UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Mark and Linda Lessard,

Plaintiffs

v. Civil No. 05-cv-192-SM

Opinion No. 2006 DNH 105C

Wilton-Lyndeborough Cooperative

School District and The State of

New Hampshire Dept. of Education,

Defendants

O R D E R

In their three count complaint, plaintiffs assert that the

state educational hearings officer who presided over their due

process hearing deprived them of certain rights guaranteed by the

Individuals with Disabilities Education Act (counts one and two)

and failed to reasonably accommodate Mrs. Lessard’s claimed

disability, as required by the Americans with Disabilities Act

(count three). Pending before the court is plaintiffs’ motion to

supplement the administrative record. Specifically, plaintiffs’

seek an evidentiary hearing, at which they propose to introduce

testimony from Mrs. Lessard and their expert, Dr. Kemper -

testimony they say the hearings officer prevented them from

introducing at the due process hearing. Defendants object. 

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Standard of Review

District court review of state educational administrative

proceedings is focused on two questions: (1) whether the parties

complied with the procedural requirements of the IDEA; and (2)

whether the IEP developed through those procedures was reasonably

calculated to “confer some educational benefit upon the

handicapped child.” Bd. of Educ. v. Rowley, 458 U.S. 176, 200

(1982). See also Lenn v. Portland Sch. Comm., 998 F.2d 1083,

1086 (1st Cir. 1993) (holding that federal law does not require

that “the benefit conferred [by the IEP] reach the highest

attainable level or even the level needed to maximize the child’s

potential.”). The burden of proof rests with the party

challenging the administrative decision - here, the Lessards. 

See Hampton Sch. Dist. v. Dobrowolski, 976 F.2d 48, 54 (1st Cir.

1992); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 991 (1st

Cir. 1990). 

The IDEA provides that, in “any action brought under [this

statute], the court shall receive the records of the

administrative proceedings [and] shall hear additional evidence

at the request of a party.” 20 U.S.C. § 1415(i)(2)(C) (internal

punctuation omitted). But, the court’s review of the

administrative proceedings does not entitle the appealing party

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to a trial de novo. Accordingly, the decision to allow a party

to supplement the administrative record is committed to the

court’s discretion. See, e.g., Roland M., 910 F.2d at 996-97;

Town of Burlington v. Dept. of Edu., 736 F.2d 773, 790-91 (1st

Cir. 1984). 

Discussion

In support of their motion to supplement the record,

plaintiffs’ assert that: (1) Mrs. Lessard was “denied” the

opportunity to testify at the administrative hearing (despite the

fact that she was offered the opportunity to testify on several

occasions) because she was overwhelmed and intimidated by the

proceedings and because the hearings officer refused to

accommodate her claimed disability (i.e., by declining to

schedule the hearing over several days and by refusing some of

Mrs. Lessard’s requests for recess); and (2) Dr. Kemper was

“denied” the opportunity to testify because the hearings officer

refused to hold the record open for several weeks until Dr.

Kemper’s personal schedule would allow him to appear and testify. 

In light of the administrative record before the court,

plaintiffs’ claims that the hearings officer was biased against

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Mrs. Lessard, failed to reasonably accommodate her claimed (but

unsupported) disability, “denied” Mrs. Lessard the opportunity to

testify, and abused his discretion in refusing to delay the

proceedings until Dr. Kemper was available to testify would seem

to be fairly weak. The current record certainly suggests that

the hearings officer acted well within the bounds of what the

IDEA requires, did not demonstrate an improper bias against Mrs.

Lessard, and acted within his discretion in declining to hold the

record open so Dr. Kemper could provide what appears to be

cumulative and unnecessary testimony. Ordinarily, then, the

court would be disinclined to allow plaintiffs the opportunity to

supplement the already voluminous administrative record. This,

however, is not an ordinary case. 

While Mrs. Lessard may or may not suffer from a “disability”

that requires accommodation under the ADA, it would certainly

seem that she does suffer from deficiencies that likely

prejudiced her ability to adequately represent the interests of

her daughter (at the due process hearing, neither Mrs. Lessard

nor her daughter was represented by counsel). And, because the

goal of this process is to ensure that the plaintiffs’ daughter

receives an appropriate IEP, the court will, in the exercise of

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its discretion, allow plaintiffs’ to supplement the record with

testimony from Mrs. Lessard and Dr. Kemper. 

Conclusion

Plaintiffs’ motion for an evidentiary hearing to supplement

the administrative record (document no. 50) is granted. The

Clerk of Court shall schedule a two hour hearing on a date

agreeable to the parties. 

Counsel are reminded that, as noted above, the court’s

inquiry in this case is focused on two questions: (1) whether the

parties complied with the procedural requirements of the IDEA;

and (2) whether the IEP developed through that process was

reasonably calculated to enable the Lessard’s daughter to receive

some educational benefits. Counsel will, then, be expected to

introduce or proffer evidence relevant to those two inquiries and

not cumulative of what already exists in the record. 

Additionally, the parties should be prepared to discuss whether

it is appropriate to sever from this IDEA case the claim advanced

by Mrs. Lessard that she was entitled to, but denied, reasonable

accommodation under the ADA. 

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SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

September 11, 2006

cc: Jennifer A. Eber, Esq.

Richard L. O’Meara, Esq.

Pamela E. Phelan, Esq.

Jeanne M. Kincaid, Esq.

Karen A. Schlitzer, Esq.

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