Summary
admitting evidence of student's progress after the challenged IEP was created
Summary of this case from Konkel v. Elmbrook School DistOpinion
NO. 1:03-CV-00939-DFH-VSS
May 4, 2004
ENTRY ON MOTION FOR LEAVE TO SUBMIT ADDITIONAL EVIDENCE
Plaintiff R.B. is a seven year old boy diagnosed with an autistic spectrum disorder. Pursuant to the Individuals with Disabilities Education Act (IDEA), R.B. and his parents seek judicial review of a decision by the Indiana Board of Special Education Appeals concerning an individual educational program for R.B. Plaintiffs have filed a motion for leave to submit "additional evidence" pursuant to 20 U.S.C. § 1415(i)(2)(B)(ii). The defendant school corporation opposes the motion. Plaintiffs propose to submit as additional evidence a September 2003 report from Dr. Carl Sundberg, Ph.D., reporting on R.B.'s progress at that time, several months after the administrative decision under review here. Plaintiffs suggest that the court accept evidence from Dr. Sundberg in the form of either live testimony before the court or a deposition transcript.
In judicial review of administrative decisions under the IDEA, Congress has instructed courts to apply a standard that is neither fish nor fowl nor good red herring. The district court does not hear the case de novo, nor does the court limit its review to review of the administrative record under a deferential "arbitrary and capricious" standard. Instead, Congress provided that a reviewing district 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." 20 U.S.C. § 1415(i)(2)(B). The Supreme Court has added the gloss that a reviewing court must give "due weight" to administrative decisions and should take care not merely to substitute its own judgment for that of state educational authorities. Board of Education v. Rowley, 458 U.S. 176, 206 (1982); accord, School Dist. of Wisconsin Dells v. Z.S., 295 F.3d 671, 674-75 (7th Cir. 2002); Monticello School Dist. No. 25 v. George L., 102 F.3d 895, 901 (7th Cir. 1996).
The statutory language applicable to plaintiffs' request is strong: the court "shall hear additional evidence at the request of a party." Nevertheless, appellate courts have construed this language to give district courts at least some discretion not to hear additional evidence at the request of a party. See Walker County School Dist. v. Bennett, 203 F.3d 1293, 1298-99 (11th Cir. 2000) (summarizing law and identifying circuit split as to standard for submitting "additional evidence"). The Seventh Circuit has held that a district court has discretion to bar "additional evidence" at least for the purpose of preventing the judicial review from being transformed into a trial de novo. Monticello School Dist. No. 25, 102 F.3d at 901, following Town of Burlington v. Department of Education, 736 F.2d 773, 791 (1st Cir. 1984), aff'd, 471 U.S. 359 (1985). Additional evidence should not be cumulative or repetitious, but such additional evidence may include, for example, evidence to fill "gaps in the administrative transcript owing to mechanical failure, unavailability of a witness, [or] an improper exclusion of evidence by the administrative agency, and evidence concerning relevant events occurring subsequent to the administrative hearing." Town of Burlington, 736 F.2d at 790. In light of this case law limiting the statutory language, plaintiffs filed their motion and outlined the proposed additional evidence. See Walker County School Dist., 203 F.3d at 1299 (commending such a procedure).
At the heart of this case, plaintiffs contend that the school district and the administrative decision fail to comply with the IDEA because the individual educational plan adopted for R.B. would "mainstream" him in kindergarten with non-disabled children when he is not ready for such a program. The proposed additional evidence is a report on R.B.'s progress after a further summer of intensive individual therapy and education. Plaintiffs contend that the evidence showing that R.B. still was not ready for a mainstream kindergarten class in September 2003 is relevant to the administrative decision from several months earlier.
The school district argues that the administrative decision must be reviewed based on what was known at the time, without the additional enlightenment that might be possible from the later developments, because such evidence would threaten to transform the proceeding to a de novo trial. See School Dist. of Wisconsin Dells v. Z.S., 184 F. Supp.2d 860, 874 (W.D. Wis. 2001) (rejecting post-hearing reports because their admission would change proceeding into a de novo trial), aff'd, 295 F.3d 671 (7th Cir. 2002).
At this point, the court could not confidently bar the evidence from Dr. Sundberg, evidence that Congress has said the court "shall hear" at the request of a party. If judicial review under the IDEA were only review of the administrative record, the court would exclude such evidence, just as a court reviewing an administrative law judge's denial of Social Security disability benefits will not issue a sentence four remand under 42 U.S.C. § 405(g) based on later evidence that was not available to the ALJ. Eads v. Secretary of Dept. of Health and Human Services, 983 F.2d 815, 817 (7th Cir. 1993) (ALJ "cannot be faulted for having failed to weigh evidence never presented to him").
The judicial review under the IDEA is not so limited. Evidence of R.B.'s progress after another summer of intensive therapy and education might shed light on the reasonableness of a decision a few months earlier. While the court must be wary of the clarity of hindsight, if R.B. was not ready for a mainstream program at the end of the summer, such evidence might call into question the reliability of a decision based on a judgment that R.B. had been ready for a mainstream program even earlier. In fact, in Town of Burlington, which was endorsed by the Seventh Circuit in Monticello School District No. 25, the First Circuit wrote that it expected exactly this type of evidence to be presented to reviewing courts, even from witnesses who had testified in the administrative hearing: "We also recognize that in many instances experts who have testified at the administrative hearing will be bringing the court up to date on the child's progress from the time of the hearing to the trial." 736 F.2d at 791 (giving district court discretion to decide limits of testimony).
In this case, the additional evidence from Dr. Sundberg will no doubt be only a part of a much larger record, which is likely to include conflicting judgments about R.B.'s progress at the time of the administrative hearing. The better approach is to hear the evidence, to allow defendants ample opportunity to rebut and challenge it, and to consider its weight in light of all the evidence in the administrative and court record.
Plaintiffs' motion for leave to submit additional evidence is hereby granted. The court will confer with counsel at the May 5, 2004 conference concerning the preferred format for presenting such evidence and possible rebuttal practice. The court will also confer with counsel on the advisability of summary judgment practice as opposed to proceeding directly to the merits.
Finally, the court notes that attorney Mayerson for plaintiff should register with the Southern District of Indiana for electronic case filing. Registration information is available on the Court's website atwww.insd.uscourts.gov.
So ordered.