K.I. et al v. Montgomery Public Schools
MEMORANDUM OPINION AND ORDER, denying 46 MOTION to Supplement the Record filed by Jennie I., K. I. Signed by Hon. Chief Judge Mark E. Fuller on 9/30/08. (Attachments: # 1 appeals checklist)(vma, )
IN THE UNTIED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION K .I., et al., P L A IN T IF F S , v. M O N T G O M E R Y PUBLIC SCHOOLS, DEFEND AN T. ) ) ) ) ) ) ) ) )
CASE NO. 2:06-cv-905-MEF (W O )
M E M O R A N D U M OPINION AND ORDER T h is case involves claims brought by Plaintiffs under the Individuals with Disabilities E d u c a tio n Act ("IDEA"), 20 U.S.C. § 1400 and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. This cause is before the Court on Plaintiffs' Motion to Supplement the Record (Doc. # 46), filed June 13, 2007. Plaintiff is seeking to introduce additional evidence in the form o f live testimony by Dr. Laura Vogtle, Rochelle West, and Donna Locke. For the reasons s ta te d below, Plaintiffs' motion is due to be DENIED. I . FACTS Jen n ie I. has brought this action individually, and on behalf of her minor daughter, a g a i n s t Montgomery Public Schools (MPS) for failing to provide K.I. with a free and a p p ro p ria te education in violation of the IDEA and § 504 of the Rehabilitation Act. K.I. is a child with arthrogriposis, restrictive lung disease, and a form of muscular dystrophy. Due to her disabilities, K.I.'s movements are very restricted, she has limited movement of her h e a d , arms, and hands, and she cannot speak. She also requires feeding through a
g a stro s to m y tube and suctioning. From preschool through November 2004, K.I. attended a s e lf -c o n ta in e d school for medically fragile children known as the Children's Center ("the C e n t e r" ) . In November 2004, Jennie I. refused to return her daughter to the Center, and also re f u se d the alternative offered by MPS of homebound services. Jennie I. sought an
in d e p e n d en t evaluation of K.I.'s educational needs, so she hired Children's Rehabilitation S erv ice ("CRS") for an evaluation. That evaluation was completed by Donna Locke. K.I. w a s also independently evaluated by Dr. Laura Vogtle, an occupational therapist with the U n iv e rs ity of Alabama. O n April 21, 2005, J.I requested a due process hearing pursuant to the IDEA to d e te rm in e whether MPS had failed to provide K.I. with a free appropriate public education b y only offering enrollment in the Center or homebound services. Jennie I. accepted h o m e b o u n d service pending the outcome of the hearing. A t the conclusion of the due process hearing, the ALJ concluded that MPS's decision to enroll K.I. at the Center complied with its obligation under the IDEA to provide a free a p p ro p ria te public education to K.I. On October 6, 2006, Plaintiffs filed this action to appeal th e ALJ's ruling. II. DISCUSSION P la in tif f s are seeking leave to introduce evidence in the form of live testimony at trial th a t was not a part of the record during the due process hearing. The testimony Plaintiffs w a n t to introduce is from Dr. Laura Vogtle, Rochelle West, and Donna Locke. Both Vogtle
a n d Locke testified at the due process hearing. West did not testify at the hearing because a t the time of the hearing she had not evaluated K.I. After the hearing, West took over the job at CRS of evaluating K.I. A district court hearing an appeal from an administrative decision in an IDEA due p ro c e ss hearing must give the determination of the state educational authorities "due weight" a n d not simply substitute its judgment. Walker County School Dist. v. Bennett, 203 F.3d 1 2 9 3 , 1297 (11th Cir. 2000). However, the extent of the deference to be given to the a d m in i str a tiv e decision is left to the sound discretion of the district court, which must c o n s id e r the administrative findings, but is free to accept or reject them. See id. at 1297-98. T he evidence that the court is allowed to consider "generally will be the administrative h e a rin g record." Id. at 1298. Pursuant to the IDEA, the district court may also hear " a d d itio n a l evidence" if the party seeking to supplement the record can show a "solid ju s tif ic a tio n " for doing so. See 20 U.S.C. § 1415(e)(2); School Bd. of Collier County v. K.C., 2 8 5 F.3d 977, 981 (11th Cir. 2002). Reasons for a court to allow "additional evidence" in c lu d e "gaps in the administrative transcript owing to mechanical failure, unavailability of a witness, an improper exclusion of evidence by the administrative agency, and evidence c o n c e r n i n g relevant events occurring subsequent to the administrative hearing." Walker C o u n ty , 203 F.3d at 1298. However, in determining what "additional evidence" to allow, the tria l court must be careful not to allow such evidence to change the character of the hearing f ro m one of review to a trial de novo. Id. Accordingly, there is a rebuttable presumption that
a witness who testified at the due process hearing is foreclosed from testifying at trial. Id. M o r e o v e r , in ruling on a motion for additional evidence, a court must consider the f o llo w in g factors: not allowing a party to undercut the statutory role of administrative e x p e rtis e , the unfairness involved in one party's reserving its best evidence for trial, the re a so n the witness did not testify at the administrative hearing, and the conservation of ju d ic ia l resources. Id. A. D r . Laura Vogtle V o g tle is an augmentative communication consultant with CRS. Prior to the hearing, V o g tle conducted an independent evaluation of K.I. on three separate visits. At the hearing, V o g tl e testified that K.I. required appropriate assistive technology devises and services, in c lu d in g an augmentative communication system. She also testified that in order to identify th e appropriate assistive technology, K.I. needed to undergo a comprehensive evaluation. T h e Center was inadequate, according to Vogtle, because its staff did not have adequate e x p e rtis e , and K.I. needed to be placed in an educational program where she would interact w ith less or non-disabled children. P la in tif f s have moved this Court to allow Vogtle to testify at trial. Plaintiffs have iden tified four areas they intend her testimony to cover: 1. T h e appropriateness of MPS's current use of assistive technology, including M P S ' s current staff's abilities to instruct K.I. in the use of assistive t e c h n o l o g y.
K .I.' s progress since the hearing in understanding "cause and effect," m o tiv a tio n , responsiveness, and social skills; also, K.I.'s potential abilities in th e s e areas.
T h e appropriateness of K.I.'s current educational program. T h e relationship between K.I.'s current developmental status and
r e sp o n s iv e n e s s and her need for socialization with less disabled peers. T h is Court does not feel that Plaintiffs have presented a "solid justification" for a d m ittin g this additional evidence. Plaintiffs assert that the additional evidence is warranted b e c a u se it concerns K.I.'s progress after the hearing. However, Plaintiffs have failed to a rticu late a "solid justification" as to why K.I.'s progress since the hearing will not simply b e cumulative and duplicative of the testimony that was presented at the hearing. See, e.g., W e st Platte R-II School Dist. v. Wilson, 439 F.3d 782, 785 (8th Cir. 2006) (affirming district c o u rt's decision to disallow testimony in IDEA case from witnesses regarding progress since d u e process hearing because courts "normally determine these issues based solely on the a d m in is tra tiv e record"). Based on a review of Plaintiff's proffer of Vogtle's expected testimony, as well as the e v id e n c e presented during the hearing, this Court feels that the expected testimony of Vogtle w ill be cumulative and duplicative of the evidence presented during the hearing and that P lain tiff s have failed to meet their burden to present a "solid justification" for this Court to allo w the additional evidence. For example, Plaintiffs' have not articulated how Vogtle's
o p i n i o n s on MPS's "current" use of assistive technology and educational program will be d if f ere n t from her prior testimony or how it will assist this Court in reviewing the a d m in is tra tiv e record. Similarly, Plaintiffs' have not specified how Vogtle's testimony r e g a rd i n g the appropriateness of K.I.'s "current" educational program, developmental status, re sp o n s iv e n e ss , or need for socialization with less disabled peers, will be different from her p rio r testimony or how it will assist this Court in reviewing the administrative record. Plaintiffs argue that the testimony should be admitted because it will be based on V o g tle's observations of K.I. at the Center, whereas she did not have the opportunity to o b s e rv e K.I. at the Center prior to the hearing due to the fact that K.I. was using homebound s e rv ic e s at that time. However, the fact that Vogtle's opinions will be based on different o b s e rv a tio n s does not mean that the testimony will substantively different. The ALJ's o p in io n noted that "Petitioner's experts' opinions related to maximizing the Child's potential, w h ic h is not required by IDEA." With this standard in mind, Plaintiffs have failed to meet th e ir burden to show a solid justification explaining how additional testimony from Vogtle w ill be anything other than cumulative of the testimony at the hearing. Accordingly, Vogtle w ill not be allowed to testify at trial. B. D o n n a Locke and Rochelle West L o c k e is a speech and language therapist who managed the Augmentative C o m m u n ic a tio n Clinic at CRS. She worked with school districts to provide assistive te c h n o lo g y to students with disabilities. Prior to the hearing, Locke conducted an evaluation
o f K.I. and assessed K.I.'s ability to use augmentative communication technology. Locke te s tif ie d at the hearing that she believed K.I. was not cognitively impaired, understood "cause a n d effect," and could learn the alphabet, colors, and numbers with appropriate assistive te c h n o lo g y. Also, Locke believed that K.I. needed to receive direct speech and language s e rv i c e s for at least one hour per week from a pathologist specifically trained to use a u g m e n ta tiv e communication. K.I. also needed to work on communication skills with a s p e c ia l education teacher for at least one hour each day, and be afforded continuous o p p o rtu n itie s to use any communication device throughout the day. Locke testified that the C e n te r was inappropriate for K.I. because she is only allowed to use assistive technology o c c a s i o n a l l y. W e st is Locke's successor at CRS and is K.I.'s current speech and language p a th o lo g is t. West did not evaluate K.I. until after the hearing, and so did not testify at the h e a rin g . Plaintiffs have indicated that they expect West to testify regarding the following s u b j e c t matters: 1. K .I.'s ability to use assistive technology, and her need for extensive exposure to the technology. 2. K .I.'s progress in understanding "cause and effect" when working with a ss istiv e technology, and K.I.'s ability to respond to stimuli. 3. 4. K .I.' s need for exposure to students who can verbally communicate.. K .I.'s motivation, demonstrated enjoyment of social interactions, and need for
a more stimulating environment including placement with students who are le ss impaired. W h ile West did not testify at the hearing, her evaluations of K.I. were conducted as th e successor to Locke's position at CRS. Moreover, a review of her proffered testimony, a s well as a review of the evidence presented at the hearing, leads this Court to conclude that h e r testimony would be cumulative and duplicative of evidence presented at the hearing, such a s the testimony of Vogtle and Locke. In addition, for the same reasons discussed regarding V o g tl e , the fact that West's testimony will be based on observations at the Center is not a s u f f ic ie n t justification to warrant admitting the additional evidence. Consequently, Plaintiffs h a v e failed to meet their burden to show a "solid justification" and West will not be p e rm itte d to testify at trial. P la in tif f s have also moved this court to permit Locke to testify. Plaintiffs submit that L o c k e will testify as to K.I.'s progress in responsiveness and visual tracking skills, as well a s her need for additional auditory and visual stimulation. Locke will also testify about the re la tio n s h i p between K.I.'s present level of functioning and her need for a less restrictive en v iro n m en t. Despite the fact that Locke has only now had the opportunity to observe K.I. a t the Center, the Court finds that this testimony will be cumulative and duplicative of the e v id e n c e presented at the hearing, such as the prior testimony of Locke. Therefore, Plaintiffs h a v e failed to meet their burden to show a "solid justification" for allowing this additional e v id e n c e . Thus, Locke will not be permitted to testify at trial.
I I I . CONCLUSION F o r the reasons set forth above, it is hereby ORDERED that Plaintiffs' Motion to S u p p le m en t the Record (Doc. # 46) is DENIED. D O N E this the 30th day of September, 2008. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE
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