California OAH special education order · September 4, 2019
Order Granting Motion to Unexpedite Hearing and Dismissing Issue Six
OAH Case No. 2019080747 · ALJ Linda Johnson
OAH granted Student's motion to unexpedite and dismissed Issue Six because Student withdrew the only claim that qualified for an expedited hearing.
Summary
Student's complaint against Escondido raised nine issues. Issue Six alleged the district effectively expelled Student even though it had found his behaviors were a manifestation of his disability, and OAH set that issue for an expedited hearing. Student moved to withdraw Issue Six, unexpedite the case, and vacate the expedited dates, and Escondido did not respond. Because none of the remaining issues qualified for expedited treatment, OAH dismissed Issue Six, vacated the expedited dates, and confirmed the non-expedited prehearing conference on October 7, 2019 and hearing on October 15-17, 2019.
Why it matters
OAH cannot continue an expedited discipline hearing, but a family can move the whole case to the regular timeline by withdrawing the issue that triggered expedited treatment. That can give more time to prepare a combined case.
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,
v.
ESCONDIDO UNION HIGH SCHOOL DISTRICT.
OAH CASE NUMBER 2019080747
ORDER GRANTING MOTION TO UNEXPEDITE HEARING AND
DISMISSING ISSUE SIX
On August 19, 2019, Student filed a Due Process Hearing Request, known as a complaint, against Escondido Union High School District. On August 21, 2019, based on issues asserted in the complaint, the Office of Administrative Hearings, referred to as OAH, issued a Scheduling Order and Notice of Expedited and Non-Expedited Due Process Hearing and Mediation. The Scheduling Order set this matter for an expedited prehearing conference on September 9, 2019, and expedited hearing for September 17, 18, and 19, 2019.
On September 4, 2019, Student filed a motion to withdraw Issue Six and unexpedite this matter and vacate the expedited dates. OAH did not receive a response from Escondido.
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), All subsequent references to the Code of Federal Regulations are to the 2006 version.) 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.)
DISCUSSION
Student raised nine issues in his complaint, of those nine issues, Issue Six alleged Escondido denied him a free appropriate public education during the 2018-2019 and 2019-2020 school years by effectively expelling him despite determining his behaviors were a manifestation of his disability. OAH determined that Issue Six was expedited and set this matter for both an expedited and nonexpedited hearing.
Student has withdrawn Issue Six. None of the remaining issues in the complaint allege issues that are subject to an expedited hearing. Accordingly, the expedited hearing dates will be vacated.
ORDER
1. The motion to unexpedite this matter is granted. Issue Six is dismissed.
2. The following expedited dates are vacated, expedited prehearing
conference on September 9, 2019, and expedited hearing on September 17, 18, and 19, 2019.
3. The unexpedited matter shall proceed on the following dates,
nonexpedited prehearing conference on October 7, 2019, and nonexpedited hearing on October 15, 16, and 17, 2019.
IT IS SO ORDERED.
DATED: September 4, 2019 Linda Johnson Administrative Law Judge Office of Administrative Hearings