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KROOT v. DISTRICT OF COLUMBIA

August 25, 1992

JOSEPH KROOT, by and through his next friends and parents, Louis and Kathy Kroot, and LOUIS AND KATHY KROOT, Plaintiffs,
v.
THE DISTRICT OF COLUMBIA and ANDREW JENKINS, Defendants.



The opinion of the court was delivered by: STANLEY S. HARRIS

 This action concerns plaintiffs' claim for reimbursement from the District of Columbia for the costs of special education for Joseph Kroot for the 1988-89 school year. Plaintiffs seek to recover those costs pursuant to the Individuals with Disabilities Education Act (IDEA or the Act), 20 U.S.C.A. §§ 1400 - 1485 (1988). *fn1" The matter is before the Court on defendants' motion to dismiss or for summary judgment and plaintiffs' motion for summary judgment. For the reasons that follow, the Court denies the parties' motions and remands the case for the hearing officer to conduct a new hearing.

 Background

 The IDEA requires the District of Columbia Public Schools (DCPS) to "have in effect a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. § 1412(1). The DCPS must provide eligible handicapped children with "access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." Hendrik Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 201, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). With input from a child's parents, the DCPS must develop an individualized education program (IEP) designed to address the child's special educational needs in an appropriate school placement. 20 U.S.C.A. § 1414(a)(5); see id. § 1401(a)(18). If no appropriate public school exists, the DCPS must pay the cost of placing the child in an appropriate private school. School Comm. of the Town of Burlington v. Department of Educ. of Mass., 471 U.S. 359, 369, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985).

 To qualify for special education under the IDEA, a child must fall within the Act's definition of "handicapped children," which includes "children with specific learning disabilities." See 20 U.S.C.A. at 1401(a)(1). In turn, "children with specific learning disabilities" is defined as "those children who have a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written." Id. § 1401(a)(15). To be eligible under the Act, a child must "require special education and related services" as a result of his or her disability. Id. § 1401(a)(1). The Act provides substantive and procedural rights for the parents or guardians of children who meet these definitions. See id. § 1415.

 Plaintiffs sought special education pursuant to the IDEA for Joseph Kroot's 1988-89 school year. *fn2" On May 27, 1988, they filed a Confidential Student Services Form with the DCPS. *fn3" The DCPS then convened a multi-disciplinary team (MDT) to review the request for special education and to collect any information necessary to determine Joseph's eligibility. Plaintiffs submitted numerous documents meant to support their request, including reports from educators at his previous schools and assessments from other evaluators.

 The MDT met to discuss the information that plaintiffs submitted and the results of tests that the DCPS conducted. Joseph's mother and Laura Solomon, an educational consultant, attended the MDT's meeting. The MDT determined that Joseph was ineligible for special education under the IDEA. On February 24, 1989, Joseph's parents challenged the ineligibility determination and requested "an impartial due process hearing" under the Act. See 20 U.S.C. § 1415(b)(2). A hearing was held on June 6, 1989, and, on June 21, the hearing officer issued a written determination that Joseph was ineligible for special educational services. *fn4"

 Notwithstanding the ineligibility determination, Joseph's parents enrolled him in the Lab School of Washington (LSW), a full-time special education school for learning disabled children. Plaintiffs challenge the hearing officer's determination and seek reimbursement for the costs of Joseph's enrollment at LSW for the 1988-89 term. *fn5"

 Discussion

 I. Statute of Limitations

 Defendants contend in their motion for summary judgment that plaintiffs' prosecution of their request for special education services for Joseph was untimely in two regards. First, they argue that this action is barred by the seven-month delay between the initial ineligibility determination and plaintiffs' request for a due process hearing. Second, they claim that plaintiffs' complaint was untimely because it was not filed within 30 days of the hearing officer's determination.

 Defendants waived the limitations defenses by failing to raise them in the answer to the complaint. Defendants first raised the statute of limitations and laches in their July 2, 1990, opposition to plaintiffs' motion for summary judgment -- approximately one year after plaintiffs filed the complaint, and there was no request to amend the answer to include such defenses. Affirmative defenses such as the statute of limitations and laches generally must be raised in the answer or they are waived. See Fed. R. Civ. P. 8(c); Johnson v. Sullivan, 922 F.2d 346, 355 (7th Cir. 1990); Carey Canada, Inc. v. California Union Ins. Co., 748 F. Supp. 8, 14 (D.D.C. 1990) (quoting 5 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 1278, at 477 (1983 & Supp. 1990)). Although there are exceptions to the waiver rule, defendants have not suggested that any applies to this case. *fn6" Indeed, defendants have not filed any response to plaintiffs' assertion of waiver. Accordingly, the Court concludes that defendants waived the limitations and laches defenses. *fn7"

 II. Challenge to Hearing Officer's ...


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