hear an argument first this morning in case fifteen for ninety seven fry versus napoleon community schools mr bag and sauce thank you mr chief justice may please the court congress adopted the handicap children's protection act to make clear that the idea is not the exclusive vehicle for protecting the rights of children with disabilities and congress also sought to make clear the cases brought under other federal statutes like the a d a s and the rehabilitation act may proceed directly to court so long as they are not actually seeking relief that is also available under the i d e a under that statutory tax it is irrelevant whether the plaintiffs could have sought some other form of relief that would have been available under the idea suppose suppose that  there's a school district and two surrounding school districts within the same federal court jurisdiction and same circuit have each been ordered to make accommodations under faith under f court to damages that it might not the school district to damages that it might not otherwise well i'll couple of points about that first i don't think it's the artful form of the complaint i think it is the relief the play of the seeking but secondly remember this is damages being sought under a separate federal statute that would fully apply even if exhaustion existed the question isn't whether the school district is going to be subjected to damages under the a da or not that is something that might exist anyway the question is whether i d e a proceedings have to first be exhausted and what congress said about that in this statute unlike in other federal statutes where it said exhaustion is required whenever any remedy is available here what congress said is when the plaintiff is seeking relief that is also available under the idea  position certainly we would have to follow all of the i d f procedures through to their conclusion before filing a lawsuit under the a t f i don't think i think we still would be able to file the a d l lawsuit now that there's a difference not just in terms of relief in the lawsuit that would be filed under the eighty eight vs the one that would be filed under the idea which is under the idea yeah a in order to get any relief the plaintiff would have to show not just that there is a denial of the dog but that that actually deprive the plain appropriate public education under the a d a s the rights that individuals with disabilities have to bring their service dogs to public facilities are the same in all public facilities you have a service dog you can bring him i understand you'd be making two arguments one is that you don't have to exhaust because you're asking for damages and those aren't available on the i d s and the second one is you don't have to exhaust because you're not complaining about the fair and appropriate public education provision are those  separate arguments or are do you have to satisfy both of them now i think they're independent arguments mr chief justice so i think the fact that we are seeking emotional distress damages and those damages as the six circuit recognized are not available under the idea is fully sufficient for us to prevail here to say that exhaust was not required so if that's the case why i would suspect that the denial of what is sought under the idea if we are fair and appropriate public education is something that could well cause emotional distress in most cases and so is all you're saying is that you have to tack on to an id a claim a claim for damages for emotional distress and then you don't have to exhaust and so whenever a school district in eyes an element of an f a p a or proposed element they will always face to track litigation i don't think that that's right your honor because because it's not the case that every time there's a denial of a free appropriate public education under the idea there's also going to be a violation of the a d f right these are overlapping that's true but yes you could find me in i have exactly the same question you know very large number of suits you know you know very large number of citizens brought or controversies where a child is seeking a special plan there is a statute that gives him that right and it west rests heavily on his getting together or it's parents getting together with the school board and trying to work something out that makes sense now it seems to me as the chief justice just said that if we accept your first argument not in all cases but in many cases where their lawyer wishes to avoid this exhaustion requirement all he would have to do is wait and then sue not before putting the child in a private school but rather for emotional suffering if that argument if what i've just said is right which i think is what was just said by the chief justice that would seem to gut the carefully written procedural system that the idea sets up and that's what is concerning me and i don't think the word relief has to be written in the technical way in which you're reading was so so i think this goes not not just to what the word relief actually says i think you know this is a highly carefully crafted procedural regime as your honor says just as prior but part of the careful crafting of the regime is the handicap children's protection act which remember overruled a decision of this quarter overturned a decision of this court that had sought to channel all disability education claims into e a proceedings what congress said in the h e p a was there are other statutes that may provide independent remedies under at that point it was the rehabilitation x x in one thousand nine hundred three congress later added the eighty eight to that list and those cases may be pursued independently said congress so long as the plants are not actually seeking anything they can get an idea a proceedings and answer to me and i think the chief so far has so because that's what congress wanted is there any answer other than that well so i mean i think there are a couple of answers other than that i do think i do think it's what congress wanted and i think if you look at both the tax in the legislative history senator weicker brief goes through this shows that is what congress wanted but in addition to that yes i think there is there's a lot of reason to believe and we have an amicus brief here from former special education administrators thomas herr melody musgrave and madaline will who specifically say look we think that what parents are going to do based on our experience is go through i d e a procedures because what they want is to get the relief that's available in i d e a proceedings there are some cases like this case like the fry case or i'm sorry like the pain case in the ninth circuit where you have a case of abuse where the principal injuries are not injuries to education they're emotional injuries those are the cases that are going to proceed to court so i think yes that's right but even if what you say is right makes a lot of sense a lawyer advis a client might advise that look this is what you want the school to do so that you can have a free an appropriate education for your child you will have a lot more leverage getting the school to do that if you also sue them under the eighty eight in section five  four and the school board sitting there looking at it and say gosh we're not only exposed to what relief is under the ideate but we're going to have to pay damages if you understand my point is what i'd like to call matter it would be could well be in the child and parents interest to proceed along two tracks because that makes it much more likely even if one all they really want and care about the money they really care about education for their child but i think the point about that i think that that is right about about a lot of practical issues here the crucial point there is that exhaustion does not change the leverage that the plaintiff has to read so even under the six circuits rule the plaintiff our clients could have exhausted idea a proceeding said at the time we filed an idea administrative complaint by the way school district  we're also going to sue you under the a d n rehabilitation act for damages and later on once we're done once we're done with this and we would i think one of the important things in this type of proceeding is timing right i mean we're talking about a school year and all this takes time so the idea that well when all this ends you know who knows and i gather there's a debate about how quickly these things are resolved then we might bring this to be if you do it at the same time that gives you the leverage when you need it to get the the accommodation are in place that you want for the child well your honor i think there are obviously a lot of variables i think a lot of defense lawyers would certainly say being threatened with a long drawn out proceedings at the end of which is a damages award is pretty significant leverage as well and i think that the point is that time also works both ways here where one of the things that congress was trying to do in the h e p a was recognise that the a d a s and rehabilitation act in one thousand a three are independent and requiring parents to first proceed through what are likely to be time consuming proceedings under a separate statute the i d e a that can't give them the relief that they're seeking under those internet and it's a mystery but your whole point again is that depends on what's in the complaint and the statutes the before the filing  civil action you have to exhaust if this doesn't were written your way would say that at the time you file the complaint the complaint must ask only for that's what you're saying but that's not what the statute is this so so i'd say a couple of things about that your honor i mean first of all i think seeking relief might naturally be read to look at what's in the complaint but in any event i don't think our argument turns on what we're what we asked for in the complaint particularly we have made clear throughout these proceedings not just in the complaint but as the proceedings have gone on that what we are asking for is compensatory damages for mr could i ask about that mr bowden says and this takes you back to the first part of the chief justice's question to so i can understand the argument you're really making two arguments one argument is initially when we filed the complaint and ever since we've really only sought emotional distress damages and emotional distress damages are something that can't be given under the idea and that's one argument but there's a second argument which says you know putting that aside the reason why we don't need to exhaust is because we're not a legend that we've been denied a fair and appropriate public education you know where alleging some other denial or or deprivation but we're not alleging that we agree that the school has given us a free appropriate public education and that in itself as i understand it would also mean that you don't have to exhaust rate so it can be one or the other is that what you're saying so yes i try to say this case is actually the combination of the two is what you're saying so in some ways you're saying this is the easiest case where both are true you're neither alleging the denial of a faith nor are you seeking the kinds of damages that an id could provide so it's the intersection of the two theories but but if i understand your argument either one of those things would mean that you don't have to exhaust is that right i agree with that justice kagan yes i think this is i think under either theory wouldn't have to exhaust faith but you were seeking damages that included you know i sent my kid to private school i had to hire a tutor damages that you could get from an id for some reason that didn't have to do with the denial of a faith you're saying that you don't have to exhaust in that context either right so so that is the second argument and i agree that the court does not have to reach that argument in order to rule in our favor here but yet what if we did i mean it seems to me that that might address many of the concerns you have been released about the impact of the two track cd young other words if in fact if your argument were to be that no you need both it seems to me that would address a lot of the practical problems now i appreciate the fact that you think in this case both are present but yet you want to make it more aggressive or agreement that you only need one right and i think we i think we would certainly prevail under the you need both theory and that's why we allege and we have argued throughout this case and i suppose one understanding of this is we don't have to really deal with what happens if you only have one because you're saying you have both is that right that is entirely ri so let's be clear about the second point here so so the defendants have said all along that because they gave my client a one on one aide that all of her physical and educational needs were satisfied and we have not challenge that if you know it would be difficult for us challenge that and i know this court has a different free appropriate public education case in front of it later this term that may clarify what f a p means but under current six circuit law would be difficult for us to challenge it what we have said is the injury my client experience is not a denial of education but for example the humiliation that she experienced when she was forced to go to the toilet with the stall door open and four adults watching her because defendants did not trust her to use her dog to transfer to the toilet bowl that is not a free appropriate public education claim your honor and e a would still be covered by the a d a s be able to make exactly the same claim in a school here yes that's right just as what would happen if the claim was that the child suffered emotional damages because of the denial of educational benefits so so i think that would be a harder case because that would present only the first of our the first of our two theories that would be would be seeking damages that are not available under the id and remember the statute says seeking relief that is also available not alleges an mr martinez mr chief justice and may it please the court the parties both parties and the government now all agree that the rule under which the sixth circuit decided this case is wrong and that exhaustion is required only if the relief that the plaintiff actually seeks in the case is available under the idea in light of that agreement we think the most sensible way to resolve the case is simply to reverse the decision below and let the claims go forward as the sixth circuit pointed out the relief actually s in this case is money damages not a change to the i d p and that relief is not available under the idea mr martinez that the last question that was asked which is  the pain you know the ninth circuit payne decision it doesn't do just that it doesn't look just at the relief it looks at the nature of the claims and decides whether they were fact claim or not whether it is seeking a change in a fan or not in essence and substance so it's not looking at it technically as we're asking for relief but it's looking at whether or not a fa of the allegation you're disagreeing with the ninth circuit approach christian we learned to just sort of marriage want to be clear are we understand the ninth circuit's approach we understand the ninth circuit and we explained this in our brief at the petition stage to be departing from the other circuits and actually saying that what matters is what the point if actually asks for now what they what they're saying is is the nature of the relief that they are asking for would it require or necessitate a change in the fa that's one of the three prongs that they look at you talk about the third prong and yes exactly we do disagree with that third prong are your honor but i think that third prong is addressed to circumstances in which the the elements of the non i d e a can't claim saw in the complaint and that's what the statute says you look for is money damages we think that the text of the statute says that you have to figure out whether that relief sought is available under the i d e a and i think there's common agreement that that relief sought is not available under the i d e a you would not need to exhaust i want to address if it's that simple if it's that simple then why are we in this argument hoopla ordinary exhaustion principles under ordinary exhaustion principles you never have to exhaust if when you tell me i agree with that justice pryor and we think that what congress did here was adopt a rule that essentially embodies that print so could i say that could i say very well what they did here is adopt the well known for  hundred years or more exception to the exhaustion requirement were exhaustion would be futile you can judge you go back and apply that to this case end of case no reason for a special law for prisons for davis i will find some words what in those of the word the words i would suggest are the words that you that you use are as follows that if the hearing officer lacks authority to grant the relief sought those are the words of the house report then exhaustion is not required those are al o i just want to make sure the government's position is the position of the united states that if they cannot include relief for this sort of problem personal assistants during the school day  accommodate the particular disability in some sort of circumstances a faith can accommodate that but we don't think that that's the relevant question for purposes of applying the statute because the statute turns says that the exhaustion question turns on whether that bands plans cover precisely this kind of problem so in case i think that if he if the facts of whether a faith would it would allow for the school to take account of the service dog really isn't the question because the question under the statute turns on what the what the person is asking for what the relief that he seeks and that the statute says that the civil action has to be seeking a particular form of relief and if that about all you're talking about is artful pleading no not at all your honor if then i want to address your question in the in the concerns that came up the practical concerns about the parents who actually do want what they really want is a change to the i p if the parent files a lawsuit the a d l lawsuit and says i want an injunction that's going to require the service dog that is the kind of relief that would have to be exhausted i want to only have to get a service dog if in fact it's going to cost him five million dollars in damages and that's talking about before filing the complaint right before filing the complaint you're already in negotiation with the board and you think i'm also entitle to this under this statute let's file a complaint now ask for damages it will be race you to caught or something when i win and then they'll have to give me the dog and if that is the theory then the while it might work in this case there are thousands of cases where parents don't have the money to litigate were some do or some don't we're boards are in difficult problems and all these very great difficulties in such cases which are worked out through negotiation won't be no i don't think that's right your honor because i think as a practical matter i'm a parent if one of my children were being harmed in a school i would try and i thought that this was this was wrong i would immediately be looking to find the most the quickest form of relief that the law could provide me and the quickest form of relief for a parent who actually wants a change on the ground to the situation is to follow the i d e a procedures i don't circumstance is pursue the id a process and say up front you know if i lose in this idea process i'm going to bring the eighty eight claim with all the damages involved so i can make that threat at the beginning because everyone agrees here that at the end of the day regardless of whether or not i know we think that these are two different independent reasons why exhaustion is not required here the plaintiffs in this case are seeking money damages money damages is not available under the i d e a therefore they don't have to exhaust that's argument one argument two is everyone on both sides of this case agrees that a faith was provided and that the i d e a was not violated therefore makes very little sense for the court to say that you need to go to an administrative process so that the question of whether faith was provided in the idea process  the idea was was violated can be resolved because both parties already agree on that our legal system does not require parties to go into any proceeding in court in an agency and make arguments that they do not believe are true so is the part concession sufficient to answer that question i think the parties concession is sufficient to answer that question what if you had a complaint where the parties did can see it that it was not violated that if a pet been provided but as you looked at the allegations in the complaint it really seems that there is going to think that if a person not provided then that the idea was violated what do you do with a that looks like that i think if the parties agree that the faith was provided that should be enough and i don't think because i don't think that this statute has in mind a sort of process by which either a federal court or an id a hearing officer is given some sort of roving commission to go sniff out faith and id a violations the idea hearing process is an adversarial process depends on the parties to come together bring their disagreements forward bring evidence and then a decision is made it's not some sort of process where the hearing officer is supposed to say one of the parties agree that there's no legal violation but we're going to go ahead and maybe there is one anyway and i think that that the rule that responded to advocate here which would require people to bring claims that they do not believe has merit not only is it unheard of in american law but it actually is inconsistent with the idea itself which would allow for an award of attorney's fees against a parent who brings a claim that's frivolous unreasonable or without foundation thank you counsel neither the brief in opposition appendix page twenty one has the complaints per for relief and it contains three forms of relief that we believe are available under the idea first a declaration that he was entitled to attend school with her dog the statute requires you to look at is this relief available under the idea here or there were not available you don't get a declaration that the ada has been violated or to rehabilitation and i've been violated i the second part though is the timing and it says if you're choosing to bring one of those lawsuits you've got a first exhaust the idea procedure is if the relief avail what is one that you could get from the from the i d f if you read it say you've got we certainly caution the court about failed legislation trying to read too much into that but you know when you're right justice ginsburg that's our broadest argument and the argument works like this the complaint has invoked the idea that they seeking any appropriate relief and he any appropriate relief means anything that is available that could be granted by a federal court if that's what that's boilerplate that may or may not be significant but i do you concede and i couldn't quite tell from your brief that they will be able to get money damages for everything they're seeking under the a d a s section five zero four under the idea we don't concede everything but we do think that they can that they get a partner read briefing pages forty four to fifty explains here the only thing the complaint seeks is the word damages that's at the brief an appendix of page twenty one and to understand the damages you have to look to the complaint the complaint isolates as a redbreast goes through in quoting chapter and verse of the complaint things like compensatory education things like home schooling or asking are asking for other things right i know which basically are so are you saying they'll get some of the damages they're seeking but not all of them correct that is and then under the jones case isn't the well then you know they get to proceed with the things that they're not going to be able to get under the idea absolutely not your honor for a few reasons first the jones case itself is that you or your opinion is about letting good claims go forward versus bad claims here there are only two claims one is a violation of the a d f a the second is a violation of the rehabilitation act it is true that one of their prayers for relief is damages not by the way emotional damages which is what the reply brief paints it out and says the twenty seven times it just says damages and so in order to jones does not permit and indeed no decision of this court has ever permitted a plaintiff to try and slice and dice it clear a prayer for relief in one way or another rather the question is is this claim under your opinion a good claim or a bad claim liberty mutual your decision and liberty mutual says a claim is a cause of action and here the question then under fourteen fifteen is is the cause fifty or fifty one a through f every one of those arms alleged is a component of a motion known where are they saying she was harm by having to pay for it to pay for tutoring program or harms by her mother losing her job which is what your brief was talking about here all of the form so ledged are essentially compensatory emotional harms a the denial of equal access be the denial of the use of one wonder see interference to form bonds with other kids the denial of an opportunity to interact with other children and f says it very directly emotional distress and pain embarrassment mental anguish inconvenience and loss of enjoyment those are every one of these are the classic damage harms that are compensatory so how does the idea eat a prove it compensatory damages for these injur well i do think that the only place in which emotional is isolated as if this is of course a non exhaustive list in paragraph fifty one and things like interference and denial of the opportunity to interact are exactly the kinds of things id a relief officers provide well in the form of the counseling if you think of it this way suppose that this girl wanted to go into a public library a couple of times a week and the library said you can't take your dog here we're going to just provide you with a librarian who will help you do all the things that your dog otherwise helps you with and the girl brings a suit and is in that suit exactly the suit that she brought except that instead of a library it's a school but that's her but that's her claim and those are her damages that she was deprived of access to a public facility in a way that caused her distress and emotional harm just skating that may work in that case as opposed to this one that's because fourteen fifteen is a unique exhaustion statute geared to the school setting it's a carefully calibrated situation where the ideate congress this goes back to justice ginsburg's point i mean the entire point of the statute and the overruling of our prior case was congress saying the fact that the id exists for schools does not mean that you don't have separate a d n rehabilitation at claims and if you bring those separate kind of claims which are essentially denial of access claims to public facilities and then you're asking in addition to that for a form of damages that has nothing to do with what any id a officer can provide then you can go forward without exhaustion but that's exactly right in terms of playing the first half of fourteen fifteen it doesn't explain the second half the timing provisions of fourteen fifteen and turner stand this it's one nice way of doing it is to just look at the government's brief that they filed  pain and this was going back to your question about jones and bach a money damages suit the government told the ninth circuit that a money damages suit would not go forward because implicit in it is a declaration that there is an i a violation so if you mr martinez said in response before if the complaint only sought emotional distress money damages could that suit go forward in paying the government said the reverse and the reason for that is that when a federal court awards money damages the first thing it is doing is issuing a declaration that the underlying problem was a violation in some way or another so if you would step that the plane tear what you'd be doing is accepting the idea and ordering a cases where in fact it would be fairly easy by how you write the word damages in your complaint to have judges deciding i eat peas without the preliminary negotiation and views of the school board can be written into an educational plan having to do with the child's day at school and therefore when there is nothing more to it than a claim that the librarian wrongly kept the dog out of the library the school librarian you wouldn't be able to bring the the suit because after all you could have written such a thing don't keep the dog out of the library in the plan so what to do now i'm here thinking in the back of my mind of words that have come up in other cases like grab them and of the complaint or which we've had in many cases involving sovereign immunity or all kinds of things which holmes and you know frankfurt talked about what is the grab them on of the complaint and were we to say let us look to the gravity of the complaint the heart of the complaint what it's really about if what it's really about is a significant matter in respect to the i e p then you do have to exhaust unless of course it's futile if it is not you don't and then let the lower courts decide this one so so three points first in response to the first half about about whether or not this would gut the the the provision we absolutely agree and i found the answer mr bag and sauce gave to the chief justice in your question about leverage in destroying the kind of carefully route system astonishing he said that's right asking for access to this facility is i understood his answer justice ginsburg to the chief question it was that yes a lawyer could walk in on day one and sue for money damages and then and then extort or possibly leverage that into a better situation in terms of money that amica sprit from the school boards explains that this actually happens in real life now with respect to the concern that you had i think this case is an easy one because in this case the i e p the complaint itself says the ip denied the dog if a federal district court going back to justice kagan's first question orders were declaratory judgment which is what they sought express criteria that i usually look at then the douglas and necessary what the dog is necessary for is things that don't have anything to do with the e p a is what the plaintiffs say and after all that's what they're saying and that's what they're seeking and that's what this statute suggests that we ought to look to justice kagan i think that's wrong about the facts on the law on the facts i don't think you can affirm on that theory this is a new theory that they've put before this court that somehow they've conceded they didn't have it in the id we asked them to do it they didn't do it they finally agreed to do it and then we've placed our child in another school they have a paragraph that says she's now happily in another school that welcomes her and her down ok rather than talk about all the emotional distress at that moment either because of futility because she can't change the id at a school she why in the world at the moment she filed a complaint would she have to go back or should have gone to the school earlier she no longer seeking anything related to the i'm just so tired two answers and we agree with you absolutely read the client tex of the complaint as we were having that interchange earlier the text of the complaint including the paragraph she read talk about how the denial of the dog undermined her independence and part of the id a one of the three statutory goals and this is in twenty u s c fourteen hundred eighty one is independent that's why your former colleagues on the second circuit are now hearing we're now going to past where i am ok or you're going from behind what i'm saying but not getting to the point is could say well maybe before she changed schools she might have been entitle to something related to her id but at the moment this complaint was filed on its own face where is it asking for any change potentially or otherwise to the idea that it's no longer an event and that is my second answer to you so the second answer is the complaint asks for a declaratory judgment and that's what we're talking about at the beginning to ask for declaratory judgment under this court's decision and golden versus white collar and city of alliance the only way they can invoke article three jurisdiction is by saying there's a reasonable prospect that the situation worked her there is not a word in the complaint that says she won't return to the school in indeed the sixth circuit grapples with this all the time when children leave the school and file these lawsuits there's a case called woods which is at forty seven federal pen dix nine seven nine and what that case says is even if you leave the school the school has an ongoing obligation to keep an eye e p current in case the person comes back to the school if you adopted if a federal district court granted their declaratory judgment the only way they can do so in the only way they can invoke article three processes is by saying look there's a chance e f might come back and that happens all the time that happens you know in the pain case itself people file lawsuits they leave the school and then they come back that's what they ask for just as a my or they don't ask and indeed the six circuit briefing is very clear on this point they never asked for emotional damages or even the word denial that they can't just concede and say oh we think there's no faith violation and then that allows an end run around fourteen fifteen rather we think fourteen fifteen asks is the relief available and to understand whether the relief is available  how much really well i do think that if the complaint seeks relief that is available under the idea a then at least that claim can't go forward going back to the jones was bach thing so if for example justice ginsburg you had a claim like the dog won here and then you had a separate claim that said something like the child was being abused in the bathroom or something like that something that didn't implicate a faith for an idea and certainly i think that claim could go forward that's a separate claim it's a good claim under jones v what can't go forward is something like this because congress had this in mind they had the idea that you that a plaintiff can gut fourteen fifteen by saying oh i don't want a violation i just want i don't want idea relief i want money damages because then they could file that lawsuit on day one of aid the cooperative process that congress has set forth and get relief from the district court and then process the cooperate of process you're talking about given their position that they're not asking for any relief under the f t p they would be kind of a charade you get in the meeting room and they say well what he wants it we don't want anything that you can give us we want the money that's not available we certainly agree that if it triggers that kind of futility exception if they literally can't give the relief for one reason or another absolutely they don't have to go here here this will sort of light be peripheral i mean this is a dog for a child who is not blind so it's not subject to the regulations they have a teacher who is going around a person who is acting as a guide within the school and this is to that degree a peripheral matter in respect to the plan and perhaps at least arguably more like the librarian in the school or the person who  does beat up somebody or treat them badly which could be the subject but a pretty minor part of an r u p so this is going back to something i was trying to get to earlier about your second half of your question look we agree that if there's a circumstance in which the ip or fe process is aren't directly implicated in some way that's a different case that's not this one in this one you have them seeking invoking the ip process for the very same thing they're asking the that would result in money damages and maybe a motional distress but maybe also the parents took the kid out of school and and is asking for the school to the private school tuition that they had to incur so all kinds of things but it was it was it was not because of anything that the piece said or didn't say it was because there was discrimination on the basis of disability now it was in a school and it could be remedied by school type things like  stop discriminating or abusing against a disabled student but even you in your brief say that doesn't have anything to do with the idea and so why isn't this the same thing because because justice kagan is that pages page thirty seven explains a lot of lower courts have said that when you have a discrete instance of abuse that doesn't violate the idea that discrete instance of it if you had a continuing stream of abuse if it's a continuing stream of abuse something that does implicate ideate processes and deny faith absolutely would require exhaustion in that sort of the i d e a doesn't care about particular instances but care is about there are some things justice kagan that are dealt with through the idea process typically those are things that were curses close to one offs yes  so i could imagine a one off being so significant maybe that be different the court doesn't need to get into it here here you've got a core situation in which they have invoked the ip process to do it as you can tell he was arresting that there's no such thing as continuing discrimination that happens in a school setting that actually does not have anything to do with the it's really think to the extent that something like that exists we're not position doesn't require exhaustion there that is in order that there has to be you know relief has to be available but who do not get and i e p a so if there's discrimination or if there's a failure to provide access to one of those students you don't have to exhaust the id a procedure do you well i'd caution the court into saying the ip is the only thing that's necessary but the ip is a good template as this court said and hannah gets the kind of centerpiece of the idea it's a good template for whether or not there's an idea a violation may not always map on perfectly but it's a pretty good proxy and so when you have a circumstance like this in which so so some of those may be circumstances in which for one reason or another the ip just didn't govern the situation but should and in those circumstances yes we think exhaustion would be required in others which follow more like the examples that  page thirty seven the kind of discreet one off things those are situations when absolutely they wouldn't require exhaustion in those circumstances congress had a something simple in mind in fourteen fifteen which is that if you can get the relief through the idea if that's what it's set if that's the scheme congress wanted to channel that stuff to then go through that first here there you need no better evidence that that happened than that they invoked those very processes here and if you allow their legal theory to proceed disclaim fate disclaims seek only money damages the there will often be situations where parents will seek relief under the be told early in the process or whatever may be the school tell them we can't do that and here's why the parents will think ok so this is not available we're not going to pursue that relief under the idea we're instead going to two hundred eighty eight so certainly if it's futile if they say look we lack the authority when they say you know we could us ahead with this we could sit down with them and say you know you're going to do this and that but it's going to be easier for us just to proceed under the yeah and the choice congress made in fourteen fifteen and going back to really question i know it seems a little unusual to say and strange to say why are you forcing playing to parents into a sit in to a scheme that they don't want that's the theme congress laid out that's a consequence of exhaustion statute which is to say it's not a scheme they don't want it may be a scheme that they've decided no the relief we seek is not available under this this isn't a case they do have the the human who's taking care of these things and under the that's enough for if f t p eight but you know we still have this discrimination complaint and mr children's you do you agree that that's an awkward position for them to go to the meeting and say we don't want anything it's really awkward mr chief justice but i think what congress said there is it's not up to the individual parents subjectively to say hey i don't want any part of this process rather what congress that is you've got to go through the process and then at the end of one hundred five days this is a very short statutory process then you can come into federal court this is about time it is what is the only argument that you're making that they're not entitled to their declaratory judgment because they didn't exhaust that are they entitled whether they exhausted or nah to the only use for monetary  compensatory damages for pain and suffering just as a time or they may be at the end they first have to exhaust this is all that's happening it's now too late to exhaust ray no not at all the equitable tolling rules of this court are going to be they just leave all of that and just say i want my money  so again i think that it can't be for the reasons that the chief justice and justice pryor said that just plaintiffs can kind of waive things around congress had an objective standard in mind is relief a variable i con fuse by your position i'm still horribly confused what is the purpose of all of this the middle of this case not now let them go back to school they're no longer in they're going to say to the school give me money and one else just such a marriage that is their position in their reply brief that is not you told me to look at the text of the complaint none of that appears in the complaint none of that they're going to different school won't come back if anything the complaint says the reverse they want t dog back and she just said i don't i don't feel welcome here and left so they already got the relief they wanted they got in admission by the school that she was entitled to bring that dog there notably police already said that notably petitioners never make that argument and it's certainly not in the complaint and the reason for that is what is in the complaint is that they felt that the dog wouldn't be able to be welcome back and so the idea that they could allow money damages for this type of situation without first exhausting the state processes is an end run around the expert agency statute that congress set up once they wanted to give states and localities the first crack at resolving this instead of allowing parents to abandon the id a system in march and a federal court which is exactly what happened here and i understand that there's awkwardness here but that's an awkwardness of the statute congress laid out on this is certainly awkward if you forget the words before filing the complaint damages  something you get when somebody didn't give you something but go back in time before they make that decision at that point what you want is the dog not the money now if that's the truth you have to go to the board once the board makes clear they won't give you the dog at that time you're free to soup you've met any exhaustion requirement because it's few time they've made clear issue has been brought up after that was done so i don't see how this is going to ever get back for exhaustion because the school has made clear they won't so say exhaustion replies to future suits before anything happens but not after the board makes clear exhaustion replies but the futility exception also applies am i right just  we agree with the futility exception on the facts of this case is the six circuit found it's not available in the reason for that the reason for that is that we have they haven't gone through the independent due process hearing you can't just say oh i met with some administrators and they didn't like the dog you got to go through the complicated process that i d s says it's a time sensitive one it's only hundred five days start to finish but you've got to go through the whole thing they walked out on the process before it was over one hundred five days is a big part of the school who corrected me and so i think saying all they have to do is you know go through one hundred five day process is not particularly responsive we don't mean to minimize that your honor the statute says you know short timelines but again we're only talk about money damages so this first be clear about what the statute says right the statute keys exhaustion on the relief that the plaintiff is seeking in a present participle and what are we seeking here i think it would help to clarify a lot of what happened in the last half of the argument to explain what we are and are not seeking we are seeking money damages justice sotomayor you're exactly correct we're seeking money damages for motional distress our allegations are about emotional distress they're not about out of pocket costs or anything compensable under the i d e a we are not seeking any of the types of relief the defendant are available under the i d e a we are not seeking reimbursement of educational expenses we are not seeking compensatory education or counseling we're not seeking to change and i e p whether through declaratory judgment or otherwise because there's no i e peace between the defendants and my clients bothering me like your colleagues from the beginning ok let's assume that you had brought this case not after you had moved here but while she was still in the school right and you didn't say as you can see that now that you don't want the id the fact change the complaint says they haven't but the service or it's causing and has caused a little distress we want damages it's not clear but you do want the facts change just what happens ok and i want to i want to answer that question let me just say one thing about the facts here of course standing is something we would have to a certain are complaint we would have to have asserted a desire to exhaustion requirement another part that is barred the thing to do is let the good part of the complaint proceed and leave the bad part of the complaint by the wayside and i want to respond to what my opponent said about about jones and what claim means in jones in jones itself this court  cited as an example of a court applying the right approach a case from the seventh circuit cassady versus in the department of corrections if you look at cassidy what cassidy did was it said well some requests for some relief are allowed to proceed and requests for other by the same plaintiff are not allowed to do the right thing to do is apply the jones partial exhaustion rule which this court said is the general rule in that case if this court concludes that our complaint might be read to embrace not withstanding everything we've said might be read to embrace requests for anything that might be available in id a proceeding is the proper thing to do is allow the damages claim to proceed to support have the power to state that  united appeared to suggest that in their brief so i think you know in some circumstances the court actually addressed something similar to this in the rinds case which is cited in jones about a b s where a total exhaustion rule applies and even ryan said that staying is something that shouldn't be done as a matter of routine it might be something done occasionally as a matter of discretion but that the ordinary process should be even where total exhaustion applies to allow the plaintiffs to decide do we want to proceed with these on exhausted requests or not which is what we would ask for after all in this case a stay would be meaningless my and in this court week among some maybe even the i'm getting because if what you're saying is we're going to be on a dual track in every case well it's not going to be very attractive to the court may briefly answer so i our position is you're going to be on one track which is the things that aren't barred by the exhaustion requirement proceed everything else goes by the wayside that's jones thank you thank you counsel cases submitted