California OAH special education order · March 8, 2013

Order Denying District's Motion to Vacate the Expedited Hearing

OAH Case No. 201302060 · ALJ Eileen M. Cohn

OAH denied District's motion to take Student's case off the expedited track. Student's complaint suggested District suspended him without holding a required manifestation determination, so the expedited hearing must proceed.

Denied Expedited hearings

Summary

District asked OAH to vacate the expedited part of Student's due process case. District argued that Student was not appealing a manifestation determination but was claiming that his suspensions denied him a FAPE. Student had not filed an opposition when the order issued. OAH denied the motion because Student's complaint, at a minimum, suggested that District avoided holding a manifestation determination meeting it should have held, and the exhibits did not show whether total suspensions were more or less than ten days. Expedited hearings are mandatory, so the expedited prehearing conference and hearing stay on calendar unless Student withdraws or narrows those discipline claims.

Why it matters

A complaint that alleges a district skipped a required manifestation determination before disciplining a student triggers an expedited hearing, and a district cannot easily move it to the regular track by recasting it as a FAPE claim. Only the student withdrawing or narrowing the discipline-related issues takes the case off the expedited track.

Key authority cited

  • 20 U.S.C. § 1415(k)(1)(E)
  • 34 C.F.R. § 300.530
  • 34 C.F.R. § 300.532(a)
  • 34 C.F.R. § 300.532(c)(2)
  • Ed. Code, § 56504.5, subd. (a)
  • Ed. Code, § 48915.5

Topics

expedited hearing manifestation determination suspension school discipline motion to unexpedite

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:

OAH CASE NO. 201302060

PARENT ON BEHALF OF STUDENT,

ORDER DENYING DISTRICT’S

v. MOTION TO VACATE THE

EXPEDITED HEARING

BASSETT UNIFIED SCHOOL DISTRICT.

On March 7, 2012, District filed a motion to vacate the expedited hearing portion of Student’s due process hearing request on the ground that Student was not appealing a manifestation determination, but was alleging that the District’s suspensions of Student denied him a free and appropriate public education (FAPE). Student did not file an opposition at the time of this Order.

Student’s complaint, at a minimum, suggests that District suspended him in violation of the IDEA by not following the required procedures to determine whether his conduct was a manifestation of his disability. Student’s pleadings suggest that the District avoided conducting a manifestation hearing, when it should have. Student did refer to exhibits in his complaint, but the exhibits alone did not establish whether the total annual suspensions were for more or less than ten days.

Suspension or expulsion of special education students is governed by title 20 United States Code section 1415(k) and title 34 Code of Federal Regulations, part 300.530 (2006) et seq. (See Ed. Code, § 48915.5.) A school district may only impose school discipline under limited circumstances, and a special education student may only be disciplined in the same way as non-disabled students if the school district has held a meeting to determine whether the conduct in question was a manifestation of the student’s disability. (20 U.S.C. § 1415(k)(1)(E).)

A parent of a child with a disability who disagrees with any decision by a school district regarding a change in educational placement of the child based upon a violation of a code of student conduct, or who disagrees with a manifestation determination conducted by the district, may request and is entitled to receive an expedited due process hearing. (34 C.F.R. § 300.532(a) (2006).) In such event, an expedited due process hearing before OAH must occur within 20 school days of the date the complaint requesting the hearing is filed. ( Ed. Code, § 56504.5, subd. (a); 34 C.F.R. § 300.532(c)(2) (2006).) The procedural right to an expedited due process hearing is mandatory and does not allow OAH to make exceptions or grant continuances of expedited matters. (34 C.F.R. § 300.532(c)(2).) In sum, a matter can only be unexpedited or continued if no issue is alleged related to school discipline or a manifestation determination meeting, or if the student withdraws the issues in the complaint that triggered the expedited hearing.

Contrary to District’s assertion that Student’s allegations can be determined as part of his FAPE-related claims, as currently pleaded, OAH is required to address Student’s suspension-related claims as an appeal from a wrongful manifestation determination. For these reasons, unless and until Student withdraws, or further limits his claims related to his allegations of wrongful suspension and manifestation, the expedited PHC and due process hearing shall proceed as calendared. The parties will be given an opportunity to discuss the propriety of an expedited proceeding and request dismissal at the expedited PHC.

Dated: March 08, 2013 /s/

EILEEN M. COHN

Administrative Law Judge Office of Administrative Hearings