case number one seven dash six zero zero two i l at all the tennessee department of education or arguments to be fifty minutes precise mr justin scott gilbert for the p gilbert it's morning your honor like to reserve three minutes if that's ok please the court i'm from chattanooga and over the last five years i've devoted a large portion of my practice to representing children with down's syndrome have done that in tennessee kentucky and michigan and what i've been trying to do is ensure that those children particularly the younger ones can be integrated into the regular education classroom because that immers experience helps them learn faster i found two problems over the last five years with helping this population one is that the due process procedures become very adversarial as a child of two lifelong teachers i know that they're underpaid frequently and they feel attacked through the due process procedures and so frequently what needs to be a harmonious relationship between special needs children and their teachers becomes one of friction the solution for the scuse me the second problem with the process procedures is that they're simply too expensive for most parents of children with special needs to afford so the solution to those two problems i believe is this other avenue known as the clear complaint resolution procedure it is a state avenue that doesn't require parents to get an attorney like me it can be done for free you're expensive right just kidding i am sometimes expensive and the complaint resolution procedure is free expensive it's also less adversarial in the sense that it is more collaborative and when you have this population of special needs children particularly kids with intellectual disabilities they often don't have an option to go to private school so it's extremely important that their relationship with the public school remains intact in march and in working with michigan the state review procedures seems that that is working but in tennessee it has not been working mr bill wilson is the associate general counsel and he wrote a letter to my client's education advocate explaining that if you have a matter of placement you have to go through due process they will not consider it under c r p and that's what my case is about is a child with down's syndrome who is seeking placement in her least restrictive environment and so placement doesn't mean a particular school it needs this in in this case that part of the classroom looks too right it doesn't mean a particular school necessarily that's correct at least restrictive environment means the most access to your non disabled peers to the maximum extent appropriate so you may have some pull out education one on one a help like that but it's really trying to get access to your non disabled peers so that you can learn quickly from them in my right to to ask whether or not the the decision making must take into account diminish diminishing benefits to the non disabled children in the classroom if that exists that can be a factor the six circuit cases rocker r o n c k e r and it does look at the benefits to the child in question the child with a disability and also can look at any harm that could come to the non disabled children so it is a factor yes but my mission here his to try to open up the c r p process that is closed and try to get some restitution for iowa's mother for having to pay attorney's fees and go through this very expensive adversary as in tennessee change the procedure in response to the u s department of education inquiry they claim they have the evidence does not show that if you're referring to what they told the us department of education our position is that is absolutely incorrect they told the department of education we are available for substantive complaints the truth of the matter is they are available for procedural complaints only and if a procedural complaint results in a sub violation they may hear that and as we went through discovery our evidence bore bore that out the district court didn't didn't ever reach that but it's not it's not the case that that is open let's say they're part of the this u s department of education it found the tennessee department in compliance in march of two thousand and fifteen right that that was nine months before you filed that's right now what what factual allegations do you have in your complaint that that allegedly shows that the tennessee department is not in complian at the last it actually has a very detailed section about the t d hughie not being in compliance and he says that they will not consider oh if that's what's the facts though i mean that one that based on this letter that you know that the letter that they it shewed earlier before well before your filing suit back in two thousand and fourteen but the it wasn't only the facts not only the letter but the down syndrome community is relatively tight knit community and there were three other parents actually two parents of children down syndrome one a parent of a child with autism who did try to go through c r b i and that was the also prior to march of two thousand fifteen that i can't i can't place off the top of my head those those dates your honor but once we got in the lawsuit we obtain discovery of everything that was actually considered before and after that letter and we could not find any purely substantive complaints that were were so are you asking us to second guess the determination made by the u s to part of education that they say they're in compliance so you're education received some letters much like the sea does and they made a ruling based on that i actually have the evidence i have the people i have the experience i have the statistics i have the wilson laterally i mean my question is is the certification by the u s department of education that they tennessee is in compliance is that it is that or is it not entitled to some deference from us i don't think that would be  deference i think if they had made a like office of special education programs if they had made a a guidance ruling or something that would be entitled some persuasive deference but i would say that their conclusions based proceed under the complaint review process that i did not because i knew it was futile it would have it would have been dead in the water so we went to hell as you say that but little how did you know it be futile because you filed suit after the federal government department said the tennessee department was in compliance because i knew that what bill wilson was saying was in fact correct i had the benefit of speaking to the other mothers who it had that experience and i knew that when joy hassel wrote mr wilson didn't mean what he sat was all before the ten timing here ok the u s department of education in response to the letter that you rely on in the in the other case the u s department of education in september of two thousand and fourte requested that the tennessee department of education clarify their policy and that the tennessee department clarify their policy october of two thousand and fourteen it's that october two thousand fourteen by from tennessee department of education that led to this the approval of the certification by the u s department of education in march two thousand and fifteen whatever the timeframe is tennessee change the policy in october two thousand and fourteen your due process hearing happened a month later in november of two thousand and fourteen and at that time tennessee at least purported to change the policy to do exactly  want them to do and they have done it a month earlier and down the road that was found to be sufficient so i mean why didn't you know why that's hard for me to see why you would attempt to go through the the complaint review part procedure when at least at that time in october of two thousand and fourteen tennessee was changing it the way you want to change i know that i know they didn't i did have well they said they were going to and you can say well they didn't really follow through but i already know how you knew that right right in november when they just changed knocked over i had another case going on with another child down syndrome the l h case in chattanooga and i knew it from that as well but additionally your honor this was a child who was integrated at the time and so i faced a situation of the school wanting to move the child out vs gamble on this c r a p filing if i filed in due process i had ten days under what's known as the stay put provision to keep the child integrated and so the situation i faced was the wilson letter working with another child in chattanooga and gambling on what i knew would not work with c r p or due process to keep this child placed and so i thought i think correctly i will keep the child place through due process i will i will go through that painful process and once i do that i'll take up this issue of the failed c r p and i think that given the circumstances i was under that was the right decision court is aware it asked the parties to brief the issue of whether this claim had been exhausted in the due process hearing and if not why it wasn't under favor they should be under the supreme court decision in fry the court it's the district court found and it's what the state had argued that in fact there is not a private right of action it doesn't seem like the council even wrestles with that action against the state for the state's alleged failure to comply with the procedural safeguards of the idea a this case is really again the opposite side of that same coin which is does a parent have a private right of action to do that and while this this circuit has not ruled on that specific issue other district courts in the circuit have and they have all i believe they have all found but there is no private right of action plaintiffs do point to two other circuits i think the third in the ninth which i found that there is a private right of action but i believe those those decisions or are no longer good law in light of fry fry you have to exhaust it and i think what's important in fry is is not only that conclusion but how they get there and as this court is well aware of the fraud is asian was an appeal from the circuit and in the supreme court in its decision specifically rejected this court's ruling that any claim that the the i d e a covered any claim with an articulable connection to a disabled students education and the supreme court said no paraphrasing but that's too broad the only thing that can be addressed under the idea or decisions that implicate fate are you know i guess i  and i didn't see that it addressed the scope of the i d e a is cause of action that was that dealt with the extent to which the statutes exhaustion requirement applied to seek suits seeking relief under other causes of action that protect disabled children is not the correct rating of high well that was at issue but in getting there the court did say that the only relief you can get under the idea is for the denial  i think it may and i think that that question is probably broader than this court needs to address with this case but i do think that it does call into question whether or not particularly when an se a the state education agency has been sued i think it does call into question whether that is permissible under the idea and it also i think implicates the line of cases that the district court addressed and it's it decision but it's the line of cases addressing congress power under the spending clause and what it can do the district court cited two cases penned hurst and arlington and hearst with a general proposition that when congress conditions are seat of federal funds on a state agency it can place obligations on that agency but those obligations have to be clear and unambiguous and then later the supreme court in arlington actually looked at  issue under the idea and it was whether prevailing parent is entitled to receive expert fees as part of all tell me that i mean after the state department responded to the u yes the answer is yes and just to try to explain or of what complicates this particular case is just the procedural background where i had filed a motion to dismiss on behalf of the state raising various issues  that had not been decided ruled on by the time the dispositive motion deadline but someone hit that so the party's final competing motions for summary judgment and so there is a significant amount of proof in the record but as opposing counsel pointed out the district court didn't get any of that and simply said there's no private right of action so i didn't look at it in the proof having said that the state disputes opposing counsel's characterization of the record and we i submitted a what i felt like was a significant amount of proof showing that the state had been addressing these types of issues both before the time period that that the mother in this case sought to go and after and that the the exact types of issues that she wanted to raise and did in fact raise in due process the state had addressed through we this court doesn't know that i mean that argument isn't really necessary to to the issue at hand which is dismissal and on the basis of no private right that's the first issue the second issue you raise is the alternative argument that they failed to state a claim upon which really can be granted because they never attempted to use this process that had been changed because of all the things we just talked about with opposing counsel isn't that a narrower grounds to decide this case rather than for us to delve into the issue of whether there's a private cause of action and i mean normally we judges look for the narrowest grounds to decide cases we don't go out looking for the broadest grounds to decide cases but isn't isn't your alternative argument a narrower ground for us to do it is your honor it is and you stand by that rule on it we can still affirm on grounds that are raised that not ruled out that it was are right that is correct or that this was so and getting back to the kind of the procedural issue that this case arose from i did raise that specifically in my motion to dismiss there which talks about a party can present a complaint with respect to any matter relating to identification evaluation or educational placement of the child or say at a third circuit that's the third circuit right that's the only case i know of that has confronted the issue of the c r p not being available there are some other cases that talk about once you go through c r p is that the equivalent of exhaustion but the be not in my brief is and the amendments in two thousand and four to the idea of a six fifteen f three f in that was in two thousand and four where it says due process does not affect one's rights under c r p so plainly congress is intending for c r p to be available for parents of children special needs indeed that's why we have substantial regulations spelling that out in terms of narrow issues though provide particular avenues to approach that yeah well i mean you're talking about there's a whole scheme right this is that scheme the question becomes then is does that scheme include and just go ahead and sue them in federal court narrower ground judge griffin the court didn't reach our evidence but what we did request for production we got all of the evidence of what was actually considered that in this c r a p before and after the federal government complaints and we're prepared to show that it is not open and that that letter from mr bill wilson which which is hardly ambiguous i mean it it is says what it says that that is continuing to be the so this is now your argument is the practical answer not the legislative or the statutory right the evidence i'm trying to evidence that it's in practice not being made available right i'm trying to parry with your support can ok but it even if it's true in another case how does it show that you are injured here that you can say well in somebody else's case they didn't comply with what they said they were going to do and therefore they would probably do the same thing in our case but we don't really know that do we well the associate general counsels says that this is not open for nobody says the op he says the opposite he says it jet the district has never got to our evidence but we have a chart of all of that to show that this has not changed so i want to urge that that would not be a good alternative mero ground because our evidence shows you allege any of that in your  complaint i don't know if our complaint said that forth because we got that evidence and discovery we allege that the c r p was closed in our complaint and then based on that we were able to get the the all of the other complaints that had been considered even after our filing i think you're on the times of thank you both for your arguments and it's an interesting case and we will consider it carefully and issue an opinion in due course thank you