California OAH special education order · May 17, 2016
Order Granting Motion to Unexpedite Hearing
OAH Case No. 2016050237 · ALJ Peter Paul Castillo
OAH granted the parties' joint motion to unexpedite. Student's claim about a missed manifestation determination meeting was really a denial-of-FAPE claim, not a disciplinary appeal, so the expedited dates were vacated.
Summary
Student and District jointly asked OAH to unexpedite the case and vacate the expedited hearing dates. Student's complaint alleged that District should have held a manifestation determination meeting in 2014-2015 after suspending Student for more than 10 school days. Student was not expelled, still attends a District school, and did not ask OAH to order a manifestation determination meeting. OAH therefore found no issue that required an expedited hearing, treated the claim as a denial of FAPE, vacated the expedited dates, and barred Student from arguing violations of the IDEA's disciplinary provisions at hearing.
Why it matters
If a complaint mentions discipline facts but does not actually seek a disciplinary appeal, the case can be unexpedited. The family may then lose the right to argue the disciplinary-provision violations at hearing, so parents should frame discipline claims carefully.
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. 2016050237 v. ORDER GRANTING MOTION TO
UNEXPEDITE HEARING
ELK GROVE UNIFIED SCHOOL
DISTRICT.
On May 4, 2016, Student filed a Due Process Hearing Request (complaint) against Elk Grove Unified School District. On May 5, 2016, 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 the expedited matter for mediation on May 18, 2016, prehearing conference for 3:00 p.m., on May 23, 2016, and expedited hearing for May 31 through June 2, 2016.
On May 17, 2016, the parties filed a joint motion to unexpedite this matter and vacate the expedited dates.
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).1) 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) .) 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.
1 All subsequent references to the Code of Federal Regulations are to the 2006 version.
DISCUSSION
Student alleges in the complaint as Issue 1(i) that District should have held a manifestation determination meeting during the 2014-2015 school year because District suspended Student for more than 10 school days. Student was not expelled from school according to the complaint and currently attends a District school. Student does not seek, in the proposed resolutions that OAH order District to hold a manifestation determination meeting. Student does not allege facts that constitute an appeal pursuant to Section 1415(k)(3), and thus that the mandatory provisions of Section 1415(k)(4)(B) for an expedited hearing do not apply. Therefore, Student’s Issue 1(i), that District failed to hold a required manifestation determination meeting because he was suspended for more than 10 school days, will be treated as alleging a denial of a free appropriate public education, as opposed to a request for a manifestation determination meeting.
OAH will unexpedite a matter if no issue is alleged that is subject to an expedited hearing. The parties have demonstrated that although the complaint includes facts concerning the purported failure to hold a manifestation determination meeting, Student did not intend to raise it as an issue to require a manifestation determination meeting.
Accordingly, the expedited hearing dates will be vacated.
Student may only present his Issue 1(i) and the facts pertaining to it, as a denial of FAPE, and will be precluded from arguing any violations of the disciplinary provisions of the law that would have in an order that requires District to hold a manifestation determination meeting, including those contained in 20 U.S.C. section 1415(k)(3)(A); 34 C.F.R. section 300.532(a); and corresponding California law.
ORDER
1. The motion to unexpedite this matter is granted.
2. The following expedited dates are vacated: Prehearing Conference for
3:00 p.m., on May 23, 2016; and Expedited Hearing for May 31 through June 2, 2016.
3. This matter shall proceed on the unexpedited dates for mediation, prehearing
conference and hearing, as set forth in the May 5, 2016 scheduling order.
4. Student is precluded from raising any arguments in the Due Process Hearing
indicating violations of any provision of the IDEA and corresponding California law that would have led to an expedited hearing.
DATE: May 17, 2016
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings