Petition for Writ of Certiorari — Independent School District No. 283, Petitioner v. E. M. D. H. ex rel. L. H. and S. D.
Supreme Court briefDec 31, 2020
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No. 20-____
IN THE
Supreme Court of the United States
_________
INDEPENDENT SCHOOL DISTRICT NO. 283,
Petitioner,
v.
E.M.D.H. EX REL. L.H. AND S.D.,
Respondent.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Eighth Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
PETER A. MARTIN
KNUTSON, FLYNN &
DEANS, P.A.
1155 Centre Pointe
Drive, Suite 10
Mendota Heights, MN
55120
(651) 222-2811
pmartin@kfdmn.com
NEAL KUMAR KATYAL
Counsel of Record
MAREE F. SNEED
ERIN R. CHAPMAN
KIRTI DATLA
HOGAN LOVELLS US LLP
555 Thirteenth St., N.W.
Washington, D.C. 20004
(202) 637-5600
neal.katyal@hoganlovells.com
Counsel for Petitioner
QUESTION PRESENTED
Whether the continuing violation doctrine applies
to the two-year statutory time limit to file an administrative complaint under the Individuals with Disabilities Education Act.
(i)
ii
PARTIES TO THE PROCEEDING
Independent School District No. 283, petitioner on
review, was the plaintiff-appellant/cross-appellee below.
E.M.D.H. ex rel. L.H. and S.D., respondent on review, was the defendant-appellee/cross-appellant below.
iii
RELATED PROCEEDINGS
The following proceedings are directly related to this
petition:
E.M.D.H. by & Through L.H. & S.D. v. Indep. Sch.
Dist. No. 283, No. 17-020 (Minn. Dep’t Educ. Mar. 16,
2018), aff’d in part, rev’d in part, Indep. Sch. Dist. No.
283 v. E.M.D.H. by & Through L.H. & S.D., No. 18-cv00935 (D. Minn. Jan. 15, 2019) (reported at 357 F.
Supp. 3d 876), aff’d in part, rev’d in part, No. 18-935
(8th Cir. June 3, 2020) (reported at 960 F.3d 1073),
reh’g denied (Aug. 5, 2020).
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED...........................................i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS ..................................... iii
TABLE OF AUTHORITIES ....................................... vi
INTRODUCTION ........................................................ 1
OPINIONS BELOW .................................................... 3
JURISDICTION .......................................................... 4
STATUTORY PROVISIONS INVOLVED ................. 4
STATEMENT .............................................................. 5
A.
Statutory and Legal Background............. 5
B.
Factual Background ................................. 8
REASONS FOR GRANTING THE
PETITION ............................................................ 10
I.
THE FEDERAL CIRCUITS ARE SPLIT
OVER WHETHER THE CONTINUING
VIOLATION DOCTRINE APPLIES TO THE
IDEA ............................................................... 10
II.
THE DECISION BELOW IS WRONG..................... 14
III. THE DECISION BELOW WILL HAVE
GRAVE, NEGATIVE CONSEQUENCES ................. 18
CONCLUSION .......................................................... 27
APPENDIX
APPENDIX A—Eighth Circuit’s Opinion
(June 2, 2020) .................................................... 1a
v
TABLE OF CONTENTS—Continued
Page
APPENDIX B—District Court’s
Memorandum Opinion and Order re
Motion for Judgment on the
Administrative Record (Jan. 15, 2019)........... 22a
APPENDIX C—District Court’s
Memorandum Opinion and Order re
Motion for Temporary Restraining
Order (Apr. 25, 2018) ...................................... 51a
APPENDIX D—Eighth Circuit’s Order
Denying Rehearing (Aug. 5, 2020).................. 64a
vi
TABLE OF AUTHORITIES
Page(s)
CASES:
Anthony v. District of Columbia,
463 F. Supp. 2d 37 (D.D.C. 2006) .......................... 6
B.B. ex rel. Catherine B. v. Delaware Coll.
Preparatory Acad.,
803 F. App’x 593 (3d Cir. 2020) ........................... 11
Bell v. Bd. of Educ. of the Albuquerque
Pub. Schs.,
No. CIV 06-1137 JB/ACT, 2008 WL
4104070 (D.N.M. Mar. 26, 2008) ......................... 13
D.G. v. Somerset Hills Sch. Dist.,
559 F. Supp. 2d 484 (D.N.J. 2008) ...................... 13
D.K. ex rel. Stephen K. v. Abington School
District,
696 F.3d 233 (3d Cir. 2012) ........................... 11, 26
EPA v. EME Homer City Generation, L.P.,
572 U.S. 489 (2014) .............................................. 15
Estate of D.B. ex rel. Briggs v. Thousand
Islands Cent. Sch. Dist.,
169 F. Supp. 3d 320 (N.D.N.Y. 2016), abrogated on other grounds by Christiansen v. Omnicom Grp., Inc., 852 F.3d 195
(2d Cir. 2017)........................................................ 13
Forest Grove Sch. Dist. v. T.A.,
557 U.S. 230 (2009) ................................................ 5
Gabelli v. SEC,
568 U.S. 442 (2013) .............................................. 23
G.L. v. Ligonier Valley Sch. Dist. Auth.,
802 F.3d 601 (3d Cir. 2015) ................. 7, 11, 14, 21
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Hammond v. District of Columbia,
No. Civ.A. 99-1723(GK), 2001 WL
34360429 (D.D.C. Mar. 1, 2001) ............................ 6
Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982) ................................................ 7
In re Mirapex Products Liability Litigation,
912 F.3d 1129 (8th Cir. 2019) ........................ 10, 17
Jana K. ex rel. Tim K. v. Annville-Cleona
Sch. Dist.,
39 F. Supp. 3d 584 (M.D. Pa. 2014)..................... 13
Jefferson Cnty. Bd. of Educ. v. Lolita S.,
977 F. Supp. 2d 1091 (N.D. Ala. 2013),
aff’d, 581 F. App’x 760 (11th Cir. 2014) ........ 12, 25
Jeffery Y. v. St. Marys Area Sch. Dist.,
967 F. Supp. 852 (W.D. Pa. 1997) ......................... 6
J.K. v. Missoula Cnty. Pub. Schs.,
No. CV 15-00122-RWA, 2016 WL
4082633 (D. Mont. July 29, 2016) ....................... 13
Klehr v. A.O. Smith Corp.,
521 U.S. 179 (1997) ................................................ 7
Kucana v. Holder,
558 U.S. 233 (2010) .............................................. 17
Lakeview Neurorehab Ctr. Midwest, Inc. v.
Palin,
No. 3:09-CV-00083-TMB, 2010 WL
11619416 (D. Alaska Mar. 5, 2010) ............... 12, 13
M.D. v. Southington Board of Education,
334 F.3d 217 (2d Cir. 2003) ................................... 6
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Murphy v. Timberlane Reg’l Sch. Dist.,
22 F.3d 1186, 1195 (1st Cir. 1994) .................... 5, 6
Pegram v. Honeywell, Inc.,
361 F.3d 272 (5th Cir. 2004) .................................. 7
Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist.,
288 F.3d 478 (2d Cir. 2002) ................................. 18
Powers v. Indiana Dep’t of Educ., Div. of
Special Educ.,
61 F.3d 552 (7th Cir. 1995) .................................. 19
Reyes ex rel. E.M. v. Manor Independent
School District,
850 F.3d 251 (5th Cir. 2017) .......................... 11, 12
Schaffer ex rel. Schaffer v. Weast,
546 U.S. 49 (2005) ................................................ 22
School Comm. of Town of Burlington v.
Dep’t of Educ. of Mass.,
471 U.S. 359 (1985) .............................................. 18
Scruggs v. Meriden Bd. of Educ.,
No. 3:03CV2224(PCD), 2005 WL
2072312 (D. Conn. Aug. 26, 2005), vacated in part on reconsideration on other
grounds, 2006 WL 2715388 (D. Conn.
Sept. 22, 2006) ........................................................ 6
SJB ex rel. Berkhout v. New York City
Dep’t of Educ.,
No. 03 Civ. 6653(NRB), 2004 WL
1586500 (S.D.N.Y. July 14, 2004) ......................... 6
Somoza v. New York City Dep’t of Educ.,
538 F.3d 106 (2d Cir. 2008) ................................... 5
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Spiegler v. District of Columbia,
866 F.2d 461 (D.C. Cir. 1989) .............................. 20
Tennessee Valley Authority v. Hill,
437 U.S. 153 (1978) .............................................. 15
TRW Inc. v. Andrews,
534 U.S. 19 (2001) .......................................... 14, 17
VanDenBerg v. Appleton Area Sch. Dist.,
252 F. Supp. 2d 786 (E.D. Wis. 2003) . 6, 21, 22, 25
Weyrick v. New Albany-Floyd Cnty. Consol. Sch. Corp.,
No. 4:03-CV-0095-DFH-WGH, 2004 WL
3059793 (S.D. Ind. Dec. 23, 2004) ......................... 6
STATUTES:
7 U.S.C. § 1636b(a)(2) ............................................. 16
20 U.S.C. § 1412(a)(1)(A) .......................................... 5
20 U.S.C. § 1412(a)(3)(A) .......................................... 5
20 U.S.C. § 1415(f)(3)(C)................................... 2, 4, 7
20 U.S.C. § 1415(f)(3)(D) ................................ passim
20 U.S.C. § 1415(f)(3)(D)(i) ..................................... 14
20 U.S.C. § 1415(f)(3)(D)(ii) .................................... 14
20 U.S.C. § 6083(f)(1).............................................. 16
28 U.S.C. § 1254(1) ................................................... 4
49 U.S.C. § 11901(a) ............................................... 16
REGULATION:
Assistance to States for the Education of
Children With Disabilities and Preschool
Grants for Children With Disabilities,
71 Fed. Reg. 46,540 (Aug. 14, 2006) ........ 11, 15, 16
x
TABLE OF AUTHORITIES—Continued
Page(s)
LEGISLATIVE MATERIAL:
H.R. Rep. No. 108–77 (2003) .......................... passim
S. Rep. No. 108–185 (2003) .............................. 11, 16
121 Cong. Rec. 37,416 (1975) ................................. 20
OTHER AUTHORITIES:
Lynn M. Daggett et al., For Whom the
School Bell Tolls but Not the Statute of
Limitations: Minors and the Individuals
with Disabilities Education Act, 38 U.
Mich. J.L. Reform 717 (2005) .............................. 23
Richard M. Ingersoll & Gregory J. Collins, The Status of Teaching as a Profession, in Schools and Society: A Sociological Approach to Education 199 (Jeanne
H. Ballantine et al., eds., 6th ed. 2018),
available at https://tinyurl.com/y28mbaob ...................................... 22, 23
Susan Johns, Ferrara Fiorenza PC, Child
Find Obligation: Why Does It Matter?
(Dec. 27, 2018), https://tinyurl.com/yxb5cfdx .............................................. 25
Nat’l Conf. of State Legislatures, Federal
Funding for Special Education,
https://tinyurl.com/y4wx7bmc (last visited Dec. 31, 2020) ................................................ 24
xi
TABLE OF AUTHORITIES—Continued
Page(s)
Nat’l Ctr. for Educ. Stat., Digest of Education Statistics: Enrollment in public
elementary and secondary schools, by region, state, and jurisdiction: Selected
years, fall 1990 through fall 2029,
https://tinyurl.com/y5j9wryr (last visited Dec. 31, 2020) ............................................... 19
Nat’l Ctr. for Educ. Stat., The Condition
of Education: Students with Disabilities,
https://tinyurl.com/y3l6zh8v (last updated May 2020)................................................... 25
Nat’l Educ. Ass’n, Special Education
Grants to States (IDEA Part B-611)
(Apr. 4, 2018), nea.org/sites/default/files/2020-06/IDEA-Funding-GapFY2017-with-State-Table.pdf ........................ 24, 25
Perry A. Zirkel, Of Mouseholes and Elephants: The Statute of Limitations for
Impartial Hearings Under the Individuals with Disabilities Education Act, 35
J. Nat’l Ass’n Admin. L. Judiciary 305
(2015) .................................................................... 12
Perry A. Zirkel and Peter J. Maher, The
Statute of Limitations Under the Individuals with Disabilities Education Act,
175 Ed. Law Rep. 1 (2003) ............................. 19, 22
IN THE
Supreme Court of the United States
_________
No. 20_________
INDEPENDENT SCHOOL DISTRICT NO. 283,
Petitioner,
v.
E.M.D.H. EX REL. L.H. AND S.D.,
Respondent.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Eighth Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
Independent School District No. 283 respectfully petitions for a writ of certiorari to review the judgment
of the Eighth Circuit in this case.
INTRODUCTION
The Eighth Circuit applied an unwritten continuing
violation exception to the express two-year statute of
limitations that Congress wrote into the Individuals
with Disabilities Education Act (IDEA). In doing so,
it created a circuit split over whether Congress meant
what it said when it enacted that provision in 2004,
and revived exactly the same set of problems that
Congress acted to solve when it amended that provision.
(1)
2
As originally enacted, the IDEA did not require parents to file a due process complaint within a specified
time frame. This caused several problems. Some parents sat on claims for years, which delayed schools’
ability to resolve good faith disputes about IDEA’s requirements. See H.R. Rep. No. 108–77, at 115–116
(2003). Many special education teachers felt pressured to keep detailed records of all interactions with
parents, for fear that a parent who seemed satisfied
might change his mind years later. See id. Most importantly, students—who the IDEA was enacted to
protect—often went years without the services that
the IDEA was enacted to provide. See id.
To solve these problems, Congress amended the
IDEA in 2004 to add a two-year statute of limitations.
See 20 U.S.C. § 1415(f)(3)(C). This solution was flexible. Congress specifically included two equitable exceptions that can prevent otherwise untimely claims
from being time-barred. See id. § 1415(f)(3)(D).
In the decision below, the Eighth Circuit set out a
new unexpressed exception to the IDEA’s statute of
limitations: the continuing violation doctrine. The
Eighth Circuit assumed that the parents here knew
or should have known they had a so-called “child-find”
claim in the spring of 2015, and yet did not file their
administrative complaint until more than two years
later in June 2017. It held that their claim was not
time-barred because the school district’s alleged violation repeated day after day such that it continued into
the limitations period. See Pet. App. 17a–18a.
This decision created a sharp circuit split. The
Third and Fifth Circuits hold that the continuing violation doctrine, and other equitable exceptions, cannot
3
be applied to the IDEA. The Eighth Circuit below held
that it can.
The Eighth Circuit’s view is wrong. Congress chose
to include two equitable exceptions, and courts must
respect that choice by not writing in other exceptions.
The statutory history of the statute of limitations confirms this view: The continuing violation doctrine
would undo the solution to the specific problem Congress acted to solve.
Reading this statute of limitations incorrectly has
real consequences. Allowing parties to delay in bringing claims undermines the IDEA by delaying the resolution of disputes about the services a student ought
to receive. Adhering to the statute of limitations, on
the other hand, allows disputes to be resolved while
evidence is readily available and memories are fresh.
And it allows school districts to spend less time preparing for potential litigation, and more time serving
students.
The decision below created a circuit split on an issue
of national importance. This Court’s intervention is
urgently needed.
OPINIONS BELOW
The Eighth Circuit’s original decision is reported at
960 F.3d 1073. Pet. App. 1a–21a. The Eighth Circuit’s order denying rehearing and rehearing en banc
is not reported. Id. at 64a–65a. The District Court’s
decision denying plaintiff’s motion for judgment on
the administrative record and granting in part defendants’ motion for judgment on the administrative
record is reported at 357 F. Supp. 3d 876. Id. at 22a–
50a. The District Court’s decision granting in part
4
plaintiff’s motion for a temporary restraining order
and preliminary injunction is not reported but is
available at 2018 WL 1955109. Id. at 51a–63a.
JURISDICTION
The Eighth Circuit originally entered judgment on
June 3, 2020. Id. at 1a–2a. Petitioners timely sought
panel rehearing and rehearing en banc, which was denied on August 5, 2020. Id. at 64a–65a. On March 19,
2020, this Court extended the deadline to petition for
a writ of certiorari to 150 days from the date of the
lower court judgment. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
The IDEA, 20 U.S.C. § 1415(f)(3)(C), provides in relevant part:
A parent or agency shall request an impartial
due process hearing within 2 years of the date
the parent or agency knew or should have
known about the alleged action that forms the
basis of the complaint * * *.
20 U.S.C. § 1415(f)(3)(D) provides:
The timeline described in subparagraph (C)
shall not apply to a parent if the parent was
prevented from requesting the hearing due
to—
(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or
(ii) the local educational agency’s withholding
of information from the parent that was
5
required under this subchapter to be provided
to the parent.
STATEMENT
A.
Statutory and Legal Background
Under the IDEA, states that accept federal funding
must make a “free appropriate public education”
(FAPE) available to every child with a disability. 20
U.S.C. § 1412(a)(1)(A); Forest Grove Sch. Dist. v. T.A.,
557 U.S. 230, 246 (2009). To make this guarantee
real, the IDEA imposes an affirmative “child-find” obligation on school districts, requiring them to ensure
that “[a]ll children with disabilities residing in the
State * * * are identified, located, and evaluated.” 20
U.S.C. § 1412(a)(3)(A); see Forest Grove, 557 U.S. at
245. A district that fails to fulfill its child-find obligations opens itself up to liability under the IDEA. See
Forest Grove, 557 U.S. at 245.
Prior to 2004, the IDEA did not contain a statute of
limitations. See, e.g., Somoza v. New York City Dep’t
of Educ., 538 F.3d 106, 114 n.7 (2d Cir. 2008). Against
this backdrop, a few federal courts applying state-specific statutes of limitations applied equitable doctrines
like the continuing violation doctrine in IDEA cases.
The First Circuit found a school district “in continuous
violation” of a New Hampshire statute implementing
the IDEA such that the district’s “ongoing failure to
comply” with the law throughout the statutory period
“constituted a unitary violation under the IDEA” that
prevented the claim from being time-barred. Murphy
v. Timberlane Reg’l Sch. Dist., 22 F.3d 1186, 1195 (1st
6
Cir. 1994).1 In contrast, in M.D. v. Southington Board
of Education, the Second Circuit concluded that applying Connecticut’s equitable tolling rule in an IDEA
case “would defeat the goals of the [IDEA].” 334 F.3d
217, 224 (2d Cir. 2003) (internal quotation marks
omitted).2
1
See also Hammond v. District of Columbia, No. Civ.A. 991723(GK), 2001 WL 34360429, at *5–6 (D.D.C. Mar. 1, 2001)
(concluding that “the continuing violation doctrine applie[d]” and
“render[ed] timely Plaintiffs’ claims” because the district’s actions over a period of two years “constituted an ongoing violation
of the denial of FAPE”); Jeffery Y. v. St. Marys Area Sch. Dist.,
967 F. Supp. 852, 855–856 (W.D. Pa. 1997) (concluding “that it is
appropriate to apply the [continuing violation doctrine] in an
IDEA context”); Scruggs v. Meriden Bd. of Educ., No.
3:03CV2224(PCD), 2005 WL 2072312, at *5 (D. Conn. Aug. 26,
2005) (concluding that under Connecticut’s statute of limitations
“Plaintiff allege[ ] a continuing course of conduct sufficient to”
make the IDEA claim timely), vacated in part on reconsideration
on other grounds, 2006 WL 2715388 (D. Conn. Sept. 22, 2006);
Anthony v. District of Columbia, 463 F. Supp. 2d 37, 43 (D.D.C.
2006) (remanding for consideration of whether claims were
“timely under the continuing violation or equitable tolling doctrines”); Weyrick v. New Albany-Floyd Cnty. Consol. Sch. Corp.,
No. 4:03-CV-0095-DFH-WGH, 2004 WL 3059793, at *13 (S.D.
Ind. Dec. 23, 2004) (explaining that “the continuing violation theory could avoid a statute of limitations defense to an IDEA claim
in a proper case”).
2
See also VanDenBerg v. Appleton Area Sch. Dist., 252 F. Supp.
2d 786, 792–793 (E.D. Wis. 2003) (finding that the continuing
violation theory did not apply); SJB ex rel. Berkhout v. New York
City Dep’t of Educ., No. 03 Civ. 6653(NRB), 2004 WL 1586500, at
*7 (S.D.N.Y. July 14, 2004) (concluding that continuing violation
doctrine should not be applied and explaining that “the concern
of the IDEA is the prompt provision of necessary services as determined by knowledgeable professionals to disabled children”).
7
Then, in 2004, Congress amended the IDEA to add
a statute of limitations and enumerated exceptions to
that limitations period. See G.L. v. Ligonier Valley
Sch. Dist. Auth., 802 F.3d 601, 604 (3d Cir. 2015). The
provision sets a two-year time limit for parents to file
an administrative complaint that runs from “the date
the parent or agency knew or should have known
about the alleged action that forms the basis of the
complaint.” 20 U.S.C. § 1415(f)(3)(C). The 2004
amendment also added two narrow exceptions to this
limit: “if the parent was prevented from requesting
the hearing due to” (1) “specific misrepresentations by
the local educational agency that it had resolved the
problem forming the basis of the complaint,” or (2)
“the local educational agency’s withholding of information from the parent that was required * * * to be
provided to the parent.” Id. § 1415(f)(3)(D).
Congress did not include another common equitable
exception, known as the continuing violation doctrine,
in the new statute-of-limitations provision. Under the
continuing violation doctrine, “each overt act that is
part of the violation and that injures the plaintiff * * *
starts the statutory period running again, regardless
of the plaintiff’s knowledge of the alleged illegality at
much earlier times.” Klehr v. A.O. Smith Corp., 521
U.S. 179, 189 (1997). In practice, the application of
the continuing violation doctrine makes otherwise
time-barred claims timely, because the clock does not
start running on the plaintiff’s time to file suit until
the “last asserted occurrence of [the illegal] practice.”
Havens Realty Corp. v. Coleman, 455 U.S. 363, 381
(1982); see also, e.g., Pegram v. Honeywell, Inc., 361
F.3d 272, 279 (5th Cir. 2004) (“[T]he continuing
8
violations doctrine is equitable in nature and extends
the limitations period on otherwise time barred claims
* * * .”).
B.
Factual Background
1. In 2015, respondent, E.M.D.H., was an eighthgrade student in St. Louis Park, Minnesota’s Independent School District No. 283. In the spring of that
year, her various psychological disorders worsened
and she was placed in a psychiatric day-treatment facility in May 2015. As a result, she missed much of
the last half of the last semester of her eighth grade
year. See Pet. App. 1a–4a.
In June 2017, her parents consented to have the District conduct a special education evaluation, but also
requested a special education due process hearing
with the Minnesota Department of Education. See id.
at 5a, 28a–29a, 33a–34a, 52a. At the conclusion of the
evaluation process in October 2017, the District determined that the student did not qualify for special education under Minnesota’s eligibility standards. See
id. at 6a, 30a–31a.
2. The ALJ for the Minnesota Department of Education concluded that the District had failed to (1)
identify respondent as a child with a disability by the
spring of 2015, (2) conduct an appropriate special education evaluation, (3) find that she qualified for special education, and (4) provide her a FAPE. Id. at 6a–
7a, 16a. To cure the violation, the ALJ ordered the
District to (1) find the student “eligible for special education and related services,” (2) “develop an Individualized Education Plan (‘IEP’) providing the student
with a FAPE”; (3) “conduct quarterly meetings to consider changes to the IEP” until the student graduates
9
from secondary school; (4) reimburse respondent’s
parents more than $25,000 “for past diagnostic and
educational expenses”; and (5) pay for certain future
expenses from a private tutor and a psychiatrist for as
long as is appropriate or until the student graduates.
Id. at 7a. The ALJ further concluded that the IDEA
statute of limitations did not bar respondent’s claim
primarily because the claim accrued in April 2017,
when, according to the ALJ, the parents first knew of
their rights under the IDEA. Cf. Pet. App. 44a–45a;
ALJ Order at 43, D. Minn. Dkt. 1-1.
3. The District sought judicial review of the order in
the district court, which affirmed the ALJ’s decision
but struck the order to pay for future private tutoring.
Id. at 7a. The District argued, among other things,
that the IDEA’s two-year statute of limitations barred
any claim based on acts two years before the parents
filed their complaint. The court found that “it [wa]s
undisputed that because the Parents first requested a
due process hearing on June 27, 2017,” their claims
would “be limited to the District’s conduct after June
27, 2015” unless one of the statutory exceptions applied. Id. at 44a. It then found that “the District
failed to provide an adequate and complete notice of
procedural safeguards as required by the IDEA and
by applicable regulations.” Id. at 45a. Based on this
finding, it concluded that the IDEA’s second equitable
exception applied. Id. at 44a–45a (citing 20 U.S.C.
§ 1415(f)(3)(D)).
10
4. The Eighth Circuit affirmed, as relevant. See id.
at 18a-21a.3 But it did not adopt the district court’s
reasoning regarding the statute of limitations. Instead, it concluded that “the District staff responsible
for identifying the Student in the ninth and tenth
grades likewise failed to fulfill their child-find obligation.” Id. at 18a. Relying on In re Mirapex Products
Liability Litigation, 912 F.3d 1129, 1134 (8th Cir.
2019), the Court reasoned that “the violation was not
a single event like a decision to suspend or expel a student; instead the violation was repeated well into the
limitations period.” Pet. App. 18a. As such, “because
of the District’s continued violation of its child-find
duty, at least some of the Student’s claims of breach
of that duty accrued within the applicable period of
limitation” and the claim was not barred by the statute of limitations. Id.
The District sought rehearing, which was denied.
See id. at 64a-65a. This petition follows.
REASONS FOR GRANTING THE PETITION
I.
THE FEDERAL CIRCUITS ARE SPLIT OVER
WHETHER
THE
CONTINUING VIOLATION
DOCTRINE APPLIES TO THE IDEA.
The decision below created a circuit split over
whether the continuing violation doctrine applies to
the IDEA’s two-year statute of limitations.
1. The Third and Fifth Circuits hold that the continuing violation doctrine, and other unwritten equitable exceptions, cannot be applied to the IDEA.
3
The court reinstated the prospective, private tutoring fees. Pet.
App. 21a.
11
In D.K. ex rel. Stephen K. v. Abington School District, 696 F.3d 233 (3d Cir. 2012), the Third Circuit
concluded that the continuing violation doctrine does
not apply to IDEA claims. The court explained that
“legislative intent and the doctrine of exclusio unius
preclude application of common law equitable tolling
principles to save claims otherwise foreclosed by the
IDEA statute of limitations.” Id. at 248. To reach
that conclusion, it pointed to the fact that the legislative and regulatory history made clear that “only the
enumerated statutory exceptions may exempt a plaintiff from having his claims time-barred by the statute
of limitations.” Id. (citing S. Rep. No. 108–185, at 40
(2003); Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 71 Fed. Reg. 46,540, 46,697
(Aug. 14, 2006)). Thus, the Third Circuit concluded,
“IDEA plaintiffs cannot escape its statute of limitations by invoking equitable tolling doctrines”; they
must rely only on the statutory exceptions. Id.
The Third Circuit reiterated this point in G.L. v. Ligonier Valley School District Authority, 802 F.3d at
625. There, it explained that “parents may not, without satisfying one of the two statutory exceptions, * *
* attempt to sweep both timely and expired claims
into a single ‘continuing violation’ claim brought years
later.” Id.; see also B.B. ex rel. Catherine B. v. Delaware Coll. Preparatory Acad., 803 F. App’x 593, 595
(3d Cir. 2020) (“IDEA is not subject to the continuing
violation doctrine * * * .”).
The Fifth Circuit has similarly declined to read into
the IDEA’s statute of limitations additional equitable
exceptions that Congress did not enact. In Reyes ex
12
rel. E.M. v. Manor Independent School District, the
Fifth Circuit rejected the applicability of an equitable
exception for a lawsuit filed by a person “of unsound
mind.” 850 F.3d 251, 255 (5th Cir. 2017) (internal
quotation marks omitted). It explained that “[t]here
is nothing in the IDEA that incorporates general * * *
tolling provisions.” Id. For support, the Fifth Circuit
noted that the IDEA has previously been “silent as to
limitations,” and that Congress had “amend[ed] the
statute to add a limitations period of two years.” See
id. at 255 n.2. Because IDEA claims are subject to
“two federal tolling provisions involving the school
making misrepresentations or withholding information,” the Fifth Circuit concluded that other equitable exceptions do not apply. Id. at 255 (citing 20
U.S.C. § 1415(f)(3)(D)).
As one commentator has noted, “the weight of judicial authority thus far has rather clearly favored the
inapplicability of the continuing violations theory in
IDEA [statute of limitations] cases.” Perry A. Zirkel,
Of Mouseholes and Elephants: The Statute of Limitations for Impartial Hearings Under the Individuals
with Disabilities Education Act, 35 J. Nat’l Ass’n Admin. L. Judiciary 305, 323-324 (2015).4
4
The overwhelming majority of district courts to have addressed
the issue agree. See, e.g., Jefferson Cnty. Bd. of Educ. v. Lolita
S., 977 F. Supp. 2d 1091, 1124 (N.D. Ala. 2013) (concluding that
the continuing violation doctrine did not apply to a child-find
claim under IDEA because “if that argument succeeded, then no
statute of limitations bar would be enforceable, because every violation would continue past the statutory bar”), aff’d, 581 F.
App’x 760 (11th Cir. 2014) (per curiam); Lakeview Neurorehab
13
2. The Eighth Circuit, in contrast, held that courts
may apply an unwritten continuing violation exception to the IDEA’s statute of limitations.
The Eighth Circuit concluded that a district’s “continued violation of its child-find duty” may make an
otherwise time-barred claim timely. Pet. App. 18a. It
reasoned that the district’s child-find violation “was
not a single event like a decision to suspend or expel a
student,” but rather “was repeated well into the limitations period.” Id. As such, the claim was timely
Ctr. Midwest, Inc. v. Palin, No. 3:09-CV-00083-TMB, 2010 WL
11619416, at *7 (D. Alaska Mar. 5, 2010) (declining to apply “the
doctrines of equitable estoppel or continuing violation,” because
“[s]uch common law doctrines may not be applied”); Bell v. Bd. of
Educ. of the Albuquerque Pub. Schs., No. CIV 06-1137 JB/ACT,
2008 WL 4104070, at *18 (D.N.M. Mar. 26, 2008) (“[B]ecause
Congress has set forth explicit exceptions to the two-year limitation period, * * * the Court does not believe it is free to apply a
common-law doctrine to [the] claims * * * .”); Estate of D.B. ex rel.
Briggs v. Thousand Islands Cent. Sch. Dist., 169 F. Supp. 3d 320,
336 (N.D.N.Y. 2016) (noting that “courts in this Circuit have
been reluctant to apply the [continuing violation] doctrine to the
IDEA”), abrogated on other grounds by Christiansen v. Omnicom
Grp., Inc., 852 F.3d 195 (2d Cir. 2017) (per curiam); J.K. v. Missoula Cnty. Pub. Schs., No. CV 15-00122-RWA, 2016 WL
4082633, at *6 (D. Mont. July 29, 2016) (rejecting applicability of
continuing violation theory in IDEA context). But see Jana K. ex
rel. Tim K. v. Annville-Cleona Sch. Dist., 39 F. Supp. 3d 584, 598–
599 (M.D. Pa. 2014) (applying “continuing violation” doctrine to
conclude that because student “was deprived of a FAPE each day
that she went to school, the scope of claims in this case include,
at a minimum, those occurring within the two years prior to the
* * * complaint”); D.G. v. Somerset Hills Sch. Dist., 559 F. Supp.
2d 484, 492 (D.N.J. 2008) (“Plaintiffs’ IDEA claim also is not
barred by the above two-year statute of limitations period under
the continuing violations doctrine.”).
14
because “at least some of the Student’s claims of
breach of that duty accrued within the applicable period of limitation.” Id.
The Eighth Circuit’s decision thus created a split
among the federal courts of appeals as to whether equitable doctrines like the “continuing violation” doctrine apply to the two-year statute of limitations in
the IDEA.
II.
THE DECISION BELOW IS WRONG.
The decision below gets the text, history, and purpose of the 2004 IDEA amendments wrong.
1. The text of the IDEA makes clear that the continuing violation theory cannot be applied to its two-year
statute of limitations. Congress enacted “two equitable * * * exceptions” that toll the running of the statute of limitations. G.L., 802 F.3d at 609; see 20 U.S.C.
§ 1415(f)(3)(D). Those exceptions apply (1) when the
complaint concerns the district’s misrepresentations,
see 20 U.S.C. § 1415(f)(3)(D)(i), and (2) when a district
fails to give the parent information it was required to
provide, id. § 1415(f)(3)(D)(ii). Congress did not include any other equitable exceptions, such as an exception for continuing violations.
See id.
§ 1415(f)(3)(D).
Congress’s choice to enact some equitable exceptions, and not others, has meaning. “Where Congress
explicitly enumerates certain exceptions to a general
prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” TRW Inc. v. Andrews, 534 U.S. 19, 28
(2001) (internal quotation marks omitted). Thus,
Congress foreclosed the application of the continuing
15
violation doctrine to the IDEA’s statute of limitations
by not including that exception in the IDEA itself.
Tennessee Valley Authority v. Hill, 437 U.S. 153, 188
(1978) is instructive. There, this Court concluded that
the fact that Congress had included a limited number
of hardship exemptions to the Endangered Species
Act, but not an exemption for federal agencies, meant
that the Court “must presume that these were the
only ‘hardship cases’ Congress intended to exempt.”
Id. So too here. In updating the IDEA, “Congress was
also aware of certain instances in which exceptions to
the [limitations period] would be necessary,” yet it
chose not to codify an exception for continuing violations. Id. The court thus “must presume that these
were the only [equitable exceptions] Congress intended to” provide for. Id. To read the statute otherwise would be to read into the clear language of the
statute, a third, “unwritten exception” to the statute
of limitations, even though “a reviewing court’s task
is to apply the text of the statute, not to improve upon
it.” EPA v. EME Homer City Generation, L.P., 572
U.S. 489, 508-509 (2014) (internal quotation marks
and brackets omitted).
Unsurprisingly, the U.S. Department of Education
disagrees with the Eighth Circuit’s interpretation. After the 2004 amendments, the Department of Education issued guidance to states on how to interpret the
statute. See 71 Fed. Reg. 46,540. The Department
explained that since the exceptions to the new IDEA
limitations period contained in the statutory text were
so clear, it declined to respond to comments suggesting that additional exceptions be recognized. Id. at
46,697. It explained that “because the Act and these
16
regulations prescribe specific limitation periods” they
“supersede common law” exceptions. Id. And in response to a commenter’s suggestion that the Department adopt regulations allowing for “extensions of the
statute of limitations when a violation is continuing,”
the Department demurred. Id. It explained that the
statute “provides explicit exceptions to the timeline
for requesting a due process hearing”—and “[t]hese
exceptions do not include when a violation is continuing.” Id.
The legislative history further bolsters a plain-text
reading of the IDEA. The Senate Report made clear
that “[t]he committee d[id] not intend that common
law determinations of statutes of limitation override”
the statutory scheme. S. Rep. No. 108-185, at 40
(2003). And the Report further emphasized that the
amendments were meant only to “provide[ ] for exceptions to the timeline in limited instances.” Id.
This interpretation makes sense. To begin, it is not
uncommon for Congress to make clear that it intends
for liability for certain acts to continue each day a violation persists. See, e.g., 20 U.S.C. § 6083(f)(1) (banning schools and libraries from permitting smoking
specifies that “[e]ach day a violation continues shall
constitute a separate violation”); 7 U.S.C.
§ 1636b(a)(2) (including “Continuing violation” section in livestock packing statute specifying that
“[e]ach day during which a violation continues shall
be considered to be a separate violation”); 49 U.S.C.
§ 11901(a) (providing, in rules for rail carriers offering
transportation under the jurisdiction of the Surface
Transportation Board, that “[a] separate violation occurs for each day the violation continues”). If
17
Congress intended for that to be the case here, it
“could easily have said so.” Kucana v. Holder, 558
U.S. 233, 248 (2010).
It is not hard to imagine why it did not. Had Congress wanted the continuing violation doctrine to apply to claims under the IDEA, it would not have
needed to codify the specific-misrepresentations or
withholding-information exceptions. If the Eighth
Circuit were correct that a child-find violation occurs
anew every day until the student receives services, it
would not be necessary for parents to ever invoke the
codified exceptions to make their claims timely—the
two-year timeframe to bring suit would start fresh
every day until the student was identified for services.
“It is a cardinal principle of statutory construction
that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence,
or word shall be superfluous, void, or insignificant.”
TRW Inc., 534 U.S. at 31 (internal quotation marks
omitted). Because the Eighth Circuit’s view would
render the two codified exceptions “superfluous, void,
or insignificant,” it is not correct. Id.
2. In reaching the opposite conclusion, the Eighth
Circuit did not consider any of this. See Pet. App. 16a–
18a. Instead, the only support for its conclusion was
a “cf.” citation to a products liability case that did not
find a continuing violation. See id. at 18a. To start,
that case has no bearing on the availability of a continuing violation exception in the IDEA context. Plus,
it noted the availability of the continuing violation exception under California law, not federal law. See
Mirapex, 912 F.3d at 1134–35. The court in Mirapex
also did not even apply the exception. See id. at 1135.
18
Accordingly, that case in no way supports the availability of the continuing violation doctrine under the
IDEA.
In any event, products liability cases are not good
analogues for IDEA cases. Unlike products liability
statutes, the IDEA is not a statute that is primarily
designed to provide damages; it is designed to provide
educational services. See Sch. Comm. of Town of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 370–
371 (1985) (explaining that IDEA provides for reimbursement, not “damages”); accord Polera v. Bd. of
Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d
478, 486 (2d Cir. 2002) (“The purpose of the IDEA is
to provide educational services, not compensation for
personal injury, and a damages remedy—as contrasted with reimbursement of expenses—is fundamentally inconsistent with this goal.”). Whereas
products liability suits can satisfy their compensatory
purpose years after a violation has occurred, if years
have passed since a violation of the IDEA, the statute’s goals of providing students with educational services can no longer be satisfied. That the continuing
violation doctrine can apply in products liability cases
is thus not a reason to apply it to IDEA cases.
III. THE DECISION BELOW WILL HAVE GRAVE,
NEGATIVE CONSEQUENCES.
Allowing the decision below to stand will lead to
troubling consequences for schools, the IDEA, and the
more than three million public school students who
19
live in the Eighth Circuit. 5 Because this case is a
clean vehicle to address an important question, the
Court should grant certiorari.
1. The Eighth Circuit’s rule will delay the resolution
of disputes under the IDEA. Under the Eighth Circuit’s view, the statute of limitations on a child-find
claim—like the one at issue here—begins running
anew every day that a school district does not identify
a student for services, regardless of when a parent
knew that that failure to identify was wrongful. See
Pet. App. 17a–18a. That allows a parent to sit on a
claim for years before filing a complaint. See Perry A.
Zirkel and Peter J. Maher, The Statute of Limitations
Under the Individuals with Disabilities Education
Act, 175 Ed. Law Rep. 1, 2 (2003) (noting purpose of
statutes of limitations is “to penalize dilatoriness”).
That outcome cannot be squared with the goals of
the IDEA. “The general policy under the IDEA is to
resolve educational disputes as quickly as possible.”
Powers v. Indiana Dep’t of Educ., Div. of Special
Educ., 61 F.3d 552, 556 n.3 (7th Cir. 1995) (emphasis
added). During the debates on the statute that preceded the IDEA, Senator Williams explained that because “delay in resolving matters regarding the education program of a handicapped child is extremely
detrimental to his development,” “it is expected that
5
In 2017, the most recent year for which there is data, 3,381,860
K-12 students attended public schools in Nebraska, South Dakota, North Dakota, Minnesota, Iowa, Missouri, and Arkansas.
See Nat’l Ctr. for Educ. Stat., Digest of Education Statistics: Enrollment in public elementary and secondary schools, by region,
state, and jurisdiction: Selected years, fall 1990 through fall
2029, https://tinyurl.com/y5j9wryr (last visited Dec. 31, 2020).
20
all hearings and reviews conducted pursuant to these
provisions will be commenced and disposed of as
quickly as practicable consistent with fair consideration of the issues involved.” 121 Cong. Rec. 37,416
(1975). And even before the 2004 amendments added
the two-year statute of limitations, federal courts of
appeals had recognized that the purposes of the
IDEA’s predecessor statute demonstrated “the propriety of a relatively short statute of limitations.”
Spiegler v. District of Columbia, 866 F.2d 461, 466–
467 (D.C. Cir. 1989) (discussing time-limit for petitioning district court for review of decision of administrative agency under the predecessor statute).
In passing the statute of limitations, Congress
aimed to end the long delays that had previously
plagued IDEA litigation. In fact, the House Report
noted that in the absence of a statute of limitations,
“[l]ocal educational agencies [we]re often surprised by
claims from parents involving issues that occurred in
an elementary school program when the child may
currently be a high school student.” H.R. Rep. No.
108–77, at 115. This “unreasonably long threat of litigation” was a motivating force behind Congress’s
choice to add a statute of limitations. Id. By applying
a rule that will result in protracted delays, the Eighth
Circuit effectively undid Congress’s attempt to fix this
problem and reintroduced the prospect of long waits
in IDEA cases.
2. The Eighth Circuit’s rule will cause delays that
will harm students, schools, and school districts. Most
fundamentally, “[w]aiting many years to bring actions
on behalf of a child, * * * jeopardize[s] that child’s
21
education.” G.L., 802 F.3d at 609 (citing H.R. Rep. No.
108–77, at 115).
These delays will also “create[ ] distrust between
school administrators and parents,” since administrators worry that parents may at any point sue over
never-before-expressed grievances from years past.
Id. (citing H.R. Rep. No. 108–77, at 115). In fact, the
House Report that accompanied the 2004 amendments noted that “an unreasonably long threat of litigation hanging over a local educational agency forces
them to document every step they take with every
child, even if the parents agree with the action, because they could later change their mind and sue.”
H.R. Rep. No. 108–77, at 115. And this “fear of farremoved litigation raises the tension level between
the school and the parent,” “breeds an attitude of distrust between the parents and school personnel and
has the effect of requiring school personnel to document conversations, rather than working cooperatively to find the best education placement and services for the child.” Id. at 115–116.
Long delays also prevent schools from addressing
systematic issues with their administration of special
education programs. Years-long delays between a district’s initial violation and its ultimate resolution may
mean that “local educational agency officials may be
unaware that there is a problem.” Id. at 115. And “[i]f
the local educational agency officials do not know specifically what the issue is, they cannot remedy the
problem.” Id. That means that in the meantime, the
school and school district could be unknowingly underserving more students than it would have had the
complaint been filed sooner. Cf. VanDenBerg, 252 F.
22
Supp. 2d at 792 (noting that a goal of the IDEA is the
“prompt resolution of disputes” about provision of services (internal quotation marks omitted)).
Long delays between a violation and the filing of a
complaint also make it harder for districts to engage
in long-term planning. If cases can be brought years
later, districts will have no possibility of repose. See
Zirkel & Maher, supra, 75 Ed. Law Rep. at 2 (noting
that a key purpose of statutes of limitations is “repose”); see also H.R. Rep. No. 108–77, at 115. Instead,
they will have to plan for the possibility that they
could be on the hook for violations that took place over
a decade earlier, perhaps when a student who is now
in high school was in elementary school—an outcome
that Congress aimed to avoid. See H.R. Rep. No. 108–
77, at 115.
Allowing a court to second-guess educators’ decisions years after the fact undermines their status as
professionals. Educators and administrators have
“difficult responsibilities” and must make tough calls
about whether students qualify for services, often
with limited time and resources. Schaffer ex rel.
Schaffer v. Weast, 546 U.S. 49, 62–63 (2005) (Stevens,
J., concurring). Making it so those decisions—unlike
the judgments of other professionals—can be secondguessed in court a decade later undermines their status as professionals. Cf. id. (“[W]e should presume
that public school officials are properly performing
their difficult responsibilities under [IDEA].”). A rule
that undermines the sense that they are experts with
special knowledge and skills may make the profession
less desirable and make it harder to recruit and retain
talented teachers.
See Richard M. Ingersoll &
23
Gregory J. Collins, The Status of Teaching as a Profession, in Schools and Society: A Sociological Approach to Education 199, 207, 211 (Jeanne H. Ballantine et al., eds., 6th ed. 2018), available at
https://tinyurl.com/y28mbaob (“Professionals are considered experts in whom substantial authority is
vested, and professions are marked by a large degree
of self-governance.”).
Beyond these IDEA-specific concerns, allowing the
rule below to stand will usher in the kinds of harms
that all statutes of limitations exist to prevent. Accepting the applicability of the continuing violation
theory in IDEA cases would mean that by the time a
claim is adjudicated, it may be the case that “evidence
has been lost, memories have faded, and witnesses
have disappeared.” Gabelli v. SEC, 568 U.S. 442, 448
(2013) (internal quotation marks omitted); see also
Lynn M. Daggett et al., For Whom the School Bell
Tolls but Not the Statute of Limitations: Minors and
the Individuals with Disabilities Education Act, 38 U.
Mich. J.L. Reform 717, 722 (2005) (noting that statutes of limitations serve purposes of “imposing finality
on the litigation system, giving potential defendants
an end to their potential liability, and avoiding litigation of disputes involving stale evidence”). And those
concerns are heightened in the education context,
where teachers and schools are responsible for teaching a new cohort of students every year.
It will also create additional work for already overburdened special education teachers and departments, as well as the general education teachers,
counselors, and administrators who share the responsibility of identifying students with special needs. If
24
districts can be called on to litigate cases years after
the initial failure to identify a student, special educators, counselors, and school administrators will be
forced to make more extensive documentation of potential violations because of the potential of “far-removed litigation.” H.R. Rep. No. 108–77, at 115.
Schools and school districts will also need to maintain
and secure confidential records for even longer—diverting already scarce resources that could otherwise
be used to provide services to students. Cf. id. at 115–
116 (noting that time spent documenting information
in preparation for litigation takes away from “working
* * * to find the best * * * services for the child.”).
The Eighth Circuit’s rule will also increase litigation
costs, which will further strain school districts’ limited resources. That will be particularly devastating
to school finances because the federal funding available under the IDEA does not begin to cover the costs
of serving students. See Nat’l Conf. of State Legislatures, Federal Funding for Special Education,
https://tinyurl.com/y4wx7bmc (last visited Dec. 31,
2020). As drafted, the IDEA envisioned that Congress
would pay up to 40 percent of the additional costs associated with educating special education students.
See Nat’l Educ. Ass’n, Special Education Grants to
States (IDEA Part B-611) (Apr. 4, 2018),
nea.org/sites/default/files/2020-06/IDEA-FundingGap-FY2017-with-State-Table.pdf. Since 1981, however, Congress has failed to provide full funding, and
in recent years it has covered less than 16 percent of
the additional costs. See id. That has meant that
state and local jurisdictions shoulder about $19.5 billion each year in costs associated with the IDEA that
25
are not covered by federal special education funding.
See id. Additional strain on school budgets will therefore mean that schools have fewer resources to spend
on providing students the services they need.
The Eighth Circuit’s rule below further threatens to
allow a continuing violation exception to swallow the
rule that all claims must be brought within two
years. Indeed, as one court put it, “to accept a continuing violation exception to the statute of limitations
in IDEA cases would eviscerate the limitations period” because a defective education “fits all too easily
into the category of a ‘continuing violation.’ ” VanDenBerg, 252 F. Supp. 2d at 792–793. Indeed, in practice
“no statute of limitations bar would be enforceable, because every violation would continue past the statutory bar.” Jefferson Cnty. Bd. of Educ., 977 F. Supp.
2d at 1124.
2. Resolving the question presented is important because of how many students, schools, and school districts are potentially affected. In 2018-2019, more
than 7.1 million students in the United States received special education services under the IDEA. See
Nat’l Ctr. for Educ. Stat., The Condition of Education:
Students
with
Disabilities,
https://tinyurl.com/y3l6zh8v (last updated May 2020). All told,
approximately 14 percent of all public school students
in the United States receive special education services
under the IDEA. Id. And child-find claims are common IDEA violations. Cf. Susan Johns, Ferrara Fiorenza PC, Child Find Obligation: Why Does It Matter?
(Dec. 27, 2018), https://tinyurl.com/yxb5cfdx (noting
that child-find claims are “increasingly common”).
Given the large number of students who receive
26
services under the statute, it is not surprising that
district courts across the country frequently encounter the continuing violation issue. See supra, pp. 1213 n.4.
The question also affects other statutes beyond the
IDEA. The IDEA statute of limitations applies not
just to purported violations of the IDEA, but also to
Rehabilitation Act claims that are premised on IDEA
obligations, as well. See D.K., 696 F.3d at 244 (citing
34 C.F.R. § 300.507(a)(2)). That means that resolving
the question presented has implications for other statutory schemes.
3. This case offers a clean vehicle to address this
important question. The question is clearly presented
since the ALJ, the district court, and the Eighth Circuit all addressed the timeliness question. See Pet.
App. at 16a-18a, 44a-46a.
No further percolation is necessary. The statute of
limitations has existed for 16 years, and the courts of
appeals that have addressed this issue have laid out
the case against the Eighth Circuit’s atextual reading
of the IDEA. See supra pp. 10-12. The Court should
thus resolve this important question.
27
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
PETER A. MARTIN
KNUTSON, FLYNN &
DEANS, P.A.
1155 Centre Pointe
Drive, Suite 10
Mendota Heights, MN
55120
(651) 222-2811
pmartin@kfdmn.com
NEAL KUMAR KATYAL
Counsel of Record
MAREE F. SNEED
ERIN R. CHAPMAN
KIRTI DATLA
HOGAN LOVELLS US LLP
555 Thirteenth St., N.W.
Washington, D.C. 20004
(202) 637-5600
neal.katyal@hoganlovells.com
Counsel for Petitioners
DECEMBER 2020
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.