California OAH special education order · January 5, 2017
Order Granting District's Motion to Dismiss Issue No. 7
OAH Case No. 2017010013 · ALJ Alexa J. Hohensee
OAH dismissed Student's Section 504 retaliation claim (Issue No. 7) because OAH lacks jurisdiction over Section 504 claims; the remaining issues proceed as scheduled.
This case went to decision
Student v. Alhambra Unified School District (consolidated): Alhambra Unified prevails on all issues; ALJ upholds its non-diploma functional program offer and its speech and OT assessments. (2017)
Summary
District moved to strike Issue No. 7 of Student's complaint. The issue alleged that District retaliated against Parent, in violation of Section 504, for advocating for Student's special education rights. OAH treated the request as a motion to dismiss, and Student filed a non-opposition. OAH granted the motion because its jurisdiction is limited to IDEA matters and does not cover Section 504 retaliation claims.
Why it matters
Retaliation claims under Section 504 cannot be heard at OAH. Families should frame due process issues around IDEA identification, assessment, placement, or FAPE, and pursue Section 504 retaliation claims in another forum.
Key authority cited
- 20 U.S.C. § 1415(b)(6)
- Ed. Code, § 56501, subd. (a)
- Wyner v. Manhattan Beach Unified Sch. Dist. (9th Cir. 2000) 223 F.3d 1026
- 29 U.S.C. § 701 et seq.
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. 2017010013 v. ORDER GRANTING DISTRICT’S
MOTION TO DISMISS ISSUE NO. 7
ALHAMBRA UNIFIED SCHOOL
DISTRICT.
On December 15, 2016, Parent on behalf of Student filed a due process hearing request (complaint) with the Office of Administrative Hearings naming Alhambra Unified School District. On January 3, 2017, District filed a motion to strike Issue No. 7 of Student’s complaint, which will be treated as a motion to dismiss. On January 3, 2017, Student filed a non-opposition.
APPLICABLE LAW
The purpose of the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et.
seq.) is to “ensure that all children with disabilities have available to them a free appropriate public education”, and to protect the rights of those children and their parents. (20 U.S.C.
§ 1400(d)(1)(A), (B), and (C); see also Ed. Code, § 56000.) A party has the right to present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.”
(20 U.S.C. § 1415(b)(6); Ed. Code, § 56501, subd. (a) [party has a right to present a complaint regarding matters involving proposal or refusal to initiate or change the identification, assessment, or educational placement of a child; the provision of a FAPE to a child; the refusal of a parent or guardian to consent to an assessment of a child; or a disagreement between a parent or guardian and the public education agency as to the availability of a program appropriate for a child, including the question of financial responsibility].) The jurisdiction of OAH is limited to these matters. (Wyner v. Manhattan Beach Unified Sch. Dist. (9th Cir. 2000) 223 F.3d 1026, 1028-1029.)
OAH does not have jurisdiction to entertain claims based on Section 504 of the Rehabilitation Act of 1973 (Section 504) (29 U.S.C. § 701 et seq.).
DISCUSSION
Student’s complaint alleges at Issue No. 7 that District retaliated against Parent for advocating for her child’s special education rights, in violation of Section 504. District moves to strike, or dismiss, Issue No. 7 as outside of OAH jurisdiction.
OAH does not have jurisdiction to adjudicate retaliation claims under Section 504.
Accordingly, Issue No. 7 of Student’s complaint is dismissed.
ORDER
1. District’s motion to dismiss Issue No. 7 of Student’s complaint is granted.
2. The matter will proceed as scheduled as to the remaining issues.
DATE: January 5, 2017
ALEXA J. HOHENSEE
Administrative Law Judge Office of Administrative Hearings