your honors s h is a student who was a child with disabilities in special education for five years a little over five years for the point in time a issue in this case and what she is seeking a remedy for she was a child with a disability classified by the school district although we would later learn in our tenth grade year that she did not have a disability there is no doubt that during those years she had evaluations by the school district she had i e peace she had all the trappings of the special education system so she was for that period of time which is the period of time for which we are seeking a remedy a child with a disability even though in fact it was learned later that she was not but who knew at the time during those five years that she was not until accommodating event was their knowledge during the five years that she was not a child with a disability the law your honor places the responsibility for identification squarely and only on the school district the school district evaluated her in two thousand and four and did not do the evaluation the way they should have but had they have all said how should they have now on what what should have put the antenna up at that point that hey maybe she's really not busy well there were two there were three pieces that they should have now first of all the child was succeeding in classes and that's reported in in the initial evaluation in the two thousand and seven and and in that in the two thousand and nine evaluation the fact that the unit of the ways the flip side of the other argument and in one respect the fact that she's doing better could be an indication that the services she is receiving or b are a fact of as opposed to she shouldn't be receiving those services well your honor that could be the case except the facts here show the opposite and i would direct the court's attention specifically to for example a reading test the child had which is that appendix twelve thirty nine this is a reading test that was given to the child about three months after sh went into special education she was in fifth grade but her scores on that test were above grade level so that should have tipped someone off that consistent with the other scores administer the test administered at the same time or roughly the same it was an indicator yes that was consistent because she had an average i q a little bit above average i q and she had all average scores in her academics on testing there's no dispute about that and the law says that the quintessential definition of a child with a specific learning disability a child who has an average intelligence but is not performing at an average level and what we have here and what the independent evaluator found is that this child was always demonstrating essentially average intelligence and average performance so she did not fall within this construct of a typical child with a specific learning disability but the real problem here is that after this period of time in the fall over temporary year after she had objected to special education and her mother had in the fall of two thousand and nine when they asked for special education hearing we went we requested the special education hearing because that seemed the logical thing to do the child was in special education that's your first recourse for reform and that's because as this court has found in any and all courts i found that this special education form is where any matter about a child who has a disability is to be heard in the first instance and when we went there we had it filed in two thousand and nine end of two thousand and november two thousand  she we asked in this request for hearing for an independent evaluation that comes out in two thousand and ten and then the school district says well if you're not a child with out with a disability you have no rights you can't come to this forum and it's gone and that's cannot be the law because the law has always protected the children who have been in special education and salema was inspection education so she should have the right to have had her case heard by an independent hearing officer on the merits and had factual findings made and that didn't happen so we believe the motion to dismiss by the by the lower court was incorrect and should be the lack of your section isn't that a finding that she's not disabled then i think the confusion is it's a time frame issue she was clearly treated as a child with a disability for the five years she was in special education she was determined in april of two thousand and ten to actually not have a disability and that's when she was exited from special education what is it that you wanted that you want at that moment in time and great you know i understand that you want to look back now and say judges if you look from fifth grade right if grade tenth grade her grades were good her test scores were  grade that should have happened that had happened i mean she should have had a hearing she should have been kicked out but you're advocating that at that point in time and earlier she wasn't a child with disabilities it is it is a different and unusual situation perhaps but let me try and clarify this when this when a child is in special education and this is what happened with sh one of the things that happened to her is that she did not receive the richness of the general education curriculum only when she was in special education so for example she did not have science she did not have some other classes so she have gaps in her knowledge in her education and what we were seeking then and what we're seeking now is a way to afford her a remedy for those gaps in her knowledge even though she's an average intelligence student and even though she was doing well in the class a she took she still had gaps because she just wasn't exposed to certain information so for example when she was in sixth grade her i e p called for her to be taught fifth grade reading she then took did the six grade standards test for the state and she did not do well well she wasn't exposed so you know i think it's the gaps that we're looking to fill now in order to get  money damages to remedy this there would be the standard of intentional discrimination that we were talking about in the prior case you've also i think sought compensatory education we have in that was recognize in  you're asking for that and what would that what would that look like if we were to you know if that were to be awarded that would look like a sensually counseling tutoring we did at the initial stage ask for  is as an example i would say when she takes a math class there's just pieces missing there's just things she doesn't know so it's tutoring for that type of assistance as well really really looking at my time is almost  brought to this court other than a related case that this one i do think it's important to point out a couple things basically there is no there is no reason that we should have we put on prime official evidence and the district court did not correctly look at that evidence that evidence was clear the district under the deliberate indifference standard that you were just discussing knew or should you're you're classified you need certain services if you're not getting those services there are various administrative hurdles you need to get those services so they help claim is well i really wasn't classified so i'm really not a child with disability but i was regarded as a child with this voice i was certain services i mean it's it seems one perspective would be it up to the real purpose of the statute of the very statutes that we're talking about how do we get over that hurdle well that's a great question the the answer is that the i d f has always recogni the necessity for a broad determination of appropriate relief depending on the circumstance and and in the id in fact in the very first version of education for all handicapped children act as i did in our brief were where we cried all of the literature arguments about that but how does how does that come into our discussion here right because you know we have evidence in the record that sh is mother was like i you know can she get some more help on this because she gets more help on that and i'm not  now as we look let's say you get everything that you're asking for here so now school districts are oh i don't know you know she's she's a one grade below grade level you know she could use some help but you know you know we're going to be hit with you should never have classified her and you do damned if you don't yeah i mean and it really was i i mean we're big boys we're going to worry about opening the floodgates but this is a concern that you know that al school districts of both ways they're trying to figure out you know if i classify this african short answer to that is that's precisely why in our reply brief we justice quite a pat the the the form where the should be handled is this special education hearing process because there's many opportunities there is to sort of and she's actually isn't if that's your response tell me why the system timing is the issue perhaps but isn't that exactly what occurred here no it wasn't because this hearing officer made no and so forth but the answer judge greenways question in terms of the slippery slope of these kids and there are it's fair to say according to the statistics there are kids in the situation beyond my client i do not think that it's going to be a situation of the floodgates because the issue in this case is very narrow in terms of the appropriate evaluations and that responsibility again is the school district's responsibility to be correctly die and the key in this case and for most of these children because many of them get pacified is having a learning disability is whether or not they were observations done in the classroom and that and i would leave it with that but i don't really district on savage initially i would like to address the first argument which is made which is that the id ache claim should have been allowed to survive despite the fact plaintiffs claim that the student was not the sable and never had this i think the ivy is pretty clear that it's protections apply to students who are disabled or who are suspected of being disabled all of she's suspected of being disabled from fifth grade and great she was identified by the school district as being a student of a learning disorder from fifth grade through tenth grade at which point in time as a result of the i e e e the parents took the position that was not disabled and never was disabled and requested that she be accident from special education and the district complied with that request and accident her well you would agree that the only entity that can determine in this in this circumstance who's disabled this is school district right  would disagree with that the school district does not have the power to assign a student the special education without the proper parent's consent and the parent always has the ability under the regulations to withdraw their consent so with the consent of the story educational for the moment so that i don't have to go through the litany for that period of time the reason why is because for that entire period of time sh never challenge her placement never challenge any of the f never challenge her placement never challenge any part of the program let me ask you a question suppose se in fifth grade was testing at some great love and in sixth grade eight grade level mike my point is this in that in that in that hypothetical parents don't know any better they're always going to see to authority they signed off right would you agree that in that hypothetical the school district has made a mistake in assessing that the child is a as a child with a disability assuming that you're saying that the child was performing at a certain level i don't know what the ability of the child was if you look even in that in every objective and dishes that one could choose the child seemed to be fun except the child is ability in the spoken word because of the language that as it was challenged and that was the basis of sensibly that a determination  disability was made with their still be a problem well i as i understand the question are out of the question is if the district had clear knowledge that a student wasn't the sable but then classified the student is this able to anyway then well then what would be the issue right well in that circumstances the parents have rights they're given procedural safeguards notices every time that they meet for an i v meeting every day sign off on a new placement every time they sign off  evaluation assuming that the parent didn't take advantage of any of those rights the student turns eighteen years old the student could then assuming that they could prove that there was some sort of intentional deliberate indifference on the part of the district bringing a claim and no the claim would have to be brought under the discrimination statutes of five o four in the a t f a claim to under the i d e a are limited in a couple of different ways number one it's limited by a pretty narrow statute of limitations because they don't don't want people going back ten years and saying ok let's go back and pick apart what happened in fifth grade now that you're a senior in high school and see what should have been done then because the idea of the i b a procedures is to provide students with ongoing appropriate education and so therefore those those claims have to be brought in a timely manner in this case no such claim for brought there was one single claim that was brought in ninth grade into one grade that was a claim for a denial wrong if it was clear that the child was not disabled but the district identified the child as the sable anyway the site knowing the fact that it wasn't disabled and an official with knowledge of that fact acted it's at grade level at or about grade level something's a little above something's a little below which you know i'm not an educator but i would guess a lot of kids are a little bob and a little below yet the child is classified case to explain what the classification is the specific learning disability classification has nothing to do with is this child performing at grade level the classification has to do with is there a discrepancy between a child's says that in a two thousand and four evaluation report it was acknowledged by the psychologist she had average scores in this area however where she had below average was in certain performance criteria that indicated that it was below or greater than one standard deviation between those two scores indicating that there was a discrepancy a severe discrepancy that qualify her for being diagnosed with a specific learning disability that's how that comes about so when we talk about is a child performing above or have to be taken into consideration when making that assessment so in this particular case sh was evaluated it was determined from the evaluation that she had a specific learning disability and she was programmed for that learning disability she was provided additional services and there were indications in the record that she was struggling in class there were notations from classroom teachers were in two thousand or the parent requested additional services for s indicating that she was concerned that her score on the p s a was below profession that she was struggling several of the other tests that she took showed below average scores in reading did she have some tests that showed average yes but it is the same tests that was right after the valuation was was conducted the information that the psychologist had on hand at the time of the evaluation was a test during third grade which was the test on the pennsylvania system of school a test and also a test in fourth grade the degrees reading power test both of which show she was performing below benchmark additionally there was the the fact that the psychologist administered her own testing intelligence testing achievement testing and fulfill what she's saying she's got caps the science and the math cetera what she's asking for here is additional tutoring services they produce there are an expert report from an economist the put a dollar value on these services and said this is what we're entitled to is and so therefore it wouldn't be it's exactly oh you're a failure of faith correct and that's right and compensatory damages is with being requested that was well but figured she said services to remediate deficiencies which looks like specific that was that was what was said in the wherefore clause of the complaint in summary judgment in front of the district court this argument was not made  all which is why when you look at the district court's opinion you will see not one single mention of it was not raised and we put forth in the brief that this argument has been way that wasn't brought forward at a point in time when the district court could have addressed it and in fact i would argue that a re it wasn't brought forward is because they had their expert economist put together a damage report that came up with a dollar amount and said that this is the dollar amount of money we're looking for to pay for all of the various things we would like for her  allowed and in fact the summary judgment perceiving the district argued that that showing of intent was required because of the fact that they were seeking compensatory damages and at no point in response to that did the plaintiffs come back and say oh no no no we're also seeking injuncti relief that that issue was squarely teed up and the district court decided on that basis and one of the other items i would like to point out to the court is that there is a good part of the brief that the that the pla minute deal with this whole idea of informed consent of the parent and i would suggest of this court that the formulation being put forth by the plaintiffs is completely unworkable which is a parent does not have informed consent after the fact the parent subjectively believes that some fact had they known it at the time might have influenced their decision otherwise that that is a standard that means that no parent would ever give informed consent in any of these proceedings and in fact the cases wh things that have occurred in the process it's absolutely under spewed that every stage along the way the plaintiffs received the procedural safeguards notices they were well aware of what their rights were and in fact they they exercise those rights at the end of one great requested  appropriately classified in the way that you've described the describe and if i understood you correctly it would be that someone was not performing up to the potential that their i q indicated they should write so they're given whatever it is additional services of they they are prescribed by the school district school district in the peregrine right so let's say it begins again in fifth grade let's say there is sufficient improve by seventh grade that the objective in dishes that's used to determine whether the potential that the i q shows should be met is in fact met right and there's no disagreement at least as a mathematical matter that it's being met right so let's say that's done in seventh grade so in my hypothetical between seventh grade and now tenth grade all those objective  show that the person is needing all of the objective criteria if the if the child in my hypothetical remains classified between seventh grade and tenth grade would they have an r a or and or eighty a cli it depends on why and the reason i say that is because is it possible for a scene with a specific learning disability to remediate that this ability to the extent that they're not performing consistent with their ability yes it is the underlying disability the underlying problem still exists but is it possible for students who are mediate the effects of that certainly now if the district people want to know when you're liable that's what i want to know if this is if the district if the district recommends that the students stay in special education because they're concerned that removing the special education supports and services would cause a student to regress there's no liability there that's that's the district saying the parents this is our concern we're concerned if we pull out the supports and services that are in place that have allowed your child to now get up to the point where they're performing the system with their ability they're going to regress and that's going to cause a problem let's keep the services in place that's that's a perfectly acceptable result if the district on the other hand says well we know now that they completely remediated and we know that that it would be a violation of the students rights to keep them in special education but never the last we think  that no point in time did the parent complain about this or that the ship was providing for and in fact even requested that this services over the years i think show srong lee that the district was not deliberately indifferent is it possible that the district could have made a mistake and would be live one of the i d e a short if that's possible and with the parent the fact that the parent consented relieve the district of its id a liability no but in this case we're talking about a claim for  intentional discrimination under five of four in the a n i v eight claim violation in and of itself doesn't prove that you have to prove something more and you have to show that there was deliberate indifference at a minimum and in this case that clearly was not met on the record maybe your answer answers my question that is deliberate indifference is the appropriate standard of culpability for regarded as disabled discrimination claims that this were fall under  under the second pile for because there's sort of the circularity here to show a higher standard of culpability like some form of intend that would amount to discriminatory animas you would almost have to say that the school district knew the child was not disabled and nonetheless kept her in some sort of special education program but you can't have regarded as disability but they could still never the lasht treat them as if they were disabled and if that were the case then they would be regarded as the stable because even though they didn't have a disability and the district knew they'd get out of this building if they treated them as if they were disabled that would still trigger the protections of the statutes or if they were deliberately in different occasions that she was not nothing that's correct thank you thank you thank you  not correct five off and in addition the other thing i wanted to bring to the court's attention is with respect to the deliberate indifference standard which is is is the the was to disabuse the stereotypic views of people with disabilities and that is why it includes the regarded as language and that is also why the americans with disabilities act as amended updated that increase that so that that is is before the court date the other thing i wanted to mention is with respect to the informed consent the language that we cited in our brief i informed consent is from the statute it's not an outrageous request it's not what would any one would consider to be beyond the requirements and the reason is that parents have to turn to the school districts they have to trust the school district and that's what this mother did and so to say well because there wasn't a challenge earlier is is unfair in addition which the record does reflect some challenges the child herself objected to going into special education the child objected even once she had an i p to going to the classes the child voted with her feet in tenth grade refused to go to special classes so those in the c's are not common i don't see those much in my practice and i don't think they're common and they should have put the h was disabled in this instance he said that it's a combination of i q potential looking at objective and not quite i think it's better explained in our in our brief and also in the reports of our experts which are in all of the appendices that the place that it's that it's best described however is from the independent evaluate  is this mr dooley johnson in his report and that is that eight ten sixteen basically he says look this is this is not a question we'll case this is a clear case of a mistake and that made the court thank you thank you thank you he says well argue take under advisement as recess