California OAH special education order · July 23, 2015
Order Granting Motion to Unexpedite Hearing
OAH Case No. 2015070326 · ALJ Margaret Broussard
OAH unexpedited Student's case because San Rafael removed Student for not living in the district, not for a code-of-conduct violation, so no issue qualified for an expedited hearing.
Summary
Student asked for an expedited hearing, alleging San Rafael permanently expelled him in June 2015 based on non-residency. San Rafael moved to unexpedite, arguing it removed Student for non-residency, not for breaking a code of conduct. Student did not oppose. OAH granted the motion because a residency decision is not a disciplinary change in placement, and no other issue required an expedited hearing. OAH vacated the expedited dates and kept the regular hearing dates.
Why it matters
Expedited hearings are only for disciplinary changes in placement or manifestation determination disputes. A district's exclusion of a student for non-residency, even if called an expulsion, goes on the regular hearing timeline.
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)
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. 2015070326 v. ORDER GRANTING MOTION TO
UNEXPEDITE HEARING
SAN RAFAEL CITY SCHOOLS.
On July 7, 2015, Student filed a due process hearing complaint naming San Rafael City Schools as a respondent. Student asked that an expedited hearing be held.
On July 9, 2015, the Office of Administrative Hearings issued a Scheduling Order and Notice of Expedited and Non-Expedited Due Process Hearing and Mediation. The Scheduling Order set the expedited portion of this matter for a telephonic prehearing conference on July 27, 2015, and the expedited due process hearing to begin on August 4, 2015.
On July 16, 2015, San Rafael filed a motion to unexpedite the hearing. Student did not file an opposition.
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.) 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
Student asked for an expedited hearing when he filed his complaint. Student’s complaint asserts that he was permanently expelled, based on not being a resident of the district, on June 12, 2015.
San Rafael, in its motion to unexpedite, argues that Student was removed from school in June 2015 because it determined that Student was not a resident of the district and that there was no expulsion based upon a violation of a code of conduct which would give rise to an expedited hearing.
San Rafael’s refusal to provide educational services to Student in June 2015, was a determination made based upon residency, not a change in placement made because of a violation of a code of conduct. This is not cause for an expedited hearing. No other issues in this case require an expedited hearing. Therefore, the hearing will be unexpedited.
ORDER
1. Student’s motion to unexpedite this matter is granted.
2. All expedited dates are vacated and the matter will proceed on the non-
expedited dates currently on calendar.
IT IS SO ORDERED.
DATE: July 23, 2015
/ S/
MARGARET BROUSSARD
Presiding Administrative Law Judge Office of Administrative Hearings