please the court house on one short disclaimer if i may make here in my voice i've been a little bit under the weather this week a little bit of that credit's going around so if i cough or this or that or need some please forgive me court may know and even some members of this panel frankly i've dedicated my life to representing children with disabilities and children and with disabilities who have been injured so i follow the cases that this court writes in great great detail but over the course of my career represented hundreds of children in special education cases and had a couple  coleman cripps i believe that the social and policy and legal implications of the of this case regarding what's considered the schoolhouse to the jailhouse pipeline is something that i asked the court to be mindful o as they go back and review this case because i believe as an attorney one of the things we look for is direction from the court that's how we go forward lawyers on both sides and need that to represent their clients and i ask once again i think this is a very very important case because it deals with issues much much greater than common cripps ok also you've used is actually twice this recording will be posted at the end of the day so for the briefing  i think is incredibly important and it may in fact be an issue of first impression for this court it's creating the distinction under section five zero four the rehabilitation act of one nine hundred seventy three as to what's the correct standard of review when we're looking at a hostile educational environment has a standard based upon davis and s s versus kentucky regarding deliberate indifference as compared to what's called a gross misjudgment or a gross deviation of professional standard of care which is also a separate section five zero four issue which seems to have a different review and stuart your honor to do it one in the dissent there was some discussion about what that means and also in lance that so taken by higgins and rolled also there was a discussion about these cases so i think this is a very very important public policy issue for those attorneys they represent children and those attorneys that represent school district as what's the correct standard of review that we need in those kind of cases and then third of course is the general standard of what's the standard of review in a twelve b six motion to that end  i'd like to say that we're going to abandon any of our constitutional claims we're going to abandon any of the claims related to amending the complaint because i think they are all both best subsume by questions related to the section five four so that you process in the equal protection arguments all the constitutional issues are out you know my theory quite frankly your honor is i mean the constitutional claims are always the most difficult i think are our strongest cases are on the the statutory do not satisfy criteria under twelve b six motion because i think they do one of the issues i'm sorry you're on it looks like you can ask me a question you're asking us for our input at this stage you have a right to respond to the arguments that you are making so please proceed very enough out of over the course of a very short period of time cool district professionals in this case steer this young man instead of into special education services and the remedial accommodations and modifications she do under special education under section five of four into the courthouse over the course of a two week period the young men  did she have but she making porn and the school district personnel spoke to the parents and asked that the parents file charges against the young man for sexual harassment a short while later the young man told the little in class that he had a small penis the school district official spoke to his parents and asked him to file charges against the young man for sexual harassment a little while later he belched in the boy's face the school district personnel spoke to their those parents too and they asked them to file charges against the young man for sexual harassment or sexual assault the reason for that is because it's a sexual assault it's in a felony and you get the kid out of school it's real simple now we think those those claims show one hostile education environment under section five zero four we think those claims alone show a gross deviation from professional standards of care also under section  zero four who is clearly teachers are not supposed to steer kids into jail in fact teachers opposed to steer kids out of jail now there was a question about in a pleading issue about whether we satisfied criteria that these types of acts and or missions rose to the level of discrimination based upon disability and one of the subway issues in this is that once there are concerns about the tally ation and early on we had tried to add a claim solely based upon retaliation because actually under section five of four there is another claim for retaliation when you advocate on the behalf of someone with a disability we find that similarly in the a da under title nine people who advocate on behalf of a person in that position is also protected you can't retaliate against them so the defendant wrote that we didn't we haven't proved that the child was discriminated against or that there was a hostile education environment against him based upon disability or there was a gross deviation from professional standards of care against him based upon disability is that we admitted that  retaliation but you see that subsumes the question because the retaliation was based upon protected activity of representing someone with disability so clearly if the if that underpinning is based upon disability and clearly we braved an  sufficient inferences to show that he was a victim of discrimination based upon disability for both i would almost caught opposite sides of the of the same coin against him for assault upon a club that sort of this is purposefully done they arrange for a teacher to run into the boy and then a few weeks later they file charges against him i would argue once again that is that is a hostile educational marmont and that is not something we want to do setting kids up for for for felony charges what i think to me really planing which took the cake so the little boy walking through the hall one day and he's tapping a rubbing his pencil against the wall and he hears two teachers saying ah ha now we can get him for destruction of public property so we have a conspiracy in the whole school that they want to get rid of this kid now granted he does a lot of things are stupid and like most kids you know thank god he's grown up and he's beyond all that now doing quite well but at the time this was a conspiracy across the school to get rid of this kid and once again i believe the twelve the six before us or judge mcbride there isn't that i mean most of your brief to us and most of your arguments below are the constitutional arguments that we're putting aside correct your honor so judge mcbride didn't spend that much attention to this but i thought the essence of his argument was that even if you take your allegations of a conspiracy of hostility as true you didn't allege any facts that it was because of his disability that instead they're there for their  attention to him was because of multiple behavior infractions one that lends that's the police referral and in fact some of the allegations that you assert would be inconsistent with insensitivity to the disability because for example what it's called the m t r hearing of correct that's not a requirement at all but they gave him that so he's in the special education program this toilet incident occurs and he gets the m d are hearing  and then the referral to the police occurred after that so so i thought judge mcbride on the the tail of your arguments the five zero four was saying let's accept that there was some hostility those facts we accept but it wasn't solely because or even at all because of the disability you know facts were alleged as to that and then i think so that's my question but it even as you argue it now it's a shift i hear you shift between not because of the disability but because of frustration at the advocacy relating to the disability that took that's correct but i haven't shifted let me better underscore might be a better term to use is that when i was like ok short anecdote one of the things i do besides this is i work as a magistrate mental health court judge guy herman travis county texas and i go to the state hospital and we do to kate whether or not people need to be in the hospital stay at the hospital and one of the things people always ask is what's the person's diagnosis and my position as a magistrate is i don't care about his diagnosis what's his behaviors so to answer your question your honor the issue is is that it was it was students behaviors that got him in trouble though if you look through our brief and their brief and every time you see the word disability put in the term behaviors then absolutely we have made argument that the discrimination that he war was based upon his behaviors his disability and he was you know he was accepted as a student with a disability so there's no question about that i hope that answers your question what maybe be a precise what about the m d are hearing was that required or was that for him it was required and in fairness to everybody here one of the issues that are car was that when we when we appealed the case we went through administrative exhaustion because you know we've learned that we have to in all these cases so the case originally went before judge me brought include both the appeal and the separate cause of action and he severed them so that's created a little bit confusing even in the original complaint because it really had both issues in there but once again i want to underscore that the reason there was the animists the reason there was a hostility the reason there was a gross deviation of professional standards of care was based upon the student's behaviors and those behaviors are disabled in conditions upon which in fact the school district provided services for wouldn't there be some dovetailing even in the five hundred four line of authority with the harris navarro's line which is how is there a gross deviation if if the action taken was referral to an alternative school that may be able to assist the child to understand privacy limits well that goes backwards a second got answers a question about the constitutional claims very briefly you know to show bias an fact issue that i think needs to go back to the district court for us to explore it what's the case that says there could be gross deviation from a referral to an alternative school for a period of two months let me be direct your honor i'm not bringing that up today nice that's not my question that's not the issue i'm bringing before the court my issue before the court is that there was a course of conduct or a significant period of time that that satisfies the standard of hostile educational environment and a gross deviation of professional standards of care i understand i have a rebuttal time i hope they use it at that point thank you very much bio and vice principal in the i guess no longer have claims pending against them i want to start with the retaliation issue that mr circular brought up he told you at the outset of his argument that he is not challenging the replating issue so i'm unclear as to how or why we would be discussing the retaliation issue as we please as we put forth  yes and so if we don't need to go back yes your honor so when we're looking at the five zero four claims that mr so killen plaintiffs have brought forward the question is is what standard are we looking at to determine whether or not he has pled at that point of supply a cognizable claim to go forward in this matter mr killen plaintiffs and their briefly lie on the bad the the conduct that the district allegedly engaged in was bad faith or gross misjudgment an argument is that that pleading standard doesn't even apply and even if it did as you said your honor there's been no connection between a disability and engages in misconduct doesn't automatically mean that the student is being punished or being disciplined because of the disability there's got to be more you have to show that the action that's being taken i soley because of the student's disability again plaintiffs want to argue that the bad faith gross misjudgement standard applies but there's nothing in this case that's predicated over a disagreement under the individuals with disabilities education improvement act and they haven't alleged that there's been a denial of faith under five zero four and they're not alleging in this case a denial of faith under the idea and so you've got to look at strict discrimination soul discrimination not this bad faith gross misjudgement but again there is a disconnect because there is no connection between the actions he's engaged in and the conduct alleged against the districts which what's your best case for that proposition which was the one the district court ruled on that that that there's no connection here i would go back to all of the case law that says that and you have to have discrimination is based soley or i'm sorry that the kind of has to be based soley on discrimination and i haven't found any case law on point looking at this direct issue but again if every behavior gives rise to meet every behavior gives rise to a claim for disability discrimination then that's going to open the floodgates and it goes back to what you were saying to educate isn't about the whole reason just goes to show that there was no that there was a mechanism in place to ensure that he wasn't being punished because of his disability that's the relevance of that house on this  morgan about whether the plane was sufficient enough to have made that allegation but if the allegation were there of such treatment wouldn't that hearing be irrelevant no i still think it's relevant because of the reasons i stated that it the procedure is present yes school to show the good faith no gross misjudgement maybe whatever else corrects i want because we followed we followed what stepping hard on the disability the allegation that there was a conspiracy to have this teacher filed charges against the student not to my conspiracy takes you through is that they says that you and you are referring these people for criminal charges and that seems to suggest that you're doing that despite you not reading his disability you're not dealing with that by calling in the transferred to another school yes yes and why it wasn't the school district's choice as to whether or not charges were brought against him that's a choice that's made by parents and the district did not mean charges to be brought against him in order to transfer him to the and i think that's where there might be a disconnect with plaintiff says there are allegations that the district was continually referring him to the police for felony charges in an effort to kick him out of school well the reality is is that whether or not charges are brought don't see that meant less about you make your argument well even assuming for the fact of their for the purpose of their twelve to six that that is true i think that the issue still goes back to there twenty six motion and in time to go forward with it if you please and the district still goes back to because there's been no connection between the special education services that were being provided to c by the district and these allegations that the principal and the vice principal were take trying to kick him out by having charges filed against him because of his disability  well plaintiffs specifically pled in there and did complaint that d c was like many other prima in many other immature preview bestand boys he found great humor and making fun of others especially when it came to genital size and various battering activities he's not even tying all of the things that happened to his disability in the amended complaint he specifically says he was like other boys who found humor in this information and these this type of not disciplined for conduct that was caused because of their disability which is why that is relevant because we did give him the m d r what was his disability  part of their allegation was that if you really were not for disability but for misconduct then the school would have some interest in the subsequent referral speculation and the allegation is that there was no policy in place or no interest at all once the police decided there was nothing to pursue for anyone to untransformed back that's correct because school district decisions on discipline are not dictated by what the prosecuting authorities do in fact if you look at texas state law the texas education code specifically says that conduct occurring on campus and this is an disputable conduct occurring on campus when he took a picture of another student using the bathroom no question that conduct is specifically exempted from the review when a prosecuting authority decides not to not to pursue charges if it's conduct occurring on campus the texas legislature says that school districts don't have to reassess that so if the texas legislature says that schools don't have to reassess that essentially giving them the opportunity to make their own disciplinary decisions then we don't see how not reassessing it could give rise to any kind of constitutional violation constitute bad faith gross misjudgement whatever standard you want to look at the texas legislature it's not even an issue of the statute being ambiguous it's specifically exempted that such action was based upon a disability only in a conclusion or a fact that fashion this might sound somewhat joking but i want to be taken seriously you know one man's conclusionary fashions another man's inference and it's my position that the inferences in this case clearly rise to the level of the pleading requirements we have under a twelve six motion in fact the court's own language said which may have caused the above described actions and i think that's a big difference from may have cause to there's no evidence there's no evidence there's no evidence if it's may have caused i think we win i can baseball tie goes to the runner and for a twelve b six motion we have made the standard that we need to make at this juncture like to point the court attention to the recent case the only other case you were here on that dealt with a twelve b six motion it was a carmichael vite versus galbraith that was the joshua independent school district and one of the reasons that another panel sent it back to that school on the twelve six motion and i quote the district court did not analyze or even mention certain portions of the carmichaels complaint and i think we see the same thing  is that it doesn't really discussed in full the issues that we have brought up i think if you haven't answered questions about what has occurred in the pleading for have money answered questions about what judge mcbride meant then that's absolutely the reason why the case needs to be sent back and then i don't think either of us are experts on juvenile law so i don't want to really speak for the my friend counsel over there but i would disagree that the texas law does say that once the school district has information from the juvenile justice authority that a child has been relieved of any legal problems that they absolutely in the words shall under thirty seven texas  texas education code thirty seven zero zero six they shall do something and they did not do that and we would argue once again that roger to the level of deliberate indifference or a gross deviation from professional standard of care if you've got a shout when they don't do it  i really want to thank you all for let me be here today it's a great great honor once again i follow these cases in detail win lose or draw you learn something and i think this is a case of great great public importance i think it needs to be sent back to judgment brought to court for that reason i think you need to be sent back to the court because we've satisfied all the standards related to a twelve six motion and i think it needs to be sent back to that court for all the children in this circuit or the cost of countries that