California OAH special education order · October 11, 2018
Order Granting Motion to Unexpedite Hearing
OAH Case No. 2018100080 · ALJ Adrienne L. Krikorian
OAH unexpedited Student's case against LAUSD because Student framed the manifestation determination claim as a denial of FAPE, not a disciplinary appeal, and sought no remedies available under section 1415(k).
Summary
Student asked OAH to unexpedite the case and vacate the expedited prehearing conference and hearing dates. LAUSD did not oppose. Student's complaint challenged a manifestation determination made without first assessing Student's behavior. OAH granted the motion because the complaint presented every issue as a denial of FAPE, sought no section 1415(k) remedies such as reversing the determination or returning Student to the prior placement, and counsel confirmed Student was not appealing under section 1415(k). OAH ruled that Student may present the manifestation determination issue only as a FAPE denial and cannot argue violations of the disciplinary provisions, and it kept the November 21, 2018 non-expedited hearing date.
Why it matters
Families who challenge a manifestation determination can avoid the rigid 20-school-day expedited timeline by framing the claim as a FAPE denial. The trade-off is that they give up disciplinary-appeal arguments and remedies, such as overturning the determination or returning the student to the prior placement.
Key authority cited
- 20 U.S.C. § 1415(k)(3)(A)
- 20 U.S.C. § 1415(k)(4)(B)
- 20 U.S.C. § 1415(b)(6)(A)
- 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. 2018100080 v. ORDER GRANTING MOTION TO
UNEXPEDITE HEARING
LOS ANGELES UNIFIED SCHOOL
DISTRICT.
On September 28, 2018, Student filed a Due Process Hearing Request (complaint)
against Los Angeles Unified School District. On October 2, 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 the expedited PHC and hearing for October 15 and October 23-25, 2018 respectively. The non-expedited hearing was set for November 21,
2018. On October 10, 2018, Student filed a motion to unexpedited this matter and vacate the
expedited dates. LAUSD filed a notice of non-opposition on the same date.
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 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.)
1 All subsequent references to the Code of Federal Regulations are to the 2006 version.
DISCUSSION
Student’s complaint identifies six issues. Issue B alleges LAUSD held a manifestation determination on October 10, 2016, without first assessing Student’s behavior.
Student asserts LAUSD incorrectly determined that his behavior was not a manifestation of his disability, and as a result changed his placement to inappropriate settings pending expulsion proceedings and during suspended enforcement of expulsion. Student claims LAUSD’s failure to assess him in all areas of suspected need before the manifestation determination denied him a free appropriate public education. Student includes numerous proposed resolutions. None of those proposed resolutions request reversal of the manifestation determination team’s decision, a return to his placement at the time of the manifestation determination, or any other remedy available under title 20 United States Code section 1415(k).
Student’s counsel argues that Student is not appealing the manifestation determination under section 1415(k), and that Student is not seeking any remedies provided for under that section related to an appeal of the manifestation determination. Although Student has not expressly withdrawn any claims related to an appeal under 1415(d), the complaint identifies each of the six issues as a denial of FAPE and not as an appeal. Accordingly, this matter will be unexpedited and the expedited PHC and expedited due process hearing dates will be vacated.
Student may only present his Issue B, and the facts pertaining to it, as a denial of FAPE, and will be precluded from arguing any violations of the disciplinary provisions of the law that Student would have in an order that requires to overturn a manifestation determination, including those contained in 20 U.S.C. section 1415(k)(3)(A); 34 C.F.R.
section 300.532(a) and corresponding California law.
ORDER
1. The motion to unexpedite this matter is granted.
2. The following expedited dates are vacated: PHC on October 15, 2018, and
due process hearing on October 23-25, 2018.
3. The unexpedited matter shall proceed on the following dates: PHC on
November 9, 2018, due process hearing on November 21, 2018.
DATE: October 11, 2018
ADRIENNE L. KRIKORIAN
Administrative Law Judge Office of Administrative Hearings