J.P.E.H. v. Hooksett School 07-CV-276-SM 10/22/08
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
J.P.E.H., by his parent and
next friend, Elizabeth Campbell,
Plaintiff
v. Civil No. 07-cv-276-SM
Opinion No. 2008 DNH 194
Hooksett School District,
Defendant
O R D E R
Given the court's contemporaneous order dismissing
plaintiff's claims against all defendants named in their personal
capacities, this case consists of Elizabeth Campbell's claims
against a single defendant, the Hooksett School District ("HSD"
or "school district"), brought under the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et sea.;
Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation
Act"), 29 U.S.C. § 701, et sea.; and chapter 186-C of the New
Hampshire Revised Statutes Annotated ("RSA"). Before the court
is the school district's motion to dismiss. Campbell has filed
no objection. For the reasons given, defendant's motion to
dismiss is granted in part and denied in part.
The factual background of this case is set out in detail in
the magistrate judge's report and recommendation (document no.
6). Accordingly, the following description is limited to those
facts relevant to ruling on defendant's motion.
On December 11, 2006, and January 2, 2007, Campbell filed a
complaint against the HSD with the New Hampshire Department of
Education ("DOE"), claiming, among other things, that the HSD
failed to follow J.P.E.H.'s individualized education program
("IEP") and erroneously "deidentified" him, that is, determined
that he was no longer eligible for special education services
because he no longer qualified as a child with a disability
within the meaning of the IDEA and RSA chapter 186-C. In her
complaint, Campbell sought the following relief: (1) independent
evaluations of J.P.E.H. to address all areas of his educational
performance, language comprehension, auditory processing, and
ADHD issues; (2) continuation of special education services until
completion of the evaluation; (3) development of a "504 plan" to
implement accommodations for J.P.E.H. in the event that the HSD's
deidentification was affirmed; (4) provision to Campbell of
syllabi and textbooks for every subject in which J.P.E.H. was
receiving instruction; (5) permission for Campbell to be on
school grounds and to communicate with the school via e-mail,
phone, fax, and mail, to allow her to advocate for and assist
J.P.E.H.; and (6) reasonable attorney's fees. For its part, the
2
HSD filed a complaint with the DOE seeking an order affirming its
deidentification of J.P.E.H.
On May 11, 2007, DOE Hearing Officer Peter Foley issued an
opinion and order in which he ruled that Campbell had failed to
carry her burden of proving that the HSD had denied her son a
free appropriate public education and that the HSD had carried
its burden of proving that J.P.E.H. no longer qualified as a
child with a disability under relevant federal and state law.
Several months after the Hearing Officer issued his order,
J.P.E.H. began the 2007-2008 school year in private school. The
private schools he has attended, and continues to attend, are
located outside the HSD. Campbell stated, in the complaint that
initiated this case, that she will not send J.P.E.H. back to a
school operated by the HSD.
Campbell commenced this action by filing a complaint on
August 30, 2007. Her prayer for relief asks for: (1) attorney's
fees for Raymond Foss, who represented her through part of the
DOE hearing process; (2) reimbursement for her son's private-
school tuition; (3) a private and IDEA remedy for various alleged
procedural violations; (4) a private remedy for the abuse her son
allegedly suffered and the subsequent cover up; (5) a private
remedy for the violation of her son's privacy; and (6) the IDEA
3
remedy for outside evaluation. Assuming Campbell intended the
term "private remedy" to mean "money damages," her claims for
such relief have been dismissed. (See document no. 6, at 21-22.)
All that remain, then, are Campbell's claims for: an IDEA remedy
for procedural violations; an IDEA remedy for outside evaluation;
and reimbursement of her son's private-school tuition.
Defendant moves to dismiss, arguing that Campbell's claims
for IDEA remedies such as outside evaluations of J.P.E.H. are
moot due to his enrollment in a private school outside the
district and that her claim for tuition reimbursement is not
properly before this court because it was never raised before the
DOE Hearing Officer. The court considers each argument in turn.
"It is black-letter law that, in a federal court,
justiciability requires the existence of an actual case or
controversy." Me. Sch. Admin. Dist. No. 35 v. Mr. & Mrs. R., 321
F.3d 9, 17 (1st Cir. 2003) (citing U.S. C o n s t , art. Ill, § 2, cl.
1). "[A] case may be rendered moot (and, therefore, subject to
dismissal) if changed circumstances eliminate any possibility of
effectual relief." Id. (citing CMM Cable Rep.. Inc. v. Ocean
Coast Props.. Inc..
48 F.3d 618, 620-21 (1st Cir. 1995)).
4
Defendant argues that J.P.E.H.'s enrollment in a private
school outside the district, coupled with Campbell's stated
intention not to return him to the Hooksett schools, amount to a
changed circumstance that eliminates any possibility of its being
able to provide the IDEA remedies plaintiff seeks. Defendant is
correct.
Campbell seeks two IDEA remedies, an outside evaluation of
her son and an unspecified IDEA remedy for alleged procedural
violations. Presumably, the IDEA remedy for procedural
violations would be the provision of IDEA services in a
procedurally correct manner. Once Campbell placed her son in a
private school outside the Hooksett School District, his rights
under the IDEA changed. See 34 C.F.R. § 300.13 7(a) ("No
parentally-placed private school child with a disability has an
individual right to receive some or all of the special education
and related services that the child would receive if enrolled in
a public school."). In addition, the responsibility to evaluate
J.P.E.H.'s need for IDEA services passed from the HSD to the
district in which his private school is located. See 34 C.F.R. §
300.131(a) ("Each LEA [local educational agency] must locate,
identify, and evaluate all children with disabilities who are
enrolled by their parents in private, including religious,
elementary schools and secondary schools located in the school
5
district served by the LEA . . . Accordingly, all of
Campbell's claims for IDEA remedies must be dismissed as moot
because the HSD is unable to provide the relief she seeks.
On the other hand, notwithstanding its invocation of the
IDEA exhaustion requirement, defendant is not entitled to
dismissal of Campbell's claim for tuition reimbursement, even
though she did not seek such relief in the DOE hearing process.
To be sure, the IDEA includes an exhaustion requirement, see 20
U.S.C. § 1415 {1 }, and "parents ordinarily must exhaust their
administrative remedies before appealing to a federal court," M e .
Sch. Dist. 35. 321 F.3d at 18 (citing Frazier v. Fairhaven Sch.
Comm., 276 F.3d 52, 59, 63 (1st Cir. 2002)). But a parent's
"failure to raise a then-nonexistent . . . claim before the
hearing officer is not fatal to judicial review." Me. Sch. Dist.
3_5, 321 F.3d at 18. Moreover, " [e] xhaustion may not be required
where the pursuit of administrative remedies would be futile or .
. . waste resources." Pihl v. Mass. Dep't of Educ.,
9 F.3d 184,
190 (1st Cir. 1993)) .
Here, both Maine School District 35 and Pihl relieve
Campbell of the obligation to make a claim for tuition
reimbursement through the DOE hearing process before seeking such
relief here. First, as with the claim for compensatory education
6
in Maine School District 35, 321 F.3d at 18, Campbell's claim for
tuition reimbursement did not accrue until long after the DOE
hearing officer rendered his decision. Campbell cannot be
faulted for failing to request reimbursement for expenses not yet
incurred. Second, based on the Hearing Officer's decision in
this case, it is clear that sending Campbell on a return trip
through the administrative process would be an exercise in
futility. Among other things, the Hearing Officer ruled that
Campbell failed to carry her burden of proving that the HSD
denied her son a free appropriate public education. Campbell
would have to prove the very same thing - denial of a free
appropriate public education - to prevail on an administrative
claim for tuition reimbursement. See C.G. v. Five Town Cmtv.
Sch. Dist., 513 F.3d 279, 289 (1st Cir. 2008) (citing Florence
County Sch. Dist. Four v. Carter.
510 U.S. 7, 12 (1993); Sch.
Comm, v. Dep't of Educ..
471 U.S. 359, 370 (1985)). Because the
Hearing Officer has already ruled that the HSD did not deny
Campbell's son a free appropriate public education, it is
inevitable that her tuition-reimbursement claim would fail as
well, making a return to the administrative process futile.
Accordingly, defendant is not entitled to dismissal of Campbell's
claim for tuition reimbursement on grounds of a failure to
exhaust administrative remedies.
7
For the reasons given, the HSD's motion to dismiss (document
no. 31) is granted in part and denied in part. What remains of
this case is Campbell's claim for tuition reimbursement, which
depends in large measure upon whether the school district denied
Campbell's son a free and appropriate public education.
SO ORDERED.
Steven J./McAuliffe
Chief Judge
October 22, 2008
cc: Elizabeth J. Campbell, pro se
Melissa A. Hewey, Esq.
Anthony I. Blenkinsop, Esq.
