California OAH special education order · March 8, 2019
Order Granting Motion to Not Rely on Evidence Outside the Record
OAH Case No. 2018100372 · ALJ Theresa Ravandi
OAH will not consider documents cited in Student's closing brief that were never admitted at hearing, but Student may still cite Office of Civil Rights and special education policy guidance as legal argument.
This case went to decision
Student v. Hanford Elementary School District: Hanford Elementary should have reassessed a student with ADHD, but no remedy because he was not shown eligible. (2019)
Summary
After the hearing closed, Hanford filed a motion to strike parts of Student's closing brief because they relied on documents that were not admitted into evidence. OAH treated the motion as a request not to rely on evidence outside the record, and Student opposed it. The ALJ granted the motion: factual assertions based on documents not admitted into evidence will not be considered, because the evidentiary record closed on January 23, 2019. Legal memoranda and letters from the Office of Civil Rights or Office of Special Education Policy are not evidence, so they may be cited in closing argument and relied on if relevant.
Why it matters
Closing briefs cannot add new facts. Any document needed to prove a fact must be offered and admitted at hearing. Agency guidance letters and legal memos can still be cited as legal authority after the record closes.
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. 2018100372 v. ORDER GRANTING MOTION TO
NOT RELY ON EVIDENCE OUTSIDE
HANFORD ELEMENTARY SCHOOL THE RECORD
DISTRICT.
On January 23, 2019, at the conclusion of the due process hearing, the undersigned administrative law judge granted the parties’ request to continue this matter to February 11, 2019, to afford them the opportunity to file written closing briefs. The parties timely filed their closing briefs on February 11, 2019.
On February 12, 2019, Hanford Elementary School District filed a motion to strike portions of Student’s closing brief on the grounds that it refers to documents not admitted into evidence, not relevant, and not officially noticed by the administrative law judge. This motion is deemed a motion to not rely on evidence outside the record. On February 13, 2019, Student filed an opposition to Hanford’s motion.
The evidentiary record was closed on January 23, 2019. To the extent Student’s closing brief cites to documents for factual assertions that were not admitted into evidence at hearing, these will not be considered in determining the issues. However, to the extent Student refers to legal memorandum and letters from the Office of Civil Rights or Office of Special Education Policy in support of his legal position, these do not constitute evidence and may be properly referred to in a closing argument, and may be relied upon, to the extent they are relevant.
IT IS SO ORDERED.
DATE: March 8, 2019
THERESA RAVANDI
Administrative Law Judge Office of Administrative Hearings