Filing 26

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 05/13/2011. ORDERED that Plaintiffs' Motion for Leave to Proffer Additional Evidence (Docket Entry 20) is DENIED. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
B.W. by his parents WALTER S.
WEBSTER AND DANIELLE CORRIGANWEBSTER,
Plaintiffs,
v.
DURHAM PUBLIC SCHOOLS,
Defendant.

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1:09CV970

MEMORANDUM OPINION AND ORDER
This case comes before the Court on Plaintiffs’ Motion for
Leave to Proffer Additional Evidence (Docket Entry 20).

For the

reasons that follow, the Court will deny Plaintiff’s instant
Motion.
BACKGROUND
This

case

involves

claims

under

the

Individuals

with

Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq.
(See

Docket

Entry

4

at

1-3.)

The

IDEA’s

purposes

include

“ensur[ing] that all children with disabilities have available to
them a free appropriate public education [(‘FAPE’)] that emphasizes
special education and related services designed to meet their
unique needs and prepare them for further education, employment,
and independent living.” 20 U.S.C. § 1400(d)(1)(A). In connection
with

this

objective,

the

IDEA

provides

for

the

creation

of

Individualized Education Programs (“IEPs”), “written statement[s]”
that describe, among other things, “the special education and
related services and supplementary aids and services . . . to be
provided to [a disabled] child.” 20 U.S.C. § 1414(d)(1)(A)(i)(IV).

The IDEA permits any party “to present a complaint with
respect to any matter relating to . . . the provision of a [FAPE]
to [a disabled] child.” 20 U.S.C. § 1415(b)(6)(A). The party that
brings the complaint “shall have an opportunity for an impartial
due

process

educational

hearing,
agency

which

or

by

State

20

any

educational

the

determined by State law or by the State educational agency.”

agency,

local

conducted

as

educational

the

be

agency,

U.S.C. § 1415(f)(1)(A).

by

shall

If the hearing “is conducted by a local
party

aggrieved

by

the

findings

and

decision rendered in such a hearing may appeal such findings and
decision to the State educational agency.” 20 U.S.C. § 1415(g)(1).
In North Carolina, “[a]ny party may file with the Office of
Administrative Hearings a petition to request an impartial hearing
with respect to any matter relating to the . . . provision of a
[FAPE]

of

a

child.”

N.C.

Gen.

Stat.

§

115C-109.6(a).

Additionally, “[a]ny party aggrieved by the findings and decision
of a hearing officer [from the Office of Administrative Hearings]
may . . . fil[e] a written notice of appeal with the person
designated by the State Board [of Education].”
§§ 115C-109.9(a), 115C-107.2.

N.C. Gen. Stat.

The State Board of Education then

appoints a State Review Officer (“SRO”) to conduct an impartial
review of the decision.

Id.

Both state and federal law permit a

party dissatisfied with the SRO’s decision to bring a civil action
in either state or federal court.
109.9(d); 20 U.S.C. § 1415(i)(2)(A).

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See N.C. Gen. Stat. § 115CIn such a civil action, “the

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 determines is
appropriate.”

20 U.S.C. § 1415(i)(2)(C).

This case began when Plaintiffs filed a “Petition” in the
North Carolina Superior Court in Durham County challenging a
decision regarding Defendant’s proposed IEP for Plaintiff B.W.
rendered

by

an

SRO

via

North

Carolina’s

administrative process.

(Docket Entry 4 at 1.)

the case to this Court.

(Docket Entry 1.)

above-described
Defendant removed

In their Petition,

Plaintiffs complained about the SRO’s consideration of:
1) issues related to the provision of a “shadow-aide” for
Plaintiff B.W. (Docket Entry 4 at 1-2);
2) evidence of Plaintiff B.W.’s progress under a prior IEP
(id. at 2);
3) any factual or expert testimony from Lori Stuart (id.);
4) “the Least Restrictive Environment (‘LRE’) requirement in
determining the appropriateness of [Plaintiff B.W.’s] private
placement” (id.); and
5) “the ‘basic floor of opportunity’ standard” (recognized by
the United States Supreme Court in connection with the IDEA) in
assessing issues related to state-law educational standards (id.).
Based on those alleged errors by the SRO, Plaintiffs asked for
a court order declaring that:

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1) “the IEP developed in March 2008 by [Plaintiff] B.W.’s IEP
team was not designed to provide [Plaintiff] B.W. with a [FAPE]”
(id. at 3);
2) “[Defendant’s] refusal to engage in discussions at the
March 2008 IEP meeting regarding a shadow aide for [Plaintiff]
B.W.” violated the IDEA, including Plaintiff B.W.’s right to a FAPE
(id.); and
3) “the private program selected by Petitioners from February
2008 through February 2009 was appropriate under [the] IDEA” (id.).
After

Defendant

removed

the

case

and

the

Court

denied

Plaintiffs’ Motion to Remand (see Docket Entries 1, 9, 14), the
parties

submitted

acknowledged

that

a

Joint

“[t]his

Rule

26(f)

action

Report

follows

[an]

in

which

they

administrative

process . . . of which there is an administrative record” and that
“[a]ctions brought under the [IDEA] are typically decided based on
[the administrative] record . . . .”

(Docket Entry 17 at 1.)

The

Joint Report, however, noted that Plaintiff “ha[d] expressed the
intent to conduct limited discovery, specifically . . . [as to]
electronic communications between Defendant and one of its expert
witnesses, Lori Stuart.”

(Id.)

“Defendant expressly reserve[d]

the right to object to the . . . introduction of additional
evidence [beyond the administrative record].”

(Id. at 2.)

Plaintiffs thereafter filed the instant Motion for Leave to
Proffer Additional Evidence (Docket Entry 20), Defendant responded
in opposition (Docket Entry 24), and Plaintiffs filed no reply (see
Docket Entries dated Jan. 20, 2011, to the present).
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DISCUSSION
With their instant Motion, Plaintiffs seek leave to present
the following “additional evidence” beyond the administrative
record:
(a)

Email correspondence to and from Lori Stuart
produced pursuant to a subpoena served herein;

(b)

Email correspondence between [Defendant] and
[third-party] A.B. obtained [by Plaintiff William
S. Webster, who also serves as counsel for
Plaintiffs] during the course of [‘Plaintiff
William S. Webster’s] representation of [thirdparties] G.B., A.B. & E.B. in [their separate state
court litigation against Defendant]; and

(c)

The live testimony of [third-party] A.B.

(Docket Entry 20 at 3.)
Although the IDEA does provide for district courts to “hear
additional

evidence

at

the

request

of

a

party,”

20

U.S.C.

§ 1415(i)(2)(C)(ii), the United States Court of Appeals for the
Fourth Circuit has “recognized that district courts have the
discretion . . . to limit the introduction of ‘additional evidence’
under the IDEA,” Schaffer ex rel. Schaffer v. Weast, 554 F.3d 470,
476 (4th Cir. 2009).

“That authority [i]s necessary, [the Fourth

Circuit] held, to protect the role of the administrative hearing as
the primary forum in which to resolve disputes regarding IEPs – to
avoid

turning

the

administrative

hearing

into

a

‘mere

dress

rehearsal’ followed by an ‘unrestricted trial de novo’ in the
district court.”

Id. (quoting Springer v. Fairfax Cnty. Sch. Bd.,

134 F.3d 659, 667 (4th Cir. 1998)).

With that admonition in mind,

the Court will consider whether to allow supplementation of the

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administrative record in this case with the specific “additional
evidence” proffered by Plaintiffs.
E-mails between Defendant and Lori Stuart
Plaintiffs assert that, as part of the state administrative
process, they served a discovery request for “‘[a]ll correspondence
between [Defendant] and any other person relating to [Plaintiffs]
or the provision of special education or related services to
[Plaintiff] B.W. that are not subject to the attorney-client
privilege.’” (Docket Entry 20 at 1.)

According to Plaintiffs’

instant Motion, Defendant produced documents in response without
objection; however, after “the Administrative Hearing herein,
[Plaintiffs] learned [that] Lori Stuart, consultant to and expert
witness

for

[Defendant],

potentially

had

possession

of

email

correspondence that was responsive to [the above-quoted document
request]

that

[Defendant].”

had

neither

(Id. at 1-2.)

been

disclosed

nor

produced

by

Both sides agree that, during the

course of the instant federal litigation, Plaintiffs subpoenaed Ms.
Stuart (as the Joint Status Report had forecast) and that she
produced

some

e-mail

correspondence;

however,

Plaintiffs

and

Defendant apparently do not agree about whether said e-mails
represent non-privileged materials responsive to the above-quoted
document

request

proceedings.

Plaintiffs

served

during

the

administrative

(Compare id. at 2 with Docket Entry 24 at 4 & n.1.)

In their brief in support of their instant Motion, Plaintiffs
generally contend that the e-mails they obtained by subpoena from
Ms. Stuart will “aid[] in a full understanding of the facts of this
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case

that

was

impossible

to

glean

in

the

production in the administrative proceeding.”

absence

of

their

(Docket Entry 21 at

4.) Plaintiffs’ instant Motion and supporting brief, however, fail
to explain how the e-mails in question would help establish any of
the above-cited errors they have alleged as to the SRO’s decisionmaking, see supra, p. 3.

(See Docket Entries 20, 21.)

Moreover,

Plaintiffs have not provided the Court with copies of or quotations
from the e-mails at issue (see id.) and thus the Court cannot
identify any facial connection between the contents of said e-mails
and the specific challenges to the SRO’s decision Plaintiffs have
raised in this case, see supra, p. 3.

Finally, Plaintiffs have

failed to explain how they could rely on any statements by Ms.
Stuart

in

the

e-mails

in

question,

given

Plaintiffs’

stated

position that the SRO should not have considered evidence from Ms.
Stuart (see Docket Entry 4 at 2).

(See Docket Entries 20, 21.)

Under these circumstances, the Court exercises its “discretion
. . . to limit the introduction of [this proposed] ‘additional
evidence’ under the IDEA,” Schaffer, 554 F.3d at 476.1

1

Other courts have reached the same conclusion under similar
circumstances. See, e.g., A.S. v. Trumbull Bd. of Educ., 359 F. Supp. 2d 102,
104-05 (D. Conn. 2005) (“The Court finds it impossible to assess Plaintiffs’
asserted need for additional evidence because Plaintiffs have neither provided
the Court with the documents they seek to introduce nor sufficiently described
them in a way that would permit the Court to consider Plaintiffs’ motion. . . .
When it comes to informing the Court precisely what bearing these records will
have on the Court’s evaluation of the hearing officers’ decision, Plaintiffs are
equally general and conclusory . . . . The Court is then left to speculate about
how the [records] bear on the specific issues decided by the hearing officer,
since Plaintiffs offer no such explanation. . . . Plaintiffs [have] failed to
sustain their burden of demonstrating that the Court should exercise its
discretion to supplement the record.”).

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E-mails between Defendant and Third-party A.B.
and Live Testimony by Third-party A.B.
Plaintiffs also seek “to proffer the live testimony of [thirdparty]

A.B.

and

the

[Defendant’s] agents.”

email

correspondence

she

(Docket Entry 21 at 4.)

received

from

In their brief in

support of their instant Motion, Plaintiffs assert that, “[w]hen
[third-party] A.B.’s testimony and the email correspondence [thirdparty A.B. received from Defendant’s agents] are reviewed together
with the administrative record in this case, it reveals a single
story about [Defendant] promising to create a Verbal Behavior
program to satisfy the individual needs of [Plaintiff] B.W., then
promising that same program to [third-party] G.B., which program
has never become a reality.”

(Id.)

According to Plaintiffs,

“[s]uch additional evidence is relevant in that it tends to support
[their] assertion that the placement proposed by [Defendant] in
[Plaintiff] B.W.’s 14 March 2008 IEP was not a realistic placement
and was, a fortiori, an inappropriate placement under [the] IDEA.”
(Docket Entry 20 at 9.)
In its Response, Defendant observed that:
The emails [between Defendant’s agent and third-party
A.B.] relate to a student other than [Plaintiff] B.W.,
who was attending a school other than Eno Valley
Elementary School (the school at which [Defendant]
proposed placing [Plaintiff] B.W. in March 2008). The
classroom staff identified in the emails are not the same
classroom staff that would have been assigned to
[Plaintiff] B.W.’s proposed classroom, and the IEP in
dispute [as to third-parties A.B., E.B., and G.B.]
appears to have been drafted for the 2009-10 school year,

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which began approximately 18 months after [Plaintiff]
B.W. was offered a placement in March 2008.
(Docket Entry 24 at 5.)2
The Court declines to exercise its discretion to permit the
proposed “additional evidence” related to third-party A.B., see
generally Schaffer, 554 F.3d at 476, for at least two reasons.
First,

as

Defendant

points

out

(see

Docket

Entry

24

at

6),

Plaintiffs’ challenges to the SRO’s decision in this case, see
supra, p. 3, do not include any allegation that the SRO should have
concluded that Defendant lacked the capacity or the willingness to
deliver the services outlined in Defendant’s proposed IEP for
Plaintiff B.W.

As other courts have recognized, a district court

properly may preclude “additional evidence” under the IDEA if the
proposed supplemental material was not “relevant to the issue
properly before the district court.”

Miller ex rel. S.M. v. Board

of Educ. of Albuquerque Pub. Sch., 565 F.3d 1232, 1241 (10th Cir.
2009) (italics in original).

Second, the Court agrees with

Defendant that, if – in evaluating the sufficiency of Defendant’s
March 2008 proposal for Plaintiff B.W.’s IEP – the Court relied on
Plaintiffs’ proffered evidence about alleged events “at a different
school involving different teachers in a different school year,”
the Court would risk engaging in “speculati[on]” and diverting its

2

As previously noted, see supra, p. 4, Plaintiffs chose not to file a
reply and thus have not contested Defendant’s foregoing characterization of this
“additional evidence” Plaintiffs wish to present. Nor have Plaintiffs provided
the Court with copies of or quotations from the e-mails in question; similarly,
Plaintiffs have failed to set out any details about the substance of third-party
A.B.’s proposed testimony. (See Docket Entries 20, 21.)

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inquiry

from

“the

central

issue

of

the

appropriateness

of

[Plaintiff] B.W.’s program, . . . [to a] debat[e] [about] the
implementation of another child’s IEP.”

(Docket Entry 24 at 6.)

CONCLUSION
Plaintiffs have not shown how the “additional evidence” they
seek to present bears in a non-speculative way upon the specific
challenges they have raised in this case about the SRO’s decision
regarding Plaintiff B.W.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Leave to
Proffer Additional Evidence (Docket Entry 20) is DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 13, 2011

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