California OAH special education order · November 2, 2017
Order Denying Motion for Stay Put
OAH Case No. 2017060552 · ALJ Christine Arden
OAH denied New School's stay put motion seeking to compel Student's attendance, because stay put protects a student's right to remain in placement and does not let a school force attendance at a disputed placement.
Summary
Student's due process complaint alleges New School denied Student a FAPE by failing to provide a safe place to calm down, transportation, behavior support, and homework. It also alleges New School blocked Mother's participation by withholding information about restraint incidents. New School filed a stay put motion asking OAH to compel Student, who had not attended since October 3, 2017, to attend school, and Mother opposed, arguing the placement is unsafe. OAH denied the motion because stay put entitles a student to remain in the current placement during a pending case, but it does not allow a school to compel attendance at the very placement in dispute.
Why it matters
Stay put is a protection for the student, not a tool for a school or district to force a child back into a placement the parent is challenging as unsafe. Schools concerned about non-attendance must use other avenues.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518(a)
- Ed. Code, § 56505, subd. (d)
- Cal. Code Regs., tit. 5, § 3042, subd. (a)
- 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. 2017060552 v. ORDER DENYING MOTION FOR
STAY PUT
THE NEW SCHOOL OF SAN
FRANCISCO.
On October 24, 2017, The New School of San Francisco (New School) filed a motion for stay put. On October 25, 2017, Mother filed an opposition arguing that the placement offered by District is unsafe for Student.
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); 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.)
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).)
DISCUSSION
Mother filed this action with the Office of Administrative Hearings on behalf of Student on June 12, 2017, naming New School. Student alleges New School denied Student a free appropriate public education by failing to provide Student with: a safe place to calm down; transportation; behavior support; and homework. The complaint also alleges New School impeded Mother’s ability to participate in the IEP process by failing to provide her with information about incidents when Student was physically restrained at school.
According to New School, Mother is denying Student a FAPE because Student has not attended school since October 3, 2017. New School also contends Mother demanded New School provide Student with an alternative placement, and she refuses to bring him to school until one is offered.
New School’s motion for stay put seeks an order compelling Student to attend an educational placement that Mother contends is not safe for Student, which is the basis for the due process matter. Stay put entitles a student to remain in his or her current educational placement while a due process complaint is pending. It does not entitle a local educational agency to compel a student to attend the educational placement in dispute in the due process proceeding while it is pending.
ORDER
The motion for stay put is denied.
IT IS SO ORDERED.
DATE: November 2, 2017
CHRISTINE ARDEN
Administrative Law Judge Office of Administrative Hearings