California OAH special education order · July 6, 2018
Order Denying Student's Motion to Strike
OAH Case No. 2018030397 · ALJ Tiffany Gilmartin
OAH denied Student's motion to strike Berkeley's late response to the due process complaint. The response, though untimely, had been served, and no authority allows shifting the burden of proof as a remedy.
Summary
Student asked OAH to strike Berkeley's response to the amended due process complaint and order a legally compliant response, or else shift the burden of proof to Berkeley. Berkeley did not respond to the motion. OAH found Berkeley's response was untimely. Under M.C. v. Antelope Valley, the remedy for a missing response is an order requiring one, and Berkeley had already provided it. Student cited no authority for shifting the burden of proof, and the response was adequate because it took positions, disputed some allegations, and admitted some procedural and substantive failures.
Why it matters
A district's late or thin response to a due process complaint does not by itself shift the burden of proof to the district. The main remedy under M.C. v. Antelope Valley is an order compelling a response. Admissions in a district's response can still bind it to a position at hearing.
Key authority cited
- 20 U.S.C. § 1415(c)(2)(B)(i)(I)
- 20 U.S.C. § 1415(c)(2)(B)(ii)
- M.C. v. Antelope Valley Union High Sch. Dist. (9th Cir. 2017) 858 F.3d 1189
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. 2018030397 v. ORDER DENYING STUDENT’S
MOTION TO STRIKE
BERKELEY UNIFIED SCHOOL
DISTRICT.
Student filed a request for a due process hearing naming Berkeley Unified School District on March 8, 2018. Student then filed a motion to amend his due process request on May 10, 2018. Berkeley filed a notice of non-opposition and Student’s motion to amend was granted on May 14, 2018. On June 27, 2018, Berkeley filed with Student and OAH its response to Student’s amended request for due process complaint.
On June 29, 2018 Student filed its motion to strike requesting OAH strike Berkeley’s response from the record and order Berkeley to serve a legally compliant response on Student, or in the alternative, shift the burden of proof to Berkeley. Berkeley did not respond to Student’s motion to strike.
APPLICABLE LAW
The IDEA requires a school district to respond to a parent's due process complaint within 10 days. (20 U.S.C. §§ 1415(c)(2)(B)(i)(I) & 1415(c)(2)(B)(ii).) These procedural safeguards provide for two avenues for a district to provide a response to a parent: a prior written notice or a response to due process complaint. The Ninth Circuit in MC v. Antelope Valley held “a response serves an important dual purpose: It gives notice of the issues in dispute and binds the answering party to a position.” M.C. by & through M.N. v. Antelope Valley Union High Sch. Dist., (2017) 858 F.3d 1189, 1199–1200 (9th Cir.), cert. denied sub nom. Antelope Valley Union High Sch. Dist. v. M.C. ex rel. M.N., 138 S. Ct. 556, 199 L. Ed.
2d 437.
Student alleges Berkeley failed to timely respond to Student’s amended request for due process. The IDEA requires the school district to send a response to the parent within 10 days of receiving the complaint. (20 U.S.C. § 1415(B)(i)(I).) This obligation does not require the district to serve on OAH a copy of their response. However, Berkeley at the same time it served its response on Student also provided a copy to OAH. Berkeley’s response was untimely.
However, Student’s requested remedies are not available. As the MC court instructed, when a district has failed to filed a timely response, the ALJ must order a response. Here, Berkeley, while tardy, has complied with this directive. (MC v. Antelope Valley, supra, 858 F.3d 1189, 1199–1200.) Student provided no legal authority authorizing OAH to switch the burden of proof in a Student filed due process hearing over a question of sufficiency of Berkeley’s response to due process.
Student further alleges Berkeley’s response is insufficient and leaves Student “with no clue as to what claims she needs to prove.” Berkeley acknowledged in its response insufficiencies in its procedural and substantive obligations. Berkeley, by and through its response, acknowledges Student’s complaints, its proposed remedies, puts Student on notice it disputes some of the allegations, but also acknowledges the existence of procedural and substantive compliance failures. Thus, Berkeley’s response was within the intent the MC court laid out of “binds the answering party to a position.”
ORDER
Student’s motion to strike is DENIED.
DATE: July 6, 2018
TIFFANY GILMARTIN
Administrative Law Judge Office of Administrative Hearings