California OAH special education order · February 4, 2013
Order Following Prehearing Conference
OAH Case No. 2012060426 · ALJ Charles Marson
OAH partly granted District's motion to limit references to a preschool teacher accused of physical abuse. Parties must first get an advance ruling on an offer of proof before eliciting testimony about the teacher.
This case went to decision
Student v. Redwood City School District: Redwood City School District prevails; ALJ finds privately placed first grader was not eligible for special education in any claimed category. (2013)
Summary
At the prehearing conference, the District moved to limit any reference at hearing to a particular preschool teacher against whom physical abuse allegations had been made. The ALJ granted the motion in part. Neither party may intentionally draw out testimony about that teacher unless it first wins a ruling on an offer of proof, made outside the presence of most witnesses. The order also set a two-and-a-half-day hearing on whether the District denied Student a FAPE from June 7, 2012, by failing to find her eligible under SLD, SLI, ED, and OHI. It required tentative witness lists with time estimates because of the large number of witnesses and opened the hearing to the public at Parents' request.
Why it matters
Sensitive allegations about staff, such as abuse by a teacher, may be screened through an offer-of-proof process rather than barred outright, so parents should be ready to explain exactly what they plan to ask and why it matters. ALJs may also limit witnesses when long witness lists do not fit the scheduled hearing days.
Key authority cited
- Ed. Code, § 56505, subd. (e)(7)
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2012060426
v. ORDER FOLLOWING PREHEARING
CONFERENCE
REDWOOD CITY SCHOOL DISTRICT.
On February 4, 2013, a telephonic prehearing conference (PHC) was held before Administrative Law Judge (ALJ) Charles Marson, Office of Administrative Hearings (OAH). Susan Foley, Attorney at Law, appeared on behalf of Student. Claire A.
Cunningham, Attorney at Law, appeared on behalf of the Redwood City School District (District). The PHC was recorded.
Based on discussion with the parties, the ALJ issues the following order:
1. Hearing Dates, Times, and Location. The hearing shall take place at
Redwood City School District, 750 Bradford St., Redwood City, California 94063, on February 11, 12, and 14, 2013. On February 11, 2013, the hearing shall begin at 1:30 p.m.
and end at 5:00 p.m., and on the remaining days the hearing shall begin at 9:00 a.m. and end at 5:00 p.m., unless otherwise ordered.
The parties shall immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses if necessary, to ensure that the witnesses will be available to testify.
A witness will not be regarded as unavailable for purposes of showing good cause to continue the hearing if the witness is not properly notified of the hearing date or properly subpoenaed, as applicable.
2. Issue and Proposed Resolutions.
A. Did the District deny Student a free appropriate public education (FAPE) from June 7, 2012, to the present by failing to identify her as eligible for special education and related services in the categories of specific learning disability (SLD), speech-language impairment (SLI), emotional disturbance (ED) and other health impaired (OHI)? B. Is Student entitled to an order declaring her eligible for special education and related services in the categories of SLD, SLI, ED and OHI from June 7, 2012 to the present, and ordering the District to provide her compensatory education and to reimburse Parents for all educational expenses they have incurred as the result of the District’s alleged denial of FAPE?
3. Exhibits. Exhibits shall be pre-marked and placed in three-ring exhibit
binders prior to the hearing. The parties shall use numbers to identify exhibits in a way that makes clear the party offering it (such as “S1” or “D2”). Each exhibit shall be internally paginated, by exhibit, or all of a party’s exhibits shall be Bates-stamped. Each exhibit binder shall contain a detailed table of contents. Each party shall serve an exhibit binder containing its respective exhibits on the other party by 5:00 p.m. on February 4, 2013, in compliance with Education Code section 56505, subdivision (e)(7). At the hearing, each party shall supply an exhibit binder containing its exhibits for use by the ALJ, and a second exhibit binder for use by witnesses. The parties may not serve exhibits on OAH prior to the hearing.
In the event of duplicate exhibits, the most legible version will be used.
Except for good cause shown, or unless used solely for rebuttal or impeachment, any exhibit not included in the exhibit lists and not previously exchanged shall not be admitted into evidence at the hearing unless it is supported by written declaration under penalty of perjury, and the ALJ rules that it is admissible.
4. Witnesses.
a) Each party is responsible for procuring the attendance at hearing of its own witnesses. Each party shall make witnesses under its control reasonably available to the other party. The parties shall schedule their witnesses to avoid delays in the hearing and to minimize or eliminate the need for calling witnesses twice or out of order. Neither party shall be permitted to call any witnesses not disclosed in the party’s prehearing conference statement and listed below, except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the ALJ.
b) Student has identified 10 witnesses to be called at the hearing, and the District has identified 11 witnesses. Only one of the proposed witnesses appears on both witness lists. In light of the fact that two and one half days have been scheduled for the hearing, examination of the number of witnesses proposed would make it difficult to complete the hearing as scheduled. Therefore, at the beginning of the hearing, each party shall serve on the other party and on OAH a tentative witness list, identifying the witnesses the party intends to call, as opposed to witnesses the party may call depending on the flow of the hearing and the evidence. Each revised witness list shall contain an estimate of the length of each witness’s direct examination testimony. Prior to the commencement of the due process hearing, the ALJ and the parties will discuss the length of time anticipated for cross-examination of each witness and scheduling issues for individual witnesses, and the ALJ will finalize the witness schedule. The ALJ has discretion to limit the number of witnesses who testify and the time allowed for their testimony.
5. Scope of Witness Examination. After the first direct and cross-examinations,
each party shall be limited in examining the witness to only those matters raised in the immediately preceding examination. The order in which the parties present their cases in chief shall be subordinate to the need for each witness to appear only once, so the parties shall be required to establish their cases in chief during the first appearance of a witness.
6. Telephonic Testimony. At present no party intends to present a witness by
telephone, although Student may make such a motion in the near future concerning a witness who has moved to Georgia. A party seeking to present a witness by telephone shall move in advance for leave to do so; shall provide the proposed witness with a complete set of exhibit binders from all parties, containing all of each party’s exhibits, prior to the hearing; and shall ensure that the hearing room has sound equipment that allows everyone in the room to hear the witness, and the witness to hear objections and rulings.
7. Electronic Recording of Hearing. At present no party intends to make an
audio recording of the hearing. Any party that desires to make such a recording shall apply for leave to do so in advance from the ALJ and shall do so only on the conditions 1) that OAH’s recording is the only official recording; 2) that the recording will be turned on and off at the same time the ALJ does, to avoid recording conversations while off the record; and 3)
that operation of the party’s recording mechanism will not be allowed to delay the hearing.
8. Motions.
a.) The District’s motion to limit reference to a particular preschool teacher against whom allegations of physical abuse have been made is granted in part.
Neither party shall intentionally elicit from a witness any reference to that teacher without obtaining in advance a favorable ruling on an offer of proof setting forth the nature of the questions to be asked and the expected responses. Any such offer of proof shall be made out of the presence of any potential witness other than Parents, Student, or the District’s Director of Special Education.
b.) At present no other prehearing motions are pending or contemplated.
Any motion filed after this date shall be supported by a declaration under penalty of perjury establishing good cause why the motion was not made prior to or during this prehearing conference.
9. Compensatory Education/Reimbursement. Any party seeking reimbursement
of expenditures shall present admissible evidence of these expenditures, or a stipulation to the amount of expenditures, as part of its case in chief. Any party seeking compensatory education shall provide evidence regarding the type, amount, duration, and need for any requested compensatory education.
10. Stipulations. Stipulations to pertinent facts, contentions or resolutions are
encouraged. Any proposed stipulation shall be submitted to the assigned ALJ in written form.
11. Conduct of Counsel and Hearing Room Decorum. Counsel, all parties, and all
witnesses shall conduct themselves in a professional and courteous manner at all times.
Cellular phones, pagers, recorders, and other noisemaking electronic devices shall be shut off or set to vibrate during the hearing unless permission to the contrary is obtained from the
ALJ.
12. Special Needs and Accommodations. At present neither party anticipates the
need for special accommodation for any witness or party, or for the services of an interpreter.
13. Hearing Open To the Public. At the request of Parents, the hearing will be
open to the public.
14. Settlement. The parties are encouraged to continue their attempts to reach an
agreement before the due process hearing. The parties shall inform OAH in writing immediately should they reach a settlement or otherwise resolve the dispute before the scheduled hearing. If a settlement is reached five days or fewer than five days before the due process hearing is scheduled to begin, the parties shall, in addition, immediately inform OAH of that fact by telephone at (916) 263-0880. IF A FULL AND FINAL SETTLEMENT IS
REACHED AFTER 5:00 P.M. THE DAY PRIOR TO HEARING, THE PARTIES SHALL
LEAVE A VOICEMAIL MESSAGE REGARDING THE SETTLEMENT AT (916) 274-
6035, AND SHALL ALSO LEAVE CELLULAR PHONE NUMBERS OF EACH PARTY
OR COUNSEL FOR EACH PARTY.
Dates for hearing will not be vacated until OAH receives a letter of withdrawal, or those portions of the signed agreement withdrawing the case, with signatures.
If an agreement in principle is reached, the parties should plan to attend the scheduled hearing unless different arrangements have been agreed upon by the assigned ALJ. The assigned ALJ will check for messages the evening prior to the hearing or the morning of the hearing.
15. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
IT IS SO ORDERED.
Dated: February 4, 2013 /s/
CHARLES MARSON
Administrative Law Judge Office of Administrative Hearings