Order Following June 18, 2018 Prehearing Conference on Expedited Issues

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENTS ON BEHALF OF STUDENT, OAH Case No. 2018050377 v. ORDER FOLLOWING JUNE 18, 2018

PREHEARING CONFERENCE ON

PALOS VERDES PENINSULA UNIFIED EXPEDITED ISSUES

SCHOOL DISTRICT.

On June 18, 2018, a telephonic prehearing conference was held before Administrative Law Judge Darrell Lepkowsky, Office of Administrative Hearings. Virginia L. March, Attorney at Law, appeared on behalf of Student. Student’s mother also was present during the PHC. Jibari Willis, Attorney at Law, appeared on behalf of Palos Verdes Peninsula Unified School District. The ALJ recorded the PHC.1 Based upon discussion with the parties, the ALJ issues the following order:

1. Hearing Dates, Times, and Location. The expedited hearing portion of this

case shall take place on June 26, 27, and 28, 2018, and continuing day to day, Monday through Thursday, at the discretion of the ALJ. The hearing shall take place at the District’s offices located at 375 Via Almar, Tower Conference Room, Palos Verdes Estates, California, 90274. The hearing shall begin at 9:30 a.m. the first day of the hearing and at 9:00 a.m. all other days, unless otherwise ordered.

As required, the named local educational agency certified that its facilities for the hearing fully comply with the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), the Rehabilitation Act of 1973 (29 U.S.C. § 794 et seq.), the Unruh Civil Rights Act (Civ.

Code, § 51 et seq.), and all laws governing accessibility of government facilities to persons with disabilities. The local educational agency shall immediately inform OAH if it is no longer able to certify that its facilities for the hearing comply with all applicable laws.

Prior to the beginning of the hearing, District shall ensure that the hearing room is configured into a courtroom setting and shall have at a minimum (1) a table for Student and his representatives; (2) a table for District’s legal representative and special education OAH granted Student’s request to amend his complaint on May 31, 2018. District filed its response to Student’s amended complaint on June 8, 2018, which permits the hearing to go forward. (M.C. v. Antelope Valley Unified Sch. Dist. (9th Cir. 2017) 858 F.3d 1189, 1199-1200.)

representative; (3) a table for the witness; and (4) a table for the ALJ, near an electrical outlet. District shall provide drinking water and tissue to all parties, witnesses and the ALJ.

The same hearing room shall be used for each day of hearing and shall be available at least one hour prior to the commencement of the hearing each day. The hearing room shall be locked following the hearing each night. District shall ensure that the hearing room and access to it are in compliance with the Americans with Disabilities Act.

District shall also arrange a separate room for Student and his representative(s) to use during breaks in the hearing. The room shall be available to Student at least a half hour before the start of the hearing each day, during hearing breaks, and during lunch.

The parties shall immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses if necessary, to ensure that the witnesses will be available to testify.

A witness will not be regarded as unavailable for purposes of showing “good cause” to continue the hearing if the witness is not properly notified of the hearing date or properly subpoenaed, as applicable.

2. Issues and Proposed Resolutions. The issues at the expedited due process

hearing, and the proposed resolutions, are listed below.

(1) Did District deny Student a free appropriate public education during March and April 2018, by:

a. failing to adhere to the “stay-put” provision of the Individuals with

Disabilities Education Act, during the period that Student was and is in expulsion proceedings and during the pendency of this due process proceeding?

b. Failing to conduct a manifestation determination review before moving

to expel him? To remedy his issues, Student requests that OAH order District to:

(1) Rescind Student’s expulsion and expunge his records of documents or references relating to the expulsion;

(2) Write to the California Interscholastic Federation after the expulsion is rescinded and expunged and inform it that no disciplinary matters are pending against Student.

3. ALJ’s Sua Sponte Dismissal of Issues: At the PHC, the ALJ dismissed the

following issues as beyond the jurisdiction of OAH in special education due process proceedings:

a. Student’s issue 6: District’s alleged failure to provide a safe school

environment resulting in Student being attacked by a fellow pupil in November 2014, and District’s failure to adhere to Safe School Guidelines;

b. Student’s issue 7: District’s alleged failure to respect Student’s rights during

expulsion procedures by failing to follow Welfare and Institutions Code, section 625.6, subdivision (a), and failing to advise Student of his Miranda rights;

c. Student’s issue 10: District expelled Student without substantial and

appropriate evidence to support Student’s expulsion under Education Code, section 48900, subdivisions (c) and (d); and,

d. Student’s issue 11: Student’s expulsion has resulted in him being precluded

from participating in California Interscholastic Federation sports.

The purpose of the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et.

seq.) is to “ensure that all children with disabilities have available to them a free appropriate public education”, and to protect the rights of those children and their parents. (20 U.S.C.

§ 1400(d)(1)(A), (B), and (C); see also Ed. Code, § 56000.) A party has the right to present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” (20 U.S.C. § 1415(b)(6); Ed. Code, § 56501, subd. (a) [party has a right to present a complaint regarding matters involving proposal or refusal to initiate or change the identification, assessment, or educational placement of a child; the provision of a FAPE to a child; the refusal of a parent or guardian to consent to an assessment of a child; or a disagreement between a parent or guardian and the public education agency as to the availability of a program appropriate for a child, including the question of financial responsibility].) The jurisdiction of OAH is limited to these matters. (Wyner v. Manhattan Beach Unified Sch. Dist. (9th Cir. 2000)

223 F.3d 1026, 1028-1029.)

OAH does not have jurisdiction over the allegations Student has raised in his issues 6, 7, 10, and 11, as these issues do not implicate Student’s rights under Title 20 of the United States Code, section 1415, subdivisions (b) or (k). They are therefore dismissed with prejudice.

3. Exhibits. Exhibits shall be pre-marked and placed in three-ring exhibit

binders prior to the hearing. The parties shall use numbers to identify exhibits, but shall place the letter “S” or “D” in front of the exhibit to designate if it is a Student or District exhibit (for example, “S-5, S-6,” or “D-1, D-2”). Each exhibit shall be internally paginated by exhibit, or all of a party’s exhibits shall be Bates-stamped. Each exhibit binder shall contain a detailed table of contents. The parties shall serve their evidence binders on each other in compliance with Education Code section 56505, subdivision (e)(7). At the hearing, each party shall supply an exhibit binder containing its exhibits for use by the ALJ, and a second exhibit binder for use by witnesses. The parties may not serve exhibits on OAH prior to the hearing. In the event of duplicate exhibits, the most legible version will be used.

Each exhibit shall consist of one document; separate documents may not be combined into one exhibit. To the extent practicable, exhibits in the binders shall be in chronological order.

The parties shall meet and confer by 5:00 p.m. on June 21, 2018, to delete duplicate exhibits from the exhibit binders. If the parties have duplicate exhibits, they shall jointly determine which shall be used at hearing. The duplicate exhibit not to be used shall be removed from the respective binder prior to the hearing. The parties are not required to renumber exhibits if exhibits are deleted from notebooks.

The parties shall exchange resumes for each witness who is expected to testify as to their professional credentials. Notwithstanding the requirements of Education Code section 56505, subdivision (e)(7), the parties shall exchange resumes and curriculum vitae not later than June 21, 2018.

District shall include as part of its exhibits the school calendar(s) for all of the years at issue. Notwithstanding the requirements of Education Code section 56505, subdivision (e)(7), District shall serve a copy of the school calendar(s) on Student by June 21, 2018, and include the school calendar(s) in the binders provided for use by the witnesses and the ALJ.

Except for good cause shown, or unless used solely for rebuttal or impeachment, any exhibit not timely exchanged shall not be admitted into evidence at the hearing unless it is supported by written declaration under penalty of perjury, and the ALJ rules that it is admissible. Education Code section 56505, subdivision (e)(8), affords each party the right to prohibit the introduction of any evidence at the hearing that has not been disclosed at least five business days before the hearing.

4. Witnesses. Each party is responsible for procuring the attendance at hearing

of its own witnesses, and shall subpoena witnesses if necessary, to ensure that the witnesses will be available to testify. Each party shall make witnesses under its control reasonably available. The parties shall schedule their witnesses to avoid delays in the hearing and to minimize or eliminate the need for calling witnesses out of order.

The parties shall comply with Education Code section 56505, subdivision (e)(7). No party shall be permitted to call any witnesses not timely disclosed except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the

ALJ.

On the first day of hearing before the first witness testifies, the parties shall provide the ALJ with one joint detailed hour-by-hour schedule of all witnesses expected to testify at hearing, which list shall also include an estimate of time for each party’s direct and cross-examination. Counsel shall meet and confer each day of hearing to revise the witness schedule as needed.

The parties are ordered to meet and confer by no later than June 21, 2018, at 5:00 p.m., to identify witnesses on their respective witness lists who cannot be produced at hearing without a subpoena and provide the witnesses’ contact information to opposing counsel so that subpoenas can be issued. As part of the meet and confer process, District’s counsel shall inform Student’s counsel as to whether the witnesses on Student’s witness list are employed by or otherwise under the control of District, and if not, shall provide Student’s counsel with the witness(es)’ most recent contact information by no later than June 21, 2018, at 2:00 p.m. Any contact information provided by District shall be used by Student’s counsel for the limited purpose of issuing subpoenas or for contacting the witness(es) for purposes of attending the hearing and shall not be disseminated to any other person(s). The parties shall also meet and confer by 5:00 p.m. on June 21, 2018, as to the schedule of witnesses and coordinate the availability and order of witnesses to ensure that there is a witness available to testify at all times during the hearing and to ensure that the hearing is completed as scheduled. The parties shall also meet and confer regarding the one joint detailed hour-by-hour schedule District shall have witnesses available in case agreement on a witness list is not reached. The parties shall be prepared at the end of each day of hearing to discuss the witnesses to be presented the next day and the time the testimony each witness is expected to take.

The parties are encouraged to review and shorten their witness lists prior to the hearing, bearing in mind that evidence will be excluded if it is repetitive, cumulative, or insufficiently probative to justify the time it would take to hear such evidence. The ALJ has discretion to limit the number of witnesses who testify and the time allowed for witnesses’ testimony. Education Code, section 56505.1, subdivision (h), empowers the ALJ presiding at a due process hearing to set a reasonable limit on the length of the hearing after consideration of all of the following: (i) issues to be heard, (ii) complexity of facts to be proven, (iii) ability of the parties or their representatives to present their respective cases, and (iv) estimates of the parties as to the time needed to present their respective cases.

5. Scope of Witness Examination. Each witness shall be called to testify only

once, except for rebuttal purposes, and all parties shall examine the witness on all issues when the witness is first called. After the first direct and cross-examinations, each party shall be limited in examining the witness to only those matters raised in the immediately preceding examination unless otherwise permitted by the ALJ. The order in which the parties present their cases in chief shall be subordinate to the need for each witness to appear only once. Unless otherwise ordered, only one round of redirect and/or re-cross examination shall be permitted.

6. Telephonic Testimony. Whether a witness may appear by telephone is a

matter within the discretion of the ALJ. (Cal. Code Regs., tit. 5, § 3082, subd. (g).) Any party seeking to present a witness by telephone shall move in advance for leave to do so, unless the opposing party has stipulated that the witness may appear by telephone. Prior to the hearing, the proponent of the witness shall provide the proposed witness with a complete set of duplicate physical copies of the exhibit binders from all parties, containing all of each party’s exhibits and shall instruct the witness not to remove any documents from the exhibit binders. Faxed or electronic copies are unacceptable. The hearing room shall have sound equipment that allows everyone in the room to hear the witness, and the witness to hear objections and rulings. Unless otherwise ordered, the witness shall testify on a land-line telephone while alone in a private room. No witness will be heard by telephone unless all these requirements have been fulfilled. Neither party requested telephonic testimony.

7. Electronic Recording of Hearing.

a. Audio Recording. The ALJ shall record the hearing and the ALJ’s

recording is the only official record of the hearing. No person shall record or photograph the proceedings unless otherwise permitted by the ALJ.

Student’s request to record the hearing is granted. Either party may make an audio recording of the hearing as a courtesy and subject to the following conditions: 1) OAH’s recording is the only official recording; 2) the recording will be turned on and off at the same time as the ALJ’s recording, to avoid recording conversations while off the record;

3) operation of the party’s recording mechanism will not be allowed to delay the hearing;

4) the recording shall not be played or published for a prospective witness; 5) the recording shall not be used for any purpose other than assisting in the representation and presentation of this due process hearing; 6) the parties shall erase, or otherwise destroy, the recording after the hearing and all opportunities for appeal from any decision herein has been exhausted;7) the parties shall not use this recording in any subsequent due process hearing or other proceeding; 8) No more than one person for each party may record the hearing and that person must record from counsel table; and 9) the parties shall destroy the unofficial recording when the decision in this case becomes final and/or when all appeals have been exhausted.

b. Video Recording. No party, witness or anyone else present may make

any video recording of any part of the proceedings. Any person doing so shall be subject to sanctions.

8. Order of Presentation of Evidence. In an administrative proceeding, the

burden of proof is ordinarily on the party requesting the hearing. (Schaffer v. Weast (2005)

546 U.S. 49, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387].) Here, Student is the petitioning party.

Accordingly, subject to the parameters discussed in Paragraph 5, Student shall present his case-in-chief, followed by District.

9. Motions.

a. Student’s oral motion to record the hearing is granted pursuant to the

parameters sated in paragraph 7 above.

b. Student’s motion to preclude District from calling Student as a witness is

provisionally granted only as to the expedited portion of the hearing. District may move to have Student testify after Student presents his case in chief for the expedited hearing and the ALJ will determine whether District has provided a justification for calling Student to testify.

The parties may raise again the issue of the necessity of Student’s testimony prior to or at the PHC for the unexpedited portion of this matter.

c. Student’s motion to compel District to produce his educational records:

Student’s motion is granted. District shall provide Student’s attorney with copies of all of Student’s educational records, including but not limited to his grades and/or report cards;

transcripts; teacher’s notes; and state testing and/or assessment results; for each year Student has attended a District school. District shall provide these records no later than 5:00 p.m. on June 21, 2018.

d. No other pretrial motions are pending or contemplated. Any other motion

filed after this date shall be supported by a declaration under penalty of perjury establishing good cause as to why the motion was not made three days prior to the prehearing conference of June 18, 2018.

10. Compensatory Education/Reimbursement. Any party seeking reimbursement

of expenditures shall present admissible evidence of these expenditures, or a stipulation to the amount of expenditures, as part of its case in chief. A party seeking compensatory education should provide evidence regarding the type, amount, duration, and need for any requested compensatory education.

11. Stipulations. Stipulations to pertinent facts, contentions or resolutions are

encouraged. Any proposed stipulation shall be submitted to the assigned ALJ in written form. The parties shall meet and confer by June 21, 2018, to determine legal and factual stipulations, if any, to be submitted at hearing and before the record closes.

12. Conduct of Counsel and Hearing Room Decorum. Counsel, all parties, and all

witnesses shall conduct themselves in a professional and courteous manner at all times.

Cellular phones, pagers, recorders, and other noisemaking electronic devices shall be shut off during the hearing unless permission to the contrary is obtained from the ALJ. There shall be no texting permitted while the hearing is in session. No eating is permitted in the hearing room while the ALJ is on the record. The parties may not remain in the hearing room during the lunch break.

13. Special Needs and Accommodations. At present, neither party has requested

special needs or accommodations for any witness or party, or for translation services.

A party or participant to this case, such as a witness, requiring reasonable accommodation to participate in the mediation or hearing may contact the assigned calendar staff, identified in the scheduling order, at (916) 263-0880, as soon as the need is known.

Additional information concerning requests for reasonable accommodation is available on OAH’s website at: http://www.dgs.ca.gov/oah/Home/Accommodations.aspx

14. The hearing will be closed to the public unless Student requests that it be open.

15. Settlement. The parties are encouraged to continue working together to reach

an agreement before the due process hearing. The parties shall inform OAH in writing immediately should they reach a settlement or otherwise resolve the dispute before the scheduled hearing. In addition, if a settlement is reached within five days of the scheduled start of the due process hearing, the parties shall also inform OAH of the settlement by telephone at (916) 263-0880.

IF A FULL AND FINAL WRITTEN SETTLEMENT AGREEMENT IS REACHED

AFTER 5:00 P.M. THE DAY PRIOR TO HEARING, THE PARTIES SHALL LEAVE A

VOICEMAIL MESSAGE REGARDING THE SETTLEMENT AT (916) 274-6035. THE

PARTIES SHOULD ALSO LEAVE CONTACT INFORMATION SUCH AS CELLULAR

PHONE NUMBERS OF EACH PARTY OR COUNSEL FOR EACH PARTY. THE

PARTIES SHOULD SIMULTANEOUSLY EMAIL THE SIGNATURE PAGE OF THE

SIGNED AGREEMENT OR A LETTER WITHDRAWING THE CASE TO OAH AT

https://www.applications.dgs.ca.gov/oah/oahsftweb.

Dates for hearing will not be cancelled until the letter of withdrawal or signature page of the signed agreement has been received by OAH. If an agreement in principle is reached, the parties should plan to attend the scheduled hearing unless different arrangements have been agreed upon by the assigned ALJ. The assigned ALJ will check for messages the evening prior to the hearing or the morning of the hearing.

If the matter settles subject to board approval, in addition to a signed copy of the signature page of the settlement agreement as noted above, the parties shall submit a request for a status conference and provide the date of the next board meeting. The hearing dates will not be cancelled without this information.

16. Failure to comply with this order may result in the exclusion of evidence or

other sanctions.

IT IS SO ORDERED.

DATE: June 19, 2018

DARRELL LEPKOWSKY

Administrative Law Judge Office of Administrative Hearings