POLLACK et al v. REGIONAL SCHOOL UNIT NO 75 et al

Filing 81

ORDER SETTING FORTH PROCEDURE FOR ADJUDICATING PLAINTIFFS IDEA CLAIMS re: granting 57 MOTION TO PERMIT PRESENTATION OF ADDITIONAL EVIDENCE filed by JANE QUIRION, MATTHEW POLLACK, Set Deadlines- District must file affidavits in response to Plain tiff's affidavits by: 11/17/14; Plaintiff to file brief concerning two IDEA claims by 12/15/14; District to file responsive briefs by 1/12/15; Plaintiff to file reply briefs by 1/26/15 Telephone Conference set for 11/18/2014 01:00 PM in Judge Torresen's Chambers before JUDGE NANCY TORRESEN. By JUDGE NANCY TORRESEN. (mjlt)

Draft of Nov. 3, 2014, 10:09 a.m.
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MATTHEW POLLACK and
JANE QUIRION, individually
and as next friends of B.P.,
Plaintiff,
v.
REGIONAL SCHOOL UNIT NO. 75,
et al.

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) Docket No. 2:13-cv-00109-NT
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Defendant.
ORDER SETTING FORTH PROCEDURE FOR ADJUDICATING
PLAINTIFFS’ IDEA CLAIMS
Before the Court is the Plaintiffs’ motion to submit additional evidence (ECF
No. 57) for the Court to review in deciding Count I of their Second Amended
Complaint (ECF No. 51), in which they seek review of a December 29, 2012 decision
by a state due process hearing officer (“DPHO”) pursuant to the Individuals with
Disabilities Education Act (the “IDEA”) and the Maine Unified Special Education
Regulations (“MUSER”). The parties also await a scheduling order concerning both
the above IDEA claim and a separate IDEA claim the Plaintiffs press in Count I of
their complaint in Pollack, et al. v. Regional School Unit No. 75, et al., 2:14-cv-00215NT, which has now been consolidated with this case. Under the latter claim, the
Plaintiffs seek review of a March 28, 2014 decision by a DPHO on different issues.
For the reasons stated below, the Court GRANTS the Plaintiffs’ motion and
ORDERS the parties to adhere to the schedule outlined at the conclusion of this
order.

Plaintiff B.P. is a fourteen-year-old student who resides in Topsham, Maine
with his parents, Plaintiffs Matthew Pollack and Jane Quirion. B.P. has been
diagnosed with autism and mental retardation; he is nonverbal and suffers from
significant language, communication, social, and academic delays. Defendant
Regional School Unit No. 75 (the “District”) is the local education agency responsible
under the IDEA for providing a “free appropriate public education” (“FAPE”) to
disabled students living in Topsham.
The Plaintiffs allege that one afternoon in February of 2012, B.P. was highly
distressed after school. His parents were not able to learn what happened during the
school day to make him so upset. Following this incident, B.P.’s parents sought a
number of records from the District and requested that B.P. be allowed to wear an
audio recording device during school. The District denied the requests, and B.P.’s
parents filed a petition for a hearing on the issues with the Maine Department of
Education, pursuant to the IDEA and MUSER. After taking evidence, the DPHO
upheld the District’s denial of the requests based on a conclusion that B.P.’s parents
“had access to sufficient information to allow them to participate, in a significant and
meaningful way, . . . in the development and implementation of their son’s
educational program . . . .” Dec. 29, 2012 Due Process Hr’g Dec. 13 (ECF No. 1-1).
The Plaintiffs appealed the DPHO’s decision to this Court in March of 2013 as
part of a ten-count complaint. More than a year and a half has passed, during which
the defendant filed a motion to dismiss the other counts in the complaint, the Court
issued an order on that motion, and the parties engaged in lengthy but ultimately

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unsuccessful settlement negotiations. Briefing on the Plaintiffs’ IDEA claim has not
yet begun.
The Plaintiffs now move to introduce additional evidence for the Court to
consider in reviewing their IDEA claim that the DPHO’s December 2012 decision was
in error. They suggest that, since the DPHO reached his decision, the District and its
employees have actively sought to restrict their access to information about B.P.’s
experiences at school. The Plaintiffs argue that the District’s actions call the
reasonableness of the DPHO’s determinations into question. The Plaintiffs propose
that the Court either accept into evidence their affidavits describing these subsequent
events or allow examination and cross-examination of witnesses. The District opposes
the motion for additional evidence. During a recent conference of counsel, the District
asserted that if the Court accepts the Plaintiffs’ affidavits, the District should be
permitted to introduce its own affidavits to controvert them.
Under the IDEA, a district court hearing an appeal of a DPHO’s decision must
“receive the records of the administrative proceedings,” “hear additional evidence at
the request of a party,” and reach a decision based “on the preponderance of the
evidence.” 20 U.S.C. § 1415(i)(2)(C). The First Circuit recently described the standard
of review the IDEA prescribes in the following manner:
A district court reviews the administrative record, which may be
supplemented by additional evidence from the parties, and makes an
independent ruling based on the preponderance of the evidence.
However, that independence is tempered by the requirement that the
court give due weight to the hearing officer's findings. As a result, a
district court's review falls somewhere between the highly deferential
clear-error standard and the non-deferential de novo standard. We have

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characterized this intermediate level of review as one of involved
oversight.
Sebastian M. v. King Philip Reg’l Sch. Dist., 685 F.3d 79, 84 (1st Cir. 2012) (quoting
D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 35-36 (1st Cir. 2012)).
The “additional evidence” provision is construed narrowly. Town of Burlington
v. Dep’t of Ed. of Mass., 736 F.2d 773, 790. (1st Cir. 1984). It “does not authorize
witnesses at trial to repeat or embellish their prior administrative hearing
testimony . . . .” Id. Instead, “a party seeking to introduce additional evidence at the
district court level must provide some solid justification for doing so.” Roland M. v.
Concord Sch. Comm., 910 F.2d 983, 996 (1st Cir. 1990). A solid justification may exist
where the evidence touches on “relevant events occurring subsequent to the
administrative hearing.” Town of Burlington, 736 F.2d at 790. This District “ha[s]
erred on the side of admitting evidence reflecting a child’s post-hearing status on the
theory that the proffered information might shed light on the reasonableness (and
thus be relevant to) the earlier decision.” Mr. & Mrs. I. v. M.S.A.D. No. 55, Civ. No.
04-165-P-H, 2004 WL 2397402, at *3-4 (D. Me. Oct. 27, 2004), aff’d 490 F.3d 1 (1st
Cir. 2007) (granting parents’ request to submit “additional evidence” regarding
student’s post-hearing experiences); Doe v. Reg’l Sch. Dist. Unit No. 21, No. 2:11-cv25-DBH, 2011 WL 3611449, at *2 (D. Me. Aug. 6, 2011) (granting school district’s
request

to

submit

“additional

evidence”

regarding

student’s

post-hearing

experiences).
Here, the facts adduced in the Plaintiffs’ affidavits concern events that
occurred after evidence closed in the hearing before the DPHO, as in Mr. & Mrs I.
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and Doe. Whether they are relevant depends largely on what law the Court must
apply to the claim. If B.P.’s parents are correct that the IDEA’s procedural provisions
confer on them a freestanding substantive right to record B.P.’s school day1—a
proposition that has not yet been briefed—then the affidavits would be at least
indirectly relevant to the question of whether the deprivation of that right
“significantly impeded” the Plaintiffs’ “opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to
[their] child.” 20 U.S.C. § 1415(f)(3)(E)(ii)(II).
Where the Court, rather than a jury, will be reviewing the Plaintiffs’ IDEA
claim, the danger of unfair prejudice or confusion of the issues is low. If the affidavits
do not appear relevant once the Court is fully immersed in the facts and law of this
case, the Court can disregard them. By allowing admission of only the Plaintiffs’
affidavits and whatever responsive affidavits the District wishes to file, the Court
will not be significantly extending this litigation.

The Court’s brief review of the due process hearing record suggests that B.P.’s parents never
attempted to resolve the dispute concerning recording B.P.’s school day through the IEP process. In
fact, it appears that B.P.’s parents rejected the District’s offer to convene an IEP team meeting on the
subject. Had B.P.’s parents accepted the District’s invitation, they could have attempted to convince
their son’s IEP team to include in-school recording in B.P.’s IEP. See 20 U.S.C. § 1414(d)(1)(A)(i)(IV)
(providing that an IEP should include “a statement of the special education and related services and
supplementary aids and services . . . to be provided to the child . . . or on behalf of the child, and a
statement of program modifications . . . that will be provided for the child . . . .”). If the IEP team
refused, B.P.’s parents could have challenged the IEP as not “reasonably calculated to enable the child
to receive meaningful education benefits,” D.B., 675 F.3d at 34, the standard under which courts
generally judge substantive decisions made pursuant to the IDEA.
It is not yet clear to the Court what effect the Plaintiffs’ decision not to use the IEP process to
attempt to resolve the recording issue will have on the other claims in this case, particularly the claims
that relate to rights held by B.P., as opposed to his parents. See 20 U.S.C. § 1415(l) (IDEA’s exhaustion
clause). The Defendants did not raise this issue in their motion to dismiss but did assert failure to
exhaust administrative remedies as an affirmative defense in their answer to the Plaintiffs’ complaint.
Def. RSU 75’s Answer to Pls.’ Am. Compl. 32 (ECF No. 34). The point may be jurisdictional. 33 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 8398 (1st ed. 2014) (discussing scope
of exhaustion doctrine and exceptions to exhaustion doctrine, including futility exception).
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Based on the foregoing, the Court provisionally GRANTS the Plaintiffs’
motion to the extent they seek admission of the affidavits attached to their motion
and ORDERS the parties to adhere to the following schedule:
Monday, Nov. 17, 2014

The District must file affidavits in response to the
Plaintiffs’ affidavits. In total, the affidavits should be
no longer than twenty pages.

Monday, Dec. 15, 2014

The Plaintiffs must file briefs concerning their two
IDEA claims.

Monday, Jan. 12, 2015

The District must file its responsive briefs,

Monday, Jan. 26, 2015

The Plaintiffs must file their reply briefs.

The Court also directs the clerk to schedule a telephonic conference for 1 p.m.
on Tuesday, November 18, 2014, to discuss the form the parties’ IDEA briefing should
take.
SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 3rd day of November, 2014.

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