Carr, Melinda et al v. Department of Public Instruction et al

Filing 58

ORDER that plaintiffs Melinda J. Carr and Alistair P. Carr's motion to supplement the administrative record (dkt. # 43 ) is GRANTED in part and DENIED. Plaintiffs' motion for extension of expert disclosure deadline (dkt. # 57 ) and motion to strike (dkt. # 48 ) are DENIED. Signed by District Judge William M. Conley on 2/9/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MELINDA J. CARR and ALISTAIR P. CARR,
Plaintiffs,
v.

ORDER

DEPARTMENT OF PUBLIC INSTRUCTION
and NEW GLARUS SCHOOL DISTRICT,

17-cv-413-wmc

Defendants.
Plaintiffs Melinda J. Carr and Alistair P. Carr are proceeding in this lawsuit under
20 U.S.C. § 1415(i)(2), which permits a party to appeal in federal court a decision issued
as part of an Individual with Disabilities Education Act (“IDEA”) due process hearing.
Here, plaintiffs are challenging on behalf of their son, “S.C.,” a April 12, 2017, decision by
Administrative Law Judge Sally Pederson that denied their request for a due process
hearing against the New Glarus School District. (See Third Am. Compl. (dkt. #22) at 12.) Specifically, plaintiffs challenge the ALJ’s conclusions that: (1) from January to May
2016, the District provided S.C. with a free, appropriate public education (“FAPE”), as
guaranteed by the IDEA, despite failing to offer a math class appropriate to meet S.C.’s
needs or paying the cost of a needs-appropriate math class at the University of WisconsinMadison; and (2) during the 2015-2016 school year, the District provided S.C. with a
FAPE despite failing to implement various provisions of his individualized education
program (“IEP”). (ALJ. Dec. (dkt. #22-1) at 2, 13-14, 16-17.) Currently pending before
the court are three motions, which this opinion resolves as follows:


plaintiffs’ motion to supplement the administrative record (dkt. #43) will be
granted in part and denied in part;



plaintiffs’ motion to strike defendant’s opposition to that motion
supplement (dkt. #48) will be denied; and



plaintiffs’ motion to extend the February 16, 2017, expert disclosure
deadline (dkt. #57) will be denied as moot.

SUMMARY OF ALJ’S FINDINGS AND CONCLUSIONS
To provide adequate context for plaintiff’s motion to supplement, the court briefly
summarizes only the relevant portions of the ALJ’s April 12, 2017, findings of fact and
conclusions of law. (Dkt. #22.)
I.

Findings of Fact
In 2012, an IEP team identified S.C. as a child with a disability resulting from a

traumatic brain injury (“TBI”), who was eligible to receive special education and related
service. Before his December 2010 TBI, S.C. had been identified as a gifted and talented
student.
S.C. began the 2015-2016 school year in the Oregon School District, and that
district developed an IEP for him. After the first week of school, however, the Carrs
requested that their son be transferred to the New Glarus School District (“District”). The
District accepted S.C., and he began attending the New Glarus High School as a junior in
September 2015. At that time, the District also accepted S.C.’s August 2015 IEP created
by the Oregon School District.
The August 2015 IEP provided that S.C. would participate full-time with nondisabled peers in regular education classes, and he would receive special education services
for 15 minutes once a week from special education staff. The special education services
were described as “academic self-management” and focused on teaching S.C. “study skills
and following up with organization and prioritization.”
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That same school year, the District joined many other school districts in the area in
adopting a new math curriculum called College Preparatory Math (“CPM”), an approach
that diverges from the tradition method focused on direct teacher instruction. Instead,
CPM requires students to use deductive and inductive reasoning to work on math problems
with their peers, and then receive feedback, assistance or redirection from the math teacher
and their peers.
In the first trimester of the 2015-2016 school year, S.C. was enrolled in a precalculus math class that used this CPM methodology. On September 23, 2015, plaintiff
Melinda Carr emailed S.C.’s math teacher about CPM, specifically expressing concern that
due to S.C.’s TBI, he has problems with organization and deductive reasoning, but
responds well to information told directly to him. During an October 2015 parent-teacher
conference, the Carrs learned that S.C.’s pre-calculus grade at that point was a “D.” After
that conference, S.C.’s math teacher began meeting with S.C. directly to assist him with
homework and provide instruction as needed. That teacher also began serving as S.C.’s
coach for a free, on-line program that provides direct math instruction. S.C. ended the first
trimester with a C+ grade.
Due to the Carrs’ concern that S.C. might not be eligible for calculus for his senior
year, the District convened an IEP team meeting on December 2, 2015, to discuss S.C.’s
math instruction. At that meeting, the team discussed changes to the IEP goals to provide
S.C. more services for study skills and organization, as well as including math instruction
services. However, Melinda Carr did not agree to any of the proposed changes, and
afterward, she requested another IEP team meeting, which was scheduled for January.

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Beforehand, on December 18, 2015, Melinda met with the New Glarus High School
principal and its special education director to discuss a distance-learning math class.
Although not a formal IEP team meeting, the principal and special education director told
Melinda that because the high school had a pre-calculus teacher who could meet S.C.’s
math needs, there was no need to set up a distance-learning math program. From then
until January 2016, the math teacher continued to provide S.C. additional support services
and accommodations.
On January 7, 2016, the rescheduled IEP team meeting was held. In attendance
was Melinda, S.C.’s parent advocate, the high school principal, the special education
director, the special education teacher/case manager, the math teacher, school psychologist
(Jane O’Brien) and the special education director from the Belleville School District (where
S.C. had previously gone to school). The focus of the meeting was S.C.’s math instruction,
and Melinda requested a new math goal be added to the IEP. Melinda also requested that
the IEP be changed to a “consultation,” so that the only special education services would
be a meeting with a special education teacher once per trimester. The team also discussed
S.C.’s goals related to study skills, executive functioning and scores on his special education
evaluation. Unlike plaintiffs, the District proposed increasing S.C.’s special education
services to 60 minutes per week.
The IEP team again failed TO reach a consensus. While Melinda stated that she
wanted to end the meeting and requested a facilitated meeting, the special education
director informed plaintiffs that in 15 days the District would be implementing a revised
IEP that increased S.C.’s special education services.

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Six days later, on January 13, Melinda met with the New Glarus high school
principal and told him that plaintiffs wanted to enroll S.C. in a UW-Madison math class
for the spring semester 2016 instead of sending him to pre-calculus in the District.
Although the principal did not believe that S.C. had exhausted all available high school
courses in the subject area first, he signed the form to permit S.C. to enroll. Melinda did
not ask that the District pay for the cost of that class, and indicated that plaintiffs would
pay for it. The ALJ found that the Carrs did not provide the District with prior written
notice that they were enrolling S.C. at UW-Madison.
On January 15, 2016, the special education director provided the Carrs with the
revised IEP discussed at the January 7 IEP meeting. On January 22, the District’s special
education director learned that plaintiffs filed a request for a facilitated IEP with the
Wisconsin Special Education Mediation System. As a result, the District agreed to a
facilitated IEP and the special education director informed the Carrs that the District
would wait to implement the revised IEP and continue implementing the September 2015
IEP.
Later, when the first facilitator withdrew, plaintiffs cancelled the rescheduled
meeting altogether and requested a mediation instead. The District refused, and at some
point in March 2016, it implemented the revised IEP for approximately one week. Once
plaintiffs filed a request for a due process hearing and IDEA complaint with the
Department of Public Instruction (“DPI”), however, the District stopped and reverted back
to the September 2015 IEP. S.C. ultimately received a grade of B- in his traditionallytaught math class at UW-Madison.

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By the time of the due process hearing, S.C. had gone back to the Belleville School
District. As a result, the Carrs were seeking an order requiring the District to pay: (1)
$5,537 to cover the cost of the UW-Madison math class; and (2) $20,250 to cover the cost
of 14 months of executive functioning coaching for S.C. to compensate for the District’s
alleged failure to provide executive functioning coaching to S.C. during the 2015-2016
school year as called for in the September 2015 IEP.

II.

Conclusions
A.

Reimbursement for UW-Madison Math Course

The ALJ determined that the District did not need to reimburse plaintiffs the cost
of the UW-Madison math class on two grounds. First, the ALJ began with the threshold
inquiry in a reimbursement dispute: whether the District offered S.C. a free, appropriate
public education or FAPE that met his individual needs, as required by the IDEA. Plaintiffs
argued that the District denied a FAPE to S.C. by refusing to revise his IEP in January
2016 to include a pre-calculus course taught using a traditional methodology through
verbal presentation of the material. The ALJ rejected that argument, however, concluding
that S.C. was offered FAPE because: (1) the only approved September IEP did not include
math special education services; (2) his math teacher started working with him in October,
and S.C. ended up with an improved grade by the end of the trimester; (3) S.C.’s parents
refused to add a math goal during the January 2016 IEP meeting, instead preferring that
S.C. be taught math using a traditional methodology; (4) the District had discretion to
determine whether to use the CPM or traditional methodology to teaching math; and (5)

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pre-calculus was challenging for S.C., just as it was for most regular education students in
that advanced class.
With respect to the Carrs’ January 2016 request, the ALJ found that: (1) the Carrs
rejected the District’s proposal to provide S.C. additional special education services; (2)
the District had discretion to determine what instructional methodology it would use; and
(3) the college preparatory math course or CPM was not inappropriate for S.C. In reaching
this conclusion, the ALJ noted specifically that S.C.’s performance in math improved in
October of 2015 when his math teacher started working with him more closely. The ALJ
nevertheless acknowledged in a footnote that the Carrs’ post-hearing briefing raised an
argument that the District violated the IDEA by not including an individual on S.C.’s IEP
team who could interpret the instructional implications of evaluation results. In the Carrs’
view, the school psychologist, Jane O’Brien, was not qualified to do so. The ALJ was not
persuaded by this argument. Regardless, the ALJ pointed out that the Carrs had not raised
this issue in their due process hearing request as required by Wis. Stat. § 115.80(4), which
provides that “the party requesting the hearing may not raise issues at the hearing that
were not raised in the notice … unless the other party agrees.”
Second, the ALJ pointed out that reimbursement may also be denied if the parents
did not inform the IEP team that they were rejecting the school district’s proposed
placement and stated their intent to enroll their child in private school at the most recent
IEP meeting before removal, or ten days before removal. The ALJ then concluded that the
Carrs failed to inform the District that they were considering enrolling S.C. in UWMadison, as required by Wis. Stat. § 115.791.

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B.

Implementation of IEP Provisions

Next, the ALJ concluded, the Carrs failed to prove that the District had not
implemented several provisions of the IEP. (Dkt. #22-1, at 14-17.)

OPINION
I.

Motion to strike (dkt. #48)
The court will deny plaintiffs’ motion to strike defendant’s opposition to their

motion to supplement the record. The preliminary pretrial conference order set November
9, 2017, as the deadline for plaintiffs to file a motion to supplement, with any response
due seven calendar days “after the request is filed and served.” (Dkt. #42, at 3.) While
plaintiffs filed their motion to supplement the record on November 9, 2017, it did not
serve the motion on defendant New Glarus School District until November 13, 2017. As
such, the District had seven days – until November 20, 2017 – to submit its opposition
brief. Given that the District’s response was filed on November 20, 2017, it will not be
stricken as untimely.

II.

Motion to supplement (dkt. #43) and to stay expert deadlines (dkt. #57)
Plaintiffs seek to supplement the administrative record with the following three

pieces of evidence:
(1) an expert report from a Speech and Language Therapist (“SLT”), who can
explain the implications of the evaluations in S.C.’s report with respect to his
ability to benefit from the CPM approach to teaching pre-calculus;
(2) an expert report from a current or former member of the UW-Madison math
department, who can clarify how S.C. enrolled in a UW-Madison math course;
and
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(3) a complete copy of Exhibit 48 from the due process hearing.

Under 20 U.S.C. § 1415(i)(2), a party aggrieved by findings and a decision made
pursuant to an IDEA due process hearing may file a federal action challenging the decision.
In reviewing that decision, this 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.” § 1415(i)(2)(C). “Once the record is complete, the court is to
base its decision on ‘the preponderance of the evidence’ and to grant ‘such relief as [it]
determines is appropriate.’” Board of Educ. of Tp. High Sch. Dist. No. 211 v. Ross, 486 F.3d
267, 270 (7th Cir. 2007). This court’s obligation is to “make an independent decision
based on the preponderance of the evidence,” while giving “due weight to the
determinations made during the state administrative process.” Id. (citing Board of Educ. of
the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982)); see also Patricia
P. v. Board of Educ. of Oak Park, 203 F.3d 462, 466 (7th Cir. 2000) (“courts do not have
special expertise in the area of educational policy, they must give ‘due weight’ to the results
of the administrative decisions”).
As a function of this review, this court must consider the administrative record, and
notwithstanding the apparent mandatory language in § 1415(i)(2)(C)(ii), the court has
“discretion to admit additional evidence to supplement the record.” Ross, 486 F.3d at 270.
Even so, district courts have been cautioned against supplementing the administrative
record absent a strong justification to avoid changing the district court’s review “from one
of review to a trial de novo.” Patricia P., 203 F.3d at 470. In Town of Burlington v.
Department of Educ., 736 F.2d 773, 791 (1st Cir. 1984), the First Circuit interpreted
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“additional evidence” to mean evidence that was not available at the time of the
administrative hearing. Id. at 790. Specifically, the court stated that supplementation may
be necessary to address:
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. The starting point for determining
what additional evidence should be received, however, is the record of the
administrative proceeding.
Id. at 790-91. In Monticello Sch. Dist. No. 25 v. George L., 102 F.3d 895, 901 (7th Cir.
1996), the Seventh Circuit provided less explicit guidance for district courts to follow in
evaluating requests to supplement the record, but its own cautionary language in Ross above
and general approval of the approach described by the First Circuit in Town of Burlington
suggests that this court should at least be wary of evidence that could and should have
been put before the ALJ in the first instance. Monticello, 102 F.3d at 901. Applying this
general approach, the court will deny plaintiffs’ request as to the two expert reports, but
will grant their request as to the exhibit.
A.

SLT Expert

In plaintiff’s view, an expert in Speech and Language Therapy (“SLT”) is necessary
for this court to assess the appropriateness of the CPM methodology used in S.C.’s precalculus class.

Specifically, plaintiffs claim that the January 2016 IEP team meeting

required an SLT to interpret S.C.’s special needs evaluation and access S.C.’s mathematical
instructional needs. The request to supplement the record with an expert report by a SLT
will be denied for at least two reasons. First, plaintiffs neither propose a specific SLT expert,
much less provide any explanation as to what special information or unique insight that
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such an expert might provide. Altering the administrative record to permit plaintiffs to
admit expert evidence they chose not retain in time for the hearing, much less to permit
plaintiffs to only now seek out and gather evidence they do not currently have, does not fill
in a gap in the administrative record. Indeed, the ALJ did not exclude any evidence that
plaintiffs attempted to introduce that related to an SLT or the absence of an SLT at the
IEP team meetings. Rather, plaintiffs are now attempting, in essence, to reboot their past
presentation to challenge the ALJ’s conclusion that the District was providing S.C. FAPE
during the 2015-2016 school year. As a result, the absence of an SLT expert was far from
an error, clerical or substantive, and opening the door now to the type of information that
plaintiffs would like to introduce at this point would completely change the landscape of
this court’s review from a deferential evaluation of the ALJ’s findings and conclusions to a
de novo trial.
Second, plaintiffs fails to explain their own failure to challenge the absence of an SLT
expert on his IEP team during the due process hearing request itself, as required by Wis.
Stat. § 115.80(4). While plaintiffs claim the District “withheld” the fact that no one at
the January IEP team meeting could interpret S.C.’s evaluation, it is undisputed that the
school psychologist, Jane O’Brien, was present at the January 2016 IEP team meeting and
provided an interpretation of S.C.’s evaluation. While O’Brien did not testify with respect
to S.C.’s speech and language needs, because she is not an SLT, the ALJ’s conclusions made
it apparent that she relied on S.C.’s actual performance in his math classes to determine
whether he was receiving FAPE during the relevant time period. As such, even assuming
an SLT’s testimony would have been helpful during the due process hearing, consideration
of this issue (either by the ALJ or by this court) would appear to violate Wis. Stat.
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§ 115.80(4). Accordingly, the court will not exercise its authority to supplement the record
with an SLT expert report.
B.

UW-Madison Expert

For much the same reasons, the court will also reject plaintiff’s request to
supplement the record with an expert report from an unnamed member of UW-Madison’s
math department. Plaintiffs want to include such an expert to provide information about
how S.C. was approved for enrollment in a math class despite not having completed
prerequisite courses. Again, plaintiffs do not identify who this expert might be, and it
appears that this individual would merely provide additional facts related to how S.C. was
enrolled in a math class at UW-Madison. The fact that this evidence does not yet exist,
and it is overly vague, are reason alone to deny this request.
Furthermore, plaintiffs have identified no gap that his information would fill. Still,
plaintiffs’ claim that information about UW-Madison’s enrollment procedure is necessary
because the ALJ allegedly discounted Melinda’s testimony about their inability to comply
with the ten-day notice requirement. However, this information does not fill a necessary
gap because the relevant inquiry for purposes of evaluating the ALJ’s decision about
plaintiffs’ compliance with the notice requirement is the steps plaintiffs took in informing
the District of their plans, not the actual enrollment process at UW-Madison. As such,
the court sees no gap in the administrative record that plaintiffs’ proposed expert from
UW-Madison would fill.

C.

Complete Copy of Exhibit 48 from Hearing

Finally, plaintiffs seek to add to the record a “complete” version of Exhibit 48, which
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is an internet printout of the description of TOPS2, an evaluation that S.C. underwent.
Plaintiffs explain that they meant to include the entirety of that printout, and indeed
thought they had. Unlike the expert reports, this document appears to be the type of
information appropriate for supplementation because it would fill in a gap created by a
clerical error. As such, the court will grant plaintiffs’ request to include this material in the
record for purposes of evaluating the ALJ’s decision.

III.

Motion to Extend Expert Deadlines (dkt. #57)
Finally, as the court has denied plaintiffs’ request to supplement the record with

multiple experts, there is no need to extend the expert disclosure deadline. Accordingly,
that motion will be denied as moot.
ORDER
IT IS ORDERED that:
(1) Plaintiffs Melinda J. Carr and Alistair P. Carr’s motion to supplement the
administrative record (dkt. #43) is GRANTED in part and DENIED in part as
set forth above.
(2) Plaintiffs’ motion for extension of expert disclosure deadline (dkt. #57) and
motion to strike (dkt. #48) are DENIED.

Entered this 9th day of February, 2018.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge

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