California OAH special education order · October 6, 2015
Amendment to Order of Determination of Sufficiency of Due Process Complaint; Scheduling Order as to Expedited Hearing, Prehearing and Mediation
OAH Case No. 2015090690 · ALJ Robert Helfand
OAH rescinded its earlier insufficiency finding as to Student's expedited discipline claims, because no law allows a sufficiency challenge to expedited issues, and reinstated the expedited mediation, prehearing, and hearing dates.
Summary
Parent filed a pro se complaint for Student against Delta, New Jerusalem, and San Joaquin. It challenged Student's September 2015 expulsion and an earlier disciplinary order, and also raised non-expedited IDEA claims. After Delta filed a Notice of Insufficiency, OAH found the entire complaint insufficient. On its own, OAH then amended that order. It ruled that the insufficiency finding applies only to the non-expedited issues, because federal law has no sufficiency process for expedited hearings and there is no time for one. Student was given two weeks to amend the non-expedited claims, and the expedited mediation, prehearing conference, and hearing dates were reinstated.
Why it matters
Districts cannot use a Notice of Insufficiency to delay or knock out expedited discipline claims such as expulsion or manifestation determination challenges. Those claims go forward on the expedited 20-school-day timeline even if other parts of the complaint need to be amended.
Key authority cited
- 20 U.S.C. § 1415(k)(3)
- 20 U.S.C. § 1415(c)(2)(A)
- 20 U.S.C. § 1415(b)(7)(A)
- Ed. Code § 56502
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. AMENDMENT TO ORDER OF
DETERMINATION OF SUFFICIENCY
DELTA CHARTER HIGH SCHOOL, NEW OF DUE PROCESS COMPLAINT;
JERUSALEM SCHOOL DISTRICT AND SCHEDULING ORDER AS TO
SAN JOAQUIN COUNTY OFFICE OF EXPEDITED HEARING,
EDUCATION. PREHEARING AND MEDIATION
On September 8, 2015 Parent on behalf of Student filed with the Office of Administrative Hearings a pro se Due Process Hearing Request 1 (complaint) naming Delta Charter High School 2, New Jerusalem School District, and San Joaquin County Office of Education. The complaint is long-running with approximately ten pages of detailed facts and contentions. The complaint contains expedited hearing allegations regarding Student’s order of expulsion in September 2015 and the October/November 2014 disciplinary order in addition to allegations involving other, non-expedited substantive violations of the Individuals with Disabilities Education Act.
On September 17, 2015, Delta filed with OAH a Notice of Insufficiency as to Student’s complaint contending that the complaint “fails to include sufficient facts relating to the purported problem stated to establish a legal or factual issue with clarity for resolution in this forum.” Delta also contends that the proposed resolutions are unclear “such that [Delta] is unable to determine if the relief is warranted.
On September 18, 2015, OAH, by the undersigned, issued an Order of Determination of Sufficiency of Due Process Complaint finding the entire complaint, both the expedited and non-expedited issues, not sufficient as to Delta, New Jerusalem and San Joaquin.
1 A request for a due process hearing under Education Code section 56502 is the due process complaint notice required under title 20 United States Code section 1415(b)(7)(A).
2 In the NOI, the respondent identifies itself as Delta Charter School.
APPLICABLE LAW
Title 20 United States Code section 1415(k)(3) permits a party to request an expedited hearing to appeal a decision regarding a disciplinary change of placement,, such as placement in an alternative education setting or a manifestation determination regarding student conduct. This section requires an expedited hearing to occur within 20 school days of the date the hearing is requested. There is no provision similar to that in Title 20 United States Code section 1415(c)(2)(A) for testing the sufficiency of a request for an expedited hearing pursuant to section 1415. Indeed, there is insufficient time to complete the NOI process in expedited hearings.
The finding of insufficiency of Student’s complaint can only involve those issues which do not relate to issues involving Student’s contention that the September 2015 and October/November 2015 disciplinary findings were not appropriate as no legal authority exists to grant an NOI as to expedited issues for hearing. Thus, the NOI order of September 18, 2015 solely applies to allegations made against Delta, New Jerusalem and San Joaquin which do not relate to the expedited issues raised in Student’s complaint.
ORDER
1. The NOI order of September 18, 2015 is rescinded as all issues which are
expedited. The September 18, 2015 order will only apply to this issues that are not expedited.
2. Student will be allowed two weeks to file an amended complaint as to those
issues that are not expedited relating to Delta, New Jerusalem and San Joaquin.
3. Accordingly, the mediation, prehearing conference and hearing dates are
reinstated and shall be as follows:
EXPEDITED MEDIATION
DATE: 10/13/2015
TIME: 9:30AM to 4:30PM PLACE: New Jerusalem SD 31400 South Koster Rd Tracy, CA 95304
EXPEDITED PREHEARING CONFERENCE
DATE: 10/19/2015
TIME: 3:00PM
PLACE: Telephonic – OAH will initiate the call
EXPEDITED DUE PROCESS HEARING
DATE: 10/21/2015 - 10/22/2015
TIME: 9:30AM on the first day and 9:00AM on all subsequent days PLACE: New Jerusalem SD 31400 South Koster Rd Tracy, CA 95304 DATE: October 6, 2015
/ S/
ROBERT HELFAND
Administrative Law Judge Office of Administrative Hearings