California OAH special education order · July 1, 2016
Order Determining Due Process Complaint to Be Insufficient; Order Denying Motion to Dismiss as Moot
OAH Case No. 2016060882 · ALJ Darrell Lepkowsky
OAH found Student's complaint insufficient because it gave no facts showing how denying a transfer to a higher-performing middle school denied a free appropriate public education. District's motion to dismiss was denied as moot.
Summary
Student's complaint said District refused to place him in a special education program at a high-performing middle school instead of his underperforming home school, and asked for placement there. District filed a notice of insufficiency and, in the alternative, moved to dismiss for lack of jurisdiction. OAH found the complaint insufficient. It did not say when or to whom the request was made, when it was denied, what the programs at the two schools offered, or why Student needed the other school's program to make educational progress. Student was given 14 days to amend, and the motion to dismiss was denied without prejudice as moot.
Why it matters
A request to attend a preferred school must explain how the home school's program fails to meet the child's needs, not just that the other school performs better. Parents without lawyers can ask OAH for a mediator to help write the complaint.
Key authority cited
- 20 U.S.C. § 1415(b)(7)(A)
- 20 U.S.C. § 1415(c)(2)(D)
- 20 U.S.C. § 1415(c)(2)(E)(i)(II)
- Ed. Code, § 56505
- Escambia County Bd. of Educ. v. Benton (S.D. Ala. 2005) 406 F.Supp.2d 1248
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. 2016060882 v. ORDER DETERMINING DUE
PROCESS COMPLAINT TO BE
NORWALK-LA MIRADA UNIFIED INSUFFICIENT; ORDER DENYING
SCHOOL DISTRICT. MOTION TO DISMISS AS MOOT
On June 13, 2016, Parent on behalf of Student filed a Due Process Hearing Request1 (complaint) with the Office of Administrative Hearings naming the Norwalk-La Mirada Unified School District. On June 27, 2016, District timely filed a Notice of Insufficiency as to Student’s complaint. In the same pleading, District alternatively moved to dismiss Student’s complaint as beyond the jurisdiction of OAH.
APPLICABLE LAW
The named parties to a due process hearing request have the right to challenge the sufficiency of the complaint. (20 U.S.C. § 1415(b) & (c).) The party filing the complaint is not entitled to a hearing unless the complaint meets the requirements of title 20 United States Code section 1415(b)(7)(A).
A complaint is sufficient if it contains: (1) a description of the nature of the problem of the child relating to the proposed initiation or change concerning the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child; (2) facts relating to the problem; and (3) a proposed resolution of the problem to the extent known and available to the party at the time. (20 U.S.C.
§ 1415(b)(7)(A)(ii)(III) & (IV).) These requirements prevent vague and confusing complaints, and promote fairness by providing the named parties with sufficient information to know how to prepare for the hearing and how to participate in resolution sessions and mediation. (See H.R.Rep. No. 108-77, 1st Sess. (2003), p. 115; Sen. Rep. No. 108-185, 1st Sess. (2003), pp. 34-35.)
1 A request for a due process hearing under Education Code section 56502 is the due process complaint notice required under title 20 U.S.C. section 1415(b)(7)(A).
The complaint provides enough information when it provides “an awareness and understanding of the issues forming the basis of the complaint.” (Sen. Rep. No. 108-185, supra, at p. 34.) The pleading requirements should be liberally construed in light of the broad remedial purposes of the IDEA and the relative informality of the due process hearings it authorizes. (Alexandra R. ex rel. Burke v. Brookline School Dist. (D.N.H., Sept. 10, 2009, CIV. 06-CV-0215-JL) 2009 WL 2957991[nonpub. opn.]; Escambia County Bd. of Educ. v.
Benton (S.D. Ala. 2005) 406 F.Supp.2d 1248, 1259-1260; Sammons v. Polk County School Bd. (M.D. Fla., Oct. 28, 2005, 8:04CV2657T24EAJ) 2005 WL 2850076 [nonpub. opn.]; but cf. M.S.-G v. Lenape Regional High School Dist. Bd. of Educ. (3d Cir. 2009) 306 Fed.Appx.
772, 775 [nonpub. opn.].) Whether the complaint is sufficient is a matter within the sound discretion of the Administrative Law Judge. (Assistance to States for the Educ. of Children with Disabilities & Preschool Grants for Children with Disabilities (Aug. 14, 2006) 71 FR 46,540-46541, 46699.)
DISCUSSION
Student’s complaint contains one issue. Student contends that he was denied placement in a special education program at a high-performing middle school he wanted to attend rather than continuing to attend his home school. Student contends that his home school is underperforming and socioeconomically disadvantaged. As a remedy, Student requests placement at the school of his choice.
Student’s complaint is insufficient because it fails to present any facts in support of his claim. Student has not stated when he requested the change to the alternative school, to whom he made the request, and when District denied it. Most importantly, Student’s allegations fail to state why or how District’s actions in denying him the transfer to the school of his choice may have denied Student a free appropriate public education. Student does not state what his program consists of at his home school, what the program consists of at the alternative school, and whether he needs a program offered at the alternative school that is not available at his home school to access his education and make meaningfully educational progress. Student’s complaint therefore fails to put District on notice of the allegations against it in such a fashion that District would be able to knowledgeably participate in a resolution session or mediation, or defend against Student’s allegations at a due process hearing.
For these reasons, Student’s complaint is insufficient as presently plead.
MEDIATOR ASSISTANCE FOR NON-REPRESENTED PARENTS
A parent who is not represented by an attorney may request that OAH provide a mediator to assist the parent in identifying the issues and proposed resolutions that must be included in a complaint. (Ed. Code, § 56505.) Parent is encouraged to contact OAH for assistance if he intends to amend the due process hearing request.
ORDER
1. Student’s complaint is insufficiently pled under section title 20 United States
Code 1415(c)(2)(D).
2. Student shall be permitted to file an amended complaint under title 20 United
States Code section 1415(c)(2)(E)(i)(II).2
3. The amended complaint shall comply with the requirements of title 20 U.S.C.
section 1415(b)(7)(A)(ii), and shall be filed not later than 14 days from the date of this order.
4. If Student fails to file a timely amended complaint, the complaint will be
dismissed.
5. All dates previously set in this matter are vacated.
6. Since Student’s complaint is deemed insufficient in its entirety, District’s
motion to dismiss is denied without prejudice as the motion is now moot.
DATE: July 1, 2016
DARRELL LEPKOWSKY
Administrative Law Judge Office of Administrative Hearings 2 The filing of an amended complaint will restart the applicable timelines for a due process hearing.