California OAH special education order · December 12, 2023
Order Denying Motion to Unexpedite Hearing
OAH Case No. 2023120144 · ALJ Theresa Ravandi
OAH denied Student's request to vacate expedited hearing dates because Student kept a disciplinary-provisions claim (Issue 9) in the complaint, which triggers a mandatory expedited hearing.
Summary
Student filed a "Notice of Withdrawal with Prejudice of Expedited Hearing," which OAH treated as a motion to unexpedite and vacate the expedited dates, while stating that no issues were withdrawn. Fairfield-Suisun had not responded. OAH denied the motion because Issue 9 alleged violations of the disciplinary provisions of 20 U.S.C. § 1415(k), making it an appeal that must be heard on the mandatory expedited timeline. OAH noted that Student could still withdraw the expedited issue or reframe it solely as a denial of a free appropriate public education, but would then lose the disciplinary-specific arguments and remedies.
Why it matters
A family cannot opt out of an expedited hearing while keeping discipline-related claims under Section 1415(k) in the complaint. To proceed on a normal timeline, Student must withdraw or reframe those claims as FAPE denials and give up discipline-specific remedies such as an order for a manifestation determination review.
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:
PARENTS ON BEHALF OF STUDENT,
v.
FAIRFIELD-SUISUN UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2023120144
ORDER DENYING MOTION TO UNEXPEDITE HEARING
DECEMBER 12, 2023
On December 4, 2023, Student filed a Due Process Hearing Request, known as a complaint, naming Fairfield- Suisun Unified School District. On December 5, 2023, 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, Scheduling Order. The Scheduling Order set this matter for expedited mediation on December 18, 2023, expedited prehearing conference on January 8, 2024, and expedited hearing for January 17, and 18, 2024.
On December 11, 2023, Student filed a “Notice of Withdrawal with Prejudice of Expedited Hearing.” OAH deems this a motion to unexpedite this matter and vacate the expedited dates. At the time of this Order, Fairfield-Suisun has not filed a response.
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).) 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 seeks to vacate the expedited hearing dates but specifically notes, “No issues are withdrawn.” Even though Student did not request an expedited hearing, the complaint raises issues subject to an expedited time frame. Specifically, Student’s Issue 9 alleges failures to comply with the disciplinary provisions of Section 1415(k). These contentions constitute an appeal pursuant to Section 1415(k)(3), and thus the mandatory provisions of Section 1415(k)(4)(B) for an expedited hearing apply. (Molina, supra, 157 F.Supp.3d 1064, 1068-1071.) Accordingly, the motion to unexpedite the hearing is denied.
Nothing in this Order prevents Student from withdrawing the issues from the complaint that are subject to an expedited due process hearing, or clarifying that he seeks to present all issues and the facts pertaining to these issues, solely as denials of a free appropriate public education. Should Student proceed in this fashion, he will be precluded from arguing any violations of the disciplinary provisions of the law or seeking any remedies he would have in an order that requires Fairfield-Suisun to conduct a manifestation determination review meeting, including those contained in 20 U.S.C. section 1415(k)(3)(A) and 34 C.F.R. section 300.532(a).
ORDER
1. The motion to unexpedite the hearing is denied.
2. The expedited hearing shall proceed on Issue 9 as scheduled.
IT IS SO ORDERED.
Theresa Ravandi Administrative Law Judge Office of Administrative Hearings