California OAH special education order · November 30, 2017
Order Granting Motion for Stay Put
OAH Case No. 2017111027 · ALJ Paul H. Kamoroff
OAH granted Student stay put at De Portola Middle School after District revoked her inter-district transfer permit, because whether the removal denied a FAPE requires a hearing.
Summary
Student moved for stay put after District removed her from De Portola Middle School over absences by revoking her inter-district transfer permit. Her last agreed IEP, dated December 12, 2016, placed her at Vista Grande Elementary, and she moved up to De Portola with the start of the new school year. District did not dispute these facts and argued that revoking a transfer permit is not a FAPE issue, so OAH lacked jurisdiction. OAH found that Student's claim that the removal denied her a FAPE needs an evidentiary hearing and ordered District to implement the December 12, 2016 IEP while the case is pending.
Why it matters
A district cannot avoid stay put by describing a student's removal as an inter-district transfer permit decision rather than a placement change. When the student has attended the school under an agreed IEP, stay put can keep the student there during the dispute. Moving up to the next grade's school keeps the status quo.
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)
- Van Scoy v. San Luis Coastal Unified School Dist. (C.D. Cal. 2005) 353 F.Supp.2d 1083
- Ms. S. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115
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:
PARENTS ON BEHALF OF STUDENT, OAH Case No. 2017111027 v. ORDER GRANTING MOTION FOR
STAY PUT
SAN DIEGO UNIFIED SCHOOL
DISTRICT.
On November 17, 2017, Parents on behalf of Student filed request for due process hearing with the Office of Administrative Hearings, naming San Diego Unified School District. On that same date, Student submitted a motion for stay put. On November 29, 2017, District filed an opposition.1
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)2; 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).)
Courts have recognized, however, that because of changing circumstances, the status quo cannot always be replicated exactly for purposes of stay put. (Ms. S. ex rel. G. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115, 1133-35, superseded by statute on other grounds, 20 U.S.C. § 1414(d)(1)(B).) Progression to the next grade maintains the status quo District’s opposition included a motion to dismiss which will not be ruled on because the motion must be filed separately from a responsive pleading.
All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.
for purposes of stay put. (Van Scoy ex rel. Van Scoy v. San Luis Coastal Unified School Dist.
(C.D. Cal. 2005) 353 F.Supp.2d 1083, 1086 [“stay put” placement was advancement to next grade]; see also Beth B. v. Van Clay (N.D. Ill. 2000) 126 F.Supp.2d 532, 534; Fed.Reg., Vol.
64, No. 48, p. 12616, Comment on § 300.514 [discussing grade advancement for a child with a disability.].)
DISCUSSION
Student raises two claims in her complaint. Issue one is relevant to Student’s request for stay put and alleges that District denied her a free appropriate public education by unilaterally removing Student from her educational placement. In Student’s stay put request, she alleges that her last agreed upon and effective individualized education program is dated December 12, 2016. Per that IEP, Student’s educational placement was located at Vista Grande Elementary School. Student naturally matriculated to De Portola Middle School at the beginning of the 2017-2018 school year, which Student attended through November 17,
2017. At that time, District unilaterally removed Student from De Portola. Student attended
both Vista Grande and De Portola based upon an inter-district transfer permit, agreed upon each year by District. Student complains that District unlawfully removed her from De Portola based upon absences and that she does not have an alternative education placement to attend.
District does not dispute Student’s allegations. Rather, District asserts that its revocation of the inter-district transfer permit did not deny Student a FAPE. Therefore, OAH does not have jurisdiction over this matter. However, District overlooks that Student’s issue one claims that District denied her a FAPE by unilaterally removing her from her last agreed upon IEP placement, De Portola. Whether District’s conduct denied Student a FAPE is a question that requires an evidentiary hearing. Student is entitled to remain in her last agreed upon and implemented placement during the pendency of the hearing. Consequently, Student’s request for stay put is granted.
ORDER
Student’s request for stay put is granted. District shall implement Student’s last agreed upon IEP of December 12, 2016, during the pendency of this matter.
DATE: November 30, 2017
PAUL H. KAMOROFF
Administrative Law Judge Office of Administrative Hearings