Clements v. Denver Public Schools

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-02782-DDD-SBP
K.C., a minor, by and through his mother Mia Clements,
Plaintiff,
v.
DENVER PUBLIC SCHOOLS,
Defendant.
ORDER OF UNITED STATES MAGISTRATE JUDGE
Susan Prose, United States Magistrate Judge
This matter comes before the court on Defendant Denver Public Schools (the “District”)’s
Motion to Supplement/Submit Additional Evidence (“Motion”). ECF No. 43. Plaintiff K.C.
(“Plaintiff”) filed a response opposing the Motion (“Response”) through his mother, Mia
Clements. ECF No. 44. The District filed a reply (“Reply”). ECF No. 47. Having now reviewed
the Motion, the evidence in support of the Motion, and the applicable law, for the following
reasons, this court respectfully GRANTS the Motion.
I. 	ANALYSIS
For the facts relevant to this Motion, the court refers to the facts set forth within the
court’s order on Plaintiff’s previous Motion to Submit Additional Evidence at ECF No. 31.
Here, the District moves to submit additional evidence in the form of a due process
complaint Plaintiff made on October 25, 2025 on behalf of K.C. against the Cherry Creek School
District (“CCSD”). The District argues that this evidence is relevant because allegations made in
the due process complaint contradict and conflict with arguments that Plaintiff has made in the
present matter. Plaintiff responds that the due process complaint is “irrelevant” to these
proceedings and argues that because merits briefing has already been completed, admitting the
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due process complaint would “unnecessarily multiply these proceedings and waste the parties’
and judicial resources.”
As discussed in the court’s order at ECF No. 31, and as the parties acknowledge, the
standard enunciated in Burlington v. Dep’t of Education, 736 F.2d 773, 791 (1st Cir. 1984), aff’d
on other grounds, 471 U.S. 359 (1985), applies in these circumstances and allows for the admis-
sion of “additional evidence.” Under the Burlington standard, “additional evidence” means evi-
dence that “is merely supplemental to the administrative record.” L.B. v. Nebo Sch. Dist., 379
F.3d 966, 974 (10th Cir. 2004). The reasons for permitting supplementation vary, but have in-
cluded “evidence concerning relevant events occurring subsequent to the administrative hear-
ing.” Murray By & Through Murray v. Montrose Cnty. Sch. Dist. RE-1J, 51 F.3d 921, 931 (10th
Cir. 1995) (quoting Burlington, 736 F.2d at 790); see L.S. v. Calhan Sch. Dist. RJ-1, No. 15-cv-
00426-LTB-MJW, 2016 WL 541005, at *2 (D. Colo. Feb. 11, 2016) (such evidence provides an
“exemplary reason” to allow the admission of such evidence). Burlington lays out factors to be
considered in determining whether the proffered evidence is “supplemental” in nature, including:
“the important concerns of not allowing a party to undercut the statutory rule of administrative
expertise, the unfairness involved in one party’s reserving its best evidence for trial, the reason
the witness did not testify at the administrative hearing, and the conservation of judicial re-
sources.” Burlington, 736 F.2d at 791. Ultimately, “the district court has discretion to determine
if such additional evidence is necessary.” O'Toole By & Through O'Toole v. Olathe Dist. Schs.
Unified Sch. Dist. No. 233, 144 F.3d 692, 708 (10th Cir. 1998).
First, Plaintiff claims that just because Plaintiff argued in the due process complaint that
K.C.’s treatment at CCSD was “ineffective” does not mean that K.C. did not “improve” to at
least some degree in relevant areas, stating that “K.C.’s continued success or failure at CCSD
does not control whether he showed improvement, relative to himself, after receiving special
education.” While the court agrees that it is possible that K.C. improved to some degree even if
his treatment was “ineffective,” Plaintiff appears to imply that the degree of K.C.’s improvement
is not relevant so long as K.C. showed any level of improvement. This is clearly not the case; for
instance, if K.C.’s improvement with the support of special education was merely negligible, this
could ultimately serve to undermine Plaintiff’s claims. The District compellingly argues that the
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due process complaint may support the notion that Plaintiff has argued elsewhere that any
improvement by K.C. was negligible, and the court finds the due process complaint to be
probative of this relevant issue.
Relatedly, despite Plaintiff’s arguments otherwise, the District has sufficiently stated why
it believes the proffered evidence contradicts the facts or circumstances that Plaintiff alleges
here. The District has explained that in this matter, Plaintiff has at least arguably asserted that
K.C. improved his writing while at CCSD and that his social and emotional functioning also
improved while at CCSD, while in the due process complaint, Plaintiff at least arguably asserted
that K.C. experienced regression in all areas while at CCSD and that his social and emotional
well-being deteriorated as well. Plaintiff argues in response that just because Plaintiff argued in
the due process complaint that K.C.’s treatment at CCSD was “ineffective” does not mean that
K.C. did not improve in relevant areas. While the court agrees that, in theory, it is possible that
K.C. improved despite Plaintiff’s past assertions regarding CCSD, the court nonetheless finds
that the due process complaint is probative of the issue of whether Plaintiff has argued elsewhere
that K.C. did not show significant improvement in any area, which is a relevant issue here.
Plaintiff also argues that because the due process complaint contains no “facts,” but
merely Plaintiff’s allegations against CCSD, and because no court had reached any finding as to
her allegations, her due process complaint is not probative of the facts here. Plaintiff cites no
point of law in support of the proposition that arguments contained within a legal filing, or
indeed within any document, cannot provide relevant or probative evidence. While it is true that
Plaintiff’s allegations in the due process complaint are merely her assertions and that the due
process complaint does not in and of itself grant the substance underlying those assertions the
weight of fact, it is nonetheless a fact that Plaintiff made these assertions, thus arguably
demonstrating that multiple interpretations of the evidence at issue are possible and potentially
going to the issue of whether, as the District claims, “Plaintiff has selectively interpreted the
same documents to meet different ends against different school districts.”
Plaintiff further argues that admitting the evidence at issue would unfairly and
unnecessarily multiply judicial proceedings. As the court noted in ruling on Plaintiff’s prior
motion to submit additional evidence, both the District and K.C. will have further opportunities
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to contextualize evidence proffered in this matter; the court finds that the evidence proffered here
helps to clarify the evidence already before the court rather than imposing a significant burden
upon either the court or the parties. The court does not find that it needs to reach “additional
factual findings” regarding the allegations in the due process complaint, as Plaintiff claims; the
District has not offered the due process complaint in order for the court to evaluate the truth of
the allegations therein, and the court need not do so. At this time, the court also does not find that
it requires “supplemental briefing” as to the due process complaint, as Plaintiff claims. And even
if supplemental briefing ultimately proves to be necessary here, Plaintiff’s assertion that
supplemental briefing would be a “waste” rests on the assumption that the due process complaint
is “irrelevant.” The court does not consider the due process complaint to be irrelevant, and
accordingly disagrees with Plaintiff.
Finally, Plaintiff argues that the District’s Motion is untimely, but Plaintiff acknowledges
that the due process complaint was not filed until ten months after the deadline for motions for
additional evidence in this matter and that the District filed this motion for additional evidence
within a month of learning of the due process complaint. Accordingly, the court does not
consider the Motion to be untimely, and Plaintiff has proffered no point of law that might cause
the court to hold otherwise.
Accordingly, the court agrees with the District that the due process complaint constitutes
additional evidence concerning relevant events occurring subsequent to the administrative
hearing, and accordingly, grants the District’s Motion pursuant to the Burlington standard. The
proffered evidence may be submitted and accepted by the court as supplemental evidence
pursuant to 20 U.S.C. § 1415(i)(2)(C).
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II. 	CONCLUSION
For the reasons set forth above, the court respectfully GRANTS the District’s Motion.1
DATED: January 26, 2026 	BY THE COURT:
______________________________
Susan Prose
United States Magistrate Judge
1 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C.
§§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection will result in
a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See Sinclair Wyo.
Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to
non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir.
2005) (firm waiver rule does not apply when the interests of justice require review, including when
a “pro se litigant has not been informed of the time period for objecting and the consequences of
failing to object”).
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