W.J.W. v. LOWER MERION SCHOOL DISTRICT

Filing 38

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 11/14/2011. 11/14/2011 ENTERED AND COPIES E-MAILED. (ems)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHRISTINE DUDLEY, PARENT AND
EDUCATIONAL DECISION MAKER FOR
W.J.W., et al.
v.
LOWER MERION SCHOOL
DISTRICT

:
:
:
:
:
:
:
:

CIVIL ACTION

NO. 10-2749

MEMORANDUM
Bartle, J.

November 14, 2011
Plaintiff Christine Dudley and her son W.J.W. bring

this action against the Lower Merion School District ("School
District") for violations of the Individuals with Disabilities
Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.

Before the

court is the motion of plaintiffs to supplement the
administrative record.
I.
Plaintiffs filed an administrative due process
complaint on July 1, 2009 alleging that W.J.W. was denied a free
appropriate public education ("FAPE") under the IDEA from 20072009 and that he was entitled to an independent educational
evaluation ("IEE").

Plaintiffs sought compensatory education for

W.J.W.'s lack of educational progress and adequate transition
services and a private school placement for the 2009-2010 and
2010-2011 school years.

An administrative hearing, which began on August 26,
2009, took place over ten different sessions and concluded in
January, 2010.

The hearing officer granted in part and denied in

part the relief plaintiffs sought.

Specifically, she found that

the School District provided W.J.W. with a FAPE in most respects
during the academic years 2007-2008, 2008-2009, and 2009-2010 and
that the School District was not required to pay for an IEE.
However, the hearing officer also determined that W.J.W. was
entitled to some compensatory education in the form of daily math
and reading instruction, emotional support services, and an
additional year of educational services.
On June 8, 2010, plaintiffs filed their complaint in
this court.

Plaintiffs allege that the School District has

failed to comply with aspects of the hearing officer's decision,
namely that the School District failed to provide an appropriate
educational placement for the 2010-2011 school year and that the
School District allowed W.J.W. to refuse emotional support
services.

Plaintiffs also appeal the hearing officer's finding

that W.J.W. is not entitled to an IEE and that he received a
FAPE.

Finally, plaintiffs seek reasonable attorneys' fees.
On August 1, 2011, the School District moved for

summary judgment.

Plaintiffs previously submitted the

administrative record for review.

They now seek to supplement

that record with various documents which they have attached to
their response in opposition to the motion of the School District
for summary judgment.
-2-

II.
When considering an appeal of a hearing officer's
decision under the IDEA, a district court must consider the
administrative record.

20 U.S.C. § 1415(i)(2)(C)(i).

The court,

however, "shall hear additional evidence at the request of a
party."

Id. at § 1415(i)(2)(C)(ii).

This additional evidence

includes anything that is "relevant, non-cumulative and useful in
determining whether Congress' goal [of providing disabled
children with appropriate educational opportunities] has been
reached for the child involved."

Susan N. v. Wilson Sch. Dist.,

70 F.3d 751, 760 (3d Cir. 1995).
The decision to admit additional evidence in an action
under the IDEA is a matter of the district court's
"particularized discretion."

Id. at 760.

A court may elect to

supplement the record based on a variety of circumstances,
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. at 756 (quoting Town of Burlington

v. Dep't of Educ., 736 F.2d 773, 790 (1st Cir. 1984)).

Our Court

of Appeals has cautioned that under the IDEA "after-acquired
evidence, such as information received through the experience of
an alternative placement, should be used by courts only in
assessing the reasonableness of the district's initial
decisions.... '[n]either the statute nor reason countenance
-3-

Monday Morning Quarterbacking in evaluating the appropriateness
of a child's placement.'"

Id. at 762 (quoting Fuhrmann v. E.

Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3d Cir. 1993))
(internal quotation marks omitted).
Several documents which plaintiffs seek to add to the
record relate to plaintiffs' claims for enforcement of the
hearing officer's decision and for attorneys' fees.
include:

These

(1) a declaration written by Sonja Kerr, Esquire, dated

September 19, 2011 and certain correspondence between counsel
regarding settlement negotiations; and (2) the declaration of
Rebecca Devine, an educational advocate who has worked with
W.J.W.

To the extent that these documents offer information

about events that arose subsequent to the hearing officer's
decision and relate to the issues of enforcement of that decision
and attorneys' fees, they are "relevant, non-cumulative and
useful."

See Susan N., 70 F.3d at 760.

The School District does

not object to the admission of this evidence to support the
enforcement and attorneys' fees claims.

Thus, we will grant in

this regard the motion of plaintiffs to supplement the
administrative record.
The expert report of Jerome Smith, M.Ed., Ed.S. which
plaintiffs also request to supplement the record deals with not
only enforcement of the hearing officer's decision but also
challenges the hearing officer's decision and opines on the
effect of W.J.W.'s home environment on his education.

We have

some doubts that Smith's opinions regarding the effect of
-4-

W.J.W.'s home environment on his early education and his lack of
formal education prior to kindergarten carry much weight in this
action, which deals with W.J.W.'s education from 2007 to 2010.
Nonetheless, we find that Smith's report is relevant and useful
regarding the appeal of the hearing officer's decision and the
issue of enforcement.

We will therefore grant the motion to

supplement as to Smith's report.
Plaintiffs also seek leave of court to submit an
individualized education plan ("IEP") written for W.J.W. by
Methacton School District on June 1, 2011.

W.J.W. is currently

incarcerated at a correctional facility located within that
District.

Under Pennsylvania law, Methacton School District is

responsible for W.J.W.'s education while he is incarcerated.

See

24 Pa. Cons. Stat. Ann. § 13-1306(a).
Plaintiffs maintain that this document is relevant to
show W.J.W.'s "current needs, cooperative attitude and whether or
not he appears to have an emotional disorder."

As discussed

above, Lower Merion School District did not create the Methacton
IEP and is not responsible for its contents.
Stat. Ann. § 13-1306(a).

See 24 Pa. Cons.

We find this IEP is not relevant and

useful in deciding the issues before this court.
The use of the Methacton IEP to show W.J.W.'s
"cooperative attitude" would be the epitome of "'Monday Morning
Quarterbacking'" with after-acquired evidence.
at 762 (quoting Fuhrmann, 993 F.2d at 1040).

Susan N., 70 F.3d
It is not

surprising that W.J.W. may be cooperative now while incarcerated,
-5-

but it says little if anything about his attitude previously.
The IEP has no probative value in determining W.J.W.'s attitude
in 2007-2010.

Furthermore, plaintiffs were denied leave to amend

the complaint to add a claim that W.J.W. was misidentified as
having an emotional disturbance.

The use of the IEP to show

"whether or not [W.J.W.] appears to have an emotional disorder"
is thus completely irrelevant to this action.

Accordingly, the

motion to supplement the record will be denied as to this
document.
Finally, plaintiffs further seek to add to the record:
(1) the initial evaluation report of W.J.W. from May, 1991; (2) a
letter from Lower Merion School District Superintendent Michael
Kelly to the Pennsylvania Department of Education regarding the
disproportionate representation of African American students in
special education; (3) the School District's policy regarding the
destruction of records; (4) the expert report of Tawanna J.
Jones, Ed.S. from the Blunt action; and (5) deposition testimony
of W.J.W.'s mother stating that she wished to have W.J.W. removed
from special education.
This information largely relates to plaintiffs' claim
that W.J.W. was misidentified as disabled and wrongfully placed
in special education.

Because we have denied the motion of

plaintiffs to amend the complaint to add the misidentification
claim, this information is not relevant.

To the extent that

these documents relate to W.J.W.'s other claims, they are
cumulative and not helpful to the resolution of this action.
-6-

Accordingly, the motion of plaintiffs to supplement the record
will be denied as to these documents.1

1. Plaintiffs assert that the School District has offered eleven
supplemental documents in support of its motion for summary
judgment without seeking leave of court. However, these
documents largely concern the plaintiffs' claims for enforcement
and for attorneys' fees. We will consider them for those
purposes only.
-7-