California OAH special education order · June 20, 2017
Order Granting Motion to Unexpedite Hearing
OAH Case No. 2017040384 · ALJ Peter Paul Castillo
OAH granted Student's unopposed motion to unexpedite and dismissed the remaining expedited issues without prejudice, because withdrawing the issues that triggered an expedited hearing allows the matter to proceed on the regular track.
Summary
Student's amended complaint against Anderson Valley included expedited discipline-related issues. One of those issues was dismissed at the expedited prehearing conference, and Student then moved to withdraw the two remaining expedited issues without prejudice and vacate the expedited hearing dates. Anderson Valley did not respond. OAH explained that an expedited matter can be unexpedited only if no expedited issue remains, the student withdraws the triggering issues, or the student elects the regular due process track. It granted the motion, vacated the June 21 to 23, 2017 expedited dates, and kept the non-expedited mediation, prehearing conference, and hearing dates.
Why it matters
Expedited discipline hearings are mandatory and cannot simply be continued. A family who wants more time, or who wants to combine discipline claims with other claims, generally has to withdraw the expedited issues. Withdrawing them without prejudice keeps the right to raise them later.
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)
- Molina v. Bd. of Educ. of Los Lunas Schools (D.N.M. 2016) 157 F.Supp.3d 1064
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. 2017040384 v. ORDER GRANTING MOTION TO
UNEXPEDITE HEARING
ANDERSON VALLEY UNIFIED
SCHOOL DISTRICT.
On April 10, 2017, Student filed a Due Process Hearing Request (complaint) against Anderson Valley. On that day, based on issues asserted in the complaint, the Office of Administrative Hearings issued a Scheduling Order and Notice of Expedited and Non- Expedited Due Process Hearing and Mediation Dates. (Scheduling Order).
On April 28, 2017, Student filed a Withdrawal of Expedited Issues specifying four issues Student wished to withdraw. The Withdrawal was deemed a motion to unexpedite the matter and to vacate the expedited dates, which OAH granted on May 1, 2017.
On May 26, 2017, Student filed an amended Due Process Hearing Request (complaint) against Anderson Valley. On May 26, 2017, based on issues asserted in the amended complaint, OAH issued a Scheduling Order and Notice of Expedited and Non- Expedited Due Process Hearing and Mediation (Scheduling Order). The Scheduling Order set this matter for expedited hearing to commence on June 21, 2017, and non-expedited hearing to commence on July 20, 2017, with a July 14, 2017 prehearing conference.
On June 19, 2017, Student filed a motion to withdraw without prejudice the expedited issues and vacate the expedited dates. OAH did not receive a response from Anderson Valley.
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 1 All subsequent references to the Code of Federal Regulations are to the 2006 version.
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.) A matter can only be unexpedited or continued if no issue is alleged that is subject to an expedited hearing, if the student withdraws the issues in the complaint that triggered the expedited hearing, or if the student elects to challenge the change of placement under title 20, section 1415. Subdivision (b)(6)(A) and not subdivision (k). (Molina v. Bd. Of Educ. Of Los Lunas Schools (D.N.M.
2016) 157 F.Supp.3d 1064, 1068-1071.)
DISCUSSION
The amended complaint alleges expedited issues for hearing in Issues 2(f), (g) and (h). Issue 2(f) was dismissed at the expedited prehearing conference and the matter was to proceed for expedited hearing on Issues 2(g) and (h). Student’s June 19, 2017 withdrawal of expedited issues without prejudice removes these expedited issues for hearing. Accordingly, the expedited hearing dates will be vacated. The matter will proceed as to remaining non- expedited issues.
ORDER
1. The motion to unexpedite this matter is granted. Issues 2(g) and (h) are
dismissed without prejudice.
2. The following expedited hearing dates are vacated of June 21 – 23, 2017.
3. The unexpedited matter shall proceed on the following dates: Mediation on
June 29, 2017, 9:30 a.m.; Prehearing Conference on July 14, 2017, at 3:00 p.m.; and Hearing on July 20, 2017, at 9:30 a.m.
DATE: June 20, 2017
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings