a please the court the name is terry gorman i'm represent the appellant in this matter this is my st time to be with you and i perceive it to be an honor thank you for the opportunity with me today at the very back o visits a public library on a regular basis now because he has tourette's syndrome is known to make public pronouncements sometimes for profanity of a variety of things the librarian  public library the librarian knows he has to rights so she's not going to kick him out but it's an inconvenience other people in the library or of saw it's always an issue one day the young man comes on and i part of his trip syndrome says oh my god i'm going to kill everybody well at that point the librarians as a good enough you know there's no gun there's no weapon there's nothing to indicate it's not just part of his threats she calls the police the police come and arrest him felony charges for terrorist one at that point a deal is made an offer to the young man's parents you can agree to never again go in the library ever again and we'll drop the felony charges rather coercive and under a lot of duress if they agree now in this case there was a complaint department within the library and that the complaint department within the library deals with overdue books what books do you want is everybody conducting themselves appropriately but there's no complaint review board for being kicked out of libraries and that's that's important because when he was kicked out in banned from the library because of his tourette's syndrome it wasn't merely you can't go review adventure stories anymore you can't review you can't read spy stories you can't sit here anymore because you're disrupting people you can't we're not going to require you to go to a room and do your work and do your reading it's a complete ban and under those scenarios which is what we have here if we applied to the friday test to those questions the answer to both of them is yes he was banned from a public building and wishes to sue for being banned from a public building let me issue yes or eight year initial pleading hearings before he sent to an alternative campus or in that does all sound in procedures that idea of survivors and so why isn't this an idea gates it seems to me or your hypothetical at the beginning would mean every case involving the expulsion of a disabled student is out side of idea a complete ban on would be your honor because this is not about you in any expulsion of a disabled student is fried justice kagan says one thing you can look at to see whether the case is really an idea case because she says look at the substance of it not the labels she says you can look at they actually did try to go through the idea exhaustion procedures so why can't we also look at the fact that you did originally bring this case is an idea a case in deciding whether that's actually what it's all about not because that was actually my in our full drafting there are well what if a lawyer in artfully goes through the itself is is is is less than what we have here we had a complete ban and banned as a result of the agreement re was banned as a result of the agreement reached under duress and you had no or there was a recall that some urging by your side i guess there was an alternative some alternative procedure dismissing the charges if you grease not to be in the school and i thought i read it while in the midst of the counties that the fate of the school there is an alternative provisions of him being put in some different training that your side had ur to be considered but i guess ultimately rejected is to punitive in my incorrect that that's not an equation as are there before the ban there was again with him say there was a sanction to the alternative education to d a p right now also as stated when the client was talking to the school about the school raise the ante and said if you ever bring him back here we're coming for the ultimate band and ultimate band that's that's what you have to show through going through the exhausting process that's why we have exhaustion but if it is something that the the administrative hearing officer cannot even do then why is why is it necessary to do it you make your record all suppose well but to make a record on something that is family is presented with the following if you agree never to have him go to that court room to that she's going to that school again and we will drop the felony charges that's that by definition your hon in and situation right for the rest you're faced with the complaint i mean what you're talking about seems different to me than what the complaint says the charges in the deal to get rid of the charges is just one aspect of a lengthy list allegations in the complaint that talks all about new caney refused to modify the august i e p that led to the assignment to this this english teacher all these inadequacies and then it says he these charges were brought against  because of his disability that's all correct and so you don't think that could be dealt with through the exhaustive process that you couldn't you could prove in that process that this was done against him because the disability  n their refusal to accommodate him yes rather because had they proceeded with a manifestation determination review as counsel for the the yeah police that was all that would have done is say he doesn't have to go to that would say you shall not sell your home to a person of color we're certainly not going to have a policy written by a school district that says as when we get fed up with somebody yes or i pled that there that there was a policy regarding anti discrimination i play with the only way that deal could have been cut is in conjunction with the same timeline for him and that raises the specter of school districts violating federal law there is no question that those particular school districts that were studied in the department of education report violated the law the department of education concluded that all of the t e a had been coercing school districts to lower the numbers and so without some discovery your honor i'm not in a position where i can read the mind of the school board but when i pled is that there's no way to deal with the county attorney occurs without the superintendent and frankly probably without the board not i don't have that on the board agenda but rather how else can there be a believe that that allows us to go back and have some discovery and do discovery with regard to exactly what the discussions were between the school district and the mcgovern the county attorney what what actually did happen and that's where i the morning and please the court i'm corey rush i represent new caney independent school district he grab them and this case is and always has been the election night of a free appropriate public education and that means that the administrative exhaustion process under the individuals with disabilities and education act or i d e a public say those interchangeably and i apologize are required to be gone through prior to coming to court records lists of how the cla the artful pleading to get around the exhausting process when it's undisputed the administrative process in this case was abandoned it was initiated in a band and as just cause you aptly mentioned justice kagan said that that is absolutely an appropriate way to look to see whether the grabbing of the case is the denial of say to look at the history of the proceedings and here the history of the proceedings even before it court involved the i d e a involve the administrative process and then when it hit court after the process was abandoned there was an idea a claim in the original complaint because this is and always has been about the denial phase what about his argument that the administrative procedures could not undo this deal with the prosecutors that banned him permanently from school so whether or not the deal could have been undone by the hearing officer we want to party to that deal so i guess i can see how that that argument plays in here because that was between the family and the county district attorney's office but what could have been solved through the administrative process colleague said was to have been in the yard review the manifestation terminations review or a stay put to keep chris from millen in school while the administrative process was going through and whether or not they made a deal on the outside i mean i suppose you could bring that to the you're an officer and in the hearing officer could say i don't have authority to rule on the private deal you made with regard to these criminal charges i was new kind of the complainant if you will understanding and again i came in in litigation sort of this my understanding is the county was the spearhead of that investigation and subsequent arrests but i think importantly to know with regard to the administrative process here is that stay put m t r side of things when before the deal was reached the status of of the issues between christopher millen and the district was that there was a proposed expulsion to d a p to the district's alternative education placement based on the terroristic threat charge it so that was the option presented to to them mandatory obligation under the texas education coach up to thirty seven dollars to place a student in alternative education placement and or if it is serious enough and see the juvenile justice alternative education placement which is an off site county run expel to the street we expelled these expelled from the regular day program and into this alternative program wrote what purports to still satisfy the tenets of that action was never fulfilled because of the abandonment of the process once the family entered into the deal to withdraw their student from new caney honesty and the way it's pleaded in here in your record is about they felt they had no other choice than to sign this deal and they just gave up on trying to work anything out with you can you honestly that is the abandonment of any administrative process with regard to my client and the the grovelling issue here is interesting because it is absolutely left and about the i p s and the behavior intervention plans and how successful the student was her own views on to the student the student exercising his own religious thoughts and experiment social experiments however it's worded in here all of that ties back to the i e t in the allegedly failing e up to the fact that they blame the failing i e for the fact that the student had these discipline issues that got worse and worse and worse that led to the action that led to the expulsion and that's it it's  guess i suppose that that's a word used throughout this entire country expulsion is based if this was a student who was not allowed to enter a football stadium because we didn't have necessary ramps now and that would also have nothing to do with a free and appropriate education whereas here the issue is that for from august to two thousand and fifteen until the expulsion the educational experience for chris from going was allegedly deteriorating w getting worse his behavior was getting worse not managed appropriately through the i d e a channels and that is absolutely the central point here that the it is the i d e a channels that were not allegedly being appropriately implemented and the administrative remedies were there to cure these they were started and they were abandoned and them were in court on those very same claims if you took out five before in one thousand nine hundred and three from this pleading and just read it cold i would venture to guess you know the case on the lower courts is on your side but the statute says you have to exhaust when your follow civil action seeking relief that is also available under the statute and damages aren't available under the statute so why are we just on a plane reading why should the exhaustion provision apply to a damages well i think there's a there's a legally use reason and there's the slippery slope reason the legal use reason  is there's actually a fairly recent case i can point to panel two out of the rd circuit unfortunately but it is j l versus wyoming valley west school district and that is seven to two federal appendix one said our conclusion does not change because jail requested money damages which are not available under the idea and cannot be awarded at an administrative hearing we have held that this issue is not dispositive because one dollar complaint did not seek money damages exclusively to district courts are empowered to grant relief beyond that requested in three money damages may sometimes be awarded as reimbursement under the idea and it does serve other district courts are other circuit courts and  circuit they serve at the same conclusion has been reached by the th st six in all of it and then on the slippery slope side if if the answer to getting around the idea exhaustion requirement is merely to play damages then fundamentally we've killed the saucer apartment that's always been why we see these five go for claims get brought in with the i d e a that's that's not new  instance just state your opinion on why they haven't played for example me and it's a lot to share in my response is that there's just a fundamental lack of any allegation supporting the elements  liability st off you always wants to see that policy maker present in the in the pleadings in order to get over that st short hurdle of mon el and here under texas law it's it could not be clear that the sole and exclusive policy maker for a school district in the state of texas is its board of trustees the board of trustees is absolutely entirely and wholly absent from any allegation in this record and i haven't read the speculation about will they must have been involved at some point somewhere somehow and even if that had been written in the complaint that way that's not rising obviously beyond the level of speculation necessary to achieve the pleading standards in response to a twe six motion also the lack of a policy here is pretty key so the only policy referenced by my colleague in his argument of nutini ice t is our anti discrimination policy well it would be far fetched to argue that a school district's anti discrimination policy was the moving force behind the alleged discrimination and that's not alleged anyway and then the other side of it is this department of education report which is about t a's i don't i don't know if it stretched all the way to a policy but it was certainly a practice recommendation a school district should attempt to keep their special education population school districts were avoiding their obligation to identify students who may need special education services and to what means that they were doing that instead of identifying somebody for special education in order to stay below that cap was to use other interventions like r t i which is response intervention and section five hundred and four services to identify students who may need accommodations for their disabilities versus modifications to the education program under the i so school districts were using these other mechanisms to get around their id id a child find requirements that a major problem with that i think was tacitly conceded earlier was the new caney honesty is state pretty fundamental flaw in this is that we didn't mess up with child find with christopher mcmillan he was identified for special education services and was receiving them under the i d e report about you messed up on child finds he really really really doesn't have any effect on this particular case and then it begs the question when this so when this report is placed into the record e a procedures and one other thing about that report do you think that's true of the ninety three claim as well absolutely absolutely it's absolutely true for the ninety three claim as well because nine hundred and eighty three when the gravina no that complaint is the same it's the failure to provide if they needs to be exhausted st before you can bring those other subsumed claims it is mentioned a few times in the record and in the opening brief on appeal that the department of education's report has something to do with findings against school districts under section five hundred and four and i just wanted to call attention to the fact that the office of special ed programs which is ween of the department of education that led this investigation into explicitly states in the report we do not have authority to review practices and procedures under section five of four so we're not making findings under five hundred and four about whether a used to get around child five using section five hundred and four accommodations using r t i using limited english proficiency reading difficulties things like that but there is not a finding anywhere in that there was also a reference made in the opening argument here today that if we're taking the only thing outside the only thing that is arguably outside of the faith provision would be this agreement between  the the complaint itself the rd amended complaint itself lists out all sorts of you know wrongs and things that could've should've would have happened but it does say  should have shared the information about christopher mcmillan's disability with the district attorney's office in that so that kind of undercuts the idea that that agreement was done because of the disability because if you have and the claim you can't have in my community to recline i would say it's probably very unlikely just because the board of trustees almost never gets involved with that it's normally in the industry not i assume you could have a complaint absolutely side hope state points in their yes or that they failed to alert the school the authorities that he was a person with a disability as a result of that he spent three days in jail time them going on and the deal was cut what is your predicate to that you plead in the complaint that they knew the da was investigating him where they knew the da had arrested him straight up the ladder to and finally to the principal and he acknowledged he said they have a statutory duty to report threats like that so i think that he said they reported it that's how the police that's how the law enforcement found out they reported it and then pursued it but not me pursued it they were not simply innocent people that were not going to process that we're not going to testify at trial and obviously was you're being entirely what one other issue the issue of damage you want to undo the deal to do with that reinstate the felony charges you want to do undo do i'm seeking damages because of the deal your honor and that takes me to the damages issue all of the cases that were cited in the cases that the rd circuit or perhaps another ago the had done the hearing officer could have issued compensatory damages that's all and that's the magic phrase under this bad law compensatory damages are not what we're seeking we have a young man who was banned from ever again entering a public building because of his disability it's not a fake choice that effects that he didn't face he didn't he wasn't faced with it you can have a say or felling the choice that was made was you're out of here forever to get rid of the felony you're out of here forever my closing remark is it's not a question of whether it was a fair and appropriate education that is a fake picture this is a case of no education none your band you cannot go back ever but my understanding of council offices and asked him a question about the explosion triggering this alternative program at that spartan parcel of the expulsion he said that's not putting him out on the street so that was part of it so how does that if that was offered and part of you know the original complaint how does it get caught up in the deal you're talking of that was with the school district sure because and that's something that the hearing officer could have dealt with if there had been a da e p following through with that or manifestations determination hearing all of that all of that became moot to the family the minute that they were forced inquiry into this deal and it's not rank speculation to suggest to the court that the county attorney was in communication with somebody at the school how else does that occur i would be forced in coerced any more than the plea deals that happen every day that are often put defendants in very difficult situations but are considered to be legitimate agreements well one in this case the deal was based entirely on something that was recently added to his disability and and so the the ban that was placed because of the disability is a legal