Order Following Prehearing Conference for Expedited Hearing by Videoconference, and Denying Motion to Unexpedite Issues

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

IN THE MATTER OF:

PARENTS ON BEHALF OF STUDENT,

v.

SAN DIEGO UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2025100785

ORDER FOLLOWING PREHEARING CONFERENCE FOR

EXPEDITED HEARING BY VIDEOCONFERENCE, AND

DENYING MOTION TO UNEXPEDITE ISSUES

NOVEMBER 5, 2025

On November 3, 2025, Administrative Law Judge Robert G. Martin, Office of Administrative Hearings, held a prehearing conference by videoconference. The Administrative Law Judge is called an ALJ. The Office of Administrative Hearings is called OAH. The prehearing conference is called a PHC.

Attorney Meagan Núñez appeared on behalf of Student. Attorney Lauri Arrowsmith appeared on behalf of San Diego Unified School District, referred to as San Diego. Law clerk Bianca Hutchins from Núñez’s office, and San Diego due process specialist Amy Seaman, also attended the PHC. The PHC was recorded. Based upon discussion with the parties, the ALJ issues the following order:

ORDER DENYING MOTION TO UNEXPEDITE ISSUES

On October 20, 2025, Student filed with OAH a due process hearing request naming San Diego. On October 22, 2025, based on allegations in the hearing request, OAH issued a Scheduling Order and Notice of Expedited and Non-Expedited Due Process Hearing and Mediation.

On October 29, 2025, the parties jointly filed a motion to unexpedite this matter, on grounds Student’s hearing request did not allege any issues requiring the parties to proceed on an expedited matter.

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). (All subsequent references to the Code of Federal Regulations are to the 2006 version.)) 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) (Molina).)

Student did not specifically request an expedited hearing. However, Student’s issues included two claims against San Diego involving alleged failures to hold appropriate manifestation determination meetings. Issue 2.d. concerned a manifestation determination meeting held by San Diego on November 7, 2024.

Although that manifestation determination review found that Student’s behavior leading to the review was a manifestation of his disabilities, Student alleged it was legally insufficient because San Diego did not provide Parents a copy of the manifestation determination documents.

Student’s Issue 2.h. alleged San Diego denied Student a FAPE by failing to hold a manifestation determination review after it issued a written decision under Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681, et seq.) on July 2, 2025, finding Student had committed acts of sexual misconduct at school. The Title IX decision ordered Student be suspended for five days and recommended for expulsion.

Student prefaced Issues 2.d. and 2.h. with statements that San Diego denied Student a FAPE under title 20, section 1415, subdivision (b)(6)(A) by acting as described.

However, Student’s claims with respect to each issue were clearly predicated on San Diego’s alleged failure to comply with title 20, section 1415, subdivision (k). With respect to Issue 2.d., Student’s attorney confirmed at the PHC that San Diego’s alleged obligation to provide Parents a copy of the manifestation determination documents arose under subdivision (k), and was not based on a parent right to request and receive educational records (20 U.S.C. § 1415(b)(1), Ed. Code, § 56501(b)(3)), or another statute besides subdivision (k). Similarly, Student’s attorney confirmed at the PHC that San Diego’s alleged obligation to hold a manifestation determination review, after the Title IX decision ordered Student be suspended for five days and recommended for expulsion, arose under title 20, section 1415, subdivision (k)(1)(e)(i). Subdivision (k)

requires a district to hold a manifestation determination review meeting within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct.

The issues presented in this case are distinguishable from the issue presented in Molina, supra, Molina held that a student could elect to challenge a change of placement made by a school district for disciplinary reasons either on grounds of flaws in the manifestation determination review process under title 20, section 1415, subdivision (k), or, without challenging the manifestation review process, on grounds that the new placement was inappropriate and failed to provide Student a FAPE, under title 20, section 1415, subdivision (b)(6). (Molina, supra, 157 F.Supp.3d 1064, 1068- 1071.) Student’s Issues 2.d. and 2.h. are not challenging the appropriateness of a placement made by San Diego, and the option to proceed on a non-expedited basis under title 20, section 1415, subdivision (b)(6) does not exist here. Student’s Issues 2.d.

and 2.h. involve claims raised under title 20, section 1415, subdivision (k) that must be resolved in an expedited hearing.

The parties’ joint motion to unexpedite Issues 2.d. and 2.h. is denied.

EXPEDITED HEARING DATES, TIMES, AND LOCATION

The expedited hearing will take place on November 13, 2025, continuing day to day thereafter at the discretion of the ALJ. The hearing shall begin at 9:30 AM each day and generally end at 3:30 PM, unless otherwise ordered. The parties anticipate it will take two to three days to complete the hearing. If needed, additional hearing dates will be discussed with the ALJ during the hearing.

The parties must immediately give potential witnesses the hearing dates, and must subpoena witnesses, if necessary, so they are available to testify. Failing to properly notify or subpoena a witness is not good cause to delay the hearing.

HEARING LOCATION

OAH is authorized to conduct due process hearings by videoconference or telephone. (Cal. Code Regs., tit. 5, § 3082, subd. (g).) OAH will conduct the due process hearing by videoconference using the Zoom application. Unless otherwise ordered, participants are required to appear by videoconference using computer or device with video capability and Zoom.

The parties shall immediately notify all potential witnesses of the hearing dates and shall subpoena witnesses, if necessary, to ensure that the witnesses will appear to testify. A party’s failure to notify or subpoena a witness to testify will not be considered good cause to continue the hearing. Instructions for issuing and responding to subpoenas and optional forms for subpoenas can be found on the website at https://www.dgs.ca.gov/OAH/Case-Types/Special- Education/Forms/Subpoenas?search=special%20education%20subpoena.

EXPEDITED ISSUES AND PROPOSED RESOLUTIONS

The issues for the expedited due process hearing, re-numbered from Issues 2.d.

and 2.h. alleged in the complaint and clarified by the parties and the ALJ during the PHC, are:

1. Was San Diego’s manifestation determination review on November 7,

2024 legally insufficient under title 20 United States Code section 1415(k)

because San Diego did not provide Parents with a copy of the manifestation determination documents?

2. Did San Diego violate title 20 United States Code section 1415(k)(1)(E)(i) by

failing to hold a manifestation determination review after issuing a written decision under Title IX of the Education Amendments of 1972 (20 U.S.C.

§ 1681, et seq.) on July 2, 2025 suspending Student for five days and recommending him for expulsion? A party believing that an issue has been misstated or improperly omitted shall promptly file a notice in writing, before the first day of hearing, stating its concern and referring to supporting portions of the complaint.

PROPOSED RESOLUTIONS

Student’s requested resolutions include a decision finding Student the prevailing party on all of Student’s issues, and an order directing San Diego to provide Student compensatory education in an amount, type, and duration to be proved at hearing.

San Diego filed its response to Student’s amended complaint on October 27,

2025. (M.C. v. Antelope Valley Union High School Dist. (9th Cir. 2017) 858 F.3d 1189,

1199-1200.)

EXHIBITS

The parties shall serve their exhibits on each other in compliance with Education Code section 56505, subdivision (e)(7). The parties shall upload their exhibits electronically according to the Order Setting Procedures for Filing Exhibits Electronically.

Timely uploading electronic hearing exhibits five business days before the first day of hearing constitutes that party’s timely exchange of evidence in compliance with Education Code section 56505, subdivision (e)(7). If further assistance is needed, please contact OAH at OAHSEOps@dgs.ca.gov.

Except for good cause shown, or unless used solely for rebuttal or impeachment, any exhibit not timely exchanged as required by Education Code section 56505, subdivision (e)(7) shall not be admitted into evidence at the hearing unless the ALJ rules that it is admissible.

IDENTIFYING EXHIBITS AND PAGE NUMBERS

Each exhibit must be identified by a letter and number. Student must use the letter S before the number to identify Student’s exhibits. San Diego must use the letter D, for district, before the number to identify San Diego’s exhibits. For example, S-1 means Student’s exhibit 1 and D-1 means San Diego’s exhibit 1. A cover sheet with this identifying letter and number should be the first page of each exhibit. The electronic evidence program will automatically number the exhibits and additional page numbering or bates stamping should not be added.

CONTENT

Each exhibit must consist of one document. Separate documents may not be combined into one exhibit. Emails or letters may be consolidated into one exhibit if they are part of a single chain of messages. Exhibits should be in chronological order.

Parties should include resumes or curriculum vitae for each witness expected to testify as an expert.

San Diego’s exhibits must include a copy of the school calendar for the 2024- 2025, and 2025-2026 school years.

Electronic copies of exhibits filed with OAH shall be filed by 5:00 PM at least five business days before the first day of hearing. Please refer to the General Order OAH issued with the Scheduling Order that contains the Order Setting Procedures for Filing Exhibits Electronically. It includes instructions for how to file exhibits electronically.

Beginning three business days before the hearing, the electronic evidence system will not allow parties to upload exhibits unless permitted by the ALJ during the hearing at the ALJ’s discretion.

WITNESSES

The parties shall serve their list of witnesses on each other in compliance with Education Code section 56505. No party shall be permitted to call any witnesses not timely disclosed except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the ALJ.

Parties are responsible for ensuring that all participants are familiar with and follow the Instructions for Joining the Online Due Process Hearing provided with this Order. Participants who have not previously used the Zoom application, may find informative instructions by visiting Getting Started with Zoom at https://support.zoom.us/hc/en-us/categories/200101697.

The parties are responsible for ensuring that witnesses join the virtual hearing room at the designated date and time to testify. Witnesses are required to join the due process hearing by computer and appear by videoconference unless they do not have the necessary computer equipment. If a witness does not have the necessary equipment, the ALJ may permit the witnesses to appear by audio only or by telephone.

“Audio only” means using a computer without video.

The parties are responsible for producing their own witnesses unless otherwise ordered by the ALJ. Parties shall make witnesses under their control reasonably available. The parties must schedule their witnesses to avoid delays in the hearing and to minimize or eliminate the need to call witnesses out of order.

San Diego has agreed to make its current employees available as witnesses without need for subpoena. San Diego is ordered to inform Student by the close of business the day following the parties’ exchange of final witness lists if any witness identified by Student as a San Diego employee is not currently employed by San Diego, and must be subpoenaed to appear at the hearing. San Diego may either agree to accept service of a subpoena for such witnesses, or provide Student with the witness’ most recent contact information.

Any contact information provided shall be used for the limited purpose of issuing subpoenas or for contacting a witness to attend the hearing. No contact information shall be disclosed to any other person.

The ALJ has discretion to limit the number of witnesses, and the time allowed for testimony. Education Code, section 56505.1, subdivision (h), empowers the ALJ to set a reasonable limit on the length of the hearing after consideration of four factors. The first two factors are the issues to be heard and the complexity of facts to be proven. The second two factors are the ability of the parties or their representatives to present their respective cases and the parties’ estimates of the time needed to present their cases.

MEET AND CONFER

The parties are encouraged to review and shorten their witness and exhibit lists before the hearing. Evidence may be excluded if it is repetitive, cumulative, or insufficiently probative to justify the time it would take to hear.

The parties are ordered to meet and confer on November 7, 2025 at 1:00 PM to discuss scheduling witnesses and how much time each witness will take. Student’s attorney shall place the call to San Diego’s attorney to start the meet and confer. The parties shall discuss any issues related to counsel and witnesses appearing by videoconference for hearing, electronically viewing exhibits during the hearing, and subpoenas, if any. The parties should attempt to eliminate duplicate exhibits from their hearing exhibits. The parties shall discuss whether they can produce a written stipulation as to pertinent facts, contentions, resolutions and the authenticity and admissibility of documents to shorten the length of time needed for the hearing.

PARTICIPANT INFORMATION FORM

Both parties have an ongoing obligation to ensure that OAH has current information on the Participant Information Form filed with OAH and shall file an updated Form as necessary. The Participant Information Form is not served upon the opposing party. The ongoing obligation to ensure that the Participant Information Form filed with OAH is current does not change the parties’ statutory obligation to timely disclose their witnesses to the other party(s) at least five business days prior to hearing.

The parties must file an updated Participant Information Form to inform OAH of any changes, additions, or deletions, including the required information no later than 5:00 PM at least two business days before the first day of hearing.

Any contact information provided shall be used for the limited purpose of issuing subpoenas or for contacting a witness to attend the hearing. No contact information shall be disclosed to any other person.

EVIDENCE PRESENTATION

In an administrative proceeding, the burden of proof is ordinarily on the party requesting the hearing. (Schaffer v. Weast (2005) 546 U.S. 49, 62.) In this case, Student requested the hearing and bears the burden of proof. Student’s case-in-chief shall be presented first, followed by San Diego’s, unless otherwise ordered.

WITNESS SCHEDULE

The parties must provide a joint proposed witness schedule to the ALJ on the first day of hearing. The list should include the first and last name of the witness, the witness’ title, which party is calling the witness to testify, and include dates and time estimates of each witness’s expected testimony. In the event an agreement cannot be reached, each party shall prepare a separate written schedule. Student must have witnesses available in case there is no agreement.

At the beginning of the hearing, the ALJ and the parties will discuss the length of time anticipated for each witness and scheduling issues for individual witnesses. The ALJ will finalize the witness schedule. Parties must be prepared at the end of each day to discuss the witnesses to be presented the next day and the estimated time for the testimony of each witness.

SCOPE OF WITNESS EXAMINATION

Each witness will be called to testify only once, except for rebuttal purposes. All parties must examine a witness on all issues when the witness is first called to testify.

Requiring a witness to appear only once takes priority over the order in which parties present their case-in-chief.

AUDIO ONLY OR TELEPHONIC TESTIMONY

Whether a witness may appear by audio only or telephone instead of videoconference is a matter within the discretion of the ALJ. (Cal. Code Regs., tit. 5, § 3082, subd. (g).) Any party seeking to present a witness by audio only or telephone shall request permission to do so before the hearing. Any party seeking to present a witness who cannot access exhibits electronically must inform the ALJ at the beginning of the hearing.

ELECTRONIC RECORDINGS

AUDIO RECORDING

San Diego’s attorney requested permission to make an audio recording of the hearing for their personal note taking purposes. Permission to make an audio recording is subject to the ALJ’s discretion and based upon the following conditions:

1. The OAH recording is the only official recording.

2. The parties shall turn their recording device on and off at the same time

that the ALJ is on and off the record to avoid recording conversations while off the record.

3. Operation of the party’s recording mechanism will not be allowed to delay

the hearing.

4. A party’s recording may not be given, provided, or played to a witness, or

potential witness.

5. The recording is subject to the same confidentiality as the due process

hearing.

6. Participants shall not take screenshots of the videoconference nor share or

publish any portion of the videoconference or audio recording.

San Diego’s request to make an audio recording of the hearing is granted. Each party’s attorney may make an audio recording of the hearing for personal note-taking purposes, subject to the conditions above and any other orders made at the hearing.

The parties are prohibited from using artificial intelligence to either record the hearing or transcribe the recording.

VIDEO RECORDING

No party, witness, or anyone else may videorecord any part of the proceedings or stream live through any means.

RECORDINGS AS EXHIBITS

Recordings may not be uploaded electronically without the ALJ’s permission. The ALJ has discretion to admit or exclude evidence in the form of a recording. Any request to submit a recording shall be considered at the time of hearing.

The ALJ may grant or deny the request or grant the request subject to certain conditions. The party offering the recording must establish that all or a part of the recording is relevant. The ALJ may request a transcript of the portion of the recording requested or have the party offering the recording to provide an exact identifiable portion of the recording the party seeks to admit. The identities of any person speaking on the portion of the tape being introduced must be established. An ALJ may allow the opposing party to offer additional portions of a recording to establish the context, or to rebut, the recording.

MOTIONS

The parties’ joint motion to unexpedite issues was addressed previously in this Order. No other prehearing motions are pending or contemplated. Any motion that was not filed three business days before the PHC must be supported by a declaration under penalty of perjury establishing good cause why the motion was not timely filed.

STIPULATIONS

Stipulations to pertinent facts, contentions, resolutions and authenticity and admissibility of documents are encouraged. Any proposed stipulation shall be submitted to the assigned ALJ in writing prior to the start of the hearing.

CONDUCT OF PARTICIPANTS AND HEARING ROOM DECORUM

All participants in the videoconference should observe the same decorum as in an in-person due process hearing. Participants must conduct themselves in a professional and courteous manner at all times. Cellular phones, telephones and computer notifications must be shut off or set to silent during the hearing unless the ALJ grants permission otherwise. Participants should appear from a private location, unless otherwise ordered. Participants should make reasonable efforts to minimize background noise and maintain adequate room lighting. Use of virtual background images are at the discretion of the ALJ. Witnesses are prohibited from reading exhibits, documents, notes, text messages, telephones or computers while testifying, unless permitted to do so by the ALJ. The parties, their representatives and witnesses are prohibited from passing notes to, exchanging electronic messages with, or signaling the witness in any way while the witness is testifying.

LANGUAGE INTERPRETERS AND REASONABLE ACCOMMODATIONS

Neither party requested an accommodation or language interpreter.

A party or participant in this case, such as a witness, requiring reasonable accommodation to participate in a mediation or hearing may contact OAH at (916) 263-0880, or send an email to OAHADA@dgs.ca.gov as soon as the need is known. The e-mail should have “Request for Accommodation” in the Subject Line.

Additional information concerning requests for reasonable accommodation is available on OAH’s website at: https://www.dgs.ca.gov/OAH/Services/Page-Content/Office-of- Administrative-Hearings-Services-List-Folder/Request-Reasonable-Accommodations- for-OAH-Legal-Proceedings.

HEARING CLOSED TO THE PUBLIC

The hearing is closed to the public. Special education hearings are closed to the public unless Student requests the hearing to be open to the public.

SETTLEMENT

The parties are encouraged to continue working together to reach an agreement before the due process hearing. The parties shall inform OAH in writing immediately if they reach a settlement or otherwise resolve the dispute before the scheduled hearing.

In addition, if a settlement is reached within five days of the scheduled start of the due process hearing, the parties shall also inform OAH of the settlement by telephone at (916) 263-0880. At the same time, the parties should send the signature page of the signed agreement or a letter withdrawing the case to OAH by visiting OAH Secure e-file at https://www.applications.dgs.ca.gov/oah/oahsftweb.

If a full and final written settlement agreement is reached after 4:00 PM the day prior to hearing, the parties shall leave a voicemail message regarding the settlement at (916) 274-6035. The parties should also leave contact information such as cellular phone numbers of each party or counsel for each party.

Dates for hearing will not be cancelled until the letter of withdrawal or signature page of the signed agreement has been received and processed by OAH. If an agreement in principle is reached, the parties should plan to attend the scheduled hearing unless different arrangements have been agreed upon by the assigned ALJ. The assigned ALJ will check for messages before the hearing.

If the matter settles subject to board approval, in addition to a signed copy of the signature page of the settlement agreement, the parties shall provide the date of the next board meeting. The hearing dates will not be cancelled without this information.

FAILURE TO COMPLY

The failure to comply with this Order may result in the exclusion of evidence or other sanctions.

ORDER INCLUDES ALL RULINGS

This Order includes all rulings made at the prehearing conference. Any discussion and conversation not referenced in this Order is not binding on the ALJ conducting the hearing and may not be relied upon by the parties. The parties should be aware that, at hearing, the ALJ conducting the hearing has discretion to reconsider any part of this Order.

IT IS SO ORDERED.

Robert G. Martin Administrative Law Judge Office of Administrative Hearings