education act and by tissue court judge it's an appeal brought under both the charter school laws in new jersey and i d e a and the core issue is the fiscal responsibility decisions on to a charter school and so let me let me i'm sorry to interrupt but we really do have very limited time and we do know the facts i'm just going to try to get right into the questions at least i haven't held my colleagues so mind s first question i've got is do we have to start by looking at this through the lens of traditional arion chunk sions for factor test analysis in other words do we have to walk through those steps and ask the questions about likelihood of success you know irreparable harm etc etc there's a there's an automatic ness so to speak when in the st instance you're talking about preserving a placement but here we're not talking about preserving replacement time about who's going to pay for preserving the placement so my question to you is is it right to jump right to the merits or do we have to go through the traditional steps to purchase the cycles issue is application be automatic injunction which does not require an analysis of the typical elements for an injunction the fiscal responsibility are intertwined with placement responsibilities for a look at a key phrase and when there is a private placement the way that a school satisfies since they put up occasions is through money and so although right now the placement is not currently this that it took place is that currently disputed that it is at laurel school the financial was was meant to exist because they wanted just to make sure that the child stayed in place and that's not an issue you're right it's not a question of whether this young person is staying that's done all we're talking about is who bears the cost of it why why is that so intertwined that we shouldn't be looking at this in him in the the more traditional way and just sent out so that if the staple placement itself is not dispute in the present district to simply disregard its discourse well that doesn't bed that would be the message right why would why would it be the case if we said if the placement is not an issue you have to meet the usual standards why would that send a message that the parent or the charter school or whatever the local educational  association is it's perhaps going to bear the risk or the cost why would that signal that they're going to lose necessarily then it shifts the burden is on the respondent in this case the charter school  move on an emergent basis to satisfy the elements of an injunction which is extraordinarily front of the law and it does have the fact of centrally shifting the fiscal responsibility st to the charter school which directly entitle to really ok go we'll go with that why are you still in really now assume we sue for the sake of discussion we thought you know what there is a likelihood of success just assume that for the sake of discussion deal with the irreparable harm piece right because the kind of signal from the district court and certainly arguments from your colleague on the other side is just money for a deal with that at the end where we're seeing reparable are well versed  the reimbursement mechanism that judges on the id created and the district court approved doesn't have support in the idea at the language of granting relief and just relief and i can see it is for the benefit of the well isn't the answer that this is it's not a statutory basis it's a legal recognition of your right that you should have had it in the st place and therefore you're getting damages and that's not contrary to any statute that's just plain old recognition place irrespective of the ultimate outcome of the dispute down the road with this adds is a new element that doesn't have any authorities no cited authorities that says well there's actually conditional state but responsibilities that that's an auto argument mr johnston because what you're saying is you can't win if there's if we look at this as a four factor test under traditional preliminary injunction analysis because there's just no lawful way for you to win that's but that's seems an odd position to take i would have thought now you know maybe i misunderstand my misunderstanding you know because it sounds like you're saying even though they're completely placement the child a bit doesn't need to the fact that mr inza book is here and content to remain remain silent sort indicates the parents and the child are happy you know they might have a preference for one side or the other happen to pay but it doesn't affect them they don't care like in the end the child is where the child ought to be that's in place done all we're arguing about now is a cash and who's going to front that cash and that's that's why i'm pressing on this point because i'm not sure i'm not sure logically how we get back to your assertion that this would be a new placement or this is all bound up in the law and there's no way to remedy a wrong about who should have paid yeah i can't explain why that is but it's not participating but we have a charter school which by its nature gives as long as its charter lists and charter schools in new jersey  sounded to me like you're arguing there for a minute we've got irreparable harm because we face recharger ing every couple years or whatever the timeframe is and we've got implicit in that might be we have budgetary issues we have teaching qualifications we had a bunch of issues that the school district doesn't have and a failure for us requiring us to pay this money upfront is not just a monetary cuny everything it has qualitative impacts on the school on the charter school now i don't mean to put words in your mouth but was at what you were saying are not harming now can i can i just probe on that a little bit the irreparable harm requirement it is fairly rigorous it's not it's going to cause us trouble this is a monetary thing and i basically is there anything that says that i mean it may be it may be that your client would suffer some hardship if they had paid but there's nothing that says if you're going to go out of business i mean if the students not going to be around all that long in closure or because of grading out  you might be right about this right that's why they are arguing this case here both sides but your assertion is the charter school with no skin in the game no no financial stake can negotiate and bind the school district to a very expensive private placement and the school districts got nothing to say about and that's just the way it is that's the way the law works you're entitled to do that you can negotiate with the parents you can reach a settlement that can be blessed east brunswick isn't at the table they show up later and you hand them the bill now how it how is that a fair system how our house at work got you know was the last year that we have the record is a costly thirteen thousand dollars ok so they may be a risk thirteen thousand dollars but they're definitely negotiating with east brunswick's money right cross section the community and to give the present district some modicum of due process if there's a private placement for ten years the charter school is in fact where this right did not exist only was an accident two thousand  as our papers indicate these disputes have multi school year stakes running hundreds of thousands of dollars the suggestion that it's inevitable for the charter school to do this well then the question is what happened the regulations don't require the charter school to do anything you didn't do here you know the regulations referenced the charter school even inviting the resin districts when i get in that occurred here it doesn't even reference the present district having a role in the ip decision making  me ask you then is there you know we're hearing this case today it'll take us some time to process an opinion one way or the other does it make sense for us to wait till after we hear about the  process here well your honor this century timeframe has forty five days to resolve this due process here for reasons that new jersey rightly deserves blame we're now in day four hundred  who knows we don't have assurance of when this hearing is going to be concluded we have a charter client who's paying costs that this statute does not provide to the charter school and in fact i think your this similar to what they did here only here of course they'd even have a program for each state when they filed an appeal but do they perpetuate the tendency just to keep this fiscal class on the charter school or was you see you say you got another hearing thursday i overstate it but we had two or three days already they're not consecutive and the next one is thursday and then after that we have dates in june and we have a status conference with mr bush tomorrow after all right  aware the intent of the automatic stay regarding guest in the stay put provision in the idea is to ensure that a disabled students placement is not unilaterally changed by a school district pending an underlying to process so it just ensures that the status quo is maintained we don't have that issue here as judge gordon pointed out in councils argument is a minute moment ago this student all parties agree that the pendant placement here is the laurel school the only answer he says these things are all typed together you can't really unwrap the money from the placement that's the way the system works and therefore the automatic nature of the stay put  place the student at the laurel school so the financial responsibility under the automatic stay put provision would apply to the party that it has educational responsibility for the student reflects that does go straight to the merits right now you're now you're past irreparable harm or anything like that you're just saying that they should lose on the merits because there are certain is under the law this the school district clearly is on the hook the baled hay was off the reservation here and so was the district court because there is nothing in the law that indicates that a charter school should be paying it's always and always and always about the school district bearing the cost so i mean if you want to go to t merits ok but how is that an argument about whether automatics stay or traditional for factor analysis and play  that only applies if clearly under the ivy of flies where a parent is challenging the placement the i p that's been proposed by the district that set of facts isn't present here so it doesn't invoke the automatic preliminary would we be doing violence to the statutory scheme and creating perverse incentives the way mr johnston asserts we would if we were to look at this using the force factor analysis the traditional not really doubt about this but financing goes hand in hand with pendent private school placement so it may be a little awkward but isn't it still i mean financing is financing really foreign to the automatic placement so it's through the lens of the child being removed from the placement the last thing we want to do is shift the burden the financial burden to the parent so here we have to educational entities that are fighting over a centrally over financial responsibility where is that automatic preliminary injunction provision is is to protect a parent from having to bear that fiscal responsibility well that's certainly one way to look at it but perhaps one way to look at it is also to say that the that the automatic nature of the injunction is to make sure that nothing at all nothing puts at risk placement and if there's arguments about who pays even if it doesn't involve the parents that that potentially puts at risk the placement and therefore you don't talk about traditional factors you just go to the i kind of you know i take it that's kind of the pitch that mr johnson is making that seems to be what m r might be saying why why if why would we be off base if we thought of it that way therefore we're not going to handle this like an ordinary p i we're going straight to the merits because as soon as you start arguing about even the money you're arguing about the  placement i think it an argument can be made that to go straight to the merits i think m r is distinguishable obviously from the situation that we have here where as the student in m r became the financial responsibility of the high school district at the time he aged out of the elementary school in that case and the relationship between a send receive district spending in receiving district is quite different than the relationship that we have here between the educational institutions so this was and eleven b it's a fiscal responsibility for any student currently enrolled in or determined to require private day residential school staff shall remain with the district of residence doesn't that  se all doubt as to who want to be paying the now be the district it is and if you read further your honor that's actually it also allows the resident district as or where to challenge that placement and and demonstrate that it has a lesser restrictive environment it would be essentially a totally illusory for the district to have to pay for the placement during the pendency of the due process then be successful on the merits of the due process and have a court determined that it does in fact have a lesser restrictive environment available but what have no legal remedy to recoup all the funds that have put forth to pay for that private school placement during the pendency of that challenge so the position of the district that that provision in eleven b that allows the challenge obviates the district's responsibility to pay at that point while the challenge is ongoing and as as has been pointed out obviously in the papers and the reason that we're here today is that there really is no precedent for this manner well negotiations between the parties that mean a parent and a charter school with respect to the moral school placement were exclusive of the school district in this natter and the result of that agreement was the i p m which was the subject of the challenge which was timely filed as your honor no dad and i ask you to respond to this language from our drink or by drink or case we were quoting the nd circuit but we dop that it basically implicit in the maintenance of the status quo is the requirement that a school district continue to finance an educational placement made by they see and consented to by the parent before the parent requested to due process he so it it it looks like all three of the players are mentioned their right and agency a parent to school district and the statement is made that implicit in m to the local education agency which in this case is the charter school so the maintenance of the status quo under the state put provision is rest solely with this the quote school district which is the local education agency which is  case so we actually think that that provision supports the district's districts argument that the fiscal responsibility that nexus between the state put placement and the financial responsibility that was mentioned earlier with respect to r and now with drinker that that rests solely with the charter school you think that the statutes we talk about the school district and the cases which talk about the school district can be read to say it falls on  the on the charter school to pay the do you have any authority for that at all yes to your st question that school district refers to a charter school targets school act does say that target schools are considered the school district for purposes of proposing and providing an appropriate a free and appropriate public education for disabled child so by extension they are of the school district when we're looking at those other cases when we're looking at the use of the term school district in a case like drinker that never contemplated what we have here it doesn't refer t the resident district as being a separate entity from the charter school those are cases in which the school district which is the ellie and i and the parent are in a dispute over the placement so this school what you're suggesting then doesn't that lay the burden of potentially high costs of private school placements on the entities that are least well positioned to parent while to school district which has vastly more money than any individual charter school can just as mr johnson indicates play the clock out just keep phylum appealing let me go this is a business that doesn't that seem like as a policy matter it would be an odd thing for the legislature to be wanting to have happen not at all roger because it's unequivocal that the idea of a requires an obligates an alley here to look at the full spectrum of programming before determining what's appropriate for a student so charter schools as the l e a for these disabled students are required to consider all lesser insert restricted environment before they get up to the most restrictive an arguably most expensive placements in a private tasteful so what the i think the record shows when specifically asked about that the the comment back was well we're not ready to talk we it's true we think we can do this but we're not really it's a specifics we can't speak to that now maybe maybe i read that wrong as how that but i think layman you said it but you know somebody on your team said you know we could handle this without a private placement but we can't really talk about that if you can talk about it then doesn't that indicate that you really didn't a little bit is that i mean it's the district's position that the charter school did not consider lesser perspective placements before determining that the laurel school was the appropriate placement and with respect to that the commentary that your honor just quoted that was in counsel's pleading i think respectfully taken out of context by counsel and in their papers but the again going to the narrow interpretation of what we're permitted to do under the challenge under fourteen s two dollars which says that we're narrow we've limited just to the question of whether we can provide the program in a lesser restrictive environment whether counsel wants us to provide some other program is  moment because we're only charged with implementing their ip in a lesser restrictive environment so i challenge that statement as being ok i don't believe and would it be better for the system if the charter school could do exactly what it did here and then the school district is incentivized to be involved in the process not to stand by and say well we weren't there we didn't know but to be involved in the process instead of after the fact saying we weren't there so we've got no responsibility and i'm trying to think through that the knock on effects of this if we rule the way you want us to rule to school districts always free to say we were there make the end to sites we think we could do it better the charter school house study team that makes the decision with the parents that makes the decision that with respect to placement so in theory it might be nice if we could reshape the you know the entire system whereas the resident district who has essentially the purse strings and in a situation would have some say or some you know i mean you have you have influence right right but the only mechanism that we have as it exists now is the right to challenge ones that thinking about this in a big picture kind of way in the next case if if we adopt your argument that it should be the charter school that pays doesn't in the next case let's say it's not a  charter schools is well off and actually could could bankrupt it does that make any sense if we adopt your rule your honor i can't speak to that institution that has to make that determination of what is you know what is appropriate under the circumstances you're going to get i'm talking about who's paying the bill i get their responsibility and i really question and it's who's paying for it and i can see where that would be or create a real problem based on the sort of regime is as you see it i it may or honor and certainly that is a consideration that a charter school might have to consider when determining an appropriate placement for ideate specifically set up with the idea that what's going to be best for the child is what's going to happen and the state is going to pay for it and we don't care whether the state is a charter school where the state is a school district we're not going to play and dice here we're just going to say the state's going to pay for it and the child is going to be taken care of isn't that the overarching message of the i d e a inflate and by following your logic don't we get removed severely away from that because now we place a financial burden of an extraordinary nature on the son on the entity least able to handle it and by your own question or statement a minute ago they'd have to think about their considering whether to provide a feat student so i just want to clarify that's why i agree with the court as to that as to that i will challenge though that as is the case with a school district as as well whether it's a big district like east brunswick worse or a smaller school district making an educated decision as to how to provide a free appropriate public education to his able students is cost intensive and it could bankrupt a local education a local resident district in the same manner in which it could bankrupt our target school so i i think that that consideration can't be you know of monumental  our responsibility is to look at the statute and the new jersey regs and our own decisions and try to figure out whether that line of reasoning scott any poll at all when a lot of what we've written and what we've understood from the law is this falls on the school district it falls on the school district and you can say well that's because the school districts are the ones making the decision in those contexts but that seems to be the way the law is written and you're asking us to say well read school district to mean local educational it's already fair go charter school because it was that's written into eleven b the legislature couldn't possibly have created a mechanism to challenge the placement but offer that nd no relief so what would happen for example in this case the due process was filed spot east brunswick in november of two thousand and nineteen so the student has been in this placement since september of two thousand and nineteen prior a prior to sponsor the process so from the time that the petition was filed through the president we're talking about you know a year in and six not a year and a tax worth of time so even if we had a decision by tom morrow east brunswick would have paid for this laurel school placement for a year and a half and then under had six was wind of what it takes as asking the court to do is to find that judge will he not he could find east brunswick has an appropriate program in a less restrictive environment looks good six i had created a program that was too restrictive and east brunswick is successful but yet east brunswick is still on the hook and had already paid for a week you know  it different from any other due process case where where if you have a fight that doesn't involve the charter school it's just the school district and the parents and this stay put orders from place and it takes a year and a half and the bills are mounting up and ultimately there's a decision that says well that was wrong take the child back out in those circumstances there are so there's still some or a parent which is a lot different than a school district or a charter school ok let's just move past that must pass and tell me in the end in a case like that does the school district get to say look this was a mistake in the end that it was decided this  in that on like a case where there's a dispute between a parent and a district this is a case where the charter school shows this placement so when we're talking about like an unfair financial burden what your honor is asking about  we can't make a parent pay for it and the district is providing the status quo that the that the parent and that the student is entitled to here the status quo was determined by  right and what we're i guess i'm going back to a question i asked earlier so i don't want to be repetitive to burn everybody's time but from the perspective of the law does the law care one whit whether one arm of the state is paying for it or another says this is public monies these are public schools even if it's a charter school it's a public school and the law doesn't care whether it's a tip whether says school districts from the sense of what's fair to the state it's the state's money and the state's going to pay for it so it's really not a question of the school districts being untrue treated unfairly or antics is being treated unfairly from the lost perspective all th the state there's the cost and if the state bears the cost of the school district or through to the ultimate purposes of diaby a been served the child's placement is not disturbed during the litigation on the due process  that that we don't want to we want to incentivize both charter schools and just and and to more traditional school districts to seek less restrictive to abide by the obligation to id and a to look at the spectrum of placements and place a student in the least restrictive environment and i think that by allowing school charter schools to obligate school districts to expensive private day school placements with without any financial responsibility without any burden whatsoever i'm not sure that that complies well they say that they say they've got a bird they say they're losing thirteen fourteen thousand dollars a year because they've got a seat that they're obligated not to fill which they could fill so they they search we do have skin in the game and according to our budget that's real money so we're not just messing around here we've got we have an incentive to do this right we try to do it right that's what i hear mr chops and say you're wrong he's not wrong your honor but it pales in comparison to the cost of what a private day school is and a charter school knowing that they have no financial responsibility whatsoever is i mean we don't want to incentivize her or we want to incentivize charter schools to look at lesser restrictive placements and all school districts look at less restrictive placements it's in the interest of the state it complies with the idea idea obligations to look at the spectrum of options and we don't want charter schools to make private school placements because it's the you know something that just parents want or you know we want to really not it doesn't permit us to be involved or at the table and even assuming that we had a seat at the table for some of these decision making processes we don't have any authority to make those decisions regardless of our participation  level judge jordan you have any other questions but just one sort of as a practical matter when you say the law doesn't give you any right to table assume just for the sake of discussion for a moment that were true i don't know whether that's true or not but assume it's what you didn't have a right to be at the table but you were in the room when this st thing happened could have chosen to speak i assume you released recognised are you saying that you wouldn't have some influence who who grants the charter to the charter schools and to the state of new jersey the department of education there's a school district to have any influence on whether charter schools are granted within their district and i'm not aware your honor that's not i would assume that they have some there but i'm not familiar with the capacity for that i'm sorry just sort of it seems to me stance trees when you say the law doesn't give us any right we wouldn't have any say at all dead if there were financial incentives to school district would know how to make its interests know and it would get involved in some way because it would be in their interest to do it and that the charter schools would have an interest in knowing and wanting to know what the school district's positions were because that might have an influence on their continued existence but maybe i'm just extrapolating too much now i don't agree i think as a practical three a dash fifteen four b two is the for purposes of the challenge and what that means is that in the due process proceedings which are governed by the administrative code it six a fourteen a new jersey that  is brunswick takes on their responsibilities including state put responsibilities which are in that section so in terms of school district fiscal responsibility not only does the charter school us clearly could only sponsor but the regulations do as well in terms of have an opportunity to protect their interests by saying wait a nd you know you charter school might want to see this person go to the most expensive day school in the state and the parents might want to go to have their child go to the most expensive  school in the state and you're both happy to see east brunswick pay for that but that's not the right placement here because we can handle this child's needs but we don't have any way to get that view that's that's what i was trying to ask about earlier what's what's the disincentive for the charter school just to say that's not my money go ahead you know go to richie rich schools well you know i think any school client embarked on a due process hearing with think of it as extraordinarily stressful resource taxing not to mention drag out like layups legal fees and a resident district idea a there are complaint desiccation procedures so if a resident district finds that a charter school has a pattern of disregarding the least strict environment they are allowed under state code to request an investigation by the department of education or the u s department of education practices that serve all students there's there's decisions that are published at least on the axis of east brunswick appealing decisions to allow to fail to operate the very st charter is a subject matter  behaviorist eight entailed meaningful aspects of a program that were different and they and they only did that when the ale j compelled them to do so and so the real risk here is that at present district is going to just simply drop it challenge or i'm sorry to file a challenge to these placements and just sit back irrespective of the merits and that's the inverse of her hypothetical that she took exception to what if we have to pay for this even if we prevail but imagine a scenario where the charter school pays for it when the district literally doesn't have a member choice program to suggest until compelled eight months later after the fact that i have yours and i said i judge gordon giving more no thank you ok and judge