student could no longer get back into the us school because there is still the south and intuition but now when you say couldn't get back because it's asked intuition that's yells determination that we won't take you back that is correct that is crap it's that which is why i was right and the school needs to be able to make some decisions in terms of if it has a scholarship there will provide to a particular student's weaving the money here means that they're not going to be able to provide money in another place or they may have to cut services in the form of occupational therapy services or physical therapist situation here it's the reason your client is here is not so much because of the little public expense aspect it's because yale is imposing this requirement is that correct no that's not that's not quite exactly correct i mean they're two issues as to why we're here the st issue is that the denial of free an appropriate public education mean education public extends the ribbon there with definition of feed is a free an appropriate public education at public expense and the purpose of the i d f day when it was passed back in one thousand nine hundred and seventy five was the guarantee children who were qualified who had qualifying disabilities the right to free an appropriate public education meaning in education a public expense because that's time too many children with disabilities were being excluded and under served millions of children one out of five children were being and there's no it is ensuring that the parent has not been burdened with any of the expense isn't that correct there is no contest that the parent has had to pay any out of pocket ok the purpose is of the education that now other than now said that well i said we're going to forbear from any sort of claxon activities but you're right we have not said that but getting young to getting back to your particular point in terms of what this case is about it's about two things the st is and this also fact has been a dry lafitte but for purposes of what's conferring standing upon the art my client my kind of suing over two cents and you may disagree as to whether or not those things wise to buyable cause of action but the point of point of fact is she's suing for two discrete types of injuries the st discrete type of injury is that the student was the knight a free and appropriate education at public expense the court made tonight that in fact that back that back in fact w not but that's what she's suing for and courts around the country have said that that is a valid cause of action where your student does not receive an education at public expense that back in st standing upon a party to spokeo means there has to be a concrete particularized harm caused by the statutory violation and i can certainly gauge with that because i don't think anything about  violation ok so when you look at the statute the i d f way some statutes just by virtue of their violation constitutes a denial of the substantive right it gives it just so happens that the idea is specifically the purpose of the eyes yea is to confer upon individuals ready children with disabilities the right to a free an appropriate public education so it would be one thing if he had been  something that doesn't hurt the educational benefit has not burdened the parent well so the language of the statute says that the education needs to be provided at public expense and there's a reason for that it's not just some throwaway statute the reason why the public expense requirement is importance is because on the way that the scheme was set up was that the fed the taxpayers you me everybody in this courtroom pays taxes to the federal government and the federal government in their infinite wisdom passed a law called the idea and as part of that they said we will give you the state's federal mine to ensure a free and appropriate public education in education at public expense if you take this money but they were going to say and oh by the way there's a cause of action not only in the parents but a cause of action  to sue the state if if there's a problem here there isn't a course of action is what this court this court has already said that there is a cause of action in that for example in the  appropriate education at public expense and we do know that so just simply so with all due respect your honor just simply saying yes occasion was provided is not what congress had in mind it's congress the not have in mind just simply providing the education i didn't congress then say certain cause of action against the state if if there was a glitch this court and courts around the country have inferred the right to a cause of action where the when the charter schools have failed us and the local educational agency and they have no provided some sort of education that there were acquired to provide them the quotes below there is now consensus among among the eastern district  so how when there's something that there has been no education i mean the educate has been provided and there's no out of pocket to the parents how do we then create or justify a cause of action and don't just say because public expense is in the word f a p so so there is a real burden that takes place on the parents and families and children when there's no guarantee that there is going to be public funding for these statute so so i understand i understand what you're saying but it doesn't stretch the student's standing as well in his or her own eyes when all the students contending is that yale has made a decision not to them to come just because of money to school because of the money because the pundits they will take over doing what the student thesis situations this is not the only case a student faces a situation where if there is no public funding that comes into play that avenue is because yale says we don't want to my mind it would make sense for yale to take her money you know and and enroll that the student but it's made the decision we're not going to do that so i mean i don't know how that business decision can be you know the big problem with fate but that's only because the state educational agency and the local educational agency are not funding yet occasion at public alleging something that involves the identification the evaluation the placement or the provision of a for an appropriate public education ok if this court is to read out the interpretation of feet to exclude this notion of at public expense we're going were you like you would be saying that the student doesn't have standing to bring a lawsuit but the fact of the matter is the court the congress in its infinite wisdom decided that the feet definition includes this notion of public expense and to extent that tt's education has not been provided at public expense is an injury different question altogether why was it always waived i know you said we wouldn't have known to make this argument but that's not obvious to me you when the charter school didn't pay you lads that there was a violation of the faith bob legation on why we're hearing this for the st time judgment that's the same argument we're making here well you say the p t is responsible for remedying the denial of faith including honoring all the terms the due process order by the resolution agreement so you're not really saying that it has in fact denied food you're saying it's responsible for correct what we're saying is it's responsible for mediating the denial  feed right we said that below that's what we're saying here but here no here you're saying it has violated faith that's what you're saying here there has been a violation of faith by the p d because it is a pretty thin distinction you know you're saying the charter school violated the right to face and then you're saying he is responsible for the charter schools denial of faith here you're saying you have a cause well in order to preserve that claim up here then yes and your spirit as a united states versus joe says well we're going to concede waiver if the court however takes a more liberal approach and says no you don't argument because there are certain things a stay so for example when we were originally presented with this case we found when the charlene archy's we went to we made the arguments that in order to  compliance with what the court held in charlene are that we would be entitled to have the resolution and agreements honor by p d if cutler couldn't honor it that was that was our position and that was falling on the heels of charley not our and we argued that that was the tribunal to evaluate each elements of the resolution agreements as chairman whether or not that's necessary to secure the student that was something new and while we don't disagree at this point with the standard that the court or in votes  we do disagree with its application and we never had the opportunity to address its application below because that was essentially what ended the decision i mean there were instances where the look what it asked us for supplemental briefing when it had a question regarding particular issue and we submitted that supplemental briefing but it didn't allow us to do that in this case and moreover when the court has looked at the issue of whether or not to excuse weaver the orders me to determine the court specifically looks at is the record below sufficiently developed and is unfair and you prejudiced the other side the record guo is about this is a pure for this is a pure legal issue with stipulated facts there are no new additional facts that we need to go on to the what's have found what's at stake is a students whose father unfortunately was murdered when he was at the age of three who has a mother who lost custody of him and has been in schools that have traditionally failed to provide him an appropriate education he the only education that we know of that both sides agree have been appropriate is the l school and we know with kids with disabilities and we know kids who come from inner city neighborhoods and we know that when there's an intersection between the two when they don't get an appropriate education there are there is the typical direction they go is an adverse outcome and the only thing that could save this right now so what ended up happening was he ended up going to roxborough he was in a series of he got into a series of fights it was a complete disaster he's now at a cyber school to get him out of a situation where he's interacting with  expense that is that public expects yes but he's now missing the children had a social component so he's entirely missing the social component because no school was able to program for social emotional needs with the exception of yeah that's why we i was so c that's the idea but there is no march to wish an burden that is preventing this from happening thank you create please the court i'm sorry i'm from the attorney general's office and as you know i'm representing the department of education and secretary as we see it this appeal explicitly in its brief raises a very narrow circu and self limited issue what was going on in that particular year for the problems going to be when we hit what is fate the financing of it that's going to be the problem the public education computer right well i'm basically they've tried to make that that theory carry the day in this case and we don't feel that that's correct but are you are you standing or the merits book and i was just about to say especially in view of the court's letter although i had already  sufficiently concrete injury in this book you would never you know the the reality is that mr bernie just stood here and said that this child is getting an appropriate education at his current cyber school in any event because keppra is no longer a body says he was missing a very important component of education well then he has the right to seek a whole new administrative process on whether this is an adequate program or not if it's educationally adequate but not adequate in some other respect he's got the he i shouldn't say he but he and his guardian have the right to pursue the matter through the i a review process to request a new i e p to request a reassignment to another location to ask the l e a which i believe would be the philadelphia school district now unless the cyber charter wrinkle changes that but whoever that ellie is must entertain any challenge to the current educational program having said that we understand that the vision she believes that yale was really a good placement for this child and he thrived there st long as he could stay there and she would love for him to go back apparently but the law is as concerned as it is about the education of children provides for a free appropriate public education not a free appropriate public education at the one and only school that the family would like the kid to go to faith can be delivered in multiple settings depending on the details we're standing and that the issue of spoke here was touched upon in the questioning but i thought it would be helpful to remind ourselves of exactly what was said there you must have article thirty six dollars provides that standing requires a concrete injury even in the context of a statutory violation and it also says that a plaintiff does not automatically satisfy the injury in fact requirement whenever a statute grants a person the statutory right and purports to authorize the person to sue the rules the standing rules have been articulated numerous times by this court by the supreme court in lieu han for example as well as spokeo and many times in between when there are concrete injury here because he can't get back into yale no because if he gets a free appropriate a public education wherever he happens to be then his rights are satisfied you say he's getting that at the at the cyber whelp i know you didn't know about the cyber school until a few minutes ago myself but the point is the lawsuit is about faith in th grade he got faith in th grade as our position and that's the only defined public education excuse me we've got a big depending on how we defied fate that's where the whole issue was though do well and whether or not the absence of financial obligation on the part of the parents harm in th grade he got exactly what he wanted and as a matter of fact i noticed this in the summary judgment record and it's not terribly clear but it may be worth mentioning whatever education this young fellow got was not paid in full at yale apparently but that the ledger that we have shows that there were payments from keppra during th grade and an th grade every so often that covered about half the cost even better than half the cost of what was on those bills for those two years in other words public funds flowed from  t s education i had i acknowledge that there was a shortfall but whatever education he got at that time was paid for to the extent that it was paid for at all by public funds but if it hasn't been paid in full then i think it's all that relevant as was pointed out earlier gail is the one who should be concerned about that it doesn't mean the child did not get the free appropriate public education was entitled to if it was if it was a  bureaucratically disrupted by yale excuse me keppra scale your to be able to pay you know all but what he got was publicly funded it wasn't one hundred percent publicly funded evidently but it was publicly funded when you say he got what he was entitle to in th grade it seems like it puts the rabbit in the have on the other side he got a free appropriate education at no cost it wasn't publicly funded or at least not entirely it was it was at no cost to the parent which i submit is as was mentioned earlier one dollar of the key motivators for establishing this law that parents should not be burdened it should be publicly provided and his parent or his guardian rather did not pay for it was not asked to pay for it knowledge is that she didn't and wouldn't and doesn't have to pay but it wasn't public who provided it was provided by the generosity of yale no it was provided by the commonwealth through the federal government through the commonwealth to kappa which paid part of it and a significant part it appears we don't know which dollars went to what but he got his education in th grade and it was publicly funded to that extent what they're essentially trying to to advocate for it seems is that when there is a mess up like this a business problem if if that's what it is an unanticipated when the statute was created possibly but nevertheless a cash flow problem that each the child should be allowed to through the mechanisms of the statute get the state level agency to provide more money than what it already provided under the formula that it has to operate under in administering the statute well the other thing is what does public expense mean if the p t has pa have have brought another dimension to it by asking that question is that p d operates or oversees the special ed all through the commonwealth and in so doing it provided i'm sure although i don't have a piece of paper to point to it provided its grants and so on to the various qualified school districts and l e a's including charter schools and must have in fact provided it to capra if kepler had not received what it was supposed to receive i'm sure there would be awareness of that kemper had its problems whatever they are but it wasn't that p d e didn't give it the funding that it was supposed to over a period of time it wasn't managed well evidently but it was the fact that initial payment has to have been made on each scheduled date or whatever and once that was done p d s obligation to capra was was satisfied now was is there another obligation that p d e olds to each and every child to make sure that the child gets paid i think about then over simplified in the conversation this morning to a certain extent because even under the charley in our line of authority and in fact in the post of case that's no longer at issue if there is a finding that a kid did not get something that the kid was supposed to get by way of spitzer voces or educational programming or whatever and that the charter school goes out of existence and can't provide it but the the violation is one which necessitates compensatory education p d has stepped in and done that but that's not what we're speaks to the fact there is a loophole but seems to me that the the flow of money are the some some way that to prevent the problem of these failing charter schools if there was some way to have the money flow  into a segregated account or something whereby it would go to the ultimate go to situation like yale but obviously that's not what happened and that's not what happened to mike goes to capture and pepper spends it on whatever goes belly well any i think they probably couldn't avoid it he recovered not so easily but i think recovery is another question but the the you remind me of another detail about this record that i don't think has been mentioned but i think is important this lawsuit on behalf of t t has or began with with two separate origins part partly there had been due process hearings about certain issues and certain compensatory education and where the guns would go in which trust would be used and so on none of that is related to the dispute we're hear about today the part that we're concerned about is only about the the coverage available so obligation which was agreed to in a resolution a pre hearing resolution under the alternative dispute resolution process so there was no finding unlike the some of those other issues where there was an administrative finding there was no administrative finding here about the education that was needed there was a voluntary agreement between the family and capra who were the only parties at that stage that yes kept her said in effect we can't handle this child's needs completely we will pay for him to go to a private school and off he went actually he had already started there because the goal was clearly in mind before the resolution session but the the keppra agreed to pay for yale to go and he went and it was he thought he was given the education he needed and kept work paid for part of it as we were discussing didn't end up paying all of it but in th grade there was a contract whereby keppra agreed to make that payment and that and illusion agreed to accept it and there were sort of it like a typical settlement agreement with releases and promises that this is it we are but it's final whether it's works out or not we understand now their blog does allow you to enforce a resolution agreement and cool work but that is not what we're doing here we're going way beyond the resolution agreement and trying to get p d e to do more than it has already done as the state educational agency on the technical side of sanding i guess we put in directly or not it's a matter of public record exactly when money would flow to the school as far as  department of education as to how it works that we would know that in fact pepper was paid i can find out i don't know offhand i know that there's a process a grant process that comes from federal down to state and  and i think what we what we have here is a desire to to do to accomplish what is wanted as a matter of good policy by calling it a statutory cause of action i think that's really going too far you're not pressing the waiver issue i'm precedent in so far as it's in the brief and i feel it's a valid issue but since i don't have time to discuss it any further i feel i must step down unless you have a question what's your strongest i mean we have made exceptions where it is in the public interest where there isn't intertwining if you will i mean if you want to split hairs you can say the complaint really doesn't o d itself violated faith but all the facts are there it's just a matter of the judge beetle stone didn't need to go there because she found that the education was provided and that's all but what's your strongest  reasoning as to why we should find it's been waived i think the problem is that the the if the brought more broadly you express an issue in the case as you can see by looking at how many pages there are in the brief waiver was this a preliminary argument but we certainly didn't rest our entire case on that and we still don't i think though that the the angle that was and the one and only angle there really was developed in this brief about the public expense argument had never been argued before and that that sort of undercuts the idea that it was it was part and parcel of what was released below it really didn't come up thank you thank  you so i just wanted just some things that came up during the course of my my friend's presentation there's a question from judge porter regarding what why we had sued kapur we did sue capra that's part and parcel of the underlying case the fact of matter is that copper has no resources not i represented that the education that the charters at the new charter school cyber charter school was appropriate i do not represents that that's an appropriate education under any circumstances i represent that that is an inappropriate education so i don't want that to be mistaken  we have not filed another lawsuit is about this resources are somewhat or somewhat limited regarding the injury and there is some discussion regarding injury and whether or not the failure to provide pm in a public expense constitutes some form of circumstances the charter school in this case is young scholar kandor ten that ended up going out of business place two students are students at the asco again involving the school and the charter school failed to pay the tuition and as a result the yeltsin was making noises about terminating the students education the well school ended up being peered out of students trust funds but then at some point the yellow school we embarrass those trust fund and so the question was because the parents had not incurred any out of pocket expenses whether or not they were entitled to sue p d to get p d to reimburse for the cost of the education again the argument was solely hundred and fifty two thousand and sixteen school year the charter school and the private school entered into a private contract that placed the children at the private school so this was not b on a due process here in order this is based solely on an agreement between the private school and the charter school and what judge kelly held was that the failure by the charter school to pay for that for the expense was an undue burden on the private school and therefore it wasn't a public expense and it ordered p d s to william births the private school for the costs and i think i thought that that procedural the that's what that case different than this one he went on for a few paragraphs saying look if this had originated out of her a resolution agreement with the release of id it claims like we have here then it would be different but it's not it's a direct contract between the charter school in the private school would so there so there is a direct contract between the private school in the charter school however the release of claims was not not something i mean you're right there's a resolution agreement here and there's a mention of a release of claims but that release  hundred and fifty two thousand and sixteen school year i will i will be given these cases and signed i'm familiar with the facts of the case specifically what ended up happening was the charter school did not pay for the work part of the education at the end of the twenty million one hundred and fifty two thousand and sixteen school year that was goose on a private contract between a charter school in the private school it had nothing to do with the due process here in order which was only a placement from the previous school year students received was not a public expense because yes i was forced to bear the burden of the cops a similar thing happens honestly and i did see versus p d this was another case where two children had been placed by capra again capra placing chil two children at an archdiocese school that educated children with down's syndrome it was our lady our lady of confidence and what ended up happening was again p d is receiving money from from the federal government and it is making efforts not cit and step in when the local educational agency is not providing the funding this is what happens our lady of confidence came in and said well we're not going to be able to continue educating these children if in fact we're not receiving public funding from p d and judge prodi issued an order for a fact to wish it back she wish it so in that case the student had already received the benefits of the education the parent had it at no cost to themselves and judge prodi ordered pedia to step in and fill the void because otherwise there would be educational instability that's not harm that i'm trying to highlight this happens very frequently where you have only aides who contracts with private schools to play students with complex disabilities and what ends up happening for some reason the ohave doesn't end up paying and then who's left holding the bag the private