i really appreciate you always do the opportunity to subpoena oral argument and to be before this court not only for its legal analysis but importantly for its wisdom and this is a case that calls out for both i promise my clients i would do something that was stand the time i really want to thank mr mrs cripps who without their commitment to justice for their child and now as we have traveled together on this path together for quite some time for other children as well and regarding what we call the schoolhouse to the jailhouse pipeline they also promised them that i would talk a little bit about their son himself because unfortunately he has been somewhat direct the school difference position is this is that if someone comes along and makes an allegation that a child committed rape or worse and then later it's determined that no such act occurred and that the juvenile justice authorities have investigated the case and determined there's no fel there's no misdemeanor excuse me but you're dealing in a hypothetical and you know that's not what c c was accused of i'm sorry i'm not sure i understand he was not accused of rape now he was accused in the hearing they found that he did something but the fact that the prosecutor chose not to go forward doesn't mean anything well part of their respect i guess i'm here to argue otherwise well  to the point i want to get to the point the point is that the school districts position is that if if you make an allegation against a child in this case a felony against c c for taking pictures and later on the juvenile justice authority comes along and says there's no felony there's no mystery of there's no nothing we're not going to prosecute the case we're not going to further case we're not going to adjudicate the case we're not going to do anything we're going to let the case go and then the school district says you know what we don't care what the juvenile justice authority says we don't know that we have to change the placement you're on which is not exactly what i'm saying i'm saying they have a duty under the constitution they have a duty under texas law and they have a duty under special education law to review that placement and that's the position because otherwise you could have school districts all over texas all over the easy you know all over mississippi prosecutorial decision it's separate and apart from what the school district has to deal with don't you agree absolutely correct ron you're absolutely correct what i'm saying so if what you know about whether to prosecute is not tantamount to a decision that nothing deliberate that's correct you don't want to talk about what happened though you want to talk about prosecutors if i get to that i want to talk about the duty that school districts have for children with disabilities to review placement in conduct conscionable at a felony on school grounds shall be removed from class and placed in a disciplinary alternative education program i'm not arguing that you want to but that's speaks to conduct didn't speak to conviction or indictment or anything else i'm not fighting that your honor i'm past that what i'm saying it is after as a child which receiving special education services the standard that we use in this district is michael i fair in the pending school district standard has four different elements the first element is whether or not the child received services in the least restrictive environment another element is whether the school district including key stakeholders and the parents have collaborated in providing and reviewing a child's educational plan another part has to do with whether it's academic or non academic benefit and another element your honor has to do with whether or not the educational plan is commensurate with that child's unique and individual life needs and i submit to you that while at one time in the story one time in the narrative he committed a crime and the school district believed the community crime in the school districts have an absolute right under the education called to make that determination what they don't have a right to do is not reconsider information that's brought forward after that because notwithstanding the issue that offended someone about the allegation of rape the truth of the matter is if somebody gets a new allegation from the rape like we saw with kids in each because it happens all over and it turns out that they are innocent or the case is dropped their position is we don't have to review that kid's placement we could keep them out of school and we don't care i don't understand what would they have done if they  that i guess the best the best image i can use to respond to you on or is there is what caught and put it through put it out put the input side of the story i'm not disagreeing with today what i'm saying is one state make a decision the child needs to be placed in the d a p so be it but they also have a duty under the constitution to review it under texas law to review it and more importantly as a child with a disability to review it that w up what's called inhibition review and dismissal committee to review changes that children have whatever their needs might be sometimes they're healthy you know kids get sick and then they get well they have mental health issues where they or they have to be removed from class or from school for a minimum type period of time so i think the texas education code speaks more to regular education children children without disabilities we in this case have something quite different we have a child with a disability they have special you've already conceded that you don't dispute what the fellow did you don't dispute that he had that they could have transferred him into this old that the there was a finding an appealed that there was no connection between his misconduct and his disability so how can you be before us arguing that his disability gives him special immunity from the consequences that would follow for any  misconduct is not related to his disability we're not talking about the misconduct we're talking about the the duty that the school district has to review his educational placement based one upon annual issues into changing needs i want him to be treated fairly under the law and that's what he did not get under the law he has certain due process rights both on federal law in constitutional law you have to ask the question what's the rational purpose what's the rational basis for having a law or a rule or a standard of practice that lets a school district place a child to criminalize behavior and that's really what we're talking about here which is part of this whole policy i ue and trying to wrestle through the weeds and get to the wisdom here we have an issue of in this country of children with disabilities disproportionately placed in the criminal justice system we know that it's all over the papers it's something that we have to deal with it's not just a case about my client this is a case about kids and this is what happens with the fifth circuit when you make a decision you affect children everywhere showering are placed in the groom justices to know he was not yeah decided decided not to prosecute what's called mission review and dismissal committee meeting under the law he's required to have that meeting annually and under the law it's also based upon the discretion of the what's called the art committee which includes you know the teachers and the parents and other what we call steve take the stakeholders to review changing information and clearly this is changing information now when i'm sure he was only in that school for three months what are removed from the public school because they are thought to be a danger to the rest of the student frankly this kid appears to have been a danger well respectfully or at least to order and discipline respects what degree i disagree with that but i know you are so so so the point that i want to go back to something else rhonda said i didn't wave anything here i'm not saying that how they handled this was correct i think they handled it wrong i  think that the little boy certainly did not have an expectation of privacy in this but i really want to talk about the bigger issue and that is once again under federal law he has an absolute right to have his docker and i'm pleased to represent her stuart scott furred independent school district i'm going to jump right into the jurisdictional issue that you've been discussing with counsel and that is that we do not believe that this court or the special education a very clear under section thirty seven point zero six it states as your honor sir where that when a student engages in conduct on campus and that's the important point here under section a on campus that is conduct punishable as a felony they are entitled to a mandatory placement in the district's alternative education program now under section thirty seven point zero zero nine of the texas education code if the school district has a policy or procedure to allow for an p placement and the board of trustees or the board's designee makes a decision on that decision regarding the alternative education program is final and not subject to appeal that's what the texas education code says and because of that we don't believe that the court has jurisdiction to even wade into this issue now while the opposing counsel tries to couch this as a special education issue the fact of the matter is is that once the  committee the admission review dismissal committee determined that the conduct that c c a engaged in which was taking pictures of another student using the bathroom on school property one thing determined that that was not a manifestation of his disability and they determined that his individual education program is i e could be implemented in the alternative education program and that he could receive the services there the our committee was done this became a general education decision now plaintiff's argue to the court that we've somehow impugn cc's character by removing this alleged felony conduct on the record the fact of the matter is is that when you look at the stevens versus trinity case which the district its brief that court found that it did not have jurisdiction to review the d a p assignment of a student who was not even arrested for the conduct that the school district believe that he engaged in because he engaged in conduct that the school district believe was punished was a felony and i think just as crazy when you were saying that there's a prosecutor prosecutorial discretion that they're looking at and i think that's a very good point because when you're looking at whether to prosecute a student or prosecut individual they have a burden of proof that's beyond a reasonable doubt obviously that burden of proof does not apply to the school district and there's also other provisions of the texas education code that deal with conduct that happens off of school property and the texas is specifically put in provisions that when conduct occurs off of school property that's punishable as a felony that the school district does have to review that kind of conduct because they did not see it with their own eyes but when conduct occurs on school property page opinion yes you did you tell the district court he didn't have jurisdiction i did absolutely tell the jerk the district court that he did not have jurisdiction in the district court determined that he did not need to reach the jurisdictional issue because he did not believe that it was  relevant to the decision that he was making he believed that the issue of whether c c engaged in conduct punishable as a phony and whether the art committee should have reviewed it was irrelevant because that was not within the purview of the committee in the first place and so the district court did not reach the jurisdictional question i'm sorry i'm i don't you think i mean for the record years yes and i raised it in the court district court specifically said that what i just told you your honor which was because the issue of whether c c engaged in conduct punishable as a felony was not an issue for the art committee that the court specifically stated in his order that he was not reaching the jurisdictional issue so we believe he reached the right decision we just don't believe he got there the right way but you know that's exactly right we don't believe the special education hearing officer should have gotten there and we don't believe that the district court sort of gotten there are you saying we should reverse with instruction we should reverse with or vacate and remand with instructions to the summons on that specific issue yes because there's also the issue of when you look at the idea and you're looking at whether or c c was provided with a free appropriate public education under the individuals with disabilities education improvement act you have to look at the four factors will plaintiffs have woven this argument of us having to review c conduct and whether it was kind of school as a felony and whether he should have remained in d a p they wove in that into the factors that this court looks at but we don't believe that even when you leave them into this even if the court found that you had jurisdiction we don't believe that that gets them there because even looking at it it's clear that the district still provided him still provided c c with the faith for instance one of the factors that you look at is whether c c demonstrated positive academic and nonacademic benefit well when you look at ral riley says that you have to determine whether the ip is reasonably calculated to provide the student with faith so when you're looking at that first factor you can't lose sight of the fact that the idea does not guarantee any particular little bit particular level of i'm sorry but we understand anyway you do your conclusion and prayers says nothing about vacating and remanding it says to the extent the court finds a proper to exercise curious to question over all believe that he should have reached the issue as to whether c c engaged in conduct as the engaged in contact kind of civil as a pony and the court really never reached that issue because he said it was irrelevant plaintiff's counsel and plaintiffs are still bringing up in front of this court and so our position is still that the court does not have to weigh into that issue because the court does not have jurisdiction over it but then when you look again at the fate factors that the fifth circuit applies he was clearly provided with a fa so with respect to the positive academic and nonacademic benefits of c c's i e p c c only attended school for fourteen days following the implementation of his ip it was implemented on february first the district found out about the picture taking on february twenty first he did not return to school after that fact or after that date and then his parents withdrew him on march fourth and so the fact that ccs parents did not return him from school or return him to school deprives the court of the ability to see how he would have progressed under his eye e p that was implemented however in the short timeframe that he was there the behavioral specialist testified that he would have progressed and great in fact he doubled the frequency of turning in his work on time and the measures used to address his tardies were effective where he was no longer tardy and he was benefiting from the social skills now cc's i e he was also implemented in a coordinated and collaborative manner in fact the district would say that it was parents but also c c s advocate they worked with him to ensure that he could remain and they and so they did all the things they should have done to work with c c and his family in fact he's father expressed that the meetings with the district were generally positive and that he had no issues with the school until c c was disciplined and for taking pictures of another student in fact he also acknowledged the efforts by the district by specifically testifying quote everybody in the parties were trying to help both sides and teachers administrators everybody so it's clear that even cc's parents thought that the district was cooperating with them and collaborating with them in till c c engaged in conduct that the school district could not overlook in today's technological world it's just a fact of matter is that when a student takes a picture of another student on their cellphone that's not something a junior high in ministry here can over look at the fastest text messages spread and the effects that they can have that something that the school district has to take seriously now in response to that plaintiffs argue that there was a hostile educational environment that c c was being subjected to and the district's amid see that there's no evidence in the record of that in fact again going back to c c s fathers testimony he testified that c c did not return to bedford junior high because of the severity of the charges not because he she was being subjected to a hostile educational environment and not because c c was being denied a free appropriate public education by the district in fact when you look at the record and there's quite a few places in there around pages seventeen zero one seventeen zero two seventeen zero four seventeen zero five seventeen eighteen and seventeen twenty to twenty one why they determined that he engaged in conduct punishable as a phony the fact of the matter is is that well before that happened they had ample opportunity to cincy see to the alternative education program ample opportunity but instead of yes prior infractions where he would there's one specific incidents and i believe it's seventeen twenty twenty one where he engaged in three different incidents on three different days i want to say it was january twenty eighth twenty ninth and thirtieth and each one of those could have warranted a separate and instead of giving him those separate placements where he would have been sent to a long term assignment they couple them together and gave him one consequence so if the district truly had wanted to get rid of him as a point of celebs they had the opportunity to do  so but it wasn't that they wanted to get rid of him that's not what it was at all they were working with him is that you can't again like i said overlook the fact that he took pictures of another student using the bathroom now plaintiffs also argue that the our committee again it goes back to this issue should have reviewed the fact that he was not going to be charged by the juvenile justice authorities now there's no evidence in the record that the juvenile justice authorities ever actually informed the school district that they were not going to pursue charges but even assuming that the our committee knew that they're not going to file charges there was no obligation to review the d e v s i meant for the reasons i've already told you once the our committee determined that his conduct was not a manifestation of his disability and determined that his services i e p could be and implemented in the alternative education program committee was done with it at that point as a matter of fact when you look at the idea as implementing regulations and they specifically provided that thirty four c f r three hundred point five thirty c it says that if a student with a disability violates the student code of conduct and the conduct is not a manifestation of the student's disabilities then school personnel may apply relevant disciplinary procedures to c c in the same manner and for the same duration as procedures would be applied to students without disabilit while plaintiffs are arguing for an extra layer for every view for c c a the fact is is that once the manifestation determination is made and it's made that it was not a manifestation of his disability which again is not before this court because it's not being appealed then c c is treated like every other student there's no additional review for him not even by the art committee and while plaintiff continues to argue that the our committee should have reviewed it the fact is is that it wasn't relevant to his i e it had to do with location not his actual services and under white vs ascension parish you look in that case says that to have the juvenile justice authorities there that was well within their purview to ask for the juvenile justice authorities to come but there's no evidence in the record that they did so but they're certainly not a key stakeholder and we brief for the court on pages fifty three and fifty four of the district's brief who the key stakeholders are juvenile justice authority is not one of those individuals and also article fifteen point twenty seven of the code of criminal procedure does not transform the juvenile justice authority into a stakeholder as a matter of law and i think it's important for the court to look at thirty seven point zero six where it talks about getting the notice from the juvenile justice authorities and it's pacifically says  determining whether there's a reasonable belief that a student has engaged in conduct defined by a are defined as a felony by the penal code the superintendent's designee may consider all available information including information furnished under article fifteen twenty seven of the texas legislature says that you make considerate not that you have to consider it but then if you're looking at statutory construction the only places where the words reasonable belief are found are actually under thirty seven  that again goes back to conduct that occurred off campus and we're not discussing conduct that occurred off campus we're discussing conduct that occurred on campus because it's undisputed that he took the pictures of the student using the bathroom you he was implemented in least restrictive environment again the argument he worked he was still in a general education placement he was still with general education students he still had the inclusion support he had everything is i needed it just happened to be in a different location the planners were not happy with and c c s i e he was absolutely individualized on the basis of his assessment and performance and we've breached that for the court as well plaintiffs did not brief that for the for the court but when you look at it  multi disciplinary team conducted as that by using a variety of assessment tools and strategies they were trained and knowledgeable personnel that did that he was assessed in all areas a suspected disability yet so if the court doesn't have any other questions if whether there is a rational relationship between the placement in a d a p where there is no offense and there's no review think about that for a second  say you don't have the right to review this yet a poll here you know what i'm saying is that they actually brought up this too about jurisdiction i'm saying you don't have a right to review any of this now in my estimation when there's constitutional issues and due process involved and their special education law which is a federal issue involved you absolutely have a right to do in fact not only have a right to you have a duty to set that aside for a second see they relied a lot on state law for their position that they don't have to review the time and changing placement i'm just talking about a right to review is that article fifteen twenty seven of the code of criminal procedure says that when the  juvenile justice authority has knows that they're not going to litigate a case or prosecute a case they have to let the school district know within two days what's the message there that as a public policy issue our legislators want kids in school that if they're not going to be put in jail or put in in the juvenile justice authority at all we want him back in the regular educational environment as soon as possible and we certainly want to refute now the texas education  back in thirty seven zero zero six which they mentioned and then thirty seven zero zero nine which we have in our reply brief says very very specifically there's a state law state law that if the placement is being addressed when school when school starts for the next year they have an absolute duty to review it and then undo it so even the argument that they're relying upon the state law f the constitution sales and state law fails them and the individuals with disability act fails that we're not talking about the placement that they made in the first instance yana we're talking about the right to have a review when they're changing circumstances and once again constitution permits it requires that i say state lot certainly requires it and special education with us as well  one thing i don't want to lose has to go back to the underlying way in which the decision was made at some point you'll go back to your offices and you'll get a chance to review a number of items in the record then the one thing i would ask you to do is to look at the pictures of the young men in the bathroom i'd like you to read the hearing officer decision i want to read the hearing of his decision who says that he totally relied upon the credibility of the vice principal in making his decision and then i'd like you to review the testimony of that five princip and you will see that the vice principal was not truthful that what he says is in those pictures we're not in the pictures now once again i want to argue the big picture here today the public policy of the schoolhouse of the jailhouse issue but i think at some point the under lying items and facts and evidence that brought my client to that moment also are in firm we ask you your honor to we get a chance to talk about this much but but my last thirty nine seconds under stewart versus waco i asked t the courts in the sponte sent the case back to a hearing officer it and it traded exhaustion had never been brought up to school district in their district court never brought it up they never even brought it up before the fifth circuit and fifth circuit court of appeals said that back to the hearing officer for reasons lot less forceful than the ones i bring to you today i want to go and thank you very much for letting me be here today tha