The “Retrospective Testimony” Rule
by Bill Crane, Esq.
Bill Crane is Of Counsel to Massachusetts Advocates for Children. He works with other MAC attorneys on systemic special education issues, consults to attorneys representing low-income parents and students in special education disputes, and writes occasional postings for the MAC blog.
Bill was a Hearing Officer at the Bureau of Special Education Appeals from 1999 to 2014.
This is the third of what will be a (more or less) monthly posting on special education law and practice. In the September posting, I reviewed the United States Supreme Court’s decisions pertaining to special education. In the October posting, I gave an overview of First Circuit special education decisions.
In this posting, I discuss the “retrospective testimony” rule. Retrospective testimony refers to testimony (in a BSEA proceeding or court appeal) that certain educational services not listed in the IEP would actually have been provided to the child if he or she had attended the school district’s proposed placement. Retrospective testimony is sometimes offered by a school district to overcome deficiencies in the IEP.
For example, assume that the speech-language services proposed in an IEP would, by themselves, be insufficient. The school district calls the classroom teacher as a witness and she testifies that she provides frequent language instruction in the form of gestures, picture symbols, and sign language. The speech-language pathologist further testifies that the proposed speech-language services would be appropriate because of this additional language instruction by the teacher. The teacher’s language instruction is not found within the IEP but is nevertheless utilized to overcome the inadequacies of the IEP’s proposed speech-language services. The teacher’s testimony would be retrospective testimony.
In a series of decisions beginning with R.E. v. New York City Department of Education, 694 F.3d 167 (2d Cir. 2012), cert. denied,133 S.Ct. 2802 (2013), the Second Circuit Court of Appeals adopted a rule generally precluding retrospective testimony when parents have unilaterally placed their son or daughter and are challenging the appropriateness of the proposed IEP for purposes of a reimbursement claim. The Court explained that where parents must choose whether to accept the school district’s proposed IEP or place the student elsewhere, “they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents.” By precluding retrospective testimony, the Court sought to avoid the situation where “a school district could create an IEP that was materially defective, causing the parents to justifiably effect a private placement, and then defeat the parents’ reimbursement claim at a Burlington/Carter hearing with evidence that effectively amends or fixes the IEP by showing that the child would, in practice, have received the missing services.” R.E., 694 F.3d at 186.
At the same time, the Court rejected a rigid “four corners” rule that would prohibit any testimony that goes beyond the face of the IEP. The Court explained: “While testimony that materially alters the written plan is not permitted, testimony may be received that explains or justifies the services listed in the IEP.” R.E., 694 F.3d at 186. The Court clarified its position through the following illustrative examples.
If an IEP were to state that a specific teaching method will be used to instruct a student, the school district may introduce testimony at a hearing to describe that teaching method and explain why it was appropriate for the student. The district, however, may not introduce testimony that a different teaching method, not mentioned in the IEP, would have been used. Similarly, if a student were offered a staffing ratio of 6:1, a school district may introduce evidence explaining how this structure operates and why it is appropriate. It may not introduce evidence that modifies this staffing ratio, such as testimony from a teacher that he would have provided extensive 1:1 instruction to the student. See R.E., 694 F.3d at 186-187.
Similarly, the Court explained that the school district may not rely on evidence that a child would have had a specific teacher or specific aide. The Court stated: “At the time the parents must decide whether to make a unilateral placement based on the IEP, they may have no guarantee of any particular teacher. Indeed, even the Department cannot guarantee that a particular teacher or aide will not quit or become otherwise unavailable for the upcoming school year. Thus, it is error to find that a FAPE was provided because a specific teacher would have been assigned or because of actions that specific teacher would have taken beyond what was listed in the IEP. The appropriate inquiry is into the nature of the program actually offered in the written plan.” See R.E., 694 F.3d at 186-187.
The Second Circuit believes that its adoption of the retrospective testimony doctrine is the “majority view” because the following Circuit Court decisions have held that an IEP should be evaluated prospectively as of the time of its drafting: Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999) (“we examine the adequacy of [the IEPs] at the time the plans were drafted”); Carlisle Area Sch. v. Scott P., 62 F.3d 520, 530 (3d Cir. 1995) (holding that an IEP must be judged prospectively from the time of its drafting); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990) (“[A]ctions of school systems cannot … be judged exclusively in hindsight. An IEP is a snapshot, not a retrospective.”). See R.E., 694 F.3d at 186.
It should be noted, however, that although the Second Circuit identifies the First Circuit as in accord with its view, the First Circuit has not explicitly considered or adopted the retrospective testimony (or four corners) rule. See C.G. ex rel. A.S. v. Five Town Community School Dist., 513 F.3d 279, 285 (1st Cir. 2008) (“this circuit has yet to decide whether or not to adopt the four corners rule”). Nevertheless, practitioners in Massachusetts may make a strong argument, based upon the Second Circuit reasoning and the First Circuit’s decision in Roland M, that a rule barring retrospective testimony should apply in BSEA proceedings and court appeals regarding unilateral placement/reimbursement claims.
The flip side of the retrospective testimony rule is that in defending the appropriateness of its IEP for purposes of a reimbursement or compensatory services claim, a school district is entitled to have the appropriateness of its IEP considered within the context of what was known (or reasonably should have been known) by the IEP Team when it proposed the IEP. See Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990). This does not necessarily preclude evidence of a student’s progress or other events subsequent to the Team meeting, but a BSEA Hearing Officer or court “should use evidence acquired subsequently to the creation of an IEP only to evaluate the reasonableness of the school district’s decisions at the time they were made.” D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564–565 (3d Cir.2010).
 Subsequent Second Circuit decisions include Reyes ex rel. R.P. v. New York City Dept. of Educ., 760 F.3d 211 (2nd Cir. 2014); P.K. ex rel. S.K. v. New York City Dept. of Educ., 526 Fed.Appx. 135, 2013 WL 2158587 (2nd Cir. 2013).
Bill’s Previous Postings: