claim that defend it dina holder's completely failed to provide any of the combinations necessary for these children to overcome their disability and that as a result she deprive them of meaningful access to education counsel me i ask you under the a d a s generally there is a request for an accommodation a specific request for an accommodation of individual education plan if there was a recognition by the district that they were disabled and required specific accommodations that were individual to each of those children  opening brief we describe the types of accommodations that are necessary for children with these disabilities i guess what i'm having some difficulty with is how  requested accommodations were communicated to the district other than through the i i you know we don't have in the record going back to the beginning of the of these kids involvements but i mean you would have to go back to all of them probably received were you know the district would have been notified that these were kids who required special accommodations and this would have been because they were provid services in preschool which is something that non disabled kids do not receive that kind of services at all from the district and so i can't point you in the record where specifically here they were put on notice by the ips themselves constitute an acknowledgment by the district that each of these kids do require special accommodations i'm just i'm still just kind of trying to understand why this doesn't fall within the i d e a d n as opposed to the a b a if you're relying upon the notification that was given a special education needs and then the development of an that how do you get outside the rubric of the i d e a well there's a number of reasons first off that the cloak the evidence that there was an unhealthy environment and that there was verbal and physical abuse in the classroom is something that takes it outside of the i d e a in other words a hostile environment claim or claim of i dressing the a d f first off we we believe that that the court should recognize a hostile environment claim under the eighty eight and the rehab rehabilitation act and that's number one number two  the and the evidence is is it is very substantial of that the district itself recognize that the teacher was creating an unhealthy environment for children that it was intimidating and that it was inappropriate and the children were acting out of fear but don't hold back that would obviously would interfere with the ability to access education you've got a very bad teacher here i mean no one is no one is praising her for abilities the question of whether you really measure up to the eighty eight but you need to prove in intentional discrimination she was bad but what do you prove intentional deliberate indifference where you lost me you see either intentionally or not if it's if it's delivered indifference where is the intent issue well there isn't it your honor it's an it's the intent involves the understanding by the defendant that there is a need for an accommodation or that their actions are taking will discriminate against the person and then intentionally going forward in doing that act but the standard so that it's all the intent is the in in the intentionally yes you're on that hello yes your honor can i ask you how do we know that the hostile educational environment was on the basis of the student's disabilities well first off your honor  the most obviously they were assigned to this classroom because of their disability and there was testimony ok but let's assume that this teacher had taught both disabled and non disabled students and acted in the same trying to say that if a teacher is a bad teacher right because they just are verbal abusive maybe physically abusive to their kids but it's not because of the fact that the kids are disabled they treat all kids to say back non disabled the same work you would agree that you have kids was on the basis of ok well first of all they were assigned to this classroom because of their disability and the testimony is that there was no doubt that these conditions are not exist in any other classroom and were not faced by non disabled students on th yes this teacher taught non disabled kids no no no i'm what i'm saying is that her classroom was so was consistent only disabled but you have to show that her treatment of these kids in creating a hostile educational environment was on the basis of their being disabled right and so i'm saying if you don't have the kind of control group evidence that i'm positing what do you have that shows in fact that this is she was only treating these kids this way because they were  back and just tell me if i'm wrong i got the sense that she or her behavior was caused by the kids not being cooperative not following directions and the like non disabled kids obviously can engage in that exact same behavior and so if she would have responded the same way to them then again i don't see how you have a claim under under the statute but there's a difference in that you know and that was pointed out by the school psychologist and the court below in correctly said that this was hearsay when you put if you look at the record it page one twenty eight to one twenty nine it's clear it's based on our own observations and that is that the kids were not responding because of processing issues that they had because of their disability and that was what she was responding to the same thing was reported at page twelve forty six there are the kinds of behaviors that the kids are exhibiting are not unique to kids with disabilities other kids could engage in the same kind i mean not exactly but i'm just saying in terms of the response that it's provoking from the teacher so it's it would be different of course if the teacher were engaged in gauging verbal abuse of conduct toward the kids that single them out you know said something condescending or or criticizing them because of their disability that's easy right as an easy case but i'm saying here it seems to me the  that the teachers and gauging in is kind of generic in the sense that it could just as well have been applied against non disabled students and so i'm at a loss to see how you've met the showing that you need to make here right well i all  i can do is refer to the arguments we've made in the brief your honor and i think it i i think that in addition to whether or not this is a free standing hostile environment kline certainly the conduct goes to the denial of meaningful access because the testimony is very strong that the unhealthy environment that the district itself recognizes had a detrimental effect on these kids ability to learn and that was conditions then that exist in the classrooms of non disabled kids and so and so that so you know we are talking about verbal and physical abuse which is the type of behavior which could occur outside of a classroom and involve adults in addition the claim arises under the rehabilitation act in the claim is that all the children in the classroom were deprived of meaningful access because of their conduct so this is not the type of case that would be raised in an individual due process hearing and the i'd look at it i mean just use justice kagan's example what did she have the one about could it be brought against the library or something i can't remember how she put put it but you know what you're complaining about is access to the very thing that's covered by the f so i don't see how that gets you around from the right again i would point to the cases that we mention that distinguish between faith under the rehab act and faith under the u show conversation yes your honor that you have to show solely by reason of yesterday and that goes to focusing upon holder why she allegedly abusing these kids so can i just ask you i don't know kind of a common sense question nobody here would defend the conduct of this teacher and i'm sure you're as horrified as anyone at the experience that these kids had to go through but doesn't it seem odd to you that with conduct this egregious that i mean you're taking the position that basically these parents have no they're not entitled to any relief notwithstanding the fact that their kids undeniably suffered at the hands of this this teacher i just something kind of gnaws at my gut at that the position that you're you're defending her right and understandably so your honor and i think that the well first picking up on what you said earlier by reason of soley by reason and if those are the standard under the a da the section five zero four but there's a more fundamental problem and it goes to your concern and it is what the evidence showed that this teacher actually did to these specific students and what chief judge hamilton held in this case is that these five particular students didn't present any evidence that they were ever abused and i'd like to back up a second because i think that there's an provide some context for this case it's lost and appellants opening brief and i think it was very important to judge hamilton's decision and that is the fact that it's undisputed that that that it was reported to the school district at the end of the two thousand and ten school year that holder was seen kicking a student the district immediately investigated that incident severely reprimanded miss holder and implemented a multitude of measures to ensure the safety of its students and hold was eventually criminally prosecuted and lost her job but the main point about this is that the attorneys in this clip case filed suit on behalf of that student and the district settled over over those claims the same attorneys then went and gathered up a group of another eight students that were formally in holder's class and again filed suit against the district and the district again settled that settled lawsuit thinking it would be the end of it that brings us to this case the same attorneys then when it gathered up a group of another six students  including the five minor appellants at issue here and sued the school district based on the allegations from the previous two lawsuits and judge hamilton said wait a second you can't prove intentional discrimination and in the beginning of the case they were alleged excessive force under one thousand nine hundred three and even at that stage she said you have an alleged violation of a constitutional right based on abuse of other students and then when you got to the summary judgment stage she repeatedly asked plaintiffs to provide evidence that they were ever mistreated and they could not produce the evidence well that they were not maybe with the exception of the one child who had i think like a mark on his arm or something that they weren't the subject of direct physical abuse by the teacher but they i guess what i'm getting at is that we have the reports from the psychologists who i just don't see how you're you could defend the notion that somehow they didn't suffer from as a result of being in this teacher's classroom right so there's agree just conduct on the teacher's part documented harm to these kids these kids not forget about the kids in the other case to these kids i can't remember how severe the decline was but there's definitely a significant downward trajectory that nobody or are you disputing that it was connected to this is yeah absolutely your honor and i think the reason is because if you look at the expert declarations which by the way we would contest the fact that there that they were deemed admissible but if you look at those they don't i think it's dr pantaleone she didn't even interview any of these kids and the the important point to note is that  the interview that was conducted of all these other children that were identified children that were interviewed is that they they weren't in the same time for these allegations don't come in the same time period and that's what's also lost and  we tried to point out in our brief the time frame is very important there was only one minor plaintiff in this case that was actually in holder's class during the two thousand and nine two thousand school year during the failing incident and he he was one of the verbal students and he testified during deposition holder didn't do anything didn't do anything to me so briefly your honors i'd like to move to deval unless unless the court has any further questions on the facts of the case i'd like to have you leave room for the state claim yes certainly your honor i know that i can't counsel for miss holder is going to address that exclusively i think but if you'd also like me to address that i will as well you know i just want to know who i'm talking to so there there's three points that i'd like to make about the ball because it's on the face of it judge reinhardt said respond it's very hard ball and this court is tasked with determining what did  what a dead right heart i mean when he said that and i think the first point actually relates back to the evidence and even assuming that the appellant's interpretation of all is correct if there is no evidence in this case that these children were ever mistreated how can there be responded to and respond to that spirit or like the lady on the second point is more of a legal point and that is that you have to take judge reinhart statement in the context of the entire decision and intentional intentional discrimination and the failure of the district to act on that discrimination  the main reason why not is because they haven't produced any evidence that this teacher ever did anything bad to these particular kids and so there can be no response yet speer your liability if there's no evidence of abuse or intentional discrimination but returning to the legal analysis so duvall first actually quotes justice o'connor from city you can read harris in defining deliberate indifference and there are the court states deliber indifference acquires both some form of notice and the opportunity to conform to statutory statutory dictates i would remind the court the deliberate deliberate indifference is a very high standard it is more than gross negligence it requires a showing of a deliberate choice on behalf of the administrators not to take action and then finally i think the most important point about to all your honors is that both in the statements preceding the responding it's pure your language and in the statements by judge judge reinhart after the respond as per your language he is very careful to focus on the fact that the defendants in that case actually had the authority to grant the accommodations i guess in some what did judge reinhart mean when he said rip was responding at spirit your and do all and it is what he was saying was that yes a school district can be liable under five zero for based on the acts of its employees there's two major circuit cases that have been cited by both parties on this case the appellants have asked the court to look at the fifth circuit's decision in delano pile and we have asked the court to look at the eleventh circuit is more recent a decision at least for indian indian river and i would simply state that lisa is the better reason and if you look at both of those cases  late stage of the game decided it is going to excuse them from complying with the california court tort claims act there are two main points i want to address that were raised in the appellants reply brief first one focusing on the case singleton versus wolf that was cited regarding this issue of whether i can even argue the timing of the alleged abuse and whether it occurred prejean or first two thousand  thirty minute complaint i should start with the second first the district judge appeared to think that there has been no touching between these toes and mc and g ornery and so therefore there is no claim that wasn't the district court wrong there constructive touching is sufficient that certainly was your honor i think you're referencing the cases cited by playing as counsel dealing with penal actions and i would concede that the there are cases where if a perpetrator is encouraging verbal e or otherwise some a child to touch themselves that may give rise to liability the point is here as with respect to mr holder they don't even produce evidence of that the only evidence about ms holder being even in the room is given by and g s father and he says that she's not in the circle there's no evidence that she's  or encouraging in any way she explains to him how they are to painting their toes different colors to see if they'll get different responses from his child as he bumps on the floor and attempts to get some type of sexual  she knew what was going on and claimed that it was part of their scientific play they have clearly those women were doing that they were playing games with this kid but isn't that sufficient to get to by the by the there had to be some physical touching when we know constructive touching is sufficient it's really not your honor because intent is a specific element of that penal code section that they're citing under three three forty point one that would intend to do what intent of miss holder to cause the child to have a sexual reaction there's no evidence of that in the record there's no evidence that she did not know that they're painting their toes nails differently and trying to get a different reaction from the child and that's the key here is that true or not yes there's no evidence that shows ms holder intended for those other individuals in the classroom the aides to that those aides were then doing what they did with their toes is reverenced there's evidence from the father that he talked to miss holder and she explained how they're doing this and sort of a scientific isn't have sufficient evidence that she knew what was going on and that it was some sort of a game but she had it developed into a some scientific test even if she knew even if that were on the record no record from the husband that still doesn't establish that she has the specific intent to cause the boy to have a sexual gratification in evidence there is no evidence there is no evidence on the issue of her intent that's absolutely not and i think what appellants would ask you to do is make an inference on that issue and i don't think that's a fair inference to make it certainly wouldn't be fair in the criminal court of law which is exactly the type of p p l statute citing i don't think anyone would argue that you could go into a jury in a criminal court and suggest that a defendant or prosecutor has met the element of intent simply by saying well she knew they were painting their toenails and trying to to conduct out of a child see that that's the difference you're on before you're talking about a different reaction now you're suggesting that the record indicates that she intended that they intended to cause a different sexual reaction there is definitely no evidence in the record of that no evidence there was nothing sexual going on there is no evidence that ms holder told mr g i'll call him the father that i knew they were trying to get a different sexual reaction oh no she isn't going to admit all that but but it is it seems to me that there's a reasonable inference that if she knew this was being changing colors in order to get a different sexual reaction that that's sufficient at least to get past the beginning of the case i don't think it is wrong and wires first of all the claim against miscarriage i'm sorry against m holder the claims against miss holder have to meet the standard in the california is the see a versus william s hard case that's a california supreme court case and that cases dealing with issues where somebody else in a school has caught as sexually abusing a child that's exactly what we're talking about here mr holder is not the one that's right so so in order under ca where she was not one directly doing correct and that's and that was the case in ca and in that case the court said you've got to be a supervisor or a school administrator here we have no evidence of miss holder being either a the aide supervisor supervisor their supervisors a principal of the school or be an administrator of the school mr holder is a teacher she not administrator so under that the framework provided in the by the california supreme court case in these in a real sexual abuse case because i would submit to you this is not and i think a plain reading of the complaint will illustrate that hammer judge hamilton felt the same way but even if it were a sexual abuse case ms holder cannot be liable under any of these state statutes arming the state claims unless she's the supervisor or an administrator she is neither there is no evidence that she's the supervisor of aides in her classroom or do you mean these age who are sitting there and she has no on their age seeing or aiding her in her work and she has no control over them absolutely your honor a supervisor in the in the school is very defined position she has no ability to hire and fire she has no ability to do evaluations all those things are done by a school administrator a principal in this case c you can feed that this claim with timely under state law no absolutely not your honor i think that the evidence that we cited from the mother's testimony that's at the in the record at three seventy five to three seventy seven on equivocally shows that this conduct that's being complained about the only direct evidence the only evidence that this even occurred comes from the father and the father tells the mother as evidenced in as i just said in the record that this happens before christmas in two thousand and eight if that's the case then and it is there's no other evidence that you're going to find in the record other than  attempt to have the court infer that it continued without any evidence on that issue if it happens before christmas two thousand and eight it is before january first two thousand and nine cut off a tort claim is required if that raised in a district court it was your honor i'm glad you asked that because it was brought up in the reply brief and i would direct your honor to the the record at two forty two three fifty six three seventy five three seventy six the issue wasn't directly raised by the district or ms holder in their opening motion for summary judgment brief because it wasn't an issue in the case it wasn't alleged in the complaint and so of course the defendants couldn't address it in their opening brief it ends up getting briefed by the appellants themselves in their opposition they actually provide the evidence and that's the key it's not the argument that's the issue under singleton it's the evidence the the appellants had the opportunity took the opportunity at those sites that i just referenced to provide the district court judge with the evidence on this specific issue the  balance raised the issue on appeal and then in reply the defendants also at e r five sixty two through five sixty three and four zero five three four twenty two both in their reply brief and in their supplemental brief address this issue head on and i so i think the issue was clearly before the judge in terms of the timing the evidence the specific evidence i was referring to with regard to the mother's testimony that was cited by and provided to the district court by a palance themselves so for appellants to now stand up and say hey we need to get a chance to address this issue provide evidence to the court on this issue i think la any semblance of truth because they're the ones who actually brought the issue i think the first question was who was raised to the district judge not whether it was raised in the record yes i would have it yes it would be your issue to rader's own absolutely or aren't and it was raised that's why i'm saying it was raised to just record judge by the appellants in their opposition you have to race if they can't raise your issues that the i think singleton actually says that it's not the issue that needs to be raised to this district court judge it's the evidence itself event how could and i guess i would submit to your honor's how could the defendants raise the issue if in looking at the third amended complaint the issue is not there there's no claim under three forty point one there's no claim for childhood sexual abuse there run of the mill state claims and so the evidence because the appellant's actually had the benefit of knowing it was an issue they raised in the opposition and that evidence that they cited went right before the district court judge that the dischord judge actually took supplemental briefing on that issue it was clearly an issue that the judge considered and that appellant's had ample opportunity to brief they did in their opposition they did in the case the argument was not raised below the issue is not whether or not who's going to be liable for these claims of sexual abuse the issue is whether or not the case is  exempt from the claim filing requirement and whoever is responsible from the district for the sexual abuse doesn't matter on the question of who the claim filing requirements exam for the reasons that that we briefed the issue of whether or not there is it's necessary to show that the abuse was the result or or caused of or because of a disability doesn't matter if we're talking about a denial of access to education and the defendants have not denied that ms holder was deliberately indifferent both in the manner in her abusive conduct and in her failure to provide meaningful take a position that the claim was exempt from the requirement that a tort claim be raul but in order to be exempt it had to have occurred after after the two thousand and nine and we do contest what evidence are you relying upon in the record to refute the evidence relayed by opposing counsel of the father's representation that these advance occurred before christmas two thousand and eight the it's covered in our reply brief on just tell me but basically the testimony was that the aides told them that this was occurring on a regular basis and throughout the time it's an issue of law that the timing this is an issue of law that we can decide well i guess i would refer to the single thing singleton case but i do believe that and that the evidence that cited in the reply member