Adam Dayan, Esq.
Expanding the Record with Additional Evidence
When is one party allowed to introduce on appeal evidence that was not presented during a previous administrative proceeding? In Moorestown Township Board of Education v. S.D., a very recent decision by the U.S. District Court in Camden, New Jersey, the school district was appealing an administrative decision holding that the district had denied the child a free and appropriate education and ordering the district to reimburse the parents for the private school tuition. At the administrative level, the judge would not allow testimony from one of the individuals that the district wanted to present as a witness (a special education attorney representing school boards). On appeal to the U.S. District Court, the school district attempted to "expand the record" by having the same witness testify. Under federal law, additional evidence can be heard at the request of a party. So would it be proper for this court to hear this particular evidence that the administrative judge purposely kept out? The district court said, under these circumstances, NO.
The district court said that it has to determine whether the proposed evidence is relevant and useful in determining whether Congress' goal has been reached for the child involved. This is a case-by-case, fact-based determination. The statute's language says "shall hear additional evidence at the request of the party" -- which suggests that the court is obligated to do it. But the court nimbly worked around this language and reasoned that additional evidence could still be kept out if the proposed witness has no knowledge of the facts and the testimony would not help the court in reaching its decision. In this case, it seemed that the school district wanted to present an attorney as its witness to testify about what the law means, how the law is meant to be implemented, and whether the New Jersey school district was doing it right. You can imagine that a judge might take offense to this since interpreting the law is generally a judge's role. The judge made sure to convey this to the school district's attorney, saying that it is "well-settled that matters of statutory construction are not a proper subject for expert testimony, but rather, questions of law to be resolved by the Court." Read between the lines.
The court left itself a little wiggle room, explaining that experts can sometimes testify on the specific issue of how a government agency applies and enforces its regulations if the statutory structures is complex and requires this type of testimony. BUT, in this case, since the school district never asserted this argument and never described the details of what this testimony would show, the evidence is excluded. The "additional evidence" has to be limited to what is relevant, non-cumulative, and useful in determining whether an appropriate education has been provided to this child. You have to make clear to the judge how the testimony is relevant and useful to this determination, and any vague or overly broad requests are going to be denied.