K.M. v. Tehachapi Unified School District

          ORDER DENYING/GRANTING MOTION TO AUGMENT THE RECORD (DOC. 30)

          JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE

         In this action, the child seeks review of an administrative decision unfavorable to his/her position related to his Individuals with Disabilities Education Act claims. The child asserts that certain records, not part of the administrative record, should be added to the administrative record to demonstrate the error of the administrative law judge’s ruling.

         I. The Court must consider appropriate and relevant “additional evidence”

         Under the Individuals with Disabilities Education Act, any aggrieved party after the due process hearing conducted by the state education agency, may challenge the decision in court. 20 U.S.C. § 1415(i)(2). In evaluating the administrative decision, the judge must consider the administrative record and “additional evidence at the request of a party, ” and then grant the relief it determines is appropriate. 20 U.S.C. § 1415(1)(2)(C).

         In Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471-1472 (9th Cir. 1993), the Court described the process as one that does not involve a highly deferential view and, instead, the trial court merely must give “‘due weight to judgments of education policy.” Id. Nevertheless, the trial court may not substitute its judgment for that of the school authorities. Id. Rather, review involves an “unusual mixture of discretion and deference.” Id.

         The obligation to consider “additional evidence” does not include allowing witnesses to “repeat or embellish their prior administrative hearing testimony.” Ojai, 4 F.3d at 1472. Along these lines, generally, witnesses who testified at the administrative hearing may not offer additional evidence in the trial court. Id. Though “additional evidence” is left to the discretion of the court (Id.), “evidence that is non-cumulative, relevant, and otherwise admissible constitutes ‘additional evidence’ that the district court “shall” consider pursuant to 20 U.S.C. § 1415(i)(2)(C)(ii).” In E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin. Hearings, 652 F.3d 999, 1004-1005 (9th Cir. 2011). In doing so, the court “must be careful not to allow such evidence to change the character of the hearing from one of review to a trial de novo.” Ojai, at 1472. The 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, quoting Town of Burlington v. Department of Educ., 736 F.2d 773, 790-791 (1st Cir.1984).

         On the other hand, “the district court has discretion to admit additional evidence “concerning relevant events occurring subsequent to the administrative hearing.” For example, evidence related to education programs that may now be available for the child may be admitted depending upon the circumstances. Ojai, 4 F.3d at 1473.

         II. The transcripts of the IEP meetings before the administrative decision

         The child seeks to augment the record to include transcripts from two IEP meetings that occurred before the administrative decision. (Doc. 30 at 3) The child argues that these transcripts demonstrate “Plaintiff was not afforded consideration of supports and services so that she could be maintained in her home school district, and to keep her from being segregated in a Stockdale classroom over an hour from her home, in violation of the “least restrictive environment” mandate pursuant to state and federal law.” Id. The District argues that at the due process hearing, “there was extensive testimony from the participants of these meetings, including the parents.” (Doc. 32 at 5)

         Thus, the District concludes that the child wishes to use the transcripts to impeach the testimony given at the trial. Id.

         The Court has reviewed the transcripts and it appears that there was significant dispute about whether the child should be placed in a classroom in Bakersfield and away from her home school in Tehachapi. (Doc. 30-1 at 87-100) Seemingly, the dispute centered on the time for transport and the distance from home that this would place the child. Id.

         The transcripts of the meetings that occurred before the due process hearing, is not new evidence. Notably, the child’s counsel had the recordings and partial transcripts of the recordings at the time of the administrative hearing but chose not to use them. (Doc. 32 at 5-6) Apparently, counsel listed the recordings and transcripts as proposed evidence in her pre-hearing conference statement but removed these items from consideration at the hearing. (Id. at 6.)

         Notably, in the closing brief, the child argues about the evidence presented at the hearing and notes that the testimony was unanimous that there was no discussion at the IEP meetings about how the child “could be supported in her then-current TUSD classroom, no discussion about how to support [the child] in general education settings (even though data and testimony showed her behaviors were best in the general education setting [Citations], and no discussion about whether it was appropriate for [the child] to bus her to Bakersfield, given that this would eliminate her home-based ABA program. [Citations.]” (Doc. 22 at 354-355)

         At the hearing, the plaintiff’s attorney admitted there was significant testimony about this topic but the evidence was conflicting. Alternatively, the plaintiff’s attorney argued there was no evidence to support the hearing officer’s determination that the District ...