good morning or honors if it's still morning they please report christopher an offer for the plaintiff and appellant lindsey rogers your honor sir before we get into the issue of the two alternate realities that is the evidence in this case we imagine the court is going to want to hear from us on this issue and i'm pleased to report that we have a road map for this court to follow on that issue that roadmap following their version even marcus and then following byrd versus lewis and clark college the question before the court is whether action from preventing him from the right and it may also be an open question whether or other orders is a catch all because they're on there as a question all for something else that's a civil action for preventative relief so we still have to know what's and understood you are so in bird versus lewis and clark what happened there that was a student in a wheelchair who attended a study abroad program and was denied access for certain activities that affected her grades the question before the court was after she graduated did she still have standing to pursue injunctive relief in any manner whatsoever and that court held that because she had lower grades that would directly tied to the failure to accommodate that she did so there was an there was a factor of relief available in the form of an injunction to prevent the school ready from releasing her grades on that were affected that particular semester similarly your honors we have that opportunity here because there is evidence in the record i point the court to the mr rogers declaration in volume two starting at page fifty seven that declaration encapsulates mrs ms rogers experience in this case and at the end of that declaration she discusses how after being force effectively forced to leave western she did reapply to other schools she could not bring herself to go back to western she was deterred from doing so based on her experience and so therefore she applied to reapply to tufts which had accepted her prior to starting western tufts did not give her an interview because she believes she had to provide her transcript which showed she fails in that those two fails of course were directly related to her experience so in this case you are that title three claim is not news because the court below ten years sure in order upon a finding of liability that the school is prevented from releasing her failed grades or requesting that the court modify those feel great but i mean maybe but you'd have to demonstrate interact connection between three particular instances where she was denied accommodations the complete denial of alternative tax materials paramount importance and her declaration and she discusses why it is that it's so important i can listen to the text while i read it and as a matter of background your honor her disabilities are a d h d and a learning disorder that severely affects her processing speed her reading speed her working memory and other factors so the alternative tax as she notes in her declaration which she largely wrote she she needs to listen to the text while she reads it it helps her understand the material better and more quickly which is of paramount importance here mr lawlor told me ms lawlor is the disability service officer that was that is at issue in this case she was the person primarily responsible for determining at least at initially time well if you're on it there's a very different set of facts if the school had said it's roger's we are happy to get you your accommodations please fill out this form and we'll provide them to you on day one that is absolutely not the record in this case you are the record in this case is that she was informed that the school does not provide or pay for alternative here fill out this form of eventually but the testimony is eventually as ms rogers continue to push for this because it was so important to her that therefore they ultimately said look fill this out we'll see what we can do that is not compliance or title three of the eight or are that and the title through the media requires the the institutions responsibility to provide auxiliary aides and services and they want this is this is a st year medical student she was inundated with material and lectures and constant assessments which i'll get to in a minute but she was overwhelmed with what she had to do and she was initially told and she provided notice early in may of two thousand and fourteen well before the start of the fall semester that she needed these  alternative text for a student but there's also miss lawler's declaration saying we did not provide alternative text and this rogers testimony that misled her told her that but with the other information the form telling her she had received in the form telling her to fill this out in the will scan your books for you and the handbook saying she could see that did she do anything when she spoke with miss lawyer to say no that's not correct i do receive these here's the foreman filling it out here's what your department of really rehabilitation talk to the publishers directly that's what she was told eventual ie if the form was filled out it would not have been done in time for her classes so the idea here is that the denial happened early on in her experience at western just because western ultimately did the right thing which is really their defense here completely misses the point of the need for auxiliary aides and taxing accommodations they need to be in place from day one for a medical program that's intensive she was taking twelve hour exams on certain days she was taking six to eight hour exams regularly there's the issue of the stop the clock breaks but the point being here she was in the program trying to keep up and yet being told talk to deal our talk to comics about your future accommodations you probably won't be able to get these for testing she was thrown off course unlike any other student in the program she was treated unjustly and i just realized that i did not reserve time for a bottle and i would like to do so if i could reserve time these three minutes  ultimately your honor what we have here is an injury stinks different experience and yes i understand the defense has evidence that they will proffer but ms rogers does too and if you look at everything a medical student required to do a typical kid and advocate for herself incessantly repeatedly seventy five times pursuant to the record and expect her to be have to have full and equal opportunity to succeed that is the threshold matter in this case why she given that for the flopper tutti we don't know the judge seemed to take all the a person is in favor of the defense that's contrary to the summary judgment standard the case under title three if you can show continuing adverse impacts well the point i'm sorry continuing adverse effects in the form of failure to comply with the eighty eight that deters her from making use of the fund of the finance facility that goes hand in hand with the three cases that we cited where this court in addition other courts the said that once a student graduates from a program there is no more case for controversy that is present in other words things that so that your honor in the barricades which also is from the circuit the court made it very clear that in order to grant relief like that the relief would have to effects the relationship between the plaintiff and the offended or mr rogers and the university to issue relief to change the mind of the scholarship company and hopefully not require her to repay the scholarship so she's not asking for relief that changes the relationship or even relates to release it between the university and  she's asking for relief that somehow is going to change the relation between her and these rd parties and by the way this belief is entirely speculative there's nothing in the record in the decades that such relief would get her admitted to medical school or alternative taxes to allow her to run the tax for a program where the program will speak the tax as she reads it the university was able to offer her the opportunity to scan the text and then she would have to run it through a program which she admitted we had on her computer which would then speak the text to her so the university doesn't create the programs or the audio versions of these texts but it does go as far the agency the department of rehabilitation there's no law and there's no case that requires the university to prepare these audio techs out of whole cloth that's not a burden or a responsibility that the court holds that any court to this date has held the university to she has provided access and the avenues to obtain these texts and she just simply failed to pursue that the other two accommodations that appellant relies upon and in claiming that they were denied as the stop the clock breaks and then the failure to change her courses i just want to address each one of those in turn as well as sort of stop the clock breaks it seems to me appellants contention that her initial accommodation which asked for double time and in a separate accommodation and asked for additional breaks should have been interpreted by the university to mean deposition itself says on the one hand it says that she didn't raise the issue because she felt that the university just assumed the double time contained or absorb those additional breaks and one time in her deposition she does say that she raised it with the university but there's no specificity as the time who she raised with or what she said there has to be a threshold for facts of all specific facts in order to create a tribal issue and as we s believe she makes once that she did raise the issue of stop the clock time there is no specificity there's no foundation that ties it to any facts even if the court accepts the fact that she asked for stop the clock time in feb of two thousand and fifteen i think that it's fair to say that that's that's probably when she was raising these issues in the spring semester that she was given that accommodation by april of two thousand and fifteen so even if the court were to believe that she somehow raised the tribal issue as to whether she asked for that time the evidence is still undisputed that she was given that accommodation without any  that would be actionable under title three the delay clasping the classes she failed were had nothing to do with the double timer to stop the clock she failed idea and and neurology both of those classes she was given double time in at no time did she go to c which she understood to be the facility that granted accommodations and under the when case a university is allowed to require students to use the proper procedures and a good a proper people th accommodations there was no question that c knew how to ask for accommodations as she repeatedly did and was repeatedly given accommodations during the course of that year but at no time can she point to any evidence except april of two thousand and fifteen when she went to air peter went to miss lawler and asked for stop the clock time she knew how to she knew there were people for caesar's he knew she had at least five atomic nations given to her prior to could do actual proper breaks that run coming out of my time or scheduling and then she sends lanner i kept saying that i need an extra break time that income out of my exam interesting we just disregard that's you but the civil requirement to raise a specific facts that she has to tie her dispute to something specific that she feels it is that but that the lady is she was still there as well your honor i mean there's no question that she was given that a dation and there's no evidence she also says a number of occasions i tried to explain why i did need that and then other supposin other standardized tests that i had taken and said enough that way so i had actual prep times so that's the rd time she said that feels she wasn't given a chance it just begs the question whether she ever asked for it at all and that doesn't create a trival issue she has the burden at this point and she failed to meet that by failing to point to anything in the record that would show three specific facts that she actually made that request to the university at any point prior to april of two thousand and fifteen  my time is up but if the court wants to of the combination that was a schedule change your honor and what the evidence shows in regards to her schedule change is that in february of two thousand and fifteen she expressed that she was having difficulty getting from her morning class which because of the double time she received on exams getting from that class to her afternoon class again the evidences undisputed that what she asked for in february of two thousand and fifteen from that's completely inaccurate what happened as i understand it was a at the beginning of the semester before february fresh came to her and then she raised the problem and asked for the thrush and again not to ms lawler who is the appropriate person but dr thrush that she is still having problems getting from her id i t double time tests in the morning and by the way there was only she's rushing through her double time exam because she feels that she has to get to dr lam and that this is causing rings i already it's causing her stress and that it's just a wake up too early on the days she has an idea idea i t examine that's causing her stress this would not have been relieved by a schedule change the schedule sayings which she doesn't specifically ask for that e mail but the schedule change would have still required her to go to an discussion about i mean that's the whole idea of the interactive process of the have discussion with the student and after this email she then eventually agreed after dr thrush tells her ok i think it's best to stay with your section i don't think that this exam directly into a time typing activity it's unclear what class that was for and then to a presentation of professors it was a one out it was an eleven hour day with no breaks so what she's complaining about and she doesn't ask for a schedule change but what she's complaining about is the long day that it is because of her double time that she took for her test and then having to go to an afternoon class that was unavoidable there was no schedule change that would have prevented her from having ours and i appreciate the questions obviously it reinforces the idea that there's just two different experiences here and this factual record absolutely begs for remain and to allow a trier of fact to decide who is correct the fact quote the idea that ms rogers agreed with dean thrush to the schedule is completely undermined by this writer's testimony she was begging for something to change whether she used the magic did in fact your honor the record shows that she st raised it with mrs lawler who said to her unbelievably as a disability service officer i can't make that decision you have to talk to the deans so what we haven't talked about all the conversations she had with dean emmert as well as dr dean thrush as well as the seventy five visits to a r c so again this is all coming back to what was the experience like for this young breaks in order for rest that's absolutely required by the lopresti evaluation and therefore these are all items all the note takers the paper exams all that she had to keep going back to smaller for and the reason why that happened was lawler's testimony that she did not know what the different methods of evaluation were in this roger's st year courses she had noted that so that's why all of this happened because miss lawler was unprepared to assist a student in this rogers disability so your honor the word year this rogers was qualified for this program she went to oberlin bryn mawr and columbia university she testifies that she had these very same accommodations at those universities and that she had no problems there is no prior litigation that happened when she came to weston and the reason was because their disability service officer was not prepared so you are there is a very distinct factual record and eighty eight the whole purpose of the law is to give people like miss rogers an equal opportunity to see not to guarantee the