For Whom the School Bell Tolls but Not the Statute of Limitations: Minors and the Individuals with Disabilities Education Act

This Article explores whether claims under the federal special education statute should be tolled on account of minority. Adult disabled students typically assert this type of tolling claim when alleging statutory violations dating back ten or more years, when they were minors. However this tolling claim is decided, there may be undesired results. First, even if the student has a very strong case, the merits are never reached if the court dismisses the hearing request as untimely. Second, if the hearing request is timely and the case proceeds to the merits, the student must remain in her current educational placement, potentially at great cost, during the lengthy IDEA hearing and appeals process as mandated by the IDEA’s “stay put” provision. Moreover, the school may face difficulties defending the claim on the merits because under the IDEA, schools must allow parents and adult students to request destruction of their special education records to the extent the records are not currently required in order to provide services. Finally, unique challenges arise for schools because parents help develop their child’s special education program. Accordingly, schools rely on both the parents’ approval of the educational program, as well as the parents’ choice not to request a due process hearing for their minor child. The IDEA specifically assigns the right to make this decision to the parents of minor students, and not the minor students themselves, as part of the IDEA’s panoply of procedural safeguards.

Congress first addressed statute of limitations issues under the IDEA in the 2004 amendments. This Article surveys the relevant case law on whether to “borrow” tolling provisions from state statutes and reveals great variation among the courts. Specifically, the courts vary in their adherence to Supreme Court precedent, their application of this precedent, and their conclusions about whether tolling on account of minority should apply in IDEA disputes. The Article concludes that, because of the unique role the IDEA assigns to parents, the correct approach under the pre-2004 amendments is not to toll claims for minors. The Article then examines the new IDEA language, which creates explicit statutes of limitation, but does not explicitly address the issue of tolling for minor students. Consequently, in future litigation, students and parents are likely to claim that tolling for minors should be judicially read into the IDEA’s new statutes of limitations. However, this Article concludes, through an application of the Supreme Court’s guidance in this area, that a tolling rule for legal minors should not be read into the IDEA’s new statutes of limitation. Tolling for minors is inconsistent with congressional intent as evidenced by the pre-2004 amendments analysis, and further strengthened by the new amendments. Finally, the consequences of tolling are harsher than those of not tolling.