K.D. et al v. DOWNINGTOWN AREA SCHOOL DISTRICT
MEMORANDUM. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 8/29/2016. 8/29/2016 ENTERED AND COPIES E-MAILED.(ahf)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
K.D., by and through her parents,
Theresa and Jonathan Dunn,
August 29, 2016
The plaintiffs initiated this civil action against their local school district pursuant
to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq.
They are appealing the decision of a hearing officer who found that the school district did
not violate their child’s right to a free appropriate public education (“FAPE”) from
September 2011 through December 2014. The plaintiffs have filed a motion seeking to
present additional evidence which they indicate was unavailable to them prior to the
administrative hearing. The defendants strongly object to the admission of this evidence.
For the following reasons, I will deny the motion in its entirety.
The plaintiffs request to supplement the record with: (1) the defendant’s answers
to the plaintiffs’ first set of interrogatories and its responses to their request for the
production of documents; (2) the AIMSweb reports for school years 2012-2013, 20132014, and 2014-2015; and (3) the teacher’s manual for fundations used by K.D.’s teacher.
In a civil action brought in district court following a due process hearing pursuant
to the IDEA, the district court “shall hear additional evidence at the request of a party.”
20 U.S.C. § 1415(i)(2)(C)(ii); accord 34 C.F.R. § 300.516(c)(2). “Additional evidence”
does not refer to all evidence, but rather to evidence that properly supplements the
administrative record. See Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 759 (3d Cir.
1995). The Third Circuit Court of Appeals has stated that “a district court first must
evaluate a party’s proffered evidence before deciding to exclude it.” Id. While a district
court appropriately may exclude additional evidence, a court must exercise particularized
discretion in its rulings. When exercising this discretion, the court should be mindful of
the IDEA’s “general framework of deference to state decision-makers.” Antoine M. v.
Chester Upland Sch. Dist., 420 F.Supp.2d 396, 402 (E.D. Pa. 2006) (quoting Susan N.,
70 F.3d at 758). “[I]n determining whether to admit the proffered additional evidence,”
the question for a district court is “would the evidence assist the court in ascertaining
whether Congress’s goal has been and is being reached for the child involved.” Id. at
760. Automatic admission of new evidence “would vitiate congressional intent that
courts defer to the educational expertise of the agency.” Lebron v. N. Penn Sch. Dist.,
769 F.Supp.2d 788, 795 n.7 (E.D. Pa. 2011). Evidence may be excluded when it would
merely “embellish” testimony provided at the administrative hearing. Bernardsville Bd.
of Educ. v. J.H., 42 F.3d 149, 161 (3d Cir. 1994).
Before admitting additional evidence, “a court must determine whether the party
introducing the additional evidence has presented a sufficient justification for not
proffering the evidence at the administrative hearing.” Antoine M., 420 F.Supp.2d at 403
(citing Susan N., 70 F.3d at 760). Factors that a court may consider in deciding whether
to admit additional evidence include (1) whether a procedural bar prevented the
introduction of the evidence at the administrative hearing; (2) whether the party seeking
admission of the evidence deliberately withheld it at the hearing for strategic reasons; (3)
whether the introduction of the additional evidence at the district court level would be
prejudicial to the opposing party; and (4) the potential impact of the admission of the
evidence on the administration of justice, that is, whether the party seeks to introduce not
just new evidence but a new legal theory unrelated to the legal theory presented at the due
process hearing. Id.
The plaintiffs argue that there is no barrier to the admissibility of the additional
evidence they propose. They claim there is no discovery in the Pennsylvania
administrative hearing process, so the plaintiffs were limited in the records they could
obtain from the District. For example, the plaintiffs argue that they could not obtain the
data comparing K.D.’s performance to that of her peers until they filed this action. Thus,
the plaintiffs insist, the first two Antoine M. factors do not bar the evidence because the
plaintiffs did not have access to, and therefore could not present, this evidence at the
The plaintiffs further argue that admission of the evidence does not prejudice the
school district because the school district already possesses all of the proposed
supplemental evidence. Finally, the plaintiffs argue that their legal theory has remained
the same throughout the litigation: in addition to denying K.D. a free and appropriate
public education under the IDEA, the defendant violated Section 504 and the ADA by
failing to provide an education to K.D. as effective as that provided to her peers and by
failing to provide reasonable accommodations for her disability.
The defendant strongly disagrees that the Antoine M. factors support
supplementing the record. First, the defendant argues that there is no procedural bar that
prevented asking for the evidence or introducing the evidence and certainly no procedural
bar (or motion, objection, or other indicator) is evident in either the plaintiff’s motion or
the administrative record. Second, the School District does not know if the plaintiffs
deliberately chose not to previously seek the items, but it argues that the plaintiffs’
reasons for not asking for the evidence are unimportant. Not asking for certain evidence,
the defendant argues, is in the same conceptual box as not presenting certain evidence.
Thus, the defendant insists that the first two factors do not support supplementing the
Third, the defendant contends that, contrary to the plaintiffs’ assertion, “bending
the rules” to favor one party is quite prejudicial. The defendant feels that, if the motion
were granted, it would be prejudiced by not having been able to address the offered
materials at the administrative hearing. The plaintiffs’ assertion that the information was
available to the School District misses that important point. The defendant characterizes
the plaintiffs’ argument as a hollow but ironic one that acknowledges that the information
was available but for the asking.
Finally, the defendant insists that the fourth factor also does not support
supplementing the record. It contends that the plaintiffs only concentrated on their FAPE
claim at the administrative level, leaving their Section 504 and ADA claims barely
argued. Those claims did not appear in the plaintiffs’ administrative hearing opening
statement or in the hearing officer’s identification of the issues. The plaintiffs’ closing
brief “breezes over” the Section 504 and ADA claims. Thus, the defendant contends that
the plaintiffs have, in fact, changed their legal theory from disability-based discrimination
to “but for a better effort by the School District,” K.D. “would have obtained a better
outcome.” The defendant cautions that the regulations explain that the opportunities,
benefits, or services are not required to produce an identical result or level of
achievement for handicapped and non-handicapped persons, but must afford handicapped
persons equal opportunity to obtain the same result, to gain the same benefit, or to reach
the same level of achievement, in the most integrated setting appropriate to the person’s
needs. See 34 C.F.R. § 104.4(b)(2).
After careful consideration of the motion, and being mindful of the IDEA’s
general framework of deference to state decision-makers, I must agree with the defendant
that the proposed new evidence, particularly that relating to the AIMSweb1 evidence,
points toward the outcome, rather than showing whether the School District’s efforts
were sufficient for K.D. and her particular needs. It would seem to be irrelevant to
compare K.D.’s performance to any other student’s performance.
AIMSweb is defined online as the leading assessment and RTI [Response to Intervention]
solution in school today -- a complete web-based solution for universal screening, progress
monitoring, and data management for Grades K-12. See
http://www.pearsonassessments.com/learningassessments/products. At the foundation of
AIMSweb are general outcome measures, a form of curriculum-based measurement used for
universal screening and progress monitoring. Id.
Further, as the defendant points out, the evidence was available to the plaintiffs
before the administrative hearing by asking the defendant for it. By not requesting the
evidence and not submitting it at the administrative level, the defendant was deprived of
the right to address it at that level. Accordingly, I will deny the motion to supplement the
An appropriate Order follows.
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