California OAH special education order · November 6, 2015

Order Following Prehearing Conference and Order to Show Cause Why Expedited Issues Should Not Be Dismissed

OAH Case No. 2015090690 · ALJ Lisa Lunsford

OAH ordered Student to show cause why the expedited issues should not be dismissed. Student filed no prehearing conference statement and did not appear at the prehearing conference, despite the short expedited timelines.

Order to show cause issued Expedited hearings

Summary

Student's mother did not file a prehearing conference statement and could not be reached by phone for the November 6, 2015 prehearing conference in this expedited discipline case. On its own motion, OAH held a partial conference with the three respondents. Because Student had filed the case, OAH declined to clarify the expedited issues or rule on San Joaquin's motion to be dismissed as a party without Student present. OAH ordered Student to explain in writing, by noon on November 10, 2015, why the expedited issues should not be dismissed for failure to prosecute, and to file and serve a prehearing conference statement if Student wants to proceed to the November 12 hearing.

Why it matters

Expedited discipline hearings move on very short timelines, so a parent who misses the prehearing conference or skips the statement risks having the expedited claims dismissed. Any explanation must be made by declaration under oath.

Key authority cited

  • 20 U.S.C. § 1415(k)(4)(B)
  • 34 C.F.R. § 300.510
  • 34 C.F.R. § 300.515(a), (c)
  • Ed. Code § 56502, subd. (f)
  • Ed. Code § 56505, subd. (f)(3)
  • Cal. Code Regs., tit. 1, § 1020

Topics

expedited hearing order to show cause failure to prosecute prehearing conference self-represented parent discipline

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 FOLLOWING PREHEARING

CONFERENCE AND ORDER TO

DELTA CHARTER HIGH SCHOOL, NEW SHOW CAUSE WHY EXPEDITED

JERUSALEM SCHOOL DISTRICT, AND ISSUES SHOULD NOT BE

SAN JOAQUIN COUNTY OFFICE OF DISMISSED

EDUCATION.

On November 6, 2015, a telephonic prehearing conference was held before Administrative Law Judge Lisa Lunsford, Office of Administrative Hearings. Steve Payne appeared on behalf of Delta Charter High School. David Thoming appeared on behalf of New Jerusalem Elementary School District. Margaret St. George appeared on behalf of the San Joaquin County Office of Education. Student’s mother did not appear and was unavailable by telephone. The ALJ telephoned Mother several times at 10:00 a.m., the time scheduled for the PHC, and an automated recording stated that the customer was not available at this time and to try the call again later. There was no ability to leave a message.

The ALJ attempted to telephone Mother two more times at 10:15 a.m. and reached the same recording. At 10:17 a.m., the PHC was convened with Mr. Payne, Mr. Thoming and Ms. St.

George. The PHC was recorded.

Mr. Payne and Mr. Thoming indicated they had no alternative number for Mother.

Student has failed to file a PHC statement, and the respondents affirmed that they have not received a PHC statement from Student. As a result of Student’s failure to appear for the scheduled PHC, a complete PHC could not take place. Because Student filed this request for hearing, the ALJ deemed it inappropriate to review and clarify the expedited issues in the case or rule on San Joaquin’s outstanding motion to be dismissed as a party. The matter remains scheduled for an expedited due process hearing on November 12, 2015.

ORDER TO SHOW CAUSE

A due process hearing must be conducted and a decision rendered within 45 days of receipt of the due process notice unless an extension is granted for good cause. (34 C.F.R. §§ 300.510, 300.515(a) & (c) (2006); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3); Cal.

Code Regs., tit. 1, § 1020.) However, when a matter is filed as an expedited due process hearing on a disciplinary matter, the hearing must occur within 20 school days of receipt of the due process complaint, and a decision must be issued within 10 school days of the expedited hearing. (20 U.S.C. § 1415(k)(4)(B).) Given the short time frames applicable to this case, it is critical that the parties follow orders issued by OAH and participate in advancing the matter to hearing.

Student is ordered to show cause in writing why the expedited issues in this matter should not be dismissed for his failure to participate in, prosecute or advance the expedited portion of this case for hearing. Student is ordered to file a written response with OAH by not later than 12:00 p.m. on Tuesday, November 10, 2015. Student’s response shall address why Student did not file a PHC statement or appear for the PHC on November 6, 2015, and whether he intends to go forward with the expedited hearing. If Student seeks to move forward with the expedited hearing, the written response shall also include a PHC statement which must also be served on the respondents by noon on Tuesday. Any factual assertions will be disregarded unless they are made by declaration under oath.

Should Student fail, without excuse, to timely file a response as ordered above, showing adequate cause for his apparent failure to prosecute this matter, OAH may dismiss the expedited issues in this case without further notice.

IT IS SO ORDERED.

DATE: November 6, 2015

/S /

LISA LUNSFORD

Administrative Law Judge Office of Administrative Hearings