dissenting.
I find myself unable to join the opinion of the court because I cannot understand how a statute of limitation can be applied against a claimant who has no knowledge of any right or benefit that is being denied. Instead, it seems to me that the Education of the Handicapped Act, 20 U.S.C. § 1400 et seq, imposed an affirmative duty on the School Board to advise the plaintiff of her right to an individualized education program beginning in 1978. Hendrick Hudson Dis. Bd. of Educ. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); Janzen v. Knox Co. Bd. of Educ., 790 F.2d 484 (6th Cir.1986). Moreover, it has been held that the statute “confers upon disabled children an enforceable substantive right to public education in participating States and conditions federal financial assistance upon a State’s compliance with the substantive and procedural goals of the Act.” Honig v. Doe, 484 U.S. 305, 310, 108 S.Ct. 592, 597, 98 L.Ed.2d 686 (1988) (emphasis supplied); Rowley, 458 U.S. at 189, 102 S.Ct. at 3042; See, 20 U.S.C. §§ 1411-1412.
In the plaintiff’s case, however, there was no notice of any right, apparently no annual evaluation of her educational program as mandated by the Act, and her only contact with the board in this regard came in 1983, three weeks prior to her completion of high school. Clearly, the Board failed, not once, but for four consecutive years, in its statutorily imposed duty to the plaintiff who, thereby, had no idea of any right being denied or available remedy. Accordingly, I believe that the School Board should be estopped from raising the statute of limitations defense and I respectfully dissent.