Robert Brown v. Bartholomew Consolidated School Corporation

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1526
R OBERT B ROWN ,
Plaintiff-Appellant,
v.
B ARTHOLOMEW C ONSOLIDATED
S CHOOL C ORPORATION ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 03 C 939—David F. Hamilton, Judge.
____________
A RGUED N OVEMBER 10, 2005—D ECIDED M ARCH 29, 2006
____________
Before F LAUM , Chief Judge, and R IPPLE and S YKES , Circuit
Judges.
R IPPLE , Circuit Judge. The Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., requires
that states, as a condition of receiving federal funds, provide
each disabled child within their school system a free
appropriate public education. In this action, the parents of
an autistic child, Robert Brown (“Bobby”), were unhappy
with the “individualized educational program” (“IEP”) that
their school district, the Bartholomew Consolidated School

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2 No. 05-1526
Corporation (“Bartholomew”), proposed for the 2002-2003
school year to address Bobby’s autism. Unable to settle their
differences through negotiation, the parties proceeded
before a state administrative officer, who ruled in favor of
Bartholomew. Bobby’s parents appealed to the State Board
of Special Educational Appeals (“BSEA”), which upheld the
hearing officer’s determination. The Browns then filed this
action in the district court, requesting reversal of the
administrative decisions. After hearing new evidence on
Bobby’s academic progress following the BSEA’s decision,
the district court affirmed the BSEA. The Browns then filed
this appeal. In the meantime, while this appeal has been
pending, the Browns enrolled Bobby to a different school
district and agreed to a new IEP for Bobby’s upcoming
school year. As we explain further in the following opinion,
this change in circumstances renders Bobby’s case moot. We
therefore vacate the order of the district court and remand
with the direction to dismiss this action on that ground.
I
BACKGROUND
A. Facts
Bobby Brown was born on March 28, 1996, and is cur-
rently nine-years old. At age two, he was diagnosed with
Autism Spectrum Disorder, a condition that severely
impaired the development of his linguistic and social
abilities. Bobby’s autism qualified him as a “child with a
disability” under the IDEA, see 20 U.S.C. § 1401(3)(A), and
when Bobby was three, the Browns sought free appropriate
educational assistance from their local school district,
Bartholomew. Bobby was evaluated and determined to be
eligible for the district’s Early Childhood Special Education

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No. 05-1526 3
(“ECSE”), a developmental preschool program for disabled
children. Once a child is designated “disabled” under the
IDEA, the Act requires that the child receive an individually
tailored instruction program, or IEP, that first is developed
and then annually reviewed by a committee, or “IEP Team,”
composed of parents and educators. See id. § 1414(d)(1)(A).
Consistent with this statutory directive, Bartholomew
convened a case conference on April 9, 1999, to develop an
initial IEP for Bobby. The IEP Team recommended that
Bobby attend ECSE services three days per week, receive 30-
minute sessions of speech/language therapy two times per
week, and a 30-minute session of occupational therapy once
a week. The Browns agreed.
Subsequently, the Browns began researching alternative
educational approaches to treating Bobby’s autism. They
learned of an approach developed by Dr. Ivar Lovaas
known as “discrete trial training,” which emphasizes heavy
parental involvement, early intervention and treatment in
the home and elsewhere in the community, rather than in
professional settings. The Browns, without consulting
Bartholomew, hired Janet Rumple, who had been trained in
a variation of the Lovaas approach known as Applied
Behavior Analysis (“ABA”). With the help of Rumple, the
Browns began a home-based ABA program for Bobby and
hired two additional ABA aides to carry out Bobby’s day-to-
day instruction with oversight and training from Rumple.
Bartholomew held a second case conference on April 27,
2000, to revise Bobby’s IEP in contemplation of the upcom-
ing school year. The committee agreed that Bobby’s home-
based ABA instruction should substitute for the occupa-
tional therapy and fine motor skills services that Bobby was
receiving through the school. In an effort to cover the
increased cost of the at-home program, the Browns and
Bartholomew submitted an Application for Alternative

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4 No. 05-1526
Services to the Indiana Department of Education (“DOE”),
requesting approval of funding of Bobby’s ABA program.
The application listed Bobby’s major behavioral impedi-
ments such as fecal smearing, temper tantrums, physical
aggression and self-injurious behavior, all of which, it
submitted, prevented Bobby from learning in a school
environment. The DOE denied the request, noting that
Bobby’s behavioral difficulties were not, at that point,
occurring at school. The DOE encouraged the Browns and
Bartholomew to try increasing Bobby’s school hours and
one-to-one assistance before requesting additional funding.
The case conference reconvened, and Bartholomew
proposed a revised IEP that would allow Bobby to attend
school accompanied by a full-time, one-to-one aide who
would provide necessary assistance and behavioral inter-
vention. The Browns objected to this proposal because the
full-time aide recommended by Bartholomew had not been
trained in ABA instruction. Instead, the Browns proposed
that Bobby receive one-to-one instruction by an ABA-
trained educator for eight hours per day, five days a week.
As the 2000-2001 school year went forward, negotiations
between Bartholomew and the Browns continued to stall.
Bobby was reevaluated by a private child development
center, and the evaluation suggested that Bobby’s ABA
treatment was producing some positive results. Yet,
Bartholomew still would not agree to an IEP that included
ABA treatment. Typically, when disputes arise over an IEP,
they are resolved through the impartial due process proce-
dures prescribed by the IDEA. See id. § 1415(f). The Browns
filed a request for a due process hearing, but before it got
underway, the parties reached a settlement, the terms of
which were memorialized in an agreement dated February
20, 2001. The agreement provided for a Monday-Thursday
schedule of three hours of one-to-one, at-home ABA

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No. 05-1526 5
instruction in the morning, three hours of one-to-one ABA
instruction at school, followed by two hours of one-to-one
ABA instruction after school. On Fridays, Bobby would
receive six hours of at-home, one-to-one ABA instruction,
and this schedule would continue throughout the summer
during which all instruction would take place at Bobby’s
home. Pursuant to the settlement, Bartholomew entered into
service contracts with Rumple and two ABA-trained aides
to oversee and assist in Bobby’s ABA instruction and to
train Bobby’s teachers at Smith Elementary School in ABA
methods. The terms of the settlement were formalized as
Bobby’s IEP for the remainder of the 2000-2001 school year
and the following summer. Bartholomew also agreed to
reimburse the Browns for attorneys’ fees, school supplies
and the costs incurred in providing private ABA instruction
going back to June 2000.
For the month of June 2001, Rumple was unable to
maintain the level of hours expected of her due to personal
and professional commitments. Interested anyway in
shifting Bobby’s program to a more speech-centered
approach, the Browns retained the services of Dr. Carl
Sundberg, a professor at Western Michigan University who
specialized in Applied Verbal Behavior (“AVB”), a variant
of ABA instruction. Dr. Sundberg’s AVB methods empha-
sized rudimentary conversation skills that are taught
through a sequence of twenty-six steps, with each step
building on the ones before it. In Dr. Sundberg’s view,
Bobby would need instruction in these basic conversation
skills for his upcoming transition from early childhood
education to kindergarten. Dr. Sundberg believed that
Bobby had to raise his conversational skill level, as mea-
sured under the AVB program, from its current 30% level to
70% before he would be ready to enter kindergarten. The
Browns transitioned Bobby from his ABA program to Dr.
Sundberg’s AVB instruction, and Janet Rumple continued

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6 No. 05-1526
to oversee the program and arranged training for school
personnel and at-home aides. Bobby entered kindergarten
at the start of the 2001-2002 school year, attending the
program on a half-day basis at Richards Elementary School.
All other terms of the parties’ settlement agreement re-
mained in place, and Bartholomew continued to pay the
salaries of Bobby’s in-school ABA aides and Janet Rumple.
The IDEA requires that each “child with a disability” be
evaluated at least once every three years to assess the child’s
status as disabled and to evaluate the child’s progress in the
school curriculum. Id. § 1414(a)(2)(A). When Bobby’s three-
year reevaluation came due in April 2002, both parties
recruited outside specialists to undertake independent
evaluations. One of Bartholomew’s two specialists, Dr. John
Umbreit, was an expert in ABA methods and a professor of
special education at the University of Arizona. He observed
Bobby in the classroom and at home and interviewed Mrs.
Brown and Bobby’s teachers. Based on his evaluation, Dr.
Umbreit made several recommendations, the most impor-
tant of which was that Bobby attend a full day of kindergar-
ten class at Richards Elementary, assisted by an instruc-
tional aide for most of the school day. In Dr. Umbreit’s
opinion, Bobby would benefit from learning the necessary
functional skills, such as communication, self care and
motor abilities, in a classroom setting that involved age-
appropriate materials and activities. To the greatest extent
possible, according to Dr. Umbreit, Bobby’s autism-specific
instruction should be embedded within typical activities
that were provided to other students in his general educa-
tion class.
The Browns’ experts disagreed. Dr. James Mulick, Profes-
sor of Pediatrics and Psychology at the Ohio State Univer-
sity, observed Bobby at home and in school. He concluded
that, although both settings were appropriate and beneficial,

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No. 05-1526 7
Bobby was not ready for full-day kindergarten. Dr. Mulnick
recommended that Bobby remain in a half-day program
identical to his 2001-2002 IEP that remained in place at the
time. According to Dr. Mulnick, a full school day would be
detrimental, given that Bobby was unable to carry on a
conversation and appeared disengaged in a classroom
setting. Instead, the intensive, at-home, one-to-one instruc-
tion was necessary to correct Bobby’s significant language
deficit, which, at the time, placed him near the range of
mental retardation.
The parties met in case conference on May 20, 2002. The
Browns were accompanied by their attorneys and Dr.
Sundberg. Also in attendance was George Van Horn,
Bartholomew’s special education director, in addition to a
number of Richards Elementary administrators, teachers,
ABA aides and psychologists. Bartholomew proposed a
placement for Bobby’s 2002-2003 school year that consisted
of kindergarten classroom education at Richards Elemen-
tary, five days per week, from 8:10 a.m. to 2:30 p.m. each
day. Under the proposed placement, Bobby would partici-
pate in all kindergarten activities with support from a full-
time, one-to-one teaching assistant, in addition to special
education staff. The full-day kindergarten placement also
provided for special instruction from the learning resource
teacher for 60 minutes each day, 40 minutes per week of
direct instruction from the kindergarten teacher, three 30-
minute speech therapy sessions per week, and 30-minute
occupational therapy sessions twice a week. When
Bartholomew finished outlining this proposal, the meeting
effectively ended. By all accounts, the Browns were so
profoundly opposed to this proposal that they simply stated
their disagreement with Bartholomew and left the meeting.
The Browns then filed their second request for a due
process hearing. Their complaint to the Independent

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8 No. 05-1526
1 The Supreme Court recently has clarified that, under the IDEA,
the student and the student’s parents bear the burden of proof in
an administrative hearing challenging a school district’s IEP. See
Schaffer ex rel. Schaffer v. Weast, 126 S. Ct. 528, 536-37 (2005).
2 This standard, articulated by the Court in Rowley, is the
(continued...)
Hearing Officer (“IHO”) alleged that Bartholomew’s
conduct in negotiating Bobby’s 2002-2003 placement
violated both the procedural and substantive requirements
of the IDEA. The Browns asserted first that Bartholomew
had predetermined Bobby’s IEP before the May 2002 case
conference without soliciting input from the Browns and
their experts. 1 The IHO disagreed, noting that it is permissi-
ble for case conference participants to approach negotiations
with drafts of a proposed IEP, as both parties did in this
case. According to the IHO, there was no evidence that
Bartholomew approached the case conference unwilling to
review, discuss or compromise on its proposal. Because the
Browns halted negotiations before any give-and-take could
occur, in the IHO’s view, they had no basis to claim that
Bartholomew’s proposal was set in stone. The IHO next
considered the Browns’ protest that the IEP, as proposed by
Bartholomew at the May 2002 conference, did not contain a
plan to transition Bobby into the full-day placement.
Although the IHO recognized that no transition plan was
proposed, he concluded that impasse on the placement itself
preempted any discussion of transition methods; accord-
ingly, Bartholomew’s failure to offer such a plan did not
violate the IDEA. Finally, the IHO addressed the Browns’
substantive contention that Bartholomew’s proposal was not
“reasonably calculated to enable the child to receive educa-
tional benefits.” Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07
(1982). 2 After reviewing the record and hearing testimony

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No. 05-1526 9
2 (...continued)
benchmark against which IEPs are measured to determine
whether they provide a disabled child with the free appropriate
education contemplated by the IDEA. See, e.g., Alex R., ex rel. Beth
R. v. Forrestville Valley Cmty. Unit Sch. Dist. # 221, 375 F.3d 603,
609 (7th Cir. 2004).
from both parties’ experts, the IHO concluded that the
proposed full-day kindergarten placement was appropriate
under the circumstances. The IHO recognized that, as Bobby
grows older and his peers outpace his development, Bobby
may require more at-home schooling. Nevertheless, accord-
ing to the IHO, Bartholomew should have been given the
opportunity to try a full-day program with appropriate
support in order to determine Bobby’s suitability to that
type of placement.
On appeal to the Indiana Board of Special Educational
Appeals (“BSEA”), the IHO’s decision was upheld in all
respects. The Browns had argued to the Board that the
parties dispute was not, at bottom, a dispute over conflict-
ing methodologies; rather it turned on whether
Bartholomew’s proposal was appropriate. The BSEA
rejected this characterization of the dispute. In its estima-
tion, the parties were arguing simply about which program
was “better.” Appellant’s App. at A68. The IDEA, according
to the BSEA, did not require Bartholomew to provide Bobby
with the better or best possible education; Bartholomew’s
duty was only to tender a program that was reasonably
designed to produce meaningful educational results. The
BSEA concluded that Bartholomew had fulfilled this
obligation.
B. District Court Proceedings

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10 No. 05-1526
A party aggrieved by the decision of a local educational
agency may bring a civil action for review of that decision
by a federal district court. See 20 U.S.C. § 1415(i)(2)(A). The
Browns exercised their right to judicial review and brought
this action in the United States District Court for the South-
ern District of Indiana. Count I of their complaint sought
redress for the denial of Bobby’s right to a free appropriate
education, and repeated allegations of both substantive and
procedural violations of the IDEA on the part of
Bartholomew. Count II invoked the Browns’ right to a “stay-
put” or “pendency” injunction that would preserve Bobby’s
2001-2002 IEP and the incorporated terms of the parties’
February 2000 settlement agreement. See id. § 1415(j)
(“[D]uring the pendency of any proceedings conducted
pursuant to this section, . . . the child shall remain in the
then-current educational placement . . . .”). In other words,
the stay-put injunction would keep Bobby in a half-day
kindergarten placement pending the resolution of the
Browns’ action in the district court and any subsequent
appeal. The Browns’ complaint alleged that Bartholomew
was “not prepared to honor [Bobby’s] pendency
entitlements.” R.1 at 9. Therefore, in their prayer for relief,
the Browns not only sought reversal of the administrative
decisions, but also continuation of the half-day kindergarten
placement and the terms of the settlement agreement, in
addition to attorneys’ fees and costs.
The district court upheld in full the state administrative
decisions in favor of Bartholomew. On the issues relevant to
this appeal, the district court determined: (1) that
Bartholomew officials had not pre-determined the proposed
change to Bobby’s program without involving the Browns
in the process; (2) that Bartholomew did not violate the
IDEA by failing to provide adequate means to transition
Bobby into the proposed placement; and (3) that the pro-

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No. 05-1526 11
posed placement was reasonably calculated to provide
Bobby a free appropriate education within the meaning of
the IDEA.
With respect to improper pre-determination, the Browns
argued to the district court that Bartholomew officials had
finalized Bobby’s IEP before the May 16, 2002 meeting. As
evidence, they invited the court’s attention to the notes,
memoranda and e-mails of several Bartholomew officials
discussing, in concrete terms, Bobby’s placement. The
Browns also introduced evidence of a visit to the Browns’
home by Dr. Umbreit, who, at this visit, allegedly possessed
a finalized version of Bartholomew’s proposed IEP. At the
due process hearing, Dr. Umbreit denied that he had
finalized the IEP before the May 16, 2002 meeting. The
district court considered the evidence and testimony and
disagreed with the Browns that the record indicated pre-
determination on the part of Bartholomew. Instead, the
court saw the evidence as reflecting Bartholomew’s thought-
ful preparation for the May 16, 2002 meeting, consistent
with the school district’s obligations under the IDEA. See
R.89 at 12 (noting that the IDEA requires a school district to
“devote meaningful individualized consideration to a
child’s needs”). The court acknowledged that “[a] lack of
adequate preparation for a case conference could violate this
requirement, just as a final decision without meaningful
input could violate the statute in a different way.” Id.
Descriptions of the meeting itself, moreover, persuaded the
district court that the parties, in fact, engaged in a meaning-
ful give-and-take that resulted in compromise on certain
issues. That Bartholomew ultimately was unwilling “to
yield on the particular issue of placement” did not, in the
court’s view, “by itself establish pre-determination or any
other denial of the parental right of involvement.” Id. at 13.
The Browns contended that, without designing a means

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12 No. 05-1526
to ease Bobby’s transition into the proposed placement, the
2002-2003 IEP was not reasonably calculated to enable
Bobby to receive educational benefits. The district court,
however, agreed with the conclusions of the IHO on this
issue and held that Bartholomew was not obliged to design
a transition plan until the parties had agreed on Bobby’s
actual placement, a goal that they never could accomplish.
According to the court, “[t]he discussion simply never got
far enough to work out a transition plan to a new program
that the Browns adamantly opposed.” Id. at 18.
Finally, in considering the Browns’ substantive attack on
the proposed IEP, the district court emphasized that, under
applicable standards of review, the Browns were forced to
show “that the Proposed IEP was not reasonably calculated
at the time of its drafting.” Id. at 24; see generally Roland M.
v. Concord Sch. Comm., 910 F.2d 983, 991 (1st Cir. 1990)
(“[A]ctions of school systems cannot . . . be judged exclu-
sively in hindsight.”). The district court concluded that the
Browns had failed to satisfy this burden. In the court’s view,
the evidence demonstrated “only an honest disagreement
among professionals who have devoted their careers to
educating children with autism.” R.89 at 25.
II
DISCUSSION
The Browns now have presented to us their claims of
IDEA violations, both substantive and procedural, related
to the proposed placement for Bobby’s 2002-2003 school

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No. 05-1526 13
year. We cannot address these claims, however, without
first ascertaining whether there remains a live controversy
between the parties.
Article III, § 2 of the Constitution grants jurisdiction to
federal courts to adjudicate only “actual, ongoing controver-
sies.” See Honig v. Doe, 484 U.S. 305, 317 (1987). For a case to
be justiciable, a live controversy must continue to exist at all
stages of review, not simply on the date the action was
initiated. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78
(1990); Jordan by & through Jones v. Indiana High Sch. Athletic
Ass’n, Inc., 16 F.3d 785, 787 (7th Cir. 1994). A case becomes
moot when a court’s decision can no longer affect the rights
of litigants in the case before them and simply would be “an
opinion advising what the law would be upon a hypotheti-
cal state of facts.” North Carolina v. Rice, 404 U.S. 244, 246
(1971) (internal quotation marks omitted). In an action
seeking only injunctive relief, this requirement ordinarily
means that, once the threat of the act sought to be enjoined
dissipates, the suit must be dismissed as moot. See, e.g.,
Wernsing v. Thompson, 423 F.3d 732, 744-45 (7th Cir. 2005). If,
however, a plaintiff also seeks monetary damages, his case
is not moot even if the underlying misconduct that caused
the injury has ceased. See Powell v. McCormack, 395 U.S. 486,
496 (1969) (holding that, although injunctive relief was
moot, a case or controversy still existed because the plaintiff
requested declaratory relief and damages); Crue v. Aiken,
370 F.3d 668, 677-78 (7th Cir. 2004) (“When a claim for
injunctive relief is barred but a claim for damages remains,
a declaratory judgment as a predicate to a damages award
can survive.”).
Soon after the district court rendered its decision in this
action, and immediately following Bobby’s ninth birthday,
the Browns moved from Columbus, Indiana, to Greensburg,
Indiana, and enrolled Bobby in a new elementary school

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14 No. 05-1526
operated by the Greensburg Community School Corpora-
tion (“GCSC”). Shortly thereafter, the Browns and the GCSC
agreed to a new IEP to govern Bobby’s 2005-2006 school
year at Greensburg Elementary. Bartholomew contends that
the Browns’ relocation to a different school district and an
acceptance of a new IEP in that district renders any dispute
over Bobby’s IEP in Bartholomew moot because a judicial
decision in the Browns’ favor could no longer benefit Bobby.
In reply, the Browns maintain that they continue to
possess a claim for monetary damages. The nature of this
claim, according to the Browns, originated in their rights
under the stay-put injunction that held in place Bobby’s
2001-2002 IEP and under the parties’ settlement agreement
that Bartholomew was to cover the expenses related to
Bobby’s ABA instruction. The Browns contend that
Bartholomew breached this obligation when it failed to
reimburse the Browns for the salary they had paid to Dr.
Sundberg, who substituted as Bobby’s ABA consultant
when Janet Rumple’s professional obligations required that
she reduce her time commitment to Bobby. The IDEA gives
a district judge the discretion “to order school authorities to
reimburse parents for their expenditures on private special
education for a child if the court ultimately determines that
such placement, rather than a proposed IEP, is proper under
the Act.” See Burlington Sch. Comm. v. Massachusetts Dep’t of
Educ., 471 U.S. 359, 369-71 (1985) (interpreting 20 U.S.C. §
1415(h)(2)(B)). Indeed, other circuits have held that a claim
for “reimbursement can defeat a mootness challenge in an
IEP placement dispute.” Lillbask ex rel. Mauclaire v. Conn.
Dep’t Educ., 397 F.3d 77, 89 (2d Cir. 2005) (collecting cases).
A review of the record, however, demonstrates that the
Browns failed to articulate a claim for damages in the
district court; they sought only injunctive and declaratory
relief. The record of the Browns’ proceedings before the IHO
and the BSEA contains vague indications that, at some

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No. 05-1526 15
point, the Browns sought reimbursement for the salary they
paid to Dr. Sundberg. The IHO’s decision lists, as “Primary
Issue Number One,” “What are the student’s continuing
rights of pendency and stay put under the statute, regula-
tion, decisional law and the express written settlement
agreement between the parties?” R.66, Ex.B at 3. It then
dispensed with this issue by noting:
By stipulation Primary Issue Number One concerning
stay-put had been resolved by parties prior to hearing
and was withdrawn. Pursuant to agreement of parties
stay put placement was the 1/2 day LEA Kindergarten
and the Applied Verbal Behavior (AVB) in-home
program after school, including services of program
overseer (Janet Rumple) and two aides (Libby
Springmeyer and Sara Miller), and the placement was
funded by [Bartholomew].
Id. at 4. On appeal to the BSEA, the Browns asked that these
stipulated pendency entitlements be converted into Bobby’s
placement for the 2002-2003 school year, with the added
requirement that Bartholomew cover the cost of “continuing
the role of Dr. Sundberg as Bobby’s program consultant.”
R.76, Tab 3 at 6 n.2; see also id., Tab 5 at 114.
At the district court level, the Browns apparently aban-
doned this claim for reimbursement. Their prayer for relief
asked, in addition to reversal of the administrative deci-
sions, that Bobby’s “preexisting pendency/stay-put pro-
gram be continued in full force and effect, funded by
[Bartholomew].” R.1 at 9-10. The Browns’ complaint did not
assert that the preexisting program was inadequate, nor did
it ask for reimbursement for Dr. Sundberg’s services. Also
absent from the Browns’ lengthy trial briefing before the
district court was a claim for reimbursement. The closest the
Browns ever came to asserting a right to compensatory
education was when, in their “Trial Brief,” they described
the relevant Supreme Court precedent that allows a district

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16 No. 05-1526
court to award reimbursement to a parent who spends her
own money on private education that the court finds
appropriate. See R.65 at 31-32 (discussing Burlington, 471
U.S. at 369-71, and Florence County Sch. Dist. Four v. Carter,
510 U.S. 7, 15-16 (1993)). The trial brief never went on to
apply this precedent to the facts in Bobby’s case nor to
explain why it entitled the Browns to reimbursement for Dr.
Sundberg’s services.
Relief in the form of reimbursement for out-of-pocket
educational expenses, or “compensatory education” as it is
formally called, “is, as we [have] said, indeed exceptional
and nowhere expressly authorized by the statute.” Bd. Educ.
Oak Park & River Forrest High Sch. Dist. 200 v. Todd A., 79
F.3d 654, 657 (7th Cir. 1996). The IDEA only authorizes a
district court to award aggrieved parents “such relief as the
court determines is appropriate.” 28 U.S.C. § 1415(h)(2)(B).
Consistent with the Supreme Court’s reading of this provi-
sion in Burlington, 471 U.S. at 369-70, courts have held that
a district court’s authority encompasses a “range of equita-
ble remedies and therefore empowers a court to order . . .
compensatory education if necessary to cure a violation.”
Todd A., 79 F.3d at 656; see also G ex rel. RG v. Fort Bragg
Dependent Schs., 343 F.3d 295, 308-09 (4th Cir. 2003) (collect-
ing cases from different circuits). However, as an equitable
remedy, awarding compensatory education is a decision
that rests in the sound discretion of the district court. See
Lester H. v. Gilhool, 916 F.2d 865, 872 (3d Cir. 1990).
Here, the Browns’ complaint deprived the district court of
an opportunity to exercise that discretion. As we have
pointed out, the complaint contains no specific mention of
reimbursement, and a request for such damages cannot be
inferred from the language of the complaint. By requesting
that the “preexisting pendency/stay-put program be
continued in full force and effect,” R.1 at 9-10, the Browns’

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No. 05-1526 17
3 This result is consistent with other courts of appeals who have
refused to save an action from mootness by crediting a belated
claim for compensatory education. In Thomas R.W. v. Massachu-
setts Department of Education, 130 F.3d 477 (1st Cir. 1997), parents
of a disabled student contested their school district’s refusal to
provide the child with a full-time aide at the child’s private
school. The court dismissed the case as moot, over protests of
parental rights to compensatory education, because the parents
“failed to articulate a claim for damages in the district court,
where [they] sought only injunctive and declaratory relief.” Id. at
480. Similarly, in Lillbask ex rel. Mauclaire v. Connecticut Depart-
ment of Education, 397 F.3d 77 (2d Cir. 2005), the court dismissed
as moot a parents’ challenge to an IEP proposal for a school year
(continued...)
complaint actually suggests that they were amenable to the
status quo and needed no additional reimbursement for the
cost of hiring Dr. Sundberg. This is in contrast to the
Browns’ pleadings before the administrative bodies, which
at least to some extent seemed to request alterations to the
Browns’ pendency entitlements. Since the Browns evidently
knew of their reimbursement rights throughout the admin-
istrative process and yet did not present the matter in their
complaint to the district court, we must treat any claim for
reimbursement as abandoned in this action.
It was not until the Browns’ reply brief in this court that
they mentioned seeking an award of compensatory educa-
tion in connection with their federal challenge to the 2002-
2003 IEP. This late mention “falls short of the requisite
timeliness and formulation necessary to preserve a claim for
damages.” Thomas R.W. v. Massachusetts Dep’t Educ., 130
F.3d 477, 480 (1st Cir. 1997). Consequently, the Browns’
claim for compensatory education is deemed waived and
cannot supply the residual live controversy necessary to
prevent their entire claim from being moot. 3

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18 No. 05-1526
3 (...continued)
that had long since passed. Ms. Lillbask’s claim on appeal that
she continued to possess a right to compensatory education failed
to preserve a live controversy. As the court pointed out,
“Lillbask’s Fourth Amended Complaint [was] bereft of any
prayer for compensatory education relief; indeed the complaint
fails to make any mention whatsoever of Lindsey’s need for
compensatory education.” Id. at 90. Given that earlier pleadings
had included such relief, the court found it “inappropriate to read
a prayer for compensatory relief into Lillbask’s Fourth Amended
Complaint” and thereby save the case from mootness. Id.
The Browns next seek recourse in the exception to the
mootness doctrine for “ ‘wrongs capable of repetition, yet
evading review.’ ” See Honig, 484 U.S. at 318 (quoting
Murphy v. Hunt, 455 U.S. 478, 482 (1982)). This exception,
which applies only in “exceptional situations,” Spencer v.
Kemna, 523 U.S. 1, 17 (1998), saves a case from being moot
when “(1) the challenged action was in its duration too short
to be fully litigated prior to its cessation or expiration, and
(2) there was a reasonable expectation that the same com-
plaining party would be subjected to the same action
again.” Murphy, 455 U.S. at 482 (quotation marks omitted).
Because IEP challenges usually endure longer than the nine-
month school year, most circuits hold that the first,
durational element of the mootness exception is satisfied in
these cases. See, e.g., Rome Sch. Comm. v. Mrs. B., 247 F.3d 29,
31 (1st Cir. 2001) (collecting examples of controversies
regarding IEPs that “are likely to evade review because the
administrative and judicial review of an IEP is ponderous
and usually will not be complete until a year after the IEP
has expired” (internal quotation marks omitted)).
Consequently, the mootness question in this case must
turn on the second prong of the exception, namely whether

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No. 05-1526 19
a “reasonable expectation” exists that, in the future,
Bartholomew will again subject Bobby to an IEP that
proposes to deny him of a free appropriate education. As
the Supreme Court has recognized, this “reasonable expec-
tation” of repetition must be more than “a mere physical or
theoretical possibility.” Murphy, 455 U.S. at 482. The Browns
ground their expectation of reinjury in the fact that Bobby
remains, despite enrolling in a different school district, “at
the mercy of [Bartholomew], a supervisory power which
directs the activities of the local special education authority
that will supervise and direct the development of Bobby’s
IEP in the future.” Appellant’s Reply Br. at 1. Bartholomew
responds that, although Bartholomew serves as administer-
ing corporation in a joint relationship with Bobby’s new
school district, Bartholomew retains no control or influence
over the IEPs offered by the new district. See Appellee’s Br.
at 27-28.
In Honig, on which the Browns rely heavily, an emotion-
ally disturbed student claimed that school district authori-
ties violated an IDEA-precursor by excluding the student
from school in response to his dangerous and disruptive
behavior. In refusing to dismiss the case as moot, the
Supreme Court held that there was a “reasonable likeli-
hood” that the school officials would exclude the student
again given (1) “the nature of [the student’s] disability,” and
(2) the school officials’ insistence on their right to unilater-
ally exclude the student from class. Honig, 484 U.S. at 318-
19.
Bobby’s case implicates neither Honig factor. In Honig,
there was an inextricable link between the student’s violent
behavior and the challenged policy of exclusion. Precisely
because of the child’s “inability to conform his conduct to
socially acceptable norms,” the Supreme Court was willing
“to assume that the party seeking relief will repeat the type
of misconduct that would once again place him or her at

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20 No. 05-1526
risk of injury.” Id. at 320. Here, Bobby’s autism presents an
evolving set of challenges for educators, one that requires
his IEP to be periodically revised. What was right for Bobby
in kindergarten may not be the proper educational program
when he enters the third grade. The dispute over the 2002-
2003 IEP turned on whether Bobby was ready for full-time
mainstream class. Now, as a nine-year old, Bobby’s readi-
ness for mainstream education presents a different question
calling for reassessment of his educational development.
Were we to decide, at this later date, whether
mainstreaming was right for Bobby back in 2002-2003, we
would be issuing, in effect, an advisory opinion. Our
decision would merely tell the parties who was correct
about Bobby’s outdated IEP. It would do nothing to define
the contours of the parties’ continuing legal relationship
under the IDEA such that future repetitions of the injury
could be avoided. The case therefore must be dismissed as
moot.
Moreover, Bobby’s case presents a situation virtually
identical to Downers Grove Grade School Number 58 Board v.
Steven L., 89 F.3d 464 (7th Cir. 1996). There, a district court
had refused to dismiss a parents’ IDEA case as moot
because the school district and the parents had “conflicting
educational philosophies and perceptions of the
mainstreaming and methodological requirements under the
IDEA.” Id. at 467 (internal quotation marks omitted). The
district court reasoned that it had jurisdiction to “ade-
quately inform the parties of the contours of their continu-
ing relationship” under the statute. Id. (internal quotation
marks omitted). We reversed, holding that, because the
parents had “already agreed to a new IEP with a different
school district,” they “are without an actual injury traceable
to the defendant that could be redressed by a favorable
judicial decision.” Id. (quotation marks omitted). In our
view, “[j]udgment either way would not effect [sic] An-

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No. 05-1526 21
drew’s fifth grade IEP, a circumstance long gone.” Id. There
was, therefore, no injury capable of repetition yet evading
review. The record before us requires an identical conclu-
sion.
Conclusion
Accordingly, the judgment of the district court is vacated,
and the case is remanded with direction that it be dismissed
as moot. The parties shall bear their own costs in this
appeal.
V ACATED AND R EMANDED W ITH D IRECTION
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-29-06

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