good morning i'd like to reserve two minutes you're going to have to keep your voice up good morning if it please the court i am kim sherman representing the appellant lexington mcintyre and at my counsel table is we are here to ask the court to overturn the district court's dismissal should be overturned as an error of law the district court improperly accepted eugene's school districts assertion that provision of accommodations and testing is equivalent to specially designed instruction under the i d e a when it determined that a child lexington macintyre who was never protected by the i d e a in her thirteen years have been roman in eugene school four or five or four i'm sorry five or four correct kind you're seeking damages correct but is the relief you're seeking is that for deprivation of a free and appropriate publication education your honor that's the crux of the and what are you seeking why are you seeking damages for discrimination against ms mcintyre in the provision of her education not good for i d e a violations of not providing specially designed instruction which is different than the discrimination claims under fifty for a case of discrimination in her education correct so what is that i take it the next s cremation education that's a broad statement correct the bright line rule that we would like this court to adopt is that a child who is not eligible under the i d e a is not required to exhaust the provisions of the i d e a bottom line so that question should be asked before the fry two questions grab a man where the court said you have to ask these two questions about children who are supported by the i d e a and also supported by fifty for those two questions are can this child bring this case somewhere else and can an adult in that school system bring the same case before you even get to that question we assert that the st question should be is this child even covered under the i d e a the answer is no then then they have to get to the government no that doesn't make it under as i understand that doesn't make any difference and i'm sorry you have to look at your seeking damages for denial of something right correct so you're saying what you're saying is you're seeking damages because they didn't provide an equal education right they didn't when seeking damages because the school district ignited accommodations that would have allowed ms mcintyre to fully access the education provided to her non disabled peers the fry court even agrees with this interpretation when it said that page seven hundred and fifty four a school's conduct toward a disabled say some refusal to make an accommodation might injure her in ways unrelated to a fate which are addressed in statutes other than the i d e a ok when writing let me to another little different direction so in under the regulations id a regular regulation and believe it provides that special education means to adapt the designed instruction and it takes out of that eligibility any child who requires only really did service the fry court went on to say accommodations are part of that so let me ask you this the education she received was inferior but it was the same level of education as for instance the french class that she was required to accept as her accommodation to avoid mr stay sek was inferior to that of the french class provided to all of her non disabled peers and that's where five hundred and four says you can't do that you can't provide an education to child with a disability that is inferior to your non disabled peers that's why we are in fifty dollars for the education that she received was independent study but it was not specially designed instruction that adapted the curriculum instruction or methodology of the french language instruction what was just less what did the five or four provide for your claim that it provided for extended time in testing and a quiet space for testing those accommodations are available to any person taking an employment exam as an adult and training to the police academy all of those accommodations are provided beyond k parents which is where they've been accurate with much money you say it with the i p a free appropriate public education under id a free appropriate public education means an adapt adapted curriculum instruction or methodology that provides specially designed instruction to a disabled child to allow her to make progress in the in the general education curriculum under five hundred and four dollars and appropriate education is one that is equivalent to the non disabled peers and provides access like accommodations access to that education and it has to be free to the to the parents so that because we live in these acronyms in special education we have faith and faith on both sides of these two different ledges the statutes that start to make people believe it's the same thing but they're not the same thing under five o four if you're not receiving specially designed instruction you are not a child served by i d e a and i d e s explicitly says if the child doesn't require specially designed instruction they are not eligible for a day i keep one other question for you we have a an opinion that came out th circuit has an opinion came out before friday yes where we sort of grappled with this whole area do you think that pain and fry are consistent tours or are they a little bit inconsistent i think that pain and cry both consistently state the same thing that a child served by i p a and five o four has to look the court would look at the relief sought for the child in a case to determine if it belongs in i p a and therefore has to be exhausted or belongs and five before and does not this child was never served by i b a so she is not part of that decision she's the next step in that rule making which is that a child never served by the way only by five before or should not be required to exhaust remedies under i d e a if i may say the remainder of my follow up and the argument from ms sherman that the district argues that the district court appropriately held that the the primary question here using the fright hest is whether the government in plaintiff complaint sought redress for the school district's failure to provide a free appropriate public education this priem court could have made a distinction between five o four faith and id a faith it did not it  what the supreme court says that we must focus on under fry is that whether the government and the plaintiffs suit is something other than the denial of i d s core guarantee of faith in the adequacy of the special education services to your questions about whether or not the comedy sions of lexington macintyre were specific or something that could have been provided outside of a school setting the answer is no these are very specific what i would i what i would indicate to you is i believe that the th circuit addressed this issue in the nelson versus charles city community school district case indicating that type of review of prize to test required a higher level of generality than what is is indicating that school district courts should use and that is what judge russo indicated in her findings recommendations that we you know you're not supposed to extrapolate this further ok so under friday we have to ask well is she really seeking the grabber complaint really she's seeking damages for deprivation or failure to provide free  right correct ok so what were the allegations in the complaint that show that that's really what she's up to yes your honor in the paragraphs forty three and fifty ok forty three in fifty that the legal foundation of both claims as a pledge is that the district failed to make reasonable accommodations a plaintiff needed as a k through twelve student and as a result she was denied an equal education non disabled students and then related to the e t a at at paragraph forty three the district failed to provide reasonable accommodations to ensure she was not educated with non disabled students allowed to interact with non disabled peers and enjoyed the same benefits of their french immersion in international high school programs that her non disabled peers enjoyed how how does that relate to the definition of  content methodology or delivery of instruction so how does paragraph forty three dollars encompass that definition your honor friday indicates that you must look at the entire pleading with which playwright is the master of and so i would also point you to the number of references to the specific accommodations in the complaint for example paragraph sixteen discusses the failure to implement the five hundred and four by the french immersion teacher paragraph seventeen in one thousand discuss the deficiency of this independent study option as does paragraph one thousand and twenty one so taken together they are indicating that this special i's instruction provided for this student who is on a five o four is deficient in resulted in discrimination against plaintiff so let me ask you this what  the five or four require the french teacher to do the if the five hundred and four plan required that the french teacher provide additional time for testing testing in a separate place minimizing the assignments to the core information that's needed in addition to favorable seating preferred seating at the front of the class  the plaintiffs still felt that that was that remedy was inadequate they should have used the due process procedures available under organ in federal law to appear to appeal that at the time the idea here is the prompt resolution of the was in mr stay six class he was failing to implement several of the provisions in there for faith was not provided and so why wouldn't the school that there's some responsibility if they saw this problem and saying hey you know i think we need a faith here you didn't do by taking corrective action regarding mr stay sick and then allowing additional accommodations to ms macintyre to allow her to receive faith and that's that independent study option this is a this case is up before us on a motion to dismiss yes your honor so on the basis that she didn't exhaust administrative remedies yes runner in that she  or what i do even if it was a five or four it just a straight rehabilitation act claim that the conduct some of that conduct did fall within the two years statute of limitations your honor i would disagree with that i think if the claim was filed in may of two thousand and eighteen the primary contact that we're talking about here occurred in two thousand and fifteen and therefore would fall outside the statue of honor to determine whether or not it's obvious that the statue of limitations is run yes and that the conduct of that there are there was conduct related to the graduation proceedings that fell within the statute limitations there was the testing  accommodations that occurred in the fair her senior year that would have fallen within the next actual decision through yes so why wouldn't that be enough to get around the statue limitation assuming that the minority provisional plans well i would have on her offer to allow her to amend the complaint to conform to the findings and recommendations instead of plaintiff standing on her amended complaint then she could have tailored the complaint to just those allegations within statue imitations to make it a simple discrimination complaint and that's not what the government of the complaint is you have to take the entire complaint as a whole you before i start in my rebuttal i would just like to say again the bright line rule is if a child is not served by the i d e a they are not beholden to the exhaustion requirements of the i d e a quite correct you have to read for i very carefully if they if the child had sought protection under the i d e a or was served under the id a fry the child and fry was served by both i eligibility was not served by an i e p which is the defining piece of the i d e a legislation if she's not an id able to handle she shouldn't be under the statute you can't bring in you can later on bring the complaint for damages for failure to provide the special education program to a child without exhausting without having exhausted your administrative remedies under i your own if during the time of the kids education the child's education she never sought and i e p under i d e a correct and we never sought that protection we only sought the protection of was inferior to her peers we sought redress on that for the emotional harms and distress of that whole th and th grade situation ok we ask that the court overturn the dismissal and remand tooth district court thank you thank you counsel the matter submitted