California OAH special education order · April 28, 2020
Order Denying Student's Motion to Strike District's Response to Complaint
OAH Case No. 2020020631 · ALJ Alexa Hohensee
OAH denied Student's motion to strike Fremont's late response to the due process complaint. Student cited no authority for striking a late response and did not show Fremont had not already sent prior written notice.
This case went to decision
Student v. Fremont Unified School District: Fremont Unified prevails on all 17 claims by an adult student with anxiety over home instruction and IEP meetings. (2020)
Summary
Student asked OAH to strike Fremont's response to the due process complaint because Fremont filed it on April 20, 2020, more than two months after receiving the complaint instead of within the 10-day deadline. Fremont opposed. It argued that it had already sent Parent a statutory prior written notice each time Parent first raised the issues, that it filed the response only because Parent moved to compel one, and that no authority allows striking a response. OAH denied the motion because Student cited no basis for striking a late response, and Student did not show Fremont had failed to respond to the claims before the complaint was filed.
Why it matters
A district's late response to a due process complaint does not, on its own, give a parent a way to have that response thrown out. A district that has already sent proper prior written notice on the disputed issues may not need to file a separate response at all.
Key authority cited
- 20 U.S.C. § 1415(c)(2)(B)(i)(I)
- 34 C.F.R. § 300.510
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.
FREMONT UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2020020631
ORDER DENYING STUDENT’S MOTION TO STRIKE
DISTRICT’S RESPONSE TO COMPLAINT
APRIL 28, 2020
On April 23, 2020, Student filed with the Office of Administrative Hearings, called OAH, a motion to strike the response of Fremont Unified School District to the complaint filed in this matter. On April 27, 2020, Fremont filed an opposition.
APPLICABLE LAW
After a due process hearing request is filed by a parent and received by the school district, the school district must send the parent a response to the complaint within 10 days, if it had not previously sent a written notice meeting statutory requirements to the parent regarding the subject matter of the complaint. (20 U.S.C.
§ 1415(c)(2)(B)(i)(I); 34 C.F.R. § 300.510 (2006).)
DISCUSSION
Student requests an order striking Fremont’s response to Student’s due process complaint because the response was filed on April 20, 2020, over two months from the date Fremont received a copy of Student’s complaint. Fremont contends that it responded to Parent with a statutory prior written notice each time Parent first raised the issues identified in Student’s complaint, and only filed its response because Parent made a motion to compel another response. Fremont also argues that Student cites no authority for striking its response, whether late or not.
Student cites no basis for striking a school district’s response to a due process complaint if it is filed more than 10 days after the school district received the complaint.
Even if OAH was authorized to strike the response, Student did not establish that Fremont had not otherwise responded to Student’s claims prior to the filing of the complaint.
Accordingly, the motion to strike is denied.
IT IS SO ORDERED.
Alexa Hohensee Administrative Law Judge Office of Administrative Hearings