thank you my name is greg white and i represent the nevels for purposes of my argument today i'm not going to try and dance around the names the young victim's name austin and his mother's chain so if you if i say those names on the i'm talking about and it's short enough time that we can deal with that here this is a case about discrimination against the disabled there is a difference between the statutory scheme for disability discrimination and then with others we read title seven in title nine it is a prohibition only do not discriminate when we rave section five zero four and we read the eighty a there is not only this prohibition against discrimination but there are affirmative duty as that persons in the educational context which i will for deals with must say able to participate and must provide for the disable educational opportunities and must not discriminate we are always tempted i think when we look at cases that involve children mistreating children to draw upon our own experience where we have seen our history our children our grandchildren's history and known that kids are mean to other kids but this case is not about the kids it is about the adults response to what they see and five o four a say and i'm of course arguing it here they tell the adults when you see children who are disabled being discriminated against it is your responsibility to stop that to fix it it is not a responsibility perhaps that we in this room would always thing can be accomplished which think it's a good we always think it's a good idea but for better or worse congress has both required it and provided money to do it so there is little that the adults can say here that absolutely excuses their failures as a matter of law in this case the district court had two grounds for granting summary judgment in favor of the school district paraphrase them because judge smith worked apparently very hard walter smith i'm sorry worked very hard to to write an opinion here but first of all the district court said that he was not convince that the statements  that the actions taken by the adults in this case were related to the disability of austin and then second the district court said that he believed that the school district had been reasonable efforts to address the incidents now there are not just a couple of incidents here the affidavit of austin and his mother jamie are included and they are clear  and they are factual and they are detail we read in those affidavits that austin had his clothes soaked up so that he couldn't wear them anymore he had his shoes stolen he had his brand new shoes that he bought to replace the stolen shoes thrown in a toilet and urinated on he was slapped he was had rocks thrown at him he had chemical cleaner sprayed in his face by students he was kept in a was told by kids that they were hitting on his shoulders to fix his takes his bad his spasms that he had because of his to read syndrome he was knocked off his crutches which he was wearing for an unrelated a broken ankle and suffered a serious shoulder injury he was slammed into the wall he had his pants ripped off athletic kind of pants not and he had one other student force austins face into the other students crotch he also says that i have this condition for which i'm being medicated medicated in part by a school district employees who give him his medicine at lunch time i mean medicated for what the doctor said it to read it makes me have spasms it makes me have takes you know i can't help it and when i have i'm badly i can't see i can't use my hands i can't speak it inhibits my ability to read to learn and to be productive at school all that's in the record and the affidavits that are attached to the response to the summary judgment outline all that stuff the school says oh one we didn't know we had tourette's a nice turn of the phrase i think because although the record does not include any doctor's diagnosis given the school they were giving him his medication the teachers saw what happened to him and how he was impacted by this condition that he had whatever name they chose to give it to contend as they did and do in this court that they did not know that he had a disability is not served well by the record here nor is it served well by common sense when you read what they say happened and what austin and his mother say happened i noticed that in your reply brief you did not respond at all or mention  state of lance case which was relied on heavily by the school district is a brand new case as you know from this circuit i argue with so in a way that my question is do you agree that the  case properly sets forth the test and the elements from the circuit well i think it sets forth the test but judge smith can i point you to another one that is also recent and from a panel here carmichael  it's number eleven i'm sorry number twelve eleven zero seven for a june two thousand and fourteen opinion out of this court it was relied on heavily by judge walter smith when he wrote his opinion and the carmichael describes this test is one of of deliberate indifference rather than as what you described in the first part of your argument is an affirmative obligation to do do you acknowledge that deliberate indifference is ultimately the test for liability absolutely and i may may i may not have made myself clear when i was talking about affirmative duties the statute says you have to do these things the failure to do that must be shown by deliberate indifference perhaps that would be better explained from my point of view we don't i mean we knowledge that lance exists and weak knowledge that it states what the law is in this circuit but of course i think that all these cases  lance carmichael this case kind of turn on what the record is in front of the court carmichael was a case where a young student committed suicide after being called names that directly related to his gender identification and sexual orientation they called him a homo and it was repeated and they pulled his pants off and turn them upside down in a trash can and put it all out on  and when the courts below dealt with that they said oh well that youtube video is just absolutely horrible and that's really mean that's only one time when the courts hear this court reversed carmichael and set it back for trial it said to be careful not to focus only on the most egregious of the events because the summary judgment record i'm sorry carmichael's of pleading caves when the  that parties continuously or daily were impacted by bullying or discriminatory conduct you have to give credit to the daily or continuous as much as you have to give credit to the most egregious and detail of the events so i think the panel in carmichael and judge dennis actually wrote an additional opinion in addition to the per curiam there reveals something that's more helpful here that is that the summary judgment record and the reason these cases ought to go back for trial is because there is very much to learn from the credibility of both sides and many determinations yet to be made at trial i think that the district court's determination that these events were not related to the disability begs for a credibility determination and i say it that way because this is a group of adults who know what all the children are saying all the names they are calling all the things that that they're doing and they could be construed to be doing the same thing to austin they sent him out of the room fifteen times they told him don't tattle on people when they say names about you are do bad things to you don't be a tattle tale write this down on a sheet of paper i will not be a tattle tale over and over again it's really your fault austin that these people are doing this stuff to you because you tattle on them and you fight back when they call you names you need to just grow up it is fair for us to conclude that the school district not adults actually knew what was going on and they were contributing to austin's problem as much as his peers were doing so in addition judge the district court concluded that the deschooling responses to all of these incidents was reason and there is a different inference that can be drawn from the summary judgment evidence here children adults of employers and administrators like to justify their wrongdoing when they write up their memory of what happened it often is not what it looked like at the time it is reasonable to conclude that the school districts explanations that we thought austin was misbehaving  thought he was disruptive could easily be concluded to be we were punishing austin because he had takes and spasms and he disrupted the class that is exactly present in the fifth circuit case  vs waco independent school district that was a young lady who was sexually assaulted on a number of occasions and the school districts response to that was well you need to just not be at school now she was a little mentally impaired  so the school districts attitude was will she bided it or didn't mind it or it was ok with her and she consented but of course her mind was not really sufficient enough to understand what was going on but their response to it was well you just need to go home and not come to school because you're not acting right where you're at school and they said in their appeals say we're just dealing with disciplinary issues but the reality was they're dealing with a disabled person in a way that the law doesn't let them you don't deal with disability problems by saying go home go sit in the hallway go do something else those cases follow the pattern that we see and read for sanderson plumbing that is you've got a plate that says i've got my discrimination case the defendant comes in and says here's my response to it and the plaintiff's says well i think it's all pretext the supreme court says all that evidence remains on the table you can't just take the defendant's explanation believe it and grant summary judgment we also get instruction from colin versus caught in a recent case out of this court where the supreme court reminded us that witnesses on both sides come to a case with their own perceptions recollections and even potential biases it is for that reason that we have jury trials and carmichael i think also is instruct there discrimination cases no matter what they involve are rarely marked by the smoking gun they are more often proven by circumstantial evidence and i think that this case certainly begs for the opportunity for someone to decide who is telling the story in a credible fashion who in the universe of facts that we know is telling a story that is believable and it does not offend our sense of justice to believe that juries should decide this  court i'm bridget robinson representing the defend happily mart independent school district with me is principal of martin middle school dr tanya now who's affidavit appears in the record on appeal of this case as well as her contemporaneous documentation of the events about which plaintiffs compline your honour's the district court's very well reasoned decision granting summary judgment to them are independent school district should be affirmed for a plethora of reasons the district court properly found that the mar independent school district was not deliberately indifferent to any known disability based harassment similarly the district court correctly held that even accepting as true plaintiff's allegations of temporary and sporadic removal from the classroom approximately fifteen times over a two and a half year period based on age and himself admitted was his own disruptive behavior did not result in the deprivation of benefits of services programs or activities of more independent for those reasons alone the district court's decision should be affirmed it is clear and analyzing the causes of action played by plaintiffs under both section five zero four and the americans with disabilities act that the plaintiffs cannot establish a promise i should case or show the imposition of law bill of the because they can't meet any of the elements required in this particular case as this court is well aware and lance mentioned  just a smith plaintiff has to show that he was an individual with a disability he was harassed based on that disability the harassment was sufficiently severe or pervasive that it altered the condition of his education and created an abusive educational environment the defendant knew about the disability based harassment and the defendant was deliberately indifferent to the harassment plaintiff mentioned in the briefs and again today that the alleged disability in this case is tourette syndrome however it is clear from the documentation before the district corps and in the record on appeal that there was no evidence ever presented to the school district that a in had tourette's syndrome or any other disability the plaintiffs clime that the school district had to have known that a and allegedly had tourette syndrome because they gave him medication however it's clear from the enrollment forms that mrs nevill submitted to the school district that there was never any medication listed for tourette's syndrome or any indication that a and had tourette's syndrome instead when a and was in rolled in fifth grade mrs nablus filled out his enrollment for him and said that a hand was taken  mentioned or wrote that his element was as much in his sixth grade year ms nevels wrote that a and had tics but listed no medications he was taking in his seventh grade year which was also the year that i and was ultimately withdrawn from the market and pin a school district ms neville's wrote that a and was taken to saying but that the elements she listed were only allergies and asthma so the only two years of mar middle school enrollment forms that i am had medication prescribed for him it was the fifth grade year for asthma and the seventh grade year for allergies and asthma although on the sixth grade enrollment form mrs navitas wrote that a and had tics there was never anything noticeable about in that anyone thought could actually have been tics as a matter of fact as you see from the affidavits of a ns teacher such as mr lerman the descriptive names they used against him that there was contrary evidence that he that he had these spasms that he had some sort of ticks you know that so we judge an evidence better than i do isn't that in the record as well there were never reports at the time a and was in rolled in the marked independent school district that any student called him the names that they now claim in the lawsuit on this appeal for example there is an allegation and i am signed a declaration of climbing that he was called spads and twit but there is nothing other than his and supported allegations and his own self serving declaration that support that allegation we have contemporaneous documentation of everything that was reported during the time and was a student at more honesty and there are some name calling incidents but when you look at those incidents they were all explained all investigated and prompt remedial action was taken were here we have some some pretty definitive circuit law that says that no unilateral self serving declarations affidavits can be sufficient to defeat summary judgment in other words they count as evidence just as contravening affidavit might well so serving affidavits alone are insufficient as this court is aware under cedar hill however the district court not only viewed the evidence in the lat most favorable to plaintiffs regarding the alleged disability the district court went a step further and actually accepted as true plaintiff's allegations of a disability however it is not clear even today that a and has to read syndrome because the only documentation in the record was submitted to the mt com independent school district which a and currently at hands in two thousand and thirteen more than a year after he was withdrawn from the mar independent school district in which a doctor said that he had attention deficit hyperactivity disorder tick syndrome and developmental coordination disorder that page six thirty nine of the record on appeal however is uncontroverted and undisputed that that documentation not only was more than a year after he had withdrawn from our independent school district that information was never provided to them our independent school district nor was any documentation ever provided that he had any sort of disability at all in that letter dr hall when explaining anything that might affect his educational progress at m a school district said that the attention deficit hyperactivity disorder might distract and laid him to a lack of focus and it modify his learning ability and that was the primary diagnosis nothing having to do with tourette's syndrome it is clear even looking at plaintiff's own self serving affidavits or in this case declarations that there was no information provided to them aren't i a study th and had tourette syndrome in fact in her declaration ms now holds merely climbed that she gave a school secretary a note to pass to the nurse that a in was prescribed clonidine for his tics in the fall of two thousand eight in the fall of two thousand and eight and was at more elementary school not even at mar middle school however on the enrollment form for fifth grade  is nothing in the record on appeal in this case that shows such a note was actually given that the medication was for tics and or that there was any change in medication due to tics and there is nothing that indicates that the school district was aware of any behavior that would show that a and had tourette's syndrome or that he had any sort of tics however assuming as the district court did that plaintiff's allegations are correct in that regard point to have not shown any deliberate indifference on behalf of the school district if you look at all of the incidents that were actually reported including the nine calling incidents when a and was enrolled in the marc middle school none of those were disability based there was an incident which was investigated in remedial action was taken where a and another male student both said that the other looked retarded but upon investigation dr now found out that that one student called the other are said th student looked retarded because he was wearing a shirt tucked in with no belt and the others student similarly responded because the student was wearing tennis shoes instead of boots so the comment about looking retarded had solely to do with the clothing that the students were wearing had nothing to do with any alleged disability there were other name calling i as plaintiff now asserts after the fact such is twitch which was never reported but there was an incident for example and which a in was standing too close to a f student and in order to get a hand to move out of her personal space the female student turned to him and said but rather than moving out of her personal space alien called her booty licker both students were coun and there were similar incidents there were reports that a and was referred to as lawsuit at a time after there was a rumor started that the nevels had sued a student because mrs navajos had gotten on the phone with another student cursed at the student had threatened that student with physical violence and had threatened to turn that student into the police for telling a and to get off the phone after which point there was a reference to a and as lawsuit but there were also references by and to other students such as booty licker they called students get away and there was also an episode in which he called a student an f ing b except he used the actual profane terms rather than using the restricted terms there was another sedan in which i am told a student to shut up during class and the other student said oh that's a putdown warred which the in the declarations and now characterizes as being something that was said on the basis of disability but that situation was diffused by the teacher and the room is alan who said that they could continue their argument in the office or be quiet and get back to work and they were able to settle down and get back to work the physical altercations in which a and was involved at the school district involved other tops of incidents which also showed no disability based animists at all for example there was an aunt said the aunt on the football field at one point where i made some rude comments to a student who told and not to talk to him at which point i went over to that student made a fish and extended his arm and put his fist on the student's chest that student knocked away and arm at which point i and took his fist and hit the other student and then that student slapped they in both those students and work counseled about their behavior and by both receive punishment as a result of that incident there was another incident in which a n went and in the locker room turned off the lot switch and stood in front of the lot switch so when another student tried to turn the lights back on the student tried to move out of the way and hit him and the student responded in kind and they were both punished in received i assess for fobbing so there were in sudan all of which were investigated and in which prompt remedial action was taken because of the disciplinary infractions involved the plaintiffs in this case compline about many incidents including an  in which mrs nevill scald dr now at home and not one aide ning and climb to the end had been hit in the shoulder by on the other student although the plaintiff's climb that the shoulder injury was caused at school it's clear that the shoulder injury was not caused at school as a matter of fact there is in the record at page two sixty three and a are from a note from mrs now vel's climbing that a n had dislocated his shoulder and they were in the emergency room until four am we know that incident did not happen at school as shown on the record at page four a three paragraph twenty five however because of the report to dr nail bomb mrs nevill's that i and had been hit in the shoulder even though the shoulder injury had not happened at school we don't know if it happened in the outside football league the outside by spa league or the youth rodeo in which a and participated dr now took it upon herself to initiate a bullying investigation to determine what had happened what she found had happened as a result of that pulling investigation was that while plying a vocabulary game and was a limited from the game and sat in another student's chair that student p s a was a student with whom i am evidently held a grudge because that student had accidentally stepped on a jacket week before while it was in the floor in the gym rain at the end of class that day i am said to pay bob and tried to shoulder into him but pay a turned so a would miss him and pay a hit a year in the back of the shoulder after he had her his shoulder doctor now found that there was a bullying as a result of this investigation even though the entire situation seemed to have been caused because of the accidental stepping on the jacket which was on the floor of the gym the week before because she found that he had rolaids and been inappropriate toward a and she not only punished p a suspended ham she also took other measures to try to make sure nothing like that would ever happen at the school district again to address the conflicts dr now scheduled teacher training on bowling for all of them are i asked the teachers which was conducted by voices incorporated on february twenty first two thousand and eleven in addition there was a student presentation on bowling which was conducted for the fifth and sixth grade boys on february twenty fifth two thousand and eleven dr now also made a plan to bring rachel challenge to the school which was a program designed to teach conason compassion to the students and was presented on september twenty first two thousand and eleven to the school district all of those things that were done the remedial action that was taken the bowling investigations all of the disciplinary action imposed against students as well as the turning for students and for staff was in addition to the policies that the school district maintains which prohibit discrimination on the basis of disability among any other protected characteristic provide equal educational opportunity and provide which the district court properly found plaintiffs never did all of those policies are in the record on appeal at pages three thirteen through three fifty two but none of those were used by the plaintiffs in this case plaintiffs also compliant about an ant sedan and which they climbed a and was sprayed in the odds with sanitizer but it is clear from the record that that was reported as an accident in mr alarms class as a matter of fact when he was asked how he got the spray in his office while the students were cleaning their desks i am told mr norman that he didn't know and then he told wendy cob who was the school secretary and helped him wash out his office that it was an accident and thus an accident report was filled out even plaintiff's admin it that they never reported the spray san as an intentional act and that shown in the record on appeal at page one seventy one admission number four so the things they complain about now either didn't happen at all or did not happen the way the plaintiffs a ege however even when you look at what plaintiffs had man at cards it is clear that the school district was not deliberately indifferent and this case and the district court properly held for all those the case then presents who do you believe do you think that the school district has explained this well do you think that their story is better and more believable do you think that it's more detail  that is the thought process then this is not a summary judgment this is a trial because that's what juries decide who is more believable whose story fits the known facts better who is more credible about what they are say all and if they just blatantly obvious all affidavits that summary judgment are self serving that's the point putting in your own proof and writing up your own affidavits it's self serving because nobody gets to cross examine your affidavit nobody gets to judge the people who are signing these papers that's all reserved for trial it's unfair to conclude that one side has made self serving affidavits and the other has not met simply begs a court like this court to decide that one side's story is better than the other it is also important to realise that what we are asking here is that the court decide whether to believe that some party's assertions about state of mind or intent are to be believed it is hardly surprising that a party that has been accused of being indifferent or intentionally doing wrong would be able to put in affidavits that say no i was not indifferent no i was not intentionally wrong but the courts have traditionally been reluctant to decide issues of state of mind on summary judgment and i just refer the court back to that toll and case that says everybody is going to come to these things with a different perception and different recollections and they're going to present them in a way that they want them presented and it's for juries ultimately determine how these things should be decided i mean which one is more credible there is a rather remarkable argument this will be the last thing that i'll take up that none of the incidents are disability related  which i think ignores ignores totally the evidence that austin said that i was daily called a spasm a tick a retard tick separation between what they called him at one point in time and what they did to him and another makes no sense it is far more sensible in the scheme i mean everyone's experience to understand that when children call each other names there's going to accompany it physical conduct or perhaps even from austin's viewpoint a reaction to  then believe that this is been going on for two and a half years and no administrator ever saw any of it happen also is completely out of line with the summary judgment evidence jamie but there was nothing in the record indicate the presence of a disability right i mean all these prescription records and things has have those been accurately described to us their records they have described their own records accurately but there's no doubt that teachers knew that austin did the things that he said that is i had spasms at times i could not do anything related to my school work because the takes that i had were so bad to believe the teachers didn't know that that was a medical problem belies reality you can't  reality that if there was a significant disability of any kind in prescriptions being given that the school would have been provided records of some kind of a diagnosis for some reason other than things like allergies and asthma or the prescriptions you had mentioned it i don't think that everyone every parent understands that they have an obligation to tell the school district every medical problem and every diagnosis their child has ever received if they've gone to school and said to the nurse here is the medicine my son needs would you give it to him at lunch and it's for allergies and an asthma right then it know well she also said it was for ticks but regardless of what she says it's for you know if the teacher sees what is going on that is that the kid is has spasms and takes all the time you have shown it deflated by your argument they certainly know your record and you bring your cases forward well i just want to assure both of you that in this case at least one of the judges on this