The principal cases upon which the District relies all deal (directly or indirectly) with the effect of a parent's failure to raise any objection whatsoever to an IEP during its term, and are thus inapposite. See Doe v. HampdenโWilbraham Reg'l Sch. Dist., 715 F.Supp.2d 185, 194โ95 (D.Mass.2010); C.M. ex rel. J.M. v. Bd. of Pub. Educ. of Henderson Cnty., 184 F.Supp.2d 466, 484 (W.D.N.C.2002); McDowell ex rel. McDowell v. Fort Bend Indep. Sch. Dist., 737 F.Supp. 386 (S.D.Tex.1990). (Curiously, the District also cites Town of Burlington v. Dep't of Educ. for the Commonwealth of Mass., 736 F.2d 773, 796โ97 (1st Cir.1984), which appears to have no relevance to the waiver question.)
Furthermore, the statute of limitations for IDEA (then the EHA) claims in Texas was previously two years, based on state law when construing civil rights actions under ยง 1983 and when the federal statute had no statute of limitations. McDowell v. Ft. Bend ISD, 737 F. Supp. 386, 389 (S.D. Tex. 1990). On August 1, 2002, the TEA promulgated a new rule at 19 T.A.C. ยง 89.1151(c) changing the two-year limitations period to one year.
The law can only mandate equal opportunity, not equal results. McDowell v. Fort Bend Indep. Sch. Dist., 737 F. Supp. 386, 389 (S.D. Tex. 1990). No school can guarantee that an IEP will be successful. Rowley, 458 U.S. at 192; Board of Educ. v. Steven L., 898 F. Supp. 1252, 126]. (N.D. Ill. 1995), vacated as moot, 89 F.3d 464 (7th Cir. 1996), cert. denied, 520 U.S. 1198 (1997).
The law can only mandate equal opportunity, not equal results. McDowell v. Fort Bend Indep. Sch. Dist., 737 F. Supp. 386, 389 (S.D. Tex. 1990). No school can guarantee that an IEP will be successful. Rowley, 458 U.S. at 192; Board of Educ. v. Steven L., 898 F. Supp. 1252, 1261 (N.D. Ill. 1995), vacated as moot, 89 F.3d 464 (7th Cir. 1996), cert. denied, 520 U.S. 1198 (1997).
In other words, the "plaintiff must be in possession of 'critical facts' which indicate that he has been hurt and that the defendants are responsible for this injury." McDowell v. Fort Bend Indep. Sch. Dist., 737 F. Supp. 386 (S.D.Tex. 1990). We are persuaded by the plaintiff's argument that "[t]he discovery of the injury did not occur until well after K.P.'s placement in the community in June, 1991. . . ."
Defendant contends that "[a] cause of action under the IDEA accrues `when parents know or have reason to know of the injury or event that is the basis for their claim,'" id. at 35 (quoting Hall v. Knott County Bd. of Educ., 941 F.2d 402, 408 (6th Cir. 1991)), cert. denied, ___ U.S. ___, 112 S.Ct. 982, 117 L.Ed.2d 144 (1992). To support its interpretation of Hall, defendant cites McDowell v. Fort Bend Indep. School Dist., 737 F. Supp. 386 (S.D.Tex. 1990), for the proposition that "[t]he plaintiff must be in possession of `critical facts' which indicate that he has been hurt and that the defendants are responsible for this injury." Defendant's Memo on Statute of Limitations at 35 (citing McDowell at 389).
In the absence of legislatively enacted limitations periods, hearing officers have traditionally applied the two-year tort limitations period to due process claims. See Texas Education Agency, James P. v. Northeast Indep. Sch. Dist., Docket No. 270-SE-496 (June 24, 1996) (Decision of Hearing Officer); cf. McDowell v. Fort Bend Indep. Sch. Dist., 737 F. Supp. 386, 388-89 (S.D.Tex. 1990). Similarly, state and federal courts have borrowed this two-year limitations period for suits for judicial review.