                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA

M.K-N., et al.,
                  Plaintiffs,

        v.                                    Civil Action No. 12-cv-1123 (ABJ-AK)

DISTRICT OF COLUMBIA,
           Defendant.


                                   MEMORANDUM OPINION
       Minor student M.K-N. and her parents, Kristy Kennedy and Virginia Noce (“Parents”)
(collectively, “Plaintiffs”), appealed the Hearing Officer Determination under the Individuals
with Disabilities Education Act (IDEA). The Plaintiffs alleged that the District of Columbia
Public Schools (“DCPS”) denied M.K-N. a free and appropriate public education (“FAPE”) and
sought funding for M.K-N.’s private placement at the Lab School of Washington (“Lab
School”). The Hearing Officer found that DCPS committed a procedural violation that
constituted a denial of FAPE and awarded the Plaintiffs partial tuition reimbursement.
       The Plaintiffs filed a Complaint [1] appealing the Hearing Officer’s decision. U.S.
District Court Judge Amy Berman Jackson referred this case to the undersigned for full case
management. Referral to Magistrate Judge [3]. The Plaintiffs filed a Motion for Summary
Judgment [16] and the District of Columbia (“Defendant”) filed a Cross Motion for Summary
Judgment [18]. Plaintiffs also filed a Motion for Leave to Submit Additional Evidence (“Pls.’
Mot.”) [22]. Also pending before the undersigned is the Defendant’s Opposition to Plaintiffs’
Motion for Leave to Submit Additional Evidence (“Def.’s Opp.”) [23], and the Plaintiffs’ Reply
to Defendant’s Opposition to Plaintiffs’ Motion for Leave to Submit Additional Evidence (“Pls.’
Reply”) [24]. The Court grants the Plaintiffs’ Motion in part and denies it in part.


                                         BACKGROUND
       M.K-N. is a ten-year-old female student who is eligible for special education and related
services based on a diagnosis of attention deficit hyperactivity disorder and disabilities in math,

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written language, and reading. HOD, AR [12-1] at 6. M.K-N. resides in the District of Columbia
and her Parents brought this suit on her behalf and in their own right. Complaint [1] at ¶ 4. She
received special education services at Key Elementary School (“Key”) until she transferred to
the Lab School in early February 2012, following ongoing disagreement about her special
education services and after what Hearing Officer Melanie Byrd Chisholm referred to as a “non-
educational incident”. HOD, AR [12-1] at 8. In the Plaintiffs’ Motion, they asked the Court to
admit evidence that they allege was wrongly excluded by the Hearing Officer and also evidence
of an event that occurred subsequent to the due process hearing. Pls.’ Mot. [22] at 4, 6.
       The Plaintiffs seek to introduce Exhibits A and B regarding an incident at Key, which the
Hearing Officer referred to as a “non-educational incident.” HOD, AR [12-1] at 16. This incident
occurred on January 11, 2012, when M.K-N. arrived at Key with a black eye and a Child
Protective Services (CPS) investigation ensued. Pls.’ Mot. [22] at 4-5. The evidence of the
incident includes a letter from Kristy Kennedy to Principal David Landeryou, dated January 12,
2012, and an email from Kristy Kennedy to David Landeryou, dated January 19, 2012. Ex. A of
Pls.’ Mot. [22-1]. It also includes an email from Ms. Kennedy to the legal team, educational
advocate, and Ms. Noce, dated January 12, 2012. Ex. B of Pls.’ Mot. [22-2].
       The Plaintiffs also seek to introduce Exihibit C, consisting of notes from a May 31, 2012,
IEP Team meeting held pursuant to the HOD. Ex. C of Pls.’ Mot. [22-3]. The notes include
DCPS’ statement that they could not modify M.K-N.’s IEP because she was not enrolled in a
DCPS school. Id. at 2. The notes also state that “DCPS will convene an MDT meeting to
review/revise the IEP should [M.K-N.] be enrolled, but at this time is not able to do so.” Id.


                                      LEGAL STANDARD
       Under the IDEA, “the court … shall hear additional evidence at the request of a party” in
any action appealing the results of a due process hearing. 20 U.S.C. § 1415(i)(2)(C)(ii). A trial
court bases its decision on a preponderance of the evidence,
       but the Act contemplates that the source of the evidence generally will be the
       administrative hearing record, with some supplementation at trial. The reasons for
       supplementation … 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.



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Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 790 (1st Cir. 1984). The trial court has the
discretion to determine what constitutes “additional” evidence under the IDEA and “must be
careful not to allow such evidence to change the character of the hearing from one of review to a
trial de novo.” Id. at 791. See also Springer v. Fairfax Cnty Sch. Bd., 134 F.3d 659, 667 (4th Cir.
1998) (“A lax interpretation of ‘additional evidence’ would ‘reduce the proceedings before the
state agency to a mere dress rehearsal by allowing appellants to transform the Act's judicial
review mechanism into an unrestricted trial de novo’” (internal citation omitted). Furthermore,
additional evidence should not be introduced in the trial court “to patch up holes in [a party’s]
administrative case,” Springer, 134 F.3d at 667, since that would result in administrative
proceedings “no longer receiv[ing] the weight that they are due.” Schaffer v. Weast, 554 F.3d
470, 476 (4th Cir. 2009).


                                           DISCUSSION
        Plaintiffs seek to introduce additional evidence pursuant to the IDEA. The Court grants
the Plaintiffs’ Motion as to Exhibits A and B and denies Plaintiffs’ Motion as to Exhibit C.
   I.      Evidence Related to the Incident at Key
        Plaintiffs argued that the Hearing Officer improperly excluded evidence related to the
incident at Key in January 2012 because she relied on the incident in part when reaching her
decision. While the Hearing Officer stated that the incident was not relevant “in and of itself,”
AR [13-1] at 192, she made numerous references to the “non-educational incident” during both
the administrative hearing and her determination. See HOD, AR [12-1] at 8 (“[a] non-educational
incident caused the parents to ‘lose faith’ in [Key] and because of this incident, the parents felt
they had to remove the student from [Key]”) and at 16 (“while [the parent] was concerned about
her daughter’s progress, it was not until after a non-educational incident occurred that she
decided to remove her child from the school”); Transcript, AR [13-1] at 193-96 (establishing that
the incident was not related to the provision of special education services; acknowledging the
Plaintiffs’ interest in using evidence of the incident to describe their relationship with and loss of
faith in Key).
        The IDEA provides that a party may submit additional evidence in an action appealing
the results of a due process hearing. 20 U.S.C. § 1415(i)(2)(C)(ii). Courts have determined that
“additional” evidence must be supplementary and should not be admitted for the purpose of

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repeating or embellishing prior administrative hearing testimony. See, e.g., Burlington, 736 F.2d
at 790. Parties may supplement the record with additional evidence for various reasons, such as
when evidence has been improperly excluded by an administrative agency. See id.
          The Court finds that the evidence is non-duplicative information that is relevant to a fact
that the Hearing Officer considered when making her determination and therefore should be
admitted. The Plaintiffs should have been afforded the opportunity to present evidence relating
to an incident that the Hearing Officer considered when she made a determination. Such
evidence would have ensured that the Hearing Officer conducted a thorough analysis of the
incident to determine its impact or not prior to including it as a relevant fact in the HOD.
Furthermore, the evidence at issue was not previously admitted in the administrative hearing and
accordingly meets the IDEA criteria for introducing additional, non-duplicative evidence to the
reviewing court. Therefore, the Court grants the Plaintiffs’ Motion and will consider Exhibits A
and B as additional evidence in the HOD appeal.
    II.      Evidence related to the IEP Team meeting ordered by the Hearing Officer
          The Plaintiffs also seek to introduce evidence related to an IEP Team meeting held on
May 31, 2012, pursuant to the HOD to demonstrate that DCPS’ actions during the meeting
constitute a continued violation of the IDEA. Although the IDEA includes a provision for
introducing additional evidence concerning relevant events occurring subsequent to the
administrative hearing, the Court’s determination of which additional evidence to allow begins
with a review of the administrative record. See Burlington, 736 F.2d at 790. While “judicial
review under the IDEA does look backward to some extent” and may therefore warrant the
review of evidence arising after the administrative hearing, “[j]udicial review of IEPs under the
IDEA is largely prospective.” Schaffer, 554 F.3d at 476-78. The court should accordingly
examine the appropriateness of an IEP at the time of its creation and should consider a review of
post-hearing evidence sparingly. See id. at 476. Introduction of post-hearing evidence undercuts
the prospective nature of judicial review and “would simply not be fair to school districts, whose
decisions would be judged in hindsight” based on an assessment of a student’s needs at a later
time. Id.
          The Plaintiffs ultimately seek to address the issue of DCPS’ compliance with the
Hearing Officer’s order and the outcome of a post-HOD IEP Team meeting, which extends
beyond the scope of this Court’s review of the HOD. Furthermore, the Plaintiffs have challenged

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the aforementioned issues through the appropriate channels, having filed a due process complaint
to address DCPS’ actions. 1 At issue in this Court’s review of the HOD is whether Hearing
Officer Chisholm’s May 14, 2012, decision was appropriate. The evidence that the Plaintiffs
seek to introduce offers no supplementary information to assist with that determination.
Therefore, the Court denies the Plaintiffs’ Motion and will not consider Exhibit C as additional
evidence in the HOD appeal.


                                               CONCLUSION
        The Court grants in part the Plaintiffs’ Motion for Leave to Submit Additional Evidence
and denies in part the Plaintiffs’ Motion. Accordingly, the Court will consider Exhibit A [22-1]
and Exhibit B [22-2] of their Motion but declines to consider Exhibit C [22-3] when considering
Plaintiffs’ Motion for Summary Judgment [16] and Defendant’s Cross Motion for Summary
Judgment [18].




DATE:___7/5/2013____                                                            /s/
                                                              ALAN KAY
                                                              UNITED STATES MAGISTRATE JUDGE




1
  Plaintiffs filed a Due Process Complaint on March 5, 2013, to address the May 31, 2012, IEP meeting. See Ex. 5
to Def.’s Opp. [23-3] at 1-2. In the May 8, 2013, HOD addressing issues related to the May 31, 2012, IEP Team
meeting, Hearing Officer Peter Vaden denied the Parents’ request for relief and found that “DCPS violated the
IDEA by failing to give prior written notice, after declining to make modifications to Student’s IEP at the May 31,
2012 IEP meeting, and by failing to conduct an annual review of Student’s IEP in October 2012” and that the



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“omissions by DCPS were procedural violations of the IDEA which did not effect [sic] Student’s ability to receive a
FAPE.” See id. at 16.
