CM Ex Rel. JM v. Board of Education

Filed: March 16, 2001

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 99-2533(L)

(CA-98-66-1, CA-99-3)

CM, etc., et al.,

Plaintiffs - Appellants,

versus

The Board of Education of Henderson County,

etc., et al.,

Defendants - Appellees.

O R D E R

The court amends its opinion filed February 21, 2001, as

follows:

On page 3, section 1, line 1 -- counsel’s firm name is cor-

rected to read “The Law Firm of Paul L. Erickson.”

On page 5, first paragraph, line 1 -- a period is added after

the abbreviation “Stat.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CM, a minor, by and through her

parents, JM and EM, and on their

own behalf,

Plaintiffs-Appellants,

v.

THE BOARD OF EDUCATION OF

HENDERSON COUNTY, a/k/a

Henderson County Public Schools;

DAN G. LUNSFORD, Education

Department Superintendent; LINDA

No. 99-2533

R. HAWK, Chairman; JACKIE H.

HORNSBY, Vice Chairman; ERVIN W.

BAZZLE; BRENDA O. BROCK; ALLEN

A. COMBS; THOMAS E. ORR; THOMAS

B. PRYOR; JUDY DIANE HARTMAN

COOK, in their official and

individual capacities,

Defendants-Appellees,

STATE OF NORTH CAROLINA,

Intervenor.

M.E.; P.E., on their behalf and on

behalf of their son, C.E.,

Plaintiffs-Appellants,

v.

THE BUNCOMBE COUNTY BOARD OF

EDUCATION, a/k/a Buncombe County

Public Schools,

Defendant-Appellee,

No. 00-1101

and

STATE OF NORTH CAROLINA,

Intervenor.

UNITED STATES OF AMERICA; NORTH

CAROLINA SCHOOL BOARDS

ASSOCIATION,

Amici Curiae.

Appeals from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(CA-98-66-1, CA-99-3)

Argued: December 4, 2000

Decided: February 21, 2001

Before WIDENER and MOTZ, Circuit Judges, and

Terrence W. BOYLE, Chief United States District Judge

for the Eastern District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed in part and reversed and remanded in part by published

opinion. Judge Motz wrote the opinion, in which Judge Widener and

Chief Judge Boyle joined.

_________________________________________________________________

2

COUNSEL

ARGUED: Paul Lawrence Erickson, THE LAW FIRM OF PAUL L.

ERICKSON, Asheville, North Carolina; Peter W.D. Wright,

Deltaville, Virginia, for Appellants. Kevin Kendrick Russell,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Amicus Curiae United States. Ann L. Majestic, THAR-

RINGTON SMITH, L.L.P., Raleigh, North Carolina; Christopher

Zemp Campbell, ROBERTS & STEVENS, P.A., Asheville, North

Carolina, for Appellees. Joyce S. Rutledge, Assistant Attorney Gen-

eral, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,

North Carolina, for Intervenor. ON BRIEF: Michael F. Easley,

Attorney General of North Carolina, Thomas J. Ziko, Special Deputy

Attorney General, NORTH CAROLINA DEPARTMENT OF JUS-

TICE, Raleigh, North Carolina, for Intervenor. Bill Lann Lee, Acting

Assistant Attorney General, Mark L. Gross, Rebecca K. Troth,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C.; Judith A. Winston, General Counsel, Kala Shah Surprenant,

UNITED STATES DEPARTMENT OF EDUCATION, Washington,

D.C., for Amicus Curiae United States. Elaine M. Whitford, THAR-

RINGTON SMITH, L.L.P., Raleigh, North Carolina; Allison B.

Schafer, NORTH CAROLINA SCHOOL BOARDS ASSOCIATION,

Raleigh, North Carolina, for Amicus Curiae Association.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

We consider today, as a matter of first impression, whether a state

statute, providing that a request for a due process hearing must be

filed within sixty days of an agency decision, is inconsistent with the

Individuals with Disabilities Education Act (IDEA). We conclude that

as long as a party seeking such a hearing is supplied with the required

statutory notice, this limitations period does not conflict with federal

policies embodied in the IDEA.

I.

Both cases before us involve requests for IDEA services on behalf

of autistic children. The North Carolina public school system has

3

developed a nationally recognized program for educating autistic chil-

dren known as the TEACCH program. But the parents of both chil-

dren involved in these cases concluded that the Lovaas program, a

rival method for the education of autistic children, offered their chil-

dren more hope for a normal life. Accordingly, the parents placed

their children in Lovaas therapy. When the parents asked school offi-

cials to reimburse them for the cost of the Lovaas program under the

IDEA, those officials refused. Both sets of parents continued to nego-

tiate for a time with school administrators, and then filed petitions for

due process hearings. State administrative law judges (ALJs) dis-

missed all or most of the claims in these petitions as untimely.

We first briefly outline the statutory scheme at issue here and then

the specific relevant facts of the two cases before us.

A.

The IDEA creates a federal grant program to assist state and local

agencies in educating disabled children. See 20 U.S.C. § 1412 (1994

& Supp. IV 1998). To receive funds under the IDEA, states must pro-

vide disabled children with the opportunity to receive a "free appro-

priate public education," § 20 U.S.C. § 1412(a)(1), by providing

special education and related services in an "individualized education

program" (IEP). 20 U.S.C. § 1412(a)(4). "[T]o ensure that children

with disabilities and their parents are guaranteed procedural safe-

guards with respect to the provision of free appropriate public educa-

tion," the IDEA requires states to establish and follow certain

procedures. 20 U.S.C. § 1415(a). Among these is the requirement

that, if parents of a disabled child and an educational agency disagree

as to the appropriateness of an IEP or a question of financial responsi-

bility, parents have the right to resolve the matter at an "impartial due

process hearing, which shall be conducted by the State educational

agency or by the local educational agency, as determined by State law

or by the State educational agency." 20 U.S.C. § 1415(f).

North Carolina has implemented the IDEA in N.C. Gen. Stat.

§ 115C-111, et seq. (1999). In this statute, as instructed by the IDEA,

North Carolina has provided parents the right to an impartial due pro-

cess hearing, which is referred to in state law as a "[r]ight of [r]eview"

4

at a "contested case" hearing. N.C. Gen. Stat. § 115C-116(c); N.C.

Gen. Stat. § 150B-23.

The IDEA itself imposes no time limit on the period in which par-

ents may request a due process hearing. The chapter of the North Car-

olina code implementing the IDEA, however, directs that "[e]xcept as

otherwise provided in this section, the administrative review shall be

initiated and conducted in accordance with Article 3 of Chapter 150B

of the General Statutes, the Administrative Procedure Act [APA]."

N.C. Gen. Stat. § 115C-116(d).

The North Carolina APA, in turn, provides that "a contested case

shall be commenced by filing a petition." N.C. Gen. Stat. § 150B-

23(a). It further provides:

Unless another statute or a federal statute or regulation sets

a time limitation for the filing of a petition in contested

cases against a specified agency, the general limitation for

the filing of a petition in a contested case is 60 days. The

time limitation, whether established by another statute, fed-

eral statute, or federal regulation, or this section, shall com-

mence when notice is given of the agency decision to all

persons aggrieved who are known to the agency by personal

delivery or by the placing of the notice in an official deposi-

tory of the Unites States Postal Service wrapped in a wrap-

per addressed to the person at the latest address given by the

person to the agency. The notice shall be in writing, and

shall set forth the agency action, and shall inform the per-

sons of the right, the procedure, and the time limit to file a

contested case petition. When no informal settlement

request has been received by the agency prior to issuance of

the notice, any subsequent informal settlement request shall

not suspend the time limitation for the filing of a petition for

a contested case hearing.

Id. § 150B-23(f) (emphasis added).

B.

In M.E., the family moved to North Carolina from Maryland in

August 1995, after C.E. had been diagnosed as autistic at a TEACCH

5

center in North Carolina. When the family arrived in North Carolina,

C.E.'s parents initially placed C.E. in a Lovaas program. Pleased with

C.E.'s progress, in March 1996 his parents contacted the Buncombe

County school authorities seeking funding for the Lovaas program

under the IDEA. Extensive negotiations followed, including several

meetings, letters, and the preparation of a draft IEP. C.E.'s parents

repeatedly rejected any proposed placement of C.E. other than in the

Lovaas program.

In June 1997, the parents decided that C.E. had substantially recov-

ered because of the Lovaas therapy and wished him placed in regular

public school classes. In that same month, C.E. was medically re-

evaluated and school officials agreed with the parents that C.E. was

no longer disabled.

In July 1997, the parents again requested funding for C.E.'s past

participation in the Lovaas program. The parents and attorneys for the

Buncombe County Board of Education exchanged letters in August

1997 discussing "settlement" of this claim. In neither the August let-

ters, nor in any prior or subsequent correspondence, did the Board

state that it was providing written notice of its final decision to deny

all but nominal reimbursement for the Lovaas program or that the

applicable limitations period for filing a petition for a due process

hearing was sixty days from the date of that denial. The Board did

forward with one of the August letters a copy of the current IDEA

notice and attorneys' fees provisions, as well as recently amended

North Carolina "mediation provisions."

In April 1998, the parents filed a petition for a due process hearing,

seeking reimbursement for C.E.'s Lovaas therapy. A state ALJ found

that one of the Board's August 1997 "settlement" letters was "final

rejection" of the parents' reimbursement claim, and that their petition

had been filed 257 days after the August letter, on April 22, 1998. The

ALJ concluded that the Board provided the parents "with the requisite

notice pursuant to § 150B-23." Accordingly, the ALJ held that the

parents' petition was untimely. A state review officer affirmed this

decision. The parents then filed a complaint in the district court,

which granted summary judgment to the Board, reasoning that the

ALJ had correctly ruled that the 60-day limitations period barred the

claim.

6

The facts of CM are similar to those in M.E. CM was diagnosed

with autism at age two and her parents brought her from New Hamp-

shire to North Carolina to take advantage of the TEACCH program.

In 1993, CM began the TEACCH program, where she made educa-

tional progress. However, after learning of Lovaas therapy, CM's par-

ents removed her from TEACCH and enrolled her in the Lovaas

program.

In December 1994, CM's parents asked Henderson County school

authorities to fund her participation in the Lovaas program under the

IDEA. After a series of meetings, school officials proposed an IEP for

the 1995-1996 school year, which placed CM in a full day program

with TEACCH. This IEP was mailed to the parents on February 16,

1995, with an accompanying letter explaining why school officials

believed that the IEP set forth an appropriate plan for CM. The Febru-

ary 16, 1995 letter also discussed the possibility of mediation,

explaining that mediation "does not in any way limit or delay a formal

due process hearing or other legal procedure." Finally, the letter noted

that "[y]ou indicated that you have a copy of the Handbook of Par-

ent's Rights, which outlines appeal options available" and forwarded

another copy of the handbook to the parents. Again, neither in this let-

ter nor in later communications did the school board state that it was

providing written notice of its final decision to deny reimbursement

for the Lovaas program or that the applicable 60-day limitations

period for requesting a due process hearing had been triggered.

The parents responded by requesting first mediation and then a re-

evaluation of CM by outside consultants. Although the parents and

school authorities exchanged numerous letters, mediation never

occurred; however, outside consultants did re-evaluate the child. As

the previous IEP was about to expire, school officials began to pre-

pare a new IEP for CM. After further negotiation and re-evaluation

of CM, school officials and CM's parents participated in IEP meet-

ings during August and September 1996 for the 1996-1997 school

year. The 1996-1997 IEP again proposed placing CM in the

TEACCH program, and the parents again objected, favoring the

Lovaas program.

On November 1, 1996, the parents filed a petition for a due process

hearing, seeking reimbursement for CM's participation in the Lovaas

7

program for the 1993-1994, 1994-1995, and 1995-1996 school years

and placement in Lovaas therapy in the 1996-1997 school year. That

petition was consolidated with a petition that CM's parents had filed

on June 25, 1996, seeking reimbursement for costs associated with

obtaining outside evaluation of CM. On March 24, 1997, another state

ALJ (not the ALJ that ruled in M.E.) found the parents' claims

untimely and granted summary judgment to the Henderson County

schools with respect to the reimbursement claims and assertion of

IDEA violations in the 1993-1994, 1994-1995, and 1995-1996 school

years. The ALJ reasoned that the parents' "rights to file a contested

case expired 60 days after the February 16, 1995 correspondence." On

December 11, 1997, after a multi-day hearing, still another ALJ

entered a final order finding the 1996-1997 proposed IEP appropriate.

On March 3, 1998, a state review officer affirmed all of these deci-

sions.

The parents then filed a complaint in the district court seeking to

recover on the claims rejected by the ALJs, asserting new IDEA

claims for the 1997-1998 and 1998-1999 school years, and a host of

other new contentions. Ultimately, the district court rejected all of the

parents' claims.1

1 With respect to the 60-day limitations period, the

court concluded that the ALJ had properly applied that limitations

period to bar the parents' claims for the 1993-1994, 1994-1995, and

1995-1996 school years.

We consolidated M.E. and CM on appeal and permitted the State

of North Carolina to intervene as an appellee, urging affirmance. We

also permitted the North Carolina School Boards Association to

appear as an amicus, urging affirmance, and the United States to

appear as an amicus, urging reversal. We appreciate the assistance of

the intervenor and amici.

_________________________________________________________________

1 In addition to arguments related to the limitations issue, CM raises

other contentions on appeal including claims based on asserted proce-

dural violations during the administrative process and a claim for reim-

bursement for the 1996-97 school year. We have considered all of these

contentions and have concluded that the district judge properly rejected

them. Accordingly, we affirm those portions of the judgment on the rea-

soning of the district judge. We also reject as meritless CM's contentions

that asserted procedural irregularities in the district court require reversal.

8

II.

Although the IDEA itself sets no limit on the time in which parents

may request a due process hearing, no party before us (nor any amici)

maintains that parents have an unlimited period in which to request

such a hearing. Rather, all agree that the most appropriate limitations

period should be borrowed from state law and that borrowed period

should control the time allowed to request an IDEA due process hear-

ing.

When Congress fails to provide a statute of limitations, federal

courts borrow the most analogous state statute of limitations, provided

that it is not inconsistent with underlying federal policies. See County

of Oneida v. Oneida Indian Nation, 470 U.S. 226, 240 (1985). There-

fore, we must first evaluate which North Carolina statute of limita-

tions constitutes the most analogous limitations period. Next we must

decide whether that period is in any way inconsistent with the federal

policies contained in the IDEA.2

2

_________________________________________________________________

2 The limitations period we consider today governs only state adminis-

trative hearings, access to which is traditionally governed by the states.

It does not establish the period for filing an IDEA action in federal court.

Indeed, the limitations period in question governs special education pro-

ceedings in a state tribunal that necessarily commence and conclude

before a federal cause of action ever arises. See Kirkpatrick v. Lenior

County Bd. of Educ., 216 F.3d 380, 387 (4th Cir. 2000) (IDEA cases in

federal court are not "appeals" from state agency decisions, but rather

original actions filed in district court). Because Congress arguably left

the creation of a limitations period for requesting a state administrative

hearing to the states, one might contend that "borrowing" is unnecessary

here. However, we implicitly rejected this view in Manning v. Fairfax

Co. Sch. Bd., 176 F.3d 235 (4th Cir. 1999), when we held, in a case from

Virginia, that the borrowing analysis was the appropriate method of

determining the limitations period for filing requests for IDEA adminis-

trative due process hearings. Moreover, the parents, the State of North

Carolina, the United States, and the only two other circuits to have con-

sidered the question have all employed the borrowing analysis in this sit-

uation. See Strawn v. Missouri State Bd. of Educ., 210 F.3d 954 (8th Cir.

2000); Murphy v. Timberlane Reg'l Sch. Dist., 22 F.3d 1186 (1st Cir.

1994). Accordingly, we apply that analysis here. We note, however, that

even if the choice of a limitations period was regarded as a matter left

9

The school board, the State of North Carolina, and their amicus

contend that the most appropriate limitations period for an initial

request for an IDEA due process hearing in North Carolina is 60 days

and that this period should, therefore, be borrowed. They rely on N.C.

Gen. Stat. § 115-116(d), which directs that initiation of administrative

due process hearings in special education cases be conducted in

accordance with the state administrative procedure act, which, in turn,

provides a 60-day limitations period. See N.C. Gen. Stat. § 150B-

23(f).

The parents and their amicus, the United States, assert that borrow-

ing this short limitations period would be "inconsistent with the

IDEA's purposes because it ensures that many legitimate claims will

be forfeited through inadvertence or inability to locate representation

in such a short time, rendering ineffective the protections Congress

created for children with disabilities." Brief of United States at 20.

Furthermore, they maintain that such a short period would "interfere

with attempts by the parents and school to seek an amicable resolu-

tion short of litigation by forcing administrative review almost imme-

diately upon completion of the IEP process." Id. They suggest that

North Carolina's catch-all three-year statute of limitations for statu-

tory actions for which no limitations period is otherwise provided, see

N.C. Gen. Stat. § 1-52(2), constitutes a better borrowing choice.

Logic virtually compels the conclusion that a state special educa-

tion statute, specifically enacted to comply with the IDEA, like N.C.

Gen. Stat. § 115C-116, constitutes the state statute most analogous to

the IDEA. Accordingly, when a state legislature incorporates into its

own special education statute a limitations period, as the North Caro-

lina legislature has here, that period almost certainly constitutes the

state limitations period for IDEA purposes. See generally Schimmel

v. Spillane, 819 F.2d 477, 481 (4th Cir. 1987); see also Cleveland

Heights-Univ. Heights Sch. Dist. v. Boss, 144 F.3d 391, 397 (6th Cir.

_________________________________________________________________

to the states, a federal court would still have to determine that a state's

choice of limitations period did not conflict with the federal policies ani-

mating the IDEA. We believe that analysis would involve many of the

same considerations discussed above and would lead to the same conclu-

sion we reach here.

10

1998); Dell v. Board of Educ., 32 F.3d 1053, 1060 (7th Cir. 1994).

Thus, we hold the 60-day limitations period in § 150B-23 is the

period associated with the state statute, § 115C-116, most analogous

to the IDEA.3

3

Whether that 60-day statute of limitations is inconsistent with fed-

eral policies animating the IDEA, however, presents a more difficult

question. To resolve it, we must first ascertain what policies Congress

intended to further in the IDEA. Congress enacted the IDEA "to

ensure that all children with disabilities have available to them a free

appropriate public education that emphasizes special education and

related services designed to meet their unique needs." 20 U.S.C.

§ 1400(d).

To achieve that purpose, the Act embodies a federal policy that

IDEA disputes should be resolved quickly to ensure that disabled

children receive their statutorily guaranteed free appropriate public

education while they can most benefit from it. The Act's requirement

of yearly placement reassessment, 20 U.S.C. § 1414(d)(4), demon-

strates Congress's understanding that children develop quickly, and

that once-correct placement decisions can soon become outdated. If

a limitations period is too long, remedies may be delayed by months

or years of litigation and become anachronistic before ever being

implemented. The Act's intent would obviously be thwarted if place-

ment decisions were not carried out until after a child could benefit

from those placements. Senator Williams, the IDEA's principal

_________________________________________________________________

3 We recognize that Shook v. Gaston County Bd. of Educ., 882 F.2d 119

(4th Cir. 1989), involves a limitations period in an IDEA case from

North Carolina. That case, however, concerned a statute of limitations

for filing an IDEA action in federal court, rather than statute of limita-

tions for an administrative claim. Moreover, in Shook, the sole question

was whether a disabled adult could bring an action to obtain reimburse-

ment for special education services incurred while she was a minor. We

held she could. In doing so, we assumed, and no party argued to the con-

trary, that North Carolina's three year catch-all statute of limitations, N.

C. Gen. Stat. § 1-52(2), applied, and we concluded that this statute had

been tolled while the plaintiff was a minor. Because we had no occasion

to consider § 150B-23(f) or even engage in the borrowing analysis,

Shook with its vastly different focus provides no authority for application

of § 1-52(2) rather than § 150B-23(f) in the case at hand.

11

author, recognized this in the final Senate debate, stating that "I can-

not emphasize enough that delay in resolving matters regarding the

education program of a handicapped child is extremely detrimental to

his development." 121 Cong. Rec. 37,416 (1975).

An equally important IDEA policy is to encourage parents to par-

ticipate in the education of their disabled children and to provide them

with the procedural tools to enforce the mandate of the Act. Indeed,

the Supreme Court has specifically recognized the centrality of this

federal policy:

It seems to us no exaggeration to say that Congress placed

every bit as much emphasis upon compliance with proce-

dures giving parents and guardians a large measure of par-

ticipation at every stage of the administrative process . . . as

it did upon the measurement of the resulting IEP against a

substantive standard.

Board of Educ. v. Rowley, 458 U.S. 176, 205-206 (1982).

Thus, the IDEA requires that schools collaborate with parents in

developing IEPs, 20 U.S.C. § 1414(d)(1)(B), directs states to provide

a due process hearing for parents who disagree with school authori-

ties' decisions involving their child's education, 20 U.S.C. § 1415(f),

and establishes a parental right to file an action in federal court if dis-

satisfied with the result of that due process hearing, 20 U.S.C.

§ 1415(i)(2). An unduly short limitations period might eliminate the

intended collaborative nature of the IDEA; parties will not continue

to negotiate if parents are forced too quickly to initiate a due process

hearing to preserve their rights. Moreover, to take advantage of their

right to a due process hearing and judicial review, parents must have

sufficient time to understand any adverse decision by school authori-

ties, evaluate any IDEA claim arising from an adverse decision, hire

an attorney if necessary, and then proceed to challenge the adverse

decision. Congress did not establish procedural rights as impediments

to IDEA claims or as a means to foreclose parental involvement in

their children's education. Rather, these rights were created to supply

a simple and efficient method to encourage parental participation and

facilitate parental enforcement of the IDEA.

12

So important did Congress find this policy that it specifically

directed school officials to provide parents of disabled children with

all necessary information regarding the procedures guaranteed by the

Act so that parents could take advantage of its protections. For exam-

ple, the IDEA requires school authorities to supply detailed written

notice whenever they propose or refuse to initiate or change the iden-

tification, evaluation, or placement of a child. See 20 U.S.C.

§§ 1415(b)(3) and (c). The Act also mandates that at several distinct

phases of negotiations between parents and school officials, school

officials must provide parents with a procedural safeguard notice. See

20 U.S.C. § 1415(d). Again, the notice must be detailed and, among

other things, must contain information about the right to a due process

hearing. See 20 U.S.C. § 1415(d)(2). The policy behind these detailed

notice requirements is obvious. Congress wanted to eliminate the pos-

sibility that disabled children would lose their right to benefits or that

parents would forfeit their role in their children's education because

of ignorance of the Act and its procedural safeguards; hence, Con-

gress placed the onus upon school authorities to inform parents of

their IDEA rights.

In the context of original judicial IDEA actions (sometimes inaccu-

rately described as "appeals" from state administrative due process

hearings, see Kirkpatrick v. Lenoir Co. Bd. of Educ., 216 F.3d 380,

385 (4th Cir. 2000)), federal courts have struggled to accommodate

these competing policies. Some have upheld short limitations periods

as consistent with the policy of "speedy resolution of IDEA-related

disputes" and simply ignored the question of whether such short peri-

ods improperly interfere with parental involvement and procedural

rights. See, e.g., Boss, 144 F.3d at 397 & n.6 (adopting 45-day limita-

tions period); Adler v. Educ. Dept. of New York, 760 F.2d 454, 459-

60 (2d Cir. 1985) (adopting 4-month limitations period). Other courts

have found short limitations periods fundamentally inconsistent with

the IDEA's policy of "parental participation in decision making pro-

cedures" and its panoply of guaranteed procedural rights, and so have

rejected such periods without much consideration of the countervail-

ing policy of quick resolution of IDEA disputes. See, e.g., Birming-

ham v. Omaha Sch. Dist., 220 F.2d 850, 855 (8th Cir. 2000); Scokin

v. Texas, 723 F.2d 432, 436-37 (5th Cir. 1984); Tokarcik v. Forest

Hills Sch. Dist., 665 F.2d 443, 451-53 (3d Cir. 1981).

13

The better-reasoned cases have attempted to take account of all rel-

evant federal policies. They have upheld a short limitations period

only when satisfied that it was accompanied by features that could

"significantly mitigate" infringement on procedural rights and paren-

tal participation; most notably, these courts have found a requirement

in the IDEA that school authorities provide "clear notice" of the rele-

vant limitations period. See, e.g., Spiegler v. District of Columbia,

866 F.2d 461, 467 (D.C. Cir. 1989). See also Amann v. Town of Stow,

991 F.2d 929, 932 (1st Cir. 1993). If parents receive such notice and

nonetheless fail to act within the allotted time, their claims are barred,

see Amann, 991 F.2d at 933, but if parents do not receive this notice,

school authorities cannot invoke limitations against them, see

Spiegler, 866 F.2d at 467.

In Schimmel, we, too, attempted to balance the various federal poli-

cies embodied in the IDEA. 819 F.2d 477. We concluded that a "very

short limitations period would conflict with the federal policies," and

instead Virginia's one-year catch-all statute of limitations best fur-

thered these policies. Id. at 482. Our "most serious concern" with the

suggested alternative 30-day limitations period was that parents

unrepresented by counsel might be "unaware of" and so "unfairly

penalized by a very short" limitations period. Id. Although we recog-

nized that it had been held that the IDEA required that "educational

agencies inform parents of the applicable limitations period," it was

"not clear to us" that the IDEA "actually impose[d] such a duty on

educational agencies." Id. Moreover, in Schimmel, the Virginia 30-

day statute of limitations clearly contained no such obligation, and the

defendant school board specifically contended that"it had no duty to

inform the [parents] of the statute of limitations." Id. Given these

facts, we held that the "one-year statute of limitations . . . str[uck] an

appropriate balance between the need for speedy resolution of dis-

putes and the need to ensure that the parties have a fair opportunity

to obtain judicial review." Id. at 483. 4

_________________________________________________________________

4 In Schimmel, we did not specifically resolve the question of whether

the IDEA (in 20 U.S.C. § 1415(b)(1)(D)(1982) now recodified and

expanded in § 1415(b)-(d)) requires educational agencies to inform par-

ents of the applicable limitations period and we need not resolve that

question in this case in view of the fact that N.C. Code § 150B-23(f)

clearly does require this.

14

Recently, in Manning v. Fairfax Co. Sch. Bd., 176 F.3d 235 (4th

Cir. 1999), we considered what limitations period applied to initiation

of IDEA administrative due process hearings in Virginia. We were

not asked to apply a short "30 to 60-day statute of limitations," id. at

239 n.3, but rather, were faced with a choice of no limitations period,

a five-year limitations period, or the one-year catch-all period. Id. at

238. In this context, we followed Schimmel and borrowed the same

general one-year catch-all limitations period borrowed in that case.

We reasoned that "[t]here is nothing to persuade us that disputes in

administrative IDEA proceedings are so different in nature from those

in judicial IDEA actions as to justify application of disparate limita-

tions periods." Id. at 239.5

5 Moreover, we quoted with approval Schim-

mel's determination that the one-year limitations period struck an

"appropriate balance" for the competing policies embodied in the

IDEA, remarking that this period was "not so prohibitively short . . .

that it undermine[d] the IDEA's policy of providing parents an oppor-

tunity to protect their disabled children's educational rights." Id.

_________________________________________________________________

5 In so commenting, we did not hold that the two contexts present iden-

tical issues. In fact, some factors suggest that a longer limitations period

might be warranted in the administrative context. After all, a failure to

meet the administrative limitations period forecloses not just a federal

judge's second or third look at a question, but any review of it by an

impartial decision-maker. See Murphy, 22 F.3d at 1192. Furthermore, at

the administrative due process hearing, parents must formulate the

issues, gather evidence, prepare witnesses, and create a record; arguably,

this task requires more time than that needed to prepare for judicial

review. On the other hand, other factors suggest that a longer limitations

period is appropriate in the judicial context. Arguably, preparing a com-

plaint initiating a federal lawsuit, which must meet the requirements of

federal law, requires more time and expertise than filing an informal one-

page administrative petition. Moreover, Congress's concern that IDEA

disputes be quickly resolved seems to have focused on eliminating

lengthy administrative proceedings, rather than on limiting the time for

seeking judicial review. See Tokarcik, 665 F.2d at 454 n.20. In sum,

somewhat different issues are involved in the two contexts but these

point both ways and in Manning we concluded that these differences did

not justify adoption of different limitations periods. Of course, in Man-

ning we were not confronted with the situation in which a state legisla-

ture had specifically enacted different limitations periods in the

administrative and judicial contexts.

15

Schimmel, Manning, and the out-of-circuit cases provide some

helpful guidance in elaborating on the relevant policy concerns and

appropriate balancing approach. Moreover, Schimmel establishes cir-

cuit precedent that a generally applicable, very short limitations

period for IDEA actions in federal court, without any requirement that

school authorities provide clear notice of the limitations period, is

inconsistent with federal policies embodied in the IDEA. Although in

Manning we were not confronted with an argument urging adoption

of a very short limitations period, we certainly suggested that for sim-

ilar reasons such an abbreviated limitations period for initiation of an

IDEA administrative due process hearing would also conflict with

these policies. See Manning, 176 F.3d at 239 and n.3 (relying on

Schimmel's determination as to the proper balance of federal interests,

holding that the one-year period was "not prohibitively short," and

noting that school authorities did not claim that a 30 or 60-day limita-

tions period applied). However, no case -- not Schimmel, not Man-

ning, not any of the out-of-circuit precedent-- has considered the

application of a statutory scheme like that encompassed in N.C. Gen.

Stat. § 115-116(d) and § 150B-23(f) to requests for IDEA administra-

tive due process hearings.66

Indeed, the North Carolina statutory scheme apparently differs in

a fundamental respect from any statute previously considered by any

court in any IDEA context. It contains an explicit requirement that

school authorities clearly and fully notify parents of the limitations

period. Under North Carolina law, the 60-day limitations period only

commences "when notice is given of the agency decision to all per-

sons aggrieved who are known to the agency." N.C. Gen. Stat.

§ 150B-23(f). Moreover, "[t]he notice shall be in writing, and shall

_________________________________________________________________

6 The only other appellate opinions to have determined what limitations

period applies to initial requests for IDEA due process hearings are no

more apposite than Manning. See Strawn, 210 F.3d 954; Murphy, 22

F.3d 1186. Like Manning, neither involves a very short limitations

period, or one requiring notice of its commencement. Rather, both

Strawn and Murphy focus on determining whether a multi-year limita-

tions period frustrated the federal policy that IDEA claims be quickly

resolved. See Strawn, 210 F.3d at 957 (5-year limitations period is too

long); Murphy, 22 F.3d at 1192-1194 (6-year limitations period not too

long).

16

set forth the agency action, and shall inform the [aggrieved] persons

of the right, the procedure, and the time limit to file a contested case

petition." Id. (emphasis added). Thus, without clear and complete

written notice that a final agency decision has been taken, that parents

can contest the decision by filing a petition for a due process hearing,

and that such petitions must be filed within 60 days of the contested

agency decision, § 150B-23(f)'s abbreviated limitations period is

never triggered. Not only do the school authorities concede that the

statute so directs, see, e.g., Brief of Appellee Buncombe County Bd.

of Educ. at 17 ("Section 150B-23(f) only applies to cases where a

school system triggers the provision by providing written notice of

the limitations period and notice of the school system's decision"),

but a review of North Carolina case law indicates that its courts would

not countenance any departure from, or relaxation of, statutory

requirements. See Clay v. Employment Sec. Comm'n , 457 S.E.2d 725,

727 (N.C. 1995) ("Statutes of limitations `should be not extended by

construction.'"); Pearson v. Nationwide Mut. Ins. Co., 382 S.E.2d

745, 748 (N.C. 1989) (requiring strict compliance with statutory

notice requirement); Williams v. Bowden, 494 S.E.2d 798, 800 (N.C.

App. 1998) (same); Cameron & Barkley v. American Ins. Co., 434

S.E.2d 632, 637 (N.C. App. 1993) (notice must be in exact form spec-

ified in statute).

Does § 150B-23(f)'s notice requirement sufficiently accommodate

the federal policies we found inconsistent with the short limitations

period in Schimmel? Obviously, this clear and specific notice provi-

sion does much to further the IDEA's strong commitment to inform-

ing parents fully of their procedural rights. It goes hand in glove with

the extensive notice provisions contained in the IDEA itself. See 20

U.S.C. §§ 1415(b)(3), (c), and (d). Moreover, the notice requirement

in § 150B-23(f) ameliorates "[o]ur most serious concern" in Schim-

mel, i.e., that parents would be "unaware of" and thus "penalized by

a very short" limitations period. Schimmel, 819 F.2d at 482.

On the other hand, this 60-day limitations period (although twice

as long as that at issue in Schimmel) does not provide a vast amount

of time for parents to exercise the right to a due process hearing. This

abbreviated time period also may be in some tension with the IDEA's

policy of encouraging parental collaboration in placement decisions

involving their children. Therefore, although the notice provision in

17

§ 150B-23(f) goes a long way to alleviating the concerns we voiced

in Schimmel, it is not clear that such a provision alone makes an oth-

erwise too-short limitations period acceptable. Given the holdings in

Schimmel and Manning, if the 60-day limitations period at issue here

had not been specifically selected by the state legislature to apply to

these actions, it would be a close question whether circuit precedent

required us to find it contrary to the policies embodied in the IDEA.

But, unlike the statutes at issue in Schimmel or Manning, the North

Carolina legislature has specifically mandated that the 60-day limita-

tions period applies to IDEA disputes. Thus, N.C. Gen. Stat. § 115(c)-

116(d), the portion of the North Carolina Code implementing the

IDEA and establishing IDEA due process hearings, provides that "ad-

ministrative review shall be initiated and conducted in accordance"

with N.C. Gen. Stat. § 150B-23, which in turn sets forth the 60-day

limitations period. Moreover, in doing so, North Carolina has acted

in full accord with the congressional directive that states conduct

administrative due process hearings "as determined by State law." 20

U.S.C. § 1415(f).

Manning and Schimmel did not implicate an attempt by a state to

legislate a statute of limitations specifically for IDEA proceedings.

When a state does do this, as North Carolina has, we believe a federal

court should give the chosen state limitations period special deference

when determining whether it conflicts with policies animating the

IDEA. See Boss, 144 F.3d at 397.7

7 Accordingly, although we recog-

nize that in Schimmel we concluded that policies embodied in the

IDEA required that we reject a short limitations period, we believe a

different result is required here. Principally because the statute at

issue here, unlike that in Schimmel, contains an express requirement

of clear and unambiguous notice of the agency action and of the com-

mencement and time of the limitations period, and also because, again

unlike Schimmel, the state expressly designated that this abbreviated

limitations period govern IDEA administrative proceedings, we con-

_________________________________________________________________

7 Of course, if the choice the state has struck is totally inconsistent with

the IDEA, a court must reject it. For example, a statute like that in

Schimmel would still unacceptably conflict with federal policies even if

it were part of a state special education statute specifically referencing

the IDEA.

18

clude that adoption of this 60-day limitations period is not inconsis-

tent with federal policies animating the IDEA.

III.

The parents in each case before us contend that even if we should

hold, as we now have, that the 60-day limitations period applies to

requests for IDEA administrative due process hearings in North Caro-

lina, it does not bar their claims because they did not receive the

required notice of the limitations period. The school authorities, of

course, argue to the contrary. In each case they rely on certain letters

sent to the parents.

In M.E., the school system maintains that two letters sent to the

parents in response to the parents' settlement demand meet the statu-

tory requirements of § 150B-23(f). On July 29, 1997, C.E.'s father

mailed to the school system's representative a long letter attempting

to settle the parents' claims for reimbursement and threatening resort

to a due process hearing if the school board did not provide reim-

bursement within ten days. The school responded in letters dated

August 7, 1997 and August 8, 1997. The first August letter states that

the school system was inclined to make a counter-offer of "some por-

tion of the expenses actually incurred," but notes that "[p]rior to mak-

ing any offer, however, the Board of Education must be consulted and

must approve the payment." The letter explains that school authorities

hoped to obtain "settlement authority, if any, within the next week."

It then notes the parents' ten-day threat and remarks that the parents

"of course, have the right to file a due process petition at any time,

however, the reality of school systems requires that the governing

board be consulted and that process takes time." The letter encloses

copies of the most current authorization of the IDEA and recent North

Carolina legislation amending state IDEA mediation rules. The sec-

ond letter is very short and simply makes a conditional counter-offer

to settle the parents' claim for $6,000 pending "final approval by the

Board."

In CM, school authorities rely upon a letter sent by the Director of

Programs for Exceptional Children of the Henderson County Schools,

to CM's parents on February 16, 1995. The letter accompanies that

year's proposed IEP for CM and explains in some detail the decisions

19

made in that IEP and the process leading to these decisions, including

previous discussions with the parents. The letter then mentions the

possibility of mediation, noting that while not mandatory "it is cer-

tainly a positive step in resolving differences" and "does not in any

way limit or delay a formal due process hearing or other legal proce-

dure." The letter concludes by noting that the parents had indicated

that they had a copy of the North Carolina "Handbook on Parents'

Rights, July, 1994, edition, which outlines appeal options available,"

and encloses another copy of the handbook.

In both cases, the ALJs determined that these facts demonstrated

that the school authorities provided the parents with the requisite

notice pursuant to § 150B-23(b). We find no error in the historical

facts found by the ALJs, but we believe that the ALJs misapplied the

law to the facts; the school authorities did not provide the statutorily

required notice. Although § 150B-23(f) does not require notice in a

specific form, it does, as the school boards and State concede, man-

date that parents be provided express written notice of the commence-

ment of the limitations period. As the State puts it, "the 60-day statute

-- by its terms -- cannot be applied to parents without notice." Brief

of Intervenor State of North Carolina at 6 n.4; see also Brief of

Appellee Buncombe County Bd. of Educ. at 16 ("In order for a claim

to be barred by the 60-day limitation in North Carolina . . . a school

system must affirmatively provide parents with notice of the 60-day

limitation."). In neither M.E. nor CM did the school system "affirma-

tively provide" the parents with the required notice, and so "by its

terms" the limitations period "cannot be applied to [the] parents."

Section 150B-23(f) instructs that the 60-day limitations period

begins only when aggrieved persons are provided written notice "of

the agency decision;" the notice must "set forth the agency action"

and inform aggrieved persons of "the right, the procedure, and the

time limit to file a contested case petition." N.C. Gen. Stat. § 150B-

23(f). To satisfy these requirements, the written notice must commu-

nicate that the agency has acted and that this action is one that triggers

the right to file, within sixty days, a contested case petition for a due

process hearing. Unless the school authorities do this, parents, who

will often have already engaged in lengthy negotiations with the

school system, will likely (and understandably) conclude that a school

is simply stating its present bargaining posture, which is open to fur-

20

ther negotiation and does not trigger any limitations period. The

instant cases illustrate this precise problem.

In M.E., the letters on which the school board relies merely articu-

late a conditional settlement counter-offer. They were part of on-

going negotiations; offers and counter-offers exchanged in this con-

text are rarely considered by their senders or recipients as the final

word on anything, even when they claim to be so. Of course, the

school system's letters here did not make this claim. Rather, both

were expressly made contingent on approval by the Board of Educa-

tion of Buncombe County. Indeed, it is hard for us to believe that, had

the parents accepted the school system's counter-offer, and the Board

had failed to ratify it, school authorities would not have expected

more negotiations to have ensued thereafter.8 8 These letters were part

of a lengthy correspondence between the parents and the school.

There was nothing about them to indicate to the parents that they had

more significance than any other letters received from school offi-

cials. Parents cannot be expected to divine that such correspondence

communicates conclusive agency action, which can be challenged

only by resort to a due process hearing and which triggers a short lim-

itations period to pursue such a challenge.

The letter relied upon in CM suffers from similar deficiencies. It

also is one in a series of communications between the school and the

parents. Although it admirably describes in some detail the action

taken by the school and the reason for that action, it does not in any

way indicate that the action is more significant than earlier actions

taken by the school as part of its continuing negotiations with the par-

ents. Again, nothing in the letter signals to the parents that this letter,

as opposed to other detailed letters from school officials received over

_________________________________________________________________

8 As noted above, in the midst of the August 7 letter, the school sys-

tem's representative stated that the parents had "the right to file a due

process petition at any time." The parents maintain that this statement

waived the school system's right to rely on the 60-day limitations period

and estopped it from doing so. For the reasons stated by the district court,

we reject these arguments. However, we believe that this comment does

effectively demonstrate that the letters were regarded at the time, by the

school system, as well as the parents, as a part of settlement negotiations,

not as a notice of an appealable completed agency decision.

21

a years-long negotiation process, triggered the limitations period.

Indeed, the letter's discussion of mediation, which the parents then

requested in writing four days later, combined with the many (more

than 60) subsequent letters exchanged between the parties, could well

have led the parents to conclude that this letter was nothing more than

one in a series of negotiation communications. Again, a parent cannot

be required to discern that such an innocuous letter constituted notice

of decisive agency action, which could be controverted only by an

impartial decision-maker after an administrative hearing, which had

to be requested within sixty days of the letter. 9

In sum, in neither case did the school systems' letters adequately

notify the parents that school authorities had reached a final decision

that could be challenged only in a due process hearing, which had to

be requested within sixty days. See Powers v. Indiana Dept. of Educ.,

61 F.3d 552, 558 n.7 (7th Cir. 1995) (holding that only when a parent

"received a final denial" of her claim by state department of education

did the limitations period begin). Cf. Spiegler, 866 F.2d at 649 (noting

that even when a notice of denial of claimed IDEA benefits was held

otherwise deficient, school authorities informed parents that the deci-

sion was "final."). Indeed, in neither case did the school systems' let-

ters provide any indication of the letters' importance sufficient to lead

a parent to suspect that those letters, among the many other similar

letters received from the school boards, had far more significant legal

consequences than appeared on their face.10 10

_________________________________________________________________

9 As in M.E., for the reasons stated by the district court, we reject CM's

claims that this letter provides grounds for estoppel because in it school

authorities assertedly lured the parents into continuing to negotiate with-

out ever raising limitations. By the same token, the school system's state-

ment in the letter that mediation "did not in anyway limit or delay a

formal due process hearing" could well, as the parents suggest, have con-

firmed their view that the parties could continue to negotiate without "in

any way limit[ing]" the parents' future right to "a formal due process

hearing." In other words, again as in M.E., the challenged statement,

while not estopping the school system from relying on the 60-day limita-

tions period, does evidence the "negotiating" character of the school sys-

tem's letter.

10 A school system's obligation to provide adequate notice is hardly

burdensome. As M.E. points out, satisfactory notice could have been

22

Nor, contrary to the school boards' assertions, did distribution of

the Handbook of Parents' Rights to the parents prior to these letters

(and in CM again with the assertedly critical letter) remedy the inade-

quacies of the letters. The handbook is a 23-page single-spaced man-

ual generally dispensed by local educational authorities to parents of

special education children in North Carolina. The manual contains a

summary of laws -- both the IDEA and the state special education

laws -- "governing the rights of parents" of disabled children and a

copy of federal regulations setting forth "procedural safeguards under

the IDEA." On page 12, the manual states that a parent "may file a

petition for an impartial due process hearing . . . to challenge the iden-

tification, evaluation, or placement of a child." In the next sentence,

the manual states that "[i]n order to exercise the right to a due process

hearing, the parent must file a petition within 60 days of written

notice of the contested action."

Unquestionably, the handbook provides parents with information

as to the correct procedure for filing a request for a due process hear-

ing and the length of the limitations period. What it does not do is tell

parents that the school system has issued a decision involving their

particular child that triggers commencement of the time limitations

for filing a request for due process hearing. A school system cannot

make parents "notice-proof" simply by periodically distributing publi-

cations containing the law setting forth the "right, procedure, and time

_________________________________________________________________

achieved as easily as adding a single sentence to the August 8 letter; such

a sentence could have been worded: "Pursuant to N.C. Gen. Stat. § 150B-

23 this letter constitutes your notice of final agency action, which you

have a right to contest at a due process hearing by filing a contested case

petition with the Office of Administrative Hearing; that petition must be

filed within sixty days of receipt of this letter or you will lose your right

to contest this action." The record in these cases reveals that North Caro-

lina ALJs and state hearing review appeal officers routinely include simi-

lar language in their opinions. Moreover, other boards of education in

North Carolina have apparently had little difficulty complying with the

notice requirement. See, e.g., Glen III v. Charlotte-Mecklenberg Sch. Bd.

of Educ., 903 F. Supp. 918, 925 (W.D.N.C. 1995).

23

limit" of a request for a due process hearing. See generally Canada

Life Assurance Co. v. Lebowitz, 185 F.3d 231 (4th Cir. 1999).11

11

The very reason that the North Carolina Supreme Court has refused

to extend statutes of limitations "by construction" is to "ensure that

parties have notice of the time limits applicable to their cases." Clay,

457 S.E.2d at 727 (emphasis added). Unless parents are informed that

an agency decision in their case has triggered the limitations period,

simply notifying them of the general right, procedure, and time limita-

tion to request a due process hearing is worthless. In holding that

there had been no satisfactory compliance with another statutory

notice requirement, we recently explained that statutory protections

"are meaningless" if those sought to be protected "do not know of

their existence," Thomas v. Grand Lodge of Int'l. Ass'n. of Machinists

& Aero. Workers, 201 F.3d 517, 520 (4th Cir. 2000); so, too, statutory

protections are meaningless when those sought to be protected do not

know that the limited time for invoking those protections has com-

menced.

Neither the letters relied on in these cases nor the handbook distrib-

uted to the parents sufficiently notified them that school authorities no

longer intended to negotiate, that they had reached a conclusive deci-

sion that could only be challenged at a due process hearing, which the

parents had to request within sixty days of receipt of the letters.

Accordingly, the school boards did not comply with § 150B-23(f) and

so cannot invoke that statute to bar consideration of M.E.'s claim to

reimbursement or CM's claim to reimbursement for the 1995-1996

school year.12

12

_________________________________________________________________

11 For this same reason, the fact that one of the parents is an attorney,

familiar with special education law, does not cure the deficiency in the

letters. For purposes of this appeal, we assume that the attorney-parent

had actual knowledge that § 150B-23(f) required that a request for a due

process hearing be filed within 60 days of an agency decision in order

to contest that decision at a formal due process hearing. However, noth-

ing in the record indicates the attorney-parent had actual knowledge that

school authorities had issued what they considered to be an agency deci-

sion triggering this limitations period, and the parent specifically denies

such knowledge.

12 The basis for the district court's holding in CM that school authori-

ties provided notice with respect to the 1993-1994 and 1994-1995 school

24

IV.

To summarize, we affirm the district court's determination that the

Board of Public Education of Henderson County provided CM with

a free appropriate public education in the 1996-1997 school year. We

reverse the district court's determination that § 150B-23(f) bars

M.E.'s claim and CM's claim with regard to the 1995-1996 school

year, and we remand both cases for further proceedings consistent

with this opinion.

AFFIRMED IN PART AND REVERSED AND

REMANDED IN PART

_________________________________________________________________

years is unclear. It appears that the district court may not have actually

resolved this issue, focusing only on the notice provided as to the 1995-

1996 year. We remand this issue to the district court, expressing no view

on whether notice complying with the statute was provided in the earlier

years. We also note that although the ALJ found CM's parents' claims

for reimbursement in the 1993-1994 and 1994-1995 school years barred

for additional reasons, the district court did not address these reasons,

and so we will not consider them in the first instance.

25