Giron v. School District 49

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 25–cv–00812–NYW–MDB
J.G., a minor, by and through his parent Christina Giron,
Plaintiff,
v.
School District 49,
Defendant.
ORDER
This matter is before the Court on Plaintiff’s Motion to Submit Additional Evidence.
([“Motion”], Doc. No. 16.) Defendant filed a response, to which Plaintiff replied. ([“Response”],
Doc. No. 25; [“Reply”], Doc. No. 28.) After careful consideration, the Court GRANTS the
Motion.
BACKGROUND
This is an appeal of an administrative due process hearing, brought under the Individuals
with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(i)(2). (See generally Doc. No. 1.)
Factual Background
Plaintiff J.G. is a 10-year-old student who has been enrolled in the Defendant District
since August 2020. (Id. at ¶ 7.) He attended Inspiration View Elementary School (“IVES”) from
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kindergarten to second grade. (Id. at ¶¶ 9-10.) Plaintiff was diagnosed with dyslexia and ADHD
in October 2022, (id. at ¶¶ 1; 55; 61), but he alleges that manifestations of his disability—
including trouble with reading, math, and paying attention—were known to Defendant as early
as August 2021, (see generally id. at ¶¶ 15-43). Plaintiff also alleges that despite multiple
requests from Plaintiff’s mother, Ms. Giron—Defendant did not conduct a special education
evaluation until March 2023. (Id. at ¶¶ 27; 46-48; 57-59; 69.)
According to Plaintiff, Defendant only evaluated him after Ms. Giron filed a complaint
with the Office of Civil Rights. (Id. at ¶ 70.) Moreover, Plaintiff claims Defendant limited Ms.
Giron’s ability to communicate with Plaintiff’s teachers, and restricted access to Plaintiff’s
records in retaliation for filing a civil rights complaint. (Id. at ¶¶ 169; 177.) And though
Defendant put an Individualized Education Program (“IEP”)1 in place in April 2023, Plaintiff
alleges it only addressed Plaintiff’s dyslexia and not his ADHD-related needs. (Id. at ¶ 73.)
Plaintiff began attending the Academy for Literacy, Learning, & Innovation Excellence
(“ALLIES”)—a District school focused on helping dyslexic students—as a third grader in
August 2023. (Id. at ¶ 78; Doc. No. 25 at 2.) Plaintiff alleges his literacy improved because he
was on an IEP, but he continued to struggle with attention issues. (Id. at ¶ 79.) It appears Plaintiff
was placed on two other IEPs—one in November 2023, and another in November 2024. (Doc.
No. 25 at 2-3.)
Procedural History
1 An IEP is a written statement of the child’s present levels of educational performance, including how the
child’s disability affects his involvement and progress in the general curriculum, a statement of
measurable annual goals and short-term objectives, a statement of special education services that are to be
provided to the child, and an explanation of the extent to which the child will not participate with non-
disabled students. 20 U.S.C. §§1401(14); 1414(d)(1)(A).
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Ms. Giron filed a due process complaint on behalf of Plaintiff on December 21, 2023,
alleging the District violated the IDEA and Colorado’s Exceptional Children’s Educational Act
(“CECEA”) by failing to provide Plaintiff with a free and appropriate public education
(“FAPE”)2 and engaging in procedural violations. (Id. at ¶ 80.)
Administrative Law Judge Tanya T. Light (“ALJ”) conducted a hearing on the matter
between October 8-11, 2024, and then issued an Order on December 20, 2024, dismissing all
claims and denying all requested relief. (Id. at ¶¶ 81-85.) The ALJ found the District did not fail
in its child find3 obligations nor did it fail to provide Plaintiff FAPE. (Id. at ¶ 86;
[“Administrative Record” or “AR”], Doc. No. 14 at 241.) The due process hearing and the ALJ’s
determination concerned both the April 2023 and the November 2023 IEPs, but not the
November 2024 IEP (which post-dated the ALJ’s hearing).
Plaintiff initiated this action on March 12, 2025, bringing eleven claims for relief4 under
the IDEA and Colorado state law. (See id. at ¶¶ 132-184.) Plaintiff argues the ALJ’s decision
should be reversed because her findings are contradicted by the record, (id. at ¶¶ 111-118), and
because the decision is based on misunderstandings of the IDEA statute of limitations and
hearsay rules. (See id. at ¶¶ 92-98; 104-106.)
2 Under the IDEA, the District is required to provide all disabled children within its boundaries a free and
appropriate public education (“FAPE”). 20 U.S.C. §1412(a)(1)(A). A FAPE consists of special education
and related services that meet the standards of the State educational agency and are provided in
conformance with an IEP. 20 U.S.C. §1401(9).
3 Child find is the affirmative, ongoing obligation of states and local districts to identify, locate, and
evaluate all children with disabilities residing within the jurisdiction who are in need of special education
and related services. 34 C.F.R. 300.111(a)(1)(i).
4 Plaintiff brings claims for denial of FAPE based on predetermination (i.e., making decisions without
parent input); failing to evaluate and create an IEP; denying Ms. Giron access to J.G.’s records; and
failing to provide Ms. Giron with required written notices. Plaintiff also alleges retaliation for filing a
complaint with the Office of Civil Rights. (See generally Doc. No. 1.)
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Plaintiff filed the instant Motion on June 26, 2025, seeking leave to submit additional
evidence of Plaintiff’s academic progress. This subsequent academic progress occurred under the
November 2024 IEP, not the April and November 2023 IEPs at issue during the ALJ’s hearing.
LEGAL STANDARD
The IDEA allows a party aggrieved by an administrative decision to “bring a civil action .
. . in a district court of the United States.” 20 U.S.C. § 1415(i)(2)(A). Pursuant to the IDEA,
district courts “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)(i)-(ii). The court’s
review of an ALJ’s decision is a modified de novo review, meaning the court must
“independently review the evidence contained in the administrative record, accept and review
additional evidence, if necessary, and make a decision based on the preponderance of the
evidence, while giving ‘due weight’ to the administrative proceedings below.” Murray v.
Montrose Cnty. Sch. Dist. RE-1J, 51 F.3d 921, 927 (10th Cir. 1995).
In Murray, the Tenth Circuit recognized a circuit split in interpreting the IDEA’s
requirement that a district court “shall hear additional evidence.” See id. at 931 n.15. Some
courts, including the First and Ninth Circuit, apply a restrictive approach—known as the
Burlington standard—and only permit evidence that is “supplemental” in nature. Id.; see also
Town of Burlington v. Dep’t of Educ., 736 F.2d 773 (1st Cir. 1984); Ojai Unified Sch. Dist. v.
Jackson, 4 F.3d 1467 (9th Cir. 1993). By contrast, the Sixth Circuit has adopted a broader view.
See Metro. Gov’t of Nashville & Davidson Cnty., Tenn. v. Cook, 915 F.2d 232, 234 (6th Cir.
1990).
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Although the Murray court did not resolve the circuit split, courts in this District apply
the Burlington standard. See, e.g., L.S. v. Calhan Sch. Dist. RJ-1, 2016 WL 541005, at *2 (D.
Colo. Feb. 11, 2016); see also L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 974 (10th Cir.
2004) (“Although the district court may accept additional evidence, such evidence is merely
supplemental to the administrative record.”) (citing Ojai, 4 F.3d at 1472-73).5
Under the Burlington standard, “additional evidence” means evidence that is
“supplemental to the administrative record.” L.B., 379 F.3d at 974; Burlington, 736 F.2d at 790
(“[T]he source of the evidence generally will be the administrative hearing record, with some
supplementation at trial.”). Though “[t]he reasons for supplementation will vary,” they may
include “gaps in the administrative transcript owing to mechanical failure, unavailability of a
witness, an improper exclusion of evidence by the administrative agency, and evidence
concerning relevant events occurring subsequent to the administrative hearing.” Burlington, 736
F.2d at 790.
Ultimately, “the district court has discretion to determine if such additional evidence is
necessary.” O’Toole v. Olathe Dist. Sch. Unified Sch. Dist. No. 233, 144 F.3d 692, 708 (10th Cir.
1998). However, the “court’s proceedings must maintain the character of review and not rise to
the level of a de novo trial.” L.B., 379 F.3d at 974.
ANALYSIS
Plaintiff seeks to admit evidence of his academic progress during his second year at
ALLIES (2024-2025). (Doc. No. 16 at 4-5.) When the ALJ determined that Defendant promptly
5 Plaintiff appears to concede that this more restrictive approach is the applicable standard here.
(See Doc. No. 28 at 2.)
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placed Plaintiff on an IEP in April 2023—and that the IEP was reasonably calculated to allow
Plaintiff to make appropriate progress—she relied, in part, on records from Plaintiff’s first year
at ALLIES. (AR at 242 (“[Plaintiff] began ALLIES at the start of the 2023-2024 school year, and
by all accounts, including Complainant’s, he is flourishing there.”).) Now, Plaintiff says
evidence from his second year at ALLIES is relevant because it paints a more robust picture of
his progress and demonstrates that prior to this, Defendant failed to fulfill FAPE requirements.
(See generally Doc. No. 16 at 5-6; Doc. No. 28 at 3-5.)
Defendant argues the evidence is irrelevant because the academic performance that
occurred post-hearing, under a new IEP (November 2024 IEP), is necessarily measured by
different educational standards than academic performance that occurred under the relevant IEPs
(April and November 2023) and at a different school, under different circumstances. (See Doc.
No. 25 at 9-11.) In other words, Plaintiff’s academic performance after the due process hearing,
and after the latest IEP was issued, has no bearing on whether Defendant fulfilled its FAPE
obligations long before that. Defendant also notes that courts often reject post-hearing evidence.
See, e.g., A.S. v. Trumbull Bd. of Educ., 414 F. Supp. 2d 152, 171 (D. Conn. 2006); Stanley C. v.
M.S.D. of Sw. Allen Cnty. Sch., 2008 WL 11504542, at *5 (N.D. Ind. Apr. 21, 2008); J.R. v. Bd.
of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y. 2004). Defendant also
argues that accepting this evidence would require foundational testimony and expert opinions,
and impermissibly convert the proceeding from a modified de novo review of an administrative
hearing, into a full trial de novo. (Doc. No. 25 at 15.)
Defendant’s arguments are well taken, but ultimately not persuasive. Burlington
expressly contemplates that in some instances post-hearing evidence may inform a court’s
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limited review of an ALJ’s decision. See Burlington, 736 F.2d at 790 (stating that while “[t]he
reasons for supplementation will vary ... they may include … evidence concerning relevant
events occurring subsequent to the administrative hearing”). Here, evidence of high academic
performance during Plaintiff’s second year at ALLIES, is relevant to show that prior low
performance may have been due to the deprivation of FAPE. A similar argument was persuasive
to the Honorable Susan B. Prose. See K.C. by & through Clements v. Denver Pub. Sch., 2025
WL 1918116, at *3 (D. Colo. July 10, 2025) (finding that “subsequent academic performance
while receiving special education services is relevant to [the] argument that the District failed to
provide him with FAPE.”) And while the Court is not bound by the K.C. decision, Judge Prose’s
reasoning was legally sound, well-reasoned, and persuasive.
Moreover, Plaintiff’s arguments in this case are more compelling than in K.C., because
here, the ALJ already considered evidence of academic progress. (See Doc. No. 25 at 3 (citing
the record to demonstrate that “[d]uring the DP Hearing, IEP progress reports from May 2023,
October 2023, December 2023, March 2024, and May 2024 were admitted into evidence and
explained by service providers in detail.”)). Cf. K.C. by & through Clements, 2025 WL 1918116,
at *3 (“While the District argues that the proffered evidence would not be probative because
there is already evidence of K.C.’s progress at his new school ... the District does not identify
this preexisting evidence.”). If evidence of academic progress is already part of the record, then
additional evidence of academic progress is truly “supplemental” and does not convert this into a
full de novo review. And although the supplemental evidence is somewhat cumulative,
supplemental evidence is—by definition—always cumulative to some extent. Moreover, this
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particular evidence is not needlessly cumulative, and it is not so cumulative that it outweighs the
probative value.6
As to Defendant’s concern that expert testimony will be necessary and expand the scope
of the hearing—its arguments are overstated and unsupported. The evidence of Plaintiff’s
academic progress does not appear to require expert analysis or interpretation. Nor does
Defendant explain how an expert would add value, or why a layperson is incapable of
interpreting the information. (See Doc. 25 at 10, 15.) Indeed, academic records are regularly
interpreted by laypeople (e.g., students and parents), and Plaintiff has committed himself to the
position that expert witnesses are not necessary. He states, the exhibits and results “are easily
interpretable,” “produced for lay persons,” and “not so complicated that only an expert can
interpret them.” (Doc. No. 28 at 8-10.) Because the evidence does not require expert testimony,
and because Plaintiff will not seek it here, Defendant’s arguments concerning expert work are
unpersuasive.
In sum, the additional evidence is relevant, supplemental, and its inclusion will not
change the character of review. This conclusion rests, in part, on Plaintiff’s proffer that he will
not use the evidence “to show that Defendant violated its child-find duty, but to show that
Defendant denied J.G. FAPE.” (Doc. No. 28 at 4). This is an important limitation. Using the
evidence to argue what Defendant should have known prior to the November 2024 IEP, or to
6 Also, the Court sees no prejudice to Defendant, who admits the evidence would be helpful to it.
(Doc. No. 25 at 10 (“Although helpful to Defendant, the proposed exhibits purportedly showing
‘substantial’ progress on his revised IEP goals and objectives of the November 15, 2024 IEP are
not relevant to the Respondent’s child find obligation and of little to no probative value
regarding the already demonstrated and stipulated to adequacy of the April 7, 2023 or November
28, 2023, IEP’s.”)
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make the November 2024 IEP the gold standard, runs the risk of “Monday-morning
quarterbacking” that Defendant rightfully warns against. (See Doc. No. 25 at 9.)7
CONCLUSION
For the foregoing reasons, the Court ORDERS that Plaintiff’s Motion to Submit
Additional Evidence (Doc. No. 16) is GRANTED.
Dated this 10th day of November, 2025.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
7 Because Plaintiff’s reliance on the supplemental evidence is limited, there is no need to admit
the November 2024 IEP, as Defendant contends. (See Doc. No. 25 at 10.) Plaintiff can argue that
his progress in 2024-2025—as compared with the lack of progress in prior years—is evidence
that Plaintiff was previously deprived of FAPE. But that argument can be made without
reference to the November 2024 IEP, and without impermissibly expanding the scope of the
court’s review.
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