California OAH special education order · July 9, 2013
Order Granting Motion to Unexpedite Hearing
OAH Case No. 2013070150 · ALJ Margaret Broussard
OAH took the case off the expedited track. The only discipline-related claim concerned a January 2012 manifestation determination the parties agreed with, and there was no current or pending disciplinary action.
Summary
Student and the District each filed a motion to unexpedite the case and vacate the expedited dates. Both argued that Student's Issue No. 11 did not challenge a disciplinary change in placement or disagree with a manifestation determination. OAH agreed and granted the motion. The January 2012 manifestation determination meeting happened more than a year earlier, the parties had agreed with its outcome, Student's placement did not change, and no disciplinary action was current or pending. OAH vacated the expedited mediation, prehearing conference, and hearing dates, and the non-expedited schedule remained in place.
Why it matters
An expedited hearing is available only when a parent disputes a current or pending disciplinary change in placement or a manifestation determination. Mentioning an old, uncontested manifestation meeting in a complaint does not trigger expedited timelines.
Key authority cited
- 20 U.S.C. § 1415(k)(3)(A)
- 20 U.S.C. § 1415(k)(4)(B)
- 34 C.F.R. § 300.532(a)
- 34 C.F.R. § 300.532(c)(2)
- Student v. Los Angeles Unified School District (2011) OAH Case No. 2011030809
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. 2013070150
v. ORDER GRANTING MOTION TO
UNEXPEDITE HEARING
SAN JOSE UNIFIED SCHOOL DISTRICT.
On June 28, 2013, Student filed a Due Process Hearing Request (complaint) against the San Jose Unified School District (District). On July 3, 2013, the Office of Administrative Hearings (OAH) issued a Scheduling Order and Notice of Expedited and Non-Expedited Due Process Hearing and Mediation (Scheduling Order). The Scheduling Order set the expedited mediation for this matter on July 11, 2013 and the expedited hearing July 23, 24 and 25,
2013. The Scheduling Order set the non-expedited mediation for August 1, 2013 and the
non-expedited hearing for August 22, 2013 and continuing day to day.
On July 8, 2013, Student filed a motion to unexpedite this matter and vacate the expedited dates. On July 8, 2013, the District also filed a motion to unexpedite this matter and vacate the expedited dates. Both motions claim that Student’s Issue No. 11, as written, does not give rise to an expedited hearing because Student does not claim disagreement with a change in educational placement based upon a violation of a code of student conduct or disagree with a manifestation determination made by the District.
APPLICABLE LAW
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 made by the district, may request and is entitled to receive an expedited due process hearing. (20 U.S.C.
§ 1415(k)(3)(A); 34 C.F.R. § 300.532(a) (2006).) An expedited due process hearing before OAH must occur within 20 school days of the date the complaint requesting the hearing is filed. (20 U.S.C. § 1415(k)(4)(B); 34 C.F.R. § 300.532(c)(2) (2006).) The procedural right to an expedited due process hearing is mandatory and does not authorize OAH to make exceptions or grant continuances of expedited matters. (Ibid.) If there is no current or pending disciplinary action against Student, grounds do not exist for an expedited hearing.
(Student v. Los Angeles Unified School District (2011) Cal. Ofc. Admin. Hrngs, Case No.
2011030809.) In sum, a matter can only be unexpedited or continued if no issue is alleged that is subject to an expedited hearing, or if the student withdraws the issues in the complaint that triggered the expedited hearing.
DISCUSSION
In Issue No. 11 in the complaint, Student references a manifestation determination meeting held in January 2012. This meeting happened more than a year ago and there is no current or pending disciplinary action against Student. Moreover, the parties agreed with the manifestation determination and Student did not suffer a change in placement. Therefore, grounds do not exist for an expedited hearing and the motion to unexpedite the matter is granted.
ORDER
1. The motion to unexpedite this matter is granted.
2. The following expedited dates are vacated: Mediation July 11, 2013,
Prehearing Conference July 15, 2013, and Hearing dates of July 23, 24, and 25, 2013.
Dated: July 9, 2013 /s/
MARGARET BROUSSARD
Administrative Law Judge Office of Administrative Hearings