statistical evidence was given the kind of weight that perhaps it could have been i think he should've been given that kind of weird but the kind of way he could have been given his run i think all heights made it very clear the statistical evidence as a consideration it's not the sole consideration and i think the importance of the statistical evidence here is it puts a context that puts a racial umbrella so to say over the district that better explains how individual conduct happened to these talents and what that means so if you're talking for example about the history of this district it's a district where there has been systematic over representation of african americans and special education classes it was so bad that the commonwealth in two thousand and five in two thousand and six came in and told the school district you need to correct that this proportionality so i didn't understand it people and i thought enjoyable you have to look at each individual person and say is this person being treated rightly and i wonder how you could have a class action i mean i just couldn't and i know the court didn't go for it but you just have to look at the at the individuals involved they could all appeal i know that i mean the point is each person considered on their own merits i mean just take for example ricky coleman his mother that's complained and the school seemed to respond so i don't know how you get the inference of intentional discrimination i mean she she stood up and it seems like there was a bond that they didn't respond they didn't know what happened there is that she observed the class thought her son was being talked to by the teacher a condescending way went to the principal but then again but then the principal took action took action in the summer after the student graduated from that class assigned action actually should have been removing the teacher either during the year having cracked it actually having been given a problem with the court overseeing the disciplinary matters in the ministry white response but the appear to be a response on the part of the principal may be too late and your perspective but that the principal did respond to the point of it as it is that an issue for the core for the jury is the question this is a summary judgment issue here and so did he respond would be determined by procedures that are established if you don't like it as an individual but for accord to step in and this is really a slippery slope but i think this court stepped in the discrimination cases many time in its history  according to congress look but are you trying to rely you start off by telling us about statistics and that actually the numbers have grown the disparity in terms of the percentage of african american kids in school and those in the disability classes yes they have and yet at the same time you're saying each child needs to be you know do the dealt with on his or her own basis of a child needs help that child should get help how do you balance that mean that really seems to be the principle that should take place you don't want to situation by saying wait a minute you're eight point six percent of the school and now we're at nine percent sorry you can't go into this special program of course that wouldn't that would be fair to the child well i think maybe the way to look at your honor is if the only evidence we had was the individual testimony that i tried to remove my child with special education he's african american and they refused to do that that would be a different case child has a program that's individualized program dealing with that particular child is not right that's correct and in many cases that maybe i'm missing something but it would seem that's what you do want for a child if a child has a and issue a problem and the school system is there to try to help and you have a was actually in this case laws in place to try to implement that why not just own through that procedure but what if the children are disadvantaged by a six of the seven were here they were placed in special education classes and shouldn't have been there and they were there for years years and then why were they there because they couldn't remove them and yesterday and which people are really  those six go through the process of saying wait a minute i don't belong here or the parents you know on their behalf say yes my child does not belong here we have evidence that parents reciprocally once administrator is asked to remove the children refused to let that happen was that there were  well just take an example of a student was in special education didn't get the college curricula need now during college now they can't succeed in college because in a basic orse they need a high score to succeed in college so you pay for tutoring there's the it will just pay for tutoring if you're  prepared to discuss the issues in that appeal but i would be if you would prefer i be happy to answer the question that judge mckee posed at the beginning of mr hinders argument that is relationship between the i e p and the race exhaust there were also title six claims what happened was through the course of discovery and through the process of the evaluations the children discovered that they had never had most of them had never had the disabilities that the district said that they had so the core here in the sort of central program that we're addressing in the other case is is the process of identification it was it's very subjective a teacher at refers a kid  and then we found through our expert found that what happens happening to kids is that the psychologists who were doing the evaluations were using subjective standards and they were using generally accepted national standards so in in the case of mr hit injure was discussing that's the core of the claim here and that's the common practice that's why it was initially created as a class action not only were these things happening but the district was on notice that it disproportionate number of african american kids in special ed which put them on noticed that they needed under the i d e a the special education law they needed to look into it figure out what was going wrong and they never did that it puts the district i notice that there and again the special education law says this and the pennsylvania department of education told them you have to figure out why this is happening and what we the evidence that we would have put on a trial is why is it happening again subjective a value subjective referral by the teacher subjective evaluation by the psychologists and i'm now taking of a very long report b expert and summarizing it and generalizing but a subjective evaluations and then when our expert looked at these kids he said most of them five of the seven never should have been in special education they didn't have these they did not have these disabilities and this is a this is a problem the school district knew about it in a letter persist so that's the other appeal i would turn to the next one if i've answered those question mean i want to make sure i understand your question but the gascon case was about a very different problem that was about kids that are knowledged to be kids with disabilities kids you know electoral disabilities the value of these individuals violation of the settlement agreement or into as opposed to a separate claim with the sport you know the settlement agreement in gaskin dealt with a very specific issue of taking kids who have disabilities and sticking them in the special ed room and what the gascon case said was the state failed in its duty to train regular education teachers it failed in its duty to make sure that regular education kids are special education kids were included in regular classrooms and it failed in its obligation to have a continuum of options for kids with disabilities was a was one hundred page complaint remedies in that case and the parents for relief had to do with a very different issue that we're talking about here that is that the end so that settlement in that case of course the the legal issue that the judge failed to if made a mistake on is the intent the interpretation gas and case we said deny fate is sort of the big issue but the small issue is and specific issue that case was about was taking kids who had disabilities who acknowledge we had disabilities and putting them in a separate a separate classroom this court's opinion berti is really the classic example of what that case was about that is when a kid has a disability the school and the school has an obligation to consider all options before putting the kids in a separate classroom so that so the gaskin case was about a very specific part of the special education law with the district court did here was a district court said well that's about special education law this is about special education must be a release but the special education law has hundreds of obligations on the state i mean it requires the state to set up a hearing system it requires the state to monitor for english language availability of english translations for kids so just to say going back to the legal issue for the district court did release in the gascon case intend to release any claim about any kind of any special education to release the state and the district court here took a short cut i see i'm out of time i had  three basic legal errors that the district court was was led to make by by the fact that the district court took a procedural shortcut there were no motions this these were all things that were argued in response and reply in connection with us state making sure that there was a continuum of services available for the kids and the state just making sure that the the inclusion mandate was followed so again when you're the legal issue that judge bartol had to think about was what was the intent when they settled that case and the idea that the intent would be to settle all claims of any kind relating to anything in the special education law is it is an error as a matter of law the other just  first the judge held that concerned black parents didn't have standing because it didn't allege injury but concern black parents did allege injury in paragraph one hundred ten and what it said was as a result of the misidentification and low expectations of kids that we're talking about in the other appeal concern black parents of the five previous years have been have been compelled to so on the issue of the release that sixty a matter of law judge bartol erred he didn't really consider the content the intent i would like you to reverse that and be in state department of education on the issues of standing at the very least this court should reverse the district court's dismissal the district court seemed to think he was considering a motion to dismiss he wasn't but at the very least i think this court should reverse the judge's dismissal and have him apply the correct law there certainly were allegations of injury on the other second piece of standing concerned black parents did have members judge bartol dismissed that this missed the case on behalf of concerned black parents saying because it was incorporated as a nonprofit membership corp nonprofit nonmember corporation it didn't have members but this court in the public interest research group case as well as the supreme court has said that's not a basis for that's not a basis for finding that there's an outstanding so for the standing issue what we like the court to do is reverse the the decision to dismiss the the organization and if the court thinks it's necessary direct the judge to have a full factual error in with actual motions for summary judgment and actual actual evidence i think there's enough evidence in the record already to establish that concern black had parents had standing both on behalf of its members and on behalf of the organization itself so i think that this court could actually reverse and hold the concern black parents has standing but alternatively at the very least the district court's decision on the basis of the putting should be when may have please the court my name is howard hopkirk i'm a senior deputy attorney general and i represent the pennsylvania department of education in this case i am sharing my time with michael christophe co who represents the lower merion school district defendants i will be using four minutes or so more about allotted time to argue the question of whether the claims against p d e are barred by the prior class action settlement agreement in of racial discrimination but in it does extend to the claims in this case the claims against the department have to do with their failure to monitor special education by school districts in gaskin it was in all school districts all should children needing special ed services were not being properly supported in regular classrooms giving the free an appropriate education and that type of monitoring applies to the plaintiffs in this case to now say that well the asking was really this very narrow thing and the things which were agreed to in gaskin which if you look at the settlement agreement provided a lot of procedures to try to alleviate concerns problems in providing special education services and those procedures would have applied to the plaintiffs in this case but i wasn't really focused on the integration mandate or if i will for in the things basically around that univers with the allegation is the sum of the kids and that may be a little off the bat i like your i don't know there was no section one hundred eighty three claim against that apartment ok so you're really just talking about the title six client but again what i would say is what the department was doing there monitoring the activities of lower merion and whether lower merion acted correctly whether they acted for out of a racial motive or road that is governed by frat requirement i d e a and that regime of remedial approaches to education and kids in a segment comes out of that there is an issue about whether or  general in the sense but only related because the evil being less than very very different than i kids are getting a free appropriate public education the difference is whether or not kids are being leeward a special ed merely because of their race or because i'm not sure that's what's being alleged particularly but what clearly is alleged what the evidence suggests maybe should get a hearing is whether a black kid in the similar situation with a black in this situation is more likely to be put into special education classes just because he or she is black or the fact is being the same that the heart of what they're alleging you know i guess you could argue that that is something arising out of i the structure of it it's  judicata if you look at the prudential insurance case it's not just claims that were actually brought it's claims that could have been brought and i think that even though there were no racially  claims in gaskin it's still under the umbrella of the types of claims that could have been brought and i would say if you look at the credential case the court didn't say your honor didn't say these particular claims could not be brought at all what it said was you cannot bring these claims because you were basing these claims on matters which fell within the settlement prior settlement agreement and in this case even if a plaintiff has a claim in two thousand and seven two thousand and eight when the procedures that the department agreed to have been put into place you can say that you know they were born in a vacuum and they just he their status their evaluations and everything about their educational history just started then you have to go back breach gaskin period to find their whole history and we think it's very unfair to say oh no we're going to consider these as new claims and they're not monitoring claim somehow we're going to attribute the racial discrimination claims against the school district to the department because how's the department supposed to differentiate between all these claims they can only have procedures in place for over five hundred school districts to handle these claims is still in effect because of the consent to create spired in two thousand and ten but i i can tell you that that was a starting point and many of the procedures in place in under gaskin have been continued even though the settlement agreement has expired  thank you very much thank you address the status of the case as it was was presented to the lower court the stage of summary judgment if that's the point in time there were only two claims left in the case there was a title six claim for intentional racial discrimination and  three claim for violation of equal protection which was also based on racial discrimination they were the only two claims left in the case at the time that the district followed its motion for summary judgment the third amended complaint which was the last pleading of the plaintiffs said clearly that all of the plaintiffs were students who were disabled and that they were treated differently than similarly situated kuk asian students with respect to their education that is a theme that was pervasive throughout all of the pleadings and throughout all of the discovery in response the summary judgment for the first time the plainest came forward with a new argument that said no we're not actually disabled we were missing then a fide and that's really our claim here and by the way we don't think we should have to  forth evidence of the fact that we were treated differently than simply situated students because that's not our claim either and in in essence what they did was completely change the claim around after the district fathers motion for summary judgment judge bartol listening to all of this evidence gave the plainest every benefit of the doubt said acknowledge the completely contradictory nature of the new allegation that all of a sudden they're not disabled students and nevertheless said for purposes summary judgment he will consider the fact that they were in appropriately identified will you consider the claim there were that's right you said fact well he treated it as a fact in their favor for summary judg secondly he also lowered the standard under the mcdonnell douglas task lowered the four pronged from having to produce evidence that the children were treated differently than simply situated caucasian students to a problem that was a  analyzing all of the evidence that was marshaled over this entire for your practice litigation judge bartol concluded that there was no evidence of racial discrimination and the reason why he was able to do that is because primarily the evidence put forth by the  plainest below consisted of statistical evidence that merely went to show that there was a this proportionate number of african american students who had been a den of five for special education versus what their overall population was in the student body there was absolutely no evidence presented as to why that was the case there was no evidence presented that african american students were subjected to different procedures for special education benefit cation there is no what there was no evidence presented that african american students were given different testing instruments or observed in different manners than caucasian students there was no evidence presented at all that the special education procedures utilized for the pla differed in any way from the special education procedures utilized by the district for the remainder of the students additionally the other arguments that were danced below or also go to the same idea of  african american male students she noted that that was a national trend and that people in the district said that they felt that that occurred there as well again simply that the number of african american male students who were receiving suspension similar and i do understand your honor and i believe that it is possible to get to that level but what you would need is much more detailed information as to who the individuals are within the group before you could make that type of correlation here the only evidence that was presented by the plaintiff's expert was the number of african american students who are unrolled in certain classes or in special education versus the number of occasions students there was no further digging down into the data to see any of the similarities between that's part of maybe only concern because the court didn't do that either and could have the fact that you have some special education classes that are one hundred percent black if that's true that's irrigation at some of the this case in the posture that the case was presented to the court the plaintiff had the burden to come forward with evidence to to meet the elements that they would have to prevent a trial and what the plaintiff came forward with is just the bare statistical  correlation without any further information to dig down deeper the trial court could not determine whether there was anything more there because the plane has failed to come forward with anyone but at about the information that at least five of six of the seven students here were mis identified the it is true that in in response to summary judgment the plane has produced a rebuttal expert report to the district report that indicated by psychologists who felt that she she there was no evidence to suggest that the district again a five these students on the basis of their race again the psychologist did not come forward with any evidence to suggest that the dishes evaluated the students any differently than a district evaluated other students in fact her main criticism of the district was that the district failed to take into account cultural differences with these students meaning they the district failed to take their race into account when it benefits them not that the district treated them the same as other students that was her primary criticism of what the district did and of course she had criticisms with the percentage that the district looked at in determining whether a specific learning disability exists well but that's a percentage of the district used across the board it's not just the percentage for african americans it's the district has procedures in place that are all of for all students and the fact that a psychologist could disagree with the district psychologist and say no i don't think this person met those those criteria doesn't prove or produce any evidence to suggest that that was a result of these students races the psychologist did not dig down into any further information or request any additional information to in order to ascertain what that identification process looks like for the plaintiffs versus other students to see if there was perhaps some other indicia that could be pointed to as to why that occurred instead it was education process it must be because of their race that's the argument that's being presented and that's the sum total of the other things in fact the suggestion that some of the plaintiffs are not disabled actually flies in the face of the fact that the plaintiffs actually pursued special education due process complaints against the district advocating not only that they were disabled that the district wasn't giving them enough special education services as a result the district entered into settlement releases which were the subject of summary judgment the actions of the individual plaintiffs up until that point in time and then all of a sudden the new theories supported by the rebuttal expert report to want to jones that all of a sudden there was this misidentification i think the important point though here for the court is that judge bartol gave the plaintiffs the benefit of the doubt said ok i'll assume that you were misidentified let's see if there's any evidence here to indicate that that was a result of race and there was not there was no race and one of the things that i think is telling is that one of the rebuttal experts that the players brought forward indicated that that this proportionality in the of itself is not a bad thing if more students who are minority need special education services they should get it the question isn't what are the numbers the question is why are they assigned to special education and that is the piece that the plaintiffs never bother to look into they never got any evidence of it they never that when you're looking at proving a an individual claim of racial discrimination that a plaintiff that offers evidence concerning the racial composition of programs for classes must through or didn't they go through the same process that is the type of analysis that would be useful and making a determination as to whether these statistics actually need anything in the context of this race discrimination claim or whether it simply means that for whatever reason there were a larger number of african american students who who test that is eligible for special education services i think one of the comments earlier is it is that the district is bound by law to treat every student who is  tested for special education services as an individual us the individual education plan that they get they have to be individually evaluated they have to be individually programmed for and they have to be individually monitored as far as their progress is concerned any suggestion that the district should in some way try to dissuade african american students from entering into special education or provide a more rigorous testing for african american students to make sure that the numbers are more in line would would run  the districts simply cannot do that the district has to test the students it's presented with and if the results indicate the students eligible make that recommendation to the parent and the parent has the right to choose special education or not and in this particular instance the carry number anything that would allow somebody to identify who that child is but that the salient data as far as their testing data their grades that's that sort of information could be released under appropriate confidentiality order monitored by the court that would  lower court one of the things that the plaintiffs argued at that time is that should the case go forward they would have to retain educational experts to do this very sort of analysis to to conduct this sort of analysis and move the case forward and yet for some reason after the class action was denied that analysis was not done and instead just did the very superficial statistics of you know just give me the numbers and put put forth in front of court which really doesn't require an expert to do it you know these are the brought up earlier the on the motion for class certification the district at that time moved to dismiss concerned black parents as a part of a case for lack of standing at the time that that occurred there was no objection made to the procedure that was utilize the district court treated it as a motion for summary judgment and looked at deposition testimony that exhibits and and took the briefs of both parties into consideration and entered a decision and the decision was that not only had concerned black parents failed to establish that they had an individual right that they were trying to pursue on their own behalf but it definitely that the evidence of who their members were fail to meet the minimum standards to show that they had people who acted with sufficient edition of membership that they could bring a claim on their behalf the testimony was clear that there that there are no members concerned like parents that they consider the community as a whole to be there their members and it's a different situation in this context your honor because in this context the people who are who consider themselves to be members of concerned black parents when they act they don't even act on behalf of the organization they act as individuals there was no testimony that any of these people did any acts on their own or did any access representatives or on behalf of the organisation moreover the individuals who are considered to be the members so to was that it was just basically the community as a whole that felt that they either were a member or not a member there were no formal lists kept as to who those people were there was no idea as to how to identify them that was just sort of a feeling that people in the allegations that the that the program had to be redirected however in the deposition and the evidence that was produced through the discovery there was no evidence of any such redirection in fact the only evidence that was produced was that the organization continued to fulfil its mission from two thousand and five when it was formed up through the present so so even though there was that allegation the complaint that this government established that that allegation was not accurate and so when the when the record was put forward to judge and he ruled on this and treated as a summary judgment he was looking at the actual factual evidence that was a do through deposition of a corporate representative of concerned black parents and that evidence showed that there was no such direct injury to the organization be applied to relaxed way if you've already addressed the issue with any comparative evidence you don't need comparative evidence for a title six case but in this case there was comparative evidence the comparative evidence came from the district their expert dr rationally did this comparison they basically took the files of the black students the white students from down the stairs literally from down stairs and concluded at the end of that that he couldn't make a comparison because it was an apples to oranges comparison we mean you couldn't he said that if you williams to look at these issues of this rumination i was her job and she found out after she talked to the teachers and dealt with these issues that she thought there was discrimination that she thought the discrimination was causing this disproportionality and that she thought that the district wasn't doing enough to correct the issue that's there were witness testify in admission of the witness in this case that's the hard evidence for purposes of summary judgment the map presentation you've all seen that i need to go over with that said and the in going with this is it's more than a case about statistics plenty of other evidence that we laid out a great these are very this is a summary judgment case this isn't a trial and this court has said it's a relaxed standard the supreme court said it's not  school to try to correct the wrong otherwise going forward is a disincentive for the school to try to do anything about it and that's what we have here we clearly have a wrong against african americans statistics bear that out the testimony bears that out and and that the lower merion school districts problems are not different from any other school district close quote and that they were quote not based on anything she observed firsthand or rather of personal belief of hearsay statements of others will she base that on meetings with just because the black students got a more of a penalty than the white students that's and show discrimination you know what he was right he was right that's the only case in this circuit record service said that's not enough evidence for  this the takeaway from this case will be in a case where there was a test if there was testimony there were documentation in that case it doesn't survive so many judges under a lack relaxed standard under title six and therefore this wrong cannot be right i don't think that's what the school should be doing three points first on the release the reese is broad judge mckee but it does have to the claims have to relate to the task in case of that is this of significant limitation  out of relates to the gascon case and mr mr hopkinson said that the case that both cases have to do with monitoring but there are very different statistical sets the monitoring for desk and had to do with how many kids are included for seventy percent of the day eight percent of the day the monitoring in this case has to do with how many african american kids are in special ed so monitoring is a very broad term second on the question of standing there was no motion to dismiss mr kristoff go was mistaken and there was an earlier one that had been granted but the case had then been replated so there was no motion to dismiss judge appeals for the first time starts arguing about what the facts were there were lots of facts about who was a member of concerned black parents miss carter's testimony her deposition testimony is full of evidence about the fact that people are members of this organizations been around since one thousand nine hundred two there were presidents there were regular meetings there were committees judge just bartle didn't go into any of that because he just bought the argument that the school district made because it wasn't a nonmember corporation it couldn't have members so again there was no factual there was no factual airing of this there was one deposition taken on the issue of class certification but there was  no motion there was no factual airing finally on this issue of intent i just want to get back to that expert report our expert report dr jones at she read my writing twenty three zero six t twenty three fifty three dr jones didn't just complain about the lack of such cultural sensitivity dr jones talked about how the procedures for evaluating kids were subjective how they were not accordance to national standards and that in and of itself isn't intent but when you couple that with i know the known disproportionality the subdue the the fact that the school district had been noticed in on notice in fact instructed instructed to fix it by the department of education didn't look into it didn't fix it and these subjective subjective non nationally st used and or its procedures continue that's the evidence of a tent the other things that we put out there are the cultural atmosphere into which these wrong misidentifications occurred thank you