California OAH special education order · November 6, 2015
Order Denying Request for Reconsideration
OAH Case No. 2015100670 · ALJ Marian H. Tully
OAH denied Student's request to reconsider the denial of stay put. A district court case decided before the original motion was not new law, and its facts were different.
Summary
Student asked OAH to reconsider its November 3, 2015 order denying stay put. Student relied on D.G. v. San Diego Unified School District, a district court decision from September 2015. OAH denied the request because that decision came out before the stay put motion was filed, so it was not new law. Student also gave no reason for not citing it earlier. OAH added that D.G. was different on its facts: Student moved districts before the Fremont Unified IEP was put in place, and East Side did not place students in the Project Search program.
Why it matters
Reconsideration needs truly new facts or law. Parents should cite every helpful case in the first motion, because a case that already existed will not support reconsideration. For students who move between districts, stay put may depend on whether the prior IEP was actually implemented and whether the new district offers a similar placement.
Key authority cited
- Gov. Code § 11521
- Code Civ. Proc. § 1008
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
- D.G. v. San Diego Unified School District (2015) 115 LRP 47750
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. 2015100670 v. ORDER DENYING REQUEST FOR
RECONSIDERATION
EAST SIDE UNION HIGH SCHOOL
DISTRICT.
On November 3, 2015, the undersigned administrative law judge issued an order denying Student’s motion for stay put. On November 5, 2015, Student timely filed a motion for reconsideration on the grounds that Student’s counsel discovered a District Court decision issued on September 21, 2015, which supports reconsideration.
APPLICABLE LAW
The Office of Administrative Hearings will generally reconsider a ruling upon a showing of new or different facts, circumstances, or law justifying reconsideration, when the party seeks reconsideration within a reasonable period of time. (See, e.g., Gov. Code, § 11521; Code Civ. Proc., § 1008.) The party seeking reconsideration may also be required to provide an explanation for its failure to previously provide the different facts, circumstances or law. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199-1200.)
DISCUSSION AND ORDER
Student alleges no new facts, circumstances, or law in support of the request for reconsideration. The failure to cite a decision that was published before Student’s motion for stay put was filed does not constitute new law. Student contends D.G. v. San Diego Unified School District (2015) 115 LRP 47750 compels reconsideration of the order denying stay put. Student’s counsel does not offer any explanation for why this case was not argued in the motion for stay put. In any event, D.G. v. San Diego Unified School District involves a critically different set of facts.
In D.G., student resided within the boundaries of Del Mar Union School District.
D.G. attended The Institute for Effective Education (TIEE), a private school for autism, based upon an individualized education program implemented by Del Mar which provided for placement at TIEE through June 30, 2015. Student moved from Del Mar to within the boundaries of San Diego Unified School District in June 2015. Although San Diego placed students at TIEE, at the same location where D.G. was receiving instruction, San Diego declined to offer D.G. placement at TIEE and the District Court found TIEE to be stay put.
In this case, Student moved between districts before the IEP from Fremont Unified School District was implemented on September 8, 2015, after the East Side school year began and East Side did not place students in the Project Search program. Therefore, D.G. v.
San Diego Unified School District is distinguishable on the facts and would not apply.
Accordingly, Student’s request for reconsideration is denied.
IT IS SO ORDERED.
DATE: November 06, 2015
/ S/
MARIAN H. TULLY
Administrative Law Judge Office of Administrative Hearings