In order to assure that States receiving federal financial
assistance will provide a "free appropriate public education" for
all disabled children, including those with serious emotional
disturbances, the Education of the Handicapped Act (EHA or Act)
establishes a comprehensive system of procedural safeguards
designed to provide meaningful parental participation in all
aspects of a child's educational placement, including an
opportunity for an impartial due process hearing with respect to
any complaints such parents have concerning their child's
placement, and the right to seek administrative review of any
decisions they think inappropriate. If that review proves
unsatisfactory, either the parents or the local educational agency
may file a civil action in any state or federal court for
"appropriate" relief. 20 U.S.C. § 1415(e)(2). The Act's "stay-put"
provision directs that a disabled child "shall remain in [his or
her] then current educational placement" pending completion of any
review proceedings, unless the parents and state or local
educational agencies otherwise agree. § 1415(e)(3). Respondents Doe
and Smith, who were emotionally disturbed students, were suspended
indefinitely for violent and disruptive conduct related to their
disabilities, pending the completion of expulsion proceedings by
the San Francisco Unified School District (SFUSD). After
unsuccessfully protesting the action against him, Doe filed a suit
in Federal District Court, in which Smith intervened, alleging that
the suspension and proposed expulsion violated the EHA, and seeking
injunctive relief against SFUSD officials and petitioner, the State
Superintendent of Public Instruction. The court entered summary
judgment for respondents on their EHA claims and issued a permanent
injunction. The Court of Appeals affirmed with slight
modifications.
Held:
1. The case is moot as to respondent Doe, who is now 24 years
old, since the Act limits eligibility to disabled children between
the ages of 3 and 21. However, the case is justiciable with respect
to respondent Smith, who continues to be eligible for EHA
educational services, since he is currently only 20 and has not yet
completed high school. This Court has jurisdiction, since there is
a reasonable likelihood that Smith
Page 484 U. S. 306
will again suffer the deprivation of EHA-mandated rights that
gave rise to this suit. Given the evidence that he is unable to
conform his conduct to socially acceptable norms, and the absence
of any suggestion that he has overcome his behavioral problems, it
is reasonable to expect that he will again engage in aggressive and
disruptive classroom misconduct. Moreover, it is unreasonable to
suppose that any future educational placement will so perfectly
suit his emotional and academic needs that further disruptions on
his part are improbable. If Smith does repeat the objectionable
conduct, it is likely that he will again be subjected to the same
type of unilateral school action in any California school district
in which he is enrolled, in light of the lack of a state-wide
policy governing local school responses to disability-related
misconduct, and petitioner's insistence that all local school
districts retain residual authority to exclude disabled children
for dangerous conduct. In light of the ponderousness of review
procedures under the Act, and the fact that an aggrieved student
will often be finished with school or otherwise ineligible for EHA
protections by the time review can be had in this Court, the
conduct Smith complained of is "capable of repetition, yet evading
review." Thus, his EHA claims are not moot. Pp.
484 U. S.
317-323.
2. The "stay-put" provision prohibits state or local school
authorities from unilaterally excluding disabled children from the
classroom for dangerous or disruptive conduct growing out of their
disabilities during the pendency of review proceedings. Section
1415(e)(3) is unequivocal in its mandate that "the child
shall remain in the then current educational placement"
(emphasis added), and demonstrates a congressional intent to strip
schools of the
unilateral authority they had traditionally
employed to exclude disabled students, particularly emotionally
disturbed students, from school. This Court will not rewrite the
statute to infer a "dangerousness" exception on the basis of
obviousness or congressional inadvertence, since, in drafting the
statute, Congress devoted close attention to
Mills v. Board of
Education of District of Columbia, 348 F.
Supp. 866, and
Pennsylvania Assn. for Retarded Children v.
Pennsylvania, 334
F. Supp. 1257, and
343 F.
Supp. 279, thereby establishing that the omission of an
emergency exception for dangerous students was intentional.
However, Congress did not leave school administrators powerless to
deal with such students, since implementing regulations allow the
use of normal, nonplacement-changing procedures, including
temporary suspensions for up to 10 schooldays for students posing
an immediate threat to others' safety, while the Act allows for
interim placements where parents and school officials are able to
agree, and authorizes
Page 484 U. S. 307
officials to file a § 1415(e)(2) suit for "appropriate"
injunctive relief where such an agreement cannot be reached. In
such a suit, § 1415(e)(3) effectively creates a presumption in
favor of the child's current educational placement which school
officials can rebut only by showing that maintaining the current
placement is substantially likely to result in injury to the
student or to others. Here, the District Court properly balanced
respondents' interests under the Act against the state and local
school officials' safety interest, and both lower courts properly
construed and applied § 1415(e)(3), except insofar as the Court of
Appeals held that a suspension exceeding 10 schooldays does not
constitute a prohibited change in placement. The Court of Appeals'
judgment is modified to that extent. Pp.
484 U. S.
323-328.
3. Insofar as the Court of Appeals' judgment affirmed the
District Court's order directing the State to provide services
directly to a disabled child where the local agency has failed to
do so, that judgment is affirmed by an equally divided Court. Pp.
484 U. S.
328-329.
793 F.2d 1470, affirmed.
BRENNAN, J., delivered the opinion of the Court as to holdings
number 1 and 2 above, in which REHNQUIST, C.J., and WHITE,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined. REHNQUIST, C.J.,
filed a concurring opinion,
post, p.
484 U. S. 329.
SCALIA, J., filed a dissenting opinion, in which O'CONNOR, J.,
joined,
post, p.
484 U. S.
332.
Page 484 U. S. 308
JUSTICE BRENNAN delivered the opinion of the Court.
As a condition of federal financial assistance, the Education of
the Handicapped Act requires States to ensure a "free appropriate
public education" for all disabled children within their
jurisdictions. In aid of this goal, the Act establishes a
comprehensive system of procedural safeguards designed to ensure
parental participation in decisions concerning the education of
their disabled children, and to provide administrative and judicial
review of any decisions with which those parents disagree. Among
these safeguards is the so-called "stay-put" provision, which
directs that a disabled child "shall remain in [his or her] then
current educational placement" pending completion of any review
proceedings, unless the parents and state or local educational
agencies otherwise agree. 20 U.S.C. § 1415(e)(3). Today we must
decide whether, in the face of this statutory proscription, state
or local school authorities may nevertheless unilaterally exclude
disabled children from the classroom for dangerous or disruptive
conduct growing out of their disabilities. In addition, we are
called upon to decide whether a district court may, in the exercise
of its equitable powers, order a State to provide educational
services directly to a disabled child when the local agency fails
to do so.
Page 484 U. S. 309
I
In the Education of the Handicapped Act (EHA or the Act), 84
Stat. 175, as amended, 20 U.S.C. § 1400
et seq., Congress
sought
"to assure that all handicapped children have available to them
. . . a free appropriate public education which emphasizes special
education and related services designed to meet their unique needs,
[and] to assure that the rights of handicapped children and their
parents or guardians are protected."
§ 1400(c). When the law was passed in 1975, Congress had before
it ample evidence that such legislative assurances were sorely
needed: 21 years after this Court declared education to be "perhaps
the most important function of state and local governments,"
Brown v. Board of Education, 347 U.
S. 483,
347 U. S. 493
(1954), congressional studies revealed that better than half of the
Nation's 8 million disabled children were not receiving appropriate
educational services. § 1400(b)(3). Indeed, one out of every eight
of these children was excluded from the public school system
altogether, § 1400(b)(4); many others were simply "warehoused" in
special classes or were neglectfully shepherded through the system
until they were old enough to drop out.
See H.R.Rep. No.
94-332, p. 2 (1975). Among the most poorly served of disabled
students were emotionally disturbed children: Congressional
statistics revealed that, for the school year immediately preceding
passage of the Act, the educational needs of 82 percent of all
children with emotional disabilities went unmet.
See
S.Rep. No. 94-168, p. 8 (1975) (hereinafter S.Rep.).
Although these educational failings resulted in part from
funding constraints, Congress recognized that the problem reflected
more than a lack of financial resources at the state and local
levels. Two federal court decisions, which the Senate Report
characterized as "landmark,"
see id. at 6, demonstrated
that many disabled children were excluded pursuant to state
statutes or local rules and policies, typically without
Page 484 U. S. 310
any consultation with, or even notice to, their parents.
See
Mills v. Board of Education of District of
Columbia, 348 F.
Supp. 866 (DC 1972);
Pennsylvania Assn. for Retarded
Children v. Pennsylvania, 334 F.
Supp. 1257 (ED Pa.1971), and
343 F.
Supp. 279 (1972) (
PARC). Indeed, by the time of the
EHA's enactment, parents had brought legal challenges to similar
exclusionary practices in 27 other States.
See S.Rep. at
6.
In responding to these problems, Congress did not content itself
with passage of a simple funding statute. Rather, the EHA confers
upon disabled students an enforceable substantive right to public
education in participating States,
see Board of Education of
Hendrick Hudson Central School Dist. v. Rowley, 458 U.
S. 176 (1982), [
Footnote
1] and conditions federal financial assistance upon a State's
compliance with the substantive and procedural goals of the Act.
Accordingly, States seeking to qualify for federal funds must
develop policies assuring all disabled children the "right to a
free appropriate public education," and must file with the
Secretary of
Page 484 U. S. 311
Education formal plans mapping out in detail the programs,
procedures, and timetables under which they will effectuate these
policies. 20 U.S.C. §§ 1412(1), 1413(a). Such plans must assure
that, "to the maximum extent appropriate," States will "mainstream"
disabled children,
i.e., that they will educate them with
children who are not disabled, and that they will segregate or
otherwise remove such children from the regular classroom setting
"only when the nature or severity of the handicap is such that
education in regular classes . . . cannot be achieved
satisfactorily." § 1412(5).
The primary vehicle for implementing these congressional goals
is the "individualized educational program" (IEP), which the EHA
mandates for each disabled child. Prepared at meetings between a
representative of the local school district, the child's teacher,
the parents or guardians, and, whenever appropriate, the disabled
child, the IEP sets out the child's present educational
performance, establishes annual and short-term objectives for
improvements in that performance, and describes the specially
designed instruction and services that will enable the child to
meet those objectives. § 1401(19). The IEP must be reviewed and,
where necessary, revised at least once a year in order to ensure
that local agencies tailor the statutorily required "free
appropriate public education" to each child's unique needs. §
1414(a)(5).
Envisioning the IEP as the centerpiece of the statute's
education delivery system for disabled children, and aware that
schools had all too often denied such children appropriate
educations without in any way consulting their parents, Congress
repeatedly emphasized throughout the Act the importance and indeed
the necessity of parental participation in both the development of
the IEP and any subsequent assessments of its effectiveness.
See §§ 1400(c), 1401 (19), 1412(7), 1415(b)(1)(A), (C),
(D), (E), and 1415(b)(2). Accordingly, the Act establishes various
procedural safeguards that guarantee parents both an opportunity
for meaningful input into all decisions affecting their child's
education and the right
Page 484 U. S. 312
to seek review of any decisions they think inappropriate. These
safeguards include the right to examine all relevant records
pertaining to the identification, evaluation, and educational
placement of their child; prior written notice whenever the
responsible educational agency proposes (or refuses) to change the
child's placement or program; an opportunity to present complaints
concerning any aspect of the local agency's provision of a free
appropriate public education; and an opportunity for "an impartial
due process hearing" with respect to any such complaints. §§
1415(b)(1), (2).
At the conclusion of any such hearing, both the parents and the
local educational agency may seek further administrative review
and, where that proves unsatisfactory, may file a civil action in
any state or federal court. §§ 1415(c), (e)(2). In addition to
reviewing the administrative record, courts are empowered to take
additional evidence at the request of either party and to "grant
such relief as [they] determine[] is appropriate." § 1415(e)(2).
The "stay-put" provision at issue in this case governs the
placement of a child while these often lengthy review procedures
run their course. It directs that:
"During the pendency of any proceedings conducted pursuant to [§
1415], unless the State or local educational agency and the parents
or guardian otherwise agree, the child shall remain in the then
current educational placement of such child. . . ."
§ 1415(e)(3).
The present dispute grows out of the efforts of certain
officials of the San Francisco Unified School District (SFUSD) to
expel two emotionally disturbed children from school indefinitely
for violent and disruptive conduct related to their disabilities.
In November, 1980, respondent John Doe assaulted another student at
the Louise Lombard School, a developmental center for disabled
children. Doe's April, 1980, IEP identified him as a socially and
physically awkward 17-year-old who experienced considerable
difficulty controlling his impulses and anger. Among the goals set
out in his IEP was "[i]mprovement in [his] ability to relate to
[his]
Page 484 U. S. 313
peers [and to] cope with frustrating situations without
resorting to aggressive acts." App. 17. Frustrating situations,
however, were an unfortunately prominent feature of Doe's school
career: physical abnormalities, speech difficulties, and poor
grooming habits had made him the target of teasing and ridicule as
early as the first grade,
id. at 23; his 1980 IEP
reflected his continuing difficulties with peers, noting that his
social skills had deteriorated, and that he could tolerate only
minor frustration before exploding.
Id. at 15-16.
On November 6, 1980, Doe responded to the taunts of a fellow
student in precisely the explosive manner anticipated by his IEP:
he choked the student with sufficient force to leave abrasions on
the child's neck, and kicked out a school window while being
escorted to the principal's office afterwards.
Id. at 208.
Doe admitted his misconduct, and the school subsequently suspended
him for five days. Thereafter, his principal referred the matter to
the SFUSD Student Placement Committee (SPC or Committee) with the
recommendation that Doe be expelled. On the day the suspension was
to end, the SPC notified Doe's mother that it was proposing to
exclude her child permanently from SFUSD, and was therefore
extending his suspension until such time as the expulsion
proceedings were completed. [
Footnote 2] The Committee further advised her that she was
entitled to attend the November 25 hearing, at which it planned to
discuss the proposed expulsion.
After unsuccessfully protesting these actions by letter, Doe
brought this suit against a host of local school officials
Page 484 U. S. 314
and the State Superintendent of Public Instruction. Alleging
that the suspension and proposed expulsion violated the EHA, he
sought a temporary restraining order canceling the SPC hearing and
requiring school officials to convene an IEP meeting. The District
Judge granted the requested injunctive relief, and further ordered
defendants to provide home tutoring for Doe on an interim basis;
shortly thereafter, she issued a preliminary injunction directing
defendants to return Doe to his then current educational placement
at Louise Lombard School pending completion of the IEP review
process. Doe reentered school on December 15, 5 1/2 weeks and 24
schooldays, after his initial suspension.
Respondent Jack Smith was identified as an emotionally disturbed
child by the time he entered the second grade in 1976. School
records prepared that year indicated that he was unable "to control
verbal or physical outburst[s]" and exhibited a "[s]evere
disturbance in relationships with peers and adults."
Id.
at 123. Further evaluations subsequently revealed that he had been
physically and emotionally abused as an infant and young child, and
that, despite above average intelligence, he experienced academic
and social difficulties as a result of extreme hyperactivity and
low self-esteem.
Id. at 136, 139, 155, 176. Of particular
concern was Smith's propensity for verbal hostility; one evaluator
noted that the child reacted to stress by "attempt[ing] to cover
his feelings of low self-worth through aggressive behavior[,] . . .
primarily verbal provocations."
Id. at 136.
Based on these evaluations, SFUSD placed Smith in a learning
center for emotionally disturbed children. His grandparents,
however, believed that his needs would be better served in the
public school setting, and, in September, 1979, the school district
acceded to their requests and enrolled him at A.P. Giannini Middle
School. His February, 1980, IEP recommended placement in a Learning
Disability Group, stressing the need for close supervision and a
highly structured environment.
Id. at 111. Like earlier
evaluations,
Page 484 U. S. 315
the February, 1980, IEP noted that Smith was easily distracted,
impulsive, and anxious; it therefore proposed a half-day schedule,
and suggested that the placement be undertaken on a trial basis.
Id. at 112, 115.
At the beginning of the next school year, Smith was assigned to
a full-day program; almost immediately thereafter, he began
misbehaving. School officials met twice with his grandparents in
October, 1980 to discuss returning him to a half-day program;
although the grandparents agreed to the reduction, they apparently
were never apprised of their right to challenge the decision
through EHA procedures. The school officials also warned them that,
if the child continued his disruptive behavior -- which included
stealing, extorting money from fellow students, and making sexual
comments to female classmates -- they would seek to expel him. On
November 14, they made good on this threat, suspending Smith for
five days after he made further lewd comments. His principal
referred the matter to the SPC, which recommended exclusion from
SFUSD. As it did in John Doe's case, the Committee scheduled a
hearing and extended the suspension indefinitely pending a final
disposition in the matter. On November 28, Smith's counsel
protested these actions on grounds essentially identical to those
raised by Doe, and the SPC agreed to cancel the hearing and to
return Smith to a half-day program at A.P. Giannini or to provide
home tutoring. Smith's grandparents chose the latter option and the
school began home instruction on December 10; on January 6, 1981,
an IEP team convened to discuss alternative placements.
After learning of Doe's action, Smith sought and obtained leave
to intervene in the suit. The District Court subsequently entered
summary judgment in favor of respondents on their EHA claims, and
issued a permanent injunction. In a series of decisions, the
District Judge found that the proposed expulsions and indefinite
suspensions of respondents for conduct attributable to their
disabilities deprived
Page 484 U. S. 316
them of their congressionally mandated right to a free
appropriate public education, as well as their right to have that
education provided in accordance with the procedures set out in the
EHA. The District Judge therefore permanently enjoined the school
district from taking any disciplinary action other than a 2- or
5-day suspension against any disabled child for disability-related
misconduct, or from effecting any other change in the educational
placement of any such child without parental consent pending
completion of any EHA proceedings. In addition, the judge barred
the State from authorizing unilateral placement changes, and
directed it to establish an EHA compliance-monitoring system or,
alternatively, to enact guidelines governing local school responses
to disability-related misconduct. Finally, the judge ordered the
State to provide services directly to disabled children when, in
any individual case, the State determined that the local
educational agency was unable or unwilling to do so.
On appeal, the Court of Appeals for the Ninth Circuit affirmed
the orders with slight modifications.
Doe v. Maher, 793
F.2d 1470 (1986). Agreeing with the District Court that an
indefinite suspension in aid of expulsion constitutes a prohibited
"change in placement" under § 1415(e)(3), the Court of Appeals held
that the stay-put provision admitted of no "dangerousness"
exception and that the statute therefore rendered invalid those
provisions of the California Education Code permitting the
indefinite suspension or expulsion of disabled children for
misconduct arising out of their disabilities. The court concluded,
however, that fixed suspensions of up to 30 schooldays did not fall
within the reach of § 1415(e)(3), and therefore upheld recent
amendments to the state Education Code authorizing such
suspensions. [
Footnote 3]
Lastly, the court
Page 484 U. S. 317
affirmed that portion of the injunction requiring the State to
provide services directly to a disabled child when the local
educational agency fails to do so.
Petitioner Bill Honig, California Superintendent of Public
Instruction, [
Footnote 4]
sought review in this Court, claiming that the Court of Appeals'
construction of the stay-put provision conflicted with that of
several other Courts of Appeals which had recognized a
dangerousness exception,
compare Doe v. Maher, supra,
(case below),
with Jackson v. Franklin County School
Board, 765 F.2d 535, 538 (CA5 1985);
Victoria L. v.
District School Bd. of Lee County, Fla., 741 F.2d 369, 374
(CA11 1984);
S-1 v. Turlington, 635 F.2d 342, 348, n. 9
(CA5),
cert. denied, 454 U.S. 1030 (1981), and that the
direct services ruling placed an intolerable burden on the State.
We granted certiorari to resolve these questions, 479 U.S. 1084
(1987), and now affirm.
II
At the outset, we address the suggestion, raised for the first
time during oral argument, that this case is moot. [
Footnote 5] Under Article III of the
Constitution, this Court may only adjudicate actual, ongoing
controversies.
Nebraska Press Assn. v. Stuart,
427 U. S. 539,
427 U. S. 546
(1976);
Preiser v. Newkirk, 422 U.
S. 395,
422 U. S. 401
(1975). That the dispute between the parties was very much alive
when suit was filed, or at the time the Court of Appeals rendered
its judgment, cannot substitute for the actual case or controversy
that an exercise of this Court's jurisdiction requires.
Steffel v.
Thompson,
Page 484 U. S. 318
415 U. S. 452,
415 U. S. 459,
n. 10 (1974);
Roe v. Wade, 410 U.
S. 113,
410 U. S. 125
(1973). In the present case, we have jurisdiction if there is a
reasonable likelihood that respondents will again suffer the
deprivation of EHA-mandated rights that gave rise to this suit. We
believe that, at least with respect to respondent Smith, such a
possibility does in fact exist, and that the case therefore remains
justiciable.
Respondent John Doe is now 24 years old and, accordingly, is no
longer entitled to the protections and benefits of the EHA, which
limits eligibility to disabled children between the ages of 3 and
21.
See 20 U.S.C. § 1412(2)(B). It is clear, therefore,
that whatever rights to state educational services he may yet have
as a ward of the State,
see Tr. of Oral Arg. 23, 26, the
Act would not govern the State's provision of those services, and
thus the case is moot as to him. Respondent Jack Smith, however, is
currently 20, and has not yet completed high school. Although, at
present, he is not faced with any proposed expulsion or suspension
proceedings, and indeed no longer even resides within the SFUSD, he
remains a resident of California and is entitled to a "free
appropriate public education" within that State. His claims under
the EHA, therefore, are not moot if the conduct he originally
complained of is "
capable of repetition, yet evading review.'"
Murphy v. Hunt, 455 U. S. 478,
455 U. S. 482
(1982). Given Smith's continued eligibility for educational
services under the EHA, [Footnote
6] the nature of his disability, and petitioner's
Page 484 U. S. 319
insistence that all local school districts retain residual
authority to exclude disabled children for dangerous conduct, we
have little difficulty concluding that there is a "reasonable
Page 484 U. S. 320
expectation,"
ibid., that Smith would once again be
subjected to a unilateral "change in placement" for conduct growing
out of his disabilities were it not for the statewide injunctive
relief issued below.
Our cases reveal that, for purposes of assessing the likelihood
that state authorities will reinflict a given injury, we generally
have been unwilling to assume that the party seeking relief will
repeat the type of misconduct that would once again place him or
her at risk of that injury.
See Los Angeles v. Lyons,
461 U. S. 95,
461 U. S.
105-106 (1983) (no threat that party seeking injunction
barring police use of chokeholds would be stopped again for traffic
violation or other offense, or would resist arrest if stopped);
Murphy v. Hunt, supra, at
455 U. S. 484
(no reason to believe that party challenging denial of pretrial
bail "will once again be in a position to demand bail");
O'shea
v. Littleton, 414 U. S. 488,
414 U. S. 497
(1974) (unlikely that parties challenging discriminatory
bond-setting, sentencing, and jury-fee practices would again
violate valid criminal laws). No such reluctance, however, is
warranted here. It is respondent Smith's very inability to conform
his conduct to socially acceptable norms that renders him
"handicapped" within the meaning of the EHA.
See 20 U.S.C.
§ 1401(1); 34 CFR § 300.5(b)(8) (1987). As noted above, the record
is replete with evidence that Smith is unable to govern his
aggressive, impulsive behavior -- indeed, his notice of suspension
acknowledged that "Jack's actions seem beyond his control." App.
152. In the absence of any suggestion that respondent has overcome
his earlier difficulties, it is certainly reasonable to expect,
based on his prior history of behavioral problems, that he will
again engage in classroom misconduct. Nor is it reasonable to
suppose that Smith's future educational placement will so perfectly
suit his emotional and academic needs that further disruptions on
his part are improbable. Although JUSTICE SCALIA suggests in his
dissent,
post at
484 U. S. 338,
that school officials are unlikely to place Smith in a setting
where they cannot control his misbehavior, any efforts
Page 484 U. S. 321
to ensure such total control must be tempered by the school
system's statutory obligations to provide respondent with a free
appropriate public education in "the least restrictive
environment," 34 CFR § 300.552(d) (1987); to educate him, "to the
maximum extent appropriate," with children who are not disabled, 20
U.S.C. § 1412(5); and to consult with his parents or guardians, and
presumably with respondent himself, before choosing a placement. §§
1401 (19), 1415 (b). Indeed, it is only by ignoring these mandates,
as well as Congress' unquestioned desire to wrest from school
officials their former unilateral authority to determine the
placement of emotionally disturbed children,
see infra at
484 U. S.
323-324, that the dissent can so readily assume that
respondent's future placement will satisfactorily prevent any
further dangerous conduct on his part. Overarching these statutory
obligations, moreover, is the inescapable fact that the preparation
of an IEP, like any other effort at predicting human behavior, is
an inexact science, at best. Given the unique circumstances and
context of this case, therefore, we think it reasonable to expect
that respondent will again engage in the type of misconduct that
precipitated this suit.
We think it equally probable that, should he do so, respondent
will again be subjected to the same unilateral school action for
which he initially sought relief. In this regard, it matters not
that Smith no longer resides within the SFUSD. While the actions of
SFUSD officials first gave rise to this litigation, the District
Judge expressly found that the lack of a state policy governing
local school responses to disability-related misconduct had led to,
and would continue to result in, EHA violations, and she therefore
enjoined the state defendant from authorizing, among other things,
unilateral placement changes. App. 247-248. She of course also
issued injunctions directed at the local defendants, but they did
not seek review of those orders in this Court. Only petitioner, the
State Superintendent of Public Instruction, has invoked our
jurisdiction, and he now urges us to hold that
Page 484 U. S. 322
local school districts retain unilateral authority under the EHA
to suspend or otherwise remove disabled children for dangerous
conduct. Given these representations, we have every reason to
believe that, were it not for the injunction barring petitioner
from authorizing such unilateral action, respondent would be faced
with a real and substantial threat of such action in any California
school district in which he enrolled.
Cf. Los Angeles v. Lyons,
supra, at
461 U. S. 106
(respondent lacked standing to seek injunctive relief because he
could not plausibly allege that police officers choked all persons
whom they stopped, or that the city "
authorized police
officers to act in such manner" (emphasis added)). Certainly, if
the SFUSD's past practice of unilateral exclusions was at odds with
state policy and the practice of local school districts generally,
petitioner would not now stand before us seeking to defend the
right of all local school districts to engage in such aberrant
behavior. [
Footnote 7]
We have previously noted that administrative and judicial review
under the EHA is often "ponderous,"
Burlington School Committee
v. Massachusetts Dept. of Education, 471 U.
S. 359,
471 U. S. 370
(1985), and this case, which has taken seven years to reach us,
amply confirms that observation. For obvious reasons, the
misconduct of an emotionally disturbed or otherwise disabled child
who has not yet reached adolescence typically will not pose such a
serious threat to the wellbeing of other students that school
officials can only ensure classroom safety by excluding the child.
Yet, the adolescent student improperly disciplined for misconduct
that does pose such a threat will often be finished with school or
otherwise
Page 484 U. S. 323
ineligible for EHA protections by the time review can be had in
this Court. Because we believe that respondent Smith has
demonstrated both "a sufficient likelihood that he will again be
wronged in a similar way,"
Los Angeles v. Lyons, 461 U.S.
at
461 U. S. 111,
and that any resulting claim he may have for reIief will surely
evade our review, we turn to the merits of his case.
III
The language of § 1415(e)(3) is unequivocal. It states plainly
that, during the pendency of any proceedings initiated under the
Act, unless the state or local educational agency and the parents
or guardian of a disabled child otherwise agree, "the child
shall remain in the then current educational placement." §
1415(e)(3) (emphasis added). Faced with this clear directive,
petitioner asks us to read a "dangerousness" exception into the
stay-put provision on the basis of either of two essentially
inconsistent assumptions: first, that Congress thought the residual
authority of school officials to exclude dangerous students from
the classroom too obvious for comment; or second, that Congress
inadvertently failed to provide such authority, and this Court must
therefore remedy the oversight. Because we cannot accept either
premise, we decline petitioner's invitation to rewrite the
statute.
Petitioner's arguments proceed, he suggests, from a simple,
common sense proposition: Congress could not have intended the
stay-put provision to be read literally, for such a construction
leads to the clearly unintended, and untenable, result that school
districts must return violent or dangerous students to school while
the often lengthy EHA proceedings run their course. We think it
clear, however, that Congress very much meant to strip schools of
the
unilateral authority they had traditionally employed
to exclude disabled students, particularly emotionally disturbed
students, from school. In so doing, Congress did not leave school
administrators powerless to deal with dangerous students; it did,
however, deny school officials their former right to "self-help,"
and directed
Page 484 U. S. 324
that, in the future, the removal of disabled students could be
accomplished only with the permission of the parents or, as a last
resort, the courts.
As noted above, Congress passed the EHA after finding that
school systems across the country had excluded one out of every
eight disabled children from classes. In drafting the law, Congress
was largely guided by the recent decisions in
Mills v. Board of
Education of District of Columbia, 348 F.
Supp. 866 (1972), and
PARC, 343 F.
Supp. 279 (1972), both of which involved the exclusion of
hard-to-handle disabled students.
Mills, in particular,
demonstrated the extent to which schools used disciplinary measures
to bar children from the classroom. There, school officials had
labeled four of the seven minor plaintiffs "behavioral problems,"
and had excluded them from classes without providing any
alternative education to them or any notice to their parents. 348
F. Supp. at 869-870. After finding that this practice was not
limited to the named plaintiffs, but affected in one way or another
an estimated class of 12,000 to 18,000 disabled students,
id. at 868-869, 875, the District Court enjoined future
exclusions, suspensions, or expulsions "on grounds of discipline."
Id. at 880.
Congress attacked such exclusionary practices in a variety of
ways. It required participating States to educate all disabled
children, regardless of the severity of their disabilities, 20
U.S.C. § 1412(2)(C), and included within the definition of
"handicapped" those children with serious emotional disturbances. §
1401(1). It further provided for meaningful parental participation
in all aspects of a child's educational placement, and barred
schools, through the stay-put provision, from changing that
placement over the parent's objection until all review proceedings
were completed. Recognizing that those proceedings might prove long
and tedious, the Act's drafters did not intend § 1415(e)(3) to
operate inflexibly,
see 121 Cong.Rec. 37412 (1975)
(remarks of Sen. Stafford), and they therefore allowed for interim
placements where parents
Page 484 U. S. 325
and school officials are able to agree on one. Conspicuously
absent from § 1415(e)(3), however, is any emergency exception for
dangerous students. This absence is all the more telling in light
of the injunctive decree issued in
PARC, which permitted
school officials unilaterally to remove students in
"
extraordinary circumstances.'" 343 F. Supp. at 301. Given the
lack of any similar exception in Mills and the close
attention Congress devoted to these "landmark" decisions,
see S.Rep. at 6, we can only conclude that the omission
was intentional; we are therefore not at liberty to engraft onto
the statute an exception Congress chose not to create.
Our conclusion that § 1415(e)(3) means what it says does not
leave educators hamstrung. The Department of Education has observed
that,
"[w]hile the [child's] placement may not be changed [during any
complaint proceeding], this does not preclude the agency from using
its normal procedures for dealing with children who are endangering
themselves or others."
Comment following 34 CFR § 300.513 (1987). Such procedures may
include the use of study carrels, timeouts, detention, or the
restriction of privileges. More drastically, where a student poses
an immediate threat to the safety of others, officials may
temporarily suspend him or her for up to 10 schooldays. [
Footnote 8] This authority, which
respondent
Page 484 U. S. 326
in no way disputes, not only ensures that school administrators
can protect the safety of others by promptly removing the most
dangerous of students, it also provides a "cooling down" period
during which officials can initiate IEP review and seek to persuade
the child's parents to agree to an interim placement. And in those
cases in which the parents of a truly dangerous child adamantly
refuse to permit any change in placement, the 10-day respite gives
school officials an opportunity to invoke the aid of the courts
under § 1415(e)(2), which empowers courts to grant any appropriate
relief
Petitioner contends, however, that the availability of judicial
relief is more illusory than real, because a party seeking review
under § 1415(e)(2) must exhaust time-consuming administrative
remedies, and because, under the Court of Appeals' construction of
§ 1415(e)(3), courts are as bound by the stay-put provision's
"automatic injunction," 793 F.2d at 1486, as are schools. [
Footnote 9] It is true that judicial
review is normally
Page 484 U. S. 327
not available under § 1415(e)(2) until all administrative
proceedings are completed, but, as we have previously noted,
parents may bypass the administrative process where exhaustion
would be futile or inadequate.
See Smith v. Robinson,
468 U. S. 992,
468 U. S.
1014, n. 17 (1984) (citing cases);
see also 121
Cong.Rec. 37416 (1975) (remarks of Sen. Williams) ("[E]xhaustion .
. . should not be required . . . in cases where such exhaustion
would be futile either as a legal or practical matter"). While many
of the EHA's procedural safeguards protect the rights of parents
and children, schools can and do seek redress through the
administrative review process, and we have no reason to believe
that Congress meant to require schools alone to exhaust in all
cases, no matter how exigent the circumstances. The burden in such
cases, of course, rests with the school to demonstrate the futility
or inadequacy of administrative review, but nothing in § 1415(e)(2)
suggests that schools are completely barred from attempting to make
such a showing. Nor do we think that § 1415(e)(3) operates to limit
the equitable powers of district courts such that they cannot, in
appropriate cases, temporarily enjoin a dangerous disabled child
from attending school. As the EHA's legislative history makes
clear, one of the evils Congress sought to remedy was the
unilateral exclusion of disabled children by
schools, not
courts, and one of the purposes of § 1415(e)(3), therefore, was
"to prevent
school officials from removing a child from
the regular public school classroom over the parents' objection
pending completion of the review proceedings."
Burlington School Committee v. Massachusetts Dept. of
Education, 471 U.S. at
471 U. S. 373
(emphasis added). The stay-put provision in no way purports to
limit or preempt the authority conferred on courts by § 1415(e)(2),
see Doe v. Brookline School Committee, 722 F.2d 910, 917
(CA1 1983); indeed, it says nothing whatever about judicial
power.
Page 484 U. S. 328
In short, then, we believe that school officials are entitled to
seek injunctive relief under § 1415(e)(2) in appropriate cases. In
any such action, § 1415(e)(3) effectively creates a presumption in
favor of the child's current educational placement which school
officials can overcome only by showing that maintaining the child
in his or her current placement is substantially likely to result
in injury either to himself or herself or to others. In the present
case, we are satisfied that the District Court, in enjoining the
state and local defendants from indefinitely suspending respondent
or otherwise unilaterally altering his then current placement,
properly balanced respondent's interest in receiving a free
appropriate public education in accordance with the procedures and
requirements of the EHA against the interests of the state and
local school officials in maintaining a safe learning environment
for all their students. [
Footnote 10]
IV
We believe the courts below properly construed and applied §
1415(e)(3), except insofar as the Court of Appeals held that a
suspension in excess of 10 schooldays does not constitute
Page 484 U. S. 329
a "change in placement." [
Footnote 11] We therefore affirm the Court of Appeals'
judgment on this issue, as modified herein. Because we are equally
divided on the question whether a court may order a State to
provide services directly to a disabled child where the local
agency has failed to do so, we affirm the Court of Appeals'
judgment on this issue as well.
Affirmed.
[
Footnote 1]
Congress' earlier efforts to ensure that disabled students
received adequate public education had failed in part because the
measures it adopted were largely hortatory. In the 1966 amendments
to the Elementary and Secondary Education Act of 1965, Congress
established a grant program
"for the purpose of assisting the States in the initiation,
expansion, and improvement of programs and projects . . . for the
education of handicapped children."
Pub.L. 89-750, § 161, 80 Stat. 1204. It repealed that program
four years later, and replaced it with the original version of the
Education of the Handicapped Act, Pub.L. 91-230, 84 Stat. 175, Part
B of which contained a similar grant program. Neither statute,
however, provided specific guidance as to how States were to use
the funds, nor did they condition the availability of the grants on
compliance with any procedural or substantive safeguards. In
amending the EHA to its present form, Congress rejected its earlier
policy of "merely establish[ing] an unenforceable goal requiring
all children to be in school." 121 Cong.Rec. 37417 (1975) (remarks
of Sen. Schweiker). Today, all 50 States and the District of
Columbia receive funding assistance under the EHA. U.S.Dept. of
Education, Ninth Annual Report to Congress on Implementation of
Education of the Handicapped Act (1987).
[
Footnote 2]
California law at the time empowered school principals to
suspend students for no more than five consecutive schooldays,
Cal.Educ.Code Ann. § 48903(a) (West 1978), but permitted school
districts seeking to expel a suspended student to
"extend the suspension until such time as [expulsion proceedings
were completed]; provided, that [it] has determined that the
presence of the pupil at the school or in an alternative school
placement would cause a danger to persons or property or a threat
of disrupting the instructional process."
§ 48903(h). The State subsequently amended the law to permit
school districts to impose longer initial periods of suspension.
See n 3,
infra.
[
Footnote 3]
In 1983, the State amended its Education Code to permit school
districts to impose initial suspensions of 20, and, in certain
circumstances, 30 schooldays. Cal.Educ.Code Ann. §§ 48912(a), 48903
(West Supp.1988). The legislature did not alter the indefinite
suspension authority which the SPC exercised in this case, but
simply incorporated the earlier provision into a new section.
See § 48911(g).
[
Footnote 4]
At the time respondent Doe initiated this suit, Wilson Riles was
the California Superintendent of Public Instruction. Petitioner
Honig succeeded him in office.
[
Footnote 5]
We note that both petitioner and respondents believe that this
case presents a live controversy.
See Tr. of Oral Arg. 6,
27-31. Only the United States, appearing as
amicus curiae,
urges that the case is presently nonjusticiable.
Id. at
21.
[
Footnote 6]
Notwithstanding respondent's undisputed right to a free
appropriate public education in California, JUSTICE SCALIA argues
in dissent that there is no "demonstrated probability" that Smith
will actually avail himself of that right, because his counsel was
unable to state affirmatively during oral argument that her client
would seek to reenter the state school system.
See post at
484 U. S. 337.
We believe the dissent overstates the stringency of the "capable of
repetition" test. Although JUSTICE SCALIA equates "reasonable
expectation" with "demonstrated probability," the very case he
cites for this proposition described these standards in the
disjunctive,
see Murphy v. Hunt, 455 U.S. at
455 U. S. 482
("[T]here must be a
reasonable expectation' or a
`demonstrated probability' that the same controversy will recur"
(emphasis added)), and, in numerous cases decided both before and
since Hunt, we have found controversies capable of
repetition based on expectations that, while reasonable, were
hardly demonstrably probable. See, e.g., Burlington Northern R.
Co. v. Maintenance of Way Employes, 481 U.
S. 429, 481 U. S. 436,
n. 4 (1987) (parties "reasonably likely" to find themselves in
future disputes over collective bargaining agreement);
California Coastal Comm'n v. Granite Rock Co.,
480 U. S. 572,
480 U. S. 578
(1987) (O'CONNOR, J.) ("likely" that respondent would again submit
mining plans that would trigger contested state permit
requirement); Press-Enterprise Co. v. Superior Court of Cal.,
Riverside County, 478 U. S. 1,
478 U. S. 6 (1986)
("It can reasonably be assumed" that newspaper publisher will be
subjected to similar closure order in the future); Globe
Newspaper Co. v. Superior Court of Norfolk County,
457 U. S. 596,
457 U. S. 603
(1982) (same); United States Parole Comm'n v. Geraghty,
445 U. S. 388,
455 U. S. 398
(1980) (case not moot where litigant "faces some likelihood of
becoming involved in same controversy in the future") (dicta). Our
concern in these cases, as in all others involving potentially moot
claims, was whether the controversy was capable of repetition and
not, as the dissent seems to insist, whether the claimant had
demonstrated that a recurrence of the dispute was more probable
than not. Regardless, then, of whether respondent has established
with mathematical precision the likelihood that he will enroll in
public school during the next two years, we think there is at the
very least a reasonable expectation that he will exercise his
rights under the EHA. In this regard, we believe respondent's
actions over the course of the last seven years speak louder than
his counsel's momentary equivocation during oral argument. Since
1980, he has sought to vindicate his right to an appropriate public
education that is not only free of charge but also free from the
threat that school officials will unilaterally change his placement
or exclude him from class altogether. As a disabled young man, he
has as at least as great a need of a high school education and
diploma as any of his peers, and his counsel advises us that he is
awaiting the outcome of this case to decide whether to pursue his
degree. Tr. Oral Arg. 23-24. Under these circumstances, we think it
not only counterintuitive but also unreasonable to assume that
respondent will forgo the exercise of a right that he has for so
long sought to defend. Certainly we have as much reason to expect
that respondent will reenter the California school system as we had
to assume that Jane Roe would again both have an unwanted pregnancy
and wish to exercise her right to an abortion. See Roe v.
Wade, 410 U. S. 113,
410 U. S. 125
(1973).
[
Footnote 7]
Petitioner concedes that the school district "made a number of
procedural mistakes in its eagerness to protect other students from
Doe and Smith." Reply Brief for Petitioner 6. According to
petitioner, however, unilaterally excluding respondents from school
was not among them; indeed, petitioner insists that the SFUSD acted
properly in removing respondents, and urges that the stay-put
provision "should not be interpreted to require a school district
to maintain such dangerous children with other children."
Id. at 6-7.
[
Footnote 8]
The Department of Education has adopted the position, first
espoused in 1980 by its Office of Civil Rights, that a suspension
of up to 10 schooldays does not amount to a "change in placement"
prohibited by § 1415(e)(3). U.S. Dept. of Education, Office of
Special Education Programs, Policy Letter (Feb. 26, 1987), Ed. for
Handicapped L.Rep. 211:437 (1987). The EHA nowhere defines the
phrase "change in placement," nor does the statute's structure or
legislative history provide any guidance as to how the term applies
to fixed suspensions. Given this ambiguity, we defer to the
construction adopted by the agency charged with monitoring and
enforcing the statute.
See INS v. Cardoza-Fonseca,
480 U. S. 421,
480 U. S. 448
(1987). Moreover the agency's position comports fully with the
purposes of the statute: Congress sought to prevent schools from
permanently and unilaterally excluding disabled children by means
of indefinite suspensions and expulsions; the power to impose fixed
suspensions of short duration does not carry the potential for
total exclusion that Congress found so objectionable. Indeed,
despite its broad injunction, the District Court in
Mills v.
Board of Education of District of Columbia, 348 F.
Supp. 866 (DC 1972), recognized that school officials could
suspend disabled children on a short-term, temporary basis.
See
id. at 880.
Cf. Goss v. Lopez, 419 U.
S. 565,
419 U. S.
574-576 (1975) (suspension of 10 schooldays or more
works a sufficient deprivation of property and liberty interests to
trigger the protections of the Due Process Clause). Because we
believe the agency correctly determined that a suspension in excess
of 10 days does constitute a prohibited "change in placement," we
conclude that the Court of Appeals erred to the extent it approved
suspensions of 20 and 30 days' duration.
[
Footnote 9]
Petitioner also notes that, in California, schools may not
suspend any given student for more than a total of 20 and, in
certain special circumstances, 30, schooldays in a single year,
see Cal.Educ.Code Ann. § 48903 (West Supp.1988); he
argues, therefore, that a school district may not have the option
of imposing a 10-day suspension when dealing with an obstreperous
child whose previous suspensions for the year total 18 or 19 days.
The fact remains, however, that state law does not define the scope
of § 1415(e)(3). There may be cases in which a suspension that is
otherwise valid under the stay-put provision would violate local
law. The effect of such a violation, however, is a question of
state law upon which we express no view.
[
Footnote 10]
We therefore reject the United States' contention that the
District Judge abused her discretion in enjoining the local school
officials from indefinitely suspending respondent pending
completion of the expulsion proceedings. Contrary to the
Government's suggestion, the District Judge did not view herself
bound to enjoin any and all violations of the stay-put provision,
but rather, consistent with the analysis we set out above, weighed
the relative harms to the parties and found that the balance tipped
decidedly in favor of respondent. App. 222-223. We of course do not
sit to review the factual determinations underlying that
conclusion. We do note, however, that, in balancing the parties'
respective interests, the District Judge gave proper consideration
to respondent's rights under the EHA. While the Government
complains that the District Court indulged an improper presumption
of irreparable harm to respondent, we do not believe that school
officials can escape the presumptive effect of the stay-put
provision simply by violating it and forcing parents to petition
for relief. In any suit brought by parents seeking injunctive
relief for a violation of § 1415(e)(3), the burden rests with the
school district to demonstrate that the educational
status
quo must be altered.
[
Footnote 11]
See n 8,
supra.
CHIEF JUSTICE REHNQUIST, concurring.
I write separately on the mootness issue in this case to explain
why I have joined Part II of the Court's opinion, and why I think
reconsideration of our mootness jurisprudence may be in order when
dealing with cases decided by this Court.
The present rule in federal cases is that an actual controversy
must exist at all stages of appellate review, not merely at the
time the complaint is filed. This doctrine was clearly articulated
in
United States v. Munsingwear, Inc., 340 U. S.
36 (1950), in which Justice Douglas noted that
"[t]he established practice of the Court in dealing with a civil
case from a court in the federal system which has become moot while
on its way here or pending our decision on the merits is to reverse
or vacate the judgment below and remand with a direction to
dismiss."
Id. at
340 U. S. 39.
The rule has been followed fairly consistently over the last 30
years.
See, e.g., Preiser v. Newkirk, 422 U.
S. 395 (1975);
SEC v. Medical Committee for Human
Rights, 404 U. S. 403
(1972).
All agree that this case was "very much alive,"
ante at
484 U. S. 317,
when the action was filed in the District Court, and very probably
when the Court of Appeals decided the case. It is supervening
events since the decision of the Court of Appeals which have caused
the dispute between the majority and the dissent over whether this
case is moot. Therefore, all that the Court actually
holds
is that these supervening events do
Page 484 U. S. 330
not deprive
this Court of the authority to hear the
case. I agree with that holding, and would go still further in the
direction of relaxing the test of mootness where the events giving
rise to the claim of mootness have occurred after our decision to
grant certiorari or to note probable jurisdiction.
The Court implies in its opinion, and the dissent expressly
states, that the mootness doctrine is based upon Art. III of the
Constitution. There is no doubt that our recent cases have taken
that position.
See Nebraska Press Assn. v. Stuart,
427 U. S. 539,
427 U. S. 546
(1976);
Preiser v. Newkirk, supra, at
422 U. S. 401;
Sibron v. New York, 392 U. S. 40,
392 U. S. 57
(1968);
Liner v. Jafco, Inc., 375 U.
S. 301,
375 U. S. 306,
n. 3 (1964). But it seems very doubtful that the earliest case I
have found discussing mootness,
Mills v. Green,
159 U. S. 651
(1895), was premised on constitutional constraints; Justice Gray's
opinion in that case nowhere mentions Art. III.
If it were indeed Art. III which -- by reason of its requirement
of a case or controversy for the exercise of federal judicial power
-- underlies the mootness doctrine, the "capable of repetition, yet
evading review" exception relied upon by the Court in this case
would be incomprehensible. Article III extends the judicial power
of the United States only to cases and controversies; it does not
except from this requirement other lawsuits which are "capable of
repetition, yet evading review." If our mootness doctrine were
forced upon us by the case or controversy requirement of Art. III
itself, we would have no more power to decide lawsuits which are
"moot" but which also raise questions which are capable of
repetition but evading review than we would to decide cases which
are "moot" but raise no such questions.
The exception to mootness for cases which are "capable of
repetition, yet evading review," was first stated by this Court in
Southern Pacific Terminal Co. v. ICC, 219 U.
S. 498 (1911). There the Court enunciated the exception
in the light of obvious pragmatic considerations, with no mention
of Art. III as the principle underlying the mootness doctrine:
Page 484 U. S. 331
"The questions involved in the orders of the Interstate Commerce
Commission are usually continuing (as are manifestly those in the
case at bar), and their consideration ought not to be, as they
might be, defeated, by short-term orders, capable of repetition,
yet evading review, and at one time the Government and at another
time the carriers have their rights determined by the Commission
without a chance of redress."
Id. at
219 U. S.
515.
The exception was explained again in
Moore v. Ogilvie,
394 U. S. 814,
394 U. S. 816
(1969):
"The problem is therefore 'capable of repetition, yet evading
review.' The need for its resolution thus reflects a continuing
controversy in the federal-state area where our 'one man, one vote'
decisions have thrust."
(Citation omitted). It is also worth noting that
Moore v.
Ogilvie involved a question which had been mooted by an
election, just as did
Mills v. Green some 74 years
earlier. But at the time of
Mills, the case originally
enunciating the mootness doctrine, there was no thought of any
exception for cases which were "capable of repetition, yet evading
review."
The logical conclusion to be drawn from these cases, and from
the historical development of the principle of mootness, is that,
while an unwillingness to decide moot cases may be connected to the
case or controversy requirement of Art. III, it is an attenuated
connection that may be overridden where there are strong reasons to
override it. The "capable of repetition, yet evading review"
exception is an example. So too is our refusal to dismiss as moot
those cases in which the defendant voluntarily ceases, at some
advanced stage of the appellate proceedings, whatever activity
prompted the plaintiff to seek an injunction.
See, e.g., City
of Mesquite v. Aladdin's Castle, Inc., 455 U.
S. 283,
455 U. S. 289,
n. 10 (1982);
United States v. W. T. Grant Co.,
345 U. S. 629,
345 U. S. 632
(1953). I believe that we should adopt an additional exception to
our
Page 484 U. S. 332
present mootness doctrine for those cases where the events which
render the case moot have supervened since our grant of certiorari
or noting of probable jurisdiction in the case. Dissents from
denial of certiorari in this Court illustrate the proposition that
the roughly 150 or 160 cases which we decide each year on the
merits are less than the number of cases warranting review by us if
we are to remain, as Chief Justice Taft said many years ago, "the
last word on every important issue under the Constitution and the
statutes of the United States." But these unique resources -- the
time spent preparing to decide the case by reading briefs, hearing
oral argument, and conferring -- are squandered in every case in
which it becomes apparent after the decisional process is underway
that we may not reach the question presented. To me the unique and
valuable ability of this Court to decide a case -- we are, at
present, the only Art. III court which can decide a federal
question in such a way as to bind all other courts -- is a
sufficient reason either to abandon the doctrine of mootness
altogether in cases which this Court has decided to review, or at
least to relax the doctrine of mootness in such a manner as the
dissent accuses the majority of doing here. I would leave the
mootness doctrine as established by our cases in full force and
effect when applied to the earlier stages of a lawsuit, but I
believe that, once this Court has undertaken a consideration of a
case, an exception to that principle is just as much warranted as
where a case is "capable of repetition, yet evading review."
JUSTICE SCALIA, with whom JUSTICE O'CONNOR joins,
dissenting.
Without expressing any views on the merits of this case, I
respectfully dissent because, in my opinion, we have no authority
to decide it. I think the controversy is moot.
The Court correctly acknowledges that we have no power under
Art. III of the Constitution to adjudicate a case that no
Page 484 U. S. 333
longer presents an actual, ongoing dispute between the named
parties.
Ante at
484 U. S. 317,
citing
Nebraska Press Assn. v. Stuart, 427 U.
S. 539,
427 U. S. 546
(1976);
Preiser v. Newkirk, 422 U.
S. 395,
422 U. S. 401
(1975). Here, there is obviously no present controversy between the
parties, since both respondents are no longer in school, and
therefore no longer subject to a unilateral "change in placement."
The Court concedes mootness with respect to respondent John Doe,
who is now too old to receive the benefits of the Education of the
Handicapped Act (EHA).
Ante at
484 U.S. 318. It concludes, however,
that the case is not moot as to respondent Jack Smith, who has two
more years of eligibility, but is no longer in the public schools,
because the controversy is "capable of repetition, yet evading
review."
Ante at
484 U.S.
318-323.
Jurisdiction on the basis that a dispute is "capable of
repetition, yet evading review" is limited to the "exceptional
situatio[n],"
Los Angeles v. Lyons, 461 U. S.
95,
461 U. S. 109
(1983), where the following two circumstances simultaneously
occur:
"'(1) the challenged action [is] in its duration too short to be
fully litigated prior to its cessation or expiration, and (2) there
[is] a reasonable expectation that the same complaining party would
be subjected to the same action again.'"
Murphy v. Hunt, 455 U. S. 478,
455 U. S. 482
(1982) (per curiam), quoting
Weinstein v. Bradford,
423 U. S. 147,
423 U. S. 149
(1975) (per curiam). The second of these requirements is not met in
this case.
For there to be a "reasonable expectation" that Smith will be
subjected to the same action again, that event must be a
"demonstrated probability."
Murphy v. Hunt, supra, at
455 U. S. 482,
455 U. S. 483;
Weinstein v. Bradford, supra, at
423 U. S. 149.
I am surprised by the Court's contention, fraught with potential
for future mischief, that "reasonable expectation" is satisfied by
something less than "demonstrated probability."
Ante at
484 U.S. 318-319, n. 6. No
one expects that to happen which he does not think probable, and
his expectation cannot be shown to be reasonable unless the
probability is demonstrated. Thus, as the Court notes, our cases
recite the two descriptions side by
Page 484 U. S. 334
side ("a
reasonable expectation' or a `demonstrated
probability,'" Hunt, supra, at 455 U. S.
482). The Court asserts, however, that these standards
are "described . . . in the disjunctive," ante at
484 U.S. 318-319, n. 6 --
evidently believing that the conjunction "or" has no accepted usage
except a disjunctive one, i.e., "expressing an
alternative, contrast, or opposition," Webster's Third New
International Dictionary 651 (1981). In fact, however, the
conjunction is often used
"to indicate . . . (3) the synonymous, equivalent, or
substitutive character of two words or phrases (fell over a
precipice [or] cliff) (the off [or] far side) (lessen [or] abate);
(4) correction or greater exactness of phrasing or meaning (these
essays, [or] rather rough sketches) (the present king had no
children -- [or] no legitimate children . . .)."
Id. at 1585. It is obvious that, in saying "a
reasonable expectation or a demonstrated probability," we have used
the conjunction in one of the latter, or nondisjunctive, senses.
Otherwise (and according to the Court's exegesis), we would have
been saying that a controversy is sufficiently likely to recur if
either a certain degree of probability exists
or
a higher degree of probability exists. That is rather like a
statute giving the vote to persons who are "18 or 21." A bare six
years ago, the author of today's opinion and one other Member of
the majority plainly understood "reasonable expectation" and
"demonstrated probability" to be synonymous.
Cf. Edgar v. MITE
Corp., 457 U. S. 624,
457 U. S. 662,
and n. 11 (1982) (MARSHALL, J., dissenting, joined by BRENNAN, J.)
(using the two terms here at issue interchangeably, and concluding
that the case is moot because "there is no
demonstrated
probability that the State will have occasion to prevent MITE
from making a takeover offer for some other corporation") (emphasis
added).
The prior holdings cited by the Court in a footnote,
see
ante at
484 U. S. 319,
n. 6, offer no support for the novel proposition that less than a
probability of recurrence is sufficient to avoid mootness. In
Burlington Northern R. Co. v. Maintenance of Way Employes,
481 U. S. 429,
481 U. S. 436,
n. 4 (1987), we found
Page 484 U. S. 335
that the same railroad and union were "reasonably likely" to
find themselves in a recurring dispute over the same issue.
Similarly, in
California Coastal Comm'n v. Granite Rock
Co., 480 U. S. 572,
480 U. S. 578
(1987), we found it "likely" that the plaintiff mining company
would submit new plans which the State would seek to subject to its
coastal permit requirements.
See Webster's Third New
International Dictionary 1310 (1981) (defining "likely" as "of such
a nature or so circumstanced as to make something probable[;] . . .
seeming to justify belief or expectation[;] . . . in all
probability"). In the cases involving exclusion orders issued to
prevent the press from attending criminal trials, we found that
"[i]t can reasonably be assumed" that a news organization covering
the area in which the defendant court sat will again be subjected
to that court's closure rules.
Press-Enterprise Co. v. Superior
Court of Cal., Riverside County, 478 U. S.
1,
478 U. S. 6
(1986);
Globe Newspaper Co. v. Superior Court of Norfolk
County, 457 U. S. 596,
457 U. S. 603
(1982). In these and other cases, one may quarrel, perhaps, with
the accuracy of the Court's probability assessment; but there is no
doubt that assessment was regarded as necessary to establish
jurisdiction.
In
Roe v. Wade, 410 U. S. 113,
410 U. S. 125
(1973), we found that the "human gestation period is so short that
the pregnancy will come to term before the usual appellate process
is complete," so that "pregnancy litigation seldom will survive
much beyond the trial stage, and appellate review will be
effectively denied."
Roe, at least one other abortion
case,
see Doe v. Bolton, 410 U. S. 179,
410 U. S. 187
(1973), and some of our election law decisions,
see Rosario v.
Rockefeller, 410 U. S. 752,
410 U. S. 756,
n. 5 (1973);
Dunn v. Blumstein, 405 U.
S. 330,
405 U. S. 333,
n. 2 (1972), differ from the body of our mootness jurisprudence not
in accepting less than a probability that the issue will recur, in
a manner evading review, between the same parties; but in
dispensing with the same-party requirement entirely, focusing
instead upon the great likelihood that the issue will recur
between the defendant and the other members
Page 484 U. S. 336
of the public at large without ever reaching us.
Arguably, those cases have been limited to their facts, or to the
narrow areas of abortion and election rights, by our more recent
insistence that, at least in the absence of a class action, the
"capable of repetition" doctrine applies only where "there [is] a
reasonable expectation'" that the "same complaining party"
would be subjected to the same action again.
Hunt, 455
U.S. at
455 U. S. 482
(emphasis added), quoting
Weinstein, 423 U.S. at
423 U. S. 149;
see Burlington Northern R. Co., supra, at
481 U. S. 436,
n. 4;
Illinois Elections Bd. v. Socialist Workers Party,
440 U. S. 173,
440 U. S. 187
(1979). If those earlier cases have not been so limited, however,
the conditions for their application do not in any event exist
here. There is no extraordinary improbability of the present
issue's reaching us as a traditionally live controversy. It would
have done so in this very case if Smith had not chosen to leave
public school. In sum, on any analysis, the proposition the Court
asserts in the present case -- that probability need not be shown
in order to establish the "same-party-recurrence" exception to
mootness -- is a significant departure from settled law.
II
If our established mode of analysis were followed, the
conclusion that a live controversy exists in the present case would
require a demonstrated probability that all of the following events
will occur: (1) Smith will return to public school; (2) he will be
placed in an educational setting that is unable to tolerate his
dangerous behavior; (3) he will again engage in dangerous behavior;
and (4) local school officials will again attempt unilaterally to
change his placement, and the state defendants will fail to prevent
such action. The Court spends considerable time establishing that
the last two of these events are likely to recur, but relegates to
a footnote its discussion of the first event, upon which all others
depend, and only briefly alludes to the second. Neither the facts
in
Page 484 U. S. 337
the record, nor even the extrarecord assurances of counsel,
establish a demonstrated probability of either of them.
With respect to whether Smith will return to school, at oral
argument, Smith's counsel forthrightly conceded that she "cannot
represent whether in fact either of these students will ask for
further education from the Petitioners." Tr. of Oral Arg. 23.
Rather, she observed, respondents would "look to [our decision in
this case] to find out what will happen after that."
Id.
at 23-24. When pressed, the most counsel would say was that, in her
view, the 20-year-old Smith
could seek to return to public
school because he has not graduated, he is handicapped, and he has
a right to an education.
Id. at 27. I do not perceive the
principle that would enable us to leap from the proposition that
Smith could reenter public school to the conclusion that it is a
demonstrated probability he will do so.
The Court nevertheless concludes that "there is, at the very
least, a reasonable expectation" that Smith will return to school.
Ante at
484 U. S. 319,
n. 6. I cannot possibly dispute that on the basis of the Court's
terminology. Once it is accepted that a "reasonable expectation"
can exist without a demonstrable probability that the event in
question will occur, the phrase has been deprived of all meaning,
and the Court can give it whatever application it wishes, without
fear of effective contradiction. It is worth pointing out, however,
how slim are the reeds upon which this conclusion of "reasonable
expectation" (whatever that means) rests. The Court bases its
determination on three observations from the record and oral
argument. First, it notes that Smith has been pressing this lawsuit
since 1980. It suffices to observe that the equivalent argument can
be made in every case that remains active and pending; we have
hitherto avoided equating the existence of a case or controversy
with the existence of a lawsuit. Second, the Court observes that
Smith has "as great a need of a high school education and diploma
as any of his peers."
Ibid. While this is undoubtedly good
advice, it hardly establishes
Page 484 U. S. 338
that the 20-year-old Smith is likely to return to high school,
much less to public high school. Finally, the Court notes that
counsel "advises us that [Smith] is awaiting the outcome of this
case to decide whether to pursue his degree."
Ibid. Not
only do I not think this establishes a current case or controversy,
I think it a most conclusive indication that no current case or
controversy exists. We do not sit to broaden decisionmaking
options, but to adjudicate the lawfulness of acts that have
happened or, at most, are about to occur.
The conclusion that the case is moot is reinforced, moreover,
when one considers that, even if Smith does return to public
school, the controversy will still not recur unless he is again
placed in an educational setting that is unable to tolerate his
behavior. It seems to me not only not demonstrably probable, but
indeed quite unlikely, given what is now known about Smith's
behavioral problems, that local school authorities would again
place him in an educational setting that could not control his
dangerous conduct, causing a suspension that would replicate the
legal issues in this suit. The majority dismisses this further
contingency by noting that the school authorities have an
obligation under the EHA to provide an "appropriate" education in
"the least restrictive environment."
Ante at
484 U. S. 321.
This means, however, the least restrictive environment appropriate
for the particular child. The Court observes that "the preparation
of an [individualized educational placement]" is "an inexact
science, at best,"
ibid., thereby implying that the school
authorities are likely to get it wrong. Even accepting this
assumption, which seems to me contrary to the premises of the Act,
I see no reason further to assume that they will get it wrong by
making the same mistake they did last time -- assigning Smith to
too
unrestrictive an environment, from which he will
thereafter be suspended -- rather than by assigning him to too
restrictive an environment. The latter, which seems to me
more likely than the former (though both combined are much less
likely than a correct placement), might produce a lawsuit,
Page 484 U. S. 339
but not a lawsuit involving the issues that we have before us
here.
III
THE CHIEF JUSTICE joins the majority opinion on the ground, not
that this case is not moot, but that, where the events giving rise
to the mootness have occurred after we have granted certiorari, we
may disregard them, since mootness is only a prudential doctrine,
and not part of the "case or controversy" requirement of Art. III.
I do not see how that can be. There is no more reason to intuit
that mootness is merely a prudential doctrine than to intuit that
initial standing is. Both doctrines have equivalently deep roots in
the common law understanding, and hence the constitutional
understanding, of what makes a matter appropriate for judicial
disposition.
See Flast v. Cohen, 392 U. S.
83,
392 U. S. 95
(1968) (describing mootness and standing as various illustrations
of the requirement of "justiciability" in Art. III).
THE CHIEF JUSTICE relies upon the fact that an 1895 case
discussing mootness,
Mills v. Green, 159 U.
S. 651, makes no mention of the Constitution. But there
is little doubt that the Court believed the doctrine called into
question the Court's power, and not merely its prudence, for (in an
opinion by the same Justice who wrote
Mills) it had said
two years earlier:
"[T]he court is not
empowered to decide moot questions
or abstract propositions, or to declare . . . principles or rules
of law which cannot affect the result as to the thing in issue in
the case before it. No stipulation of parties or counsel . . . can
enlarge the
power, or affect the duty, of the court in
this regard."
California v. San Pablo & Tulare R. Co.,
149 U. S. 308,
149 U. S. 314
(1893) (Gray, J.) (emphasis added). If it seems peculiar to the
modern lawyer that our 19th-century mootness cases make no explicit
mention of Art. III, that is a peculiarity shared with our
19th-century, and even
Page 484 U. S. 340
our early 20th-century, standing cases. As late as 1919, in
dismissing a suit for lack of standing, we said simply:
"Considerations of propriety, as well as long-established
practice, demand that we refrain from passing upon the
constitutionality of an act of Congress unless obliged to do so in
the proper performance of our judicial function, when the question
is raised by a party whose interests entitle him to raise it."
Blair v. United States, 250 U.
S. 273,
250 U. S. 279.
See also, e.g., Standard Stock Food Co. v. Wright,
225 U. S. 540,
225 U. S. 550
(1912);
Southern R. Co. v. King, 217 U.
S. 524,
217 U. S. 534
(1910);
Turpin v. Lemon, 187 U. S. 51,
187 U. S. 60-61
(1902);
Tyler v. Judges of Court of Registration,
179 U. S. 405,
179 U. S. 409
(1900). The same is also true of our early cases dismissing actions
lacking truly adverse parties, that is, collusive actions.
See,
e.g., 66 U. S.
Chamberlain, 1 Black 419,
66 U. S.
425-426 (1862);
Lord v.
Veazie, 8 How. 251,
49 U. S.
254-256 (1850). The explanation for this ellipsis is
that the courts simply chose to refer directly to the traditional,
fundamental limitations upon the powers of common law courts,
rather than referring to Art. III, which, in turn, adopts those
limitations through terms ("The judicial Power"; "Cases";
"Controversies") that have virtually no meaning except by reference
to that tradition. The ultimate circularity, coming back in the end
to tradition, is evident in the statement by Justice Field:
"By cases and controversies are intended the claims of litigants
brought before the courts for determination by such regular
proceedings as are established by law or custom for the protection
or enforcement of rights, or the prevention, redress, or punishment
of wrongs. Whenever the claim of a party under the constitution,
laws, or treaties of the United States takes such a form that the
judicial power is capable of acting upon it, then it has become a
case."
In re Pacific Railway Comm'n, 32 F. 241, 255 (CC ND
Cal.1887).
Page 484 U. S. 341
See also 2 M. Farrand, Records of the Federal
Convention of 1787, p. 430 (rev. ed.1966):
"Docr. Johnson moved to insert the words 'this Constitution and
the' before the word 'laws.'"
"Mr. Madison doubted whether it was not going too far to extend
the jurisdiction of the Court generally to cases arising Under the
Constitution, & whether it ought not to be limited to cases of
a Judiciary Nature. The right of expounding the Constitution in
cases not of this nature ought not to be given to that
Department."
"The motion of Docr. Johnson was agreed to nem: con: it being
generally supposed that the jurisdiction given was constructively
limited to cases of a Judiciary nature."
In sum, I cannot believe that it is only our prudence, and
nothing inherent in the understood nature of "The judicial Power,"
U.S.Const., Art. III, § 1, that restrains us from pronouncing
judgment in a case that the parties have settled, or a case
involving a nonsurviving claim where the plaintiff has died, or a
case where the law has been changed so that the basis of the
dispute no longer exists, or a case where conduct sought to be
enjoined has ceased, and will not recur. Where the conduct has
ceased for the time being, but there is a demonstrated probability
that it
will recur, a real-life controversy between
parties with a personal stake in the outcome continues to exist,
and Art. III is no more violated than it is violated by
entertaining a declaratory judgment action. But that is the limit
of our power. I agree with THE CHIEF JUSTICE to this extent: the
"yet evading review" portion of our "capable of repetition, yet
evading review" test is prudential; whether or not that criterion
is met, a justiciable controversy exists. But the probability of
recurrence between the same parties is essential to our
jurisdiction as a court, and it is that deficiency which the case
before us presents.
It is assuredly frustrating to find that a jurisdictional
impediment prevents us from reaching the important merits
Page 484 U. S. 342
issues that were the reason for our agreeing to hear this case.
But we cannot ignore such impediments for purposes of our appellate
review without simultaneously affecting the principles that govern
district courts in their assertion or retention of original
jurisdiction. We thus do substantial harm to a governmental
structure designed to restrict the courts to matters that actually
affect the litigants before them.