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July 1, 1983


The opinion of the court was delivered by: Bua, District Judge.


This case presents claims under the Education For All Handicapped Children Act (EAHCA),*fn1 Section 504 of the Rehabilitation Act (§ 504),*fn2 the equal protection and due process clauses of the fourteenth amendment,*fn3 the Illinois School Code,*fn4 and the Illinois State Constitution.*fn5 The plaintiffs are Max M., a child handicapped within the meaning of the EAHCA, and his parents. The defendants consist of three different groups, designated the State Defendants, the Intermediate Defendants, and the Local Defendants.*fn6

In Count I, plaintiffs allege violations of the EAHCA, § 504, the equal protection clause, the Illinois School Code, and Article X, § 1 of the Illinois Constitution. Plaintiffs seek injunctive relief, compensatory services (remedial education for Max), reimbursement for expenses incurred, and one million dollars in damages. In Count II, brought only against the State Defendants, plaintiffs challenge the ISBE's state-level administrative review process. They seek to enjoin the review procedures alleged to be inconsistent with the EAHCA, and again pray for reimbursement and damages. Each group of defendants has moved to dismiss the complaint on various grounds. In addition, several individual defendants have moved to be dismissed. The motions to dismiss have been referred to a magistrate whose report and recommendations, as well as plaintiffs' objections, are now before this Court.

As on any motion to dismiss, the Court must accept the well-pleaded facts in the complaint as true. Those facts, as shown by the complaint and the exhibits to it, are as follows.

Max M. entered New Trier High School in the fall of 1977. On January 3, 1978, Max was referred to the District # 203 Department of Special Education for evaluation. This referral was the result of Max' poor academic performance, disorganization, difficulty in writing, and anxiety. On January 18, 1978, the head social worker for District # 203 recommended that Max receive outside psychotherapy. On February 6, 1978, Dr. Robert Traisman, consulting clinical psychologist for District # 203, submitted his evaluation of Max, in which intensive psychotherapy was recommended. District # 203 did not offer to provide the services. Max' academic performance and social behavior continued to deteriorate. On July 25, 1978, Max' parents formally requested that District # 203 provide therapy to Max for the next school year.

In Max' sophomore year, an individualized education plan (I.E.P.), which did not include therapy, was developed without participation by Max' parents. Max' condition worsened.

On May 15, 1981, District # 203 notified Mr. and Mrs. M. of its decision to issue Max a diploma. On May 21, Mr. and Mrs. M. submitted a request for a due process hearing to District # 203. Subsequently, District # 203 issued Max a diploma.

On October 13, 1981, a state-appointed hearing officer conducted a hearing concerning Mr. and Mrs. M.'s allegations of violations of Max' right to a free appropriate public education. The hearing officer ordered the diploma revoked, with services to continue based upon a new I.E.P. District # 203 appealed the decision to the Illinois State Board of Education, which, on February 19, 1982, reversed the decision of the hearing officer. Plaintiffs' complaint challenges this ruling.

I. Count I


1. Generally

The EAHCA is a funding statute under which states receive federal funds to assist them in providing educational services to the handicapped. Any state educational agency receiving funds under the EAHCA must establish procedures whereby handicapped children and their parents may protect their rights to a "free appropriate public education." 20 U.S.C. § 1415(a).

Section 1415(b)(1)(E) requires the state to provide "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." The parents must have an opportunity for an impartial due process hearing by the local agency. 20 U.S.C. § 1415(b)(2). Thereafter, an aggrieved party may seek review of the local agency's decision by an impartial officer at the state agency level. Finally, judicial review is available to any party aggrieved by the final decision of the state level agency. 20 U.S.C. § 1415(e)(2).

2. Statute of Limitations

Defendants assert that plaintiffs' claim under the EAHCA is barred by the statute of limitations. The Court disagrees.

Since the EAHCA contains no limitations period, the Court must apply the most closely analogous state statute of limitations. Hark v. School District of Philadelphia, 505 F. Supp. 727 (E.D.Pa. 1980). In so doing, the Court must "characterize the essential nature of the federal claim in terms of the format which the various state statutes of limitation establish." Tokarcik v. Forest Hills School District, 665 F.2d 443 (3d Cir. 1981), cert. denied sub nom., Scanlon v. Takarcik, ___ U.S. ___, 102 S.Ct. 3508, 73 L.Ed.2d 1383 (1982). Defendants characterize the nature of this claim as review, and argue that the proper limitations period is 35 days as provided in the Illinois Administrative Review Act, Ill.Rev.Stat. ch. 110, § 3-103 (IARA). Plaintiffs characterize this claim as an original action, and assert that the proper limitations period is five years as provided in Ill.Rev.Stat. ch. 110, § 13-205.*fn7

Relatively few decisions consider whether a short limitations period contained in an administrative review act should be applied to the EAHCA. Plaintiffs cite Monahan v. Nebraska, 491 F. Supp. 1074 (D.Neb. 1980), modified and remanded on other grounds, 645 F.2d 592 (8th Cir. 1981); Department of Education, State of Hawaii v. Carl D., 695 F.2d 1154 (9th Cir. 1983); and the Tokarcik case. These cases identify several factors for determining whether the state administrative act is sufficiently analogous to justify application of its limitations period. These factors are:

  (a) Whether the Court may engage in de novo
  evaluation of the administrative proceeding;
  Monahan at 1084; Tokarcik at 450; Carl D. at
  (b) Whether the Court may fashion its own remedy
  or is bound to either affirm, reverse, or remand
  the order of the administrative agency;
  Tokarcik at 450.
  (c) Whether the same standard of review governs
  the state-prescribed judicial review as is
  contained in the EAHCA; Monahan at 1084-85;
  Tokarcik at 450.

In applying these criteria to the IARA, this Court finds that the Act is not sufficiently analogous to justify application of its 35-day limitations period. ...

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