K. v. Frisco Independent School District

[[COURTLISTENER_SUBOPINION {"id":"11136985","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES DISTRICT COURT                           
           FOR THE EASTERN DISTRICT OF TEXAS                            
                     SHERMAN DIVISION                                   

S. K.,                          §                                         
Individually and as next friend of E.K., a  §                             
minor                           §                                         
                              §                                         
v.                              §          NO. 4:24-CV-00347-ALM-BD       
                              §                                         
FRISCO INDEPENDENT SCHOOL       §                                         
DISTRICT                        §                                         

              MEMORANDUM OPINION AND ORDER                              
S.K., individually and as next friend of E.K., sued the Frisco Independent School District for 
alleged violations of the Individuals with Disabilities Education Act,
20 U.S.C. § 1400
et seq. 
(“IDEA”), Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with 
Disabilities Act (“ADA”). Dkt. 1. S.K. moved to admit additional evidence. Dkt. 9; see Dkt. 10 
(Frisco ISD’s response). The motion will be denied.                       
                        BACKGROUND                                      
E.K., by and through his next friend S.K., alleges that Frisco ISD denied him a free appropriate 
public education (“FAPE”), failed to accommodate his disability, and denied him the benefit of 
the district’s services by reason of his disability. According to E.K.’s complaint, the school district 
ignored his poor academic progress, labeled him a “bad kid with behavioral problems,” Dkt. 1 at 
3, and refused to evaluate him for a learning or intellectual disability. The school district convened 
an  “ARD  meeting”  (short  for  admission,  review,  and  dismissal  committee)  that  ended  in 
disagreement, so a second ARD meeting was held that resulted in an individualized education 
program (“IEP”) to which E.K.’s father objected. E.K. alleges that the school district falsely 
accused him of threatening others and conducted a threat assessment without properly informing 
his father. He asserts that, since being removed from school, his well-being and academic progress 
have improved.                                                            
E.K. filed an administrative complaint in accordance with IDEA and had a due-process hearing 
in October and November 2023. Administrative Record (“AR”) 2. He argues that the hearing 
officer’s decision in favor of the school district was misguided and went against the great weight of 
the evidence.                                                             
                            LAW                                         
IDEA  requires  state  and  local  education  agencies  receiving  federal  funds  to  establish 
procedures “to ensure that children with disabilities and their parents are guaranteed procedural 
safeguards with respect to the provision of a free appropriate public education by such agencies.”
20 U.S.C. § 1415
(a). Those procedures must include “[a]n opportunity for any party to present a 
complaint . . . with respect to any matter relating to the identification, evaluation, or educational 
placement of the child, or the provision of a free appropriate public education to such child.”
Id.
§ 1415(b)(6). After a complaint is presented, “the parents or the local educational agency involved 
in such complaint shall have an opportunity for an impartial due process hearing, which shall be 
conducted by the State educational agency or by the local educational agency, as determined by 
State law or by the State educational agency.” Id. § 1415(f)(1)(A). Any party aggrieved by the 
outcome of that hearing process may sue in federal court. Id. § 1415(i)(2). 
In a civil action brought under IDEA, the court “shall receive the records of the administrative 
proceedings”; “shall hear additional evidence at the request of a party”; and, “basing its decision 
on  the  preponderance  of  the  evidence,  shall  grant  such  relief  as  the  court  determines  is 
appropriate.” Id. § 1415(i)(2)(C). Despite the statute’s use of the word “shall,” courts often limit 
the additional evidence that a party may submit. See, e.g., Hayden P. ex rel. Heidi K. v. Frisco ISD, 
No. 4:23-CV-00382-SDJ-AGD,
2024 WL 4273585
, at *5 (E.D. Tex. Sept. 3, 2024), report and 
recommendation adopted, No. 4:23-CV-00382-SDJ-AGD,
2024 WL 4269673
(E.D. Tex. Sept. 23, 
2024); D.A. v. Hou. ISD,
716 F. Supp. 2d 603, 617
(S.D. Tex. 2009), aff’d sub nom. D.A. ex rel. 
Latasha A. v. Hou. ISD,
629 F.3d 450
(5th Cir. 2010); Marc V. v. N.E. ISD,
455 F. Supp. 2d 577, 
587
(W.D. Tex. 2006), aff’d,
242 F. App’x 271
(5th Cir. 2007) (per curiam).  
The  First  Circuit  has  construed  “additional”  evidence  in  its  ordinary  sense  to  mean 
“supplemental” evidence. Town of Burlington v. Dept. of Educ. for the Commonwealth of Mass.,
736 
F.2d 773, 790
(1st Cir. 1984). That court identified reasons a district court might consider 
supplemental evidence, such as “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.”
Id.
The 
Fifth Circuit agrees, noting that, “as provided by IDEA, the evidence must be ʻadditional.’” E.R. 
v. Spring Branch ISD,
909 F.3d 754, 763
(5th Cir. 2018) (citing Town of Burlington,
736 F.2d at 790
). 
“The determination of what is “additional” evidence must be left to the discretion of the trial 
court.”
Id.
(quoting Town of Burlington,
736 F.2d at 791
).                
“The general consensus is that IDEA’s additional evidence provision is limited, and the 
decision of whether to allow additional evidence is within the discretion of the district court.” 
D.A.,
716 F. Supp. 2d at 616
. The court should exercise that discretion to prevent trial witnesses 
from “repeat[ing] or embellish[ing] their prior administrative hearing testimony.” E.R.,
909 F.3d 
at 763
(citing Monticello Sch. Dist. No. 25 v. George L. on Behalf of Brock L.,
102 F.3d 895
, 901 (7th 
Cir.  1996);  Town  of  Burlington,
736  F.2d  at  790
).  “And,  courts  should  ʻavoid  turning  the 
administrative hearing into a “mere dress rehearsal” followed by an “unrestricted trial de novo.”’”
Id.
at 764 (quoting Schaffer ex rel. Schaffer v. Weast,
554 F.3d 470, 476
(4th Cir. 2009)). “After all, 
rendering a decision on the record compiled before the administrative agency is the norm.”
Id.
(cleaned up). Evidence that is cumulative, is irrelevant, is untimely, or merely bolsters existing 
evidence is not additional within the meaning of the statute. Angela B. ex rel. T.S. v. Dall. ISD, 
No. 3:20-CV-0188,
2020 WL 2838994
, at *2 (N.D. Tex. June 1, 2020). And “evidence that was 
available to the requesting party before the administrative hearing” generally is not additional.
Id.
(citation omitted). Examples of proper additional evidence include evidence that the hearing 
officer erroneously excluded and evidence concerning relevant events that occurred after the 
administrative hearing. Id.; see also Town of Burlington,
736 F.2d at 790
. That additional-evidence 
standard accords administrative proceedings their due weight. E.R.,
909 F.3d at 764
. 
                         DISCUSSION                                     
S.K. moved for the admission of three exhibits, none of which existed at the time of the 
administrative hearing: (1) an email chain between E.K.’s father and the school district’s staff; 
(2) E.K.’s updated IEP implemented after the hearing; and (3) a letter from the school district 
refusing a request for an independent educational evaluation (“IEE”) of E.K. Dkt. 9 at 2–3. The 
motion does not attach copies of the exhibits but suggests that S.K. will file them if necessary.
Id.
at 2 n.1.                                                                 
S.K. argues that the court is required to take the additional evidence and has little discretion in 
the matter. S.K. argues that the first exhibit, the email exchange, shows ongoing bullying of E.K. 
despite the hearing officer’s determination that he had not been bullied. He also argues that the 
emails  demonstrate  that  E.K.’s  condition  has  improved  since  the  post-hearing  IEP  was 
implemented—which, in his view, shows that the hearing officer should have granted the services 
that were later provided by the IEP. S.K. argues that the updated IEP should be admitted because 
the subsequent addition of services demonstrates that the ISD should have offered those services 
in the first place. And S.K. argues that the response letter refusing a new IEE is additional evidence 
of the school district’s intentional discrimination against E.K.          
The  school  district  argues  that  S.K.  seeks  to  relitigate  matters  already  decided  in  the 
administrative  process,  patch  up  holes  in  his  case,  and  advance  claims  that  have  not  been 
administratively exhausted. It points out that S.K.’s motion ignores the Fifth Circuit’s adoption in 
E.R. of the First Circuit’s Town of Burlington standard and argues that, under that standard, 
plaintiffs do not have an unfettered right to introduce new evidence and that a district court’s 
decision solely on the administrative record is the norm. See E.R.,
909 F.3d at 764
. The school 
district also argues that S.K.’s proposed exhibits, created in 2024 after the administrative hearing, 
are irrelevant to whether E.K. received a FAPE in the 2021–22 and 2022–23 school years. It also 
points out that the email exchange contains inadmissible hearsay and that, if S.K. believes that E.K. 
is entitled to another IEE after the parties litigated that issue in the administrative hearing, his 
remedy is to file another administrative complaint. See
34 C.F.R. § 300.502
. S.K. did not file a 
reply.                                                                    
The question before the court is “whether the administrative record, together with any 
additional evidence, establishes that there has been compliance with IDEA’s processes and that 
the child’s educational needs have been appropriately addressed.” Seth B. ex rel. Donald B. v. 
Orleans Par. Sch. Bd.,
810 F.3d 961, 967
(5th Cir. 2016). The proponent of a piece of evidence 
generally bears the burden of establishing that the evidence is admissible under the Federal Rules 
of Evidence. Dowling v. United States,
493 U.S. 342
, 351 n.3 (1990); see Bourjaily v. United States,
483 U.S. 171, 176
(1987); United States v. Jackson,
636 F.3d 687, 695
(5th Cir. 2011). 
The school district has the better argument. The proposed evidence, all of which was created 
after the hearing, is irrelevant to whether the school district complied with the requirements of 
IDEA before the hearing. E.K. has not met his burden to demonstrate otherwise. Evidence of a 
student’s progress after an administrative hearing is irrelevant to the court’s review, see S.H. ex rel. 
A.H. v. Plano ISD, No. 4:08-CV-96,
2009 WL 500180
, at *2 (E.D. Tex. Feb. 27, 2009), so 
admission of the email exchange will be denied. Evidence of services provided after a due-process 
hearing is irrelevant and “adds nothing new” to the court’s review of the administrative record, 
H.L. ex rel. R.L. v. Allen ISD, No. 4:21-CV-749-SDJ,
2022 WL 3441873
, at *3 (E.D. Tex. Aug. 16, 
2022), so the 2024 IEP should not be admitted. And the school district’s conduct toward E.K. in 
2024 is irrelevant to showing that it violated his rights in previous school years, so the letter 
denying E.K. a new IEE will not be admitted.                              
                        CONCLUSION                                      
It is ORDERED that the motion to admit evidence, Dkt. 9, is DENIED.