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When can a school district file a request for due process hearing against a student in San Diego?

Posted by Paul Hefley | Aug 15, 2021 | 0 Comments

Like parents and legal guardians, school districts can file a request for due process hearing with the California Office of Administrative Hearings (OAH) seeking to resolve an educationally related dispute. When school districts file a request for due process hearing, they name the student as the Respondent. Of course, because OAH has limited jurisdiction (meaning it has the legal authority to decide only certain types of claims) to enforce the IDEA and corresponding state education law, school districts are only able to bring certain types of claims before OAH. The same holds true for parents. 

What is OAH's jurisdiction in California special education cases?

Pursuant to California Education Code § 56501(a), a parent or school district may request a due process hearing with respect to the following issues only:

(1) there is a proposal to initiate or change the identification, assessment, or educational placement of the child or the provision of a free appropriate public education (FAPE) to the child;

(2) there is a refusal to initiate or change the identification, assessment or educational placement of the child or the provision of a FAPE to the child;

(3) the parent or guardian refuses to consent to an assessment of the child; and

(4) there is a disagreement between a parent or guardian and a district regarding the availability of a program appropriate for the child.

All other issues, including a school district's alleged failure to comply with a special education settlement agreement, are beyond OAH's jurisdiction. Additionally, OAH cannot issue declaratory decisions in special education matters, regarding the applicability of a statute, regulation, or judicial precedent unless otherwise expressly authorized by the IDEA. (Cal. Code Regs. tit. 5, § 3089.). These cases tend to ask OAH to resolve a hypothetical situation that has yet to take place. However, OAH has the authority to hear cases where a school district seeks a "declaration" that it appropriately assessed a student or provided the student with a free appropriate public education (FAPE). 

When must a school district file a request for due process hearing? 

There are two situations where a school district must file a request for due process hearing against a student. The first situation arises when a parent will not consent to a proposed IEP component that they have previously consented to or if the school district determines that the IEP component is necessary to provide the student with a FAPE. (Cal. Ed. Code § 56346(f)). The second situation arises when a student requests an independent educational evaluation at public expense, and the school district declines to fund the requested assessment. (34 C.F.R. § 300.502(b)(2); Ed. Code, § 56329, subd. (c).)

The requirement that school districts must file a due process hearing in the two preceding situations is important because it means that school district, rather than the student and his/her parents or legal guardians, have the burden of proof. For more on the burden of proof in due process hearings, read here

If the school district has filed a due process against your child, please feel free to give my office a call for a free consultation to discuss the particulars of your situation. 

About the Author

Paul Hefley

Paul is an experienced litigator and trial attorney. He has litigated special education cases in the California Office of Administrative Hearings, the United States District Court for the Southern District of California, and the Ninth Circuit Court of Appeals.


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