Student v. Fall River Public Schools – BSEA # 00-0771

COMMONWEALTH OF MASSACHUSETTS

DEPARTMENT OF EDUCATION

BUREAU OF SPECIAL EDUCATION APPEALS

Student v. Fall River Public Schools BSEA # 00-0771

RULING ON MOTION TO ADOPT THREE YEAR STATUTE OF LIMITATIONS

Introduction

A Request for Hearing in this case was initiated through a “Complaint” filed with the Bureau of Special Education Appeals (hereafter, Bureau ) by Parent on behalf of her minor child (hereafter, Student) against Fall River Public Schools (hereafter, Fall River). Parent’s Complaint does not seek relief with respect to current special education services. Rather, Parent alleges that Fall River failed to provide adequate educational services to Student during 1st through 8th grades (Student is currently in 10th grade) and, as compensation, seeks $80,000 to be placed “in an account to be used by [Student] at her discretion after she finishes high school.”

Parent’s Complaint alleges violations of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794; and parts of the Massachusetts public schools statute, M.G.L. c. 71, 37H and 37H½.

Fall River has filed a Motion seeking application of the three year Massachusetts statute of limitations that is applicable to tort actions. Parent opposes that Motion, arguing that the Massachusetts six year contracts statute of limitations should apply, and that in any event, the statute of limitations should be tolled until Student reaches the age of majority. Parent also raises considerations regarding date of accrual of the claim and continuing violation.

IDEA Statute of Limitations

The IDEA gives Parent the right to request an administrative due process hearing to address her claim, and in Massachusetts that hearing occurs before the Bureau. However the IDEA makes no reference to a statute of limitations that would limit the time period during which such a request for hearing may be brought before the Bureau. 20 U.S.C. s. 1415(b)(2).

When a cause of action arises under federal law without an explicit statute of limitations, the issue of what statute of limitations (if any) should apply, is a federal law question which is determined pursuant to federal statutory policy. Holmberg v. Armbrecht , 327 U.S. 392, 395 (1946). See also Tokarcik v. Forest Hills Sch. Dist. , 665 F.2d 443, 449 (3d Cir. 1981) (“Ultimately, we must be guided by the aim of the [IDEA] in devising the limitation period in issue here. If state limitations law conflicts with federal procedural safeguards embodied in [the IDEA], the federal concerns are paramount.”).

The First Circuit Court of Appeals has addressed the precise issue presented in this case – the statute of limitations, if any, applicable to a request for an administrative due process hearing under the IDEA. Murphy v. Timberlane Regional School District , 22 F.3d 1186 (1st Cir. 1994) (hereafter, Timberlane ). Although the Timberlane case involved a New Hampshire special education student and therefore New Hampshire, rather than Massachusetts, state law, this case provides authoritative guidance regarding the present controversy.¹

In Timberlane , the parents requested an administrative hearing in August 1989, alleging that the school district’s failure to provide special education during the two-year period from January 1982 through January 1984 violated the IDEA by failing either to propose an acceptable IEP or to initiate administrative proceedings to resolve the IEP impasse in accordance with New Hampshire state law. The Court considered whether the request for an administrative hearing was filed in a timely fashion, reviewing the equitable doctrine of laches, the question of accrual and the issue of what statute of limitations, if any, should apply to student’s IDEA claims for compensatory education. The Court held that student’s claim was not barred by laches, that a New Hampshire six-year statute of limitations should apply to student’s IDEA claim, and that parents’ request for an administrative hearing was timely filed. Murphy v. Timberlane Regional School District , 22 F.3d 1186 (1st Cir. 1994).

The “borrowing” methodology

When confronted with the dilemma of the absence of a reference within the IDEA to a statute of limitations, one federal Circuit Court has utilized equitable considerations, rather than adopting a state statute of limitations, in order to determine within what time frame a parent may initiate her request for an administrative hearing. Bernardsville Board of Education v. H.H. ex rel. J.H. , 42 F.3d 149, 157-158 (3rd Cir. 1994). See also Strawn v. Missouri State Board of Education , 30 IDELR 244 (D.Mo. 1999). However, the First Circuit Court of Appeals, as well as most other federal courts which have addressed this issue, have borrowed a state statute of limitations to apply to the federal IDEA claim, in addition to applying any equitable considerations (for example, laches) that might limit the action. E.g., Manning by Manning v. Fairfax County School Board , 176 F.3d 235, 30 IDELR 399 (4th Cir. 1999) (“IDEA’s lack of an express statute of limitations did not persuade the First Circuit in Timberlane that no limitations period applied to special education due process hearings, and it does not so persuade us”); Murphy v. Timberlane Regional School District , 22 F.3d 1186 (1st Cir. 1994); Janzen v. Knox County Board of Education , 790 F.2d 484 (6th Cir. 1986); Leake by Shreve v. Berkeley County Board of Education , 965 F.Supp. 838, 26 IDELR 401 (N.D.W.Va. 1997) (finding that Timberlane decision is dispositive of IDEA statute of limitations issue).

The Supreme Court has generally described the relevant considerations in borrowing a state statute of limitations: “[w]hen Congress has not established a time limitation for a federal cause of action, the settled practice has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so.” Wilson v. Garcia , 471 U.S. 261, 266-267 (1985) (§ 1983 action). See also Campbell v. Haverhill , 155 U.S. 610, 616 (1895) (absent federal limitation, congressional intent is best served if the federal right is “enforced in the manner common to like actions” under state law ); Rowlett v. Anheuser-Busch, Inc ., 832 F.2d 194, 198 (1st Cir. 1987) (borrowing N.H. RSA § 508:4 six year limitation on “personal actions” for application to § 1981 action).

In Wilson , the Supreme Court found that all section 1983 actions should be subject to the statute of limitations for personal torts. Wilson v. Garcia , 471 U.S. 261 (1985). However, the First Circuit, as well as other federal courts, have decided that the nature of actions that can be brought under the IDEA, as well as the Act’s goal of appropriate education of the special needs child, require the selection of state limitation periods on a case-by-case basis by analyzing the facts, the procedural posture of the case and the legal theories presented in the particular controversy. E.g. Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1190 (1st Cir. 1994); Janzen v. Knox County Board of Education , 790 F.2d 484, 487 (6th Cir. 1986).

The First Circuit has explained that the appropriate statute of limitations must be determined first by analyzing which state action is most analogous to the federal claim and then by determining whether the state statute of limitations governing that state action is consistent with the policies and goals of the IDEA. Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1190 (1st Cir. 1994). See also Amann v. Town of Stow , 991 F.2d 929, 931-933 (1st Cir. 1993) (borrowing Massachusetts statute of limitations regarding judicial review of administrative decisions in IDEA cases).

Applying the “like action” standard.

The first task, therefore, is to attempt to “characterize the essence of the claim in the pending case, and decide which state statute provides the most appropriate limiting principle.” Wilson v. Garcia , 471 U.S. 261, 268. This is described by the First Circuit as the “like action” standard. Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1192 (1st Cir. 1994).

The present IDEA claim seeks to vindicate Student’s “right to a free appropriate public education,” 20 U.S.C. § 1412(1), by providing compensatory education, based on the contention that Student was deprived of appropriate educational services for eight years. The “essence of the claim” in the present controversy is substantially the same as that presented to the First Circuit in the Timberlane case. Both cases involve a request for an administrative due process hearing, as compared to an appeal of a state administrative ruling to federal court. Also, both cases involve a claim for compensatory education based exclusively on a course of conduct already concluded, as compared to a party seeking administrative review to resolve an impasse regarding current educational services. Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1191-1192 (1st Cir. 1994). See also Janzen v. Knox County Board of Education , 790 F.2d 484 (6th Cir. 1986).

In Timberlane , the First Circuit found that determining the appropriate statute of limitations for an IDEA-based claim for compensatory education may be informed by relevant principles developed in the context of civil actions under 42 U.S.C. §§ 1981 and 1983. In a § 1983 case, the Supreme Court identified a general preference for borrowing state limitations governing personal injury actions, in part because “[i]t is most unlikely that the period of limitations applicable to [personal injury actions] ever was, or ever would be, fixed in a way that would discriminate against federal claims, or be inconsistent with federal law.” Wilson v. Garcia , 471 U.S. 261, 279 (1985) .

As a result, courts seeking to borrow a statute of limitation for an IDEA claim have generally looked first to statutes governing personal injury actions. In Timberlane , the First Circuit reviewed the New Hampshire four-year statute of limitations applicable to personal injury actions against school districts, as well as the six-year New Hampshire statute of limitations governing “personal actions” generally (a “catch-all” statute for civil actions not governed by some more particular statute of limitation). The Court concluded that the “personal actions” statute presents the more analogous New Hampshire statute under the federal “like action” test. Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1192-1193 (1st Cir. 1994).²

Massachusetts has neither a “catch-all” statute of limitations for “personal actions” nor a personal injury statute similar to the one considered in Timberlane . Rather, Massachusetts has essentially three statutes of limitations from which to choose – (i) a three-year statute of limitations applicable generally to contract actions for personal injuries and to tort actions (M.G.L. c. 260, s. 2A), (ii) a six-year statute of limitations applicable generally to contracts (M.G.L. c. 260, s. 2), and (iii) a three-year statute of limitations applicable generally to civil rights actions (M.G.L. c. 260, s. 5B). The appropriateness of each of these will be reviewed.

As discussed supra , the Timberlane case generally indicated a preference for personal injury statutes of limitations. The Massachusetts statute of limitations applicable generally to personal injuries (torts) does not include any of the limiting language (found in the New Hampshire personal injury statute) that the First Circuit relied on when it rejected the applicability of the New Hampshire statute. See footnote 2, infra .

Three Circuit Courts and several District Courts have held that personal injury statutes of
limitations are most analogous to actions under the IDEA, or its predecessor, the Education of All Handicapped Children Act (hereafter, EHA). Janzen v. Knox County Board of Education , 790 F.2d 484 (6th Cir. 1986); Scokin v. State of Texas , 723 F.2d 432 (5th Cir. 1984); Tokarcik v. Forrest Hills School District , 665 F.2d 443 (3rd Cir. 1981); Oak Park School District v. State Board of Education , 886 F.Supp. 1417, 1423 (N.D.Ill. 1995); K.P. v. Juzwic , 891 F.Supp. 703, 716-17 (D.Conn. 1995).

I am not aware of any court which has concluded that an IDEA claim is analogous to a contract action and therefore adopted a contracts statute of limitations. In a case involving an allegedly improper school suspension, one Circuit Court has explicitly considered, and rejected, the applicability of a statute of limitations governing contracts. Manning by Manning v. Fairfax County School Board , 176 F.3d 235, 238, 30 IDELR 399 (4th Cir. 1999).

Therefore, between the Massachusetts personal injury (tort) statute of limitations and the Massachusetts contract statute of limitations, it seems apparent that the personal injury statute presents the more analogous Massachusetts statute under the federal “like action” test. However, in Massachusetts there is a third choice to consider – M.G.L. c. 260, s. 5B governing civil rights actions. Section 5B provides:

Actions arising on account of violations of any law intended for the protection of civil rights, including but not limit to actions alleging employment, housing and other discrimination on the basis of race, color, creed, national origin, sex, age, ancestry or handicap shall be commenced only within three years next after the cause of action accrues.

In Timberlane , the First Circuit did not have a New Hampshire civil rights statute of limitations to consider. However, in its discussion of how to characterize the nature of the dispute, the Court first stated that “an IDEA-based claim for compensatory education is similar to a civil rights action.” The Timberlane Court then turned its analysis to the comparability of personal injury actions, explaining that since an IDEA compensatory education claim is similar to a civil rights action and since civil rights actions have borrowed statutes of limitations applicable to personal injury actions, a personal injury statute of limitations may therefore be appropriate for an IDEA compensatory education claim. Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1193 (1st Cir. 1994).

In other words, the Timberlane decision indicated that it would have a preference for borrowing a state civil rights statute of limitations should such a statute be available.

The Massachusetts statute of limitations for civil rights actions is broad in scope. It also explicitly includes actions alleging discrimination on the basis of handicap. Although not a pure handicap discrimination statute, the IDEA is in many ways equivalent to a discrimination statute. For example, the IDEA may be seen, in general, as Congress’ response to its perception that children with disabilities were being excluded from school or were otherwise being denied an appropriate public education because of their disabilities. See Board of Education v. Rowley , 102 S.Ct. 3034, 3037 (1982).

Section 504 of the federal Rehabilitation Act of 1973 prohibits handicap discrimination in any program or activity receiving federal financial assistance. 29 U.S.C. 794. It has been explicitly characterized by one court as a “civil rights statute.” Board of Education of the City of Chicago v. Wolinsky , 20 IDELR 1197 (D.N.D.Ill. 1994). There are similarities (and areas of congruence) between the IDEA and Section 504. For example, the regulations promulgated under Section 504 by the federal Department of Education state that a school governed by Section 504 must provide a free appropriate public education to each qualified handicapped person within the school’s jurisdiction, and that one means of meeting this standard is the implementation of an individualized education program developed in accordance with the IDEA. 34 C.F.R. 104.33(b)(2). See also W.B. v. Matula , 67 F.3d 484, 492-493 (3d Cir. 1995) (“there appear to be few differences, if any, between IDEA’s affirmative duty to provide a free appropriate public education and s. 504’s negative prohibition against discrimination on the basis of disability”).³

For these reasons, I find that the Massachusetts statute of limitations for civil rights actions (M.G.L. c. 260, s. 5B) presents the most analogous Massachusetts statute under the “like action” test described in Timberlane.

Determining whether the state statute of limitations comports with purposes of IDEA

The final part of the analysis is to consider whether borrowing the Massachusetts civil rights statute of limitations comports with the purposes underlying the IDEA. Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1193-1194 (1st Cir. 1994). The First Circuit has determined that one goal of the IDEA is the quick disposition of disputes regarding a student’s educational placement.

[S]peedy resolutions to the IEP and placement disputes that characterize § 1415(e)(2) actions are necessary for such resolutions to serve any substantively useful purposes because children develop quickly and their needs often change substantially from year to year. The legislative history, statutory terms, and regulatory framework of the IDEA all emphasize promptness as an indispensable element of the statutory scheme. [Citations and quotation marks omitted]

Amann v. Town of Stow , 991 F.2d 929, 931-33 (1st Cir. 1993).

Simultaneously, however, the IDEA encourages cooperation and negotiation among parents and school officials – a goal that is potentially undermined by abbreviated statute of limitations periods.

[T]he more abbreviated the limitation on compensatory education claims the greater the disincentive to parents to shed an adversarial posture and get on with the business of cooperating with school officials to further the special-education needs of the child.

Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1194 (1st Cir. 1994). See also David D. v. Dartmouth School Committee , 775 F.2d 411, 424 (1st Cir. 1985) (IDEA embodies preference for educational decisions arrived at through “good-faith cooperation and negotiation among the parties”); Leake by Shreve v. Berkeley County Board of Education , 965 F.Supp. 838, 844-845, 26 IDELR 401 (N.D.W.Va. 1997).

Although the Timberlane case adopted a six-year statute of limitations, there is nothing within the Court’s decision that would preclude the borrowing of a three-year statute. Other courts have found that a two-year or a three-year statute of limitations satisfies the above-described twin purposes of the IDEA and its predecessor, the Education of All Handicapped Children Act.

The three-year limitation of section 28-3-105(3) is also consistent with the goals of the Education of All Handicapped Children Act. Parents can easily be involved in the decisions relating to the education of their child. Full and independent judicial review is possible while at the same time the goal of prompt disposition of the matter is not inhibited. The unknowing and uninformed are not precluded from bringing an action and the danger that the passage of time will prejudice the defendants because witnesses or evidence may be lost is minimized.

Janzen v. Knox County Board of Education , 790 F.2d 484, 489 (6th Cir. 1986). See also Robertson County School System v. King , 99 F.3d 1139, 24 IDELR 1036 (6th Cir. 1996) (applying a three-year general “civil actions” statute of limitations); Scokin v. State of Texas , 723 F.2d 432, 438 (5th Cir. 1984) (applying a two-year statute generally applicable to tort claims); Tokarcik v. Forest Hills School District , 665 F.2d 443, 454 (3rd Cir. 1981) (applying a two-year personal injury statute of limitations); K.P. v. Juzwic , 891 F.Supp. 703, 716-717 (D.Conn. 1995) (applying a three-year personal injury statute of limitations).

Similarly, a recent federal District Court decision (which explicitly adopted the First Circuit’s analysis in Timberlane ) concluded:

[t]he Court is convinced that use of a two-year limitation in the present matter will both safeguard the handicapped’s [sic] educational rights and reconcile this tension [between the interest of resolving disputes promptly and the interest in allowing the parties sufficient time to resolve issues among themselves]. Under a two-year approach, a student and family seeking compensatory education for a period in which benefits were denied will have a substantial amount of time during which
they can vindicate their rights through the administrative hearing process. At the same time, a two-year limitation will be long enough to provide incentives for non-adversarial negotiation and compromise, yet sufficiently short so as to insure finality and closure within a reasonable time.

Leake by Shreve v. Berkeley County Board of Education , 964 F.Supp. 838, 846, 26 IDELR 401 (N.D.W.Va. 1997). The clear weight of authority is that both a two-year statute of limitations and a three-year statute of limitations are consistent with the purposes of the IDEA.

For these reasons, I find that the Massachusetts civil rights statute of limitations (M.G.L. c. 260, s. 5B) is the most analogous state statute to a claim for compensatory education under the IDEA, I further find that the three-year limitation contained within this statute comports with the purposes underlying the IDEA, and I therefore conclude that this statute should be adopted as the statute of limitations for the IDEA claims in the present controversy.

Section 504 Statute of Limitations

Since Parent has included in her Complaint an allegation that Fall River violated Student’s rights under Section 504 of the Rehabilitation Act, it is also necessary to determine the appropriate statute of limitations governing claims under it.

The analysis begins by determining that federal law does not provide a statute of limitations for Section 504.⁴ Therefore, as explained supra in the analysis of the IDEA, the appropriate statute of limitations must be determined first by analyzing which state statute is most analogous to the federal claim and then by determining whether the state statute of limitations is consistent with the purposes of the Rehabilitation Act. Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1190 (1st Cir. 1994).

For the reasons described in the above IDEA analysis, I find that Section 504 is best characterized as a “civil rights statute,” and the three-year statute of limitations for civil rights actions (M.G.L. c. 260, s. 5B) therefore presents the most analogous Massachusetts statute under the “like action” test described in Timberlane.

Several federal courts have applied three-year statutes of limitations to Rehabilitation Act claims, thereby finding them consistent with the purposes of the Act. E.g., Morse v. University of Vermont , 973 F.2d 122 (2nd Cir. 1992); Doe v. Southeastern University , 732 F.Supp. 7, 9 (D.D.C. 1990); Wallace v. Town of Stratford Board of Education , 674 F.Supp. 67, 71 (D.Conn. 1986). I therefore conclude that the Massachusetts civil rights statute of limitations comports with the purposes of the Rehabilitation Act.

For these reasons, I find that the Massachusetts civil rights statute of limitations (M.G.L. c. 260, s. 5B) should be adopted as the statute of limitations for the Section 504 claims in the present controversy.

Tolling of Statute of Limitations Based on Age of Student

Parent argues further, however, that even if a three-year statute of limitations were to apply, it should be tolled during the time that Student is a minor. Parent relies principally on M.G.L. c. 260, s.7, which states:

If the person entitled thereto is a minor, or is incapacitated by reason of mental illness when a right to bring an action first accrues, the action may be commenced within the time hereinbefore limited after the disability is removed.

Parent is correct in her position that in the absence of a federal statute of limitations, it is normally appropriate to borrow not only the applicable state statute, but also the state rules for its tolling, which in this case would toll the statute of limitations until Student reaches the age of 18 years. However, the state tolling rules are to be borrowed only if to do so would not be “inconsistent with the federal policy underlying the cause of action under consideration.” Alexopulos v. San Francisco Unified School District , 817 F.2d 551 (9th Cir. 1987) (quoting Board of Regents v. Tomanio , 446 U.S. 478, 485, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1980)).

Tolling the IDEA

A number of federal courts have analyzed this precise issue with respect to the IDEA (or its predecessor, the EHA). Several courts have concluded that the state tolling statute is not consistent with the purposes of the IDEA (or EHA) and therefore should not apply. E.g., Alexopulos v. San Francisco Unified School District , 817 F.2d 551 (9th Cir. 1987); Strawn v. Missouri State Board of Education , 30 IDELR 244 (D.Mo. 1999); Smith by Townsend v. Special School District No. 1 , 24 IDELR 1003, (D.Minn. 1996). Other courts have concluded that the state tolling statute should apply to IDEA (or EHA) claims. E.g., Shook v. Gaston County Board of Education , 882 F.2d 119, 121 (4th Cir. 1989); McKellar by Johnson v. Commonwealth of Pennsylvania Depart of Education, 29 IDELR 1064 (D.E.D.Pa. 1999). See also Wayne County Regional Education Service Agency v. Pappas , 30 IDELR 868 (D.E.D.Mich. 1999) (state law statute based on “mental derangement” tolls IDEA claim).

I am persuaded that the Massachusetts tolling statute should not apply to an IDEA claim for two reasons. First, to permit tolling on account of a student’s minority status would undercut the federal policy within the IDEA of assuring that a student’s representative promptly asserts a student’s educational rights.

Congress’ desire to obtain timely and appropriate education for handicapped children by conferring substantial substantive and procedural rights on parents and guardians on behalf of their children clearly indicates that it did not intend to authorize filing of claims on behalf of or by the children many years after the alleged wrongdoing occurred. It is reasonable to assume that Congress expected and intended the child’s representative to file actions and apply for hearings on his behalf near the time the contested event occurred. The child may not later come before court and invoke the tolling provisions of state statutes.

Alexopulos v. San Francisco Unified School District , 817 F.2d 551, 556 (9th Cir. 1987).⁵

The second reason for concluding that the Massachusetts tolling statute should not apply to an IDEA claim is the congruence of the student’s and parents’ interests.

Plaintiffs’ argument rests on the proposition that the rights and obligations of parents under the IDEA are separate from those of their children. To the contrary, the provisions of the IDEA dealing with administrative and judicial review contemplate that parents or guardians will be acting on behalf of their children throughout any administrative or judicial processes that arise out of a state agency’s placement decision. See 20 U.S.C. § 1415. For example, § 1415(b)(1)(A) provides for an opportunity for the parents to examine relevant records, § 1415(b)(1)(C) requires written notice to the parents, and § 1415(b)(2) requires that the parents be given an opportunity for an impartial due process hearing. Therefore, under the IDEA, a child’s parents are the protectors of the child’s right to a free appropriate public education. The child has no claim for educational services separate from the claim that the parents have to assert on behalf of the child. To adopt plaintiff’s tolling argument would be inconsistent with the IDEA’s requirement of yearly educational plans with a right to seek due process review in a timely manner.

Strawn v. Missouri State Board of Education , 30 IDELR 244 (D.W.D.Mo. 1999). But see Wayne County Regional Education Service Agency v. Pappas , 30 IDELR 868 (D.E.D.Mich. 1999) (since IDEA claim is brought by both the child and parents, it would be illogical to disregard status of the child in making the tolling determination).

For these reasons, I conclude that the three year civil rights statute of limitations applicable
to Student’s IDEA claims is not tolled by Student’s age.

Tolling Section 504

In her Complaint, Parent alleges a violation of Section 504 with respect to alleged improper suspensions of Student between November 1997 and May 1998. Since these suspensions appear to be within the three-year statute of limitations, there is no need at this time to reach the issue of whether the statute of limitations for a Section 504 claim is tolled by Student’s age.⁶

Related Issues of Accrual, Continuing Violation and Laches

In her written argument in opposition to Fall River’s Motion, Parent has raised issues regarding time of accrual of her claims.⁷ She has also alleged that Fall River’s actions constitute a “continuing tort.”⁸ In addition, there may be issues regarding laches.⁹ The resolution of these issues within the present controversy requires findings of fact which cannot yet be made. The parties have agreed to bifurcation of the Hearing in order that the Hearing Officer may hear evidence and make any preliminary rulings regarding these matters, prior to a Hearing on the merits. Therefore, these related issues will not be addressed at this time.

Conclusion

For the foregoing reasons, I find that the most appropriate statute of limitations for Parent’s IDEA and Section 504 claims is the Massachusetts three-year statute of limitations applicable to civil rights actions (M.G.L. c. 260, s. 5B). Therefore, Fall River’s Motion is hereby DENIED.

By the Hearing Officer

_________________

William Crane

Dated: December 23, 1999

1

Also, several federal courts have adopted the analysis used in the Timberlane decision, and these decisions are particularly helpful in understanding the implications of Timberlane to the present controversy. Manning by Manning v. Fairfax County School Board , 176 F.3d 235, 30 IDELR 399 (4th Cir. 1999); Leake by Shreve v. Berkeley County Board of Education , 964 F.Supp. 838, 26 IDELR 401 (N.D.W.Va. 1997).

2

The Court’s principal concern with the New Hampshire personal injury statute was that “[t]aken as a whole, the law seems designed to limit municipal liability arising from tort suits and related personal property claims. . . .” The Court noted that the parents’ claims, in contrast, are premised on allegations that the school district withheld all special education services for a two-year period. Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1192 (1st Cir. 1994).

3

It is not unusual for actions brought under the IDEA to allege violations of Section 504 regarding the identical set of facts. Massachusetts special education regulations allow a parent to request a hearing before the Bureau on “any issue involving the denial of the free appropriate public education guaranteed by Section 504 of the Rehabilitation Act of 1973, as set forth in 34 CFR 104.31-104.39.” 603 C.M.R.28.402.0.

4

The 5th Circuit Court of Appeals in Hickey v. Irving Dependent School District , 976 F.2d 980 (5th
Cir. 1992) explains:

The Rehabilitation Act provides that the “remedies [and] procedures . . . set forth in title VI of the Civil Rights Act of 1964” are available to aggrieved persons proceeding under the Rehabilitation Act. See 29 U.S.C. § 794a(a)(2) (1988). However, title VI of the Civil Rights Act of 1964 does not provide a limitations period. See 42 U.S.C. §§ 2000d to 2000d-4a. Furthermore, the general federal statute of limitations, 28 U.S.C. § 1658, does not apply to the Rehabilitation Act of 1973, since it applies only to statutes enacted after December 1, 1990. See 28 U.S.C.A. § 1658 (West Supp.1992).

5

In a related case involving a state tolling statute based on “a condition of mental derangement,” one federal court has rejected the above analysis, concluding that the reason for the prompt resolution of the IDEA claim is not for the benefit of the local education agency, but for the protection of the disabled child and therefore the child may appropriately decide to delay resolution of the claim. Wayne County Regional Education Service Agency v. Pappas , 30 IDELR 868 (D.E.D.Mich. 1999).

I do not find it persuasive that the local education agency has no legitimate interest in the timely resolution of IDEA claims. Failure of the parents/student to seek timely review of education plans may mislead a school system into believing that the educational program is acceptable to the parents/student. Allowing parents/student to attack the appropriateness of an IEP many years after it is implemented may substantially impair the school’s ability to correct the deficiencies before subsequent IEPs are implemented, and failure to correct deficiencies in an educational program can cause the school to expend scarce resources inefficiently or inappropriately. Strawn v. Missouri State Board of Education , 30 IDELR 244 (D.W.D. Mo. 1999).

6

Several federal courts have analyzed the Section 504 issue of tolling based on age. Hickey v. Irving Dependent School District , 976 F.2d 980 (5th Cir. 1992); McKellar by Johnson v. Commonwealth of Pennsylvania Department of Education , 29 IDELR 1064 (D.E.D.Pa. 1999); Smith by Townsend v. Special School District No.1 , 24 IDELR 1003, (D.Minn. 1996).

7

The applicable statute of limitations provides that the civil rights action “shall be commenced only within three years next after the cause of action accrues.” M.G.L. c. 260, s. 5B. See also McGuinness v. Cotter , 412 Mass. 617, 591 N.E.2d 659, 662 (1992) (statute of limitation “normally governs the time within which legal proceedings must be commenced after the cause of action accrues ”). For a discussion of the First Circuit’s understanding of the accrual issue, see Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1194 (1st Cir. 1994) (issue of when an action accrues in an IDEA claim is governed by federal law; IDEA claims accrue when the parents know or have reason to know of the injury or event that is the basis for their claim). For other cases that have applied the accrual doctrine to an IDEA claim, see Dreher ex rel. Dreher v. Amphitheater Unified School District , 22 F.3d 228, 20 IDELR 1449 (9th Cir. 1994); Hall v. Knott County Board of Education , 941 F.2d 402, 18 IDELR 192 (6th Cir. 1991); Leake by Shreve v. Berkeley County Board of Education , 965 F.Supp. 838, 846, 26 IDELR 401 (N.D.W.Va. 1997).

8

See West v. Philadelphia Electric Company , 45 F.3d 744 (3d Cir. 1995) (application of continuing violation doctrine to Title VII action); Jeffery Y. v. St. Marys Area School District , 967 F. Supp. 852, 26 IDELR 715 (D.W.D.Pa. 1997) (application of continuing violation doctrine to IDEA claim).

9

See Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1189 (1st Cir. 1994) (laches may bar claim for equitable relief where a party’s delay in bringing suit was unreasonable and resulted in prejudice to the opposing party). For other federal courts that have applied doctrine of laches to an IDEA claim, see Bernardsville Board of Education v. H.H. ex rel. J.H. , 42 F.3d 149, 157-158 (3rd Cir. 1994); Strawn v. Missouri State Board of Education , 30 IDELR 244 (D.Mo. 1999); Wayne County Regional Education Service Agency v. Pappas , 30 IDELR 868 (D.E.D.Mich. 1999).