in this case f h and sound are all this case is about the psychological the physical the sexual abuse of a child was terrible policy at the hands of a school district for a period of years in this case either the relief stand the the relief available under idea either under the relief center standard now of pain or of the injury centered standard of se at this court which we light particularly on rob which has now been overruled by pain this child in this situation there was no relief available under id in fact a district court there particularly in this case by focusing on facts  as education issues rather than issues that are related to the injuries the psychological physical and sexual abuse of the child and i guess in your honor in saying it now i would i would say in that with the over rule  and pain it's going toward a lowering lessening number of circuits are holding that the union seems correct is focusing more on the relief center because of the clarity of that and some other things but moving on under section twenty c fourteen fifteen l the clear language of the statute and the statute in this case is a statute and that particular language and that's the focus is on a construction it's a rule of constructions for that statute in the first part of statute says specifically that nothing in the chapter shall be construed to restrict the rights limits procedures a remedy under the constitution the a b a or the rehabilitation act or of federal laws protecting rights of children except and this is the exception except when a civil action under these laws is seeking relief that is also available under this chapter in other words the assumption the premise in this rule of construction specific to that law is that you have a right to file under the constitution of the united states that you have a right under the a b a in the rehabilitation that the first bring those independent actions and after that the exception not the rule the exception is exhaustion and the exception the looking at the rights and relief it would be helpful to focus on what you're asking for and then try to try to think were these things that were covered by the agreement or are these things that have happened after the agreement first of all the purpose of the idea itself is to ensure that all children disabilities have available to them a free appropriate for education that emphasizes special education and services to meet their unique needs services defined by id related services or to include quote unquote transportation and such development of corrective and supportive services as may be requested to assist the child with a disability to benefit from the special education and to include early identification and assessment of the same conditions so for asking for the court to find that in this particular case under these facts particularly with the sexual abuse that this is under the injury standard in tennessee that that is not something that there is relief or under the idea and therefore they should be able to move agreement this was something in there there are a number of this this case there is a before and after and certainly a result of this agreement and there was ten years before that and then it was some three years after this occurred after it occurred in a private bathroom with an aide on multiple occasions after the well let me ask you about that because it's an interesting a complaint maybe a misunderstanding but i mean first of all you haven't sued the guy who did that you've sued the schools so now you're you've got to show failure to supervise and you know all that kind of stuff and i read your complaint only to allege one instance of this in the guy got fired because he did it to some other people too well so have i aren't you in there are a lot of facts in this case that i was covering something some very long period of time with in the facts and i think is a court to reason with additional court might reason to look in there and pick out certain things and yet there is some confusion to it in the education nature but the point is i pled if you review the complaint to in its entirety at the end during the facts i didn't plead particularly the sexual abuse it's a little bit later in there i think paragraph seventy or somewhere in the back but i pled that it's in the complaint this is a motion to dismiss all have to do is plead that it's considered you plead an incident in february ninth two thousand and twelve as minor standing and then in paragraph ninety seven you go on to say he was fired ok that was fired but if we go this is a section nine hundred eighty three it's against the school district i do have to prove as you pointed out a policy or a custom habit something of that nature i have to show they act under state law under color of law and it is a difficult road to go now i modeled this after sagan in the middle period of time here he had six or seven one from one where they had independent some of them were direct employees some of them were independent contractors what i saw as a pattern of practice in a custom this was a problem with the whole wide school district this is a problem that beyond the possible policies we could dig out from doing discovery to clearly what i thought was a custom going through and actually filing a claim against twenty different people in each individual thing was in a sense it's a strategic move that we're focusing on the school district in the hundred eighty three and we're looking at this as a systematic problem a system our problem that was not addressed that was brought to the principal the superintendent the school board and beyond and this is something that we felt over years and years of being ignored and it was serious and substantial and it was something that i think we saw as a little bit bigger than just the one bathroom incident but then incidents important because there are specific cases in tennessee which say that this is really can be taught under idea except for sexual supervise thereby allowing the aides to do sexual abuse over a period of time and you have certain incidents listed as failure supervising then maybe negligent hiring and and other kinds of responsibility on the part of the school the public and in their hiring and retention of people who are engaging in these kinds of activities and so your claim is then that this is outside the id yes your honor this is not relief that can be provided by the id does ministry exhaustion is appropriate and is not appropriate is not appropriate and your client has graduated from high school so he's not and he's no longer receiving any services now in fact he graduated from high school he's nineteen and he has a regular education degree we're not seeking educational seeking money damages retrospective damages correct oh yes well let me say i mean first of all i'm very sympathetic to your argument about a relief base but we just can't do it in this case in one in so we have to take an injury based  and you for this complaint was filed when your client was still a student at the high school yes and if it's an injury based and we have press in that says the fact that you saw only money damages does not mean that you don't have to exhaust and i mean isn't it fair to say that there were potential remedies available to your client under idea at the time you filed the complaint prospect of remedies that you chose not to invoke and i don't blame you for not using them but i mean doesn't the fact that there were potential remedies available at the he filed the complaint under idea i mean under our precedent that you had to exhausting go see you know go through a process and see if that can resolve the claims or not no it's not been not not that i'm asking if i were you i just look at pain because addresses that head on brings up that issue let's talk about six circuit cases not nice and well the thing is we're looking i'm looking directly at one of my asking you to do is look at the original language and idea itself  statute itself to look at the definition of related services and to look are described starts off with transportation and also other things like can help a child benefit special education when you're being beaten when you're being sexually abused when you know all this you don't write this is going to fix your education and just because you're sustain an unconstitutional beating doesn't mean you're not going to get all three of that but this is something that clearly is not designed this is not a shield to remedy in liability idea it was never intended to be a shoot a liability to the school districts and this is what i'm arguing today don't let it be one the morning your own morning christopher campbell representing the method city school district police what used to be to memphis city school district is now to be county board of education and the legacy is memphis city schools  think you pointed that the right thing here what we're talking about in this case and what we're asking for is for the court to affirm the decisions that were made a first by the magistrate judge and then secondly and most importantly by the district court judge what the district court judge did and what they were faced with as a situation and i think plaintiffs counsel appellate repeatedly met in fact and asked a court and met in those days that were factual allegations of this their allegations that's all they are at this point which is important because when you look at the way and what the intent is there are some will hard that must take place here at the post let's talk hypothetically suppose that someone is getting i d e a services because of a disability and suppose that that person has an ad and that the aide takes a baseball bat and beat the student with a baseball bat why on earth should there be  exhaustion requirement under the idea when a regular student could file suit claiming fair to supervise negligent training etc the no liability well i think under that circumstance is this your honor has freeze over right hypo what you're looking at the it is a situation that is clearly outside of i d e a what plaintiff has a lay it's here are not matters that is clearly factual basis for that if we want to i mean hyper well i mean he's he's pled it that's probably sex right i mean he pled on a particular instance that the eight exposed himself to his client we take that is true at this point in the case and if we were to take it is true at this point in time you know i think what we're dealing with a situation where if we go through the zoloft this process that set up there will be a factual basis to look because i see but you know what i mean we have one nine hundred eighty three cases all day long where we don't generate some administrative record i mean we can handle that so why is why do we need i mean what are they going to resolve in the baseball bat case what are they going said were these things would take place in the bathroom and i think the way they catch it they lead to educational setbacks if what we look at what the court has done plaintiff's case was dismissed without to federal court and the air to try this during the resolution session i mean under grace of the complaint there's ten years of terrible abuse they go or they have their  process they be commenced that they go to a resolution session they sit down with the school district they they reach this agreement and then they say for three years later i mean three years afterwards the greens being breached left and intent of it was to prevent adversarial proceeding and why it does not necessarily prove better for whose benefit for both parties been a fit because the intent of idea was not to create a case if you have brought a case and you have to go through the process of dealing with those initial hurdles before you bring your claim and importantly here getting back to church which question is we had an agreement in place and the court looked at the agreement what did the cover well they groom it say if for those things said took place between two thousand and two and the signing of the agreement which was april ninth  believe two thousand and twelve well those things they themselves and the court always enforces contract based on how the parties reach them in saying that they agree to waive or release those cl honor so they're looking at the exhibit one to the complaint which is the compromise and release agreement that says the purpose of this agreement is to fully and finally settle and resolve all educational claims agreement before me but again i think the basis of what's happened here and sometimes there's an overlap when we're talking about there's an overlap because for instance i've seen case for someone say i've been abused because of a particular discipline or something to that effect or there's an overlap so you have to go back and look at the graph i'm in what they're asking for and i think the court has pointed out that this circuit has adopted the injury standard and looking at it from that perspective if we go back can id a remedy plaintiff asked for yes plaintiff said there were some problems with the cystic technology that it wasn't being offered where if you go through id a process then maybe those things can be remedied through the process and it would be futile to do that and i think judge moore you earlier technology has to do with things that help somebody learn that's right and with respect to the assistants and this is where that that alleged sexual assault come in were respect to the system no they weren't given proper training as to well you don't use the restroom in front of the the young man you  know but it's not sexual but it doesn't work for alleged here but i think that's what their allegations go to your own and that's what they are we know that well we don't and i think that's what we have to go back to the factual findings and go through that process actually firing well the factual findings that you would get if we were to go back in allow the administrative judges who are better trained to know whether these things fit within not a good are you to judge  well i mean if somebody else is better for it than we are well i'm not saying benefit to see if these teens are within the educational standpoint better for the child under a da and i think that's the same thing in the sixth circuit  that what we want to do is allow not asking for any educational changes is to will well in promoting damages for violation of civil rights seems to be pretty simple anyone and does it go to a certain age it is for those who have disabilities and those who fall within the spectrum and does it stop at a certain age or does it go into it stops at age twenty one but again i think you also claims and then for whatever reason good or bad so you know what there are some sexual allegations here because we don't like the way certain things to actual allegations are post agreement or a post agreement the allegations in contract law might call ridges of the settlement agreement failure of consideration there for that agreement waiving those ten years  that's the allegation that's w followed by your client if what what more do plaintiff have to do i think they have to follow the statue your honor if they reach an agreement again we're talking about an agreement that was reach outside said that there is an exhaustion crime requirement for this breach of contract claim let me ask you this if we assume that the agreement was quote reached during the resolution session i know you disagree with that but hypothetically if we say yes the agreement was reached during the hype resolution session isn't it true that there for now we have a staff tory provision that says this agreements enforceable in a district court of the united states and and so that on its face would seem to allow them to go to a district court of the united states and seek to enforce the agreement but your position is that before they can do that they have to go through an exhaustion process my question for you is where where if anywhere in the statute do you find support for the idea that they cannot come to the district court without exhaust i do not fall under that statute you on another is this just like some kind of common law or making up here and my concern is they have a statutory basis for what they want to do it seems like the district court had not for imposing an exhausting requirement on a breach of contract claim per contract reached during a resolution session and i want to give you a chance to respond explain how the district somehow correct i think if we look at the case of se versus grant county board of education says that california case this is a six circuit case ok and in that case there was a situation where young lady there was some issues involving medication that she received and i think what the young lady did is took the medication and gave it to someone else and then there was a lawsuit that ensued from the parents because the child had been arrested it got in recess and so and so for what the court says that six circuit said well as well i know you have this five zero four claim in there and you claim that she was discriminated someway because of  you know her disability or whatever so for what they say it is in allow was for the court to be able to dismissed a case without prejudice because they said that it's not clear what happened below so the case was dismissed without prejudice which is the same that's happened here planted there is not action fourteen fifteen case was involved in that yes it was i'm sorry is that were they seeking to enforce a settlement agreement described in section fifteen fourteen now in their case they weren't seeking the force of settlement agreement what i'm saying if using that same print mr right which if i understood you on this question if if you take the premise that there is an agreement and that agreement occurred within the resolution session right could the matter them proceed to federal court because what it what they have or that was that premise present in the case that you're talking about yes but it wasn't all it was court said i'm looking at this complaint and what i'm seeing is a bunch of things that appear to be related to educational deficiencies and what you believe that are these teens lead to educational setbacks if they in fact lead to educational set bands then i don't have a record to support what you're asking for i'm going to see in a bag is dismissed without prejudice which is what's happened here infective lead plaintiff has not if they're trying to bring up all these claims that they say they release then we got statutory arguments in and so for there and that's why i said they're fair you're saying broadly that they can bring their claim american dream bring any claim you want but the queen's won't be successful we those that are barred by the will of the patients i think they could bring the ones that are within the statute which some of the wires that they brought after the agreement was signed possibly would meet the muster but what they've done who could reach an agreement with their fingers crossed when they breached all those claims that were subject much i want to help answer the question about the contract claim first of all they stipulated to the very section that they're arguing about right now much like the contract claim you're discussing in the previous case the parties stipulated that the agreement  a change there's no question they saw it in judge turner based on home life client describe what they did with that several agreement what you went back to school district i think someone's put their hands on the back and cross their fingers because there was no honor of the contract from the get go it was brought down through and this is something and in my facts i probably have it but it was not on a number to sexual abuse is in no way educational or pedagogical i see no case that is found out and i think any argument and i don't know that the  find that this contract that the district court erred in never even looking at the contract because you know why that is in part the district court made an assumption that the parties had actually dismissed their case in due process and then came to a private settlement agreement afterwards if you go by that assumption and then you apply this then yes private sort of agreements have been found by no court to have any jurisdiction in state or federal court or one that comes to a resolution so it was agreed to stipulated by the parties themselves does and i think that that he was dismissed so it was dismissed ok but what will happen in discovery or find out is that person was transferred somewhere else they want to mediately fired after the incident took another incident or two other incident this is a system wide problem with this school district will be submitted with the court called the next case