the morning patricia van dyke on behalf of appellant the a please the court this is a really sad and tragic case which an eight year old boy with serious psychiatric disability who even wind up hospitalized after a meltdown at school why did this happen how did this happen it happened because the school failed to do its job under the americans with disabilities act or the at least those are the allegations set forth in the complaint this is a classic case for disability discrimination based on a failure to provide reasonable accommodation of fate correct that's correct and the settlement agreement saddled all of claims relating to the district's educational programs yes  and then in that settlement agreement it did not release the claims to be covered or to be recovered under the a b a is that correct that is also correct all right i just want to make sure i thought that were the case prior just want to measure yes and in fact that's an important case we contend that this isn't a faith case another w had faith claims and he had faith claims he pursued the remedies available to him under the i d e a to their logical conclusion using the procedures not subject to the i d f because the as this supreme court acknowledged in try and this court's acknowledged in pain children with disabilities who qualify for special education have rights under overlapping statutes the a d a s and the i g a well but i'm asking you what are the precise claim of the precise claim here is that he was excluded from school he was address the issue that you were trying to to raise with respect to our kind of work it rests the issue the faith issue and we agree that he had faith issues and they were resolved  to their logical conclusion in the media cross in the excuse me the administrative process they did not he has separate and distinct disability discrimination claims because he alleges he wasn't provided reasonable accommodations and he suffered damages he was discriminated as a result of his disability in this case she's only seeking damages for past personal injuries for being excluded from school from being humiliated from being taunted being threatened to have the police called on him those are not educational issues that has nothing to do with faith it has to  to school but i mean the fact that there was a pursuit of i b a remedies often provide strong evidence that the substance of the claim concerned a denial of the fate that's right out of the case law so i think i think by my colleagues question is pretty important given that there was a person who the i b a remedies and given that there was made very clear a child with special education who qualifies for special education also has separate distinct rights under the a b a that's why the exhaustion provision of the  go in this particular instance fire of the two examples of ferrari i don't think they were very helpful and so what is there in fry that really gets you to a different place but if you want to get going to say i don't know of that get you to where you want to go and i understand your order and i am not happy about having to be arguing about a footnote in front of you nevertheless provide gives us very very clear direction in footnote four pride tells us in a case that seeks damages for a non i d a claim you must look at this court it's the th circuit's decision in pain that's what the district court failed to do that's what all the district courts or many of the district courts in the th circuit have been doing since pain came down the law on the circuit at least for practitioners in the field we thought it was pretty well held that was not did not turn out to be a fake place case they remanded it they recognized it was it appeared to be a simple disability disagreement so when we look at pain pain says you don't that the clues the front offers and trying to enter the question don't don't seem to be all that  i would agree with in that i believe that the fry clues aren't particularly helpful but as we discussed in our brief and we step forth i don't think that the fry clues preclude us here but i want to get back to the point that you made and to remind us we are on the stage of a motion to dismiss this little boy was kicked out of court before he ever got a chance to allege his allegations that are based on being excluded from school they didn't provide him any educational program whatsoever and i will you dear have an opportunity to make your allegations in your purse them in the complaint would you please go there and point out to us what the allegations are that establish a da claim as opposed to an i d unique point yes your honor i notice i'm almost out of time benefits of a public education that they your honor it's meaningful access as equal access is what we're asking for she wanted access to the schoolhouse we're not talking about meaningful act access to an individual lies educational program the public at the benefits of public education that's in other words i disagree your honor i just believe that all educational claims your honor the gravel ma'am of the complaint is that he was excluded from school completely because of his disability related behavior he threw a tantrum and they sent him home that's classic segregation and exclusion on the basis of disability he never got the chance to get any instruction or to have any of the things under his eye he because he couldn't even he wasn't even allowed to attend school at least not unless a parent was with him and look for your amended complaint to talk about him being oh right out of school complaint i apologize if i use the term thrown out of school too loosely if that implies that that he was expelled but i would suggest that in fact being sent home every day without any sort of due process based on his exclusion and his so called bad behavior is in fact  that's the artful pleading that the frye court warned against going this allegations in his st amended complaint are for violations of the american disabilities act however the focus on the allegations are a failure a one to one aide and a failure to provide behavioral supports and services in a failure to assess his bait behavioral tantrums it's not about segregating the kid he was never thrown out of any ellie you as the program that is the same just one second mr x just one second i think we lost judge or all of them judges this is richard august and i am waiting to see judge rawlinson pop back up in the list of participants if i don't have her in another fifteen seconds i will call her judges this is richard i have judge rawlinson on the phone she is working to get her video call re reestablished at this time we can hear you saying was contrary to what counsel was saying this is not a classic a b a case that's the artful pleading that the fry court warned against and that's the recasting of allegations now at oral argument that were not made in the services and a set assessment that is the glass but counsel fry says that the question isn't really was is a student seeks relief or an injury that says occasional in nature but the the individuals with disabilities education act their favorite lated and they require exhausting the oil but just a just one second if there are such allegations and they're seeking the relief that you get that then at that point i understand but right here they're not seeking those things they're seeking money damages your your honor the paul g th circuit opinion addressed that in that case the plaintiff also saw damages contrary to a palace brief where they said they were not seeking damages that's not accurate in the poll of the th circuit case they were also seeking damages but they were seeking remedies also available that's the key language under the i d e a as in this particular instance the idea damages were done that they were settled expected suit for damages under the a da even where the idea claims of been settled no case law is clear in the s b case so then so then the agreement they entered into wasn't worth as wasn't worth what it was reviewed written is that what you're arguing not at all because they still got some services under that agreement and probably attorneys fees for ms vandyke so it was not a waste of time to resolve several of the issues however the fry court says you're also supposed to look at the underlying due process complaint measured against the actual complaint in the litigation you look at the progression and here if you look at the original complaint which is part of the record pages sixteen through twenty nine dollars it's a copy and paste job of the due process and so this is again the artful cleaning would he be able to bring in a da claim against the school based on these facts no why not because the factual allegations  i wanted you to focus on this question which i think is quite important you're on or it's making an assumption that doesn't exist then the allegations are a failure to provide a one to one aide in a failure to provide behavioral support services if they were not making that allegation if they were alleging for example that we did not allow him to provide a guide dog or a service dog like in the fry case or the dude set then that is the one the one he was being sought was essential to his to the child's access to the public school education process the parents were saying that without that he'd my child will not be able to participate in the educational process and if i've got exactly what happened because he did not get the aid you had behavioral problems at school and he was sent home over and over again so why isn't that  educational experience and the answer that it's actually distinguishable and that is the service dog was there to prove to provide notice of seizures it was prevent it was a seizure were life threatening seizures that the school district would not allow this kid to bring up to campus at some point they could the school district capitulated and said you can bring them but there are certain condition he was seeking from the school was his provision of this one on one day and because he did not get that he had all the problems that opposing counsel has described he was not seeking an individual d just like our point there the point of had all kinds of temperament hostility is used in that case the plaintiffs was shifting around between fresno unified schools here because of his education he was shifted to three l a u s d schools that he was trying to find out a boy is on all fours with a speak ace where the courts the all that being said you still have to exhaust the st amended complaint which contained the allegations that we claim support n e t a claims allegations of being sent home from school excluded threatened with the police taunted and humiliated this case is confusing i think because it talks about a behaviorally but we shouldn't lose sight of the fact that  damages you should look at pain and that's really the issue before this court all right thank you counsel thank you to both counsel because just argued your submitted for decision