missing one judge judge john can had an emergency arise this morning and he requested that we go ahead and proceed with the oral argument and he assured us that he will listen to the audio of the world larkin and give full consideration to it so you should have no worries about that part please remember that you are not to be here or audio this proceeding and also when you are referring to and will begin with counsel for case nobody is disputing that the question is you you bring up the specific incidents that occurred with the ego the teacher and the assistant having done things to him but the concern that i have is for your side is that the school almost immediately as soon as they were made aware of it did take action and those people are gone now the bus driver  transferred to a different route and so i'm not understanding putting aside the issue of the having a permanent assistant or whatever just speaking to those of best what could the administrators process and so forth so the only thing you can be bringing is an eighty eight dollars claim not a faith tack claim because that is a different category are together so if the problem is they didn't comply with their own do think that's the thing that's the most hard to understand because from a rule isn't every accommodation because of course every disabled kid would love to have their own percentage follow them around all day and so forth the question is reasonable accommodation what is your best case cite for the proposition that b f was entitle to have the school hire a separate assistant who would be solely driven on leap and what should they have had if you're not saying that he was entitled to his own personal assistant you know all day d long then what are the numbers that it did exist and what are the numbers that showed it existed and what classroom and this young man could still fall ok that's the thing he has a very difficult road away for himself so i'm asking you what can you point to that specific about here so many people they had here's here but i'm asking you to point to the allegations that would support that ok i mean we still need to know what it is you're saying they need it can't just be some vague thing you could have done better you know that's always true effort between the school district and of course the teachers and the school personnel and the parents yes you're absolutely right that that's something that's faded from the outside or dictated by what the parents sol opposing counsel reference several times what the our committee did they are committee of course is mission review a dismissal committee that makes collaborative decisions for special education show and part of that process it falls school staff and the parents the parents articulate what their needs are the school staff responds and the parties are supposed to come to an agreement if they cannot there is an administrative process that is ringback available d to parents where they fall for due gather under that idea at no your honor they can be separated there could be what i would call it here access lines and architectural barriers claim so for instance if the complaint of a disabled student did not relate to their education but merely related to i can't get to the playground because there ringback is no ramp and i use a wheelchair or are using a system to emulate that would be a pure facilities access on that would not have to be exhausted but the claim the other issues so i understand the sort of incidental issues but then he also says that you know he wasn't being treated properly with his urine situation and that he would have scratches and bruises randomly that were educational i realize that it occurs at the school but it's not specifically educational so why you said that in eighty eight claim that you didn't have the staff necessary to make sure that he could have appropriate handling of his toiletry happened on a few occasions and she did not say whether d it d soiled his diaper on the way home from school or a school she didn't know now with the record also reflects is the only thing names were discussed by the our committee and an idea and all that ok if we say that argue went out what is a reasonable accommodation for someone like it your opponent has conceded that it doesn't have to be an individual e hired polling aides and also his ability to move about the school say or not say when we talked a little bit about the toileting it was the district staff would see to changing his plan this d diaper and respond to that that's a reasonable accommodation is it always going to be successful probably not but the law doesn't impose a duty to always catch well what about his argument that like hernandez was by herself and that was part of what led to the incident get at the cooler of this what stat was there and what is sufficient so certainly and what is a vision and what is necessary is dependent upon the individual student and again that's going to be a was not a d professional and the regular education teacher right the teacher were out of the room at the time no how did that happen i can't speak to how it happened other than there are multiple students in a classroom and they have to attend to their names the only way it wouldn't happen d is if the our committee had assigned one to one full time staff accommodation but that would be accommodation of the ip now with the district arment that you've identified with the school to evaluate personnel that are assigned to an individual such as this or to see what type of suitability before that accommodation is put in place require perfection and they certainly don't require that a school district give accommodations trooper that assault what about opposing counsel's argument that you know hernandez was just pushed over the brink to some degree by this lack of stabbing and whatever and she's there with all of these kids now i personally can't imagine justifying what she did but that said let's just take that argument how do we assess that and how often was somebody like mr hernandez left alone d with a bunch of kids in the room while the other people that were supposed to be there just disappear i think st the they are going to pose in councils making is foreclosed by the pleadings nd i think the record is silent as to how often the would d have been alone with one story for us or one district employee or another we we simply don't know from the record whether is that something that needed to be in the record to raise a now in this oral d argument that it shows the lack of stabbing in so poor and whatever would that have needed to be shown to raise the fact issue yet to be us say all the time this was after him people in the room they usually only have one conduct that was assaulted in nature d or that was hostile towards b f until after the report of the s s if the stones down to and as articulated the bridge to the score a hostile educational environment know steps to do that there's no evidence to suggest and you don't think we can infer from the babbitt hernandez was alone on the head injury game that means there was a stabbing issue because that's your opponent which was d a hostile environment based on assault is the claim that he was trying to press our heroes or excuse me arnie the plaintiff cannot change the complaint from his discussion under the idea ad and in the faith context in all of that where they're meeting together is she said where the parents were saying you're not doing what we're asking you to do or w agreeing at those meetings so the record does speak to that question d and so there are discussions about b s names and notably there is no objection from the parents to the determination as to what is going to be offer and at that point the parents have an opportunity to share and there is no objection and there was no due process request made so the process even setting aside the exhaustion issue ready it and to be clear i do not believe the district needs our exhaustion to prevail the case is easily decided on the merits of deliberate indifference on each plane as the district or but the idea process is somewhere to the interactive process employment where the parties speak to each other they try to come up with a resolution busy that offers may at this point the parents accepted the nomination by not you know jack shit what was offered and collaborative process and or an edit and it is the proper infers that is a poor considering that in the deliberate indifference context your argument would be they didn't realized that there was an argument with the parents when they had objected to the plan that they set out that's certainly one way of phrasing it absolutely and of course deliberate a difference it is tied to actual knowledge of our morris d in that is or doesn't appreciate actual knowledge and they're not deliberately d different but even more importantly deliberate difference does not get a one horse of action in the circumstances it's based upon the knowledge that the school district has apple and the school district is entitled to select reasonable options and so here are reasonable option was providing our transition time it was a reasonable option to rely on regular staffing at no time during those discussions prior to  has issues that are different from let's say an ordinary child we all understand that and again respect and feel sympathy for that situation but that that doesn't answer the issue of ok what do we do now because there is no way to one hundred percent guarantee that b f will be totally fine and never fall never have a scratched never have a kid your unary situation i mean that's unfortunate situation here  so even if our best like they didn't figure out that she was the cause of the st incident till after they watched the video after the nd incident you're absolutely correct her but that goes exactly to my point by the time  thank you both last i think we are all home for the day that we can be back in new orleans for d live oral arguments that we appreciate you all coming virtually making your presentation and the case is now under suspicion and you all