California OAH special education order · June 1, 2016
Order Granting Motion to Unexpedite Hearing
OAH Case No. 2016050759 · ALJ Peter Paul Castillo
OAH granted District's unopposed motion to unexpedite because Student's claim about a missed manifestation determination meeting sought no such meeting and was not a disciplinary appeal, so it will be heard as a FAPE claim.
Summary
District asked OAH to unexpedite the case and vacate the expedited prehearing conference and hearing dates, arguing that Student raised no issue requiring an expedited hearing. Student did not respond. OAH found that Issue 6, which alleged District should have held a manifestation determination meeting after suspensions of more than 10 school days, was not an appeal under 20 U.S.C. section 1415(k)(3). Student was not expelled, was attending a District school, and did not ask OAH to order a manifestation determination meeting. OAH therefore treated Issue 6 as a denial of a free appropriate public education (FAPE) claim, vacated the expedited dates, and barred Student from arguing violations of the IDEA's disciplinary provisions at hearing.
Why it matters
A complaint that mentions a missed manifestation determination will not get an expedited hearing unless it actually appeals a disciplinary placement change or a manifestation determination and asks for that kind of relief. Parents who want expedited disciplinary relief should plead it clearly and respond when the district moves to unexpedite, or they may lose the right to raise disciplinary arguments at hearing.
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. 2016050759 v. ORDER GRANTING MOTION TO
UNEXPEDITE HEARING
HACIENDA LA PUENTE UNIFIED
SCHOOL DISTRICT.
On May 13, 2016, Student filed a Due Process Hearing Request (complaint) against Hacienda La Puente Unified School District. On May 19, 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 prehearing conference for 3:00 p.m., on June 3, 2016, and expedited hearing for June 7 through 9, 2016.
On May 23, 2016, District filed a motion to unexpedite this matter and vacate the expedited dates, contending that Student did not allege an expedited issue for hearing.
Student did not submit a response.
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 in Issue 6 that District should have held a manifestation determination meeting during the 2015-2016 school year because District suspended Student for more than 10 school days.2 Student was not expelled from school according to the complaint and currently attends a District school, although Parents have decided that Student will not attend a District school due to bullying. 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 6, 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. District has 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 6 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. District’s motion to unexpedite this matter is granted.
2. The following expedited dates are vacated: Prehearing Conference for
3:00 p.m., on June 3, 2016; and Expedited Hearing for June 7 through 9, 2016.
3. This matter shall proceed on the unexpedited dates for mediation, prehearing
conference and hearing, as set forth in the May 19, 2016 scheduling order.
2 District’s contention that Student was only suspended for eight days, and therefore not entitled to a manifestation determination meeting, is a triable issue for hearing as to whether Student was suspended for more or less than 10 days.
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: June 1, 2016
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings