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M.C. v. The School District of Philadelphia

United States District Court, E.D. Pennsylvania

July 31, 2019

M.C., by and through his Parent, MARIE CONYERS, Plaintiffs


          Gerald Austin McHugh, United States District Judge.

         This is an appeal from the due process decision of a hearing officer under The Individuals with Disabilities Education Act (IDEA). The immediate issue before me is whether Plaintiff can supplement the record in support of her appeal. The Defendant school district argues that Plaintiff has a threshold burden of establishing sufficient cause for having failed to introduce the evidence in question at the due process hearing. The statute itself does not establish such a requirement, and although some district courts have required such a showing to be made, the Third Circuit Court of Appeals has not adopted such a standard. In fact, a close reading of its decisions reveals that it has declined to do so even when the issue was squarely before it. The governing precedent from the Third Circuit directs a district court to focus on whether the testimony is relevant and non-cumulative. Applying that test here, Plaintiff Marie Conyers will be permitted to supplement the record with her testimony. I will also independently evaluate the qualifications of the expert excluded by the hearing officer, and if she is qualified, consider the relevance of the proffered testimony.

         I. Factual and Procedural Background

         This case presents with a somewhat peculiar procedural history. On August 30, 2017, Ms. Conyers filed a due process hearing complaint on behalf of her son claiming that the District had failed to timely convene an Individualized Education Program (IEP) meeting or offer an IEP for M.C. prior to the school year. The matter proceeded to a due process hearing held before Independent Hearing Officer (IHO) Linda Valentini, which began on December 20, 2017. On the initial day of the hearing, Ms. Conyers's counsel led her through a direct-examination. Ms. Conyers was then subject to cross-examination and a redirect-examination, which concluded her testimony. Prior to the second scheduled day of the hearing, however, Plaintiff's counsel either withdrew or was discharged from the case and the hearing was continued as she sought replacement counsel.

         Soon thereafter, Ms. Conyers found replacement counsel, who then withdrew the first due process complaint on February 25, 2018. 2d Hr'g Tr., Ex. 8, Page 48:17-23. Neither the IDEA nor any state statute addresses the withdrawal of a due process complaint, but section 407 of the Pennsylvania Department of Education's Dispute Resolution Manual provides that only the party who filed the complaint may seek withdrawal, and that once a case has been assigned to an IHO, an officer must rule on the request. Pa. Dept. Of Education, Office For Dispute Resolution, Pennsylvania Special Education Dispute Resolution Manual, 13 (2017), Although the record here is silent, I will presume that the first hearing officer complied with the requirements of the Manual.

         Plaintiff's counsel filed a new due process complaint in early May 2018. The District filed its answer to the new complaint on May 18, 2018, which acknowledged the previous hearing but did not raise any defenses of claim or issue preclusion. A second hearing, held before IHO Jake McElligot, began on June 22, 2018. As Plaintiff's counsel began her direct examination of Ms. Conyers, the IHO realized, for the first time, that Ms. Conyers had testified in the previous due process hearing in December 2017. He then immediately, sua sponte, ordered Ms. Conyers to limit her testimony to events that occurred after January 1, 2018 because he believed that “as of December, that record had been created, ” though he agreed to revisit the issue once he had a chance to review the transcript from the prior hearing. 2d Hr'g Tr. 54:20-21. After reviewing the transcript, the IHO maintained his ruling and admitted the notes of testimony and exhibits from the December 20, 2017 hearing into evidence.

         On the second day of the hearing, Plaintiff's counsel requested the IHO to reconsider the limitation, but he declined to do so, explaining that, although the questioning by her prior attorney during the first hearing was admittedly “minimal as to that time period and as to those documents, ” Ms. Conyers nonetheless had the opportunity to be examined about those events by counsel in an adversarial proceeding. 2d Hr'g Tr. 233:21-22. The IHO determined it would be “untenable” to afford her another opportunity to testify: “to hold otherwise would allow someone to engage in a hearing process, withdraw a complaint, . . . and then, to use the common playground parlance, get a do-over.” 2d Hr'g Tr. 236:15-22. As a result, Plaintiff's direct examination consisted of four questions in total. The IHO maintained this limiting instruction for any rebuttal testimony as well, even though District witnesses, who were not called during the first hearing, testified about Plaintiff's and the District's personnel's actions prior to January 2018.

         Plaintiff also presented testimony from an expert witness, Dr. Felicia Hurewitz, at the second hearing. Although she was able to testify to M.C.'s needs as a child with autism and in transitioning to a secondary setting, the IHO found Dr. Hurewitz's expertise otherwise limited and prohibited her from testifying about M.C.'s speech and language needs and from giving her opinion as to whether the District's proffered Individualized Education Program (IEP) addressed his needs.

         After the second hearing was completed, the IHO issued a Final Decision and Order finding that the District's programming offered for the 2017-2018 and 2018-2019 school years was appropriate under the IDEA. In justifying his refusal to allow broader testimony from Plaintiff, the IHO stated that Ms. Conyers had “testified to events between the parties generally from the fall of 2017, specifically including educational programming/documentation, communications, and interactions related to 10/2017 IEP, 11/2017 Re-evaluation process, ” and that “parent had been given an opportunity to develop an evidentiary record, as of 12/20, 2017, related to the alleged inappropriateness of the 10/2017 IEP and 11/2017.” ODR Decision, Ex. 2, 4. Plaintiff then filed for judicial review and brought the present motion to supplement the administrative record with additional testimony from Plaintiff and her expert, Dr. Hurewitz.

         II. The Standard For Supplementing The Record In The Third Circuit

         When a party brings an action for judicial review of an IDEA administrative decision, 20 U.S.C. § 1415(i)(2)(C)(ii) provides that the “court shall hear additional evidence at the request of a party.” The Third Circuit first considered the application of this provision in Susan N. v. Wilson Sch. Dist., 70 F.3d 751 (3d Cir. 1995). In crafting the standard a district court should employ when considering whether to admit additional evidence, Susan N. engaged in a thorough discussion of the First Circuit's decision in Town of Burlington v. Dept. of Educ., 736 F.2d 773 (1st Cir. 1984), aff'd on other grounds, 471 U.S. 359 (1985). Although it discussed Burlington at length, Susan N. did not adopt the many limitations on supplemental evidence embraced by the First Circuit. Instead, it held that the district court must evaluate a party's proffered evidence and exercise “particularized discretion in its rulings so that it will consider evidence relevant, non-cumulative and useful” in determining whether a child's program is in compliance with the IDEA. Susan N., 70 F.3d at 760. The Third Circuit later amplified this standard in D.K. v. Abington Sch. District, and specifically addressed witnesses available at the due process hearing:

The district court should not automatically “disallow testimony from all who did, or could have, testified before the administrative hearing, ” Susan N., 70 F.3d at 759-60 (quoting Burlington v. Dep't of Educ. for Mass., 736 F.2d 773, 790-91 (1st Cir.1984)), but the court need not consider evidence that is irrelevant or cumulative, see id. at 760.

696 F.3d 233, 253 (3d Cir. 2012).

         Susan N. and D.K. underscore a consistent theme in the Third Circuit's IDEA jurisprudence: that courts have an independent duty to enforce the requirements of the IDEA, which Congress intended would ensure that every child receive a free appropriate public education (commonly known as a “FAPE”). See Susan N., 70 F.3d at 759, 760 (“[A] district . . . must decide independently whether the requirements of the IDEA are met.”) (citation and internal quotation marks omitted); Charlene R. v. Solomon Charter Sch., 63 F.Supp.3d 510, 517 (“[T]he Third Circuit, following the lead of the Supreme Court in Burlington, has recognized that the primary goal and driving factor behind the IDEA is Congress's desire that every child receive the FAPE that is their right under the Act.”) (emphasis original). It is therefore proper for district courts to include relevant, non-cumulative, and useful evidence, even when it is from those who did, or could have, already testified in the due process hearing. I.K. ex rel. B.K. v. Sch. Dist. Of Haverford Twp., 961 F.Supp.2d 674, 693 (E.D. Pa. 2013) (Dalzell, J.), aff'd567 Fed.Appx. 135 (2014) (“Where Congress has specifically vested us with the ...

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