representing t w the student significant client in developmental disabilities a former student at the dallas independent school district which was sexually assaulted by another student who called him v a we are here because  i only have five or six minutes in this st portion so we're going to go through as many things as they can but obviously i'd like to really respond to questions because to a large extent or briefs speak for themselves the st thing i'd like to do the statute doesn't have anything in it at all it talks about title it does talk about administrative exhaustion requirements under section five and four where there's faith issues it does talk about exhaustion issues for a it also talks about constitutional mother was counsel for the school district has written their brief that this phrase constitution and other laws includes title nine and they also say it but once again that's not really the plain meaning of the statute but even if we want to go a little bit outside the plane of the statute then let's look at what title nine does and what title title nine had to be exhausted and they could put it in at any time when they reauthorized the idea they could apply and any time when they looked at by the time they could have put it in any time when they had title six they never have done that council awful in the school before also says that the legislative history of ideas supports the position that title nine but complaints also have to go through exhaustion there's nothing in the based upon the conduct involved here the then the young man be put next to the bathroom in that situation absolutely or is that probably the main just of our discussion overall that you know we have children that normal regular ed children if they're sexually molested at school they don't have to go through exhaustion interaction leave a child with this the do they have a title nine kind in that situation yes ok so you're saying that he disability she hands are unrelated to you this is the civics of this title nine kind but in there for more than the interest is i understand that the intersection is where we have a problem if there's an intersection of the two then you about an attack on some and they can really have nothing to do with educational classes they have nothing to do with whether they're passing their classes or not you know academic or not academic benefit we look at idea based upon the michael f case that part of the doesn't have to go through exhaustion a child with a disability to get section five a for service that doesn't have to go through exhaustion but here we have arguably a child with a disability the way congress wants to protect most had the biggest impediment to having her so title nine is not subject to the idea it is exhaustion from vision because it's not a federal law protecting the rights of children with disabilities the school districts as well neither is the constitution so title nine should be lumped in just like the constitution is proceed yours only if the complaint seeks release for the denial of the faith this complaint is not seeking such will be the crux of the complaint sexually for sexual harassment and assault and rape at school so let's be clear about what we're talking about over several months the harassment repeatedly grabbed the victims but in general area hugged and kissed her kept trying to pull her into the bathroom at the back of the classroom the victim her mother kept reporting this to the school but the school didn't take action to keep her safe and the harasser eventually did succeed employing the victim into the bathroom and raped her for frys terms the complaint six released for a quote simple discrimination irrespective of the i d f faith obligation unquote and the student and these facts with a disability or without a disability could have sued the school for violating title nine and off shot of the tier system in which students with disabilities may not file title nine claims but have to go through an i v administrative procedure process but students without to build these can go directly to just the court with their title this question but if we don't agree with your overall then we get to the question that's on page twenty seven of your m p is free which is this issue of seeking money do you just if we were to say willing general you have to resign not when you're seeking m asking you what is your here like to get your thoughts here you seem to be supporting the plaintiff on this specific point and i'm trying to understand it because it seems like that one kind of swallow up the whole everybody would probably rather have  and and recover and then just obliterate the whole idea console so i do you just can't provide damages relief and honor the text of the statute if you seeking release that is not available under the idea that it would be futile a nd i just want to add it's not a damages point but just to remind this court about how the court in frye essentially has addressed in general terms this kind of problem the hypothetical in footnote pointing out that a child could file a suit in that example against an official at another kind of public facility and so could an adult who is subject to similar treatment could do that and all of this too here is  well a student who is subject to sex peer sexual harassment in a library or a camp or some other educational program that's done by the state but receiving federal financial assistance that student could go ahead and file a similar claim and s support similar types of employment discrimination claims and so that that just shows you just from that one footnote i think how the court should to look at a case like the school district argues that the plaintiff really release because the player seeks things like medical homes and expenses impaired and damages for impaired educational capacity but the plan is not seeking those things in the sense that the f provides medical psychological counseling services the related services when required to assist a child to benefit from the special education they're not designed to help a child recover from being sexually assaulted and raped in school  seeking is what any plaintiffs with a disability or without a disability would have been asking for if they had suffered the same type of persistent sexual harassment and rape at school and the upshot of this court's order is to create this the crux of their complaint here is a violation they complain about the us as being unfair because they view the exhaustion from the i d f that minist parents a pass to sue for money given rather both laws were passed to help ensure students receive the education to which they are and i don't whether you think the exhaustion procedure is a positive or negative and why should a person with a disability be treated differently than a person without a disability in the exact situation i e the raping fellow student who's allowed willy nilly to rape her while the school looks away title the federal lawsuit procedure after they remove the those arms and get the child the educational support they need they are still free to follow a lawsuit in federal court as it money damages but the the point of both is to stop to separate you know you might if you're raped as a teenager you might have trouble in school you also have other drugs and those are happening at the same time not you know years from now so if you suddenly  helping you get more tutors to help you with school that doesn't change the fundamental i mean this is a huge deal to be raped as a teenager it's it's not something we solve by learning to algebra ok yes your honor i don't understand how the two are really overlapping they overlap because the top well st i would point out that the id doesn't care why you're struggling in school yes maybe overall it might help you even if you have other issues maybe your peers are mean to you on top of the problem the disability issues but that's what it's for if i can't hear it's to provide me with you know an i pad that will that will give me real time transcript transcription of what the teacher is saying or if i can't see it's to give me something in braille it's to help me address the disability right that's the fundamental idea of putting together a program that will help that child be able to be mainstreamed in school and still learn as much as they can that is correct grammar you have to have a disability and the services need to be connected to that disability but the idea does not here want what caused that disability of its trauma because we know children who kamakura foster care are much more likely to be have a learning disability movie and need a special education at this hour cost her disability it's not the rape simply caused a new set of problems and why are those covered by this act rather than treated as any other any teenage girl who is raped like this in a situation where the school doesn't give a flip at least taking their allegations is true which we should for this purpose is going to harm any young girl whether or not she began the day with a big what we would call a disability so i don't know why we have to treat jane doe differently whether you consider it worse or better differently then joni didn't know who did not start the day with a disability because the way it impacts her is inevitably the way  special education student is impacted can't and is often inexplicably in are quite with their disability in the special needs they already have and i hate hearing officer that they have access to get a decision within the impact that has a lower education all the other complicating factor in addition when you're looking at the standard under a title line fine many of those standards are ones that if you're going to look at whether or not the school district was clearly and reasonable and leaving an alleged out of that alleged sexual assault victim in the same classroom with her alleged assault or you have to know what did her ip call for was it reasonable for her to be left in that classroom prior to that assault or not which would be a fact and her job and i think that's a question that is best answered by have to care about students regardless of whether we force night or not what are you all done for her after this horrible situation occurred on your watch not you personally but your clients much after the  to act in their students because this is a very very serious situation it is your honor and downsized he is all is continually in the process of improving their top a lot of policies and procedures and they're in there and are always looking for ways to keep children safe and to do better money damages do not and should not immediately that someone from id is exactly requirements under the i'd have a arm under this court president this court has crisis or a district court decision other the other thing i would point out here today is that the reasons for the reasons that they put on here for why you should not look at exotic you should not even examine the substance of the plaintiffs complaint but if you could have brought the same claim as a non disabled person you know before the event occurred let's say the rape the morning of the rape you were not disabled then there's a raid that person could have brought the title likely then a person who was to save him that morning and then rape can bring it without exhaustion why is that rule a slippery slope or what is the problem with the problem with that rule is that tight on time and the other federal statutes that protect children all children including children with disabilities protect against a variety of things that do not well beyond assault for example let's say that somebody in by the most obvious example would be saying i was denied a free and appropriate public education because i'm a woman and i was discriminated on the girl i was discriminated against are we going to say that that does not seek a relief for the denial of a free and appropriate public education their free an appropriate public education rights but for a non specialist if they're just talking about their general educational harm because i because there was a student in their class who was harassing them and using  hard to fake hearing officers regularly in courts regular regularly consider whether or not bowling harassment has denied up a plane to fly after an appropriate public education in the morning gets raped that afternoon at the school and brings a total line claim saying among other things you made it my i can't even go to school anymore can't even think anymore that person has to break has to bring an id and access to faster decisions made by experts and that ensures that their parents are interactive and integral part of making sure that happens when you look at the they make a point about the fact that the step to the limitations is different right they're saying ok one of the reasons this is unfair is because the statute of limitations between the two programs are are different but they are different not just in texas but they vary from state to state there are back states in which the inappropriate public education if you're not going to look at their claims if you're not going to analyze the substance of the complaint that's what you're saying and if that's the case that means that child no longer has access to the i d s him in a straight of procedures if what they're saying is i was of essential i want to do the states that we can't really factor then where does it indicate in the stanching that the congress thought the exhaustion process was a benefit to the child as opposed to sort of d is clear from that that they are forcing the school district to convene reza resolution meeting with the fifteen days of a parent file your due process complaint if they have not resolved it within thirty days that parent has access to it independent hearing officer who has only forty five dollars days to hold the due process hearing and issue a final decision providing all of these remedies and addition and this is part of the reason that you can tell that you do not have to be aware of the law to start your succulent start your claim accruing that's not the case under the idea because we give them special protections because these are the children who are most in need of educational protectors and we want to get them their educational as quickly as possible in addition the courts recognize that the exhaustion requirement is important because it it requires parents to act quickly and we want to encourage parents to act quickly to harm the educational needs because the goal here isn't to get them money to images the goal here is to get them to get the child zero the education they need to have x they need to have access to and that's the same   education statutes like this the point is to get the child access to an education in addition and the who are in the rehabilitation act the constitution protects all children not just those with disabilities or protects them for all forms of harm not just harms that are better based on their disability and not just discrimination that is based on their disability want to give a categorical statement that title nine never needs to be exhausted and this particular case does not need to soften for no reason let me ask you this what is your response to the argument that exhaustion is actually helpful and we've been treating it as if we're burdening the disabled student more than me not to single student but counsel i was it has made the argument that we're benefiting a disabled student by getting that going through a seventy five process that has a candle for appeal then you have to go to court and say god help you a person with special needs better than just having it done at the beginning which is what the school district policies and procedures required to happen for every other type of student out there does not make it better for you to see the other thing i'd like to talk about what it could be hearing off if you get let's argument that a person who begins the day particularly with an emotional or mental type disability as opposed to say be deaf or or something like that a person who begins the day with that is going to have a versus luther or all those different cases that talk about discrimination or harassment or bullying brought up a little bit earlier in this case sexual assault required as an element of deprivation of educational and always a component of it i mean that's one of the things that that's right mention is that if there is an inventive occurs at a school district one can always shoehorn what happened at the school into an ideal claim if that's the goal but that's