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December 23, 1993

DEBRA RAE WOLINSKY, as Parent and Next Friend of LANCE C., et al., Defendants.

The opinion of the court was delivered by: JOHN F. GRADY

 Before the court is the motion of the Board of Education of the City of Chicago ("the Board") and the Superintendent of the Chicago Public Schools for judgment on the pleadings on the counterclaim of Debra Rae Wolinsky and Lance C. As explained below, the motion is denied.


 Lance C. is a teenager afflicted with attention deficit disorder ("ADD"), which is characterized by a short attention span, poor peer relations, slowness at school, and a need for supervision in performing routine tasks. He also suffers from asthma, various allergies, and learning disabilities in word knowledge, visual-motor integration, and visual-motor speed.

 In September 1989, Ms. Wolinsky at her own expense voluntarily enrolled Lance C. at Roycemore School, a private school in Evanston, Illinois. At the time of the initiation of this lawsuit, Lance C. was a ninth-grader at Roycemore placed in a general education curriculum with the school's other students. Before Roycemore, he was enrolled at the University of Chicago Laboratory School, another private institution.

 Ms. Wolinsky, however, did not enroll Lance C. as an active student in the District, and in April 1991 she initiated a Level I due process hearing, as provided for by the Illinois School Code, for the purpose of seeking tutorial, learning disability, and transportation services. On October 15, 1991, the Level I hearing officer refused to grant Ms. Wolinsky's requested services because she had not made Lance C. available for an updated evaluation of his educational needs. Less than two weeks later, Ms. Wolinsky appealed the Level I decision and requested tutorial services and at least partial reimbursement for Lance C.'s tuition at Roycemore. On January 10, 1992, the Level II hearing officer decided Lance C. was entitled to home tutorial services to aid him in completing homework assignments from Roycemore and in coping with his disabilities.

 In this action, the Board seeks judicial review of the Level II decision. It is entitled to such review under the Individuals With Disabilities Education Act ("the IDEA"), 20 U.S.C. § 1400 et seq., which provides that, in order for public school districts to receive federal financial assistance, they must assure all disabled children between the ages of three and twenty-one a free appropriate public education ("FAPE"). *fn1" The IDEA requires certain procedural safeguards regarding the provision of FAPE to disabled students. Those procedures are provided in the Level I and II hearings and through judicial review. The Board contends that it is only required under the IDEA to place Lance C. in a learning disabilities resource program and that the Level II hearing officer's decision to require tutorial service is neither supported by the Illinois School Code nor the IDEA.

 Seeking additional disabilities services and compensatory damages, defendants have counterclaimed against the Board, the Superintendent of the Chicago Public Schools, and the Illinois State Board of Education and its superintendent under the IDEA, § 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 754), 42 U.S.C. § 1983, and the Illinois School Code -- Counts I through IV respectively. The Illinois School Code, among other things, sets out guidelines to determine a disabled student's need for tutorial services, and § 504 (like the IDEA) requires the Board to provide FAPE to disabled children within the city's boundaries.

 Counter-defendants have moved for judgment on the pleadings on the counterclaim based on statute of limitations and mootness grounds. Specifically, they contend that a claim under the IDEA must be brought within 120 days of the Level II decision, and that a claim under the Rehabilitation Act must be brought within two years of discovery of the alleged injury. Here, the counterclaim was brought almost seven months after the Level II decision and more than two years after the Board recommended placement in a learning disabilities resource program. Moreover, counter-defendants argue that the counterclaim is moot because it is based on an outdated IEP. *fn2"


 Statute of Limitations for Count I -- A Claim Under the Individuals with Disabilities Education Act

 The IDEA does not specify a statute of limitations. "When Congress has not established a time limit for a federal cause of action, the settled practice has been to adopt a local time limitation if it is not inconsistent with federal law or policy to do so." Wilson v. Garcia, 471 U.S. 261, 266-67, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). "Borrowing" a state statute of limitations involves a two-pronged analysis: first, does Illinois have an analogous statute of limitations; and second, would that limitations period be consistent with the IDEA's policies and goals. See Elizabeth K. v. Warrick Cty. Sch. Corp., 795 F. Supp. 881, 885-86 (S.D. Ind. 1992). Counter-defendants urge the court to adopt the 120-day deadline for appealing state administrative decisions. Specifically, § 14-8.02(k) of the Illinois School Code, 105 ILCS 5/14-8.02(k) (S.H.A. 1993), sets forth a 120-day period in which to appeal a Level II decision regarding the educational placement of a student. Counter-claimants suggest the two year Illinois statute of limitations for personal injury lawsuits.

 The IDEA counterclaim is more analogous to the review of a state administrative decision regarding educational placement than to a personal injury claim. Section 14-8.02 of the Illinois School Code directly implements the due process requirements of the IDEA, 20 U.S.C. § 1415, by providing for the availability of Level I and II hearings and state judicial review. The standard of review of a Level II decision in state court is similar to the standard of review outlined in the IDEA. Compare 105 ILCS 5/14-8.02(k) with 20 U.S.C. § 1415(e)(2); see Spiegler v. District of Columbia, 275 U.S. App. D.C. 260, 866 F.2d 461, 465-66 (D.C. Cir. 1989) (an appeal of a state administrative decision is analogous to judicial review under the IDEA despite somewhat different standards of review in state and federal courts); ...

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