California OAH special education order · February 25, 2020
Order Denying Motion to Unexpedite Hearing
OAH Case No. 2020020522 · ALJ Joy Redmon
OAH denied Student's request to unexpedite the hearing because Student only stated an intent to proceed on a non-expedited timeline and did not withdraw the expedited discipline-related claims.
Summary
Student's due process complaint raised both expedited and non-expedited issues. Student then filed a notice saying Student wanted to proceed only on a non-expedited timeline, and Ripon did not respond. OAH explained that an expedited hearing must happen within 20 school days. A case can be taken off the expedited track only if no expedited issue is alleged, if Student withdraws the expedited issues, or if Student chooses to challenge the placement change as an ordinary FAPE claim. Because Student did neither, OAH denied the request and confirmed all hearing dates.
Why it matters
Families who want to take a discipline-related case off the expedited track must expressly withdraw the expedited claims or elect to pursue the placement change only as a FAPE claim. Simply asking for a slower timeline is not enough.
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)
- 20 U.S.C. § 1415(b)(6)(A)
- 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.
RIPON UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2020020522
ORDER DENYING MOTION TO UNEXPEDITE HEARING
FEBRUARY 25, 2020
Student filed a due process hearing request that raised both expedited and non- expedited issues. Thereafter, OAH issued a Scheduling Order and Notice of Expedited and Non-Expedited Due Process Hearing and Mediation, Scheduling Order. On February 19, 2020, Student filed notice expressing Student’s intent to proceed in a non- expedited timeframe only. Ripon did not respond to the motion.
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 did not dismissal of claims arising under the expedited provision of the IDEA. Regarding claims arising under both expedited and non-expedited provisions of the IDEA Student did not seek to proceed as a FAPE claim only. Rather, Student merely expressed an intent to proceed in a non-expedited timeframe. That is insufficient to dismiss the expedited claims. Student’s motion is DENIED and all dates confirmed.
IT IS SO ORDERED.
Joy Redmon Presiding Administrative Law Judge Office of Administrative Hearings