California OAH special education order · March 3, 2017
Order Denying Motion for Stay Put
OAH Case No. 2017021152 · ALJ Rebecca Freie
OAH denied Student's stay put motion to return to his high school because his removal for alleged controlled-substance possession was disciplinary, making the community day school his stay put placement.
Summary
Student filed an expedited complaint challenging San Diego's finding that a February 3, 2017 incident, in which he was allegedly found with a controlled substance, was not a manifestation of his disability. With the complaint, Student moved for stay put at the high school he attended before the incident, and San Diego opposed. OAH denied the motion. It held that during an appeal of a disciplinary removal, the student stays in the interim alternative educational setting, here a community day school, until the hearing decision or the end of the 45-school-day period, whichever comes first.
Why it matters
Filing a manifestation determination appeal does not return a student to his prior school during the case when the removal is disciplinary, especially for drug, weapon, or serious-injury incidents. Families should expect the interim alternative setting to remain in place until the expedited hearing decision or the 45-school-day limit.
Key authority cited
- 20 U.S.C. § 1415(j)
- 20 U.S.C. § 1415(k)(1)(G)
- 20 U.S.C. § 1415(k)(4)(A)
- 34 C.F.R. § 300.533
- Ed. Code, § 56505, subd. (d)
- Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618
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. 2017021152 v. ORDER DENYING MOTION FOR
STAY PUT
SAN DIEGO UNIFIED SCHOOL
DISTRICT.
On February 24, 2017, Student filed a request an expedited hearing (complaint) with the Office of Administrative Hearings, naming San Diego Unified School District. The complaint contained some issues that were expedited, i.e., related to a disciplinary action against Student, and other issues that were unexpedited, allegations that Student was denied a free appropriate public education for the 2015-2016 and 2016-2017 school years. OAH issued a scheduling order containing dates for mediation, prehearing conference, and hearing for the expedited portion of the case, and later dates for mediation, prehearing conference and hearing for the unexpedited portion of the case.
On February 24, 2017, Student also filed a motion for stay put at the high school he was attending until February 3, 2017, when he was removed for disciplinary reasons. On February 28, 2017, San Diego Unified School District filed an opposition to the motion for stay put on grounds that Student is not entitled to stay put at this high school because he was removed from his high school for disciplinary reasons, and assigned to a community day school, pending possible expulsion proceedings.
APPLICABLE LAW
Until due process hearing procedures are complete, a special education student is entitled to remain in his or her current educational placement, unless the parties agree otherwise. (20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a) (2006)1; Ed. Code, § 56505 subd. (d).) This is referred to as “stay put.” For purposes of stay put, the current educational placement is typically the placement called for in the student’s individualized education program, which has been implemented prior to the dispute arising. (Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618, 625.)
All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.
In California, “specific educational placement” is defined as “that unique combination of facilities, personnel, location or equipment necessary to provide instructional services to an individual with exceptional needs,” as specified in the IEP. (Cal. Code Regs. tit. 5, § 3042, subd. (a).)
When a child violates a code of student conduct and school personnel seek to order a change in placement that would exceed ten school days, the local educational agency, the parent, and the relevant members of the IEP team shall determine whether the conduct was a manifestation of the child’s disability. A child’s parent may appeal the manifestation determination that the conduct by requesting an expedited due process hearing.2 (20 U.S.C.
§ 1415(k); 34 C.F.R. § 300.532).)
School personnel may remove a student to an interim alternative placement for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child's disability if the student:
(i) carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or local educational agency;
(ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency; or (iii) has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency.
(20 U.S.C. § 1415(k)(1)(G); See also 34 C.F.R. §§ 300.530(j).)
While the appeal is pending, the child shall remain in an interim alternative educational setting pending the decision of the hearing officer or until the expiration of the 45 school-day interim alternative placement, whichever occurs first, unless the parent and the LEA agree otherwise. (Ed.Code, § 56505, subd. (d); see 20 U.S.C. §1415(k)(4)(A) & 34
C.F.R. §§ 300.532, 300.533.)
DISCUSSION
In such cases, “the State or local education agency shall arrange for an expedited hearing.” (20 U.S.C. § 1415(k)(4)(B); 34 C.F.R. § 300.532(c).) The expedited hearing shall occur within 20 school days of the date the hearing is requested. (Id.)
Student began attending a San Diego high school in August 2016. His last implemented IEP is dated October 6, 2016. In his complaint filed on February 24, 2017, Student claimed that San Diego Unified School District erred on February 15, 2017, at a manifestation determination meeting, when it found that an incident on February 3, 2017, which resulted in a referral for expulsion, was not a manifestation of his disability. In his motion for stay put Student claims that the behavioral incident was a manifestation of his disability, Parent does not agree with the determination of the team on February 15, 2017, and Parent does not agree to a placement anywhere other than the high school he was attending at the time of the incident.
On February 28, 2017, San Diego filed an opposition to the motion for stay put, asserting that Student was not entitled to stay put at the high school he was attending on February 3, 2017, because an interim alternative educational setting at a community day school is Student’s stay put placement. In his complaint, Student states that on February 3, 2017, he was “allegedly . . . found in position of a controlled substance.”
There appears to be no dispute between the parties that Student’s removal was for disciplinary reasons. However, Student contends that the behavior that led to his removal was a manifestation of his disability and San Diego disagreed at the manifestation determination IEP team meeting on February 15, 2017.
Student is not entitled to stay put at the school he was attending on February 3, 2017, because he was removed from that school for disciplinary reasons. San Diego is correct that his stay put placement is the community day school which is an interim alternative educational setting. Student’s motion for stay put is therefore denied.
ORDER
Student’s motion for stay put is denied.
IT IS SO ORDERED.
DATE: March 3, 2017
REBECCA FREIE
Administrative Law Judge Office of Administrative Hearings