challenge to the first IEP. The Court recognized that the challenged action was capable of repitition while evading review. Next, the Court cited to the 2nd Circuit Schutz case observing that “a new IEP for the school year following the one at issue in the litigation was a “mere proposal” that did not change the student's pendency entitlement. To hold otherwise would “undermine entirely the pendency placement provisions of the IDEA, allowing a school district to avoid altogether § 1415(j)”. Again, this is a refutation of SRO Paul Kelly who has repeatedly excused district malfeasance by denying the parent the right to due process when a district issues a new IEP.

And there’s more. Citing to the recent 2nd Cir. case P. v. Newington, the Court refuted the notion that compensatory education is limited to over age 21. This should help to reinforce that the SRO’s silly distinction between “additional services” and compensatory education should be relegated to historical artifact. The Court then found that the refusal to implement pendency was a gross violation of the IDEA for which the Court granted an hour for hour award of compensatory services. Finally, the Court awarded attorney fees to the parent for prevailing on pendency.