J.D. v. Douglas County School District

          ORDER ON MOTIONS TO SUBMIT ADDITIONAL EVIDENCE

          N. Reid Neureiter United States Magistrate Judge

         1. Procedural Background

         This matter originated with a Complaint by the Appellant, J.D., for review of an administrative law judge's (“ALJ”) decision against the Appellant and in favor of the Douglas County School District (the “School District”). J.D. is a minor and a “child with disability” under the Individuals with Disabilities Education Act (“IDEA”). 20 U.S.C. § 1401(3). J.D. and his Parents seek review and reversal of certain findings and decisions found in an opinion by the ALJ dated October 1, 2018. A State Complaints Officer (“SCO”) with the Colorado Department of Education had found that the School District had violated the IDEA by preventing J.D.'s parents from meaningfully participating in the creation and administration of J.D.'s Individualized Education Program (“IEP”). But, after a due process hearing, the presiding ALJ determined that the School District had not violated the IDEA and vacated the SCO's decision. Appellants' complaint alleges that the ALJ lacked jurisdiction and standing to reverse the SCO's decision. Appellants also argue that they were denied meaningful participation in the formation of their child, J.D.'s, November 2017 IEP.

         In connection with the requested review of the ALJ's decision, both Parties have sought to supplement the administrative record with additional material. Appellants filed a Motion to Supplement Evidence (Dkt. #25) by which they sought to add two additional pieces of evidence, a May 2018 IEP and an Individual Education Evaluation (“IEE”), which was testified about but not admitted into evidence at the hearing before the ALJ.

         The School District similarly filed a Motion for Leave to Submit Additional Evidence (Dkt. #26), by which the School District sought to supplement the record with two letters (closure letters) that were composed and sent after the administrative hearing.

         On August 13, 2019, I heard argument on the two sides' respective motions. At that hearing, and for the reasons stated on the record, I granted the School District's motion (Dkt. #26) and allowed two closure letters, Dkt. #26-1 and Dkt. #26-2, as supplemental evidence. However, this admission of Dkt. #26-1 and Dkt. #26-2 was conditioned in the admission of an additional document, Dkt. #33-1, which arguably adds context and clarity to the School District's intent in sending the two closure letters.

         With respect to Appellants' Motion to Supplement (Dkt. #25), for reasons stated on the record at the August 13, 2019 hearing, I granted the motion in part by allowing the admission into evidence of the May 2018 IEP. As to the IEE, I reserved ruling and took the matter under advisement. This Order addresses supplementing the record with the IEE.

         Based on the arguments of the Parties and the written submissions and relevant authorities, I GRANT Appellants' Motion and allow the administrative record to be supplemented with the IEE.

         2. Background on the IEE and why it is not part of the Administrative Record

         The School District had paid for an IEE for J.D. conducted by Developmental Neuropsychologist Dr. Robin McEvoy. Dr. McEvoy completed and submitted the testing to all parties by September 11, 2017. Throughout the IEE, Dr. McEvoy addresses J.D.'s attention and focus issues and how those issues directly interfere with his ability to access his education. There was a November 2017 IEP meeting where the IEE was discussed.

         The IEE was part of the exhibits that the SCO considered in initially issuing a decision that the School District had violated J.D.'s parents' rights under the IDEA.

         Prior to the due process hearing before the ALJ, the parties stipulated to a series of exhibits on a Joint Exhibit List, which the parties agreed could be offered into evidence but were not stipulated as to admissibility. For whatever reason, J.D.'s counsel did not include the IEE on the list of proposed exhibits. There is no evidence or suggestion that the failure to include to the IEE on the list of proposed hearing exhibits was done intentionally or in bad faith.

         At the due process hearing before the ALJ, J.D.'s counsel, attempted more than once to introduce the IEE. The School District objected, arguing that the IEE had not properly been disclosed as a hearing exhibit. Dr. McEvoy, the IEE's author, testified about the IEE itself at the due process hearing, and was allowed to refresh her recollection about its contents by referring to the IEE, but the document itself was not admitted into evidence. The recording of the November 2017 IEP meeting where the IEE was discussed was admitted into evidence. But I have listened to the recording (provided on a CD as part of the underlying record), and it is somewhat garbled, and difficult to hear and understand because the evaluator was attending by telephone.

         3. Legal Standard for Admission of Additional Evidence beyond ...