Burks v. Bogalusa City Sch Bd

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 6, 2002
• Docket: 01-30711
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30711 Summary Calendar

OLIVIA BURKS, Individually and on Behalf of Her Child, Travis Pace; et al.,

Plaintiffs,

MELVIN BARBER; EDITH BARBER, Individually and on Behalf of Their Minor Child Ericka Barber,

Plaintiffs – Appellants,

versus

BOGALUSA CITY SCHOOL BOARD; LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION; LOUISIANA DEPARTMENT OF EDUCATION; STATE OF LOUISIANA,

Defendants – Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana (No. 98-CV-1333-N)

May 3, 2002 Before DeMOSS, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

This lawsuit arises from Bogalusa City School Board’s and

Louisiana education officials’ allegedly not providing Ericka

Barber with a “free appropriate public education” under the

Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §

1400, et seq. The district court previously dismissed without

prejudice the claims of Travis Pace, a similarly situated

student; it then severed Ericka’s IDEA claim and decided it on

the basis of the parties’ briefs. The court concluded that no

violation had occurred. We dismiss the appeal.

IDEA requires, among other things, that school officials

create an individualized education program (IEP) for each

qualifying child. It is undisputed that Ericka is a qualifying

child; she has severe visual impairment and is mildly retarded.

An IEP is a written document describing the child’s present level

of educational performance, measurable annual goals for the

child, and the special services with which the child will be

provided. See 20 U.S.C. § 1414(d). Ericka’s maternal

grandparents and legal guardians, Melvin and Edith Barber,

challenged the school board’s compliance with IDEA, arguing that

the IEP Ericka’s school created for her in 1997 was deficient in

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

-2- numerous respects. After an “impartial due process hearing,” the

hearing officer concluded that the 1997 IEP was not in compliance

with IDEA, mainly for its not describing in detail the special

services Ericka needs to receive an appropriate education. The

school board appealed and a state-level review panel reversed.

The panel concluded, “There is no evidence that the Bogalusa

School System prepared an I.E.P. that was not formulated to

provide some educational benefit to Ericka.” Nevertheless, it

stated that “there should be an I.E.P. conference to address the

suggested services . . . immediately.” A new IEP was issued

February 1998, the “1998 IEP.” The Barbers appealed to federal

court. See id. § 1415(i)(2)(A)(permitting appeal to a United

States district court after first exhausting state administrative

remedies).

Compliance with IDEA requires state officials both to heed

the act’s procedural prescriptions as well as to develop an IEP

“reasonably calculated to enable the child to receive educational

benefits.” See Board of Educ. v. Rowley, 458 U.S. 176, 206-07

(1984). Not before us or before the district court did the

Barbers complain about the 1998 IEP, which was issued several

months before they perfected their appeal. We therefore assume

that 1998 IEP comports with IDEA’s procedural requirements and is

calculated to provide educational benefits. Because the 1998 IEP

superceded earlier ones, the Barbers’ challenge to the 1997 IEP

-3- is moot. Cf. Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036,

1040-41 (5th Cir. 1989)(refusing to find that the issuance of a

new IEP mooted a challenge to the old one where the school

officials and the parents remained at loggerheads over whether to

“mainstream” the parents’ child).

In any event, we note that most of the claimed deficiencies

in the 1997 IEP were corrected by the 1998 version. In their

brief, the Barbers complain that 1997 IEP failed to prescribe

non-academic instruction, such as “child care, basic first aid[]

procedures, simple cooking, sewing, budgeting, money management

and shopping.” They also complain that the 1997 IEP only

accounted for half of each school day and failed to recommend

certain aids, including an itinerant teacher to guide Ericka

around the school, a video camera and monitor to enlarge and view

text, and a computer. The Barbers argue that 1997 IEP even

failed to accurately describe Ericka’s present educational

ability or set measurable goals, both basic requirements under

IDEA. Our own review of the 1997 IEP leads us to conclude that

the Barbers’ complaints likely had some merit. But the 1998 IEP,

which was attached to one of the Barbers’ district-court briefs,

is far more comprehensive. It includes detailed discussion of

Ericka’s strengths and highlights areas that need strengthening.

It restates her current educational abilities and suggests the

use of a “reading machine” and the assistance of a

-4- “paraprofessional or other adult.” The 1998 IEP also gives

objectively verifiable goals, and extensive everyday-living

skills are prescribed.

APPEAL DISMISSED AS MOOT.

-5-