context of five before that's called a free appropriate public eight education right but isn't the grabbing one of the first count you discriminated against this student by delaying his five zero four plan that's correct right ok and is the government of the second that you discriminated against him by not sort adequately training and accommodating his autism and other disabilities is that is that fair summary that's fair all right as i was saying the  to idea exhaustion if the complaints seeks relief or the denial of faith and that was less yes but i mean i had the overall reaction to that opinion that they didn't really understanding mean the e child in special education and so the question the question you're raising is and and there's i don't quite see how frye helps you a child with special education needs then you need to exhaust but it seems is a half the the states don't actually provide a program for you can that you're seeking in count one what are you looking for what you can't force five or four rights in an idea i understand like wheels of it is a different question ok my question is you're looking for something that's why i asked what is the graffman of what it is you want by the school district against my client so wait a minute when i say i got the last half of the sentence right i don't want the first half of the sentence to be mine it isn't because i'm truly trying to understand what you're looking for count one talks about a finite period of time by which the five a four was delayed right right setting aside we don't know where the student is now or whether he's still in school but you are just looking for a finite period of time there and so you're looking for money damages for that under five before for what is a replacement that the student i mean from the complaint i don't think we know that the students remain remained in school in fact it reads to me as though after that i think was march right got the final scene yesterday so you can't provide injunctive relief i see your point as  to implement accommodations double time or something like that it's not like compensatory education instead we're looking for damages to redress the those services the accommodations that ought to have  if you read the language of the statute where would you get the idea that there was not an exhaustion of crime in the last president of the spring i'm not asking that that's not what i asked you i asked you if you'll read the statute because it would be  had filed with the state agency the a g h five hundred four claims that you are litigating then we might have the answer of the question but that isn't what you did and i don't know why it until it because i think you would have gotten the answer you want an action under the idea except for a failure to find eligible type play or a dispute about providing of what someone like what does this rule of construction contemplate then when it says that except that for for a filing of a civil action under such law seeking relief that's also available under this subchapter the procedures under f and g shall be exhausted to the same extent as would be  your hypothetical as i explained if i could but the whole point of this language is that it's not contemplating that it's saying you should be exhausted to the same extent as would be required had the action been brought into the subchapter but it's not assuming that it exactly and i how do you bring claim for the delayed implementation of an a five o four against a different type of entity and that's why it's not it's not dispositive that question but it is helpful in those cases and i think it's helpful  could be part of institution but i can't get my mind around the idea of bringing a delayed five o four claim against any other institution apart from a public school right and if you note the fright court did say that the court should ask so it's not dispositive but it's helpful ask those two questions and then it says if the answer is yes to those two questions in other words you could have brought the claim in other setting or as an adult then it is likely that the plaintiff doesn't have to exhaust but the decision does not say the opposite well it's really just the opposite your time was almost completely you had fifteen minutes ok do you have any other questions or are not now also the opportunity you revoked we understand revoked and the stay put right was solely bestowed upon parents as well the school district cannot enforce they put the parents have the obligation to right and they did so in the best interest of this specific of course and so the idea that we are seeking judicial remedy when fact we were seeking the path of least resistance by withdrawing from special education to not enforce as they put to then go back to the neighborhood school the only neighborhood school available to malibu students my son and then there after seeking only accommodation so here's the problem the problem is exactly that i think i don't doubt for a minute that a parent in your situation is going to be doing what's best for your son absolutely but the problem is congress in vision that there was going to be this administrative process so that there's a so basically so the school districts spend their money on education and trying to solve problems right but by taking the route that you've taken if you look at a macro level  rather than just one individual student it would allow a student parents to do an end run around that delayed administrative process to get to the front of the line and then to up back in what about that well if i may run in fact i am looking at the micro level did i think again just i don't mean to interrupt you but i think you you exercise that option to opt out and then almost immediately requested a five a four right yes your honor in a general educational mainstream environment as i got that and so and as i read friday the problem is if you're if the relief you're getting at is still the same if the gravel minister the same of of what you could have obtained under ideal faith then there would be a requirement to exhaust i think and i want to give you an opportunity to respond  missing and fry fry actually does address that and in fact there are arguments with respect to their two questions are not necessarily helpful in our specific case but the idea that parents can choose to exercise their right not to be within the record and it's one and b f zero zero five five to zero zero six four and so that question has been advanced with you know what if that's true no i mean maybe they don't understand what they're supposed to be doing but the question is what does the statute contemplate and innocence and let's take a search situation which you haven't revoked the i g a all right but you're not trying to litigate about the idea you're only trying to  and address their issues before the district court as we chose to do so in fact there is an administrative remedy for section five before that is not an idea a and nine zero eight and so that is an option for parents that could have been chosen however there are regulations in the code does not obligate the parent to do so we were entitled to seek relief through the district court and we didn't have an option and we attempted to prove that we couldn't seek redress so the idea of you know imposing his exhaustion for remedy is number one for money damages that we already know are not available and the emotional not available and i do not available under the idea and the court asked for five months is that are you seeking damages in fact the anxiety and the emotional distress that that comes with the loss of opportunity for grades is significant so whether it's two months three months five months and if the court wishes to know our child although ultimately did not graduate from high school the anxiety levels and third lawsuit that was filed against the school district resulted in his anxiety preventing him as a result of a mental relapse from actually graduating high school so the cause of the harm is absolute and we did not seek this it was our goal to bring our child back to his neighborhood school the school decided to argue similar as this court is that we're not obligated to address this issue you have to go back to this place and they attempted to even seek that remedy against us and ultimately failed so even when the school district the school district the zero five five two zero zero six four does talk about the history of even the school district attempting to impose itself on my son and they couldn't do so so neither the school district nor the parents could seek oh h remedies when they exercise a unilateral right and we didn't exercise a right that was not bestowed upon us way over time thank you thank you thank you good morning your honor good morning ma'am please the court my name is julie malayan and i'm representing a pelleas santa monica malibu unified school district and wendy wax gallus we've already had quite a bit of discussion of and its effect on the previous standard which was set forth the relief set centered approach could use that forthwith and stand in front of the microphone and speak into the mike so we can hear you will do within pain versus peninsula relief available to them under id is that right well there is in fact what plaintiff is attempted to do in the circumstances basically amounts to statute shopping well i don't know what that means a statute allows statute shopping and specifically says that and this was the reaction to robinson is that you can bring a case under age five for however the idea specifically  states that as ron or noted as a rule of construction there is a provision in there were if you choose if you elect to bring a claim under the aviator section five zero four as opposed to i d e a and a claim theoretically could have been brought under the idea for similar type claims you're required to go through exhaust and then i'm going to ask you the same question i asked then what what it's going to come on in this in these is proceeding i mean it is true that the  upon the due process complaint that was filed by plaintiff and the motion to dismiss that was filed by the district and that motion to dismiss was based upon the allegations set forth within the due process complaint itself which was limited to i d e a claim  to make the five hundred four regulations which i don't understand you to be challenging so therefore they can litigate for the agency the area of law and with this fry case coming out i mean i think we have the opportunity here i don't understand it i'm looking at the statute which seems to contemplate something is going to go on in these cases correct correct according to the statute according to the believe going through the analysis we're not talking about a situation where we're talking about the ability to physically access education for example you know the wheelchair situation here in the what about what about counter to what i've said that as to count one it's really hard for me to imagine somebody any other defendant having to answer for failure to to to to provide a final four plan in a timely manner but what about count two now as to his failure to accommodate the disability more broadly train if you specifically look at the look at the allegations specific allegations made within the complaint and the first amended complaint within the that's the first amanda complaint is operative complaint so what allegation there is that the causes you to think that could not be brought against a different type of entity the problem with the second amendment we have kind of a unique situation here where the district court actually  i remember portions of the case that were considered to be subject to that were based upon denial of faith and subject to the exhaustion requirement and then went forward with a number of the other ones when it did when it made when it granted the motion to dismiss without leave to a man that was as to the complaint itself not as to the first amended complaint though the first amended complaint reiterated a number of those  allegations really this is the part i know so did you get to the question please i'm sorry your time is ticking and i want to make sure you have a chance to respond ok i'm sorry did you lose the question that's what happens there's no question the question is i can understand i'm looking at frye and what it tells me is that i need to consider whether the gravity of the complaining count too could be could be a different type of entity apart from the school be held to answer for that that's the question but i think the train those types of allegations so i'm trying to figure out what is it about the allegations there in count two that causes you to think that it really could would only have to be like that well because the allegations include things like i need more time to do my homework i need time to point with the with the damage issue i mean again we're dealing with a situation where the at the exhaustion of administrative remedies should have been done prior to the filing of the incident complaint  that's the requirements up forth within the i d e a it's at that point in time there would have been absolutely adequate remedies in place to deal with the situation well at that point in time and time had already passed no another  we're dealing with is it you're asking me if it might resolve the damages clear exactly exactly i don't i don't understand why you're saying the ale jay could have basically dealt with the situation and i mean in going through the process it's not just an ultimate determination of the l j there's the process that necessarily it has to go through including mediation so you know your position is that they could have gone to the i mean at this question i don't know how to prove to stop whatever they we are claiming that under the title and five home for we should get more time for homer and we should have special rules about discipline and we should have i don't know if they were available some of it under the idea that was he covered but they were doing it under a different standard center a different stretch i believe that's what the ale j needs to do under the standard of fry the case itself meets the requirements set forth within fry all of the answers to the questions given the procedural history of the case given the hypothetical the two components of the hypothetical presented by fry given those circumstances  because i bet this is the case that all we age just think so i mean i could be wrong but suppose it all wages position and it appears to be from this rule that if you are not under the idea if you know or not litigating an idea want we have nothing to do with you well i think if the issue was presented properly within a due process complaint there would not be any sort of jurisdictional issue that would have been brought up by the district for example there wouldn't have been a motion to dismiss during the course of discussion and said they were opting out of the i d e a when they went to the o h is that what you're asking a basically given the circumstances of this case presenting that within a process complaint right ok well if they had done that then the answer is that the l j should have taken the matter and i mean the district would not have brought a motion to dismiss at that point and the jurisdictional issue would not have been issue the jurisdictional issue would have been discussed with jay and dealt with at that claim the court actually went on to address all three of the factual predicates that were set forth within the first amended complaint finding that any allegations regarding the o c r filing etc and so forth did not set for did not have any causal connection between any sort of protective activity and any action that was taken by the district in other words the cause ation element was was absent i'm not sure what more i can add to the stand by what the district court did exactly i can go into a little more detail as far as the absence of any causal connection between the water polo incident the multiple suspension the disciplinary protections under the i d e a so it's no surprise that the kid who had behavioral issues before and a number of suspensions before is going to have a number of suspensions there reporter under the circumstances i did what was reasonable and there was no indication of any causal connection that that was related to plaintiff having filed any or his parents having filed an sort of o c r complaint or any other sort of activity that might be considered protected under the a b a or section five zero four ok thank you very much one of you give you a minute thank you ron and i just want to follow up on the line of questioning regarding the ability of a hearing officer to have the subject matter jurisdiction of the hearing officer it is constrained by two parts of twenty two a c fourteen fifteen in the first it confers the right of a parent a child with a disability to bring a claim arising under this part this part being the idea and a hearing officer has that one hundred have from now i believe that's fourteen fifteen b or c and then the next one talking about is j which is the authority of the hearing officer to hear and decide any claims brought under this part and and then it's speaks to the review with the ability seek percent eighty or five a for that they could not have obtained through i d e a yes we couldn't have obtained money damages for motional distress of these types of things and for  not everything educational rights that's why i'm asking the question right ok is there anything that you that apart from i understand you've got this emotional specificially that's a different issue but is there anything that you that these guys saw pursuant to count one or count to the could that you can't provide accommodations double time to make up for a failure to provide it during the you know what period of time in which are entitled to it the only way to redress that is through compensatory damages and your view is that your position is that that wouldn't have been