United States District Court, E.D. California
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 ...