PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ NATHAN M., a minor, by and through his parents and next friends, AMANDA M., Plaintiffs - Appellants,

v. HARRISON SCHOOL DI STRICT NO. 2, Defendant - Appellee.

------------------------------ COLORADO ASSOCIATION OF SCHOOL BOARDS; KANSAS ASSOCIATION OF SCHOOL BOARDS; NATIONAL SCHOOL BOARD ASSOCIATION; NEW MEXICO SCHOOL BOARDS ASSOCIATION; OKLAHOMA STATE SCHOOL BOARDS ASSOCI ATION; UTAH SCHOOL BOARDS ASSOCIATION; WYOMING SCHOOL BOARDS ASSOCIATION, Amici Curiae. No. 19-1008

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CV-00085-JLK)

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### November 14, 2019
Elisabeth A. Shumaker Clerk of Court2 Jack D. Robinson, Spies, Powers & Robinson, P.C., Denver, Colorado, for Plaintiff

− Appellant. John R. Stanek (William K. D ude with him on the briefs), Anderson, Dude & Lebel, P.C., Colorado Springs, Colorado, for Defendant

− Appellee. Francisco M. Negrón, Jr., Ch ief Legal Officer, National School Boards Association, Alexandria, Virginia, and W. Stuart Stuller, Caplan an d Earnest, LLC, Boulder, Colorado, filed a brief for Amici Curiae Nati onal School Boards Association, Colorado Association of School Boards, Kansas Asso ciation of School Boards, New Mexico School Boards Association, Oklahoma State School Boards Associ ation, Utah School Boards Association, and Wyoming School Bo ards Association, in support of Harrison School District No. 2.

________________ _________________ Before TYMKOVICH , Chief Judge, PHILLIPS , and McHUGH , Circuit Judges.

________________ _________________ McHUGH , Circuit Judge.

________________ _________________
This case arises under the Individuals w ith Disabilities Edu cation Act (“IDEA” or the “Act”). Amanda M. (“Parent”), the mo ther of Nathan M., a child with autism, challenges an Individualized Education Program (“IEP”) developed with Harrison School District No. 2 (“th e District”) that proposed removing Nathan from Alpine Autism Center (a private, au tism-only facility) and placi ng him in Otero Elementary School (a public school). Nathan’s moth er contends the school district did not comply with numerous procedural requireme nts in developing the IEP and that the IEP itself failed to offer Nath an a “free appropriate public education” (“FAPE”) as required by the Act.3 Because the IEP at issue governed a sc hoolyear that has passed, and because the various IEP deficiencies alleged by Pa rent are not capable of repetition yet evading review, the case is moot.

I. BACKGROUND

A. Factual History Nathan M. is a child diagnosed with autism spectrum diso rder (“ASD”) and attention deficit hyperactivity disorder (“ADHD”). As a child with a disability, Nathan is entitled to a FAPE under the IDEA. Steven R.F. ex rel. Fernandez v. Harrison Sch. Dist. No. 2 , 924 F.3d 1309, 1310 (10th Cir. 2019); see 20 U.S.C. § 1412(a)(1)(A) (requiring states to provide a free appropriate public education to children with disabilities in order to qualify for federal funding). The IDEA guarantees the provision of a FAPE by ma ndating the development of an IEP: “a comprehensive plan prepared by a child’s ‘IEP team’ (which includes teachers, school officials, and the child’s parents) ” through which “spe cial education and related services are ‘tailo red to the unique needs’ of a particular child.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1 , 137 S. Ct. 988, 994 (2017) (quoting Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist. v. Rowley , 458 U.S. 176, 181 (1982)). Since 2012, in accordance with an IEP developed with the District, Nathan has attended the Alpine Autism Center (“Al pine”) in Colorado Springs to receive special education supports and services in lieu of a public school. Alpine is a private program serving students w ith autism through a met hodology known as “Applied4 Behavior Analysis” (“ABA” ), administered by employ ees supervised by Board Certified Behavior Analys ts (“BCBAs”) rather than certified teachers. In April 2014, the District proposed re moving Nathan from Alpine and placing him in a public elementary school, Otero Elementary (“Otero”). Nathan’s parents objected to this decision and filed a comp laint with the Colorado Department of Education. A Colorado State Complaint Of ficer (“SCO”) found that the District had predetermined to remove Nathan from Alpine, thereby denyi ng his parents the opportunity to meaningfully participate in the IEP process. The Di strict declined to challenge this finding. Nathan therefore remained at Alpine, and in February 2016 the District began a reevaluation of Nathan for the purpose of developing his new IEP. The District convened a pre-evaluation meet ing attended by Parent, Pare nt’s advocate, district employees, and various specialists in occ upational therapy, speech, mental health, and administration. Parent provided an ag enda for the meeting and received answers to her questions from members of the asse ssment team. No one from Alpine attended the meeting, and neither the District nor Pa rent invited anyone from Alpine to attend. At this pre-evaluation meeting, Parent consented to a series of assessments related to Nathan’s “cognition, academic skill deve lopment, social/emotional/behavioral development, adaptive skill developm ent (geared to ASD), speech/language development, motor skills, and sensory processing.” App. Vol. 1 at 40. The District held its first IEP team meeting on April 19, 2016. Parent, her advocate, and other members of the IEP te am attended, but no representative from5 Alpine did. The IEP team confirmed Nathan ’s continuing eligibility for a FAPE as a child with ASD 1 and fielded Parent’s questions over the course of two and a half hours. After the meeting concluded, Pare nt had more questi ons about Nathan’s evaluation, so a school districtofficial held an individual meeting with her, lasting over two hours, during which th e official attempted to an swer Parent’s questions. A second two-and-a-half hour IEP team meeting occurred on May 19, 2016. Although Parent invited members of the Alpine staff to atte nd, they declined to do so. Parent provided an agenda for this meeti ng and expressed her view that the team would have made more progres s had Alpine staff been in attendance. The IEP team addressed Nathan’s “reevalua tion and what progress he would need to show to be able to succeed in a general educati on classroom.” App. Vol. 1 at 42. At a third meeting, on September 9, 2016, the IEP team worked from an agenda created by a neutral fa cilitator designed to addr ess Parent’s issues with Nathan’s IEP, as well as input from the District. Members of Alpine attended and “had further discussion regardi ng the results of the reevalua tion as well as [Nathan’s] present levels at Alpine.” App. Vol. 1 at 43. The meeting lasted three hours. The IEP team met for a fourth time on November 11, 2016. Parent, two of Parent’s advocates, representa tives from Alpine, and Distri ct staff attended the threehour meeting, which was mo re “contentious and emotiona l than other meetings.” App. Vol. 1 at 43–44. After a discussion of Nathan’s current levels of performance,

1 Parent did not disclose Nathan’s ADHD diagnosis to the District during the development of the 2016 IEP.6 the team formulated goals for Nathan and acceded to Pa rent’s request for a one-onone paraprofessional aide to support Nathan’s academic and behavioral needs. Parent also requested an Independent Educational Evaluation (“IEE”) for Nathan because, in her view, the District’s evaluation was not adequate. 2 A fifth and final meeting “convened on December 13, 2016, and lasted more than four hours.” App. Vol. 1 at 44. All IEP team members attended, alon g with employees of Alpine. The team updated Nathan’s educationa l goals, responded to Parent’s questions, and discussed the comparative advantages a nd disadvantages of placing Na than at Alpine or Otero. The District then proposed placing Nath an at Otero, within Otero’s Autism Program. At Otero, Nath an would be provided a full-time, one-on-one paraprofessional and “extens ive accommodations and modifi cations addressed to his unique educational needs.” App. Vol. 1 at 45. Nathan would not be transitioned to Otero immediately, but “woul d be supported during the initia l transition from Alpine with a blending of his day at Alpine and Otero.” App. Vol. 1 at 45. Depending on Nathan’s success within Otero’s Autism Pr ogram, Nathan would eventually join Otero’s Communications and Social Devel opment program “geared toward students on the higher functioning end of the autism spectrum.” App. Vol. 1 at 45. The

2 An IEE was ultimately completed by Dr. Elizabeth Bruno on October 23, 2017. It was unavailable to either the IEP team or the ALJ, but the district court received and considered the IEE as additional evidence.7 District memorialized its proposal in an IEP Document (the “2016 IEP”) and a behavior intervention plan (“BIP”). 3 Parent rejected the IEP and filed a state complaint with the Colorado Department of Education.
B. Procedural History Upon receiving Parent’s comp laint, an SCO found that the District had failed to develop the 2016 IEP in accordance with the IDEA and ordered the District to resume Nathan’s placement at Alpine. In response, the Districtfiled a due process complaint arguing that it had offered Nathan a FAPE with the 2016 IEP in the “least restrictive environment” (“LRE”) as mandated by the IDEA. Parent filed a counterclaim, alleging the vari ous procedural and substantiv e violations of the IDEA discussed in detail below. An ALJ for the Colorado Department of Education convened an evidentiary hearing on the 2016 IEP attended by the Dist rict, Parent, Parent’s advocate, and various witnesses. At this ev identiary hearing, held over the course of five days, the ALJ heard extensive testimony from member s of the IEP team, the IEP team’s neutral facilitator, and expert s for both Parent and the District. The ALJ also received dozens of exhibits from both parties. Th e ALJ’s decision provides a comprehensive

3 Broadly speaking, a “behavior interventi on plan,” or BIP, is a plan designed to implement the IDEA’s requirement that an IEP team, “in the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and su pports, and other strategies, to address that behavior.” 20 U.S.C. § 1414(d)(3)(B)(i).8 summary of the hearing’s proceedings and reaches thoughtfu l and well-reasoned conclusions regarding the Di strict’s compliance with th e IDEA. Ultimately, the ALJ concluded the “District met its burden of establishing that the [2016 IEP] represented an offer of [a] FAPE to [N athan] as required under the [IDEA]” and “[Parent] failed to meet [her] burden of establishing that [Nat han] was denied [a] FA PE as a result of procedural violations allege d in the development of the IEP.” App. Vol. 1 at 62. Parent appealed the ALJ’s decision to the district court. She argued (1) the District had committed various procedural a nd substantive IDEA vi olations resulting in the denial of a FAPE to Nathan, and (2) the District had predetermined to place Nathan in Otero instead of Alpine. The di strict court reviewed the administrative record, including the transcriptof the ALJ hearing, as we ll as additional evidence, before upholding the ALJ’s decision in fu ll. The court noted that the ALJ had correctly applied the substantive standa rd governing FAPEs as articulated in Endrew
F. , 137 S. Ct. at 1002, which requires Nathan’s IEP to be “reasonably calculated to enable [Nathan] to make progress appropriate in light of his circumstances.” 4 After

4 Parent argues that the ALJ applied an incorrect standard in assessing whether the IEP provided a FAPE, stating “the AL J held that ‘[T]he school district’s obligation [to Nathan] extends only so far as to provide a basic floor of opportunity consisting of specialized in struction and related servi ces that are individually designed to accord some educational benefit .” Aplt. Br. at 25 (quoting App. Vol. 1 at 56). But a fair reading of the ALJ’s deci sion reveals the ALJ held no such thing. In the passage quoted by Parent, the ALJ e xplained the Supreme Court’s decision in Bd. of Ed. of Hendrick Hudson Ce nt. Sch. Dist. v. Rowley , 458 U.S. 176 (1982). As the ALJ expressly recognized, the Supreme Cour t later clarified that an “educational program must be appropriately ambitious in light of a student’s circumstances and provide the student with th e chance to meet challenging objectives.” App. Vol. 1 at 56 (citing Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1 , 137 S. Ct.9 making extensive factual findings by a prepon derance of the evid ence, the district court explained its decision as follows: The emphasis at Alpine has been on be havioral intervention. Nathan has significant behavioral patte rns that obstruct his abil ity to learn, including a short attention span, frequent distracti on, physical resistan ce and aggression. Parent has legitimate concerns as to the adequacy of the District’s functional behavioral assessment and the ability of the staff at Otero to intervene and redirect negative behaviors. The deficiency at Alpine is in l earning instruction. There are no certified teacher s on the Alpine staff and Nathan has made little academic progress, particularly in writing. The other deficiency is that there is no opportunity for him to in teract with children maki ng normal progress. . . . That is the prime difference between Alpine and Otero. There are no nondisabled children among the 27 or so children at Alpine. At Otero Nathan would have the opportunity to participate with non-disabled students at lunch, music, art and extracurricular activities as well as in science and social studies. The science may particularly be appropriate to Nathan ’s interest as identified by Parent. It may be that Ot ero will not be able to ac hieve the goals it has set out in the IEP. In that case a differen t IEP must be developed. The transition will be difficult. The District has planne d that this transition be incremental with some time in both schools. It may also be expected that a new environment will have a positive effect opening Nathan to new experiences. What the law requires is that an IEP provide a reasonable plan to provide educational opportunity in a least restri ctive environment. This the District did. App. Vol. 2 at 176, 184–185. Parent ti mely appealed, reasserting the various procedural and substantive ID EA violations she argued be fore the district court. After the appeal had been fully briefed, we reque sted supplemental briefing from the parties on m ootness in light of Steven R.F. , 924 F.3d at 1316, which held moot a similar IEP challenge because the IDEA violations alleged by the parent there

988 (2017)). Indeed, immediately before th e passage misleadingly quoted by Parent, the ALJ stated that “[t]o meet its substantive obligation under the IDEA, a school must offer [an] IEP reasonably calculate d to enable a child to make progress appropriate in light of th e child’s circumstances.” Id. at 55 (citing Endrew F. , 137 S. Ct. at 999). This standard is correct.10 were not capable of repetition but evading review. The parties’ supplemental briefing explains some of what has happened to Na than since this case began in 2016. In 2019, the District completed a statutorily mandated triennial revi ew of Nathan and made adjustments to his IEP and BIP. See 20 U.S.C. § 1414(a)(2). Because Nathan has since matriculated from elementary school to middle school, the IEP now recommends he be placed in the Autism program at Mountain Vista Community School instead of the program at Otero. The record does not show whether Parent still opposes this placement.
II. DISCUSSION A. Mootness Our jurisdiction under Article III extends only to “actual, ongoing controversies.” Honig v. Doe , 484 U.S. 305, 317 (1988); see McClendon v. City of Albuquerque , 100 F.3d 863, 867 (10th Cir. 1996) (“[T]he existe nce of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.”). If an actual controversy ceases to exist at any stage of litigation, the case has become moot and should be dismissed. Fischbach v. N.M. Activities Ass’n , 38 F.3d 1159, 1160 (10th Cir. 1994) (“Generally, the actual controvers y between the parties ‘must exist at [all] stages of appellate or certio rari review, and not simply at the date the action is initiated.’” (quoting Roe v. Wade , 410 U.S. 113, 125 (1973))). The District and Parent do not dispute th at Nathan’s case is technically moot. Parent initiated this challe nge in response to Nathan’s 2016 IEP, which “governed a schoolyear that has passed.” Steven R.F. , 924 F.3d at 1313. Any controversy over11 where Nathan should spend the 2016–1 7 schoolyear was resolved long ago by operation of the IDEA’s “stay-put” provision, which maintains a ch ild’s then-current placement during the pendency of an IEP ch allenge. 20 U.S.C. § 1415(j) (providing that a “child shall remain in [his] then-current educa tional placement” “during the pendency of any proceed ings conducted pursuant to this section”). Nathan has thus remained at Alpine since 2016, effectivel y giving Parent the relief she originally sought. Because our present decision about the 2016 IEP can have no effect “in the real world,” Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 1110 (10th Cir. 2010) (quotation marks omitte d), Nathan’s case appears to be moot. “The Supreme Court has held, however , that certain cases which appear technically mooted, are in r eality live controversies because they will recur and again evade review.” Taxpayers for the Animas-La Plat a Referendum v. Animas-La Plata Water Conservancy Dist. , 739 F.2d 1472, 1478 (10th Cir. 1984). Parent contends that her challenge falls within this narrow categ ory of cases because it is “capable of repetition, yet evading review.” Spencer v. Kemna , 523 U.S. 1, 17 (1998). The capable-of-repetition-yet-evad ing-review exception to m ootness applies in those “exceptional situations,” id. (quoting Los Angeles v. Lyons , 461 U.S. 95, 109 (1983)), when “(1) the challenged action was in its dur ation too short to be fully litigated prior to its cessation or expiration, and (2) there [i]s a reasonable expect ation that the same complaining party would be subject ed to the same action again.” Steven R.F. , 924 F.3d at 1313 (alteration in original) (quoting Murphy v. Hunt , 455 U.S. 478, 48212 (1982)). As the party asserting the excepti on, Parent bears the burden of establishing that it applies. See Ind v. Colo. Dep’t of Corr. , 801 F.3d 1209, 1215 (10th Cir. 2015). Like most parties challenging IEPs, Parenteasily satisfies the first prong of the capable-of-repetition-yet-evad ing-review exception. IEPs are short-lived—lasting for only a single school year—and judicial review is not. Rowley , 458 U.S. at 186 n.9 (“Judicial review invariably takes more than nine months to complete, not to mention the time consumed during the preceding stat e administrative hearings.”). This timing discrepancy virtually guarantees that an IEP will expire be fore its challenge reaches

us. See Sch. Comm. of Town of Burlington v. Dep’t of Educ. , 471 U.S. 359, 370 (1985) (“[T]he [IDEA] review process is ponderous. A fi nal judicial decision on the merits of an IEP will in mo st instances come a year ormore after the school term covered by that IEP has passed.”); Steven R.F. , 924 F.3d at 1313 (“A one-year IEP is, by its nature, ‘too short [in dura tion] to be fully litigated pr ior to its . . . expiration.’” (alterations in original) (quoting Murphy , 455 U.S. at 482)). The second prong—“a reasonable expectat ion that the same complaining party would be subjected to the same action ag ain”—presents a more difficult question. See Murphy , 455 U.S. at 482 (quoting Weinstein v. Bradford , 423 U.S. 147, 149 (1975) (per curiam) (explaining that the “reasonable expectation” of repetition must be more than “a mere physical or theoretical possibility”)). This difficulty stems, in part, from a lack of precision in ourcases describing exactly what must be likely to recur. 5 In

5 The D.C. Circuit laid out the variety of terms used by the Supreme Court in People for Ethical Treatment of Animals, Inc. v. Gittens , 396 F.3d 416, 421–22 (D.C.13 Fischbach , we asked whether the complaining pa rty would be “subjected to the action again.” Fischbach , 38 F.3d at 1161 (quoting Gannett Co. v. DePasquale , 443 U.S. 368, 377 (1979)). Then in Wyoming v. U.S. Dep’t of Agric. , 414 F.3d 1207, 1212 (10th Cir. 2005), we aske d the same question, but about potentially recurrent “conduct.” We reframed the question again in McKeen v. U.S. Forest Serv. , 615 F.3d 1244, 1255–56 (10t h Cir. 2010), which spoke in terms of an “issue” or an “alleged injury” that could be repeated, and in Parker v. Winter , 645 F. App’x 6 32, 635 (10th Cir. 2016) (unpublished) (quoting Honig , 484 U.S. at 319 n. 6), asking whether a claimant had demonstrated th at a recurrence of the “dis pute” was more probable than not and whether the “controversy” was capable of repetition.

Cir. 2005) (second alteration in original): We use the words “issues or wrongs” [i n formulating the capable-of-repetition exception] because Supreme Court opi nions are not uniform in their description of exactly whatmust be repeatable in order to save a case from mootness. In the decision gi ving rise to the doctrine, the Court spoke of “short term orders [of an agen cy], capable of repetition, yet evading review.” S. Pac. Terminal Co. v. ICC , 219 U.S. 498, 515 (1911). Later cases speak not of orders, but of repetiti on of the “controversy,” e.g., Olmstead v. L.C. ex rel. Zimring , 527 U.S. 581, 594 n.6 (1999); Norman v. Reed , 502 U.S. 279, 288 (1992); Int’l Org. of Masters, Mates & Pilots v. Brown , 498 U.S. 466, 473 (1991), or “the questions presented,” Sosna v. Iowa , 419 U.S. 393, 399–400 (1975). Other cases put the matter in te rms of the plaintiff suffering the “same wrong again,” Lewis v. Cont’l Bank Corp. , 494 U.S. 472, 481 (1990); Los Angeles v. Lyons , 461 U.S. 95, 109, 111 (1983) , or being subjected to the “same action again,” Weinstein v. Bradford , 423 U.S. 147, 149 (1975); Spencer v. Kemna , 523 U.S. 1, 17–18 (1998); Lewis , 494 U.S. at 481; Murphy v. Hunt , 455 U.S. 478, 482 (1982) (per curiam) (quoting Weinstein ). One opinion, Honig v. Doe , 484 U.S. 305 (1988), uses several variations, see id. at 318 (same “deprivation”); id. at 319 n. 6 (same controversy); id. at 320 (same injury).14 Steven R.F. recently clarified the target of our capable-of-repetition inquiry in IDEA disputes: “[T]he capab le-of-repetition exception in th e IDEA context looks at the likelihood that the specific IDEA violations alleged will be repeated.” 924 F.3d at 1316 (emphasis added). Thus, confronting facts very similar to those before us

now, 6 we held the mother of a disabled child had not satisfied the capable-ofrepetition exception to mootness because sh e had raised “fact-specific” procedural challenges to an expired IEP, id. at 1314, and “nothing i ndicate[d] that . . . her [future] challenges [would] be of the same pr ocedural nature as those she brought in this case,” id. at 1315. Seizing on this language, Parent attempts to distinguish Steven
R.F. and rescue Nathan’s case from certa in mootness by arguing that her appeal involves substantive violations of the IDEA, or “f undamental disagreements between the parties about what special education and related serv ices and what educational placement and programming Nathan needs in order to receive a free appropriate public education.” Aplt. Supp. Br. at 5–6. According to Parent, she and the District have a “reasonable expectation” of re hashing these fundamental, substantive disagreements every year, satisfying the mootness exception’s second prong. But Parent has learned the wrong lesson from Steven R.F. That case did not imply that alleging substantiv e violations of the IDEA will preserve our jurisdiction to decide a case that would have beco me moot had it invol ved only procedural

6 Steven and Nathan have similar di sabilities, attended the same private facility, Alpine, and their parents raised similar challenges to IEPs produced by Harrison School District No. 2 after the Dist rict attempted to pl ace the children in public schools for the 2016–2017 schoolyear.15 violations. Rather, Steven R.F. expressly reserved any question as to whether Steven’s parent’s substantiv e challenges to an expired IEP could satisfy the second prong of the capable-of-repetition exception. See 924 F.3d at 1316 n.6 (“ [E]ven if the record could support a conclusion that the s ubstantive violations are reasonably likely to occur again, [Steven’s parent] does not argue that distinction . . . .” (emphasis added)). We did not hold, or even suggest, that the record supported such a conclusion. Instead, Steven R.F. invariably demands specificity from the party articulating the “same action” that th ere is a “reasonable e xpectation” will recur. Murphy , 455 U.S. at 482; see Steven R.F. , 924 F.3d at 1314 (“Mother’s challenges to Steven’s 2016–2017 IEP were based on specific actions that she allege d the District did not take in relation to Steven’s 20 16–2017 IEP.” (emphasis added)); id. at 1315 (“[T]he capable-of-repetition exception in the IDEA context looks at the likelihood that the specific IDEA violations alleged will be rep eated. And the record does not indicate that it is reasonably likely that the Di strict will again violate the IDEA in the specific ways that Mother alleges it did in this case.” (emphases added)); id. at 1314 (“Even assuming . . . a reasonable exp ectation of future IDEA dis putes between the District and Mother, it does not satisfy the moot ness exception in this case because the procedural challenges Mother raises are fact-specific to Steven’s 2016–2017 IEP proceedings.” (emphasis added)). Nothing in Steven R.F. supports Parent’s argumen t that we require less specificity when faced with substantive rather than pro cedural challenges. To the16 contrary, Steven R.F. teaches that we demand specificity in all cases to ensure that our disposition of a technica lly moot but capable-of-repe tition controversy will help to “define the contours of the parties’ continuing lega l relationship under the IDEA such that future repetitions of the injury could be avoided.” Id. at 1316 (quoting Brown v. Bartholomew Consol. Sch. Corp. , 442 F.3d 588, 599–6 00 (7th Cir. 2006)). Put another way, “the ‘wrong’ that is, or is not, ‘capable of repetition’ must be defined in terms of the precise controversy it spawns.” People for Ethical Treatment of Animals, Inc. v. Gittens , 396 F.3d 416, 422 (D.C. Cir. 2005). “One function of the ‘capable of repetition’ doctr ine is to satisfy the Constitu tion’s requirement . . . that courts resolve only continuing controvers ies between the parties,” and “[t]hat function cannot be fulfilled unless the alleged ‘wrong’ is put in terms of the legal questions it presents for decision.” Id. at 422–23 (emphasis added). Pulling these various threads together, to satisfy the second prong of the capable-of-repetition exception to mootness, Parent bears the burden of establishing that it is “reasonably likely that the Dist rict will again violat e the IDEA in the specific ways that [she] al leges it did in this case.” Steven R.F. , 924 F.3d at 1316; see Ind , 801 F.3d at 1215 (explaining that thatparty asserting capable-of-repetition exception bears burden of proof). She may not generally allege that the District will deny Nathan a FAPE at some point in th e future. There must exist a “continuing controvers[y]” between the parties pres enting “legal questions” for resolution,
Gittens , 396 F.3d at 422–23, ensuring that our decision on the merits will “define the contours of the parties’ continuing legal rela tionship under the IDEA such that future17 repetitions of the inju ry could be avoided.” Steven R.F. , 924 F.3d at 1316 (quoting
Brown , 442 F.3d at 599–600). 7 A pattern of related but di stinct and factually specific controversies will not suffice because our resolution of one dispute will leave the others unresolved and just as likely to occur in the future. See Gittens , 396 F.3d at 424 (“[A] ‘legal controvers y so sharply focused on a uni que factual context’ w[ill] rarely ‘present a reasonable expectation that the same complaining party would be subjected to the same act ions again.’” (quoting Spivey v. Barry , 665 F.2d 1222, 1234–35 (D.C. Cir. 1981))). Having laid out the relevant law and Pa rent’s burden in asserting the capableof-repetition exception, we apply th at law to the facts before us.

7 For example, in Honig v. Doe , 484 U.S. 305, 312 (1 988), two disabled students with a history of hostile and disr uptive behavior challenged their proposed expulsion by a school district. The Court he ld the case capable of repetition yet evading review as to one student (who it was reasonable to expect would again engage in classroom misconduc t) based on the state petit ioner’s urging that “local school districts retain unilateral author ity under the EHA [the IDEA’s predecessor statute] to suspend or othe rwise remove disabled child ren for dangerous conduct.” Id. at 321–23. Deciding Honig on its merits allowed the Cour t to resolve the legality of the school district’s policy of unilaterally removing disabl ed students who engaged in disruptive behavior from public school. See id. at 323 (explaining Congress “very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school”). Ulti mately, the Court’s decision in Honig “define[d] the contours of the parties’ continuing legal relationship,” Steven R.F. ex rel. Fernandez v. Harrison Sch. Dist. No. 2 , 924 F.3d 1309, 1316 (10th Ci r. 2019) (quoting Brown v. Bartholomew Consol. Sch. Corp. , 442 F.3d 588, 599–600 (7th Cir. 2006)), by invalidating that policy. Honig , 484 U.S. at 323–24. Had the District here relied on a similar policy or blanke t rule to eliminate Alpine as a possible placement for Nathan, Nathan likely could meet the capable-ofrepetition exception. But here, the Distri ct determined Nath an’s placement by examining the then-existing circumstances pa rticular to Nathan’s age, needs, and development.18 B. Application As was the case in Steven R.F. , Parent alleges a vari ety of procedural and substantive IDEA violations regarding Nathan’s 2016 IEP. We do not decide whether these violations satisfy th e capable-of-repetition exception’ s second prong “in gross,” cf. Lewis v. Casey , 518 U.S. 343, 358 n.6 (1996) (explaining “standing is not dispensed in gross”), but must c onsider “the likelihood that the specific IDEA violations alleged will be repeated” when a pplying the capable-of-repetition exception, Steven R.F. , 924 F.3d at 1316 (emphasis added) . That is, when it comes to mootness, “[e]ach claim must stand or fall on its own.” Taxpayers for the Animas-La Plata Referendum , 739 F.2d at 1479 n.2; see Murray ex rel. Murra y v. Montrose Cty. Sch. Dist. RE-1J , 51 F.3d 921, 925 (10t h Cir. 1995) (explaini ng that subsequent actions with respect to an IEP may “render[] moot certain issues before us, but does not render the entire case moot”). To begin, Parent makes no attempt to show that any a lleged procedural violations of the IDEA are capable of re petition. Thus, Parent has seemingly waived any argument that the various procedural violations she al leges are not moot. But we need not decide these questi ons on waiver, or sort Parent ’s substantive claims from her procedural ones, because Parent has fa iled to carry her burden of showing that

any of the alleged IDEA violati ons are likely to recur. Parent alleges five separa te IDEA violations: (1) th e District predetermined Nathan’s educational placement, (2) the Dist rict failed to review current evaluation data in developing Nathan’s IEP, (3) the Di strict failed to ensu re the attendance of19 Alpine staff at all IEP meeti ngs, (4) the District failed to properly consider Nathan’s behaviors and develop an adeq uate BIP for Nathan’s IEP, and (5) Nathan’s IEP failed to provide special education and related services necessary to allow Nathan to make progress appropriate in light of his circumst ances. We evaluate wh ether each of these violations is likely to recu r in turn, assuming for purposes of our analysis that Parent is correct on their merits. See Baca v. Colo. Dep’t of State , 935 F.3d 887, 925 (10th Cir. 2019) (“In evaluating mootness, the c ourt assumes the plaint iff will receive the relief that he requests in th is litigation and then proceed s to determine whether there is a substantial likelihood thatthat relief will redress his asserted injury.” (internal quotation marks and alteration omitted)). With respect to (1) pred etermination and (2) reviewin g current evaluation data, Parent entirely fails to addr ess why a “reasonable expectati on” exists that the District will again commit these procedural violations. See Steven R.F. , 924 F.3d at 1313. We see no basis in the record for assuming, wi thout any facts or even an allegation by Parent, that the District will again pred etermine Nathan’s pl acement or review outdated evaluation data. See Ind , 801 F.3d at 1215 (party asserting capable-ofrepetition exception bears burden of proof); see also Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ. , 397 F.3d 77, 88 (2d Cir. 2005) (“A plaintiff must point to something more in the reco rd to lift th[e] possibility [of repetition] beyond the speculative.”). Similarly, Parent does not allege that th e District would agai n fail to (3) ensure the attendance of Alpine staff at IEP meetings. Even if we were willing to make this20 assumption on Parent’s behalf, the District affirmatively states in its supplemental briefing that it “assured both the Parent a nd Alpine participati on at subsequent IEP meetings” in formulating Na than’s 2019 IEP, Aple. Supp. Br. at 8, and Parent does not contest this statement. See Lillbask , 397 F.3d at 88 (case moot where school district conceded parents’ position). Parent’s alleged violations (4) and (5 ) suffer from a fatal vagueness. As set forth above, to satisfy the capable-of-repetition exception, Parent bears the burden of showing a “continuing controvers[y]” between the parties presenting “legal questions” for resolution. Gittens , 396 F.3d at 422–23. With respect to issue (4), Nathan’s allegedly deficient BI P, Parent does not specify a single behavior that the District’s BIP failed to cons ider, much less explain why it is likely that a future BIP will also fail to consider such behaviors. Parent’s supplem ental briefing merely states that “Nathan requires a ‘str ong behavioral program’ (as pr ovided) at Alpine.” Aplt. Supp. Br. at 7. Again, even assuming th e 2016 IEP lacked a “strong behavioral program,” the District has explained that it reevaluated Nathan and adjusted his BIP in 2019. Parent makes no allegation that th is new BIP contains a similar defect, and nothing indicates that this defect presents a “legal question” which we can resolve on appeal, Gittens , 396 F.3d at 422–23, instead of a f act-specific disa greement unlikely to recur in a recognizable form in a future IEP. See id. (“[A] ‘legal controversy so sharply focused on a unique factual context’ w[ill] rarely ‘p resent a reasonable expectation that the same co mplaining party would be subj ected to the same actions again.’” (quoting Spivey , 665 F.2d at 1234–35)).21 Finally, Parent entirely fa ils to identify the “speci al education and related services” in issue (5) that Nathan’s 2016 IEP lacked. A lthough Parent suggests “the dispute here is about Nathan’s need fo r services from a [BCBA ] and the need for [ABA],” Aplt. Supp. Br. at 7, Parent does not contest that Nath an’s 2019 reevaluation updated the IEP’s “goals, obj ectives and services with certain ABA methods under the participation of personnel with BCBA cer tifications.” Aple. Supp. Br. at 8. The parties do not seem to dispute the propriety of ABA methods or the participation of BCBA personnel in Nathan’s education. 8 To the extent the parties do disagree on, perhaps, the necessary degree of certain educational servic es or whether the precise services in a particular IEP will enable Nathan to make progress “appropriate in light of [his] circumstances,” Endrew F. , 137 S. Ct. at 999, their di spute is fact-specific to his expired 2016 IEP. 9 See Steven R.F. , 924 F.3d at 1314 (holding the mootness

8 For example, a district employee test ified before the ALJ that Otero has “ABA-specific training to our paraprofessi onals within our autism programs not just within Otero but across the district.” App. Vol. 4 at 525–26. And the ALJ concluded that Nathan’s 2016 IEP “prescribed a meth odology for reducing the occurrence of [targeted behaviors] or increasing the occu rrence of preferred replacement behaviors” that is “consistent with the positive beha vior supports characte ristic of ABA” and indeed “similar to the princi ples . . . used with the Stude nt at Alpine.” App. Vol. 1 at 61.

9 In this regard, Parent ’s exclusive reliance on Daniel R.R. v. State Bd. of Educ. , 874 F.2d 1036 (5th Cir. 1989), which held a controversy over an expired IEP not moot because it was capable of repeti tion but evading review, is misplaced. In Daniel R.R. , the court articulated a precise cont roversy between the parties, i.e., whether the school district must mainstr eam a child “even if he cannot thrive academically in regular education.” Id. at 1040. This lega l controversy did not depend on the facts of a part icular IEP, but on the pa rties’ understanding of the IDEA’s mainstreaming obligation. Id. at 1040–41. The District and Parent here, in contrast, do not clearly disagree on any of the IDEA’s requirements, or even on the22 exception not satisfied “because the procedur al challenges Motherraises are factspecific to Steven’s 201 6–2017 IEP proceedings”). Nothing in Parent’s briefing hints at a “ precise controversy ” presenting “legal questions” for our decision. 10 See Gittens , 396 F.3d at 422–23 (emphasis added). Without any evidence of such a controversy, our ruling on the merits would disregard “the Constitution’s requirement . . . that co urts resolve only continuing controversies between the parties,” id. , and we “would be issuing, in effect, an advisory opinion.”
Brown , 442 F.3d at 599. It would tell the pa rties who was right about Nathan’s 2016 IEP, but nothing more, thus failing to ensure that “future repetiti ons of the [alleged] injury could be avoided.” Id. at 600. This is especially true gi ven that, since 2016, Nathan has matriculated fro m elementary to middle sc hool, and the District now

kind of supports and services Nathan requires. And although they may have disagreed in 2016 on the degree of the supports required or offered at Otero as compared to Alpine, Parent has given us no reason to assume the same di sagreement will be present in a future IEP.

10 At oral argument, the District br iefly suggested th at whether Otero constitutes the LRE is a subs tantive issue that may be capable of repetition but evading review. See L.B. ex rel. K.B. v. Nebo Sch. Dist. , 379 F.3d 966, 975 n.13 (10th Cir. 2004) (“The IDEA’s substantive provisions are violated if: (1) the school district fails to provide a child with a FAPE; or(2) a FAPE is provided, but not , to the maximum extent appropriate, in a least restrict ive environment.”). But Parent does not argue the 2016 IEP failed to place Nathan in the LRE; Parent argues the 2016 IEP did not offer Nathan a FAPE. See Reply Br. at 16 (“This ca se was never about ‘least restrictive environment.’ It is only a bout whether the 2016 IEP was reasonably calculated to provide Nathan a FAPE.”). Thus, there is no controversy between the parties over the IDEA’s LRE requirementwith respect to Nathan’s 2016 IEP. See McClendon v. City of Albuquerque , 100 F.3d 863, 867 (10t h Cir. 1996) (“[T]he existence of a live case or c ontroversy is a constitutional pr erequisite to federal court jurisdiction.”).23 recommends he be placed in a differe nt school from Otero—Mountain Vista Community School—which may have different capacities, offer different services, or present unique challenges to Nathan’s con tinuing education and de velopment. Nathan himself is older, and because his autism “presents an e volving set of challenges for educators,” id. at 599, what was appropriate fo r him in elementary school may no longer be when he advances to middle school. Although Parent and the Di strict may continue to lock horns over Nathan’s educational placement, their dispute ha s not sharpened into a specific legal controversy that this court is capable of re solving. Thus, our deci sion on the merits of Nathan’s 2016 IEP could have no effect “in the real world,” Rio Grande Silvery
Minnow , 601 F.3d at 1110 (quoting Wyoming , 414 F.3d at 1212), and could do nothing to avoid future conflict, Steven R.F. , 924 F.3d at 1316. The case is therefore moot and not capable of re petition but evading review. 11
III. CONCLUSION For these reasons, we VACATE the district court’s ruling and REMAND with instructions to dismiss the case as moot . See Lewis v. Cont’l Bank Corp. , 494 U.S. 472,

11 We see little merit in Parent’s cont ention that “[r]enderi ng this case moot would eviscerate a significant right guaranteed to parents by the IDEA—the right to challenge the provision of a free appropria te public education and the educational placement of their child.” Ap lt. Supp. Br. at 10. First, the mootness doctrine sets constitutional limits on our jurisdiction th at do not bend to acc ommodate statutory remedies. See McClendon , 100 F.3d at 867. Second, Parent has challenged Nathan’s IEP, and successfully so—Nathan remains a student at Alpine.24 482 (1990) (“Our ordinary practice in disp osing of a case that has become moot on appeal is to vacate the judgment with directions to dismiss.”).