Doe v. Richmond Consolidated School District, et al.,
Filing
35
Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER Regarding Plaintiff's 22 MOTION for Leave to Supplement the Record with Additional Testimony and Additional Documents; for the reasons stated, Plaintiff's motion to supplement is GRANTED. Plaintiff's supplementation of the record shall be completed by no later than October 9, 2015. (Calderon, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JACOB DOE,
Plaintiff,
v.
RICHMOND CONSOLIDATED
SCHOOL DISTRICT, et al.,
Defendants.
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Case No. 15-cv-30027-MGM
MEMORANDUM AND ORDER
REGARDING PLAINTIFF’S MOTION FOR LEAVE TO SUPPLEMENT THE
RECORD WITH ADDITIONAL TESTIMONY AND ADDITIONAL DOCUMENTS
(Dkt. No. 22)
September 22, 2015
ROBERTSON, U.S.M.J.
Pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400
et seq., Jacob Doe (“Jacob” or “Plaintiff”), by and through his mother and next friend, Jennifer
Y., seeks judicial review of a decision by the Massachusetts Bureau of Special Education
Appeals (“BSEA”). Jacob contests the BSEA conclusion that during the 2014-2015 school year
Richmond Consolidated School District (“RCSD”) provided Jacob with a free appropriate public
education (“FAPE”) as required by the IDEA. Jacob also seeks reimbursement of the funds
expended by his mother for Jacob’s education at Middlebridge School (“Middlebridge”), where
she unilaterally placed Jacob in July of 2014 at her own expense. Jacob has filed a motion to
supplement the administrative record pursuant to 20 U.S.C. § 1415 (i)(2)(c)(ii) (Dkt. No. 22).
Defendants BSEA and RCSC oppose the motion. For the reasons that follow, the court will
allow Plaintiff’s motion.
I.
Applicable Legal Standards
In judicial review of administrative decisions under the IDEA, Congress has provided
that a reviewing district court “(i) shall receive the records of the administrative proceedings; (ii)
shall hear additional evidence at the request of a party; and (iii) basing its decision on the
preponderance of the evidence, shall grant such relief as the court deems is appropriate.” 20
U.S.C. § 1415 (i)(2)(C). Notwithstanding the ostensibly mandatory language of the clause, the
First Circuit has held that the determination of what additional evidence may be admitted is left
to the sound discretion of the trial court. In Town of Burlington v. Dep’t of Educ., 736 F.2d 773
(1st Cir. 1984), aff’d on other grounds, Burlington Sch. Comm. v. Mass. Dep’t of Educ., 471 U.S.
359 (1985), the court held that the word “additional” should be construed “in the ordinary sense
of the word … to mean ‘supplemental.’” Id. at 790. The court reasoned that, “[t]hus construed,
this clause does not authorize witnesses at trial to repeat or embellish their prior administrative
hearing testimony; this would be entirely inconsistent with the usual meaning of the word
‘additional.’” Id. The court provided a non-exhaustive list of reasons why supplementation
might be appropriate in any given case, including “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.” Id. The court explicitly declined to adopt a per se rule disallowing
testimony from witnesses who testified at the administrative hearing, instead holding that
administrative hearing witnesses are presumed to be foreclosed from testifying at trial, but that a
party can rebut the presumption by justifying the need for the witness to testify within specified
limits. Id. at 790-91.
In Roland M. v. Concord Sch. Comm., 910 F.2d 983 (1st Cir. 1990), the court reiterated
this approach and provided additional guidance to the district courts in the exercise of this
discretion.
[A] party seeking to introduce additional evidence at the district
court level must provide some solid justification for doing so. ….
To determine whether this burden has been satisfied …. [a] district
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.”
Id. at 996 (quoting Town of Burlington, 736 F.2d at 791).
II.
Analysis
Plaintiff seeks to supplement the administrative record in this matter by introducing End
of Year Reports from Middlebridge for the 2014-2015 school year, which post-date the BSEA
hearing, concerning Jacob’s progress in his tutorial class, his social pragmatics class, and the
residential portion of his program. Plaintiff also seeks to adduce testimony from Jacob’s
stepfather and from the Middlebridge Dean of Students concerning Jacob’s progress at
Middlebridge since the time of the BSEA hearing. Plaintiff argues that the evidence, which did
not exist at the time of (and thus could not be introduced at) the hearing, is relevant to the
question of whether the Individual Education Program (“IEP”) offered by RCSC for the 20142015 school year was reasonably calculated to provide Jacob with a FAPE.
Defendants seek to exclude the additional evidence. Defendants argue that Jacob’s
stepfather and the Middlebridge Dean of Students are subject to the rebuttable presumption
disallowing their testimony at trial because they testified at the administrative hearing and that
the presumption should stand because allowing them to testify will enable them to repeat or
embellish their earlier testimony in contravention of the First Circuit’s guidance in Town of
Burlington and Roland M. Defendants further argue that the proffered evidence regarding
Jacob’s post-hearing status is not relevant to the issue of whether the IEP was reasonably
calculated to provide Jacob with a FAPE, since the adequacy or lack thereof of the IEP must be
assessed as of the time it was developed.
The court believes Plaintiff has the better of the argument and will allow the additional
evidence. Jacob’s stepfather’s and the Middlebridge Dean of Student’s proffered testimony,
limited as it will be to Jacob’s post-hearing status, is not a repeat or embellishment. Indeed,
notwithstanding its proscription against repeated or embellished testimony, the First Circuit
noted that it expected exactly this type of post-hearing evidence to be presented to reviewing
courts. Town of Burlington, 736 F.2d at 791 (recognizing as an appropriate reason to supplement
the record the admission of evidence concerning relevant events occurring subsequent to the
hearing and acknowledging that, “in many instances experts who have testified at the
administrative hearing will be bringing the court up to date on the child’s progress from the time
of the hearing to trial.”).
Nor can the court conclude that the proffered evidence lacks relevance. In order to justify
reimbursement of the expenses associated with Jacob’s attendance at Middlebridge, Plaintiff
must demonstrate that RCSC’s proposed IEP was inappropriate to meet Jacob’s educational
needs, and, if so, that the Middlebridge placement was appropriate. Burlington Sch. Comm., 471
U.S. at 370; Roland M., 910 F.2d at 1000. The proffered evidence has bearing on both inquiries.
Contrary to Defendants’ argument and as recognized by numerous courts, evidence of Jacob’s
progress at Middlebridge very well may shed light on (and thus be relevant to) the
reasonableness of the IEP at the time it was created. See C.G. v. Five Town Cmty. Sch. Dist., 436
F. Supp. 2d 181, 186 (D. Me. 2006); Konkel v. Elmbrook Sch. Dist., 348 F. Supp. 2d 1018, 1023-
1024 (E.D. Wis. 2004); Mr. I. v. Me. Sch. Admin. Dist. No. 55, No. Civ. 04-165-P-H, 2004 WL
2397402, at *2 (D. Me. Oct. 27, 2004); R.B. v. Bartholomew Consol. Sch. Corp., No. 1:03-CV0939-DFH, 2004 WL 1087367, at *2 (S.D. Ind. May 4, 2004); Mavis v. Sobol, 839 F. Supp. 968,
980 (S.D.N.Y. 1994); Norton Sch. Comm. v. Mass. Dept. of Educ., 768 F. Supp. 900, 910-911
(D. Mass. 1991). Further, should the court find the IEP inappropriate and reach the second
question, the proffered evidence bears relevance to the question of whether placement at
Middlebridge was appropriate. See C.G., 436 F. Supp. 2d at 186.
Defendant RCSD’s heavy reliance on A.S. v. Trumbull Bd. of Educ., 414 F. Supp. 2d 152
(D. Conn. 2006), for exclusion of the evidence is misplaced. The plaintiffs in Trumbull sought to
introduce records evidencing the children’s progress during the school year following the one at
issue in the appeal. Id. at 171. On that basis, the Trumbull court concluded that the evidence
was of “questionable relevance,” relating as it did to an entirely different school year than the
one under consideration. Id. The court also noted that admission of the records for the
subsequent school year would require it to conduct a full administrative hearing regarding that
year in order to determine if it had any relevance to the prior year under consideration in the
appeal. Id. at 172. This case is readily distinguishable from Trumbull, which, in any event, is
not controlling precedent. Here, Plaintiff seeks to admit evidence relating to Jacob’s progress
during the 2014-2015 school year, the same year which is at issue in this appeal.
Given the relevance of the proffered evidence and in light of the difficult educational
issues which must be resolved in a case such as this, the court concludes that Plaintiff has
rebutted the presumption against testimony from Jacob’s stepfather and the Middlebridge Dean
of Students and will exercise its discretion to admit the testimony, as well as the reports from
Middlebridge, regarding Jacob’s post-hearing status.
III.
Conclusion
For the reasons stated above, Plaintiff’s motion to supplement (Dkt. No. 22) is
GRANTED. Plaintiff’s supplementation of the record shall be completed by no later than
October 9, 2015.
It is so ordered.
/s/ Katherine A. Robertson____
KATHERINE A. ROBERTSON
United States Magistrate Judge
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