California OAH special education order · October 9, 2015
Order Denying Motion to Unexpedite Hearing
OAH Case No. 2015091005 · ALJ Adrienne L. Krikorian
OAH denied Franklin-McKinley's request to unexpedite the hearing. Student alleged suspensions of more than 10 days and an expulsion with no manifestation determination or interim placement, and those claims require an expedited hearing.
Summary
Student filed a complaint asking for an expedited hearing. The complaint alleged that Student, who is eligible for special education, was suspended for more than 10 days and then expelled without a manifestation determination meeting or an interim alternative educational placement. District objected and asked OAH to vacate the expedited dates. OAH denied the request because these claims trigger the mandatory expedited timeline, and a matter can only be unexpedited if no expedited issue is alleged or Student withdraws those issues.
Why it matters
Once a parent raises discipline-related claims such as a missing manifestation determination, a district cannot get the expedited hearing taken off the fast track. Only the student's written withdrawal of those claims will vacate the expedited dates, even if the parties reach a settlement that still needs board approval.
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. 2015091005 v. ORDER DENYING MOTION TO
UNEXPEDITE HEARING
FRANKLIN-MCKINLEY SCHOOL
DISTRICT.
On September 25, 2015, Student filed a Due Process Hearing Request (complaint)
against Franklin-McKinley School District. On September 25, 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 this matter for an expedited hearing on October 27, 2015, and non-expedited hearing on November 19, 2015.
On October 5, 2015, District filed on objection to Student’s request to expedite this matter and a request to vacate the expedited dates. Student filed a response to District’s objection on October 6, 2015.
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 specifically requested an expedited hearing in the complaint, alleging that Student was eligible for special education, that he engaged in behaviors that resulted in suspensions of more than 10 days, and that he was expelled from school for behaviors without the District convening a manifestation determination meeting or providing an interim alternative educational placement as required by title 20 United States Code section 1415k.
The issues described above are subject to an expedited time frame. Once these issues are raised, the expedited hearing time frame applies. Accordingly, the District’s request to vacate the expedited hearing dates must be denied.
The Scheduling Order includes mediation in both the expedited and non-expedited issues. If the parties reach an agreement that is subject to board approval, OAH will not vacate the expedited hearing dates unless the expedited claims are withdrawn. All dates shall remain as scheduled.
ORDER
1. District’s request to unexpedite Student’s asserted expedited issues in the
complaint is denied.
2. The expedited hearing shall proceed as scheduled pursuant to the September
25, 2015 Scheduling Order unless Student expressly withdraws the expedited issues in writing. The non-expedited issues shall proceed to mediation and hearing pursuant to the Scheduling Order.
DATE: October 9, 2015
/ S/
ADRIENNE L. KRIKORIAN
Administrative Law Judge Office of Administrative Hearings