California OAH special education order · June 14, 2018
Order Denying Motion to Unexpedite Hearing
OAH Case No. 2018060023 · ALJ Adrienne L. Krikorian
OAH denied Student's request to withdraw the expedited part of the case because the one-paragraph letter did not say which claims and remedies, such as expulsion expungement and reinstatement, were being withdrawn.
Summary
Student's complaint challenged a January 2018 manifestation determination and sought expungement of an expulsion and reinstatement at Montgomery High School, so OAH set expedited and non-expedited hearings. Student then filed a letter asking to withdraw the "expedited matter" with prejudice, citing an agreement reached outside the resolution session. OAH found the request too vague because it did not identify which issues or proposed resolutions were being withdrawn. The request was denied without prejudice, and all hearing dates stayed on calendar. Student may refile a specific request that waives all remedies under section 1415(k).
Why it matters
A claim that a district failed to properly conduct a manifestation determination is treated as an expedited appeal even if it is framed as a FAPE denial. To take a case off the expedited track, the family must clearly withdraw those claims and give up the related discipline remedies, such as expungement and reinstatement.
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(a)
- 34 C.F.R. § 300.532(c)(2)
- Molina v. Bd. of Educ. of Los Lunas Schools (D.N.M. 2016) 157 F.Supp.3d 1064
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. 2018060023 v. ORDER DENYING MOTION TO
UNEXPEDITE HEARING
SWEETWATER UNION HIGH SCHOOL
DISTRICT.
On May 31, 2018, Student filed a Due Process Hearing Request (complaint) against Sweetwater Union High School District. On June 1, 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 prehearing conference on June 18, 2018, an expedited hearing on June 26 and 27, 2018, anon-expedited PHC on July 16, 2018 and a non- expedited hearing on July 25, 2018.
On June 14, 2018, Student filed a letter with OAH requesting that the “expedited matter” be withdrawn with prejudice, based upon “an agreement outside of Resolution Session.” The letter does not identify which issues in the complaint Student seeks to withdraw, or which proposed resolutions, making the withdrawal vague.
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 AND ORDER
Student’s complaint alleges that District held a manifestation determination meeting on January 18, 2018; that Parent did not understand that the meeting was a manifestation determination; and that District failed to discuss whether Student’s disability caused or substantially and directly related to an unidentified episode of misconduct. Student included as Issue 4(b) a claim that District procedurally “denied Student a free appropriate public education” by failing to ensure that Parent understood that the January 2018 meeting was a manifestation determination meeting. Student’s proposed resolutions numbers two and three seek expungement of Student’s expulsion and reinstatement at Montgomery High School.
These allegations and claims, notwithstanding the reference to FAPE, constitute an appeal of the manifestation determination, which fall under title 20 United States Code section 1415(k), requiring an expedited hearing.
Although Student claims in his one-paragraph letter that the “expedited matter” has been resolved, Student did not specifically identify which claim he was seeking to dismiss, and whether he was also withdrawing proposed resolution numbers two and three.
Accordingly, OAH denies the request to withdraw the expedited claims, without prejudice.
Student may refile the request, identifying with specificity those claims he is withdrawing, and that he is waiving any remedies arising under section 1415(k), including those specified in Proposed Resolutions 2 and 3. The resulting complaint would be based only on allegations of a FAPE denial, and Student would be entitled to no remedies under section 1415(k).
All dates remain on calendar unless or until a renewed request consistent with this Order is filed with OAH.
IT IS SO ORDERED.
DATE: June 14, 2018
ADRIENNE L. KRIKORIAN
Administrative Law Judge Office of Administrative Hearings