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Univ. of South Carolina School of Law

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Saturday, June 28, 2008

Unsettling Decision: D.C. Court Finds Resolution Meeting Doesn't Trigger Rule 408 In IDEA Action

The recent opinion of the United States District Court for the District of Columbia in Friendship Edison Public Charter School Chamberlin Campus v. Smith, 2008 WL 2513900 (D.D.C. 2008), seems to me to contain a woefully misguided interpretation of Federal Rule of Evidence 408.  Here were the basic facts of Smith:

Friendship Edison Public Charter School ("FEPCS"), is a D.C. public charter school which elected to be its own Local Education Agency ("LEA") pursuant to the Individuals with Disabilities Education Act ("IDEA"), for special education issues.  Meanwhile, Ebony Smith is the legal guardian of L. S., her ten-year old son, who attended FEPCS during the 2004-05 and 2005-06 school years.  In January 2005, Smith submitted to FEPCS a written request to have L.S. evaluated for eligibility to receive special education services.  On July 15, 2005, Smith filed an Administrative Due Process Complaint alleging that, inter alia, FEPCS failed to timely evaluate L.S., and requested independent evaluations and compensatory education.

On July 28, 2005, FEPCS sent a letter to Smith requesting consent to evaluate L. S., but never received a response, and the parties later convened for a "resolution meeting" on August 2, 2005. It was undisputed that during the resolution meeting, FEPCS informed Smith that if she consented, the requested evaluations would be completed within thirty days and a Multi-disciplinary Team (“MDT”) eligibility meeting for L.S. would be conducted.  FEPCS also informed Defendants that if the evaluations were not completed by September 2, 2005, FEPCS would fund independent evaluations for L.S.  Smith, however, rejected the offer and continued to request independent testing for L.S., leading to a Due Process Hearing, where Smith's counsel moved to exclude documentary evidence regarding the resolution session and FEPCS' offer of settlement from the administrative record.

The Hearing Officer agreed and refused to allow into evidence the notes from the resolution meeting or any testimony regarding the resolution meeting, stating that the resolution session was a settlement discussion. The Hearing Officer thereafter found that FEPCS' "actions, or inactions...impeded the student's right to a [free appropriate public education]" and ordered FEPCS to fund independent evaluations.  Instead, FEPCS appealed to the United States District Court for the District of Columbia.

And that court relied upon its prior opinion in Davis v. District of Columbia, 2006 WL 3917779 (D.D.C. 2006), in finding that the Hearing Officer erred.  In Davis, the court found that:

Rule 408 does not apply in this case because the resolution meeting was not a settlement negotiation.  Section 1415 of IDEA states that the purpose of a resolution meeting is to resolve the complaint before the hearing; however, no provision of that statute suggests that the information disclosed during the meeting will be kept confidential....The Defendants never held the resolution meeting out as a settlement negotiation, and Plaintiff had no reasonable expectation that believe the resolution meeting would be confidential."

There is, however, a gaping hole in the court's logic.  And that hole is that Federal Rule of Evidence 408 never mentions the word "settlement negotiation."  Here is the entire text of Rule 408:

     "(a) Prohibited uses.—Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

          (1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and

          (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

     Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice ; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution."

In other words, the court should have been focused on whether FEPCS offered or promised to furnish a valuable consideration in attempting to compromise Smith's claim.  And isn't that exactly what FEPCS did?  It offered to complete the requested evaluations by or certain date or fund independent evaluations.  And according to the court and Section 1415 of IDEA, the purpose of the "resolution meeting" was to resolve Smith's complaint. Thus, the court should have found that FEPCS' offer was inadmissible under Federal Rule of Evidence 408See, e.g., United States v. Arias, 431 F.3d 1327 (11th Cir. 2005).   

Furthermore, even if the court was correct in finding that Federal Rule of Evidence 408 applies solely to "settlement negotiations," its reasoning for why the "resolution meeting" was not a "settlement negotiation" would be unavailing.  It focused on the fact that there was no expectation of confidentiality in the meeting, but as I have noted, this factor is irrelevant to the Rule 408 calculus.

-CM

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Comments

Seems to me the threshold question is for what purpose were the notes offered. If they were not offered for a purpose listed in (a), 408 should not prohibit them.

Posted by: Michael Terry | Jul 6, 2008 9:04:10 AM

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