in this matter we're here today to discuss section five hundred and four and in regard to that the remedies that this student is entitle to at the current knows there are two law that protect students who have disabilities section five hundred and four is the broad and more encompassing law the situation in this case is that when the student at  parent asked for an evaluation in september of her th grade year she asked for an evaluation for special education and also understood section fifty dollars for that evaluation was completed by the school district pursuant to the i d e s i but she was never given any information about section five hundred and four she was not recognized as a qualified individual under section five hundred and four until five o four eligibility by the time the district court ruled the parties had met they had had meetings i think three times which are reflected in the record of  agreed the student had emotional problems and anxiety and they had fost they had made plans for her for the school year now so that's my understanding is that she's now getting some five hundred and four accommodations so what is it you want from this lawsuit that she doesn't already have and i think she's a high school senior now you can correct me if i'm wrong which i'm not just a few months esther mester left what is it she doesn't already have that you're trying to get in this lawsuit well st of all it is not entirely correct an issue is a senior this year what we do not have is a clear ruling from the district court because of the way the decision was written that the magistrate actually said she was not eligible under five hundred and four so she according to this decision is not viable for eligible which will of course impact her going forward in terms of college and situations there but the school says she is not i other developments i mean that requires us to change this ruling i guess i guess i'm not quite clear on why it hurts or just be the language in the opinion that she's now actually recognized as deserving of services that would be for reading for math and for counts and counseling so those are the services she did not receive from this period of time of september of tw sixteen through july th so our our position is that she still needs what what would ordinarily be viewed under the special led law but we're not under the special of the as compensatory education services we're not seeking monetary damages we're not seeking compensatory damages as that term is used in feibel for traditional law we are seeking compensatory education services for whatever she may need for the same period of time that she lost those services which is roughly twenty months now at this juncture of course what that looks like may vary we would you know if we are we may and it will have to show that to the district court but to to ignore her claim and to throw out the claim when there is clearly by the district's own policy a failure to give her five hundred and four services for roughly tony twenty four months twenty months that is not correct that is a violation of the a b a so usually school districts don't run into this your honor because usually they give an ip and then that's their defense to why they don't have to provide five or four but they didn't do that here so she was left a small amount of counseling reimbursement about six hundred dollars or something but it would essentially be services similar to we what we would see in a traditional i d e a compensatory education claim the this is the  nd issue and i do want to make a point to to recognize that the school district's own policy was violated in regard to not identifying her timely under five before they're supposed to under their own policy which is in the record on appeal at fifteen million two hundred and ninety one thousand five hundred and thirty if a student doesn't qualify for special education the school district's policy says they're supposed to notify the parents in twenty days tell certain campuses people to do certain things so that the five or four option can be presented and the student can go down that path that didn't happen here now the other thing i wanted to address your honor was the issue of inten damages not even nominal damages we cited to the weber article which is a excellent explanation of that essentially when a student is is in a special in a school setting there's nothing in the statute that requires intent the statute the id is the a b a doesn't say that five or four doesn't say that and we have to follow the law i mean bostic abstract the supreme court case that recently came out says we have to follow the law and there's nothing in the statutes that say the student has to prove intent just because you're in a school setting and nothing in the intentional discrimination even beyond verge to regular damage school and well yeah you know da is a confusing case because the student was did not remain in the same school district it's not entirely clear at what point five or four eligible but are not seeking you know large monetary damages that's that's what we're looking at and i think d a doesn't cut either way for us on i think the the mcmillan case that came out in two thousand and nineteen sort of recognize that there could be an intentional requirement if it's compensatory damages but there's there's not a supreme court case  disabilities who needs tutoring meth and says well if you're going to ask for that or five before you've got to go to an i v a hearing st which we did and we were unsuccessful in fact we went twice so while it's the same type of relief provision that says you actually can see monetary damages you know in the hundreds of thousands what we're seeking is simply payment for services not provided in that's different so there's a couple of old district court cases in texas the howard case in the david versus spring branch case where they looked at that it was kind of before i d e a took off in texas and they awarded you know casa services here the parent doesn't have a lot of casa services because you know the child just didn't have them but what we'd be seeking would be compensatory those can be provided by the school district rather than an outside source and there's been no determination on that because we'd have to go back to the district court and make a specific request for the amounts and so forth which is what we think should have been allowed finally i just wanted to mention i don't really think that that we have an issue with respect to issue preclusion  the the usual rule whether the facts are the standard standards are different and here we do have a set similar fact but we also have somewhat different facts and those different facts are once the child was deemed not eligible under special education then there was another track for the district to follow which they did not follow and and once they realized she was a qualified and of a there with a disability was was too far too far removed from when they should have they force an anti discrimination statue and under it those disabilities may not be excluded from projects impatient in or deny the benefits of programs that receive federal funding in schools this means that students with disabilities are ensured access to their education and schools have an obligation to provide these students with a free appropriate public education under the implementing regulations the individual educational needs of the student with a disability mental impairment that substantially limits what or more major life activity the i b a requires that a student have one of the enumerated disabilities and because of that disability require special education the different standards four plans are created for students so that they can access their education is plans can include accommodations such as setting or the teacher or shortened sign that they can there can claim is is really based on the same denial of the faith you have to exhaust under fry what's really the purpose of that if then you get what you can get past exhaustion come into court you can just basically start from scratch on the final four claim often not clear at the outset of a case whether or not a student does qualify under i d e a or if appropriate really does held under section five of four and given the state of exhaustion law most precious winners do err on the side is are different you have to then consider whether or not the child is eligible under section five of or all right thank you ms rogers well now here or the school district there was no evidence at either of those hearings that the student required accommodations or that she had been excluded from an educational setting and in fact we start with the uncontested fact that the school district has provided the student with a free appropriate public education for the time period of her th grade year through the th grade year when the the nd hearing officer decision was issued in both due process hearing requests the parties asked for the plaintiff asked for findings under section five of four so that they could exhaust as administrative remedies in the record the  process hearing examiner addresses those square aam admi he notes that although the students some wasn't times behaved inappropriately her behavior did not impact her ability to learn the five o four accommodations of this school district ultimately gave were no different than accommodations that were already present for the general education population and so he found that she was a typical student who had a conflict for the couple of peers but otherwise was progressing both academically and emotionally and so that no decision has ever significant remedies and they are seeking and word of attorney's fees at the summary judgment level the fees incurred in this case were substantial and so that is also a remedy being sought here and has as i think you've pointed out this is a successful student who is about to graduate with her class she is an a b student with no need for any kind of additional services to get her through her academic career at kerrville high school and seeking compensatory services under five a for the courts have not have not construed five o four to require compensatory services five o four is an anti discrimination statute and provides that is student shall not be excluded from the benefits of an educational program solely by reason of his or her disability so it does not provide the same kinds of remedies that are available under the id a which is why is ms rogers pointed out correctly frequently the parties will go to  seek such services as counseling and i think miss kerr said that the reason why i'm one of the reasons why we are here is that the district court's decision eliminates the students  that could impact her going into college my response to that is twofold number one there's nothing in the in the district court's decision that states that the student is not an eligible under section five  contrary the district court said that she had not articulated as a separate and independent cause of action under section five of four which is a wholly different finding and as to colleges each college makes their own five thousand and forty debility determination that five a whore plan if any that the student brings forward from high school would be independently valuated by any college and would be quite frankly  irrelevant  i asked you to look at the boston decision for guidance here and i would urge that the court do the same i think i'll stick gives us a helpful approach to looking at the importance of finding  intent in those statutes to protect individuals with protected characteristics from discrimination in boston at the core noted that when we have a statute  discrimination because for by reason of a protected characteristic that it has a meaning the same meaning as in but for causation so but for the disability the student would not be read together for the most or is that if you want damages for intension for discrimination yes you need then that you need that intentional discrimination finding of intent but if it's just a failure to accommodate so if you're just saying oh there needs to be a wheelchair ramp at the school and you're not asking for damages you just want injunctive relief to build that ramp then you don't need a finding of intended just enough that that they're not accommodating your disability whether they  intend to discriminate against you or not so what why shouldn't that be the same line here that if you want damages for discrimination yes then you need to show intent but if it's just it's just more along the lines of a failure to accommodate and you're just asking for injunctive relief or other equitable relief you you don't need to show that intent i think they answer to that question is found in the in when looking at the underlying curriculum in a way that is appropriate to the child's ability and disabilities and provides an individual as instruction of the word just protects that student from being  excluded from an educational setting so if we had a school district for example that did not have a wheelchair ramp and we wouldn't be looking out the same kinds of issues that we have here we this student who was perfectly being perfectly well served in the general education setting we have a hearing officers decision that says her emotional disability if any is not impacting her ability to access  curriculum at all so if you were to say well the court is going to nd guess at this point the educational findings of the school district in the hearing officer you're going to be creating a brand new cause of action the congress never never intended it was plain language of section five of four requires that the person is denied benefits solely by reason of that person's disabilit i think that this court in the da has someone just brings a claim i the claim a couple years ago someone wanted their medical school already they wanted an accommodation on these tests you have to take in medical school to get into your residency and you know the question is whether they deserve that accommodation that's a fact intensive issue but would that require asking for that accommodations of put it with your client just a high school student says i have this issue that means i need thirty minutes more every time i take a test would they need to show intentional discrimination for that or would it just be a question of whether they're qualified or they have a condition that qualifies them for thirty minutes of extra time i think this court in marvin age said that that person would have a cause of action if the school district reasonably refused to provide the accommodation just like at any eighty eight case where you have a person with a disability who is requesting  were if you had never brought it to the schools attention i think that is a different question but if if the wheelchair bound persons i cannot access my school because i can't get in and the school said i'm sorry we're just not going to do that then i think you've got the level of intent that this court has articulated in the marvin age decision to get you into federal court and to get seek relief well  school district shows gross misjudgement gross and departure from reasonable academic and accepted standards of practice or in on a reasonable refusal to provide an accommodation it doesn't it is not a tort cause of action that gives liability in the absence of one of those factors and i would point the court to the be embers a south callaway case that's out of the th circuit cited in our brief that's almost identical factually to what we have the claims that you have before you hear in that case there was a student who had behavioral issues at school  independent federal tort claim of educational negligence the educators either had to deviate substantially from generally accepted educational judgment or act with wrongful intend in order to has articulate separate cause of action discrimination cla if the court is is looking carefully you'll realize that all of the five hundred and four allegations occur after the end of the st two process hearing requests so anything that happened after october of two thousand and seventeen including those initial five hundred and four meetings are outside of this court's jurisdiction because the parent never exhausted those claims with respect to the claims that fall within the court's jurisdiction from the  and th grade school years up through our tobar of two thousand and seventeen there's no showing that the student number one that the school district delayed in identifying because we did initiate a full educational evaluation nd there's no evidence at the school district was and noticed that the child had a disability that required in the combination our evaluation showed that she did not requirement valuation in the p did present a private evaluation which was created solely for the purpose of that litigation is and but the school district in the hearing officer noted that the only disability that the child the evaluator really noted was that she was having difficulty at home so that was not something that was impacting her education in the st due process hearing examiner found precisely that so to say that the delay in identification impacted her services i think is is outside of the record that's before this court that would also point out that even in the i d e a claims if there is a delay in providing services or appropriate procedural defect that does not constitute a violation of fate unless it results in the loss of an educational opportunity so the student was identified as five and who are eligible based on the independent evaluation that the parent provided for purposes of litigation they m and eighteen they met again in july of two thousand and eighteen and all of the members of the committee including the parents agreed that th age did not require services she did not require counseling she expressed anxiety taking tests in her gentry class and so the five hundred and four committee convened addresses concerns and put testing accommodations in place for her to make sure that she did not have any negative impact from the executive she was feeling in the nd due process hearing you will see that the hearing officer looked at that and said even though the district implemented i hope for accommodations for the student did not need to make did not use them in did not need them in order to be successful so there is no evidence before this court today that there is a basis for providing compensatory education services or any other form of services to a student who is currently on her way to graduate with mostly a's and  and four to conduct a child find or evaluation under five hundred and four that is what was violated here once they can use the special education provisions but if they use them they  still have to inform the parent well those of child qualify under fire before and that did not happen here in a timely manner with respect to the comments about how the student is doing now and so forth none of that is in the record and should not be considered by the  happy to inform the court i did want to address the question about the ability to provide compensatory services under section five hundred and four as i indicated there were a couple of older texas the opinions that are cited in our brief howard and david versus spring branch in addition the minor decision itself which is deemed as these sort of seminal opinion on compensatory education which came from the th circuit that opinion speaks about compensatory education under five hundred and four with respect to the issue of the services and whether or not the student can bring a claim for remedial compensatory services dollars that is similar to what a and i claim could be that is precisely what frye instructs and that is why the martin case no longer holds good weight from i recall reconcile the issue of what do we do when we have a student who you know is seeking some sort of relief under title two and what frye said was well you go through your hearing if you come out empty handed well you've tried and in the school has had their opportunity but it didn't say you don't you can't bring that claim unless you also appeal your i d e a claims it's nothing that says that that's just not in the law in addition frye remember relied upon alexander vs show alexander versus show it made it very clear very clear that discrimination is based often not on an tete it's based on benign neglect evaluating the student in october th seen and then not following its own policy and not giving the student file for accommodations until summer of two thousand and eighteen that's pretty good evidence of benign neglect now what the child experienced during that period of time what her loss was what her services were a warrant those facts were never considered ringback as they should have been by the court that is a material issue of fact that should have survived a summary judgment could remember under five all four it is a summary judgment standard it is not the individual look the individual judge looking at the facts as it would be under the i d e a  so there was plenty of evidence showing the students having difficulty there's plenty of evidence indicating that child's emotional problems with a parent was trying to pay for counselling the child had been you know suspended or not and having difficulty with her behavior at school so there was there was a loss she wasn't able to play sports for a period of time so those those facts go into a question of a genuine issue of material fact that was not adjudicated properly by the district court because of the confusion around five hundred and four and eighty eight and the idea the fry case makes it very clear and if in if the court follows the fry case and relies upon alexander versus show it can only come to the conclusion that a child in this situation does not have to prove that the good and nice teachers at her high school intended her to not get five before services thank you a submitted you are excused