and and the child in this case also appearing with me is my very able certified law student emily spire and we'd like to do is  i will take i like to reserve five minutes for rebuttal speak for eight minutes and allow my last student to speak to the issue of  reasons number one it is sure's meaningful participation by the parents in the decision making process and number two it helps avoid unnecessary litigation that is derived unilateral district decision making i'm we're really here because these parents have been sued three times once before this case this case and once after that's of little moment to the parents that they have a right to engage in litigation to protect their rights congress intended for this idea a process that we call average of and that parents were to be partners and i p decision making i mean when when the procedural safeguards are not protected what congress intended does not happen in fact in burlington the supreme court said that districts and pointed out that congress had found the districts have a natural advantage when it comes to disputes under this statute they have this advantage in expertise and knowledge and resources so i'm i'm curious why in this particular case the settlement agreement that the parties reached wouldn't be dispositive of the issues or most of the issues with respect to the to the triennial ip well it wouldn't be because the settlement agreement came about because of their first lawsuit to force this little girl to curry middle school  what was agreed because we wanted was for them to go through the ip process we argued pre determination then and that the district was unilaterally making this decision we wanted there to be an  ip where the ip team in gauged in a discussion that to determine placement now this was in may of two thousand and twelve so unless we entered into an agreement where we were we actually said you know we're not going to sue you in this intervening time they would have been they would not have been within the time requirements the i d e a because we pushed this out to october of two thousand and twelve so there is no waivers of any rights with respect to this child's face associated with the development of this ip and for them to suggest otherwise would be to suggest that the parent i mean if that were the case the district could just refuse to never finish the the ip and then supposedly if with the district said was true you waived everything through the completion of the ip as long as they never completed the ip there'd never be a basis for the parents to to make a claim so you know that argument was so ridiculous the administrative law judge didn't even talk to it these kinds of agreements are entered into all the time and what the district did not want was for us to come in between may of two thousand and twelve in october of two thousand and twelve and make some argument that they were not providing a fa let's say the settlement issue is not an issue here we proceed to the merits i guess what did the test and school district here need to do that it didn't do that wouldn't adequately involve  parents in the placement decision your they thank you for that and it's not a high bar number one when they wanted to move the child they needed to provide prior written notice and what what the judge administrative law judge and what the district law judge took was kind of a layman's view of what that might mean prayer written notice doesn't mean just giving notice of your intent to move the child everybody knew that's what they wanted to do but prior written notice includes specific elements including what what are you doing proposing why are you proposing it what other options did you consider why did you reject those options what documents did you rely on the importance of prayer written notice is to help avoid is a union case says he said she said kind of  evidentiary arguments this would have been very easy for the district to do but they couldn't do it because the second point of our argument terms of what the school district should have done well why isn't i mean it seems like  a very considered opinion you know opinion or decision here and i understand though that your point is well taken regarding the notice but the l j which i think we have to defer only give substantial deference if we can conclude that we have to defer and that the issue like it's it seems like it's more like harmless because the parents were already well aware of the placement proposal well that's exactly the prob your honor you know let me just point out the problem with the court the administrative law judge first of all deference this extensive deference is in matters that involve educational policy we believe compliance with the idea it does not require that deference let me just address one holding of the administrative law judge and the district court they said every witness every district witness in every orange county department of ed witness testif curry middle school was an appropriate placement that is not accurate with respect to their opinions as of march eleventh two thousand thirteen the administrative la sloan was perhaps the educator that knew the child best and that he gave great weight to her testimony and that her testimony should not be discounted in any way well on cross examination after susan slonim said she thought that curry was appropriate she was asked when was the last time that you saw occur in middle school prior to this i p o and march eleventh she said october of two thousand and twelve what did you find there i found that it was not very well structured and it was not appropriate on march eleventh she admitted that she did not have an opinion that it was appropriate she could not have had neither could miss fitzpatrick or the other witnesses because when they side prior to march eleventh they thought it was inappropriate and that's what the understanding that mr holl er had that it was inappropriate so mr hollister has to make a decision in i am i going to provide informed consent or not now the reason the district could not provide appropriate prior written notice is because they knew in the ip they did not it any time asked the ip team members including the those that knew the child bast the orange county they never asked them what is your opinion imagine if i can just say this you're not imagine what a difference it would have made if during that ip if in fact with the district tries to claim is true that curry was an appropriate placement what if they administer it or would a look to the orange county department of ed people in said tell us your opinion about curry is it appropriate what if those people were to look at the parents and said it's going to be ok mr mrs hollister it's appropriate it'll meet their needs they didn't do that well but i stated that a school district must ensure that the placement decision is made by a group of persons this what the l g a said is made by a group of persons including the child's parents and concluded the evidence clearly demonstrates that parents were not denied meaningful participation in the i p process including as to the issue of placement so it seems like the honor the problem with that is that statement by the l j is not supported by any of the evidence if you i mean it really is baffling to me because you know this case wouldn't be here parents  no parent should have to endure with these parents went through for the judge to say that they were not tonight participation when the people that knew the child best said nothing and they didn't say anything and this is important because they thought the placement was not appropriate so how can that possibly want to give your student the two minutes that you yeah over and then yeah i think i'm at three minutes right now well that's your total time morning your honour's may it please the court and we fire sort of by law student can you speak up yes can you hear me ok this case is not moot because the injury at issue is capable of repetition yet it is a baiting reveal the district has already committed numerous procedural violations of the idea and is sued opponents three times for asserting their procedural rights given this attitude and the fact that sh will be forced to endure many additional says she's seventeen years old because of this you're seeking in this case we would like this court to reverse the decision of the district court and they all day and to enjoin the district from committing future procedural good morning may it please the court karen van dyke on behalf of the tustin unified school district the first question i would like to address is the whole prior written notice my contention has always been that the i document which as you may know is very voluminous doesn't meet the requirements it goes through every piece of the i p that you can go through and lists out the changes that the parents requested their own handwriting so there was a very very deliberative process that built up to why the district offered this placement it's based upon assessment which then from that assessment goals are derived from which those goals are derive placement and services and so i would contend that that i e p document suffices in that it does meet the requirements of the id and the prior written notice requirement in addition i think the district went one better by bringing the family to the actual site  is at least the third time they had been to the school they were given the opportunity to look at the classroom to ask questions to again revisit the various items that were of concern to the family regarding safety it was the argument made this morning the only piece that he cites to susan slonim was the current teacher at o c d at the time the count of the district brought in susan sloan her current teacher in the fall to look at the district's program and make recommendations as to how it could be better we wanted to do the most we can to serve this child she didn't in fact make some recommendations which were changed in accordance with her recommendations before the ip team the district knew that the fact that they didn't go observe it until a few a week or month after that isn't of no consequence because the the it was made and again this is one of those things where i say you know the district kind of went farther in this case than what i would normally see any district do and in terms of whether it was inappropriate or not appropriate they were recommendations but at the end of the day every witness to testify it was an appropriate place and including their own expert and so the fact that the observation took place after the i p t me i don't know that that's meaningful there were enough people at the meeting that had seen the program that could make the recommendation and frankly the districts the one that's obligated to ultimately commit the resources and they were well aware that the program had been changed and made to meet the needs of the child on the street determination issue which we really haven't touched on there's anything in the where there's kind of a compare and contrast let's look at the current placement let's look at curry and see which would meet the child's needs best i didn't see that that really occurred well i think that at the time of the placement discussion they were talking well actually all along the way they were kind of talking about how for example in one of the meetings it was how would the goals look at involved environments they knew they were looking at two different environments when the transition plan was initially proposed that's that's what we're supposed to do we're supposed to present something we think is appropriate and then have discussions that follow there were extensive discussions about that transition piece in terms of going from one place to the other now o c d had a lot of input on that and i cited the record to show that that transition plan had many components to it and each and the services as well and they talked about the transition between the provider of one teacher would collaborate with the other they talked about all kinds of things one would have surmised that if that didn't work they would have said something and  the district held to know what it knows when it knows based on the information it has parents did not object to this in fact parents agreed to the observation and the last sentence in the eye he said the district would like to propose that we eighteenth the parents will get back to them we had no idea that there was a non consensus to be honest with you so that's that's kind of a big thing on our part where we thought we were working together and then later on we find out apparently there was a disconnect second issue i'd just like to touch on is with respect to the settlement agreement i understand what opposing counsel is saying about the ip process but i do know that there has been some history with the family and there there was a concern that there would be a number of meetings that were required the district as you know six meetings i believe around thirty hours knew that that's not going to happen in one day that's why that agreement was written that way so we can ensure that we're not going to blow any time lines or create any procedural issues that that will come up later so that was the district's understanding of the settlement agreement now there was some statement that the a l j didn't reference the agreement and that's true he didn't and i don't know if it's because he wanted to just rule on the merits because it was cleaner or he didn't have jurisdiction because it was a settlement agreement but the district court did i believe it's footnotes have a did actually address that issue he said he didn't need to  well we understand that's here but because of the merits of the case we're not going to reach it and so there was an acknowledgement of a settlement agreement it's just they felt strongly on the record as always it's probably a stronger case to actually  to come out on some other procedural grounds ok and in terms of the briefing i did notice that there was some issue taken with respect to the timing of the districts and i will say i mean up to the districts filing process complaint in the process there was a request an independent educational evaluation and under state law we have the obligation to either fund the independent educational evaluation or follow our own due process hearing to defend not evaluation and it must be done within a reasonable time i've done my own analysis there's no hard and fast rule in my own brain it's between thirty and forty five days if you look at the cumulative cases that i've reviewed so the district was on a legal obligation to file on that i e if nothing else but the placement as well we too have that obligation to file a due process hearing when we feel we have something in a lesser restrictive environment in this case despite the contention by the appellants there was a discussion over l r e i believe it  s on our nine seven one that talks about the integration available with typical peers at the top at the current campus whereas at the campus she was in meadow park and now the new one hillview there no general education students there there's no access at a comprehensive campus there is there's mainstreaming opportunities with those happen right away no she's you know there were some concerns but slowly being integrated having exposure you know lunchtime i'm not saying she's going to sit with them but she's going to have access and slowly but surely the i g a requires us to go in that direction if we felt that we had a program that met this trails needs in the least restrictive environment we are not legally permitted to place elsewhere rather we have an obligation to explain why we're not placing this child in our in our own programs and i think that's maybe a disconnect here because i sense from appellants that they feel like the districts bullying them and using the process and and certainly that's not the case it's a simple effort to comply with our legal obligations and we believe we have a program we believe that can fit that program and benefit from that program when do the parents get we go i can't say for sure when they were retained i know on the very first case with the settlement agreement i was involved in that mr peterson was representing the family at that time there is also there's also an assertion that there was no consensus on the i e p at the end i think throughout the briefing there's numerous contentions i just again want to point back to the actual  on the testimony where you have a number of people testifying about the program and at the end there is no understanding on anybody's part that this isn't the direction we're going and there's an agreement to visit there is a visit there's an email from the students father that basically says i need more time to figure it out if i can make this work i didn't say we want to something else it just said he needed more time to make it work and in fact we didn't file immediately we wait an entire month deadline our initial deadline that was given so we weren't acting hastily so i thought when the father asked for additional time to consider this that the district refused the extra week well there was a program administrator that did that but we actually did extend it a month we didn't file until late a part so yes that e mail came back and said no we're not going to wait but in fact we did wait thing i just want to point out in terms of the transition plan and all of that there's a lot of you know there wasn't enough participation she needed this very heavy plant in order to get from one place to the other the district a really really i think good job of trying to accommodate for that the one fact i do want to point out that when the district had to face the situation of metal park closing it had to make a determination as to whether we're going to bring her back to our program or allow the child to continue what h school which is an o c d program working with the parents we agreed to keep her in the o c d program and i just want to note that there was no transition plan on that transition and she transitioned fine and i think that's  just to point out that the district has tried to work with the family to address the concerns perhaps more than were necessary and your honors i don't have anything else unless you have any questions thank you thank you  just briefly your honor in terms of your question about the ip where there was no compare and contrast that's the exact thing that we claim is necessary that's what congress invision it's also part of the least restrictive environment determination the kind of way what would be best that didn't happen when they talk about thinking that there was a consensus i mean that the district has argued that we didn't even know that the parents were weren't in agreement or it's interesting that the administrative law judge the district court left out completely out of their holding the e mail that the parents sent on on march twenty eighth where the parents said please we have questions we'd like to have them answered can we meet and do that and can you give us one week extension so for a district that's claiming that they were working with the parents they flat out said no now they didn't grant any extension it just took them a few weeks to get their paperwork together to soon no one ever told the parents that they had an extension and in fact ms parker said i never she never communicated with the parents further again what a difference it would have made if the parents requests to meet and try to work this out would have been respected that's exactly what union says about preventing he said she said because the district the administrative law judge said well the parents had an option to ask questions of their visit on march twenty seventh there's no written record of that so the parents are vulnerable because it's not in prior written notice the district's reference to the i e part of the due process complaint is irrelevant except for the fact they didn't give prior written notice on the i e issue they didn't with respect to this and they admitted in miss parker admitted in her testimony it was her responsibility and she should have done it the leas ok just that email exchange no compare and contrast there was no consensus and i think that if you look at the reason why the parents brought the child to the county was because the district could not meet their needs they thought she was not educated ball the parents brought her to the orange county i was there and help them and now the district less than a year later wanted to unilaterally bring her back thank you thank you  takes a lot of courage to come up and argue as a last didn't she did a lovely job thank you very much mr peterson misspent i thank you for your very helpful presentations today