California OAH special education order · June 22, 2015

Order Granting Request for Reconsideration; Granting Student's Request for Stay Put

OAH Case No. 2015050149 · ALJ Paul H. Kamoroff

OAH reconsidered its stay put order because Student faxed the motion to the wrong number, but again granted stay put, barring District from awarding a diploma while Student disputes her graduation requirements.

Ruling Stay put

Summary

District asked OAH to vacate its earlier order granting Student stay put. District showed that Student had faxed her motion to District counsel's telephone line instead of the fax line, so OAH granted reconsideration. On the merits, District argued that Student had met graduation requirements. OAH again granted stay put because Student alleged that District inflated her grades and that she had not completed the course of study in her IEP, so District cannot confer a regular diploma until the due process hearing is decided.

Why it matters

When a student says she has not truly met graduation requirements, for example because of inflated grades, stay put can stop a district from issuing a diploma that would end special education eligibility. Parents should make sure motions are properly served, or the ruling may be reopened.

Key authority cited

  • Gov. Code, § 11521
  • Code Civ. Proc., § 1008
  • Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
  • Ed. Code, § 56026.1, subd. (a)
  • Cal. Code Regs., tit. 5, § 3070
  • 34 C.F.R. § 300.102(a)(3)(iv)

Topics

stay put graduation diploma reconsideration service of motion grade inflation

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. 2015050149 v. ORDER GRANTING REQUEST FOR

RECONSIDERATION; GRANTING

BELLFLOWER UNIFIED SCHOOL STUDENT’S REQUEST FOR STAY

DISTRICT. PUT

On June 17, 2015, the undersigned administrative law judge issued an order granting Parent on behalf of Student’s request for stay put. On June 18, 2015, Bellflower Unified School District filed an emergency request to vacate order granting stay put. District’s motion is considered a request for reconsideration. On June 22, 2015, Student submitted her non-opposition to District’s request that the Office of Administrative Hearings reconsider its June 17, 2015 order.

APPLICABLE LAW

OAH will generally reconsider a ruling upon a showing of new or different facts, circumstances, or law justifying reconsideration, when the party seeks reconsideration within a reasonable period of time. (See, e.g., Gov. Code, § 11521; Code Civ. Proc., § 1008.) The party seeking reconsideration may also be required to provide an explanation for its failure to previously provide the different facts, circumstances or law. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199-1200.)

The party requesting a special education due process hearing must provide the opposing party with notice of the complaint by delivering a copy of the complaint to them at the same time that it is filed with OAH. (20 U.S.C. § 1415(b)(7)(A); Ed. Code, §56502, subd. (c).)

A regular high school diploma must be fully aligned with the state’s academic standards. (34 C.F.R. § 300.102(a)(3)(iv)(2006).) A pupil with exceptional needs who has met all state and school district requirements and graduates from high school with a regular diploma is no longer eligible for special education and related services. (Ed. Code, § 56026.1, subd. (a).)

DISCUSSION

District alleges that Student failed to properly serve it a copy of her motion for stay put. In support if its motion, District provided evidence that Student mistakenly served the motion, via facsimile, to District counsel’s telephone line, not the facsimile line.

Consequently, Student did not properly serve District her motion. District must be properly served the motion. Accordingly, District’s motion for reconsideration is granted.

On reconsideration, District contends that Student is not entitled to stay put because she has met the necessary requirements for graduation. District relies upon OAH case number 2011110413, which held that when a student with a disability meets all state and school district requirements for an award of a regular high school diploma, he cannot be denied a diploma simply because he has a disability. (OAH Case No. 2011110413; See also Letter to Anonymous (OSEP 1994) 22 IDELR 456.) However, the instant case is distinguishable from the one District cites because Student alleges that she has not met the necessary graduation requirements because District inflated her grades.

The state requires that a student complete the curriculum, and have sufficient passing credits in each required area of study. In California, when an individual with exceptional needs meets public education agency requirements for completion of a prescribed course of study designated in the student’s individualized education program, the public education agency which developed the individualized education program shall award the diploma.

(Cal. Code Regs., tit. 5, § 3070.) Here, Student alleges that she has not met the prescribed course of study designated in her individualized education program’s, and that District has unlawfully proceeded with awarding her a regular high school diploma. Accordingly, Student is entitled to a stay put order that bars District from conferring a regular high school diploma on Student pending a due process hearing on Student’s complaint. Therefore, District’s motion to vacate stay put order is denied.

ORDER

1. District’s request for reconsideration is granted.

2. Student’s motion for stay put is granted, and her last agreed-upon and

implemented educational program are the special education and related services that she received as of her May 18, 2015 individualized education program.

DATE: June 22, 2015

/ S/

PAUL H. KAMOROFF

Administrative Law Judge Office of Administrative Hearings