California OAH special education order · April 24, 2018

Order Granting Motion to Unexpedite Hearing

OAH Case No. 2018040284 · ALJ Linda Johnson

OAH granted Student's unopposed motion to unexpedite. Student withdrew the manifestation determination and disciplinary removal issues, so OAH dismissed them and vacated the expedited hearing dates.

Granted Expedited hearings

Summary

Student's complaint challenged a manifestation determination and a disciplinary removal of more than 10 school days, which triggered an expedited hearing. The complaint also raised a non-expedited claim about behavior services. Student moved to withdraw the expedited issues and vacate the expedited dates, and District did not respond. Because a matter can be unexpedited only when the student withdraws the issues that triggered the expedited hearing, OAH dismissed Issues 1 through 4, vacated the May 1–3, 2018 expedited hearing, and kept the non-expedited prehearing conference on May 21 and hearing on May 30, 2018.

Why it matters

OAH cannot continue an expedited discipline hearing, so a family that wants more time must withdraw the expedited manifestation determination claims. Those claims are dismissed, while the non-expedited FAPE claims go forward on the regular schedule.

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
  • 20 U.S.C. § 1415(b)(6)(A)
  • Molina v. Bd. of Educ. of Los Lunas Schools (D.N.M. 2016) 157 F.Supp.3d 1064

Topics

expedited hearing manifestation determination unexpedite discipline withdrawal of issues

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. 2018040284 v. ORDER GRANTING MOTION TO

UNEXPEDITE HEARING

SAN DIEGO UNIFIED SCHOOL

DISTRICT.

On April 5, 2018, Student filed a Due Process Hearing Request (complaint) naming San Diego Unified School District. On April 9, 2018, 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 (Scheduling Order). The Scheduling Order set this matter for an expedited mediation on April 19, 2018, an expedited prehearing conference on April 23, 2018, and a non-expedited prehearing conference on May 21, 2018, an expedited due process hearing commencing on May 1, 2018, and a non- expedited due process hearing commencing on May 30, 2018.

On April 19, 2018, Student filed a motion to withdraw the expedited issue and vacate the expedited dates. District has not filed a response.

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 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 1 All subsequent references to the Code of Federal Regulations are to the 2006 version.

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

Student alleges District denied him a free appropriate public education due when it held a manifestation determination review meeting without his parent present, when it failed to explain the manifestation paperwork to Student’s parent, when it determined Student’s behavior was not a manifestation of his disability, and when it removed Student from school for more than 10 school days. OAH determined that these issues required an expedited hearing as they were challenges to a manifestation determination and Student’s placement was being changed due to disciplinary issues. Student also alleged District denied him a FAPE by not providing appropriate behavior services.

Student requested that the expedited due process hearing be dismissed. Accordingly, the issues regarding the manifestation determination review meeting and subsequent removal from school will be dismissed and the expedited hearing dates will be vacated.

ORDER

1. The motion to unexpedite this matter is granted. Issues 1, 2, 3, and 4 are

dismissed.

2. The expedited due process hearing dates commencing on May 1, 2018 and

continuing on May 2, and 3, 2018 are vacated.

3. The unexpedited matter shall proceed on the following dates: prehearing

conference on May 21, 2018, and due process hearing commencing on May 30, 2018.

DATE: April 24, 2018

LINDA JOHNSON

Administrative Law Judge Office of Administrative Hearings