now we have the case of chambers versus school district and leslie chambers mr chambers in the courtroom today in the back as parents and guardians of their daughter fair in chambers who is incapacitated currently twenty six years old formerly a student of the thought of your school district previous panel was was judges very fisher in jordan i believe and i'd like to just highlight three issues today for the court's consideration there are as you can as you know there are many issues in the breeze and the procedural posture of this case is a little bit unusual but the three things i'd like to point out today and highlight first is a waiver argument that's in the beginning of our brief it's the law of the case argument and the final judgment rule and primarily we're arguing that we shouldn't be here in the first place that the school district should have raised could have raised and should have raised the arguments that it made in that district court on its second motion for summary judgment on the first appeal and that the issue of compensatory damages whether or not compensatory damages under the rehabilitation act and the american disabilities act was not raised in the first appeal that's the first general point second general point is the clickable standard for a violation of the rehabilitation act in the way we have course say that it is not intentional discrimination is not it is not the highest standard it is something less than that which is the deliberate indifference  no no greater than deliberate indifference and i think that there is a maybe a misconception or mischaracterization of this issue in the breeze the breeze make it appear as if this panel needs to decide intentional discrimination or deliberate indifference and when you read the cases there really those concepts are not mutually exclusive and the third point is if we if the panel gets to it procedurally an analytically is whether or not the trial court erred in considering evidence that it had in front of it for summary judgment and whether it should have considered evidence that was supplemented after the motion for summary judgment let's assume that that  the exclusion of the supplement is a matter of discretion that is not you said you know you haven't decided that but there is an abuse of discretion and there yes give us your take on exactly how the evidence that was presented district court creates a genuine issue and let's use your your proposal that it is deliberate indifference which would require knowledge of your knowledge of their violation of the law and failure to act yes your honor the the deliberate indifference standard is important and we think that the standard articulated is exactly our case district knew that pursuit of its policies would likely result in a violation of federally protected rights that's the quote that we see from many many cases that we cite in our brief around page twenty nine so we believe very strongly that that is exactly what we have we have a history a pattern and practice of the school district over many many years you know fifteen plus years that demonstrate that they knew we should have known that the policies that they were pursuing would result would likely result in a violation of fair and chambers federally protected rights and that is in fact what happened so the evidence that we have if you will be more than knowledge and that's failure to act it's  not standing up not right now the school district says that essentially the school district says that the more we argue about what didn't happen the stronger it is for their case they say look at all the things that we did for fair and chambers it was this was not intentional there was no animists here maybe it's negligence in fact if you look at their brief they are but it didn't they at least admit that there is a genuine issue of material fact asking that legends as a matter of fact as i'm sure you so over the period of time that ferrand it was supposed to be providing these services your claim is at various points it wasn't provided because you know they said you know they couldn't find a provider  extent to which the failures were intended to be addressed by the board of the that's apparently not the subject of the appeal of the maybe but it's the record questions so first let me point to where you can find this and then i'll answer the question in our in our main briefing fifty five there is a listing of twelve categories that highlight the school districts failure so that's that's where it starts goes on a school district school district does nothing right that's very close to what they say they say that is as far back as the early ninety's there were i e peace for fair and chambers that were allegedly specific and allegedly appropriate and there was a finding again and again and again by all of the experts all of the hearing the administrative hearings that the school district either had inappropriate i p's or they had i provided and therefore what what did they do that they tried they couldn't find well those because it goes beyond that and when i hear and when i hear that phrase you know they tried that sounds like what the school district is saying you know we tried but we just didn't do it and that might be negligence and that might be a failure but that's not deliberate indifference but it goes beyond that they were there the the consistent failure and the consistent findings of the experts over over fifteen years told the school district time and time again she's not in the right school she doesn't have the proper teachers there's no faculty that can address her knees she's not in a classroom with other students of the same level there are their higher functioning she should be somewhere else time and time again there were i p's that were not followed failed to be followed and they were really in place unless that would be appropriate and were there things that that you could could find i mean on the on the one hand you're presuming there is a level educate billett yes and on the other hand you don't know whether at some point there isn't i know department advocated a  certain certain box methodology or whatever correct what are you saying should have been done that wasn't done in terms of kind of drilling down to this there and when right in as early as the early ninety's i believe ninety three three ninety four the experts all made recommendations to the school district they all said you're not providing the proper faculty so that's one issue they didn't provide faculty that were where the the early expert was i'm sorry i have to i have to have to look at that and arm and our materials i because that's another issue we have i think the chair it's tough some references in the briefs don't don't don't jive in terms of the and in terms of the citation to a specific place that allegedly says x and you go to the place and it's a cover the deposition or whatever so we have some problems  early ninety's who you said the experts said i know there was a finding as a result of due process hearing and then there was a state bureau but i don't about i gather to get the services that had been ordered because of a lack of guarantee of payment are those services these are compensatory services they're just never provided  that correct that's correct but at some point there are or perhaps throughout there are some kind of speech related services that are being provided at the school is that because there's reference  to in the early two thousand a later failure of speech and o t p t services to be provided which suggests that they were earlier provided and it was a little unclear to me if that meant that there were and again we're all assuming this discussion here is all the tsunami that we that you get to it obviously we're urging that that you don't even get to this analysis because the school district had no right to bring this in the first place because of all the case in the final judgment rule you can you can certainly find that they were they waive their rights by not doing it and there's really no answer to that from from the school district so i assume your entire law of the case argument is based there's an additional site that is not in the brief for the final judgment rule but they work hand in hand the law of the case is that the panel has said that the whole obviously the whole underlying matter in the district court of law and if that's it i got it if there's something more to it tell me that's the panel finding a genuine issue of material fact is the law of the case now we're here today a sense oblique because there's a genuine issue of material fact whether there's an intense the requisite judgment on it they have they have not and by the way nothing has changed there's you know there's been no amended complaint there's been no new claims there's no reason why they couldn't have done it it was remanded to the district court and i think everyone thought ok they just mention the panel said there's a genuine issue quote not to mention whether the school district otherwise committed violations of the rehabilitation i think yes that should have been that extra have gone to a jury but then they filed the second summary judgment motion and said well you can't really prove the intent and that's what the final judgment rule would bar with say the inefficiency of us even being here is exactly what the final judgment will the bar well let me ask you this question putting the the issue that you've just been discussing aside for a moment is it your position that at no time when fairly was at wordsworth did she receive a received the fate correct ok she would know she was there for some time oh yes she was she was she was and the school district you know was quick to say well mr chambers signed off on forms and everything else of sure he did he but you admitted for a period they question is yes i agree with what you said that there are at all times she did not receive the nothing if they while that wordsworth the answer dr rosenthal is there was not a period where they were satisfied but the reality is it takes a while to to know whether something is being implemented properly to see progress to get reports and as you see from the record it was a constant battle to get reports and then every pretty much every report that was written said this is not being properly done so it wasn't th were satisfied it just took a while to object seemed to be some of the satisfaction was more behavioral than anything she's seen more relaxed something i don't know seemed more an outward africa and there were time and the record reflects let's just you know let's be frank about it it's not that one hundred percent of every minute was was was horrifying it all the schools there were times that were better than others she had some educators that seemed to seem to do a better job but never appropriate to her her her disability and that's really the bottom line every expert has said she's twenty six year old she communicates at the level of a two year old they already know that you mean i think i would worry about just relying on the inability or the flack of progress as the only measure of the lack of service is because there's obviously a causal connection that we will of course anybody looking at the situation has to go to this place or provide this therapy or it was known at the time i mean awful lot of stuff having to do with autism was not known and in the ninety's and even years yeah exactly what do you think they had to do yet but they didn't provide they didn't provide educators who were who were even satisfactory with what was not at the time i mean you know you experts in the reports i said i said she didn't even have someone who was familiar with autism at the time well yes i could and two other questions to push on that a little bit to what extent is your criticism of the school district's response to the i p s that were in place and the continuing questions that were raised to what extent is your complaint one of placement that is the schools in which she was placed as opposed to the specific years to provide speech and o t p t to her number one and number two what are we to make of the school districts arguments that at various times not that the parents were at fault because that's not a legal analysis that applies here but that some of these school districts explanations for delays or difficulties in implementing the i use arose out of disagreements about evaluators that could provide the necessary information that the school sees required or that the administrative process required there are separate questions truck i'd like to dance to the first question is that the the place where she was the various schools that she attended versus the services that she was given are related to those two are very related because there are schools that obviously are you know better geared towards the services so it really is really those things go hand in hand the record reflects seems to reflect that it was hard for the school district to figure out a districts doing its job right in this here and if this was and if this was a situation and i'm not sure how to express this but if this is a situation where you had you know difficult parents generally and you couldn't satisfy them and nothing ever made them happy and they were the ones who were constantly pulling the child out of the school you know you might say look what is what is the school district supposed to do this is not that situation because virtually every time that the chamber's pull ferran out of the school or objected to the services or object to the educators or they file for as you know it mistreated hearings and reports every single time they were supported by the findings of these hearings and these are not people that ferrand's that fairness and the chambers hired you know these are objective hearing officers and objective experts so they were vindicated if you will by their by their objection and the things that th money jeffery scott from the school district of philadelphia normally i would not go back into the procedural history of the case but i think it's it's a long history and i think since it was race it would be a good start for believed that he basically was not bringing those claims but it was all about nine hundred eighty three whether it was a mono claim it was a direct one i'll claim there was no individual defendants in the case so when the judge issued her first opinion district court judge issued her first she believes that mr chambers was not bringing the a t f and the ira claims however the school district did brief those issues and the school district did argue that there wasn't enough evidence to go on the y five zero four and yeah and we had some district court judges in our district start to cases such as this where there was allegations of discrimination and claims for money damages not injun damages and that's what sort of changed we've had judge search opinion indicate and see case which which talks about because tight because these claims are under title six these are spending clause types cases you the legislative history and the purposes of the two critical statutes that you've alluded to that a standard of deliberate indifference is case they were talking about direct purposeful discrimination you have to have a decision maker making a decision because of the disability not in spite of when would you be able to prove that a that a  school district person did this because your kid is autistic well because your kid is and the litany of things that your child could be there there was there was a case actually was filed where it was alleged and it's in our most discrimination cases you don't have the smoking gun you don't have the memo you don't have you don't have a memo that says that but when we get into deliberate indifference what we get into is a lot of disagreement about how the difference and you drill down you look at what happened and only if there was indifference that was deliberate it's not a low standard it's not a low standard and yet when you see it when it happens why should it not why should there not be damages for someone who has deliberately if the court is going to do that the court has to be specific for example we know  in cases of bobbing i go outside a little bit out of others from where we have different standards for shocking or conscious right in some cases that intend to harm in some cases it is deliberate indifference so we do know that there are different levels of intent if the courts rule it out that the liver in different states or it's got to make sure and this is our position that it just can't be it could have been better even if they know things could have turned out better even if they know i mean as a matter of law we have standards that not it that's just knowing there's a failure and knowing knowing knowing it's a failure and not acting you would if you would agree with this proposition and tell me if you don't if there  d in your one and that i b which is a product of an agreement between the parents and depending on the age of the child the child and and the school district  it sets out pick a number five things that need to be met right you would agree that if none of the five things were met that would certainly be deliberate indifferen things in the id and it says you know speech will be provided three times a week it both in school and out of school p t three times a week ot three times a week will make it easier all three times a week right o t in my hypothetical is up viral p t is provided once a week rather than three times a week speech is provided once a week and not three times a week it's because of her this bill well that's that's a revision of the statute is designed to deal only with disabled people it's not like we're dealing with a normal discrimination population that you've got the whole world and  the questions you're asking or and the ideate contacts if you then move it into the eighty a slash before area and the person is eligible and the services were not provided because of that particular mean there's a there's a give and take in fact i would call it's never gets ever perfect right right yes but at the end of the day everybody signs off on the id it's almost as though it's a contract yes ok all right bea utiful so in my hypothetical when none of the three things that have been agreed to in the contract have been provided right is an action for breach and what's assumed now that breach show intentional discrimination and then we have at the far corner that the bookend we have discriminatory animists yes in europe taken the position if i understand you correctly that you have to have though how the court to find it and that's all i'm saying it is a way let's let's say we're defining it as knowledge and not just a little blip knowledge but brought to your attention knowledge and failure to tell me how that can be there of your brief greenies that in one thousand nine hundred five as a result of the due process hearing it was that there was an order that says you're not giving the services school district how did the school district respond to those instances and provide the services what's in the record about the school district having indeed provide and add to it the fact that they were supposed to the chambers were allowed to get services and have them paid for by the school district and the school district did not come forth and say we will we will guarantee how how you with particular years or you know i mean there was an extra o t in p t is not helpful to us well in the fact that ninety five there were ordered and then ninety nine said there had been there were it wasn't given and then we find out the placement one so that was part of the agreement so there was compensatory education awarded well and say it was awarded it who was supposed to go out and provide that the chambers during the summer could get the service ok that they were awarded and i don't know without asking the court if i could write a letter know for sure because the record that i have is unclear whether or not in fact it indicates to me that those services were not was that the instance where mr chambers said i need somebody to guarantee payment in order that as a result of the ninety seven agreement there were fifty four one on one sessions to be provided and as you stand here now you don't know whether they were provided i do know that i actually at this point i can't i would have to follow up with a with a were done and if they weren't done after the school districts told do them due process hearing pennsylvania your words worth and then at least shouldn't this go to a jury well the first of appeals the terminal based on the record that would be as it existed at the time that there was no evidence of deliberate difference no evidence of the ripper deference to friends educational needs  on the section nine hundred eighty three claim they also found that there was no evidence at all of discrimination under the equal protection claim because there was no evidence of purposeful discrimination or have an ounce of intent based upon the records gathered by the pla so it's our position that the plaintiffs had the burden of proof the first time around on the issue of deliberate indifference they did not make out the liberal difference the first time if there are no genuine disputes as the material fact then you have no problems go home you when we get that but in wisconsin my question a few moments ago there is a but one of the principal ones is the one nine hundred ninety seven and if you if if as you say in here now you don't know whether a particular service provided for an agreement was provided for and was no i can't speak for my colleagues but doesn't seem particularly useful because if you can't answer this to us now it leads us to a conclusion that there are got to be  genuine disputes that should be resolved in the district court why am i wrong because judge the district court judge was correct when the  have adopted the standard that you are arguing to us in her her opinion did she not on account of in other words she liberated differences in account of she did and  at my position is she she founded that rigid case which said less than factional conduct and in another context was not political but judge kreider did adopt an intensity there and she said under whether it's purpose or deliberate and different some of the facts of the record presented by the plaintiffs on summary judgment there wasn't sufficient evidence to show intent she also cited her opinion this court's decision on the due process claim which is a deliberate and different standard it's struggle with that we do that i struggle with that you know i'm not i'm not trying to do anything other than the liberal indifference and deliberate indifference and in this context under the same set of facts on the same evidence seems to me to be the same almost the same standard but under a different set of laws which is in this case they are eight and the section two go to the idea so if the school district didn't have the deliberate indifference on the due process they could have the deliberat difference mere disagreements over services and even services are provided we still have to get to the to the crux of the statute and it's because of disability i don't think the plaintiff met the burden of proof i think the you for the extra time for it i'll be brief and just address a couple of quick things here first of all i just heard the entire of conversation of course and i would i would of course disagree with what school district council just said ten seconds ago that the attentional discrimination a matter what means it has to be an act because someone's disabled that's the whole point here is that it doesn't have to be an act as a result of someone being disabled it only has to meet that other standard we were talking about which is indifference to the likelihood of the policy being continued in resulting in a violation of a federally protected rights there's a couple of places i did have an opportunity to quickly look you asked about the early ninety's you know where where where you can point to for the early ninety's and enjoyed appendix at five ninety seven it's the report by richard hall he reviews the the history in the treatment of fare and starts at five eighty six but if five ninety seven is a chart and five ninety nine is a chart comparing the cognitive processes of what it what it was and what it could have then i'm aware of the issue that just because there  was there was a lack of development that's not necessarily but it does review what happened throughout through that timeframe the hearing report of march eighteenth two thousand and four similarly goes through the history of the one nine hundred ninety much extra time the time we didn't get into some of the other procedural issues were very i'm very well aware of the trial course discretion and a lot of the procedural issues i would just say that i don't think that regardless of the decisions that have been for or against fair in chambers i think that every opinion literally that we've seen by the district court in this panel has talked about how sympathetic the case has been and it's a very heart rending case generally and as i said in the brief and i'll just close with this i mentioned that because of what the family has gone through not as a matter of sympathy we can certainly argue that sympathy might have a place in these legal arguments but there's a there's not there's not a very large space between sympathy for the family and what might constitute a manifest injustice if the trial court doesn't review certain information there's not a very large leap between sympathy and prejudice outweighing for one party or the other so to the extent that the court analyzes any procedural issues or any substantive issues where there's manifest injustice or excusable neglect or there's a balance of the equities or prejudice i think it's clear that that way squarely on the