and may i reserve five minutes for rebuttal thank your honour's may or may please the court so this case is really about a clash between federal id a law and state truancy law in the state of tennessee what we're here before you today is the denial of an injunctive relief and basically what that's about is that the school different defendant appellee has basically filed truancy charges against parents who have rightfully withdrawn their student with a disability and placed that child in a private program that is clearly their right under federal law and the issue here has come up where the state of tennessee has declared well a this child is still on our enrollment and as a result has developed a number of an excused absences and b that we don't approve of this other program and under the definition under state tennessee law and their truancy law that definition is so narrowly defined that will exclude not only the plaintiff the child in this case but perhaps hundreds if not thousands of other children in the state of tennessee and that's the problem we have a clash here of federal law and state law where the federal id a law clearly gives the parent the right to pull that child out and the parent did that on january th of twenty teen and what happened was the school for whatever reason we don't know if was a clerical error or what have you did not take the child off the actually two to underlying action here ok so we're here for today because there's two actually underlying actions there's a an action in the administrative courts in tennessee for the special education piece of this and there is a craze in federal this court to do is to put in injunctive relief in place so that this parent right now as a result of the st conviction of truancy took the child placed them in a school that was approved by the state of tennessee and the school district and is it's an exorbitant school because the parent doesn't feel they the child's getting the education in the public school so she's paying this only to avoid truancy charges  the defendant here has basically made it clear they intend to file more truancy charges but for the actions in this court and so what we're trying to do is is allow this parent and allow that those disputes in the lower forums to go forward in before and maintain the status quo that we're injunctive relief is all about so that we can get to that substance that substantive issue but without the threat of truancy charges and we know already from the because we tried to follow there's this substantial dish no burden on this family they intend to take the child out of the crime school yes well i mean the idea is that they really want this child to be at the st one which was hope autism academy because that's what the child was really doing well at that facility was getting education you know were getting testimony about that that's the child was actually being educated was benefiting from those therapies but the problem today you wouldn't be entitled to it however you looking you want an injunction so that your clients can take the child out of the school or he currently is without repercussions and so if we were to to order an injunction your clients would would then take the child out of the school and there'd be a fight about whether you're in violation of state law and whether your clients would be subject to truancy violations and charges and that kind of thing is that is that the state of affairs that's basically it your honor the problem is my client is worried if she takes the child out of the current ks of the parent but why wouldn't the right time to seek an injunction be when you took the kid out of this school because then it would be an immediate threat right but until you do that it's like a license do that i get that they want the best interest of the child at heart here right but i'm just saying that's the danger of not having an immediate threat of injury until you withdraw the child you don't have an immediate threat well we do have an immediate threat your honor because they have basically said in their papers and i know our brand they cannot impose we all agree i think they cannot impose truancy sanctions while the child is in the private school right the current school correct yes or yeah ok i'm sorry the current school so the day they withdraw let's say they were drawn on a friday on monday presumably if the child didn't show up in any school or went i hope there would be a truancy charge filed that's our fear your honor we couldn't you go to the court the same day and enjoying it we can't under the younger abstention doctrine we have that's exactly what we tried to do the st time as soon as that truancy petition was filed doctorand said and the federal court correctly said this i believe the district judge said the federal courts have no power to go in and effect a state criminal proceeding and that's absolutely correct that's why we're here today your honor to prevent the step before that because exactly your scenario you paint if they filed the trooper trying to petition on monday we couldn't get the injunction so that's why we're here and we want to prevent all that we want the courts the lower courts have the opportunity of look at this case understand what's going on and rule on it without my client without the fear of my clients having to deal with another potential conviction on their record and the end you talk about immediate harm there is immediate harm and we highlighted that in our brief there the fact that a threat of criminal prosecution this court has said that is enough that is enough to constitute not only just immediate irreparable harm but actual harm actual injury and that's what you know my clients have already suffered through that now they've got a conviction on their record which if we're successful we intend to go and you know how overturned but nevertheless that's sitting on their record right now yeah that's that's what was our argument in the in the lower court as well as in the scheduling order and the judge basically kind of segregated the two and said we'll deal with the deal with this issue  and you know we'll proceed with the other issues the retaliation issues and so forth so i'm saying almost out of time on my initial argument i'll reserve the rest for rebuttal thank your honour's thank you very much deferential to abuse of discretion and we think that there was no abuse here to find that this whole effort to obtain a polluter injunction is premature there's no evidence and the record that this student is suffering harm or at risk of suffering imminent harm what about their argument that a soon as you give us the injection we're going to take them out of school if not and we take him out of school we know we're going to get truancy charges filed and once we get truancy charges filed we can't stop the train would say two things one there is no allegation the affidavit or complaint that that's what they intend to do and this court in the supreme court has already always required that in pre enforcement actions like this there's got to be an express intention to take the act to violate the criminal statute the nd thing is i what you're saying is even though counsel said it they haven't filed anything in the district court so the district court never had a evidence from which the court could conclude that they intended to do exactly right there on the so they just f tomorrow the parents just we really want to take our kid out of this school put him in the other one and we're just we can't do it because of threat of truancy then we get to my nd point which is the threat of criminal prosecution itself is not irreparable harm under younger and it's progeny they can raise these preemption arguments in the juvenile court proceeding as a defense to liability and so if they are prosecuted for them last time they raised the minimum ocean to dismiss that was denied by the juvenile court they had an immediate do novo appeal to the circuit court where they could raise these issues again and they didn't appeal it so if something happens and they do decide to remove the child and put the child in a non approved school and we do go through the progressive tour and see proceedings we do  file charges with the juvenile court the juvenile court in the circuit court after that can consider those arguments that's why those arguments are st addressed in the state court are you making any ability arguments in the underlying declar tory judgment case yes your honor i think it will be the we haven't filed a motion for summary judgment in the underlying case that's a due at the end of the month i think but our point will be largely this irreparable because the state due process proceeding it's in the department of education before an administrative judge right now that is a proceeding where the parent should be challenging the adequa e that the state is that the district has provided that separate from contesting the truancy charges in juvenile court that's a stated directors are correct and that's separate from the preemption argument in the three tally asian argument that they're alleging in this action which is pending before the district court so if something were to change and they were to allege that the child is suffering harm which there is no proof of in the record and that they intend to withdraw the student again which there is no proof presented to the district judge or no i get all that but you're saying they have to allege they could want to withdraw the child because it's too expensive so correct that's correct but then and there that they've definitely alleged harm in having the child in a public school yes your honor the the expense of that they point that irreparable harm is the prosecution is that is what they're alleging they're alleging both your honor ok the damages and the and the fear of prosecution and are our point is pretty well established money damages harm withdraw your child i will give you five days notice before we prosecute you for truancy why when that solve all these problems your honor i can assure you that many many many of those efforts were made and they all of them that really failed the record reveals there were three meetings that went through we worked behind the scenes to try to prevent exactly this and unfortunately they failed this is the nd issue was what my friend claims is a conflict between federal i d e a law and state truancy law  there's no conflict on the on the face of the two statutes there's no provision in the id a court to decide that's that's correct the only issue really in front of us is whether it's ira parable or there's immediate harm i'm sorry that that that's the basis on which the court exercises discretion not to great review and that factor alone if the district court finds it doesn't exist as a that's correct the chord you go no further than the lack of a ripple but are cases the or factors are not prerequisites could they establish everything other than irreparable harm and still get an injunction under our law no under your law irreparable factors and specific language and so they aren't a prerequisite so i combine a balancing test with not everything being a prerequisite why don't i get a lot of likelihood of success on the merits and nothing else but that gets me over the line if because i think there is some language in the pinion suggesting that there is balancing and that's certainly true when you have at least a minimum threshold of showing a very reputable heart and that's where the district court found that the plaintiff's proof was lacking and you don't you might require a little bit less of a showing of form if you have a really strong case on the merits or if the activities wage strongly in the in the plaintiff's favor here case we've briefed extensively there's nothing in the idea that allows a player apparent to you to laterally remove their child from public school and be exempt from state attendance requirements and so we would ask the court to do it for the judgment below all right thank you and there are a b to be at this this approved school so they're it's not premature in any way shape or form i want to address a couple of other quick issues which is there is just really quick there is an affidavit in the record was not there's  record real quickly but i want to get back to one question you just raised that it is a balancing test for pulling marion junction that's the certified restoration dry cleaning case from this court in two thousand and seven  fact i don't think that case said that has to be if you lose on a reparable harm then you lose the rest of the injunction it said you look at all four factors and you balance those factors and if in the in the greater interest it point towards an injunction without irreparable or handling it no i agree with you your honor but you have irreparable harm there i mean that's the threat of criminal prosecution is irreparable to them and this isn't the record there is something like in the neighborhood of four years was plenty are i'm sorry there's at least a year and a half of i'm excused absences which would drop in the neighborhood of eleven years of criminal  l and by the way let me get what we're talking about the i'm sorry i ask you one other question sure why not take the other side's offer of a delay in prosecutions you could bring this if it ever was going to happen that's that's not an offer that's been made what the council was talking about was what happened i'm just curious would you take it if they said we'll give you five days notice because then you could go to the court and say look we just got a notice we're going to be prosecuted well i suppose that's correct your honor i suppose that's right but you know i mean i'd like to see that in writing and make sure that i was sure because i don't want to subject my client to you know what she had to go through in a full criminal trial  n juvenile court i was going to just your honor thank you so that the problem there was the dismissed the now of the motion to dismiss was not on the issue of whether or not there was a there was a conflict here between the truancy law and the idea of law in fact the judge of the truancy case the juvenile court basically said i have no jurisdiction even deal with that i cannot and he disallowed any discussion of i be a law or a very limited jurisdiction and i'm not sure he was wrong or after stiction to the tennessee circuit court you know that's a good question your honor but i think we since we already raised that issue in the federal court we felt that that wasn't necessarily needed to and so what we did decided since he said we're not going to allow the id our id a arguments to proceed in his courtroom because he doesn't have jurisdiction we would raise that issue in the federal court and then if if we won we succeed in federal court we could go back and either expunge that conviction or overturn it so that would that would might my client would get relief either way and also would be case u s supreme court case that said basically that is long as the ground women of the complaint is not about special education or about you know a complain about the i p t which this case is not then it's an exception to that exhaustion requirement