Joseph James, a Minor by and Through His Parents, Nancy James and Cameron James Nancy James Cameron James v. Upper Arlington City School District

BOGGS, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. RALPH B. GUY, Jr., J. (pp. 770-71), delivered a separate opinion concurring in part and dissenting in part.

OPINION

BOGGS, Circuit Judge.

Nancy and Cameron James removed their son Joseph from the Upper Arlington school system in November 1989, because he was in the fourth grade and still could not read due to severe dyslexia, which the parents felt that the school was not doing enough to help him overcome. At a meeting the previous month to discuss Joseph’s individualized educational program (IEP), the school district had told the parents that Joe would never learn to read and would “have to learn there are other ways to get information besides reading.” Over the next six years, Joseph was placed in three different private schools, where he did learn to read. The Jameses did not ask the school district to pay for the tuition. They did, however, continue to have some interaction with the district.

In the spring of 1990, the Jameses asked for a new IEP for Joseph, but were told that the school district would not prepare one until Joseph re-enrolled in the public school system. They declined to pursue that option. According to the complaint, “after Joe completed the [school] year at Kildonan,” the Jameses again- approached the school district about returning Joseph to the public schools, but the Director of Special Education told the parents, “Don’t bring him back now, give me a couple of years to get someone trained.” The Jameses did not challenge that advice, or the district’s continuing refusal to write an IEP for Joseph until he re-enrolled. Finally, on May 13, 1996, the Jameses made a written request for a due process hearing under the Individuals with Disabilities Education Act (IDEA), seeking retroactive and prospective tuition from Upper Arlington for Joseph’s private school education.

The Administrative Officer never reached the merits of whether Joseph had an appropriate individual education plan, nor was there an evidentiary hearing, because the AO accepted the school district’s argument that the Jameses had not followed proper procedures, and therefore granted the district’s motion to dismiss. A state level review officer affirmed the AO’s decision, based on the grounds that the parents had unilaterally withdrawn their son without first pursuing the appropriate administrative remedies.

The district court granted judgment on the pleadings to the school district in a December 15, 1997 order, holding that the statute of limitations had begun to run in November 1989 when Joseph was removed from the school district and had expired no more than four years later, long before the current action began. The district court noted that the Jameses had known of their right to initiate a due process hearing in 1989, but had failed to do so until 1996. Because they failed to pursue administrative relief before removing their son from public school, and because the statute of limitations has run, the district court concluded that the Jameses are no longer entitled to an education at public expense. We disagree with the district court that the Jameses did not give the school district an adequate opportunity to correct Joseph’s educational program. Although we affirm the judgment of the district court with regard to Joseph’s 1989 removal and the 1990 rebuffed request for an IEP on statute of limitations grounds, we remand the case for further proceedings on the separate subsequent cause of action that arose in 1994 and may have been timely pursued in 1996.

I

The Supreme Court has held that parents who violate the “stay-put provision” of IDEA (20 U.S.C. § 1415(e)(3), now 20 U.S.C. § 1415(j)) during the pendency of administrative review procedures do not forfeit the right to tuition reimbursement. See School Comm. of Burlington, Mass. v. Department of Educ. of Mass., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). However, if their removal decision is not upheld, they do not get reimbursed. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) (“[Pjarents who ... unilaterally change their child’s placement during the pendency of review proceedings ... do so at their own financial risk”). The Sixth Circuit has read this precedent to mean that parents who ignore the administrative process entirely “generally render their children ineligible for free special education.” Wise v. Ohio Dept. of Educ., 80 F.3d 177, 183 (6th Cir.1996). The Wise plaintiffs never made a formal request for a hearing, so the facts are slightly different than here where a request was made eventually, although extremely late in the game.

The law is well established that parents who unilaterally withdraw a student, request a due process hearing, and pursue administrative relief, may recover tuition retroactively if their administrative action is successful. Less clear is whether parents who do not request a hearing until years later receive similar treatment. The Jameses’ claim thus raises two questions. First, may their 1994 interaction with the school district be construed to raise a new cause of action? Second, if not, then does the statute of limitations bar consideration of the merits of the Jameses’ claim?

II

The Jameses acknowledge that they did not request a due process hearing until 1996. However, they claim that the school district did not advise them that they could request such a hearing or that they might have a right to tuition reimbursement. Moreover, they note that the IDEA requires school districts to give parents such notice in writing when the school district refuses to make a requested change in a child’s special education program. The district concedes such an obligation under the statute, but insists that the Jameses acted unilaterally, and that the school district thus never had an opportunity to refuse to make a requested change. In addition, the record contains evidence suggesting that the Jameses had actual notice of their hearing rights. On April 14, 1987, Mrs. James signed a form stating that “My rights have been discussed with me and I have received ... information for parents regarding special education.” This information included a brochure informing parents that “you ... have the right to request an impartial due process hearing at any time to resolve disagreements related to ... the provision of a free appropriate public education to your child.” Despite knowledge of their hearing rights, the Jameses did not seek a hearing to resolve the problem with the school district’s education program for their son until 1996.

The Jameses’ 1994 interaction with the school district suggests that a new cause of action arose prior to their 1996 request for a due process hearing. Taking all the well-pleaded facts as true, as we must on a motion to dismiss, the Jameses made contact with the school system about returning their son in 1994 and having a new IEP done, but were essentially rebuffed. Although Joseph was never enrolled, and the school district never refused to enroll him or to do a posí-enrollment IEP, the district did discourage the Jameses from re-enrolling Joseph. Furthermore, the district told the Jameses that their child would have to be re-enrolled before the school district would be obligated to do a new IEP for him.

There is no clear law that this is correct. The obligation to deal with a child in need of services, and to prepare an IEP, derives from residence in the district, not from enrollment. The district can perhaps be excused for taking no action during 1989-94, when apparently the child was being educated to his parents’ satisfaction without input from the school district. Since the Jameses were aware, at least constructively, of the availability of a due process hearing, the school’s failure to update their notice during that interval did not create a new cause of action. The IDEA establishes the appropriate course of action for parents who are dissatisfied with a public school’s intended educational program for their child. By not following those procedures, parents cannot create a new cause of action not envisioned by the Act itself. In short, the Jameses had an obligation to request a due process hearing, and they failed to meet that obligation in a timely fashion. See Ash v. Lake Oswego Sch. Dist. No. 7J, 766 F.Supp. 852, 864 (D.Or.1991).

The excusable state of affairs apparently came to an end in 1994 when the parents specifically approached the school district about re-enrollment and obtaining a new IEP, even though the Jameses did not request a due process hearing at that point in time. If the Jameses’ rights were in any way violated at that point, a cause of action arose at that time separate from any that arose in 1989. We hold that refusing to do an IEP pre-enrollment constitutes such a violation. See Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F.3d 391, 393 (6th Cir.1998) (noting in passing that federal law required development of an IEP for a child still enrolled in a private school). To hold otherwise would allow the school to slough off any response to its duty until the parents either performed the futile act of enrolling their son for one day and then withdrawing him as soon as the IEP was complete, or, worse, leaving the child in an arguably inadequate program for a year just to reestablish his legal rights. Neither action' seems to be compelled by the statutory scheme or the case law. Nor does the failure to request a due process hearing in 1994 vitiate the cause of action that accrued in 1994. Rather, the request for a hearing made in 1996 preserved the earlier claim as well as the claim relating to the 1996-97 school year.

Ill

This court has never squarely decided whether the statute of limitations bars consideration of the merits of a claim like the Jameses’. Still, as in Wise, the Jameses did not give the school an opportunity to remedy the problem before 1994. Assuming for purposes of argument that the school district’s plan for Joseph was inadequate, by unilaterally withdrawing their son and failing to seek administrative relief in a timely fashion, the Jameses prevented the school from correcting that inadequate plan. The IDEA does not require the best possible education at public expense, only an appropriate one. See Wise, 80 F.3d at 185. Given the opportunity, the Upper Arlington school district may have been able to provide Joseph an appropriate education, albeit not the best one possible.

The Jameses’ initial cause of action arose in November 1989 when they decided that the school district was failing their son. The IDEA, like § 1983, does not specify a statute of limitations. In such cases, federal courts adopt the statute of limitations from state law that most closely corresponds to the action brought. See Janzen v. Knox County Bd. of Educ., 790 F.2d 484 (6th Cir.1986). The Janzen court held that no one state statute of limitations applies, so it must be judged on a case-by-case basis. Here, however, whether applying Ohio’s two-year statute of limitations for personal torts or its four-year statute of limitations for actions to recover personal property, the statutory limit has run for a suit to recover tuition starting in 1989. Their initial claim accrued when they knew of the injury to their child [i.e., the inadequate education]. See Hall v. Knott County Bd. of Educ., 941 F.2d 402, 408 (6th Cir.1991). However, the Jameses’ 1996 request for a due process hearing was clearly less than four years, and may have been less than two years, after the cause of action that accrued in 1994 and thus may be heard.

By unilaterally withdrawing their student from public school and requesting a due process hearing, parents assume a double risk. First, they assume the risk that their child’s IEP will be found adequate, thus precluding their reimbursement. Second, they assume the risk that though their child’s IEP was inadequate, the alternative placement they chose for their child will not be deemed an adequate education either, thus precluding their reimbursement. As noted above, the Supreme Court has determined that parents are entitled to assume such a risk and proceed in such a manner. Parents are not entitled, however, to delay a request for a due process hearing, incur tuition costs of their own choosing for several years (thus depriving the school district of a chance to fashion a less expensive acceptable alternative), and then ask the school district to fund whatever alternative they have pursued in the interim.

The Jameses argue that Doe v. Metropolitan Nashville Pub. Sch. changes the outcome of this case. See Doe, 133 F.3d 384 (6th Cir.1998). However Doe is readily distinguishable from the case at bar. The school district in Doe had failed to comply with the IDEA’S so-called child-find requirements. The parents had also made the private placement without having had prior contact with the school system. Perhaps most significantly, the Doe court concluded that genuine issues of material fact existed in that case, and that the district court had improperly weighed evidence at the summary judgment stage. No genuine issues of material fact exist in the case under review, and thus the district court did not improperly weigh anything relating to the 1989 cause of action that must be remanded for trial.

IV

The Jameses’ Rehabilitation Act and § 1983 claims based on the 1989 cause of action are likewise barred by their respective two-year statutes of limitations. See Southerland v. Hardaway Mgmt., Inc., 41 F.3d 250, 254 (6th Cir.1994) (rehabilitation act); Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (Section 1983). In addition, the Jameses’ claims against school officials are not proper under the IDEA absent a claim that they failed to act in fulfillment of their statutory duties. See Reid v. Board of Educ. Lincolnshire-Prairie View, 765 F.Supp. 965, 969 (N.D.Ill.1991) (citations omitted). Finally, there does not appear to be any good reason to toll the statute of limitations in this case. The Jameses were aware of their rights and sat on them, which does not justify tolling.

V

The Jameses had an obligation under the IDEA to challenge the Upper Arlington school district’s IEP through administrative channels. Even after unilaterally withdrawing their son, they could have requested a due process hearing on the adequacy of the IEP. Instead, they waited for almost seven years to seek reimbursement for private tuition costs they had incurred. Still, they did approach the school district in 1994 and were denied an IEP. That latter circumstance gives them a cause of action, even though their earlier action does not. Under the circumstances presented to the court, we hold that the plaintiffs cannot recover their expenses retroactively between 1989-94, but can pursue a claim regarding tuition after the Jameses approached the school district in 1994 and were rebuffed.

For the above reasons we AFFIRM the judgment of the district court in part, REVERSE it in part, and remand the case to the district court for further proceedings consistent with this opinion.