In K.M. v. Katonah-Lewisboro Union Free School District, No. 19 CIV. 9671, 2020 WL 4038354, 120 LRP 21465 (S.D.N.Y. July 17, 2020), Magistrate Judge Judith C. McCarthy denied the parents’ motion to supplement the record in the appeal of a State Review Officer decision with a group of photos the Impartial Hearing Officer took during the course of the due process hearing. The student’s program at the school district for the relevant period was in a single, isolated classroom in a hallway on the basement level of the school building. The hallway was crowded with boxes of storage and other materials, and the parents believed the location was unsafe due to the obstacles if the students needed to exit in an emergency. In addition, the location segregated the students with disabilities. After negotiations with the district failed, the parents unilaterally placed the student at a private school and filed for due process. The hearing took place at the public school building and the record embraced significant amounts of evidence, including photos of the location at the time the parents withdrew the student. With the agreement of the parties, the IHO visited the hallway and the classroom. Without a request from either party, during the visit, he took photos for his own use. He went to the classroom and hallway and took photos on other occasions as well.
The IHO ruled that the district denied free, appropriate public education to the student for the school years at issue and ordered tuition reimbursement for that period and up to the student’s graduation or reaching age 21. The court said, “The IHO found, in relevant part, that the isolation of the classroom had an adverse impact on I.M.’s education because the students with disabilities were segregated from students who did not have disabilities. . . . He also noted that the hallway was ‘cluttered with building material and equipment,’ as shown in the photos submitted by Plaintiffs. . . . The State Review Officer reversed the decision with respect to the conditions at the location, however, and remanded to the same IHO to determine whether the student’s IEPs were appropriate. The IHO found that the IEPs were not appropriate and that the private placement was appropriate. The SRO reversed a second time and denied tuition reimbursement.
The court did not rule on the merits, but only on the motion to supplement the record. In denying the motion, it relied on the familiar standard of Town of Burlington v. Department of Education, 736 F.2d 773 (1st Cir. 1984), which generally disfavors new evidence: “The Court finds that Plaintiffs have failed to satisfy their burden of demonstrating that supplementing the record with the IHO’s photographs is warranted. The IHO photographs of the condition of the hallway after I.M. left John Jay are of limited relevance to the adequacy of her IEP.” Id. at *6. The court also declared that the photos were cumulative, since there were photos in the record from the time the student was there, as well as witness testimony about the site, and the parents could have offered more of their own photos at hearing. “This would have provided Defendant an opportunity to object to such evidence or conduct cross-examinations in its defense. Moreover, the admission of these photographs now could cause unnecessary delay in proceeding with the case,” id., and would create “an evidentiary issue relating to the authentication of the photographs since the photographs were taken by the factfinder at the due process hearing that is the subject of the instant matter,” id. n.4.
The court’s decision underscores the importance of why IHOs should not conduct their own investigations of the facts of a case. Like here, at the request and agreement of the parties, IHOs may conduct site visits and/or observe the student who is the subject of the due process hearing in his/her educational placements. However, in deliberating whether to accept the parties’ invitation to conduct a site visit and/or observation, the IHO should first establish the ground rules with the parties, including, for example, what will be observed, whether the IHO can ask questions during the observation, and if so, of whom, and who will be present during the site visit / observation.