School Board of Collier County v. K.C. Ex Rel. SWC

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
_________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 14, 2002
No. 00-16642 THOMAS K. KAHN
_________________________ CLERK

D.C. No. 97-00019-CV-FTM-25D

SCHOOL BOARD OF COLLIER COUNTY, FLORIDA,

Plaintiff-Counter-defendant-Appellee,

versus

“K.C.”, A minor by and through her parents, SWC and KAC,
S.W.C., individually, and as parents and next friends of K.C.,
a minor, and K.A.C.,

Defendants-Appellants, Counter-claimants.

_________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 14, 2002)

Before EDMONDSON, HILL and LAY*, Circuit Judges.

LAY, Circuit Judge:

*
Honorable Donald P. Lay, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
 K.C., a minor, by and through her parents S.W.C. and K.A.C. (K.C.) appeals

from the district court’s final judgment in favor of the School Board of Collier County

(Board). Pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §

1400 et seq. (IDEA), and corresponding Florida laws, Fla. Stat. § 230.23(4)(m); Fla.

Admin. Code Ann. r. 6A-6.0311, the Board is required to provide K.C. with a free

appropriate public education (FAPE). In order to achieve an “appropriate” education,

the school and parents develop an individualized education program (IEP) together.

Either party may request a due process hearing if they cannot agree on the contents

of the IEP. Pursuant to Fla. Stat. § 230.23(4)(m)(5), the due process hearing is

conducted by an administrative law judge (ALJ) from the Division of Administrative

Hearings of the Department of Management Services. In the present case, the district

court vacated the ALJ’s decision in favor of K.C. On appeal, K.C. argues the district

court erred by (1) allowing the Board to supplement the record with expert testimony,

(2) denying K.C.’s request to utilize an expert witness, and (3) vacating the ALJ’s

decision.

I. Background

We briefly review the facts, which are thoroughly documented in nearly eighty

pages of findings by the ALJ and well summarized by the district court.

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 Since K.C. began attending Collier County Public Schools, she has been

classified as an “exceptional student” with learning disabilities. Accordingly, the

Board must provide “special instruction, classes, and services.” Fla. Stat.

§ 230.23(4)(m)(2). For example, in preparation for K.C.’s transition to the fifth grade,

the Board acquired a special portable classroom and had it customized to meet K.C.’s

special needs. Because K.C.’s transition to sixth grade would entail a change in

locations, planning began as early as January 1996. An IEP meeting was held in May

1996 and continued at a June 7, 1996, meeting that resulted in the completion of an

IEP.

K.C. started school on August 26, 1996. Things began badly and K.C.’s mother

kept K.C. from school for three days and requested a meeting with key school

personnel. K.C.’s mother complained about the state of the portable classroom and

the absence of certain equipment and furnishings. K.C. returned to school on

Tuesday, September 3, 1996. Over the next two weeks, K.C.’s teachers noted some

signs of improvement in her behavior. Her teachers, however, had trouble getting

K.C. to work at school and her mother aggravated the problem by helping K.C.

complete “in-class” assignments at home.

On Friday morning, September 13, 1996, K.C. found a nail outside the portable

classroom. She subsequently threatened students and staff with the nail, stuck her

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teacher in the finger, and hit and kicked several staff members. The incident

culminated with K.C. calling her mother and reporting that her teachers were trying

to murder her.

K.C.’s parents kept her from school for the next three days. After a meeting

with the principal, she was formally suspended for seven additional days. A new IEP

was developed at a meeting held September 26, 1996, and K.C. returned to school on

September 30, 1996. K.C. was less compliant than before the incident and her mother

regularly attended school with her. K.C.’s mother was generally disrespectful of

K.C.’s teachers and their attempts at instruction, effectively taking over K.C.’s

classroom teaching. K.C.’s parents removed her from school on October 7, 1996, and

she never returned.

II. Procedural History

On October 9, 1996, both the Board and K.C.’s parents requested a due process

hearing relating to the June and September 1996 IEPs. That hearing was held over the

course of several days in October and November 1996. The ALJ’s final order found

the June and September IEPs were procedurally inadequate, denying K.C. a FAPE.

The ALJ ordered the preparation and implementation of a new IEP. The Board then

filed the present action in the federal district court for the Middle District of Florida

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claiming the IEPs in question provided K.C. with a FAPE and seeking a judgment

vacating the ALJ’s final order.1

In August 1997, the district court entered an accelerated scheduling order

setting January 15, 1998, and February 1, 1998, as the cut-off dates for discovery and

dispositive motions, respectively. No date was set for disclosure of experts. In

February 1998, the Board moved to submit additional evidence. Because of the

district court’s decision to modify the course of proceedings,2 the motion was denied

without prejudice so the Board could amend it, specifying the need and relevance of

any additional evidence it sought to submit. In May 1998, the district court entered

an order refusing to extend the discovery deadline without the agreement of the

parties. In March 1999, the district court granted the Board’s amended motion to

submit additional evidence and denied K.C.’s motion to strike Dr. David Rostetter’s

affidavit.3 On April 30, 1999, K.C. filed a motion to submit the testimony of an expert

to rebut the Board’s expert testimony. The court denied that motion.

1
K.C. also filed a civil action in the district court seeking attorney’s fees, costs, damages, and
equitable relief based on the ALJ’s findings.
2
The district court made some decisions about the order in which the consolidated cases
comprising this controversy would be resolved, thus restricting the scope of the trial.
3
The district court allowed the Board to supplement the record with only one expert and
denied the Board’s request to add any additional documentary evidence.

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 Trial was held on June 24 and 25, 1999. The district court vacated the ALJ’s

final order and entered a judgment in favor of the Board. This appeal followed.

III. Discussion

A. Evidentiary Rulings

This court has previously set forth the standard of review as follows:

We review a district court’s ruling on the admissibility of evidence
for abuse of discretion, and evidentiary rulings will be overturned only
if the moving party establishes that the ruling resulted in a “substantial
prejudicial effect.” When applying an abuse of discretion standard, “we
must affirm unless we at least determine that the district court has made
a ‘clear error of judgment,’ or has applied an incorrect legal standard.”

Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1305 (11th Cir. 1999) (internal

citations omitted); see also Taylor v. Food World, Inc., 133 F.3d 1419, 1422 (11th Cir.

1998).

1. Dr. Rostetter’s Affidavit and Testimony

K.C. claims the district court committed reversible error by allowing the Board

to supplement the record with the affidavit and expert testimony of Dr. Rostetter. We

disagree. The district court is to conduct a de novo review of the ALJ’s findings, and

“IDEA specifically provides that the court may take additional evidence and may

fashion relief that the court deems appropriate.” Weiss v. Sch. Bd., 141 F.3d 990,

991-92 (11th Cir. 1998); see 20 U.S.C. § 1415(i)(2)(B). “The determination of what

is ‘additional’ evidence must be left to the discretion of the trial court which must be

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careful not to allow such evidence to change the character of the hearing from one of

review to a trial de novo.” Walker County Sch. Dist.v. Bennett, 203 F.3d 1293, 1298

(11th Cir. 2000) (quoting Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 791

(1st Cir. 1984)) (emphasis added).

K.C. argues the Board failed to comply with Fed. R. Civ. P. 26(a)(2)(C) and

26(e). The Board correctly notes the district court never set an expert witness

disclosure deadline other than the Rule 26 requirement that expert witnesses must be

disclosed at least ninety days prior to trial. See Fed. R. Civ. P. 26(a)(2). Since the

Board disclosed its desire and intent to use Dr. Rostetter as an expert witness over a

year prior to trial, it cannot be said to have violated Rule 26.

K.C. also argues the district court failed to meet the “Walker standards” for

what additional evidence a court may accept in civil actions brought under the IDEA.4

K.C. contends the Board did not provide a sufficient basis for supplementing the

record, failing to demonstrate why Dr. Rostetter did not testify at the administrative

hearing. K.C. contends Dr. Rostetter’s testimony was cumulative of testimony

4
Although Walker County School District was decided nearly eight months after the district
court’s decision in the present case, it endorsed the standard articulated by the First Circuit in Town
of Burlington. See Walker County, 203 F.3d at 1299 (“We agree with this well reasoned resolution
of the issue by the First Circuit . . . .”). In the present case, the district court relied heavily on Town
of Burlington in deciding whether to grant the Board’s motion.

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previously presented at the administrative hearing. These arguments are without

merit.

When initially presented with the Board’s motion to supplement the record, the

district court denied it and required an amended motion setting forth the evidence the

Board wished to present and how it would assist the court. The Board did so,

providing a “solid justification” for introducing additional evidence. Cf. Roland M.

v. Concord Sch. Comm., 910 F.2d 983, 996-97 (1st Cir. 1990) (concluding that

deliberately withholding witnesses because of disdain for the administrative process

failed as a solid justification). The district court expressly considered the Town of

Burlington court’s analysis of what additional evidence should be considered. It noted

additional expert testimony may be helpful in clarifying certain aspects of the case and

that legitimate reasons -- such as cost -- often exist for not presenting all expert

testimony before a state agency. Town of Burlington and Walker County declined to

adopt a rule prohibiting a court from considering testimony from those “who did, or

could have, testified before the administrative hearing.” Town of Burlington, 736

F.2d at 790; Walker County, 203 F.3d at 1298. We find no abuse of discretion in

allowing this limited additional evidence.

2. K.C.’s Motion to Supplement the Record

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 K.C. also claims the district court erred by denying her motion to supplement

the record. This motion was made on April 30, 1999, more than a year after the close

of discovery and the identification of Dr. Rostetter as a supplementary witness for the

Board. Although K.C. had “opposed Plaintiff’s motion to add an expert, at no time

prior to the eve of trial did [she] request that the Court allow [her] leave to designate

an expert of [her] own.” Sch. Bd. v. K.C., No. 97-19-CIV-FTM-25D (M.D. Fla. June

21, 1999) (Order denying K.C.’s Motion To Add Expert). “[D]istrict courts enjoy

broad discretion in deciding how best to manage the cases before them.” Chudasama

v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997). Thus, we cannot say

the decision to refuse K.C.’s untimely motion constituted reversible error.5

B. Free Appropriate Public Education

The Supreme Court has formulated a two-part test in analyzing whether a FAPE

was provided in cases arising under the IDEA. The court must determine: (1) whether

the state actor has complied with the procedures set forth in the IDEA, and (2)

whether the IEP developed pursuant to the IDEA is reasonably calculated to enable

5
In any event, the district court did not appear to rely on Dr. Rostetter’s testimony. Dr.
Rostetter primarily responded to the ALJ’s findings that the June and September 1996 IEPs were
procedurally flawed. Nevertheless, without referring to Dr. Rostetter’s testimony, the district court
agreed with the ALJ, finding the IEPs procedurally inadequate. Thus, any error stemming from the
admission of Dr. Rostetter’s testimony, or by denying K.C.’s motion to supplement the record,
would not have yielded the “substantial prejudicial effect” necessary to warrant reversal. Piamba
Cortes, 177 F.3d at 1305; see Drew P. v. Clarke County Sch. Dist., 877 F.2d 927, 931 (11th Cir.
1989) (admission of cumulative evidence was harmless error).

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the child to receive educational benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-

07 (1982). A procedurally defective IEP does not automatically entitle a party to

relief. “In evaluating whether a procedural defect has deprived a student of a FAPE,

the court must consider the impact of the procedural defect, and not merely the defect

per se.” Weiss, 141 F.3d at 994; see also Doe v. Ala. State Dep’t of Educ., 915 F.2d

651, 661-663 (11th Cir. 1990) (holding deficiencies failing to impact parental

involvement were not sufficient to warrant relief). The ALJ found the June and

September IEPs failed to comply with the procedures set forth in the IDEA and failed

to provide K.C. with any educational benefit. The district court also found the IEPs

to be procedurally flawed, but disagreed with the ALJ’s conclusion that the plan failed

to provide K.C. with any educational benefit. In so deciding, the district court

considered whether:

(1) the program is individualized on the basis of the student’s assessment
and performance; (2) the program is administered in the least restrictive
environment; (3) the services are provided in a coordinated and
collaborative manner by the key “stakeholders”; and (4) positive
academic and non-academic benefits are demonstrated.

Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 253 (5th Cir. 1997).6

6
It is unnecessary for us to decide whether these factors constitute the test in this circuit
because they are at least as stringent as any standard this court has articulated. E.g., JSK v. Hendry
County Sch. Bd., 941 F.2d 1563, 1573 (11th Cir. 1991) (discussing the “basic floor of opportunity”).

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 “[W]hether an IEP provided a ‘free appropriate public education’ . . . is a mixed

question of fact and law subject to de novo review.” JSK v. Hendry County Sch. Bd.,

941 F.2d 1563, 1571 (11th Cir. 1991). Specific findings of fact are reviewed for clear

error. Walker County, 203 F.3d at 1295 n.7. In contrast, the district court conducts

an entirely de novo review of the ALJ’s findings, Rowley, 458 U.S. at 205, and has

the discretion to determine the level of deference it will give to the ALJ’s findings.

Doe, 915 F.2d at 657 n.3.

In the present case, the district court gave great deference to the ALJ’s

extensive factual findings. The district court disagreed, however, with the ALJ’s

conclusion that the IEPs (as well as the educational program actually implemented)

failed to provide any educational benefit. The district court found the Board clearly

developed an individualized program and administered it in the least restrictive

environment. It also found the program was implemented in a coordinated,

collaborative manner by key stakeholders. The district court found it impossible to

address the academic progress component of the final Cypress-Fairbanks factor

because of the extremely short period of time K.C. was in school and the difficulty in

determining “what effect K.C.’s mother’s actions had on K.C.’s progress.” Finally,

the district court disagreed with the ALJ’s conclusion that K.C.’s non-academic

progress regressed based on the single incident with the nail. We find persuasive the

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district court’s application of the facts to the Cypress-Fairbanks factors and its

conclusion that “the procedural deficiencies in the June and September 1996 IEPs did

not impact K.C.’s right to a FAPE.” Accordingly, we uphold the district court’s

decision.

IV. Conclusion

For the reasons set forth herein, we AFFIRM the decision of the district court

vacating the final order of the ALJ and the judgment in favor of the Board.

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