A poor IDEA: statute of limitations decisions cement second-class remedial scheme for low-income children with disabilities in the Third Circuit.

• Author: Valverde, Jennifer Rosen
• Position: Individuals with Disabilities Education Act - Introduction through III. Application of the IDEA 2004's Statute of Limitations to Compensatory Education Claims in the Third Circuit A. Timelines for Filing Special Education Claims Pre-IDEA 2004, p. 599-635

Introduction I. Identifying the Affected Population: The Relationship Between Socioeconomic Status, Disability, and Educational Outcomes A. The Links Between Socioeconomic Status, Child Development, and Educational Outcomes B. The Link Between Socioeconomic Status and Disability C. The Link between Disability and Educational Outcomes D. The Intersection of Socioeconomic Status, Disability, and Educational Outcomes II. Overview of the IDEA'S Remedial Scheme A. Tuition Reimbursement B. Compensatory Education III. Application of the IDEA 2004's Statute of Limitations to Compensatory Education Claims in the Third Circuit A. Timelines for Filing Special Education Claims Pre-IDEA 2004 B. Courts' Misapplication and Overly Restrictive Interpretation of the IDEA 2004's Statute of Limitations and its Exceptions in Compensatory Education Matters 1. Application of the IDEA 2004's Statute of Limitations a. Courts Improperly Restrict Adjudication of Compensatory Education Claims to Two Years Prior to the Date the Complaint Was Filed b. Courts Improperly Restrict Adjudication of Compensatory Education Claims to Two Years Prior to the KOSHK Date Regardless of the Scope of the Claim 2. Application of Equitable Tolling to the IDEA following the 2004 Amendments 3. The Third Circuit's Interpretation of Exceptions to the Statute of Limitations IV. Application of Third Circuit Courts' Opinions to Case Studies A. The Case of Aaron B. The Case of Asia V. Remedying Inequalities in the Remedial Scheme Conclusion Introduction

The Individuals with Disabilities Education Act (IDEA, or the Act), enacted in 1975 as the Education of All Handicapped Children Act (EAHCA), (1) was widely praised as landmark civil rights legislation providing equality in educational opportunity to children with disabilities. (2) For decades preceding the law's passage, school districts routinely denied children with disabilities an adequate education. (3) They provided no educational assistance or accommodations to children in school, "warehoused" children in institutions thereby segregating them from their non-disabled peers, or excluded them from school altogether. (4)

In the years following the U.S. Supreme Court's historic 1954 decision in Brown v. Board of Education? individual and class action lawsuits across the country challenged the exclusion of students with disabilities from school on equal protection and other grounds. (6) Two seminal federal district court decisions, Pennsylvania Ass'n for Retarded Children v. Pennsylvania and Mills v. Board of Education, significantly transformed the education landscape by granting children with disabilities access to an adequate, publicly supported education, and by instituting due process and procedural protections for parents and children. (7) Plaintiffs in these cases successfully argued for extension of the Supreme Court's reasoning in Brown to school-age children with disabilities who were denied proper educational programs and services, specifically that "separate but equal" is "inherently unequal" and that education "is a right which must be made available to all on equal terms." (8) The end result was the promulgation of the Education of All Handicapped Children Act, now known as the IDEA.

Nearly forty years later, tremendous progress has been made both in educating children with disabilities and in safeguarding their right to an appropriate education. (9) Yet, despite the myriad of benefits stemming from its aim to create equality in educational opportunity for children with disabilities, the IDEA has inadvertently advanced inequality on the ground of socioeconomic status. (10) Children living in poverty have higher rates of disability" and poorer educational outcomes than their middle and upper class peers. (11) While the IDEA provides a detailed framework of special education rights for parents and their children with disabilities, (13) low-income parents' ability to enforce those rights successfully is, at best, a challenge and, at worst, an impossible feat. (14) Adding insult to injury, on the occasions that parents succeed in their enforcement efforts, remedies available under the IDEA often do not compensate low-income children adequately for the harms that occurred and potential lifelong consequences that ensue. (15) The failure to properly educate children with disabilities results in dramatic costs not only to the children affected and their families, but also to society. (16)

The Third Circuit, once considered a progressive and favorable bastion for parents and children in the special education arena, (17) more recently has joined the "pro-school" movement, (18) eroding the special education rights of those living in poverty. Nowhere is this more evident than in the Third Circuit's changed approach to the remedial framework afforded to impoverished parents and their children with disabilities who wrongfully have been denied essential special education programming and services for lengthy periods of time. This Article proposes that courts' misreading and misapplication of the IDEA'S 2004 statute of limitations and overly restrictive interpretation of its exceptions have whittled away the already limited remedies available for children with disabilities without financial means, depriving them of adequate recourse. These are many of the same children who have the greatest need for proper special education services, based on demographics and research evidencing links between poverty, child development, disability, and educational outcomes. (19) Approximately two-thirds of children with disabilities found eligible for special education across the country live in households earning less than $50,000, and nearly one-half of those families have incomes falling at or below the federal poverty line. (20)

This Article begins with a summary of research findings regarding the intersection of poverty, disability, and educational outcomes. Data specific to Newark, New Jersey, where this author works, is cited, at times, to provide context. Part II provides a brief overview of the remedies accessible under the IDEA and focuses in particular on the availability of the remedial scheme to families with limited financial resources in the Third Circuit. Part III explores the language of the IDEA'S 2004 statute of limitations provision and exceptions, and analyzes the Third Circuit's interpretation and application of these provisions in recent compensatory education (21) cases. Part IV presents two case studies illustrating the chilling effects of these decisions on the ability of parents without means and their children to obtain necessary compensatory special education (22) and related services. (23) Part V concludes with a proposal for legislative action in the form of an explicit enumeration of compensatory education as a remedy and creation of a separate statute of limitations for compensatory education matters consistent with legislative intent and the Third Circuit's prior broad remedial approach. The proposal aims to rectify the impact of inequality based on socioeconomic status currently in the IDEA'S remedial scheme.

1. IDENTIFYING THE AFFECTED POPULATION: THE RELATIONSHIP BETWEEN SOCIOECONOMIC STATUS, DISABILITY, AND EDUCATIONAL OUTCOMES

   Understanding the data on the interrelationship of socioeconomic status, disability, and educational outcomes is critical to forming an accurate picture of the potential numbers of young people with disabilities poorly served by the IDEA'S inferior remedial scheme. While research abounds on the links between poverty and education, poverty and disability, and disability and education, few studies have examined the intersection of all three factors simultaneously. The interrelationship may be extrapolated, however, by examining the bi-factor associations in tandem. Each of these associations is discussed in turn below. Together, they paint a bleak portrait of the lives and futures of many children.

   Poverty in the United States has increased in recent years--a likely consequence of the 2007 economic downturn. (24) In 2010, 22% of children between the ages of 0-17 lived in poverty (defined as having an annual income of $22,113 for a family of four). (25) The rate grew by 5% since 2006, when 17% lived in poverty. (26) Significantly, nearly one-half of these children lived in extreme poverty in households with incomes at or below 50% of the federal poverty level, defined in 2010 as a yearly household income of $11,057 for a family of four. (27)

   Great inequalities exist in the distribution of child poverty based on race and ethnicity. Of the children living in poverty in 2010, 39% were African-American non-Hispanic, 35% were Hispanic, and 12% were white. (28) These racial and ethnic differences are not surprising in light of 2009 data showing that the median wealth of white households was twenty times greater than that of African-American households and eighteen times greater than that of Latino households. (29) Children in poverty are more likely to live in single-parent households as well. (30)

   The numbers are even more sobering in areas with high concentrations of poverty. For example, 18% of all New Jersey children lived at or below the federal poverty level in 2011, defined as an annual household income of $22,350 for a family of four. (31) That same year, approximately 50% of children under the age of five (more than 13,000 children) in the city of Newark lived in households with incomes at or below the federal poverty level. (32) More than 6500 children in Newark lived in extreme poverty, with household incomes less than or equal to 50% of the federal poverty level. (33)

   The location of a family's residence further influences a parent's ability to provide for basic needs due to cost of living differentials across the country. To illustrate, a 2008 study by the Legal Services of New Jersey Poverty Research Institute found that for many New Jersey residents...