Magistrate Judge De Marchi of the Northern District of California issued an order yesterday in NN v. MOUNTAIN VIEW-LOS ALTOS UNION
HIGH SCHOOL DISTRICT. 

In this order, the court considered whether to allow an expert who testified at an administrative special education hearing to provide additional testimony during the federal court appeal of the administrative decision. During the administrative hearing, the administrative law judge prohibited the student’s expert witness from testifying on certain subjects, citing the California Evidence Code.

Judge De Marchi rules that the California Evidence Code doesn’t apply, and since the evidence the expert proposes to give is not cumulative, he allows it (he also disallows certain cumulative topics). Importantly, he says it doesn’t matter whether the expert could have or should have testified on those topics at hearing.

More importantly in my mind is that he stresses that the Court is responsible for ensuring that state law does not result in children and parents having less rights than they are guaranteed under federal law. And because of that, ALJs err when the apply California evidence rules that are more restrictive than federal rules!