Academic journal article Texas Journal on Civil Liberties & Civil Rights

"Additional Evidence" under the Individuals with Disabilities Education Act: The Need for Rigor

Academic journal article Texas Journal on Civil Liberties & Civil Rights

"Additional Evidence" under the Individuals with Disabilities Education Act: The Need for Rigor

Article excerpt

The Individuals with Disabilities Education Act (IDEA),1 originally passed by Congress in 1975 as the Education of All Handicapped Children Act, was enacted to "ensure that all handicapped children have available to them a free appropriate public education" (FAPE).2 A pair of federal lower court rulings3 contributed to Congress' formulation and design of the Act.4 The IDEA allows states to receive federal funds to educate students with disabilities if state educational programs comply with the Act's requirements.5 Local school districts must provide FAPE in conformity with the required elements of an individualized educational program (IEP)6 to students who meet the eligibility requirements of the Act.7 School officials working in conjunction with parents create the IEP for the student8 by assessing current levels of performance, developing goals and objectives, and determining appropriate services.9

As its cornerstone, the IDEA provides parents with a set of procedural safeguards, including as the foundation, a due process hearing by an impartial hearing officer, followed by a right to judicial review to resolve disputes about eligibility, appropriateness, or any other issue under the IDEA.10 Individual states can choose to implement either a one-tier system of local administrative dispute resolution, or a two-tier administrative system in which the second tier is the state-level review of the local-level hearing officer's decision.11 If not satisfied with the final administrative decision, the losing party can bring a civil action in an appropriate state or federal court for judicial review.12 In such cases, the IDEA specifies that the court "shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate."13

While the IDEA sets guidelines for the courts in reviewing administrative proceedings, a key issue remains unsettled. Should the phrase "additional evidence"14 in this context be construed as establishing a relaxed standard or, instead, a standard that strictly limits the parties' ability to present additional evidence? In the absence of clear guidance in the IDEA and its legislative history concerning the appropriate construction of the phrase,15 the courts have taken different, conflicting, and often haphazard approaches to admitting additional evidence during the IDEA judicial review.

The purpose of this Article is to canvass the approaches taken by the courts in admitting or excluding additional evidence during the IDEA judicial review16 and to formulate a consistent, coherent, and appropriate standard for guiding the courts and, to whatever extent appropriate, Congress. The first part of this Article reviews the concepts that are related to, and sometimes confused with, the issue of additional evidence. The second part presents a systematic and exhaustive overview of the continuum of approaches applied by the courts in construing IDEA'S additional evidence clause. Finally, the third part recommends an interpretation of "additional evidence" for adoption by the courts or Congress.


There are several concepts related to additional evidence that courts discuss and sometimes confuse in their justification for admitting or denying additional evidence under the IDEA.17 While these concepts are not the main focus of this article, they are briefly described to show their relationship to and distinction from the issue of additional evidence.

First, the standard of judicial review refers to the degree of deference that courts accord to the findings and conclusions of the administrative proceedings in a case. Pointing out a widespread confusion, one commentator has correctly cautioned that the standard of judicial review "should never be mistaken for . . . evidentiary directives,"18 such as the quantum and burden of proof or the standard for admission of additional evidence. …

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