California OAH special education order · April 14, 2023
Order Denying Motion for Stay Put
OAH Case No. 2023040129 · ALJ Charles Marson
OAH denied Student's stay put motion because a signed expulsion stipulation placed Student on long-term independent study through June 2023, so the parties had agreed to a placement other than the IEP.
Summary
Student asked for a stay put order keeping her in general education with daily specialized academic instruction and monthly occupational therapy, as set out in a March 30, 2022 IEP amendment. Kelseyville opposed. It produced a stipulation suspending Student's expulsion, signed by Parent and the Superintendent and ratified by the school board, which placed Student on long-term independent study through the end of the 2022-2023 school year. Student did not mention the stipulation or respond to the opposition, so OAH found that the statutory exception for a placement the parents and district agree to applied, and denied stay put.
Why it matters
Stay put does not apply when parents have signed an agreement setting a different placement, such as an expulsion stipulation, so families should review any such agreements before filing. If the district raises one, Student should respond to it, because an uncontested agreement will likely defeat a stay put request.
Key authority cited
- 20 U.S.C. § 1415(j)
- Ed. Code, § 56505, subd. (d)
- Ed. Code, § 48915.5
- Casey K. v. St. Anne Community High School Dist. No. 302 (7th Cir. 2005) 400 F.3d 508
- Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618
People named in the order
- Charles Marson, Administrative Law Judge
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.
KELSEYVILLE UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2023040129
ORDER DENYING MOTION FOR STAY PUT
APRIL 14, 2023
On April 4, 2023, Student filed a request for a due process hearing with the Office of Administrative Hearings, called OAH, naming the Kelseyville Unified School District. On the same day, Student filed a motion for a stay put order. On April 7, 2023, Kelseyville filed an opposition to the stay put motion.
A special education student is entitled to remain in his or her current educational placement pending the completion of due process hearing procedures unless the parties agree otherwise. (20 U.S.C. § 1415(j); Ed. Code, §§ 56505, subd. (d), 48915.5.)
Stay put operates automatically upon a due process filing. (See Casey K. v. St. Anne Community High School District No. 302 (7th Cir. 1998) 400 F.3d 508, 511.) For purposes of stay put, the current educational placement is typically the placement called for in the student's individualized education program (IEP) which has been implemented prior to the dispute arising. (Thomas v. Cincinnati Board of Education (6th Cir. 1990) 918 F.2d 618, 625.)
Student asserts in her motion for stay put that her current placement is in general education with 60 minutes a day of specialized academic instruction and 120 minutes a month of occupational therapy services. She states that this placement is required by an IEP amendment dated March 30, 2022, the last placement that was agreed upon and implemented. Student has included that IEP amendment as an exhibit.
The parties agree that on or about December 8, 2023, Student was suspended for allegedly making threats to staff and students, and was referred for expulsion.
Kelseyville asserts in its opposition to the stay put motion that there is a binding agreement between the parties that governs Student’s current placement. It attaches as an exhibit a document entitled “Stipulation re: Expulsion, Suspension of the Expulsion Waiver of Hearing and Related Rights and Order.” The document appears to be signed on December 15, 2022, by Parent and by Kelseyville’s Superintendent, and ratified in writing by the Governing Board of the school district on January 17, 2023.
The apparent purpose of the December 15, 2023, Stipulation was to suspend the expulsion proceedings subject to a variety of conditions, and to govern all related matters. It addresses a wide variety of subjects, including Student’s educational placement from the date of ratification to June 15, 2023, the end of the academic year 2022-2023. The provision regarding placement during that time period states that Student “shall be placed” on “long term independent study via the Kelseyville Elementary School.”
Neither Student’s complaint nor her motion for stay put mentions the Stipulation.
Kelseyville’s opposition was filed on April 7, 2023, and since then Student has not responded to the opposition or sought leave to do so.
The statutory exception to the stay put rule therefore applies here. Subsection (j)
of section 1415 of Title 20 of the United States Code provides that a student is entitled to stay put “unless the . . . local educational agency and the parents otherwise agree.”
(See also Ed. Code, § 56505, subd. (d).)
Absent contradiction by Student, the Stipulation specifies Student’s placement until June 16, 2023, and shows that the parties have agreed to a placement other than the one in Student’s IEP. Student is therefore not entitled to a stay put order.
Student’s motion for stay put is denied.
IT IS SO ORDERED.
Charles Marson Administrative Law Judge Office of Administrative Hearings