California OAH special education order · May 5, 2021
Order Denying Motion to Compel Observation
OAH Case No. 2021040345 · ALJ Penelope S. Pahl
OAH denied without prejudice Student's motion to compel an independent evaluator's observation because Student did not identify what should be observed, his current placement, the assessor, or any denied observation request.
Summary
Student asked OAH to order Urban Discovery Academy, a charter school, to allow an independent evaluator to observe, and Urban opposed. OAH recognized that Education Code section 56329 gives a student's assessor the right to observe the current placement and any proposed placement. However, it found Student had not met his burden of proof. The motion did not identify the current school, the classes to be observed, or the assessor's credentials, and the exhibits it referred to were not attached. Student also did not show he had made a specific observation request that Urban denied, or that Urban had authority over his current placement, so the motion was denied without prejudice.
Why it matters
Observation rights under Education Code section 56329 are strong, but a motion to enforce them must be specific and supported by evidence. Families should name the placement and classes, identify the assessor and their qualifications, attach the exhibits, and show a prior request the district refused.
Key authority cited
- Ed. Code § 56329, subds. (b), (c)
- Benjamin G. v. Special Education Hearing Office (2005) 131 Cal.App.4th 875
- L.M. v. Capistrano Unified Sch. Dist. (9th Cir. 2009) 556 F.3d 900
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:
PARENTS ON BEHALF OF STUDENT,
v.
URBAN DISCOVERY ACADEMY.
OAH CASE NUMBER 2021040345
ORDER DENYING MOTION TO COMPEL OBSERVATION
MAY 5, 2021
On April 9, 2021, Student filed a request for due process hearing with the Office of Administrative Hearings, called OAH, naming Urban Discovery Academy as respondent. On April 29, 2021, Student filed a motion to compel observation by an independent evaluator. On May 3, 2021, Urban filed an opposition to the motion. Later on, May 3, 2021, Student filed a reply to Urban’s opposition.
APPLICABLE LAW
California law provides for Student’s assessor to have an equivalent opportunity to observe a pupil in class, in the pupil’s current educational placement, if a public education agency observed the pupil in conducting its assessment; or if the educational agency’s assessment procedures made it permissible to have in-class observation of a pupil. Student’s expert is also allowed to observe an educational placement and setting, if any, being offered as FAPE by the public education agency. (Ed C. § 56329, subd. (b).)
Both of these observation opportunities are available to Student’s assessor regardless of whether the independent educational assessment was initiated before or after the filing of a due process hearing proceeding and either for purposes of an assessment to be considered by an Individualized Educational Program or IEP Team or as evidence during a due process hearing. (Ed. Code § 56329, subds. (b) and (c).).
The purpose of allowing Student’s assessor these observation opportunities is to “level the playing field” by permitting students to present evidence at a due process hearing, be advised by experts and have the experts testify at hearing. (Benjamin G. v.
Special Education Hearing Office (2005) 131 Cal. App. 4th 875 (Benjamin G.); L.M. v.
Capistrano Unified Sch. Dist. (9th Cir. 2009) 556 F.3d 900, 909. ) Opportunities to have an expert observe a school program permit the student’s expert to observe a district’s proposed placement whether or not the student is attending school there and regardless of whether the expert is conducting an ongoing independent educational evaluation. (Benjamin G., 131 Cal. App 4th at p. 883-884.)
While Student does have certain rights to have an expert witness observe a current placement or a proposed placement, this motion fails to clearly identify what Student is requesting be observed. To be awarded an order allowing an observation, Student has the burden of establishing the basis for the order. The motion refers to several exhibits, asserting they will provide additional information; however, none of them were attached. Student has failed to establish that he is currently enrolled in the Charter school or that a proposed IEP offer of placement is currently pending. Student’s motion fails to identify his current school of attendance. Neither the credentials or area of expertise of the assessor who would be conducting the observation are identified in the motion. Student has failed to specify what class or classes the assessor needs to observe. Perhaps most importantly, Student has failed to establish that he made a specific request to have an assessor observe a currently pending offered placement that was denied by Urban. Nor has Student established that the Charter has any authority to provide an observation at Student’s current placement.
Student has failed to meet his burden of establishing a right to an observation.
Accordingly, Student’s motion is denied without prejudice.
IT IS SO ORDERED.
Penelope S. Pahl Administrative Law Judge Office of Administrative Hearings