                                  United States Court of Appeals,

                                            Fifth Circuit.

                                            No. 91–7282

                                         Summary Calendar.

 Tanya LEE, a Minor, By and Through Mrs. Vicki MacMILLAN, Her Natural Mother and Next
Friend, and Vicki MacMillan, Individually, Plaintiffs–Appellants,

                                                    v.

                   BILOXI SCHOOL DISTRICT, et al., Defendants–Appellees.

                                           June 26, 1992.

Appeal from the United States District Court for the Southern District of Mississippi.

Before POLITZ, Chief Judge, SMITH and WIENER, Circuit Judges.

       POLITZ, Chief Judge:

       Tanya Lee and her mother, Vicki MacMillan, appeal the mootness dismissal of a part of their

handicapped education claims. Based on the stipulation detailed infra and for the reasons assigned,

we affirm.



                                            Background

       Believing her daughter learning disabled, for several years MacMillan unsuccessfully sought

special education for her in the Biloxi School District (BSD). She had her child privately tested in

July 1988 and, armed with those test results, intensified her efforts to secure special education

assistance during the 1988–89 school year. She met with no success; the BSD's petitions to the

Mississippi State Department of Education (MSDE) for special education eligibility for Tanya were

rejected. Tanya was withdrawn from the BSD and she went to live with her father in order to attend

school in the Long Beach School District (LBSD). During her first year in that school system she

was ruled eligible for special education classes.



       The instant suit was filed against the BSD, its Director of Exceptional Student Services, and

the Mississippi Superintendent of Public Education, alleging violation of the Education of the
Handicapped Act, as amended (EHA), 20 U.S.C. §§ 1400 et seq., and the Rehabilitation Act, 29

U.S.C. § 794. The district court dismissed as moot the claims for declaratory and injunctive relief,

and dismissed without prejudice the claims for damages and attorney's fees for failure to exhaust

administrative remedies. A timely appeal of the mootness dismissal was noted.



                                                Analysis

           The district court found the claims for prospective relief moot because of Tanya's transfer

from the BSD. This ruling cannot be reconciled with Daniel R.R. v. State Bd. of Education,1 a case

in which the parents enrolled their child in private school while seeking review of a contested

placement decision. We there held that removing the child from the public school system did not

moot the EHA claim because the entitlement under the EHA survived and the controversy remained

capable of repet ition. "A case may circumvent the mootness doctrine if the conduct of which the

plaintiff originally complained is "capable of repetition, yet evading review.' "2



          Similarly here, MacMillan removed her child from the BSD and simultaneously sought judicial

relief from decisions she believed to be illegal and, more importantly, detrimental to her child's well

being and educational best interests. The record reflects a reasonable expectation that Tanya would

return to live with her mother and re-enroll in the BSD were she assured that the Biloxi District

would provide the needed special education. As in Daniel R.R., MacMillan's refusal to sacrifice

critical years of her daughter's development pending time-consuming review proceedings does not

render her case moot. 3 To hold otherwise effectively would insulate EHA claims from judicial

review.



   1
       874 F.2d 1036 (5th Cir.1989).
   2
   Id., 874 F.2d at 1040, quoting Honig v. Doe, 484 U.S. 305, 318, 108 S.Ct. 592, 601, 98
L.Ed.2d 686, 703 (1988).
   3
   Cf. School Committee of the Town of Burlington, Mass. v. Dept. of Education of the
Commonwealth of Massachusetts, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).
           The Biloxi School District defendants4 urge an affirmance based on their express commitment

to be bound by the Long Beach School District determination that Tanya needs special education,

and to make available special education equal to that provided by Long Beach. The record reflects

this commitment which is summarized in appellees' brief to this court as follows:



          With the MSDE authorized eligibility determination Tanya was placed in a program of special
          education for specific learning disabilities under an appropriate Individual Educational Plan
          (IEP).... [W]ith the advent of the MSDE approved eligibility of Tanya for special education
          she could ret urn t o BSD at any time and be immediately placed in the same program of
          special education under her existent IEP. BSD has stipulated it would recognize Tanya's
          subsequently determined eligibility for special education and her existent IEP placement....
          Should ... Tanya ... re-enroll in the BSD, she will remain eligible for the same special
          education placement as is available and existent in the LBSD.

The Biloxi defendants also concede that Tanya's IEP "mandates placement in an appropriate program

of special education for specific learning disabilities through the completion of her secondary

education."



          Considering this commitment by the BSD and its Director of Exceptional Student Services,

and persuaded that the commitment will be faithfully honored, we conclude that the claims for

declaratory and injunctive relief are effectively mooted and, accordingly, the judgment of the district

court is AFFIRMED.5




   4
       The state defendant neither joins nor rejects this basis for affirmance.
   5
    We neither express nor imply any opinion about the merits of the claims dismissed for failure
to exhaust administrative remedies.
