California OAH special education order · September 9, 2015
Order Granting Motion to Unexpedite Hearing
OAH Case No. 2015080908 · ALJ Peter Paul Castillo
OAH granted a joint motion to unexpedite and vacated the expedited dates because Student agreed to dismiss, without prejudice, the suspension-related contention that had triggered the expedited hearing.
Summary
Student's complaint against San Diego Unified alleged that District failed to assess Student for special education eligibility. It also alleged that District suspended Student for more than 10 school days without a manifestation determination, which triggered an expedited hearing. The parties jointly asked OAH to unexpedite the case because they agreed to dismiss that expedited contention without prejudice. OAH explained that an expedited matter can be unexpedited only if no expedited issue remains or the student withdraws it. Because the suspension contention was dismissed, OAH vacated the expedited dates, and the rest of Issue 1 will go forward on the regular, non-expedited schedule.
Why it matters
OAH cannot continue or unexpedite an expedited discipline hearing just because the parties prefer it. The issue that triggered the expedited timeline must be withdrawn or dismissed. Families who want more time can drop the discipline-related claim without prejudice and keep their other claims on the regular schedule.
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. 2015080908 v. ORDER GRANTING MOTION TO
UNEXPEDITE HEARING
SAN DIEGO UNIFIED SCHOOL
DISTRICT.
On August 19, 2015, Student filed a Due Process Hearing Request (complaint)
against San Diego Unified School District. On August 26, 2015, the Office of Administrative Hearings issued a Scheduling Order and Notice of Expedited and Non- Expedited Due Process Hearing and Mediation (Scheduling Order). The Scheduling Order set the expedited matter for prehearing conference on September 11, 2015, and hearing on September 15 – 17, 2015.
On September 9, 2015, the parties filed a joint motion to unexpedite this matter and vacate the expedited dates, as they have agreed to the dismissal without prejudice of the expedited issue for hearing.
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’s complaint contains two issues for hearing. Issue 1 concerns District’s purported failure to assess Student for possible special education eligibility during the 2014- 2015 school year, which included allegations that District suspended Student for more than 10 school days. If District had a basis of knowledge that Student was a child who might be eligible for special education services, District was required to convene a manifestation determination meeting to evaluate if Student’s disciplinary conduct was a manifestation of his disability. The request for dismissal without prejudice means that Student’s contention in Issue 1 regarding the suspensions in excess of 10 school days is dismissed, but can proceed as to the non-expedited contentions in Issue 1. Accordingly, the expedited prehearing conference and hearing dates will be vacated.
ORDER
1. The motion to unexpedite this matter is granted.
2. The expedited dates are vacated.
3. This matter shall proceed on the non-expedited dates.
DATE: September 9, 2015
/S/
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings