United States District Court, D. Maine
MS. M., individually and as parent and legal guardian of O.M., a minor, Plaintiff,
FALMOUTH SCHOOL DEPARTMENT, Defendant.
MEMORANDUM DECISION AND ORDER ON MOTION TO SUPPLEMENT THE RECORD
JOHN H. RICH, III, Magistrate Judge.
Ms. M., individually and as parent and legal guardian of O.M., moves to supplement the record in this case, which arises under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., with evidence bearing on O.M.'s status and condition since the conclusion of administrative due process proceedings in October 2014. See Plaintiff's Motion To Permit Presentation of Additional Evidence ("Motion") (ECF No. 11) at . She offers three affidavits - hers and those of Kathleen Coffin, who tutored O.M. privately, and Victoria Papageorge, an educational consultant. See Declaration of Victoria Papageorge ("Papageorge Decl.") (ECF No. 11-1), Declaration of Ms. M. ("Ms. M. Decl.") (ECF No. 11-2), and Declaration of Kathleen Coffin ("Coffin Decl.") (ECF No. 11-3), all attached to Motion.
Defendant Falmouth School Department ("District") objects to the proposed supplementation in its entirety. See Defendant's Objection to Plaintiff's Motion To Permit Presentation of Additional Evidence ("Objection") (ECF No. 12) at 2. In the alternative, it requests that, if the court grants the Motion as to the Coffin and/or Papageorge evidence, the court order Ms. M. to produce the Coffin and/or Papageorge evaluation reports to the District and allow the District to supplement the record with rebuttal evidence and/or provide it with an opportunity to depose those witnesses. See id . at 6 n.4, 8 n.6; see also Coffin Decl. ¶ 6 ("On April 11, 2015, I assessed O.M. to evaluate her reading progress since our instructional sessions terminated in November 2014."); Papageorge Decl. ¶ 4 ("I recently evaluated O.M. to assess her current reading skills and progress."). To the extent that the court grants the Motion, the District also generally seeks the opportunity to supplement the record with evidence of O.M.'s progress, including the "sworn deposition(s) of District staff who have been working with the student." Objection at 10.
For the reasons that follow, I grant the Motion in part, with respect to the testimony of Ms. M. and Coffin, and otherwise deny it. I also grant, without objection, the District's request to depose Coffin, see id . at 6 n.4.; Motion at -, and deem its request for her evaluation report moot in view of Ms. M.'s representation in her reply brief that Coffin has created no formal evaluation report, see Reply Memorandum in Support of Plaintiff's Motion To Permit Presentation of Additional Evidence ("Reply") (ECF No. 13) at 3 n.3. The deposition of Coffin, which shall be limited to the subject matter of her affidavit, shall be completed no later than August 28, 2015, and the transcript of that deposition shall be filed on ECF as soon as possible thereafter and shall supersede her affidavit. On the showing made, I deny the District's vague request to supplement the record with rebuttal evidence, without prejudice to its renewal in the form of a motion to be filed no later than August 28, 2015, within the parameters discussed below.
I. Applicable Legal Standards
The action is brought pursuant to 20 U.S.C. § 1415, which provides, in relevant part, that a party aggrieved by the decision of a hearing officer with respect to the free public education provided to a disabled child may bring an action in federal court in which the court "shall hear additional evidence at the request of a party[.]" 20 U.S.C. § 1415(i)(2)(C). The First Circuit has interpreted this statutory language to require a reviewing court to grant a party leave to present additional evidence only when that party presents "solid justification" for such supplementation of the record. Roland M. v. Concord Sch. Comm., 910 F.2d 983, 996 (1st Cir. 1990). It has elaborated:
As a means of assuring that the administrative process is accorded its due weight and that judicial review does not become a trial de novo, thereby rendering the administrative hearing nugatory, a party seeking to introduce additional evidence at the district court level must provide some solid justification for doing so. To determine whether this burden has been satisfied, judicial inquiry begins with the administrative record. A district 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. (citation and internal punctuation omitted).
The First Circuit has observed:
The reasons for supplementation will vary; they might include 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. The starting point for determining what additional evidence should be received, however, is the record of the administrative proceeding.
Town of Burlington v. Department of Educ., 736 F.2d 773, 790 (1st Cir. 1984), aff'd, 471 U.S. 359 (1985). Ms. M. invokes the need to submit evidence concerning relevant post-hearing events, arguing that her evidence "bears on the difficulties O.M. continues to experience as a student with Down Syndrome who is receiving inappropriate reading instruction." Motion at 1.
II. Factual Background
On June 13, 2014, Ms. M. filed a request for a due process hearing on behalf of O.M. Administrative Record ("Record"), Vol. XII at 2636. The issues presented included, in relevant part, whether the defendant had failed to provide O.M. with a free appropriate public education ("FAPE") during the 2013-14 academic year and, if so, (i) what changes, if any, were necessary to ensure that O.M. received a FAPE during the 2014-15 school year and (ii) whether Ms. M. was entitled to reimbursement of her costs associated with Lindamood Bell literacy tutorials. Id . at 2637. A due process hearing was held on September 5, 8, 9, and 12, 2014, during which seven witnesses testified, including psychological evaluator Christopher Kaufman, Ph.D., Coffin, who had been O.M.'s Lindamood Bell tutor, and Ms. M. Id . at 2635.
By decision dated October 14, 2014, the hearing officer ruled, in relevant part, that although the District had committed a procedural violation during the 2013-14 school year by failing to provide O.M. with literacy instruction through the so-called "SPIRE" program, as required by her individualized education plan ("IEP"), its implementation of the IEP, as a whole, nonetheless provided O.M. with a FAPE. Id . at 2664, 2676. He, therefore, did not reach the questions of what changes were necessary for the 2014-15 school year and whether Ms. M. was entitled to reimbursement of costs for private tutoring. Id . at 2676. He rejected Ms. M.'s argument that the defendant's offer of the SPIRE program, instead of the Lindamood Phoneme Sequencing ("LiPS") program recommended by Dr. Kaufman, deprived O.M. of a FAPE. Id . at 2669-72. He noted, inter alia, that "Dr. Kaufman testified ...