I.M. v. Northampton Pub. Sch., Civil Action No. 11–30214–KPN.

• Decision Date: 26 April 2012
• Docket Number: Civil Action No. 11–30214–KPN.
• Citation: 858 F.Supp.2d 132,284 Ed. Law Rep. 228
• Parties: I.M., by and through his Parents and next friends, C.C. and M.M., Plaintiffs v. NORTHAMPTON PUBLIC SCHOOLS and the Commonwealth of Massachusetts, Division of Administrative Law Appeals, Bureau of Special Education Appeals, Defendants.
• Court: U.S. District Court — District of Massachusetts

858 F.Supp.2d 132

284 Ed. Law Rep. 228

I.M., by and through his Parents and next friends, C.C. and M.M., Plaintiffs

v.NORTHAMPTON PUBLIC SCHOOLS and the Commonwealth of Massachusetts, Division of Administrative Law Appeals, Bureau of Special Education Appeals, Defendants.

Civil Action No. 11–30214–KPN.

United States District Court,

D. Massachusetts.

April 26, 2012.

Peter L. Smith, East Longmeadow, MA, for Plaintiffs.

Alisia E. St. Florian, Murphy, Hesse, Toomey & Lehane, LLP, Quincy, MA, James S. Whitcomb, Office of Attorney General, Springfield, MA, for Defendants.

MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION TO SUBMIT ADDITIONAL EVIDENCE (Document No. 14)

NEIMAN, United States Magistrate Judge.

Presently before the court is a motion—by I.M. by and through his parents, C.C. and M.M. (“Plaintiffs”)—to submit additional evidence in support of their motion for summary judgment. The Northampton Public Schools (“NPS”) and the Commonwealth of Massachusetts, Division of Administrative Law Appeals, Bureau of Special Education Appeals (“BSEA”) (collectively, “Defendants”), oppose Plaintiffs' request, arguing that the scope of the court's review should be limited to the administrative record. For the reasons that follow, the court agrees with Defendants and, accordingly, will deny Plaintiffs' motion.

I. Procedural Background

The underlying claims in this action stem from a disagreement between NPS and Plaintiffs about the sufficiency of an individualized education plan (“IEP”) developed for I.M. on November 22, 2010, pursuant to the Individuals with Disabilities Education Act (“IDEA”) 42 U.S.C. § 1440 et seq. I.M., who at the time of the administrative hearing before the BSEA was ten years old, has been diagnosed with dystonic quadriplegic cerebral palsy in the severe range, cortical visual impairment, and apraxia of speech; his disability for purposes of the IDEA is not contested.

I.M. attended Leeds Elementary School in Northampton until April of 2010, at which time his parents withdrew him and applied for his placement at the Perkins School for the Blind in Watertown, Massachusetts. After Perkins accepted I.M., NPS sent Plaintiffs a Placement Consent Form which Plaintiffs signed and, in so doing, consented to the provision of services for I.M. at Perkins. NPS and Plaintiffs also agreed that they would develop I.M.'s new IEP after he began attending Perkins. Accordingly, in November of 2010, Plaintiffs met with members of the Perkins staff to develop I.M.'s new IEP, which IEP was eventually rejected in large part by Plaintiffs in January of 2011. Shortly after learning that Plaintiffs had rejected the IEP, NPS requested a hearing with the BSEA to determine “whether the IEP proposed by the Northampton Public Schools for the time period from November 22, 2010 to November 21, 2011, was reasonably calculated to provide I.M. with a free appropriate public education in the least restrictive environment.” After taking evidence and hearing from the parties, the hearing officer issued a decision on June 3, 2011, finding that I.M.'s IEP passed muster under the IDEA. The present litigation is an appeal of that decision.

The BSEA's administrative record (“Administrative Record”) has been filed with the court for its review. Plaintiffs, however, seek to submit and have the court consider additional evidence as well. In essence, Plaintiffs wish to present evidence that they claim impugns the testimony of Robert Hair (“Hair”), Education Director of the Perkins Lower School Program, whose testimony at the administrative hearing was found to be credible and upon which the hearing officer “relied heavily.” The proffered documents include emails to Hair from Perkins staff members and “Cottage logs” from the residence where I.M. stayed during his overnights there. Plaintiffs argue that, despite Hair's testimony to the contrary during the administrative hearing, the content of the emails and logs demonstrate that Perkins was not ready for I.M.'s placement in the fall of 2010, thereby undermining both Hair's credibility and the findings of the hearing officer. Plaintiffs further posit that these emails were “not available” to them at the time of the administrative hearing.

In response, Defendants assert that the emails were not available to Plaintiffs because they failed to ask for them during the exchange of discovery and, in so doing, waived their opportunity to include them in the record. Moreover, Defendants argue quite persuasively that the evidence proffered does not substantially contradict Hair's testimony or provide much additional insight into the underlying issues before the court; that argument, however, is not one the court needs to address. In short, the court concludes, for the reasons which follow, that the proffered evidence cannot appropriately be considered at this stage of the proceedings.

II. The IDEA and Additional Evidence

The purpose of the IDEA is to “ensure that all handicapped children have available to them a free appropriate public education.” 20 U.S.C. § 1400(d)(1)(A). The IDEA envisions a collaboration between school officials and parents to develop an education plan in which a free appropriate education (“FAPE”) is provided to disabled students. See id. Also included in the IDEA are procedural safeguards available to the student and his or her parents, including a procedural due process hearing in front of an impartial hearing officer and the right to judicial review of that decision in federal court. See20 U.S.C. § 1415(f)-(g). When a school or a parent invokes the right to judicial review, the IDEA instructs that the court “shall receive the records of the administrative proceedings; shall hear additional evidence at the request of a party; and basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” Id. at (i)(2)(C).

As it turns out, the First Circuit was one of the first courts to comprehensively tackle the issue of what constitutes “additional evidence” under the IDEA. See Burlington v. Dept. of Educ. for Com. of Mass., 736 F.2d 773 (1st Cir.1984). To be sure, courts have been accused of taking “different, conflicting, and often haphazard approaches to admitting additional evidence during the IDEA judicial review.” Andriy Krahmal, et al., “Additional Evidence” Under the Individuals with Disabilities Education Act; The Need for Rigor, 9 Tex. J. on C.L. & C.R. 201, 202 (2004). In this court's opinion, however, courts in the First Circuit have, by and large, properly adhered to the principles for considering additional evidence set forth in Burlington.

In Burlington, the court explained that admitting evidence that duplicates or embellishes evidence already considered at the administrative hearing would be “entirely inconsistent with the usual meaning of ‘additional’ ” and, instead, read “additional” to mean “supplemental.” Id. at 790. Elaborating, the court offered examples of instances in which additional evidence may supplement the administrative record, such as “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. The First Circuit offered this list in light of the Supreme Court's then-recent directive in Board of Educ. of Hendrick Hudson Central School Dist., Westchester County v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), that a reviewing court must give the findings of the administrative hearing due weight, noting, in effect, that less stringent standards for admitting new evidence would run afoul of that directive. See Burlington, 736 F.2d at 790. (“We are fortified in this interpretation because it structurally assists in giving due weight to the administrative proceedings, as Rowley requires.”). This approach was reiterated several years later when the court explained that “a party seeking to introduce additional evidence at the district court level must provide some solid justification for doing so.” Roland M. v. Concord Sch. Comm., 910 F.2d 983, 996 (1st Cir.1990). “In the absence of special circumstances,” the First Circuit continued, “courts should ordinarily exercise th[e] discretion [to consider testimony on judicial review] in favor of excluding the belatedly offered evidence.” Id. at 997

Since Burlington, the lower courts have applied the First Circuit's directive in a variety of ways. See, e.g., Doe v. Regional School Unit No. 21, 2011 WL 3611449, at *2 (D.Me. Aug. 16, 2011) (allowing defendant's motion to supplement the record with evidence of student progress in a stay-put placement since time of administrative hearing); School Union No. 37 v. Ms. C., 2006 WL 522103, at *3 (D.Me. Mar. 2, 2006) (denying additional evidence where plaintiff “had ample opportunity” to present such evidence at the administrative hearing); Ms. K. ex rel. S.B. v. City of South Portland, 403 F.Supp.2d 108, 113 (D.Me.2005) (denying evidence excluded by hearing officer where admitting it would “undercut the statutory role of the hearing officer and the goal of conserving judicial resources”); Ms. M. ex rel. K.M. v. Portland Sch. Comm., 2002 WL 31757447, at *3 (D.Me. Dec. 10, 2002) (denying request for additional evidence regarding the child's asserted “illiteracy” where plaintiff failed to demonstrate “solid justification” for its introduction)...