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  • Writer's pictureMolly Watson

OAH CASE NO. 2023020910

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA



PARENT ON BEHALF OF STUDENT,

v.

SACRAMENTO CITY UNIFIED SCHOOL DISTRICT.


EXPEDITED DECISION


April 19, 2023


In this case, soon after the student’s mother revoked her consent to have her son receive special education, the school district suspended him for an incident that had occurred months earlier and provided the student with a 45-day interim placement at a nonpublic school due to his behaviors. The district failed to conduct a manifestation determination meeting prior to making this interim placement.


Regarding the failure to conduct a manifestation determination meeting, the administrative law judge found that the school district should have conducted a manifestation determination meeting even though the parent had revoked her consent to special education.


What follows is a copy of the decision issued by the Office of Administrative Hearings, which is available for public viewing on the Office of Administrative Hearings website. The attorneys involved in this matter have no association with Molly Watson or her law firm.


Parent on behalf of Student filed an expedited due process hearing request, called complaint, with the Office of Administrative Hearings, State of California, on February 10, 2023, naming Sacramento City Unified School District, called Sacramento City. The Office of Administrative Hearings is called OAH. The complaint contained expedited and non-expedited hearing claims. OAH set the expedited and non-expedited matters for separate hearings. The expedited claims proceeded to hearing with a one-week continuance, within the statutory hearing period. (34 C.F.R. § 300.532(c)(2).) This Decision resolves only the expedited claims. Administrative Law Judge Brian H. Krikorian heard this matter by videoconference on March 21, 22, 28 and 29 2023.


Parent represented Student, testified at hearing, and attended all hearing days on Student’s behalf. Kaitlin Tucker represented Sacramento City. Rebal Halabi, from Lozano Smith, was also in attendance. Geovanni Linares, Director of Sacramento City's Special Education Local Plan Area, referred to as a SELPA, attended each day of the hearing. Dr. Sadie Hedegard, Assistant Superintendent Special Education, Innovation, and Learning of Sacramento City also attended on two hearing days.


On March 29, 2023, the last day of hearing, the record was closed, and the matter was submitted for decision. The ALJ allowed the parties to file closing arguments during the submittal time, and they were read and considered by the ALJ. Sacramento City was on spring break from April 3 through April 7, 2023.


EXPEDITED ISSUES


The ALJ rephrased and clarified with the parties’ issues as stated in both Student’s and Sacramento City’s prehearing conference statement, as allowed by the holdings in J.W. v. Fresno Unified School Dist. (9th Cir. 2010) 626 F.3d 431, 442-443, and Ford v. Long Beach Unified School Dist. (9th Cir. 2002) 291 F.3d 1086, 1090. (But see M.C. v. Antelope Valley Union High School Dist. (9th Cir. 2017) 858 F.3d 1189, 1196, fn. 2 [dictum].). On the second day of hearing, the parties agreed that the date denoting the date of suspension in both issues, December 12, 2022, was erroneous. The parties stipulated to amend the two issues to include the correct date of January 23, 2023. To alleviate any potential prejudice, the hearing was continued for seven calendar days to March 29, 2023. No other substantive changes to the issue were made.


An individualized education program is referred to as an IEP. A free appropriate public education is referred to as FAPE.


1. Did Sacramento City Unified School District violate 20 U.S.C. §1415(k) by failing to hold a manifestation determination review hearing prior to suspending Student for more than 10 days on January 23, 2023?


2. Did Sacramento City Unified School District have a basis of knowledge that Student may be eligible for special education services, pursuant to 20 U.S.C. § 1415(k)(5(B) and 34 C.F.R. §300.534(b), when it suspended Student on January 23, 2023?


JURISDICTION


This hearing was held under the Individuals with Disabilities Education Act, called IDEA, its regulations, and California statutes and regulations. (20 U.S.C. § 1400 et. seq.; 34 C.F.R. § 300.1 (2006) et seq.; Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.) The main purposes of the IDEA are to ensure:


• all children with disabilities have available to them a free appropriate public education, called FAPE, that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living, and


• the rights of children with disabilities and their parents are protected. (20 U.S.C. § 1400(d)(1); See Ed. Code, § 56000, subd. (a).)

Title 20 United States Code section 1415(k) and title 34 Code of Federal Regulations, part 300.530, et seq. (2006), govern the discipline of special education students. (Ed. Code, § 48915.5.) A student receiving special education services may be suspended or expelled from school as provided by federal law. (20 U.S.C. §1412(a)(1)(A); Ed. Code, § 48915.5, subd. (a).) If a special education student violates a code of student conduct, school personnel may remove the student from his or her educational placement without providing services for a period not to exceed 10 days per school year, provided typical children are not provided services during disciplinary removal. (20 U.S.C. § 1415(k)(1)(B); 34 C.F.R. § 300.530(b)(1) & (d)(3).)


A parent of a special education student may appeal a school district’s determination that particular conduct resulting in a disciplinary change of placement was not a manifestation of the child’s disability by requesting an expedited due process hearing. (20 U.S.C. § 1415(k)(3)(A); 34 C.F.R. 300.532(a) & (c).) The hearing must be conducted within 20 school days of the date an expedited due process hearing request is filed and a decision must be rendered within 10 school days after the hearing ends. (20 U.S.C. § 1415(k)(4)(B); 34 C.F.R. 300.532(c)(2).) A school district may request a due process hearing to authorize a change of placement if the district believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others. (20 U.S.C. § 1415(k)(3)(A); 34 C.F.R. § 300.532(a).). In this case, Parent filed the complaint on February 10, 2023, but did not provide a proof of service. Sacramento City disputed that it was ever served. Parent provided a proof of service to OAH February 27, 2023. The 20-day period began from that date.


At the hearing, the party filing the complaint has the burden of persuasion by a preponderance of the evidence. (Schaffer v. Weast (2005) 546 U.S. 49, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387]; see 20 U.S.C. § 1415(i)(2)(C)(iii) [standard of review for IDEA administrative hearing decision is preponderance of the evidence].) Here, Student filed the complaint and has the burden of proof. The factual statements in this Decision constitute the written findings of fact required by the IDEA and state law. (20 U.S.C. § 1415(h)(4); Ed. Code, § 56505, subd. (e)(5).)


Student was 15 years of age and in the 10th grade at the time of hearing. Student resided within the Sacramento City’s geographic boundaries and the Sacramento City SELPA. From the spring of 2022 until January 21, 2023, Student was eligible for special education under specific learning disability and other health impairment. Parent withdrew Student from special education on January 11, 2023, and the effect of that withdrawal is analyzed in this decision.


ISSUE 1: DID SACRAMENTO CITY UNIFIED SCHOOL DISTRICT VIOLATE 20 U.S.C. §1415(K) BY FAILING TO HOLD A MANIFESTATION DETERMINATION REVIEW HEARING PRIOR TO SUSPENDING STUDENT FOR MORE THAN 10 DAYS ON JANUARY 23, 2023?


Student contended that Sacramento City violated the IDEA when it suspended him on January 23, 2023, for actions that occurred in November of 2022, while Student was still receiving special education services. Student argued that Parent withdrew Student from special education for the primary purpose of returning placement of Student as a general education student at John F. Kennedy High school. Sacramento City contended that Parent knowingly and voluntarily withdrew Student from special education on January 11, 2023, with an effective date of January 21, 2023. Student was re-enrolled on January 23, 2023, as a general education student at Kennedy High, and then automatically suspended for the conduct Sacramento City learned about on or about December 12, 2022. Sacramento City argued that because Student was no longer in special education, the protections of the IDEA were inapplicable, and it was free to suspend Student in the normal course. Because Sacramento City feared Student still posed a danger to himself and others, it proceeded with a suspension based upon the November 2022 violation of its code of conduct. For reasons discussed below, the ALJ finds that Sacramento City was required to conduct a manifestation determination hearing on the conduct at issue.


A special education student’s placement is that unique combination of facilities, personnel, location, or equipment necessary to provide instructional services to him. (Cal. Code Regs., tit. 5, § 3042(a).) The removal of a special education student from the student’s placement for more than 10 consecutive school days constitutes a change of placement. (34 C.F.R. § 300.536(a)(i).)


When a district seeks to change a special education child’s educational placement for more than 10 days as a result of a violation of a student code of conduct, the district must convene a meeting with relevant IEP members to determine whether the child’s violation was a manifestation of the child’s disability. (20 U.S.C. § 1415(k); 34 C.F.R. § 300.530.) This is known as a manifestation determination. (20 U.S.C. § 1415(k)(1)(E).) A manifestation determination must be accomplished within 10 school days of the decision to change the student’s placement. (Ibid.)


If the IEP team determines the conduct was a manifestation of the child’s disability, the IEP team reviews and modifies the student’s IEP to address the behavior and return the student to the special educational placement from which the student was removed, unless the parent and the local education agency agree to a change of placement. (20 U.S.C. § 1415(k)(1)(F).) If the IEP team determines the conduct is not a manifestation of the student’s disability, then normal school disciplinary procedures may be used to address the incident in the same way as they would be applied to non-disabled students although it may be provided in an interim alternative educational setting. (20 U.S.C. § 1415(k)(1)(C); 34 C.F.R. § 300.530(c); see Doe v. Maher (9th Cir, 1986) 793 F.2d 1470, 1480, fn 8, affd., sub nom., Honig v. Doe (1988) 484 U.S. 305 [when a child’s misbehavior does not result from his disability no justification exists for exempting him from the rules applicable to other children].)


Conduct is a manifestation of the student’s disability: (i) If the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or (ii) If the conduct in question was the direct result of the local education agency's failure to implement the IEP. (34 C.F.R. § 300.530(e)(1) & (2).) The manifestation determination analyzes the child’s behavior as demonstrated across settings and across times. All relevant information in the student’s file, including the IEP, any observations of teachers, and any relevant information from the parents must be reviewed to determine if the conduct was caused by, or had a direct and substantial relationship to the student’s disability, or was the direct result of the district’s failure to implement the student’s IEP. (20 U.S.C. § 1415(k)(1)(E); 34 C.F.R. § 300.530(e)(1).)


PROCEDURAL HISTORY


This matter was the third OAH filed case involving the parties over the past year. At the first day of hearing in this matter, on March 22, 2023, the undersigned ALJ took judicial notice of the two prior expedited decisions involving the parties.


THE TWO PRIOR EXPEDITED RULINGS PLACE STUDENT IN AN INTERIM ALTERNATIVE SETTING


Student was a student enrolled at Kennedy High School at the time of the first hearing. Sacramento City filed the first matter in September of 2022, in OAH Case 2022808223. The sole issue was whether Sacramento City could place Student in an interim alternative setting because Student posed a substantial risk to Student and others at Kennedy High School, based upon conduct that had occurred over the previous school year. On September 22, 2022, ALJ Paul Kamoroff issued an expedited decision in OAH Case 2022808223, finding that Sacramento City could place Student in an alternative placement for 45 days in accordance with the IDEA. Sacramento City placed Student at a nonpublic school called Point Quest.

Sacramento City filed the second case on November 22, 2022, OAH Case 2022110728. That matter sought adjudication of both an expedited issue and a due process issue. In the non-expedited issue, Sacramento City sought to enforce an IEP developed on November 8, 2022, which Parent did not consent to. In the expedited matter, Sacramento City sought an order allowing it to return Student to an alternative placement at Point Quest for actions that occurred while he attended Point Quest.


The first event prompting disciplinary action occurred in October of 2022 when Student wrote entries in his journal that indicated violence to a student at Kennedy High School. Parent and Student claimed that Student was writing about a bad dream.


The second incident occurred while Student was in therapy at Point Quest in the beginning of November 2022. Student was asked if he would do anything differently in the past related to his conduct that resulted in the alternative placement. Student indicated he would commit violent acts against one of Kennedy High School’s vice principals, including “bashing her in the face.” The vice principal already feared for her safety due to alleged comments and threats made by Student against her in the prior school year. This latter incident was discussed and considered at the expedited hearing during the week of December 12, 2022. Sacramento City argued that it first learned of this conduct at the hearing, and based the January 23, 2023, suspension at issue in this case on the November 2022 incident.


In her decision of January 5, 2023, ALJ Cynthia Fritz found that, based upon Student’s prior conduct and the October and November 2022 incidents that occurred at Point Quest, Student continued to pose a danger to himself and others at Kennedy High School, that these were manifestations of his disabilities, and ordered Student be placed at Point Quest for another 45-day alternative placement within 15 days of the January 5, 2023, decision. The placement was to begin on January 9, 2023. Parent declined to place Student at Point Quest.


WITHDRAWAL OF STUDENT FROM SPECIAL EDUCATION


On January 10, 2023, the parties appeared for the non-expedited issue of Sacramento City’s due process complaint in the second matter. The only issue was whether the IEP Sacramento City had developed on November 8, 2022, could be implemented without Parent’s consent. The proposed IEP provided full time placement of Student at Point Quest.


During the first day of hearing on January 10, 2023, Parent stated on the record that she could “deny the IEP” and “drop out of the IEP” and withdraw Student from special education so Student could return to Kennedy High in a general education setting. ALJ Fritz continued the hearing to January 11, 2023, to allow the parties to discuss withdrawing Student from Special Education. Thereafter, Parent and Linares, the SELPA director, had at least one telephone conversation. They discussed that if Parent withdrew Student from special education, he would be returned to general education placement at Kennedy High School. Parent was told that if Student was withdrawn from special education services, Student would no longer have protections under special education laws.


On January 10, 2023, Linares provided a prior written notice to Parent about the consequences of withdrawing Student from special education. On January 11, 2023, Parent prepared and signed a handwritten document entitled “Withdrawal from IEP, SPED.” That document indicated that as of that date, Student was withdrawn from special education, and he would “resume John F. Kennedy H.S. without an I.E.P. as a regular student.”


On January 11, 2023, Linares provided Parent a second prior written notice. This notice addressed the handwritten withdrawal. The notice stated that beginning on January 21, 2023, Student would “become a general education student and will no longer be entitled to the special education and related services, rights and procedural safeguards provided under the Individuals with Disabilities Education Improvement Act of 2004….” The notice stated that the “LEA/District believes that [Student] continues to require special education and related services pursuant to the individualized education program ("IEP") meeting convened on 11/8/2022.”


On January 11, 2023, Parent also signed a document prepared by Sacramento City entitled “Parental Revocation of Consent for Special Education Form Sacramento City Unified School District.” That document stated: “While the Sacramento City Unified School District… believes that your child continues to be in need of services, the District will stop providing special education and related services to your child, based on your decision to revoke of consent for special education.” It also provided that: “Revocation of consent is not retroactive. Your child's records will not be amended to remove references to the receipt of special education and related services prior to your revocation of consent.” (Emphasis added)


Because there was a 10-day revocation period of the withdrawal, Sacramento City requested another continuance of the hearing. On January 11, 2023, ALJ Fritz declined to continue the case for a third time. Sacramento City then dismissed its due process case without prejudice. As of January 21, 2023, Student was enrolled as a general education student at Kennedy High School beginning on January 23, 2023.


SACRAMENTO CITY SUSPENDS STUDENT FROM KENNEDY HIGH SCHOOL ON JANUARY 23, 2023


On Friday January 20, 2023, Parent called Kennedy High School’s principal, Reginald Brown to confirm Student would be returning to school on Monday, January 23, 2023. Brown testified at hearing.


Brown told Parent that, beginning Monday, the school had a final exam schedule. Brown suggested that Monday was not a good day due to it being a shortened day. Parent expressed concern that Student could not return on that date, but agreed to bring Student on Tuesday, January 24, 2023. On Monday, January 23, 2023, Parent again called Brown. This time Brown advised Parent that she should not bring Student to school as he was suspended effective January 23, 2023. Brown later provided Parent with a written Notice of Suspension.

The Notice of Suspension signed by Brown had numerous clerical errors. None of the errors substantively affected the nature of the suspension. The corrected Notice of Suspension provided Sacramento City had suspended Student as a result of the November 2022 conduct that was revealed at the December 12, 2022, expedited hearing. These were the November 2022 threats made by Student to one of Kennedy High’s vice principals, while in therapy at Point Quest. The suspension was for five days. Student was not returned to Kennedy High after the five-day period, however, because the matter was automatically referred to a higher disciplinary level. Student was later expelled from Kennedy High school in March of 2023.


SACRAMENTO CITY WAS REQUIRED TO CONDUCT A MANIFESTATION DETERMINATION UNDER SECTION 1415(K) UPON STUDENT’S RETURN TO GENERAL EDUCATION


The heart of Sacramento City’s argument is that Student was properly exited from special education on January 11, 2023, because Parent had the full knowledge and understanding of the repercussions of her revocation, Parent revoked her consent to Student receiving special education services in writing and, Sacramento City provided Parent with adequate prior written notices.


Parent knowingly and voluntarily revoked consent to special education and was told of the implications of doing so. Parent believed that her withdrawal was conditioned upon Student returning to Kennedy High as a general education Student. Sacramento City did not deny this, and in fact its prior written notices also reflected this. Sacramento City, however, never informed Parent that upon returning to campus on January 23, 2023, Student would be immediately suspended for the November 2022 conduct.


The incident in question, involving Student’s comments about doing harm to the vice principal, was litigated and considered by ALJ Fritz when she issued her January 5, 2023, order permitting a second 45-day alternative setting. Accordingly, the conduct was already determined to be a manifestation of Student’s then existing disability. However, the issue of whether a conduct was a manifestation of Student’s disability is not the sole purpose of a manifestation determination meeting. The team must also revise the IEP as needed and consider a behavior intervention plan. As such, a manifestation determination hearing was required, and Student prevailed on Issue 1.


ISSUE 2: DID SACRAMENTO CITY UNIFIED SCHOOL DISTRICT HAVE A BASIS OF KNOWLEDGE THAT STUDENT MAY BE ELIGIBLE FOR SPECIAL EDUCATION SERVICES, PURSUANT TO 20 U.S.C. § 1415(K)(5(B) AND 34 C.F.R. §300.534(B), WHEN IT SUSPENDED STUDENT ON JANUARY 23, 2023?


Student argued that it was inappropriate for Sacramento City to suspend Student for past transgressions while he was a student receiving special education services. Because Student had withdrawn from special education after ALJ Fritz’s January 5, 2023, expedited decision, Sacramento City contended it was not obligated to provide special education protections after January 21, 2023, including holding a manifestation determination meeting.


Assuming Student returned to school on January 23, 2023, and had thereafter committed an act that violated the district’s code of conduct, Sacramento City’s argument may have merit. But that is not what happened. As explained below, Sacramento City did have a basis of knowledge that Student may be eligible for special education services. As such, Sacramento City violated section 1415(k)(5)(B) when it removed Student from Kennedy High School for his actions that occurred while he was a special education student beyond the 10-day period.

A child who has not been determined to be eligible for special education and related services and who has engaged in behavior that violates a code of student conduct, may assert any of the protections provided for in this subchapter if the local educational agency had knowledge that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred. 20 U.S.C.A. § 1415(k)(5)(A). A local educational agency shall be deemed to have knowledge that a child is a child with a disability if, before the behavior that precipitated the disciplinary action occurred:


1. The parent of the child has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services.


2. the parent of the child has requested an evaluation of the child pursuant to section 1414(a)(1)(B) of this title; or


3. the teacher of the child, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other supervisory personnel of the agency. 20 U.S.C.A. § 1415(5)(B)(i-iii)


As late as January 20, 2023, Student was classified as a special education Student. The conduct alleged to have occurred happened while Student was eligible for special education and placed at Point Quest, an alternative special education placement. Finally, in each of the documents prepared by Sacramento City —the two prior written notices in January and Parent’s formal withdrawal—the District emphasized that it believed Student required special education services, and provided that the withdrawal was not “retroactive.” Accordingly, subdivision (iii) of 1415(k)(5)(B) applies. Personnel of the SELPA and Sacramento City clearly “expressed concerns about a pattern of behavior demonstrated by the child, directly to the director of special education…or...other supervisory personnel of the agency” and at a minimum, was aware that Student’s conduct occurred while he was receiving special education services.


In its closing brief, Sacramento City argued that Parent’s withdrawal was intended to force Student back into a general education population, and to essentially prevent Sacramento City from taking appropriate measures to protect Student, its staff, and other students. It is understandable that Sacramento City is concerned about the safety of students and staff. However, Sacramento City failed to cite any persuasive law that permits Sacramento City to rely on an incident that occurred 60 to 90 days earlier while the Student was a special education student, in a special education alternative placement, for conduct that was already adjudicated to be a manifestation of his disability, and use that incident as a means to preemptively suspend and expel Student once he exited special education services. As noted earlier, had Student acted in violation of the district’s code of conduct after January 23, 2023, then the outcome may have been different. Sacramento City had a basis of knowledge that Student was a special education student at the time, as Student was in special education.


One of the main protections of the IDEA is that a special education Student would be entitled to a manifestation determination meeting when a behavior violates a code of conduct. In this case, Sacramento City did not hold a manifestation determination of the incident in question, because Student was placed at Point Quest when the incidents occurred, and they were not aware of the incident until a previous hearing occurred. However, ALJ Fritz considered these events at her December 2022 expedited hearing and found that they were manifestations of Student’s disability and that he should continue to be placed at an alternative setting. As such, the conduct in question clearly falls within the requirements and protections of special education.


Finally, the undersigned ALJ acknowledges the legitimate safety concerns that Sacramento City was faced with, both for the Student and its personnel and staff. Both Parent and Sacramento City have an obligation to ensure the fair treatment of Student as well as the safety of others, and the undersigned would encourage both sides to find a common ground to avoid additional actions in the future.


CONCLUSIONS AND PREVAILING PARTY


As required by California Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided.

Issue 1: Student did prove by a preponderance of the evidence that Sacramento City violated 20 U.S.C. 1415(k) by failing to hold a manifestation determination when it suspended Student on January 23, 2023, for actions committed in early November 2022. Student prevailed on Issue 1.


Issue 2: Student proved by a preponderance of the evidence that Sacramento City had a basis of knowledge that Student may be eligible for special education services, pursuant to 20 U.S.C. § 1415(k)(5(B) and 34 C.F.R. §300.534(b), when it suspended Student for more than 10 days on January 23, 2023, for acts committed while he was a student receiving special education services in early November 2022. Student prevailed on Issue 2.


REMEDIES


Student prevailed on Issues 1 and 2. Parent testified that she does not want Student returned to Point Quest but sent back to Kennedy High School as a general education student. Sacramento City argued that Parent knowingly revoked consent to prevent Sacramento City from carrying out ALJ Fritz’s January 5, 2023, order, and to prevent Sacramento City from having any means to protect its staff, personnel and Students.


An ALJ may order that a special education student be returned to his or her original placement if the ALJ determines that the conduct was a manifestation of the student’s disability or the result of the failure to implement the student’s IEP. (20 U.S.C. § 1415(k)(3)(B); 34 C.F.R. 300.532(a) & (c).) An ALJ also may order a change in placement to an appropriate interim alternative educational setting for not more than 45 school days (20 U.S.C. § 1415(k)(3)(B)(ii)(II); 34 C.F.R. § 300.532(b)(2)(ii)); provided the child will continue to participate in the general education curriculum and to progress toward meeting the goals set out in the child’s IEP (20 U.S.C. § 1415(k)(1)(D)(i); 34 C.F.R. § 300.530(d)); and the interim alternative educational setting must also enable the child to receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications that are designed to address the behavior violation so that it does not recur (34 C.F.R. § 300.530(d)(1)(ii)).


During the hearing, Parent did not disavow the withdrawal and acknowledged that Student could be subject to future disciplinary actions without the protections of the special education laws. On the other hand, the evidence also established Parent did so with the belief that Student would be allowed to return to the Kennedy High School campus on or after January 23, 2023, as a general education student, and may be subject to discipline for future actions. The record is devoid of any evidence that prior to Parent signing the withdrawal, Linares or any other district or SELPA representative told Parent that Student would be immediately suspended for the same acts that were previously found to be a manifestation of his disability. Parent credibly testified that she would not have signed the withdrawal if she had known suspension was imminent immediately after she withdrew Student from special education services.


Therefore, Student should have had the protections of the IDEA when the removal happened, as the behavior happened when Student was eligible, and Sacramento City was aware that a final decision had been issued saying that the behavior was a manifestation of Student’s disability. Therefore, Sacramento City is ordered to hold the manifestation determination meeting regarding Student’s conduct, which has been found to be a manifestation of Student’s disability. The parties are required to complete the rest of the requirements of the meeting. Because Student was entitled to the protections of the IDEA for the November 2022 incident, and the incident was found to be a manifestation of his disability, he should not have been removed from his placement on January 23, 2023, for more than 10 school days.


ORDER


1. Sacramento City is required to conduct a manifestation determination for the October and November 2022 incidents that were previously determined by OAH as a manifestation of Student’s disability. This manifestation determination meeting is to be scheduled within 10 school days of the date of this decision.


2. Because Student is not currently a special education Student, this ALJ has no jurisdiction to order a current placement for Student. Nothing in this decision prevents Parent or Sacramento City from requesting a new assessment for special education eligibility.


RIGHT TO APPEAL THIS DECISION


This is a final administrative decision, and all parties are bound by it. Pursuant to Education Code section 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.


Brian H. Krikorian

Administrative Law Judge

Office of Administrative Hearings

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