RICCI et al v. BEECH GROVE CITY SCHOOLS et al

Filing 31

Order on Plaintiff's Motion to Submit Additional Evidence and Setting Deadline for Plaintiffs' Principal Brief: The plaintiffs' motion (Dkt. 27) to supplement the administrative record is GRANTED IN PART AND DENIED IN PART. The Decision from the second hearing (HR-007-2014) and the student's schedule from Fortune Academy are added to the record. The plaintiffs must assign appropriate Bates numbers to those documents and file them with the court within seven days. That filing may be under seal. The plaintiffs' request to supplement the record with transcripts of testimony from the first and second hearings and with Fortune Academy records from the first and second hearings that were not admitted at the third hearing is DENIED. The deadline for the plaintiffs to file their Principal Brief (see Dkt. 22) is December 18, 2014. Briefing shall otherwise proceed as described at Dkt. 22 ***SEE ORDER FOR ADDITIONAL INFORMATION***. Signed by Magistrate Judge Debra McVicker Lynch on 11/26/2014. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RICCI C. and KAREN C., parents and
next friends of L.C.,
Plaintiffs,
vs.
BEECH GROVE CITY SCHOOLS and
SOUTHSIDE SPECIAL SERVICES OF
MARION COUNTY,
Defendants.

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Order on Plaintiff’s Motion to Submit Additional Evidence
and Setting Deadline for Plaintiffs’ Principal Brief
Plaintiffs Ricci and Karen C., who are the parents of L.C., seek leave to add
to the administrative record in this action for judicial review of the decision by an
Independent Hearing Officer that an individualized education program (“IEP”)
provides to L.C. a free appropriate public education in the least restrictive
environment. The defendants are Beech Grove City Schools and Southside Special
Services of Marion County, an entity that provides services to students with
disabilities in several school districts, including Beech Grove City Schools. The
court refers to both defendants as the “School.”

Background
L.C. had been home-schooled by his mother until the 2012-2013 academic
year. In connection with his enrollment at Beech Grove City Schools, the School
evaluated L.C. and developed an IEP for him. His parents decided that the School’s
programs were not satisfactory and enrolled L.C. at Fortune Academy, a private
school. The parents filed a request for a due process hearing challenging the
School’s initial IEP and seeking reimbursement for L.C.’s private school expenses at
Fortune Academy. The hearing officer, in February 2013, found in favor of L.C.
She found that the School’s proposed IEP for the 2012-13 academic year was
insufficient and she ordered the School to reimburse the parents for the 2012-13
school expenses at Fortune Academy. The hearing officer also ordered that the
School could re-evaluate L.C., which it did in June and July 2013. Neither the
parents nor the School appealed the hearing officer’s February 2013 decision.
When the parents and School met in August 2013 to devise an IEP for the
2013-14 academic year, the parents requested an independent evaluation of L.C.
The School denied that request. A second due process hearing was held regarding
the parents’ request for an independent evaluation. A hearing officer (the same one
who presided at the first hearing) found in favor of the School, determining that its
evaluation of L.C. was appropriate. Neither the parents nor the School appealed
this second decision.
In October 2013, the School finalized an IEP for L.C., which proposed placing
L.C. at Beech Grove public school. The parents disagreed with that placement

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decision and a third hearing was held before the same hearing officer. She upheld
the School’s IEP for the 2013-14 year. The appeal of that decision is the subject of
this litigation.
In early September 2014, the parties filed the administrative record from the
third due process hearing, identified as Hearing No. HR-018-2014. The plaintiffs
request leave to submit additional evidence for the court’s consideration in its
review of the administrative determination by the hearing officer. They want to
submit (a) transcripts of testimony that was heard by the hearing officer in the first
and second due process hearings, (b) documents from L.C.’s placement at Fortune
Academy, (c) L.C.’s schedule from Fortune Academy, which was an exhibit at the
third hearing but inadvertently left out of the record the parties filed in early
September, and (d) the hearing officer’s decision from the second hearing in the
summer of 2013. The School does not object to the addition of the latter two items.
It objects, however, to adding the transcripts from the first and second
administrative hearings and the Fortune Academy school records that were not put
into evidence at the third hearing. For the reasons explained below, the court
sustains the School’s objections.
Analysis
I.

Governing Principles
Though the IDEA’s judicial review provision, 20 U.S.C. § 1415(i)(2)(C), states

that a court hearing an IDEA action “shall review the records of the administrative
proceedings [and] shall hear additional evidence at the request of a party,” this

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provision does not require the district court “to allow all evidence proffered by a
plaintiff in an IDEA proceeding.” Monticello School Dist. v. George L., 102 F.3d 895,
901 (7th Cir. 1996). The Seventh Circuit, in Monticello, ruled that the receipt of
additional evidence is within the district court’s discretion, which should be
informed by its role to review the administrative hearing decision but not to conduct
a trial de novo. In that role, the court determines whether the procedures
prescribed under the IDEA were complied with and must respect the expertise of
school authorities regarding educational policy by giving “‘due weight’ to the
administrative process proceedings”:
District courts should give ‘due weight’ to the administrative process
proceedings, and ‘adequate compliance with the procedures prescribed
would in most cases assure much if not all of what Congress wished in
the way of substantive content in an IEP.’
Id. at 901 (quoting Board of Education v. Rowley, 458 U.S. 176, 206 (1982)). A
district court must be careful not to allow additional evidence when it would
“change the character of the hearing from one of review to a trial de novo.” Id. at
901.
Monticello provides no explicit additional guidance for a district court’s
acceptance of new evidence outside the administrative record (the proffered new
evidence in Monticello did not even relate to the plaintiff’s IDEA claims but to
claims under a separate federal statute), but the court cited approvingly to decisions
from the First and Ninth circuit courts of appeal that do provide concrete guidance.
The Ninth Circuit decision, in Ojai Unified School Dist. v. Jackson, 4 F.3d 1467 (9th
Cir. 1993), adopted the “well-reasoned decision” of the First Circuit in Town of
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Burlington v. Department of Education, 736 F.2d 773 (1st Cir. 1984), the same
decision hailed by the Seventh Circuit.
In Town of Burlington, the First Circuit interpreted the phrase “additional
evidence” in the statutory language of 20 U.S.C. § 1415(e)(2) [now codified at 20
U.S.C. § 1415(i)(2)] to mean supplemental evidence. In turn, “supplemental” refers
generally to evidence that was not available at the time of the administrative
hearing, or was improperly excluded from the hearing. 736 F.2d at 790. It does not
generally encompass evidence that repeats or embellishes testimony that was
admitted at the hearing, because that kind of evidence tends to change the
character of the court’s judicial role of giving “due weight” to the administrative
proceeding. Id.
In practical terms, the First Circuit explained:
The reasons for supplementation will vary; they might include gaps in
the administrative transcript owing to mechanical failure,
unavailability of a witness, an improper exclusion of evidence by the
administrative agency, and evidence concerning relevant events
occurring subsequent to the administrative hearing. The starting
point for determining what additional evidence should be received,
however, is the record of the administrative proceeding.
****
A practical approach, we believe, is that an administrative hearing
witness is rebuttably presumed to be foreclosed from testifying at trial.
. . . In ruling on motions for witnesses to testify, a court should weigh
heavily the important concerns of not allowing a party to undercut the
statutory role of administrative expertise, the unfairness involved in
one party’s reserving its best evidence for trial, the reason the witness
did not testify at the administrative hearing, and the conservation of
judicial resources.
736 F.2d at 790-91.
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Like other courts in this district, the court will let these practical principles
expressed in Burlington guide the court’s decision in this case. See Z.F. v. South
Harrison Community School Corp., 2005 WL 2373729 at *19 (S.D. Ind. Sept. 1,
2005) (Hamilton, J.); R.B. ex rel. G.B. v. Bartholomew Consol. School Corp., 2004
WL 1087367 at *1 (S.D. Ind. May 4, 2004) (Hamilton, J.)
II.

Testimony from Earlier Hearings
The court first addresses the plaintiffs’ request to supplement the record with

the following testimony from either the first or second hearing:


Transcript of the testimony of the School’s expert witness, Dr. Julie
Steck, from the second hearing that considered whether the School’s
evaluation of L.C. was adequate or should be augmented by another’s
expert’s evaluation. The testimony covers 102 pages.



Transcript of the testimony of the parents’ expert witness, Dr. Jennifer
Horn, from the first hearing that considered the School’s first IEP.
The testimony covers 73 pages.



Transcript of the mother’s testimony from the first and second
hearings. The testimony covers 264 pages.



Transcript of the testimony of the head of school of Fortune Academy,
Janet George, from the first hearing. The testimony covers 42 pages.



Transcript of the testimony of the School’s special education director,
Laura Hammack, from the first hearing. The testimony covers 283
pages.

The same person served as the hearing officer for all three administrative
hearings between the parties, and she was selected to serve for the third hearing
precisely because of efficiencies in using a person already familiar with the parties
and their history. She denied a motion by the School to recuse herself because of

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potential bias and noted that the fact that she has been exposed in the previous
hearings to information “that may have nothing to do with this case” does not
indicate bias and she was picked because having the same hearing officer “saves a
lot of time and money because the hearing officer is familiar with the parties and
with the issues and the different matters.” See Dkt. 30 at p. 4.
Because of the hearing officer’s broad familiarity with the parties and issues,
the parents contend that testimony from the first two hearings are appropriate
supplements to the record because that testimony (a) was necessarily considered by
the hearing officer for purposes of her third decision because she presided over those
two hearings and did not need repeated information for the third hearing or (b) is
necessary background for this court to understand the overall context in which
testimony was taken at the third hearing.
The court finds these arguments insufficient to justify adding 750 pages of
testimony into the record that were not specially brought to the attention of the
hearing officer with respect to the issue considered at the third hearing. The
hearing officer’s decision shows that she explicitly limited her decision to whether
the School’s 2013-14 IEP was reasonably calculated to confer an educational benefit
to L.C. She reminded the parties that issues addressed in previous hearings were
not being reconsidered and involved different questions.
The hearing officer stated that the parents’ claims that the School had not
comprehensively evaluated L.C. to be able to determine his specific educational
needs and had retaliated against L.C. because the parents had asked for an

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independent evaluation of his needs were “dismissed . . . [since] those issues had
already been addressed in a previous hearing.” (Decision at p. 3-4, Dkt. 1-2). She
noted that although the parents elicited testimony at the third hearing from an
evaluator who criticized the School’s evaluative process, that issue had been decided
by her in the second hearing based on specific evidence considered in that hearing
on that issue. Her Decision reads:
[The parents’ expert evaluator] expressed numerous criticisms of the
School’s 2013 multidisciplinary evaluation report. However, this
[hearing officer] already rendered a decision after hearing and
reviewing a full day of testimony and evidence regarding the School’s
2013 multidisciplinary evaluation in a previous Due Process Hearing. .
..
(Decision at p. 27-28).
She also remarked that the issue before her in the first hearing concerning
the appropriateness of the first IEP drafted for the 2012-13 school year and the
issue before her in the third hearing concerning the second IEP drafted a year later
were completely different. She said:
During the Due Process Hearing in the extant case, the Student made
numerous references to the Decision from [the first hearing.] The
Student seems to either misunderstand or ignore the fact that [the
first hearing] pertained to a completely different IEP drafted a full
year before the proposed IEP in the current matter. . . . Statements
this [hearing officer] made in the Decision from [the first hearing]
reflected what the School should have considered and addressed in the
August 2012 IEP based on the information they had when that IEP
was drafted. The October 2013 proposed IEP was based on a much
more thorough set of data from multiple evaluations performed since
the August 2012 IEP had been developed. The two IEPs reflect very
different sets of evaluative data and other factual information
available to the Case Conference Committee at the time the IEPs were
drafted.

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(Decision at pp. 40-41).
These comments demonstrate to the court that the hearing officer was not as
a matter of course or efficiency considering testimony or other evidence that had
been introduced many, many months before in different hearings reviewing
different issues, and that she expected the parties to place before her at the third
hearing all information they wished for her to consider in evaluating the October
2013 proposed IEP.
Four of the five witnesses from the prior hearings (all except Dr. Jennifer
Horn) testified at the third hearing. Thus, the parents had every opportunity to
elicit from these witnesses at the third hearing the information they believed
pertinent to the hearing officer’s evaluation of the October 2013 proposed IEP and
the process that produced that IEP. As to Dr. Jennifer Horn, her testimony at the
first hearing concerned the appropriateness of the School’s first IEP from August
2012, why L.C.’s needs were not met by that IEP, and why Fortune Academy was
the appropriate placement at that time. Given the subject matter of her testimony,
it is not surprising that the parents did not call her as a witness at the third
hearing. They have made no showing here why any of Dr. Horn’s testimony from
the first hearing should be added to the record on review of the October 2013 IEP.
The appropriateness of the August 2012 IEP is not an issue in this case and there is
no indication that L.C.’s needs—as evaluated for purposes of devising the October
2013 IEP that is at issue in this case—are not adequately elucidated in the current
administrative record.

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The court sees no reason to depart from the general rule that the district
court should not permit a party to augment the record on judicial review with
testimony the party had every reasonable opportunity to put before the hearing
officer for consideration. See Town of Burlington, 736 F.2d at 791 (“an
administrative hearing witness is rebuttably presumed to be foreclosed from
testifying at trial”). If L.C.’s parents had identified specific pages of testimony from
the first two hearings containing general background information they didn’t
provide at the third hearing because of their confidence the hearing officer had
sufficient recall of the testimony, the court may have permitted such a modest
supplement to the record. But to permit the parents to add 750 pages of testimony
(and no hearing officer has that kind of recall) would tend to create a de novo record
and undermine the court’s duty to give due weight to the administrative process.
III.

Additional Records from Fortune Academy
The parents also seek to supplement the record with certain records from

Fortune Academy. Their motion does not specifically describe these records, except
to say they were submitted during the first and second hearings and consist of
“hundreds of pages . . . that include[d] significant examples of L.C.’s work, his
schedule, his health records, Fortune’s evaluations, and his daily performance at
Fortune. . . .” (Dkt. 27 at p. 5). The parents state that the existence of these
documents detracts from the hearing officer’s criticism in her Decision that the
parents and Fortune Academy had provided the School meager records after July
2013 in connection with the School’s evaluative planning for L.C.’s proposed October

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2013 IEP. The parents apparently do not disagree about the hearing officer’s
description of the documents they did provide after July 2013; they suggest only
that the hearing officer’s focus on that fund of documents was unfair because of the
wealth of information the School had been provided at other times.
The School objects to this supplement because it is not clear what specific
records the parents wish to add. And, they argue, the documents necessarily relate
to the first IEP (which is not before the court) because it is undisputed that all
records that the parents provided in response to the School’s request for documents
for the second IEP are part of the administrative record. See Dkt. 29 at p. 8.
The court agrees with the School’s position for two reasons. One, the parents’
request is too general. Their decision not to describe each of the documents they
wish to add to the record does not provide the court with information necessary for
assessing their importance to evaluating the School’s 2013-14 IEP and the process
that produced that IEP. Two, the parents have not provided any reason why they
decided not to introduce these documents as evidence at the third hearing and no
reason why the court should allow them to reverse that strategy now that they seek
to reverse the hearing officer’s Decision regarding the 2013-14 IEP. Again, the
court must respect the administrative process and guard against a party’s reserving
evidence for a court when they declined to allow its evaluation in the administrative
hearing by educational experts. See Town of Burlington, 736 F.2d at 791 (“court
should weigh heavily the important concerns of not allowing a party to undercut the

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statutory role of administrative expertise [and] the unfairness involved in one
party’s reserving its best evidence for trial”).
Conclusion
The plaintiffs’ motion (Dkt. 27) to supplement the administrative record is
GRANTED IN PART AND DENIED IN PART. The Decision from the second
hearing (HR-007-2014) and the student’s schedule from Fortune Academy are added
to the record. The plaintiffs must assign appropriate Bates numbers to those
documents and file them with the court within seven days. That filing may be
under seal. The plaintiffs’ request to supplement the record with transcripts of
testimony from the first and second hearings and with Fortune Academy records
from the first and second hearings that were not admitted at the third hearing is
DENIED.
The deadline for the plaintiffs to file their Principal Brief (see Dkt. 22) is
December 18, 2014. Briefing shall otherwise proceed as described at Dkt. 22.
So ORDERED.
Dated: November 26, 2014

____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

Distribution:
All ECF-registered counsel of record by email through the court’s ECF system

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