KIRCHGESSNER BY AND THROUGH KIRCHGESSNER v. Davis, Civ. A. No. 85-786(R).
| Decision Date | 14 April 1986 |
| Docket Number | Civ. A. No. 85-786(R). |
| Parties | David KIRCHGESSNER, an infant who sues By and Through his mother and next friend, Maxine KIRCHGESSNER, Plaintiff, v. Dr. S. John DAVIS, Superintendent of Public Instruction, State Department of Education, Bayse Wilson, Superintendent of Roanoke County Public Schools, Dr. Eddie Kolb, Director of Special Education, Roanoke County Public Schools, Defendants. |
| Court | U.S. District Court — Western District of Virginia |
Tonita M. Foster, Roanoke, Va., for plaintiff.
William Broaddus, Atty. Gen., State of Va., Richmond, Va., Dr. S. John Davis, Jean B. Arnold, Blacksburg, Va., Paul Mahoney, Roanoke Co. Atty., Roanoke, Va., for defendants.
Plaintiff David Kirchgessner filed this action against defendants Dr. S. John Davis, Superintendent of Public Instruction for the State Department of Education, Bayse Wilson, Superintendant of Roanoke County Public Schools, and Dr. Eddie Kolb, Director of Special Education for the Roanoke County Public Schools, alleging that the defendants failed to provide him with the free and appropriate education required by law. Currently before the court are some of the defendants' motions to dismiss.1 For the reasons set forth below, the defendants' motions to dismiss shall be granted in part and denied in part.
School Board of Frederick County, School Board of City of Galax, School Board of Goochland County, School Board of King William County, School Board of Mecklenberg County, School Board of Powhatan County, School Board of Prince George County, School Board of Prince William County, School Board of Stafford County, and School Board of City of Virginia Beach as amicus curiae on behalf of the defendants. Kathleen S. Mehfoud, Lacy & Mehfoud, P.C., Richmond, Virginia, on the brief.
Department for Rights of the Disabled of the Commonwealth of Virginia, Virginia Poverty Law Center, Inc., and the Youth Advocacy Clinic of the T.C. Williams School of Law as amicus curiae on behalf of the plaintiffs. Robert E. Shepard, Jr., Professor of Law, Kathe Klare and Frank M. Feibelman, on the brief.
David Kirchgessner is a twelve year old boy who suffers from spina bifida and learning disabilities such as Attention Deficit Disorder and Mixed Developmental Delay. He is currently being educated at the Achievement Center, a private school for the learning disabled in the Roanoke, Virginia area. Prior to his enrollment at the Achievement Center in September 1984, David had been enrolled in the Roanoke County public schools since he began kindergarten in 1978. It is David's departure from the Roanoke County schools, and his reasons for leaving, that give rise to the instant suit.
During part of his tenure in the Roanoke County public school system, David was provided with special learning classes in math. David's parents, however, felt that evaluations of David demonstrated the need for a broader range of specialized classes, and were unhappy with what they view as the system's failure to provide David with the free and appropriate education to which he is entitled. By the end of the 1983-84 school year, the complaint alleges that David's academic and social problems were quite severe. Accordingly, when the Individualized Education Plan ("IEP") for David for 1984-85 was unsatisfactory to the Kirchgessners, the Kirchgessners withdrew David from the Roanoke County public schools and enrolled him at the Achievement Center.
On October 4, 1984, the Kirchgessners requested an Impartial Due Process Hearing to challenge the 1984-85 IEP drawn up for David. After four continuances agreed to by both parties, the Impartial Hearing Officer entered her decision on May 21, 1985, holding that the 1984-85 IEP offered to David by the Roanoke County public schools was an appropriate one. Such a determination precludes an award of tuition to parents seeking reimbursement of the costs of a private school education chosen following the rejection of a child's IEP.
On May 28, 1985, the Kirchgessners appealed the decision of the Impartial Hearing Officer to a State Reviewing Officer. On June 28, 1985, the Reviewing Officer entered his decision, affirming the opinion of the Impartial Hearing Officer, and finding independently that the 1984-85 IEP was appropriate and that the school system had met its obligation of offering a free and appropriate education. The Kirchgessners received notice, pursuant to 20 U.S.C. § 1415(b)(1)(D), of the procedures available under the Education for All Handicapped Children Act, 20 U.S.C. § 1400 et seq. ("EAHCA").
On September 12, 1985, seventy six days after entry of the Reviewing Officer's decision, Kirchgessner filed this action seeking declaratory and injunctive relief and reimbursement of costs incurred by private schooling. The complaint basically alleges that Kirchgessner has not been provided with a free and appropriate education, and seeks relief under EAHCA, 20 U.S.C. § 1400 et seq., Section 506 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Civil Rights Act, 42 U.S.C. § 1983.
The defendants present a multi-layered argument to dispose of Kirchgessner's claim. While the court agrees that Kirchgessner's Rehabilitation Act claim must be dismissed, the court does not believe Kirchgessner's EAHCA claim is time-barred. Accordingly, the defendants' motions to dismiss shall be granted in part and denied in part.
The defendants contend that Kirchgessner has not stated a cause of action under the Rehabilitation Act. Defendants point to Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984) to support their assertion.
Robinson teaches that when "whatever remedy might be provided under the Rehabilitation Act is provided with more clarity and precision under the EAHCA, a plaintiff may not circumvent or enlarge on the remedies available under EAHCA by resort to the Rehabilitation Act." Robinson, 468 U.S. at ___, 104 S.Ct. at 3474, 82 L.Ed.2d at 771. The court has examined Kirchgessner's complaint and believes it requests relief available under EAHCA. For this reason, plaintiff's Rehabilitation Act claim must be dismissed.
Having disposed of Kirchgessner's Rehabilitation Act claim, defendants proceed to argue that plaintiff's EAHCA claim is time-barred. Defendants assert that a thirty day limitation period governs Kirchgessner's claim, and note that the claim was filed seventy six days after the Reviewing Officer's decision. Because the court believes, however, that the appropriate limitation period is one year for cases under the EAHCA, the defendants' motions to dismiss the EAHCA claim will be denied.
The EAHCA establishes a procedural scheme by which parents or guardians of handicapped children may appeal decisions relating to their child's public education. The statute is silent, however, as to the appropriate limitation period for such actions. When a federal statute creates a right but does not specify a period of limitation, federal courts generally determine which state cause of action is most analogous to the federally created cause of action. See, e.g., Board of Regents v. Tomanio, 446 U.S. 478, 482-84, 100 S.Ct. 1790, 1794-95, 64 L.Ed.2d 440 (1980). If the limitations period applicable to the analogous state cause of action is consistent with the underlying policy of the federal act, the court will borrow that limitation period and apply it to the federal cause of action. Oneida County, N.Y. v. Oneida Indian Nation of New York State, 470 U.S. 226, 105 S.Ct. 1245, 1255, 84 L.Ed.2d 169 (1985). If, however, the limitation period applicable to the analogous state cause of action is inconsistent with federal policy, the court will not borrow that limitation period. Id.
The most analogous state cause of action to a suit filed under the EAHCA would seem to be an appeal from a state agency to a state court. In Virginia, there are two proceedings that appear to be analogous to EAHCA suits. First, Va. Code § 22.1-87 permits a person aggrieved by a decision of a school board to appeal the board's action to a circuit court within thirty days of the decision. Second, Va. Code § 22.1-214(D) authorizes appeals from due process determinations in accordance with Va.Sup.Ct. Rules 2A:2 and 2A:4.
While the question is one of first impression in this district, a number of courts around the country have addressed the question of which period of limitation is appropriate for EAHCA actions. These courts have recognized that in determining which state statute of limitations to apply, a court must find not only that the state and federal causes of action are similar, but that the proceedings in each action are analogous as well. See Tokarcik v. Forest Hills School District, 665 F.2d 443 (3rd Cir.1981), cert. denied 458 U.S. 1121, 102 S.Ct. 3508, 73 L.Ed.2d 1383 (1982). Only if the proceedings are analogous have the courts moved to an additional consideration, consistency of the state limitation period with the policies underlying the federal statute. See, e.g., Adler v. Education Department of State of N.Y., 760 F.2d 454 (2d Cir.1985). With this framework in mind, the court will in turn consider adoption of Va.Code § 22.1-81 and Va.Sup.Ct. Rules 2A:2 and 2A:4 as the statute of limitations for EACHA claims in federal courts in Virginia.
As the analysis below demonstrates, the court believes that the proceeding governed by Va.Sup.Ct.Rules 2A:2 and 2A:4 are sufficiently analogous to an EAHCA claim to warrant adoption of the Rules' limitation period for EAHCA claims. The court further believes, however, that the policies underlying the EAHCA are inconsistent with the thirty day limitation period imposed by the Rules. Accordingly, the court declines the defendants' invitation to adopt...
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