g j i respectfully request to reserve four minutes of time for about oh ok thank you now proceed to thank you saw and g j as a student with multiple disabilities including autism spectrum disorder and intellectual judge karen lee called the model response rights are in there is the key word that was a model one could certainly argue anything to suggest that it went above and beyond what the law required them to do in the case right correct and i would agree with judge kearney and i think there was language that said they could not have done more i would argue in this case philadelphia cannot have done less i don't really think they did anything at all you know judge kearney cites to the march incident right so the incident that preceded the in the classroom right that's the extent of what they claim to have done but we believe that it was really a give way to separate but also it said we're going to separate the students in the class we're going to keep notations regarding activities to share with the mother and we're going to notify the art teacher not sure why that was a consequence maybe because that was that they moved to i don't know and even though the teacher said she had a different view of what occurred and the student was gave her account to get attention we feel because on the school's reaction and they did react and eleven months passed before something else happened and after that a nd event the school put in a safety plan called the special victims unit of the it's how we respond to the knowledge that shows whether there's deliberate indifference or what knowledge of the st to knowledge that their sexual her something is occurring that something something of a sexual nature is occurring between the students it's not it's a question is based on that of this happened judge kearney excepted this document is true we don't think the children really moved mother's day there's nothing in the record to suggest it didn't happen you didn't probe and ask in deposition did was there in actualizing of these believes i'm alive right so the employee that drafted this document acknowledges in the document that mom doesn't believe her she doesn't believe that these things are actually occurring we don't believe these things actually occur believe this it isn't what we can focus on evaluating a summary judgment record it's whether there's evidence in the record in front of us to demonstrate that a reasonable that no reasonable juror could find that they were deliberately indifferent right now and i understand what you're saying is that there is a perception by this one author about whether there's a truthfulness to the student's account but africa says what did the school do at so if we accept that what they said they did but we don't believe that what they said they did they actually did if we say what even what they said they did wouldn't be enough so the model response school investigated the incident there's no investigation report there's this document it's created after mom speaks with them so that that they should have come up with other combinations that's a self made restraint that that's a manmade restraint they could've created they could have broken that class up they could accept a new students and so to the a b a claim there was much more they could done so you can say we have this man made restraint that in our school every program you make your schools make your life skills programs so that's why in the beginning just to make it clear and g j gets the most basic of services in schools is it learning how to tie your shoe life skills even if you separate them they're not separate you can move children to another school you can change the age grouping you're in the set with a should have done i mean what what did they specifically fail to do that he should have done right so in this document and again if we accept this doctor to be true which we believe it's a question of fact whether the school did anything they only did it during classroom time which is that they did what if that separated just they just moved the kid seats so it's a it's a classroom a quarter of the size of the same classroom same classroom they just school one for basically students who are eighteen and older and one for students who were less than eighteen crack correct ok so there were two classrooms to correct to life skills classrooms age groups did anything wrong take place while they were both in that same classroom yeah i thought that there was contact inappropriate contact outside the caution yes so it was it was the classroom there was some kind of construction something going on in the classroom so they were having a classroom in the library an alternate setting which is a little bit more on structure than the normal classroom so with the autism diagnosis these are children that don't do well with change they want consistency during these on structure times which even though it's classroom time it's in a different environment right so yes it's classroom time but it's a different environment it environment who was it took place outside the classroom outside of what we would call a classroom the classroom was the library right ok so putting them in different question is when you've been of any help if they were in separate classrooms correct so but the event gives the knowledge right so under the title nine claim the district had actual knowledge of the harassment that was ongoing not only was there the incident between and g j and r d there were other incidents that n g j witnessed other simply for knowledge but not for relief so correct phrase is your position that the a p a claim the one hundred and eighty three claim the title nine claim are based on the events of the february incident itself the february incident ultimately gave yes the february correct yes which which again and with all due respect to our church i know he said it it was eleven months after i know george curry said oh is eleven months after but i mean is that i don't know that that makes it any better you know we haven't had a sexual assault in eleven months i don't think that that timeframe i don't think that that's a significant amount of time frame i think it was two years in ngs re between the two incidents and again back to  discipline and i'll even agree with you further judge because the other student was also a student who with special needs who received extra support so a lot of the did we don't get to know what happened you know frankly as a as i represent this person i don't necessarily get to know what happens to the yes there were two classrooms in this school swenson but this is a schoolteacher philadelphia where there's hundreds of schools and hundreds of program to approve private placements and you don't have to limit yourself to your manmade restrictions and you said we have to we have two programs here but if there's one it doesn't matter there's two response here i'm sure that when you look at the totality of facts what it could reasonable juror say that that would make sense to do absolutely absolutely because the potential harm to have someone your classroom that not only is this their sexual conduct going on between them but there's also documentation in the records that the conduct between them it was disrupted i think the school said oh she had liked to play with him she was always distracted beyond that yes it would have been a good idea it takes time to settle in but of course that time to settle is worth it for the ultimate protection not to be ultimately sexually assaulted yeah and in fact and i u p d again is it's a fluid document it's always changing ready you can always revisit it and it's it's actually a good time to collect baseline data and monitor progress when we do make this change not when it's just ok we're going to the library today we're going to go to class outside today those events could be disruptive but when it's done in a calculated way we're actually measuring data a it can actually be beneficial to his request for a change in a you know is there but doesn't seem to be the kind of thing you would go into in an individualized education plan and we're focused on the brain for the kids education what can we do to give this person the best possible education within the sexual education and she's fifteen years old the hormones let's relax remember though with the facts out of which the description is she gave what happened in february was a type of potential touching right say we have to remember the factual scenario out of which the events occurred it was sort of hands being placed on each other for the ultimate the february in the video and then for the february of that remote what happened in the library february th was the outside incident the march incident was the librarian said and that's where we've been i'm sorry and that yes when i want to talk about the years of you know just how you told me that the cause of action out of which you're basing your events is the st of that correct march of tw described which might have been i think the trying to do right is an offensive touching cracked then you're suggesting that there should have been a change to the i e p is that what you're saying would have been the reasonable response here we are and in our in our most of the documents it's the allegations that he exposed his penis to her attempted to force her to fondle him a multiple occasions we're talking on multiple occasions i thought there was only one occasion in february and then the nd one in march the big february kids are right but there's other events that she spoke of after that's what i want to stay out with other that observations of other students and their reaction interactions with each other are focuses only want to happen on your with your client that's right and i reckon there were two episodes are you representing to me in the record that came to light we don't there was to insert reports but after the fifteen event it came we know about the one but to the best that she can articulate there are other times where there's nowhere in the which where in the record does  school on notice of those other episodes after the after february they were on jump to light after march and after two thousand and sixteen forget that the months after she left the  yes what yes mother yes the school was on notice but they didn't believe mother they didn't call child line they didn't call s b u they didn't investigate it in follow up again these students are and they are saying that the school was on notice between twenty that's put by the record yes but what the out would say that if we don't there's an e mail that says they switched their seats and they're supposed to be close to provision as you point out just words they're supposed to be no if we don't have any no data or records say ok today with a chit with children like this you would expect that there would be notes that said ok today they didn't communicate today we talked about proper ways to interact socially there's none of the notes that you spoke of it should have been there all there is yes or you do have a that individual and expert in this field i guess to provide the services that you thought were recommended nace in this services you felt recommended you recommended to the school district or the individual school and then that school made the decisions t were even further removed from that that's why essentially our whole position is that we never substitute our judgment we weren't even allowed to provide our judgment quite frankly with respect to the services that were provided what happy is that there was an organization organization by the name of green tree that was part of the ip team and provided this service before we got involved there was a treatment plan plan created between green tree and community  health and some other folks to come up with for this we had nothing to do with the plan or the hours that were suggested that she have a t s s if you have came have nothing to do with the term an e m t g s care we well we did at a later point essentially what we were looking at is we stepped into the role of green tree and what they had decided under the treatment instead of the fifteen hours the green train community health had agreed to as saying was medically necessary for the child we suggested thirty two hours but then after this fashion after the february th events correctly that's the st time we're really involved in altering i'm sorry what the treatment going what specifically was your situation so you were aware of the st to solve you know we were not you know we were not and the principal of swenson testified to that as did miss lynch from that we were never made aware of it never made aware of any assault of any incident or ledge the incident in the even the library the st one but we were we had a t s s assigned to the case and caring for the student at the time of the nd but she was not assigned to that student be brought in a state negligence claim and i think the claim there was that we should have had done more to make sure somebody was with her at all times as it is with t s s is in the support they give the therapeutic support they're never with the kids and oh it's never been followed up on sorry i'm so i read too much into the question but this person valley provide services to both public school students and non public school students yes they do that's great and the funding for services for a student like the one we have here comes through sort of the state's medicaid program in a roundabout way the states involved in funding for some of our students not all the not all the people we work with obviously but that alone is this court is well aware is not enough to make somebody a state actor i would maintain it is it is it fair it does the rector support the following statement that it  was the mom of the student who secured the services st for greentree and then when carson valley stepped in what was the school the one that caused the services to be provided actually you're right the mother had come in and asked us to take over for green tree and then we became involved we would urge this court to affirm judge currently has it all the counts against the school district asked for the title nine count the judge i think it was a footnote eighty five made it clear that the plaintiffs never responded to the school district motion for summary judgment on title nine so it's our position that they've waived all their arguments under title nine and the rd circuit but even so the element that's common in the various claims is whether or not there's been deliberate indifference by the school as relates to these episodes it's true and i understand that and there was another case from the school district it was the chambers versus the school district case and that case four to go back down the trial because there was two separate causes of action so here we have multiple causes of action each of them have a common element which is deliberate indifference should we have a jury decide whether the school's respons reflect a deliberate indifference or is your position based on the record in front is no reasonable jury could find but i would say there's no reasonable jury that could come to the conclusion that what miss lunch did was not clearly unreasonable that's the standard in other words the court in the supreme episodes between the st incident fifteen and the nd and the record is void of multiple instances there was one incident that was reported by miss mal's this was back in february fifteen incident where she reported it to an appropriate con touching inappropriate contact to miss lanch miss lynch then convened a meeting after spring break at mom's request there was a meeting between mom and child i believe the sister and misled put in a plan in place where she would separate the students in their grade level in their class life skills class was between fourteen and seventeen years old separated how would you be separated if you can separation take separate i'm in the classroom and she also informed the teachers in the classroom to make sure that you keep an eye on the children in the classroom so she took steps night that not have contributed to the problem it's out there keeping them in the same classroom it's possible i can say just want this but i don't think it rose to the level of being clearly unreasonable because nothing else had taken place between the time of that incident until the following school year all the way through because the question is i'm sorry  in i don't know the answer to that you know we didn't this there was no discovery taken on the class size on that usually i can't say usually but the class sizes i cannot tell you the answer is have so if you didn't anticipate that there would be a problem but in fact there was a seem that's the point of skins i understand that's their position but i think i think it when the district has knowledge and then when it when its efforts not as st effort but it's maybe nd or rd halfords continued to result in the same kind of harassment then i think there may rise to a level of deliberate indifference what we have here is one report and then what we have here is the students were separated the teachers were all noticed the teachers were watching them and nothing happened for that  numerous really set so especially they were rearranged but they were really sort of weird yes but the facts in the record show that there was no inappropriate touching or inappropriate contact between the two students between the time that what she thought was appropriate action there was no notice by the parent or anyone else that there was any other action that she needed to take this to do anything else in that classroom or outside the classroom and therefore what she did was not clearly unreasonable on to the the judge i think a trial judge has the ability as judge perry did to look at the facts in the record to determine what the facts were presented by the opposing party which were none to support their contention that they weren't separated and nothing else and something else happened so i think under those facts in that summary judgment record which is their burden to come forward i think a court can grandstand judgment and i don't in these in this circumstance there's not enough facts for this judge to find that a jury could find it was clearly enough to get to a jury because i and all because i think it we're looking at the st incident was the was the action on clearly on reasonable that's that that's the discussion that the trial court has to look at of course something happened a nd time but i don't think you can impute the knowledge of something happening a nd time back to what the officials knew at the time when they acted based upon the the understanding of what the type of conduct was was at issue so that's how i would respond to that iran in terms not a factual dispute a material factual state that miss lynch took action it's not a it's not a factual dispute that after she cooked action there was no inappropriate conduct and if they were kept in the same classroom that's a factual dispute either that's not right so you're saying there's no dispute a fact well it's and that the facts are are what they are and they were sufficient for the judge to agree in summary judge is that your position our position is that what ms lynch did and three issues if the court would like to hear those i mean there are they have not identified a policy that was the moving force behind the alleged constitutional violation and in terms of judge kearney's opinion he found that there was no underlying constitutional violation and on the camel versus grazier absent an underlying constitutional violation there cannot be any minute a liability and that's where the judge and the judge also looked at whether or not there was a state created danger in this case that what the plaintiffs argue and i believe that i believe it's at page fifty four dollars of their of their brief they argue that the district could have done more but we all know that beat doing more or not acting or failing to act doesn't give ri the in the decision and the focus that i hear from mr sam says and that it's kind of in the theme all along is who determines the hours who determines how many hours are going to be provided and that's relevant to what's in the eye but once a document is in an i p i p becomes the child's contract for faith for their free appropriate public education which is how we measure if a student if i d a's being followed but that doesn't mean that those who are providing the services required under ninety necessarily  state actors but if they aren't providing those services to the appropriate level to provide a faith alternately these are non delegate duties that's my ultimate argument ultimately it's the school's responsibility to carry out the ip in the cases  because these services in the ip and we have the underlying faith claims and that's why the underlying case settled because and regardless of if they violated faith but because in her ip she was supposed to have this supervision and because regardless of how many hours it gets in the ip how it's carried out now that's the school's responsibility what wunsch what is what in the end once anythings and i p it becomes the school's responsibility to implement those services study right so here we have supervision independent contractors but you say just because of that relationship they become state actors they don't have to be a part of the process of the ip there's a team meeting an ip is developed then you have this contract that says this student needs ready thirty hours of speech per year  yes this school would ultimately be liable if carson valley fails to carry out the ip but by the school activating carson valley to be the one to one and utilizing them they're using the individuals to provide is that it was typically a school handles the implementation of an i p in house so you have you know maybe a child gets counseling to go to the counselor maybe a child gets again speech they go to the school speech person sometimes they'll outsource those services but alternately it falls back on the school to provide that if you say a child needs a laptop and it's in the ip you have to buy the child a laptop because this is your contract that governs that student's receipt of faith so by you saying this child needs supervision and once it gets into that ip document then this now supersedes everything and it's the school's responsibility to carry that out they can utilize outside people but by doing so those people actually become state actors because they're being utilized to carry out faith i do with your permission i just want to go and you had that that e mail is from march and it makes reference to the march episode that was being described in two thousand and fifteen and it it talked about the fact that the plaintiffs mentioned something to her mother about talking to him meaning the other student talking to him about touching his private parts and i know you and i spoke at times she was initiating the contact putting aside who was the initiator what this episode and i'm sorry judge so that i wasn't yes no let me let me answer that clearly the allegation was that at least at the time of the march of that based on this e mail it it's clear that it's multiple times and three policies their policy that there's only one classroom for students such as market so that alone that makes it impossible for them to separate based on their own policies and this is like a good defense why we didn't do it  within that school right there's many many options there's every other school in the school they've they're using that they're saying it was impossible it was not possible should have separated them into different schools they could have put them in different schools they could have rearranged how the life skills programs works they could've they could have adjusted the age ranges they could have separated into seventy five year plan schools it could have provided the same exact service and absolutely and ultimately she went to a school that's providing significantly better services or she's currently alwynne they could have sent one of the child children there they could of kept them in the same room but sexually educated them if they had to they say they had to keep in the same room which they absolutely did and again this is just their manmade policy that no matter what happens is that no matter what happens we have to keep these two students in the same room we can't do anything else when in fact they can do everything else there's schools within just short walks they can provide the exact same program again this is a life skills program and if it doesn't take so much time who should have been removed but also it would be harassment shouldn't be moved the student would accept the move but ideally the assailant would be the person moved ideally under the dear colleague letter would have required a different school and maybe a different teacher  an accurate and additional teacher in an additional classroom could have done the trick and then you split the students up there constantly a regrouping classrooms in the school if you're filled up your children are being moved around all year long there's programs opening and closing