N. v. Mountain View-Los Altos Union High School District

Background

N.N. and her mother, T.T., brought this action against the Mountain View-Los Altos Union High School District. They seek judicial review of an administrative decision under the Individuals with Disabilities Education Act, or IDEA. They also assert claims under Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act. According to the complaint, N.N. has a history of depression and anxiety, and plaintiffs claim that the District denied her a free appropriate public education and equal access to educational services during the 2017–2018, 2018–2019, and 2019–2020 school years.

In the administrative hearing, plaintiffs sought testimony from clinical psychologist Dr. Paula Solomon about the District’s testing and assessment of N.N. The administrative law judge allowed some testimony but limited Dr. Solomon from offering opinions rebutting the testimony of the District’s school psychologist, Michelle Nutter. Plaintiffs then moved to supplement the administrative record with additional testimony from Dr. Solomon. They said their previously disclosed expert, Dr. Nicole Medina, became unavailable shortly before the hearing and that some parts of Dr. Nutter’s testimony could not have been anticipated. The District opposed the motion, arguing that the proposed testimony was not proper supplemental evidence and lacked an adequate foundation.

Legal standard

Under the IDEA, a federal court reviewing an administrative decision must receive the administrative record and must hear additional evidence when a party requests it. Ninth Circuit precedent treats “additional” evidence as supplemental evidence that is non-cumulative, relevant, and otherwise admissible. Courts should not allow a witness simply to repeat or embellish prior administrative testimony, and they should consider fairness, the reason the evidence was not presented earlier, the role of administrative expertise, and judicial efficiency.

Court’s analysis

The court found no apparent dispute that Dr. Solomon’s proposed testimony was relevant and non-cumulative. The District argued that Dr. Solomon lacked a sufficient foundation because she was a clinical psychologist rather than a school psychologist and had not examined N.N. or spoken with people involved in N.N.’s life or education. The court concluded that those concerns went to the weight of her testimony rather than its admissibility, and the District had not shown that Dr. Solomon was unqualified under Federal Rule of Evidence 702 or the standards discussed in Daubert v. Merrell Dow Pharmaceuticals, Inc.

The court nevertheless considered fairness to the District and plaintiffs’ late disclosure of Dr. Solomon. It noted that plaintiffs had known about Dr. Medina’s unavailability about a week before the administrative hearing but waited until several days into the hearing and after Dr. Nutter testified to raise the issue. The court also found that plaintiffs had sufficient notice of some subjects, such as the validity of the District’s social-emotional testing, while there may have been an element of surprise concerning other aspects of Dr. Nutter’s testimony.

Ruling

The court granted in part and denied in part plaintiffs’ motion to supplement the record with Dr. Solomon’s testimony. Dr. Solomon may not provide additional testimony about: (1) Dr. Nutter’s failure to report the Multidimensional Anxiety Scale for Children or the “Incomplete Sentences” test in her written report; (2) Dr. Nutter’s failure to speak with N.N.’s teachers; or (3) the absence of teacher-reported rating scales for the Behavior Assessment System for Children. The court found that testimony on those subjects would repeat or embellish matters already clear or undisputed in the record.

Dr. Solomon may provide additional testimony on the other matters identified in her declaration. The court reserved judgment on objections that particular testimony might be speculative or lack foundation. To reduce potential unfairness, it allowed the District to present additional testimony from Dr. Nutter in response. The court scheduled an evidentiary hearing for July 16, 2021, and indicated that the hearing could require changes to the IDEA appeal briefing schedule. Judge Virginia K. Demarchi signed the order.