California OAH special education order · October 15, 2015
Order Denying Motion to Unexpedite Hearing
OAH Case No. 2015090690 · ALJ Peter Paul Castillo
OAH denied New Jerusalem's motion to unexpedite because Student's complaint raised valid expedited challenges to manifestation determinations from October and November 2014 and September 2015.
Summary
New Jerusalem's superintendent moved to dismiss Student's expedited issues, arguing the district was not seeking to change Student's placement. OAH treated this as a motion to unexpedite and asked the parties for more information about the manifestation determination meetings. OAH found that Student was suspended for more than 10 school days in fall 2014 and that those conduct incidents were found not to be a manifestation of disability. It also found that a September 2015 manifestation meeting on an August 2015 incident reached the same result, even though that suspension was only five days. Because expedited issues remained, the hearing must go forward as scheduled.
Why it matters
A parent who disagrees with a manifestation determination has a mandatory right to an expedited hearing, and a district cannot avoid it by saying it is not seeking a placement change. A matter can be unexpedited only if no expedited issue is alleged or the student withdraws those issues.
Key authority cited
- 20 U.S.C. § 1415(k)(3)(A)
- 20 U.S.C. § 1415(k)(4)(B)
- 20 U.S.C. § 1415(k)(1)(C)
- 34 C.F.R. § 300.532(a), (c)(2)
- 34 C.F.R. § 300.530(c)
People named in the order
- David Thoming, Superintendent, New Jerusalem School District (also signed as Delta Charter High School Superintendent)
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. 2015090690 v. ORDER DENYING MOTION TO
UNEXPEDITE HEARING
DELTA CHARTER HIGH SCHOOL,
NEW JERUSALEM SCHOOL DISTRICT
AND SAN JOAQUIN COUNTY OFFICE
OF EDUCATION.
On September 8, 2015, Parent on behalf of Student filed with the Office of Administrative Hearings a Due Process Hearing Request (complaint) naming Delta Charter High School, New Jerusalem School District, and San Joaquin County Office of Education.
The complaint is long-running, with approximately 10 pages of detailed facts and contentions, alleging matters for expedited and non-expedited hearing. The complaint contains expedited hearing allegations regarding manifestation determination decisions made by Delta and New Jerusalem in September 2015 and October and November 2014, in addition to allegations involving other, non-expedited, substantive violations of the Individuals with Disabilities Education Act.
On October 7, 2015, David Thoming, Superintendent of New Jerusalem, filed a motion to dismiss Student’s expedited issues for hearing on the grounds that New Jerusalem is not seeking to change Student’s placement. 1 On October 8, 2015, OAH issued an order seeking additional information from Student, Delta, and New Jerusalem regarding the outcome of the October 2014 manifestation determination meetings, and whether a manifestation determination meeting took place in September 2015, and if so, its outcome.
New Jerusalem submitted additional information on October 9, 2015, and Student on October 13, 2015.
It is unclear if Mr. Thoming is filing this motion to unexpedite on behalf of both Delta and New Jerusalem. Mr. Thoming’s signed Delta’s September 17, 2015 notice of insufficiency as Delta’s Superintendent. If Mr. Thoming is signing pleadings on behalf of both Delta and New Jerusalem, he needs to identify himself as such.
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
A review of Student’s complaint and documents provided by the parties establish an expedited issue for hearing regarding the 2014-2015 school year as the allegations and documents provided indicate Student was suspended for more than 10 school days on or about October and November 2014, and the manifestation determination decisions were that Student’s disciplinary conduct was not a manifestation of his disability.
As to the allegations in Student’s complaint and information in documents Student provided regarding the 2015-2016 school year, Delta and/or New Jerusalem were required to hold a manifestation determination if Student’s suspension was 10 days or less. (20 U.S.C.
§ 1415(k)(1)(C); 34 C.F.R. § 300.530(c) (2006).) However, they did hold a manifestation determination, and factual hearing is required to determine if such a meeting was required and if so, whether a proper determination was made.
Accordingly, Student is entitled to an expedited hearing regarding whether Student’s disciplinary conduct during October and November 2014, that led him to be suspended for more than 10 non-consecutive school days, was a manifestation of his disability and were related disciplinary incidents. Further, Student is entitled to an expedited hearing regarding the August 2015 disciplinary incident as a manifestation determination meeting was held in September 2015, even though Student was only suspended for five school days, which determined that his disciplinary conduct was not a manifestation of disability.
ORDER
1. The motion to unexpedite the hearing dates is denied.
2. The hearing shall proceed as scheduled:
DATE: October 15, 2015
/S /
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings