California OAH special education order · February 21, 2019
Order Granting Motion to Dismiss Issue Two and Denying Request for Sanctions
OAH Case No. 2019010646 · ALJ Rita Defilippis
OAH dismissed Student's Section 504/ADA retaliation claim for lack of jurisdiction but denied Garvey's sanctions request, finding the district should have filed a motion to dismiss rather than demand withdrawal.
Summary
Garvey School District moved to dismiss Student's Issue Two, a retaliation claim under Section 504 and the ADA. It also asked for sanctions because Student did not withdraw the claim after Garvey emailed and after an earlier sufficiency order noted that OAH lacks jurisdiction over 504 and ADA claims. OAH granted the dismissal because its jurisdiction is limited to IDEA matters. It denied sanctions, explaining that a motion to dismiss is the proper way to remove claims outside OAH's jurisdiction, so any costs from Garvey's delay in filing one were Garvey's to bear.
Why it matters
Parents should know that OAH will dismiss Section 504 and ADA retaliation claims, so those claims belong in another forum. Districts cannot get sanctions just because a parent declined an informal request to withdraw a claim; the correct step is a timely motion to dismiss.
Key authority cited
- 20 U.S.C. § 1415(b)(6)
- Ed. Code, § 56501, subd. (a)
- Wyner v. Manhattan Beach Unified Sch. Dist. (9th Cir. 2000) 223 F.3d 1026
- 20 U.S.C. § 1400(d)(1)
- 29 U.S.C. § 701 et seq.
- Civ. Code, § 51
People named in the order
- Rebecca Freie, Administrative Law Judge (prior sufficiency order)
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. 2019010646 v. ORDER GRANTING MOTION TO
DISMISS ISSUE TWO AND DENYING
GARVEY SCHOOL DISTRICT. REQUEST FOR SANCTIONS
On February 14, 2019, Garvey School District filed a Notice of Motions and Motions for Sanctions and Dismissal of Student’s Retaliation Claim with the Office of Administrative Hearings. On February 20, 2019, Student filed an opposition. On February 21, 2019, Garvey filed a response to Student’s Reply. The basis of Garvey’s motion to dismiss is that Student’s Issue Two of his due process complaint alleges a claim of retaliation, pursuant to Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act, over which OAH has no jurisdiction. The basis of Garvey’s request for sanctions is that Student failed to withdraw his claim of retaliation despite Garvey’s email correspondence to Student to withdraw the retaliation claim, and despite language in an OAH order in this matter by ALJ Rebecca Freie, dated February 1, 2019, finding Student’s complaint sufficiently pled, which also acknowledged that OAH has no jurisdiction over 504 or ADA claims.
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 to entertain claims based on Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 701 et seq., Section 1983 of Title 42 United States Code (Section 1983), the Americans with Disability Act (ADA) (Title 42 U.S.C. §§ 1201, et seq.) or the Unruh Civil Rights Act (Civ. Code, § 51).
DISCUSSION
Student’s Issue Two states a 504 and ADA claim for retaliation over which OAH has no jurisdiction. Accordingly, Garvey’s motion to dismiss Student’s retaliation claim, Student’s Issue Two, is Granted.
Garvey’s argument in support of its request for sanctions is not persuasive. The proper vehicle for dismissal of claims for lack of OAH jurisdiction is a motion to dismiss.
Any costs resulting from Garvey’s delay in filing of a motion to dismiss and choice to pursue requests for Student to withdraw his retaliation claims are properly borne by Garvey.
Accordingly, Garvey’s request for sanctions is Denied.
ORDER
1. Garvey’s Motion to Dismiss is granted as to Issue Two. The matter will
proceed as scheduled as to the remaining issue.
2. Garvey’s motion to impose Sanctions for not withdrawing his retaliation claim
is denied.
3. The matter shall proceed on dates currently scheduled.
IT IS SO ORDERED.
DATE: February 21, 2019
RITA DEFILIPPIS
Administrative Law Judge Office of Administrative Hearings