The opinion of the court was delivered by: Michael J. Reagan, United States District Judge
I. Background and Procedural History
Plaintiffs, Thomas, Glenna and Kayla Loch*fn1 , filed suit against Defendant, Board of Education of Edwardsville Community Unit School District No. 7 ("the District"), asserting claims against the District arising under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq., Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. §§ 794 et seq., the Civil Rights Restoration Act of 1987 ("CRRA"), Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d, et seq., and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. The action proceeds on the Lochs's amended complaint, filed November 8, 2006 (Doc. 44).
The Lochs appeal the decision of Impartial Hearing Officer ("HO") Gail Friedman who, after a six-day due process hearing, found entirely in favor of the District. Specifically, the HO found as follows: (1) the District appropriately found that Kayla was ineligible for special education and related services; (2) the District did not violate the parents' procedural rights under the IDEA and Illinois law as it provided adequate prior written notice under 34 C.F.R. 300.503 and 23 Ill.Adm. Code § 226.160(d); and (3) Kayla's parents, Thomas and Glenna, were not entitled to reimbursement for Kayla's unilateral placement at the community college.
Kayla alleges that the District, inter alia, failed to evaluate her in a timely manner, refused to honor dual credit courses and discriminated against her on the basis of sex. Thomas and Glenna allege that the District violated the procedural requirements of the IDEA, retaliated and discriminated against them for having filed a complaint with the Human Rights Authority; and deprived Kayla of a free appropriate public education ("FAPE").*fn2
Kayla was diagnosed with Diabetes Mellitus (Type 1, insulin dependent) in 1997 when she was ten years old. In June, 2003, Kayla was diagnosed with "adjustment disorder - mixed anxiety and depression," and, in June, 2004, she was diagnosed with "social anxiety disorder." After Kayla was diagnosed with diabetes, the school district developed a plan for accommodating her disability under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (commonly known as a "504 plan"). Although Kayla began to miss school regularly, she maintained good grades, and teachers continued to rate her social development well. Her attendance record eroded further in eighth and ninth grades and in the first semester of tenth grade, but she still kept up with her work and performed well.
Beginning in March, 2004, during the second semester of her sophomore year, Kayla stopped attending classes at Edwardsville High School ("EHS") and began to attend Lewis and Clark Community College ("LCCC"). This step was taken without consultation or prearrangement with EHS or District administrators. Because Kayla stopped attending classes and completing her work, she failed most of her classes that semester, and her enrollment was dropped.
In July, 2004, the Lochs met with the EHS principal and proposed allowing Kayla to take all of her classes for the following academic year at LCCC. They proposed that Kayla remain registered at EHS and receive credit toward graduation from EHS. The principal responded that school board guidelines did not allow such an arrangement but that he and the assistant superintendent for curriculum would work with the Lochs to devise an appropriate plan for Kayla's continued education at EHS.
Thomas then requested an evaluation under the IDEA to determine whether Kayla was eligible for special education. After conducting a series of tests and meeting with Kayla's therapist, psychiatrist and pediatric endocrinologist, school officials concluded that Kayla's intellectual and psychological functioning were well within the normal category but that she was "at risk" in the "School Maladjustment" domain. In sum, school officials found that Kayla was not in need of special education services.
The Lochs were dissatisfied with this result and ultimately submitted a request for a due process hearing. As outlined above, the HO found in favor of the District, and there was no change in Kayla's status or her eligibility for special education. Because the Lochs could not obtain the accommodations that they sought, they filed the instant action against the District. Before the claims regarding incidents in her freshman (2002-2003) and sophomore years (2003-2004), prior to January 10, 2004, are entirely barred. Kayla filed her initial complaint on January 10, 2006.
The Lochs do not argue that the two-year statute of limitations is inapplicable. Rather, they argue that their claims are timely because they did not begin to accrue until the Lochs had knowledge of the injury. Among the dates proposed by the Lochs, only one falls within the two year-period prior to their filing the instant complaint: Thomas's and Glenna's filing for an IDEA due process hearing on February 11, 2005. See Doc. 168, p. 3, fn 1. The Lochs also contend that their claims remain timely under the continuing violations doctrine because the discrimination and injury are ongoing. The District controverts this latter assertion, arguing that the continuing violations doctrine is inapplicable outside employment settings and, in the alternative, is inapplicable to the facts of this proceeding.
Section 504 of the Rehabilitation Act contains no statute of limitations, so the Court borrows the two-year statute of limitations applicable to personal injury suits in Illinois. Bush v. Commonwealth Edison Co., 990 F.2d 928, 933 (7th Cir. 1993) (citing Ill.Rev.Stat. ch. 110, ¶ 13-202; Wilson v. Garcia, 471 U.S. 261, 276 (1985). Similarly, § 1983 does not contain an express statute of limitations, and the Court adopts the two-year limitations period for personal injury claims. Henderson v. Bolanda, 253 F.3d 928, 931 (7th Cir. 2001) (citing 735 ILCS § 5/13-202; Wilson, 471 U.S. at id.).
Pinpointing accrual in the present case poses a complex question, inasmuch as the Lochs's action challenges an entire course of conduct by the District. However, the injury alleged in this case is denial of special education benefits, the failure to provide certain procedural safeguards and denial of reimbursement for attending classes at LCCC. The limitations period does not run from the various dates of the individual discrete injuries as suggested by the District, but rather from the date that the District denied the special education program the Lochs sought. See, e. g., Bd. of Educ. v. Wolinsky, 842 F.Supp. 1080, 1085 (N.D.Ill. 1993). Thus, the two-year limitations period began on January 18, 2005, when the District notified Thomas and Glenna that Kayla was not eligible for special education and related services.
Alternatively, because the IDEA requires administrative exhaustion before Rehabilitation Act or § 1983 claims premised on IDEA violations can be brought in state or federal court, the Lochs's § 504 and § 1983 claims may not have accrued until January 24, 2005, the date they requested a due process hearing, as required under § 1415(l).See Weyrick v. New Albany-Floyd County Consolidated School Corp., 2004 WL 3059793, 15 (S.D.Ind. 2004) (citing 20 U.S.C. § 1415( l); Marie O. v. Edgar, 131 F.3d 610, 622 (7th Cir. 1997)). Considering the accrual date under either of these standards, this action, filed January 10, 2006, is timely.
B. Whether the District is Entitled to Summary Judgment On the Majority of Counts I, II, IV, VI and IX Because the Lochs Failed to Exhaust Administrative Remedies
The District asserts that several claims asserted in Counts I, II, IV, VI and IX could have been remedied had the Lochs properly raised them at the due process hearing. The District contends that the issue of the adequacy and completeness of the District's evaluations was not raised with the HO and that the HO made no factual findings and issued no order with respect to this claim. According to the District, Thomas conceded that the District complied with the regulations when identifying what additional information was needed for the evaluation and complied with the requirements for determining what information should be considered as part of an evaluation. Stated simply, the District contends that Thomas disagreed with the IEP team's conclusions rather than with the sufficiency of the evaluation. Consequently, the District argues that the exhaustion requirement bars the Lochs from now disputing the evaluation process. The District also urges that the Lochs cannot avoid the exhaustion requirement by an end run around IDEA requirements and the relief available under the IDEA.
The Lochs agree that the IDEA requires exhaustion of administrative remedies before pursuing claims under § 504, ADA and § 1983 claims but contend that they are not required to argue these claims to the hearing officer. Rather, according to the Lochs, since they requested and attended an IDEA due process hearing, the Court may consider related § 504, ADA and § 1983 claims on their merits without further exhaustion. Additionally, the Lochs contend that they raised issues regarding, inter alia, the correctness and timeliness of the District's review and determination as to Kayla's eligibility for special education and whether the District's actions were discriminatory or retaliatory in nature.
The Court is guided by the Seventh Circuit's analysis in Charlie F. v. Bd. of Educ., 98 F.3d 989 (7th Cir. 1996). In Charlie F., a disabled student brought suit against the Board of Education, not under the IDEA, but under § 1983, the Rehabilitation Act, the ADA and the state law of torts. Nonetheless, the Seventh Circuit determined that the exhaustion requirement of the IDEA governed, citing the following provision:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, title V of the Rehabilitation Act of 1973, or other Federal statutes protecting the rights of children and youth with disabilities, except that before the filing of a civil action under such laws seeking relief that is available under this subchapter, the procedures under subsections (b)(2) and (c) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter. Charlie F., 98 F.3d at 991 (citing 20 U.S.C. § 1415(l).
The Court stated that "any pupil who wants 'relief that is available under' the IDEA must use the IDEA's administrative system, even if he invokes a different statute."*fn3 Id. The Court explained that, under the IDEA, educational professionals get "the first crack at formulating a plan to overcome the consequences of educational shortfalls." Id. at 992. If the parents are dissatisfied with the remedies offered and demand compensation, "the response should be that they cannot ignore remedies available under the IDEA and insist on those of their own devising[.]" Id.
Therefore, the Lochs were required to properly raise their claims at the due process hearing and to give the District the opportunity to provide a remedy before repairing to the courts. The Lochs's contention that merely requesting and attending an IDEA due process hearing is sufficient to exhaust claims under § 504, the ADA and § 1983 must fail. The question then is whether the adequacy and completeness of the District's evaluations were raised at the due process hearing.
As of the April 1, 2005, pre-hearing conference, the following issues were before the HO at the due process hearing:
1. Whether the district's review and determination of eligibility [were] correct?
2. Whether the eligibility determination was timely made?
3. Whether parents are entitled to reimbursement for student's unilateral placement at the community college?
4. Whether student should be found eligible under emotional disturbance for failure of the school district to follow student's 504 plan? Doc. 1, Exhibit A, p. 2.
Over the District's objection, on July 14, 2005, the following issues were added pertaining to procedural violations:
1. Whether the district provided written notice pursuant to 20 U.S.C. 1415(b)(3) and (c) within a reasonable time to parents prior to proposing, or refusing to initiate, or change the identification, evaluation, placement or provision of a free appropriate public education?
2. Whether the district provided prior written notice of the evaluations which the district conducted with respect ...