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Pollack v. Regional School Unit No. 75

United States District Court, D. Maine

November 3, 2014

MATTHEW POLLACK and JANE QUIRION, individually and as next friends of B.P., Plaintiff,
REGIONAL SCHOOL UNIT NO. 75, et al., Defendant.


NANCY TORRESEN, District Judge.

Before the Court is the Plaintiffs' motion to submit additional evidence (ECF No. 57) for the Court to review in deciding Count I of their Second Amended Complaint (ECF No. 51), in which they seek review of a December 29, 2012 decision by a state due process hearing officer ("DPHO") pursuant to the Individuals with Disabilities Education Act (the "IDEA") and the Maine Unified Special Education Regulations ("MUSER"). The parties also await a scheduling order concerning both the above IDEA claim and a separate IDEA claim the Plaintiffs press in Count I of their complaint in Pollack, et al. v. Regional School Unit No. 75, et al., 2:14-cv-00215-NT, which has now been consolidated with this case. Under the latter claim, the Plaintiffs seek review of a March 28, 2014 decision by a DPHO on different issues. For the reasons stated below, the Court GRANTS the Plaintiffs' motion and ORDERS the parties to adhere to the schedule outlined at the conclusion of this order.

Plaintiff B.P. is a fourteen-year-old student who resides in Topsham, Maine with his parents, Plaintiffs Matthew Pollack and Jane Quirion. B.P. has been diagnosed with autism and mental retardation; he is nonverbal and suffers from significant language, communication, social, and academic delays. Defendant Regional School Unit No. 75 (the "District") is the local education agency responsible under the IDEA for providing a "free appropriate public education" ("FAPE") to disabled students living in Topsham.

The Plaintiffs allege that one afternoon in February of 2012, B.P. was highly distressed after school. His parents were not able to learn what happened during the school day to make him so upset. Following this incident, B.P.'s parents sought a number of records from the District and requested that B.P. be allowed to wear an audio recording device during school. The District denied the requests, and B.P.'s parents filed a petition for a hearing on the issues with the Maine Department of Education, pursuant to the IDEA and MUSER. After taking evidence, the DPHO upheld the District's denial of the requests based on a conclusion that B.P.'s parents "had access to sufficient information to allow them to participate, in a significant and meaningful way, ... in the development and implementation of their son's educational program...." Dec. 29, 2012 Due Process Hr'g Dec. 13 (ECF No. 1-1).

The Plaintiffs appealed the DPHO's decision to this Court in March of 2013 as part of a ten-count complaint. More than a year and a half has passed, during which the defendant filed a motion to dismiss the other counts in the complaint, the Court issued an order on that motion, and the parties engaged in lengthy but ultimately unsuccessful settlement negotiations. Briefing on the Plaintiffs' IDEA claim has not yet begun.

The Plaintiffs now move to introduce additional evidence for the Court to consider in reviewing their IDEA claim that the DPHO's December 2012 decision was in error. They suggest that, since the DPHO reached his decision, the District and its employees have actively sought to restrict their access to information about B.P.'s experiences at school. The Plaintiffs argue that the District's actions call the reasonableness of the DPHO's determinations into question. The Plaintiffs propose that the Court either accept into evidence their affidavits describing these subsequent events or allow examination and cross-examination of witnesses. The District opposes the motion for additional evidence. During a recent conference of counsel, the District asserted that if the Court accepts the Plaintiffs' affidavits, the District should be permitted to introduce its own affidavits to controvert them.

Under the IDEA, a district court hearing an appeal of a DPHO's decision must "receive the records of the administrative proceedings, " "hear additional evidence at the request of a party, " and reach a decision based "on the preponderance of the evidence." 20 U.S.C. § 1415(i)(2)(C). The First Circuit recently described the standard of review the IDEA prescribes in the following manner:

A district court reviews the administrative record, which may be supplemented by additional evidence from the parties, and makes an independent ruling based on the preponderance of the evidence. However, that independence is tempered by the requirement that the court give due weight to the hearing officer's findings. As a result, a district court's review falls somewhere between the highly deferential clear-error standard and the non-deferential de novo standard. We have characterized this intermediate level of review as one of involved oversight.

Sebastian M. v. King Philip Reg'l Sch. Dist., 685 F.3d 79, 84 (1st Cir. 2012) (quoting D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 35-36 (1st Cir. 2012)).

The "additional evidence" provision is construed narrowly. Town of Burlington v. Dep't of Ed. of Mass., 736 F.2d 773, 790. (1st Cir. 1984). It "does not authorize witnesses at trial to repeat or embellish their prior administrative hearing testimony...." Id. Instead, "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). A solid justification may exist where the evidence touches on "relevant events occurring subsequent to the administrative hearing." Town of Burlington, 736 F.2d at 790. This District "ha[s] erred on the side of admitting evidence reflecting a child's post-hearing status on the theory that the proffered information might shed light on the reasonableness (and thus be relevant to) the earlier decision." Mr. & Mrs. I. v. M.S.A.D. No. 55, Civ. No. 04-165-P-H, 2004 WL 2397402, at *3-4 (D. Me. Oct. 27, 2004), aff'd 490 F.3d 1 (1st Cir. 2007) (granting parents' request to submit "additional evidence" regarding student's post-hearing experiences); Doe v. Reg'l Sch. Dist. Unit No. 21, No. 2:11-cv-25-DBH, 2011 WL 3611449, at *2 (D. Me. Aug. 6, 2011) (granting school district's request to submit "additional evidence" regarding student's post-hearing experiences).

Here, the facts adduced in the Plaintiffs' affidavits concern events that occurred after evidence closed in the hearing before the DPHO, as in Mr. & Mrs I. and Doe. Whether they are relevant depends largely on what law the Court must apply to the claim. If B.P.'s parents are correct that the IDEA's procedural provisions confer on them a freestanding substantive right to record B.P.'s school day[1]-a proposition that has not yet been briefed-then the affidavits would be at least indirectly relevant to the question of whether the deprivation of that right "significantly impeded" the Plaintiffs' "opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to [their] child." 20 U.S.C. § 1415(f)(3)(E)(ii)(II).

Where the Court, rather than a jury, will be reviewing the Plaintiffs' IDEA claim, the danger of unfair prejudice or confusion of the issues is low. If the affidavits do not appear relevant once the Court is fully immersed in the facts and law of this case, the Court can disregard them. By allowing admission of only the Plaintiffs' affidavits and whatever responsive affidavits the District wishes to file, the Court will not be significantly extending this litigation.

Based on the foregoing, the Court provisionally GRANTS the Plaintiffs' motion to the extent they seek admission of the affidavits attached to their motion and ORDERS ...

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