California OAH special education order · July 28, 2014
Order Denying Student's Motion for Protective Order
OAH Case No. 2014030842, 2014030046 · ALJ Darrell Lepkowsky
OAH denied Student's request to remove an expert witness's name and employer from the Decision, despite reported threats to her job. Witnesses are named in public decisions, and Student cited no legal authority.
This case went to decision
Student v. Spencer Valley Elementary School District (consolidated): Spencer Valley's predetermined placement denied FAPE and cannot be implemented; for implementation failures, it must fund up to $1,500 and inclusion training. (2014)
Summary
Near the end of hearing, Student's inclusion expert reported threats and intimidation about her job after she testified. Student asked OAH to remove her name and employer from the Decision and to bar everyone in the case from discussing her testimony. District did not oppose and denied talking to the witness's employer. The ALJ denied both requests. Student cited no legal authority. Witnesses are always named in the public Decision, so the same harm could have happened anyway. The witness has other protections, such as her union or a lawyer. Granting the request would invite similar requests in every hearing. The ALJ had already told the parties not to discuss her testimony, and there was no concrete evidence anyone ignored that instruction.
Why it matters
Expert witnesses who testify in OAH hearings will be named in the public Decision. Families should warn witnesses about this, especially witnesses employed by other districts, because OAH will not redact names without legal authority and concrete evidence.
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 Consolidated Matters of:
PARENTS ON BEHALF OF STUDENT, OAH Case No. 2014030842 v.
SPENCER VALLEY ELEMENTARY
SCHOOL DISTRICT,
SPENCER VALLEY ELEMENTARY OAH Case No. 2014030046
SCHOOL DISTRICT,
v. ORDER DENYING STUDENT’S
MOTION FOR PROTECTIVE ORDER
PARENTS ON BEHALF OF STUDENT.
PROCEDURAL BACKGROUND
On July 10, 2014, on the second to last day of hearing in this matter, Student presented the testimony of one of his expert witnesses, an inclusion expert who works for another school district in California. The following day, Student moved for a protective order regarding the identity of the witness, asking that her name and employer be redacted from the Decision in this case, and that all parties, representatives, and witnesses in this case be ordered to refrain from discussing the witness’s testimony. The request was prompted by communication from the witness to Student’s educational representative that after her testimony, the witness received direct and implied threats and acts of intimidation regarding her employment as a result of her involvement in the case. These acts caused great anxiety for the witness requiring her to seek medical care.
On July 15, 2014, Student submitted a formal written motion regarding his request for the protective orders. On July 17, 2014, District filed a notice of non-opposition to Student’s motion. District denied having discussed the witness’s testimony with the other school district, indicated that it had no intention of doing so, but nonetheless did not oppose Student’s motion.
DISCUSSION
In his motion, Student fails to indicate the content of the threats to his witness or who made the threats. Whatever the content and originator of the statements, it is extremely troubling that a witness to this or any other legal proceedings would suffer retaliation or any other retribution as a result of his or her testimony. However, Student provides no legal authority for his request to redact his witness’s identity or that of her employer in the undersigned ALJ’s pending Decision.
There are many reasons for denying Student’s request. First, had these incidents not occurred now, there is no question but that the witness, as are all witnesses, would be identified in the Decision, which is a public record. The same negative consequences the witness has suffered now could therefore have happened as soon as her identity was revealed after issuance of the Decision. Additionally, the witness has numerous protections available, including seeking assistance and guidance from her union or from legal counsel. Finally, granting Student’s motion would open the door in each OAH hearing to similar requests to redact the names of a variety of witnesses in anticipation of possible negative consequences of their testifying at the hearing. For these reasons, Student’s motion for redaction is denied.
Student has also requested that the District, its representatives, and witnesses be ordered to refrain from discussing the witness’s testimony with her employer. The ALJ has already made that admonishment. Student has provided no concrete evidence the admonishment was deliberately ignored. Student’s motion is therefore denied.
IT IS SO ORDERED.
DATE: July 28, 2014
/S/
DARRELL LEPKOWSKY
Administrative Law Judge Office of Administrative Hearings