good morning may it please the court i am tonya white leather i represent appellant plaintiff crystal morales my client customer alice is now twenty four she cannot hold a job and cannot drive  attempting once again to take a class at the local community college in basic math and is failing that she survives on social security disability things should have been different the basis of our complaint was that the to be found to have not obtained a regular high school diploma she didn't meet the requirements under state law i d e a does not define at i d e a leaves out to the states to identify we have that very clearly identified here the a l j found she didn't complete classes the fall semester was waived she came back after december sixth twenty thousand and eleven though you're asking us to set aside her diplomas that would i don't see  understand the relief that years we've asked to have these the diploma set aside she didn't comply with what i do requires which is completing regular high school diploma requirements in the alternative we looked for violations for the procedural child find looking towards appropriate issues or procedures that would have been providing protections she would have been given a transition assessment and a transition plan she did not receive that from the way she would have been given prior written notice of the graduation that the transition assessment would have taken place when before she was graduated from the age of sixteen on a student who is receiving an i p  s to receive a transition plan transition assessment in preparation and i people for graduation they then would have had to do a transition point that is correct  my concern here is that you came in with i assume to be an accurate and pretty dramatic statement of your client's condition the problem is that the condition results from the accident not necessarily from what the school district did or did not do and i confess i have that problem with with the entire room when you get down to exactly what the alleged deficiency was i thought the hearings officer pointed to the child find requirement and adana fired a remedy for that and perhaps it's it's the same or overlapping with the judge biases concerns that i simply didn't see the argument as to what was inadequate about the relief given for the deficiency that was found by the hearings officer and given the deference that's supposed to be given in the district court gave  determinations little adrift as to what it is we're supposed to do with this i've represented several students with traumatic brain injuries both at a later stage during high school age and earlier this is the special education mandated under idea addresses all aspects of a student's needs academic speech and language occupational therapy counseling if that's related to education social transitional vocational all of those are part of id a when crystal and crystal who was on the way to graduate although she was failing several classes in fall of her senior year was arguably eventual going to get there december sixth of two thousand and eleven she had this terrible incident this accident she no longer was able to do anything that her peers were doing and under i d e a should she not have been gifted a high school diploma she would have been eligible for services until she reached age twenty two and aged out that meant the district could have addressed the occupational therapy speech and language emotional academic needs that she had the diploma in california is not merely a piece of paper i d e a did not contemplate that students merely get a pretty piece of paper she had already passed the high school looks examination the exit examination is is not the only requirement to graduate i agree she had passed that but she needed to learn and be able to understand and to be able to function and ideally looks at students specifically with a transition plan to say what are they going to do post secondary what do they need how do we get them there into a job into  post secondary school and that was never done and that was very clear we had dr markel go through at hearing and talk about what crystal needs she said crystal didn't have the ability to compete classes to do school work after her accident on december sixth that she was still what are you seeking today a transition service trying to transition assessment transition services based upon that assessment these things should have been very clearly obvious it was assessed by dr markel or identified by dr markel in her testimony that krystal needs this because she can't function following her accident she needs the help that's available under i d e a but that was cut off because instead of possibly being on the stick or responsible through age twenty two the district said oh no we're going to waive things and the decision was very clear she did not complete regular high school diploma requirements numbers of things were waived the grades in fall were simply frozen she couldn't complete the course of study she was given a book in her english class prior written notice which of course cannot be redone that that ship has sailed we did not have the transition assessment transition services and we certainly didn't get the summary of performance that would have been provided to a student graduating something that crystal  carry the transition plan was contingent upon their being before she graduated correct and the problem is they didn't do and i p that is correct they didn't do it and i p and there was no transition assessment or plan or we had as i recall there was some in the record what i read more ours was the mother the mom was reluctant to have the district do  as an assessment that goes before the i can't i'm not familiar with in the end we have these things were the procedure would be and i e p and at the time a student turns sixteen then the transition plan is created probably should be create a little earlier but it's to help the student transition from post high school in this in this particular instance the mother would seem to be concerned about having her daughter go through too many assessments at in this and that was the district tactic and is to blame the parents a parent's fault for if i'm sorry go ahead but i understood as i read the record or maybe i'm misreading the record but i thought that the mother she was going to have an assessment through chocolate children's hospital of orange county and she did not want the school district to do another one at the same time the district met with her and that is correct because  district spoke to her minimally about doing an assessment did not explain and did not give her procedural rights the procedural safeguards document that was given to the parent at nineteen as for  before it doesn't mention doing assessments the requirement to do assessments it doesn't mention what happens when a student receives a diploma and the ael j clearly documented the parents lack of understanding even  one ninety two that she was asking about in june asking what services were available from the district she didn't understand and part of it in june the e mail that i read seemed to suggest that she was then asking for an  based on information that had been provided to her back in march or think if that in the march information was about five zero four the document admitted on the record is about five o four it doesn't go through the i d e a special ed procedural rights when mother contacted the district in june she had then talked to an attorney learned a little bit more about the process didn't under i think the packet is the packet it's but it never contained id a procedural safeguards to put the parent on notice she was reluctant to have testing she notified the district at the early meetings the s s t students study team and the five zero four meetings that she was getting assessments through chalk and was not sure where that was going this is a mother who has two children she's a single mother and one has just been lying in the street almost dead on section five zero four and the deliberate indifference so so how can you and how can one say that the school district acted with deliberate indifference when they were in frequent communication with this morality going crazy educational needs suspected disability and this was more than suspected this was known their own nurse documented the day after the accident what had happened and it verified a severe traumatic brain injury this young lady was everything but did the district knew its duty they knew that they had to provide an assessment plan and procedural safeguards to the parent there is a lot of testimony a lot of discussion i explained this to her i explained that to her but until the pierrot got procedural safeguards there is no ability to say look you had it in front of you you knew what you should have done the district had the duty the district needed to go to the parent and say here's an assessment plan with the procedural safeguards here's what you need to do and they didn't there's a lot of of explanation or justification as to why they didn't do it they were found the district was found to have violated child fined by not taking steps to assess giving for the violation of child fine from december sixth two thousand and eleven to the date crystal is allegedly graduated was meager minimal insufficient and did not meet state and federal law and as a result as a result she has continued to suffer and her and relief requested is based upon based upon the law based upon what is available to students with i e p's under state and federal law read to you a sentence from the office of administrative hearings decision issued in february of twenty fourteen the a l j at that point said with respect to the record that counsel have placed before her this is at page two zero eight other than dr markel direct recommendation of fusion learning academy no specific compensatory program was prof by student and no further information was provided regarding fusion no i think the request no other compensated no none of this that has now been mentioned was put before the l j the l j in fact went so far in that same paragraph as to recife where she actually had to go she went to the fusion website itself to determine what kind of programs fusion and the law having done maybe thirty forty of these underlying trials the law is very clear if you if you want comp that you come prepared to explain what it is and what you want and why you want it this is a l j went beyond the scope of what she had to do she went and looked up what fusion academy did and she offered both use an academy which is the only thing counsel had requested forty hours of tutoring she also with respect to the transition plan question offered forty hours offered a vocational assessment for post graduation vocational training or vocational interests which is exactly what an i t p a an individual transition plan with done so what you have here is basically a dearth of any compensatory ed requests four years ago with the five years ago at the underlying hearing and a continuation of claims that additional combat ought to event given when none was requested initially at the at the very beginning when it mattered so that they as they went beyond what she needed to do in the end the district court judge certainly didn't need to go beyond what the have any procedural rights here yes or own and i'm glad you mentioned that because i don't understand why this is but the persistent claim that she didn't have the special ed false it's been proven that ailes a explicitly found that while ms morales claimed during the course of the due process trial that she had not received those rights that she later admitted she had in fact received those rights on june twelfth when she e mailed the district saying i still have the packet that you gave me back in march that packet back in march there's when there's contemporaneous written documentation it's s c r ninety eight that the district gave the special ed procedural rights to the parents on march twenty twenty twelve so there's no there's it's simply record that at the are two of three and they owe each decision that the that matter did not come up during the underlying case so very clearly those things that were not raised at the ale j level cannot be race at the district court level idea appeal so it was never argued below it was never raised and she turned eighteen in may and by the way i don't remember which email if you specify which one but that you the june one there were several in june june twenty in mail is the one that i would focus most of your attention on and that's because that is an email from his morality who specifically says yesterday two days before graduation this e mails coming one day before diploma granting and graduation ceremony yesterday crystal and i sat down and talked about what we want to do what we want to do we want to diploma and we want to walk in the graduation what do we need to get the diploma the senior probably want to go in and do the video project with mr johnson can we do that and still have account for her diploma the answer was yes it could and they did given the accommodations and waivers that she received how can one describe this as a regular high school diploma because she the standards were met according to the  herself which was not overturned by the district court at  page one ninety three of the administrative record the yard excuse me the excerpts of record those administrative waivers for a proper which means for example let me give you an example that's a probably the best and clearest example if a student moves into a district in the second year of a four year high school program typically a forty hours community service obligation record exists students not been there for two years that's a stat that is a district requirement forty hours but a student moves in after their sophomore year they only require twenty so the argument there would be if you follow the logic counsel that's to you is that that student did not receive a regular high school diploma because twenty hours of community service were waved that's an absurd result same with everything else the humanities waiver that was simply a substitution of a class that that year did not count for humanities but would the next year and by the way krystal had applied for and not been permitted to take the class that would have satisfied it because it was felt so as a normal standard operating procedure within a school district that they thought well we'll give that we would give this to anyone so let's give it to her so she didn't complete the photography class but she completed our o p visual imagery and that satisfy the requirement if you if you look i think now it's hard there was such a diversity of of testimony at the due process hearing and i want to point out that this is not blaming anyone but ms morale of his testimony was deemed to be wildly contradictory to the other evidence to all other evidence but when it mattered when she was solo speaking on her behalf in crystal's behalf in may and twelve she wrote a letter to the district nominating this camera the teacher who had seen her through this whole scenario as teacher of the year or something to that effect and just that in itself isn't the key thing the key thing is what she said in that letter because it it belies all of the other argument that you're hearing here mr murray took it upon himself to me with all of crystal's teachers to customize a lesson plan that realistically she could complete weekly meetings with her his morality and crystal i'm reading right from the letter special project that she was assigned i know that he gave her the strength and inspiration she needed to move forward and finish high school so i understand i'm sorry go ahead finish up i don't understand the buyer's remorse question but ms morale is was an int or assessment no because we gave it to her but it was the request what what what what what so as i understand it if she had an i e p in place before she graduated she would have been eligible for services after even if you have an i t p a transition plan even if you have all these other things if you got a regular high school diploma she could have been eligible for special that since she was three and had an i e p for fifteen years before that in each case no violations of any rights she'd still if she was eligible and met the requirements receive a regular high school diploma and her services would stop so in this case if miss morale is high when the transition pla contemplated that she would need some services after graduation that they're not available that's why the vocational assessment was ordered by the l j because i think she recognized that one potential a fact of the flaws that she found in the district programming or the district's you know actions was this she if she could benefit from a vocational assessment but that's not like ok if there had been an transitional plan in place before she graduated yes that said student needs x y and z services is the district obligated to provide those services that that wouldn't be what an transition plan does the transition plan would say in order to transition to post secondary here's what she wants to do she wants to go to community college she wants to study veterinary science she wants to do x y and z that the reason i'm tying the out the transition to the vocational is that those two things are very closely related to each other so any claim that we violated her rights by not giving her a transition plan were remedied by the vocational assessment and whatever happened as a result of that jason say something different and the other day said in so many words that a student graduating from high school does not cut off the school districts obligation to remedy its past failure to offer a faith and what not but that now she did say she specifically said under there under the statute that once the education once the regular high school diploma is awarded then educate special education rights terminated there's there's a there's a clear verse respective rights the question to right to follow your lead as far as the the chronology if she had gotten i in if she had if if mom had permitted the district to assess in march of twenty twelve and by the way there's a very clear recitation of the district absolutely offer to assess you just in hand of the single page assessment plan if she mom had permitted assessment at that point the district has sixty days not counting big breaks to complete the assessment and do the id that would have been about three weeks prior to graduation i would put her about three weeks prior to graduation she would have had an ip and all of that same time the same sixty days th passed under these facts we would have been doing exactly the same thing working mr murray working with her as mom set forth in that letter making clear that she was going to proceed and and finish and then the ip would have been held tangible remedies that might have been ordered but which ones i don't know the answer that because nothing was ever requested that would really be a plaintive slash appellant point which as i as i pointed out and  district judge made the same point that those were not those were not raised at the perp at the appropriate time so these were for the only procedural violation that was found against the district which was not handing ms morales a piece of paper on march twenty third two thousand and twelve as opposed to actually just orally and gauging in this question and being turned down because miss morales was in the middle of the chalk assessment the right thing in terms of proper remedy she went beyond above and beyond by investigating herself what potential remedies she might offer there that person she was the person having sat through four days of crile and all the men having read all the records that would have been in the proper position and was in the proper position to develop a remedy for the student and she did that there shouldn't be any second guessing at this level six years i think were ninety eight is not a document that was provided at procedure rights and safeguards it's an entry saying had a meeting with the parent there was no evidence at the hearing or ever after that the district ever provided anything other than the five of four procedural rights i want to be very clear transition is a whole field it involves vocation vocation is one aspect of a transition assessment and a transition plan job is one thing that a student awarded that and that is not quite right because dr markel went through and identified her needs including a need in the area of transition vocational the the i request our remedy at hearing was to void the high school diploma because she had not complied with what id a stated in what the state law very clearly for scribes completing the course of study and again the day found she didn't complete the course of study it just got waived but said incorrectly that the district can waive everything which sets up a terrible precedent it did for this young lady we requested we were looking at voiding a high school diploma that she had not earned which was done in the past they have voided a few diplomas we were told no it had that been avoided we would have been looking to all the procedural requirements and substantive requirements of id and state law it was discussed in briefed in the in the district court appeal talking about procedures specifically the lack of procedural pirate notice transition plan and the s l p and i see that my time is out and may i take a minute more we have  it's just not what the law requires the the transition plan was never provided and it was very very necessary we have a young lady who was never given services she should have gotten had she