Doe v. EAST LONGMEADOW PUBLIC SCHOOLS, et al

Filing 40

Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER Regarding Plaintiff's 26 Motion for Leave to Supplement the Record with Additional Testimony and Additional Documents; for the reasons stated, Plaintiff's Motio n is GRANTED. Plaintiff's supplementation of the record shall be completed by no later than October 9, 2015. The court will hold a Status Conference on 10/13/2015 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Katherine A. Robertson for the purpose of amending the existing scheduling order. (Calderon, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ANTHONY DOE,
Plaintiff,
v.
EAST LONGMEADOW
PUBLIC SCHOOLS, et al.,
Defendants.

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Case No. 15-cv-30029-MGM

MEMORANDUM AND ORDER
REGARDING PLAINTIFF’S MOTION FOR LEAVE TO SUPPLEMENT THE
RECORD WITH ADDITIONAL TESTIMONY AND ADDITIONAL DOCUMENTS
(Dkt. No. 26)
September 21, 2015
ROBERTSON, U.S.M.J.
Pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400
et seq., Anthony Doe (“Anthony” or “Plaintiff”), by and through his mother and next friend,
Brenda C., seeks judicial review of a decision by the Massachusetts Bureau of Special Education
Appeals (“BSEA”). Anthony contests the BSEA conclusion that during the 2014-2015 school
year East Longmeadow Public Schools (“ELPS”) provided Anthony with a free appropriate
public education (“FAPE”) as required by the IDEA. Anthony also seeks reimbursement of the
funds expended by his mother for Anthony’s education at The Speech Academy (“TSA”), where
she unilaterally placed Anthony in June 2014 at her own expense. Anthony has filed a motion to
supplement the administrative record pursuant to 20 U.S.C. § 1415 (i)(2)(c)(ii) (Dkt. No. 26).
Defendants BSEA and ELPS 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
reports from TSA that post-date the BSEA hearing and provide information about Anthony’s
progress since he started there and by adducing testimony from Anthony’s mother and the
Director of TSA concerning Anthony’s progress at TSA 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 ELPS for the 2014-2015 school year was reasonably calculated to
provide Anthony with a FAPE.
Defendants seek to exclude the additional evidence. Defendants argue that Anthony’s
mother and the Director of TSA 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 Anthony’s post-hearing status is

not relevant to the issue of whether the IEP was reasonably calculated to provide Anthony 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. Anthony’s mother’s and the Director of the TSA’s proffered testimony, limited as it
will be to Anthony’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 Anthony’s attendance at TSA, Plaintiff must
demonstrate that ELPS’s proposed IEP was inappropriate to meet Anthony’s educational needs,
and, if so, that the TSA 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 Anthony’s progress at
TSA 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-CV-0939-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 TSA was appropriate. See C.G., 436 F. Supp.
2d at 186. 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 Anthony’s mother and the Director of the TSA
and will exercise its discretion to admit the testimony, as well as the reports from TSA, regarding
Anthony’s post-hearing status.
III.

Conclusion

For the reasons stated above, Plaintiff’s motion to supplement (Dkt. No. 26) is
GRANTED. Plaintiff’s supplementation of the record shall be completed by no later than
October 9, 2015. The court will hold a status conference on October 13, 2015, at 2:00 p.m. for
the purpose of amending the existing scheduling order.
It is so ordered.
/s/ Katherine A. Robertson____
KATHERINE A. ROBERTSON
United States Magistrate Judge