California OAH special education order · July 3, 2024
Order Granting Student's Request for Names and Contact Information for Potential Witnesses
OAH Case No. 2024060681 · ALJ June Lehrman
OAH ordered District to give Student the full names and emails of staff who worked with him at an interim placement, because Student must know witnesses' identities to compel their attendance at hearing.
Summary
Student asked OAH to order District to provide the full names and contact information of a behaviorist and an aide identified in records only by first name. Student also asked for the names and emails of all other professionals who worked with him at Jane Lathrop Stanford Middle School between May 7 and May 30, 2024, so he could subpoena them. District opposed. It argued the motion was an improper ex parte communication and was premature because the prehearing conference and the meet-and-confer process had not yet happened. ALJ June Lehrman called the ex parte argument frivolous because District was served and responded, and found the prematurity arguments unpersuasive. She ordered District to provide the names and emails within five days.
Why it matters
Parents can get the identities of staff who worked with their child before the prehearing conference so they can subpoena them. A student's right to compel witnesses is not limited to the people the district plans to call itself.
Key authority cited
- 20 U.S.C. § 1415(h)
- Ed. Code, § 56505, subd. (e)
- Cal. Code Regs., tit. 5, § 3082, subd. (c)(2)
- Gov. Code, § 11430.10, subd. (a)
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.
PALO ALTO UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2024060681
ORDER GRANTING STUDENT’S REQUEST FOR NAMES
AND CONTACT INFORMATION FOR POTENTIAL
WITNESSES
JULY 3, 2024
On July 2, 2024, Student filed a motion seeking the full names and contact information for potential witnesses identified in educational records only as “Patricia,”
who was Student’s behaviorist, and “Alexis,” who was Student’s aide. Student also seeks the names and emails of all other professionals who were working with Student at a District interim placement at Jane Lathrop Stanford Middle School, including but not limited to the providers of specialized academic instruction, occupational therapy, speech therapy, adapted physical education and other related services provided during that placement. Student argues that he would like to subpoena all the middle school professionals who were working with Student between May 7, 2024 and May 30, 2024.
The request is specific, limited in time and clearly related to Student’s allegations that District denied him a free appropriate public education. According to the proof of service attached to the motion, Student served it on District’s lawyers on July 1, 2024.
On July 3, 2024, District opposed the request, making a variety of unpersuasive arguments. Most unpersuasive is the contention that the motion was an “ex parte communication with OAH.” An ex parte communication is a “communication . . .
regarding any issue in the proceeding, to the presiding officer from . . . an interested person . . . , without notice and opportunity for all parties to participate in the communication.” (Gov. Code, § 11430.10. (a).) Since District’s lawyers were served with the motion, had notice and opportunity to respond, and have in fact done so, their position that the motion was an ex parte communication is frivolous.
District further argues that the motion is premature, because the prehearing conference has not yet occurred nor have the parties yet met and conferred regarding the identity of potential witnesses. These arguments are similarly unpersuasive.
Student’s right to prepare to secure the attendance of witnesses is not limited in time to the prehearing conference, is not restrained by the meet and confer process, and is not limited to those persons District itself intends to call as its own witnesses. The Motion is granted.
The IDEA provides parties with the right to present evidence and compel the attendance of witnesses at “a hearing conducted pursuant to subsection (f) or (k)” of section 1415 of title 20 of the United States Code. (20 U.S.C. § 1415(h).) California provides a similar right to present evidence and compel the attendance of witnesses in due process proceedings. (Ed. Code, § 56505, subd. (e).) California Code of Regulations, title 5, section 3082, subdivision (c)(2), specifies the right of the parties in a special education hearing to compel the attendance of witnesses at hearing. Obviously, Student must know the full names of the potential witnesses in order to exercise these rights. After identifying the names and contact information for these potential witnesses, if District wishes to produce them at hearing without the necessity of Student issuing a subpoena to secure their attendance, District is at liberty to do so.
ORDER
1. District shall within five days of this Order provide to Student the full names
and email addresses of “Patricia,” who was Student’s behaviorist, “Alexis,” who was Student’s aide, and all other professionals who were working with Student at Jane Lathrop Stanford Middle School between May 7, 2024 and May 30, 2024, including but not limited to the providers of specialized academic instruction, occupational therapy, speech therapy, adapted physical education and other related services.
IT IS SO ORDERED.
June Lehrman Administrative Law Judge Office of Administrative Hearings