Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

By letter dated April 20, 1998, [student], by his attorney Jeffrey Spitzer-Resnick, requested a due process hearing pursuant to the Individuals with Disabilities Education Act (IDEA) and Chapter 115, of the Wisconsin Statutes. [Student]'s request was based on the alleged failure of the [Unnamed] School District (District) to provide him with a free and appropriate public education (FAPE). More specifically, [student] maintains that he was denied a FAPE because his school principal, Phillip Erikson, forcibly removed him [(student)] from a school bus in May of 1994, and in so doing caused bruising and abrasions to his back.

On May 22, 1998, the District's counsel submitted a Motion to Dismiss the above-captioned matter to the undersigned administrative law judge. A prehearing telephone conference was subsequently held on May 28, 1998, at which time Mr. Spitzer-Resnick requested the opportunity to reply to the District's motion. His request was granted and a briefing schedule was established.

Whether [student]'s request for a due process hearing should be dismissed on grounds that it was untimely filed.

The IDEA does not explicitly provide limitations on when parents may demand a due process hearing related to a school district's alleged failure to provide a FAPE. Generally, courts look to analogous state statutes of limitations. However, the local limitation cannot be such that its use is inconsistent with federal law or policy. Nieuwenhuis v. Delevan-Darien School District, No. 96-C-0522, 1998 WL 100518, at *12 (E.D. Wis. Mar. 4, 1998) (citation omitted). The District argues that the two most analogous statutes are either those that apply to personal injuries (i.e., s. 893.54, Wis. Stats., which carries a three-year statute of limitations) or to intentional torts (i.e. s. 893.57, Wis. Stats., which carries a two-year statute of limitations). [Student] asserts that the six-year statute of limitations applicable in civil rights claims and other residual personal injury matters should instead be applied. (i.e., s. 893.53, Wis. Stats.)

According to the Seventh Circuit, the general policy under the IDEA is to resolve educational disputes as quickly as possible. Id. (citation omitted). "The IDEA requires 'prompt rather then [sic] protracted, resolution of disputes concerning the disabled student's education.' A cause of action designed to resolve these disputes requires a 'short limitations period.'" Id. (citations omitted) Because the IDEA is designed to effectuate up-to-date evaluations and programming for eligible children, lengthy delays in filing claims would defeat the very underpinnings of the law. In Nieuwenhuis, the court concluded that to permit litigation over claims older than five years, after many subsequent events have occurred in the child's education, would hamper an already difficult process.

The reasoning of the Nieuwenhuis decision is persuasive. Accordingly, a six-year statute of limitations, as suggested by [student], would be inconsistent with the purpose of the IDEA and would indeed hamper the resolution of special education matters. It is undisputed that the [student] family was aware of the present allegations for four years prior to their filing a due process hearing request. To allow the [student]s the opportunity to pursue a claim at this late date would frustrate the policies and goals of the IDEA supporting the prompt resolution of educational disputes.

Likewise, a statute of limitations of three years would defeat the purpose of the IDEA because it too fails to address the resolution of special education issues in a timely manner. Although the Wisconsin Legislature has recently adopted a one-year statute of limitations for due process hearings, it was not in effect at the time the [student] claim was filed. Nevertheless, it underscores the Legislature's intent to implement the IDEA's policy of promptly resolving educational disputes.

As the court in Nieuwenhuis noted, "[t]he IDEA and the mechanisms by which states implement it must accommodate fair consideration of the many issues attending special education-while keeping pace with the development of the child himself. …A cause of action designed to resolve these disputes requires 'a short limitations period'" Id. (citation omitted). To allow due process claims that are well in excess of three years such as in the instant case defeats that goal and therefore must be rejected.

Dated at Madison, Wisconsin, this 17th day of July, 1998.