Judicial Complaint, In Re: , 203 F.3d 1293 ( 2000 )

WALKER COUNTY SCHOOL DISTRICT, Jewel Campbell, et al., Plaintiffs-Counter-defendants-
Appellants,
v.
Jensine BENNETT, a minor, by and through her parents and legal guardians, John & Denise Bennett,
John Bennett, Denise Bennett, Defendants-Counter-claimants-Appellees.
No. 99-10140.
United States Court of Appeals,
Eleventh Circuit.
Feb. 16, 2000.
Appeals from the United States District Court for the Northern District of Georgia. (No. 97-00054-CV-4-
HLM), Harold L. Murphy, Judge.
Before BIRCH and HULL, Circuit Judges, and HODGES*, Senior District Judge.
HODGES, Senior District Judge:
This appeal involves the Individuals with Disabilities Education Act (the IDEA), 20 USC § 1400 et
seq.1 The court is required to interpret one of the provisions of the Act that has been the subject of attention
by several other circuits, but not this one.
The stated purpose of the IDEA is to ensure that all children with disabilities have available to them
a free appropriate public education that emphasizes special education and related services designed to meet
their unique needs. 20 USC § 1400(d)(1)(A). To effectuate that purpose federal funds are made available
to state and local educational entities2 which are required through an evaluation process to identify children
*
Honorable Wm. Terrell Hodges, Senior U.S. District Judge for the Middle District of Florida, sitting by
designation.
1
The Act was substantially revised and reorganized in 1997 by Pub.L. 105-17, June 4, 1997, 111 Stat. 37.
However, the provisions pertinent to this appeal were not changed. This opinion will therefore cite the statute
in its present form. 20 USC § 1400 et seq.
2
See 20 USC § 1411.
with disabilities3 and to develop for each disabled child an annual individualized education program or IEP.4
If the parents of a disabled child are dissatisfied with their child's IEP, the statute requires the educational
agency to afford them an impartial due process hearing.5
Any party aggrieved by the result of the administrative proceedings in the state system has the right,
under § 1415(I)(2), to bring a civil action in the district court, and
In any action brought under this paragraph, the court—
(i) shall receive the records of the administrative proceedings;
(ii) shall hear additional evidence at the request of a party; and
(iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court
determines is appropriate.
The Walker County School District was aggrieved by the result of administrative proceedings
initiated under the Act by the parents of Jensine Bennett. The Administrative Law Judge required the School
District to reimburse the Bennetts for the cost of Jensine's private schooling during the 1995-96 school year.
The School District then brought this action in the district court under § 1415(I)(2) of the Act seeking review
and reversal of that administrative decision. Invoking the statutory mandate that the court "shall hear
additional evidence at the request of a party," the School District proposed that the district court hear a
substantial volume of testimonial and documentary evidence in addition to the record of the administrative
proceedings developed in the state system. The district court refused to receive most of that evidence and,
acting on the existing record, proceeded to affirm the administrative decision. This appeal followed.
Two issues are presented. First is the question whether the district court erred in refusing to receive
and consider the evidence the School District wished to offer in addition to the record of the administrative
3
See 20 USC § 1414.
4
See 20 USC § 1414(d).
5
See 20 USC § 1415(f).
2
proceedings.6 The second issue is whether the district court erred in its judgment on the merits affirming the
decision of the Administrative Law Judge.7
We affirm the district court in both respects and conclude that we need to discuss only the evidentiary
question as an issue of first impression in this circuit.
I
Jensine Bennett was born on September 15, 1988 and was eight years old when this suit was brought
in March, 1997. She was identified as an autistic child in 1991 when she was three years old. Jensine and
her parents lived at the time, and still live, in Walker County, Georgia. The Walker County School District
determined that Jensine, because of her autism, was a child with a disability and was qualified for special
educational services under the IDEA. An individualized educational program (IEP) was prepared and
implemented for her without formal dispute during Jensine's preschool years, 1991-92 through 1994-95.
In her kindergarten class during the 1994-95 school year, Jensine sporadically engaged in self abusive
acts, experienced other episodes of emotional outbursts, and lacked focus on classroom tasks. In the spring
of 1995 the School District prepared a proposed IEP for Jensine with respect to the 1995-96 school year.
Meetings were held in June and August, 1995, but the proposed IEP was rejected by the Bennetts because,
in their view, among other things, it did not provide an extended program during the summer months, and
did not afford occupational therapy services or sufficient one-on-one classroom assistance to cope with
Jensine's autistic frustration. The Bennetts thus declined the School District's 1995-96 IEP, withdrew Jensine
6
To the extent this issue involves a question of law—the interpretation of the statute—our review is de
novo. E.g., United States v. Gilbert, 136 F.3d 1451 (11th Cir.1998); Rodriguez v. J.D. Lamer, 60 F.3d 745,
747 (11th Cir.1995); Morris v. Haren, 52 F.3d 947, 949 (11th Cir.1995). To the extent the issue involves
the district court's evidentiary rulings, i.e., application of the properly construed statute in admitting or
excluding evidence, we review those rulings for abuse of discretion. Taylor v. Food World, Inc., 133 F.3d
1419, 1422 (11th Cir.1998).
7
To the extent the district court found, as did the ALJ, that the 1995-96 IEP developed for Jensine failed
to comply with the Act, the issue presents a mixed question of law and fact subject to de novo review. JSK
v. Hendry County School Board, 941 F.2d 1563, 1571 (11th Cir.1991). The district court's specific findings
of fact are reviewed for clear error. See e.g., Jefferson County Board of Education v. Breen, 853 F.2d 853,
857 (11th Cir.1988), reh'g denied 864 F.2d 795 (11th Cir. 1988).
3
from the District's school system, enrolled her in a private school for autistic children, and gave notice to the
District that they intended to seek reimbursement of the costs of that private schooling.8
In July, 1996, the Bennetts requested a due process hearing under the IDEA to press their claim for
reimbursement of the expense of Jensine's education during the 1995-96 school year.9 This placed in issue
whether the School District's proposed IEP for Jensine during that year was sufficient to provide her a "free
appropriate public education" as required by the Act, § 1400(d)(1)(A).10
The Administrative Law Judge assigned to hear the case under Georgia's statutory scheme held a two
day hearing in December, 1996. Extensive documentary evidence was presented and the testimony of both
lay and expert witnesses was heard. The ALJ issued his decision in February, 1997. He found, as contended
by the Bennetts, that the 1995-96 IEP prepared for Jensine by the School District did not comply with the
IDEA as interpreted by the Supreme Court in Rowley and did not fulfill Jensine's right to a free appropriate
public education. Specifically, the IEP was found to be deficient because it failed to provide (1) behavior
management; (2) occupational therapy; (3) extended services for twelve months; and (4) communication
aids. The Bennetts were therefore awarded the costs of Jensine's private school education for the 1995-96
school year.
II
8
This court has recognized that reimbursement is an available remedy when the public school IEP is found
to be statutorily insufficient and the private schooling chosen by the parents of a disabled child is found to
be appropriate. See e.g., Jefferson County Board of Education, 853 F.2d at 857.
9
The ALJ and the district court found that there was no applicable period of limitations and no laches on
the part of the Bennetts in asking for the due process hearing some eleven months after their rejection of the
1995-96 IEP. No issue concerning that conclusion is presented or decided on this appeal.
10
This court has previously held, following Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034,
73 L.Ed.2d 690 (1982) and Todd D. v. Andrews, 933 F.2d 1576, reh'g denied, 943 F.2d 1316 (11th Cir.1991),
that each child and his or her IEP must be examined individually in determining whether the child has been
provided "a basic floor of opportunity" that affords "some" educational benefit. The outcome need not
maximize the child's education; adequacy must be determined on a case by case basis in the light of the
child's individual needs. Board of Education of the Hendrick Hudson Central School District, Westchester
County v. Rowley, 458 U.S. 176, 198, 203, 204, n. 26, 102 S.Ct. 3034, 3046, 3049 and n. 26, 73 L.Ed.2d 690(1982).
4
In the district court the School District moved for an evidentiary hearing to present "additional
evidence." The court required a proffer of the evidence the School District wished to present. The School
District responded by listing the names of nineteen witnesses (whose testimony was variously offered through
the means of personal appearance, depositions or affidavits), plus three categories of tangible or documentary
evidence. The district court then reviewed each item of the proffer, separately and individually. The court
found that five of the witnesses had already testified to the same general subject matter at the administrative
hearing, and that the proposed testimony of several of the remaining witnesses was already in the record in
the form of their written reports or the testimony of other witnesses who had described their findings, so that,
in either case, the proposed testimony before the district court would be cumulative. In two instances the
court found the proffered testimony to be irrelevant. The court also found that all of the proffered witnesses
who had not already testified were available at the time of the administrative hearing; that no explanation
was given for not calling them at that time; and that permitting them to be called in the district court would
raise the dual concerns of unfairly permitting the parties to reserve their best evidence for trial while
essentially converting an administrative review proceeding into a trial de novo. Thus, with two minor
exceptions, the district court concluded that the admission of any of the additional evidence in the judicial
review proceedings would not only be cumulative but would undercut or unduly minimize the statutory role
of the administrative process thereby resulting in an unnecessary expenditure of judicial resources. In the
end, therefore, the district court excluded all of the School District's proffered evidence except for a portion
of the deposition testimony of one witness and some additional documentary evidence.
III
Ordinarily, one expects judicial review of an administrative decision to be limited to the record before
the administrative body, and for the court to be required to affirm if substantial evidence in the record
supports the administrative determination. See Capistrano Unified School District v. Wartenberg, 59 F.3d
884, 891 (9th Cir.1995). But the IDEA provision for judicial review has been described as "puzzling" (id.
5
at 898) and "somewhat confusing." Jefferson County Board of Education v. Alabama Department of
Education, 853 F.2d 853, 856 (11th Cir.1988), because it differs from the norm in a way that produces three
distinct issues: (1) How much deference, if any, should be given to the administrative decision if additional
evidence may be taken and the standard to be applied is the preponderance of the evidence? (2) What
standard should be applied in deciding what "additional" evidence, if any, should be admitted in the district
court proceeding? And (3) What is the appropriate procedural mechanism to be implemented in the district
court in bringing the case before the court for a final decision?11
The first of these issues was the focus of the Supreme Court's decision in Board of Education v.
Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), and has since received the attention of this
Court in Jefferson County Board of Education v. Alabama Department of Education, 853 F.2d 853 (11th
Cir.1988), and Doe v. Alabama Department of Education, 915 F.2d 651 (11th Cir.1990). Essentially, the law
is established by Rowley that the administrative decision in an IDEA case is entitled to due weight and the
court must be careful not to substitute its judgment for that of the state educational authorities. Still, under
Jefferson County Board of Education and Doe, the extent of the deference to be given to the administrative
decision is left to the sound discretion of the district court which must consider the administrative findings
but is free to accept or reject them.
It is the second of these issues that must now be decided in resolving this appeal. The leading
decision on point is the opinion of the First Circuit in Town of Burlington v. Department of Education, 736
F.2d 773, 790-791 (1st Cir.1984), aff'd., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). The Court
held:
11
Both the Sixth and the Ninth Circuits have noted that a motion for summary judgment under Federal
Rule of Civil Procedure 56 may not be an appropriate procedural device for triggering a district court decision
because the district court in reviewing the administrative record, whether additional evidence is taken or not,
must weigh and decide disputed issues of fact, an improper exercise under Rule 56. Compare Capistrano,
59 F.3d at 891-92 and Doe v. Metropolitan Nashville Public Schools, 133 F.3d 384, 387 n. 2 (6th Cir.1998).
Though the point seems arcane, it could be important in its influence upon the choice of the correct standard
of review on appeal. The issue is not presented by this appeal and will be left for another day.
6
We believe that the key to the review authorized by the Act lies in the additional evidence clause.
We construe "additional" in the ordinary sense of the word, Perrin v. United States, 444 U.S. 37, 42,
100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979), to mean supplemental. Thus construed, this clause does
not authorize witnesses at trial to repeat or embellish their prior administrative hearing testimony;
this would be entirely inconsistent with the usual meaning of "additional." We are fortified in this
interpretation because it structurally assists in giving due weight to the administrative proceeding,
as Rowley requires. Rowley 458 U.S. at 206, 102 S.Ct. at 3051.
*****
A trial court must make an independent ruling based on the 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 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.
*****
We decline to adopt the rule urged by defendants that the appropriate construction is to disallow
testimony from all who did, or could have, testified before the administrative hearing. We believe
that, although an appropriate limit in many cases, a rigid rule to this effect would unduly limit a
court's discretion and constrict its ability to form the independent judgment Congress expressly
directed.
*****
The determination of what is "additional" evidence must be left to the discretion of the trial court
which must be careful not to allow such evidence to change the character of the hearing from one of
review to a trial de novo. A practical approach, we believe, is that an administrative hearing witness
is rebuttably presumed to be foreclosed from testifying at trial. A motion may then be made to allow
such a witness to testify within specified limits stating the justification for the testimony. In ruling
on motions for witnesses to testify, a 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. The Court should look with a
critical eye on a claim, such as made here, that the credibility of a witness is a central issue. The
claim of credibility should not be an "open sesame" for additional evidence. Such an approach
followed by a pretrial order that identifies who may testify and limits the scope of the testimony will
enable the court to avoid a trial de novo. (internal citations omitted)
We agree with this well reasoned resolution of the issue by the First Circuit and now align this court
with the Seventh and Ninth Circuits in adopting the same holding.12 See Monticello School District v. George
12
It should also be noted that the enumeration of factors given by the First Circuit in Town of Burlington
as possible reasons for supplementation of the evidence is a non-exhaustive list. The availability or
7
L., 102 F.3d 895, 901 (7th Cir.1996), and Ojai Unified School District v. Jackson, 4 F.3d 1467, 1473 and n.
7 (9th Cir.1993), cert. denied, 513 U.S. 825, 115 S.Ct. 90, 130 L.Ed.2d 41 (1994). See also Susan N. v.
Wilson School District, 70 F.3d 751, 759-60 (3d Cir.1995), and Independent School District No. 283 v. S.D.,
88 F.3d 556, 560 (8th Cir.1996), in which the Third and the Eighth Circuits take a restrictive approach to the
issue without expressly adopting the rule of Town of Burlington.
The only criticism of the Town of Burlington holding, which we adopt today, comes from the Sixth
Circuit in Metropolitan Government of Nashville and Davidson County v. Cook, 915 F.2d 232 (6th Cir.1990).
The court there declined to approve the First Circuit's definition of "additional" to mean "supplemental"
evidence; but the ultimate holding in Cook left the admission or exclusion of evidence in an IDEA
proceeding to the sound discretion of the district court so that the difference between the First and Sixth
Circuits on this point would seem to be more semantical than substantive. See id. at 234-35.
IV
Applying our construction of the statute to the evidentiary rulings made by the district court, we have
no hesitancy in concluding that the court acted well within its discretion, and for the reasons it gave, in
admitting and excluding the evidence proffered to it by the School District. We also approve the procedure
followed by the district court in requiring a detailed proffer from the proponent of the additional evidence
so that an appropriate determination could be made concerning its admissibility under the statute as we have
construed it.
Finally, on the merits, we conclude that the district court did not err in its decision that the School
District is required to reimburse the Bennetts for the costs of educating Jensine at the Orange Grove Center
during the 1995-96 school year.
unavailability of discovery procedures in the state administrative system, for example, might properly
influence the extent to which the district court allows discovery in the review proceedings before deciding
whether to admit or refuse any proffered evidence. The district court also has broad discretion, in our view,
with respect to the form in which any supplemental evidence is received, i.e., deposition transcripts or
affidavits in lieu of personal appearance.
8
The judgment of the district court is in all respects AFFIRMED.
9