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
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
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. ...