case number seventeen dash six two zero nine so fiji at all versus wilson county schools argument not to exceed fifteen minutes per side mislay so you may proceed for the sophie's lawsuit is one for discrimination under the americans with disabilities act and the bill a taishan act not denial of education under the individuals with disabilities education act or i d e a up a little bit wors e because the relief sophie seeks admission to kids club subsidized daycare is not relief available under the i d e s core guarantee of a free appropriate public education the district court below aired provision under the i d e a provides that exhaustion is only required when the lawsuit seeks quote relief that is also available under the idea so the question is not whether the relief is available in at this motion to dismiss for exhaustion the question is not whether the relief is available on the a d a s and the rehabilitation act the question is whether the relief sought in the complaint is relief that is also available under the idea that's the question that we're addressing today and for three reasons id exhaustion does not apply in this case first as i noted the relief sophie seeks access to subsidized daycare and monetary damages is not available under the idea second applying sophie's complaint is for discrimination and access not denial of education and third even if rise clues could apply here which we submit that they do live well even if fries clues the clues presented in the fraud case could apply here they weigh against exhaustion in this case this court should reverse the district court's dismissal and allow sophie's case to proceed to the merits of her discrimination claim on the first point so h complaint six relief that is not available and the idea the statutory text as i noted says that it applies exhaustion applies only when a lawsuit seeks quote relief that is also available on the subject or fry analyzed this provision and said this that the thing quote the thing a plaintiff must seek in order to trigger the id is exhaustion rule is relief for denial of a free appropriate public education or fake moreover fry made clear that the question is not as strict grand case that is cited by wilson county and the district court below which the proposition that it was cited for was that exhaustion is based on what could be redress to any degree by the idea of the friday decision abrogates that implicitly exemplified by complaint per paragraph five here sophie's complaint sought admission to wilson county's publicly funded daycare kids club it's a subsidized daycare but that is paid for by parents second modification of wilson county's practice is to stop discrimination against disabled children that are seeking access to kids club and third compensatory damages this is relief that is not available under the idea as the cases that we cited in our briefing note access to day care for non educational purposes is not part of the i d f core guarantee of a free appropriate public education the cases that we cite for this proposition include for example a p x relationally petersen span madison metro several cases provide for this and of course as you know council wilson county argues but it is tangentially related i would say that the way to think about their argument that you know you don't have big care what then you not going to be able to go to school the right way it's argued that it's tangentially related what do you say to that is that enough precisely that is not enough and that's exactly the proposition that was rejected by the supreme court in frye that's called the field of education test and it's the test that this court in fact applied before it was reversed by friday so it's precisely the wrong case and at bottom nondiscriminatory access to child care is not relief available under the idea and of course wilson county gets around the bush about this but they never actually say in their briefing that if we go back to administrative proceedings that access to daycare would be provided under the idea it would be provided with an eye because of course anything provided under the idea must be provided for free and requiring this to be provided under the idea it would mean that they would have to provide free day care to all disabled children sophie second the supreme court's fry decision looks at the question of what the grab a minute complaint is in fry the supreme court held exhaustion is not necessary when the grab a man of plaintive suit is for something other than the denial of the calls a free appropriate public education now the statutory text defines this to include special education and related services it in turn defines related services as services required to benefit from special education and there are some examples provided so his complaint is for discrimination and access the core question of the a d n the rehabilitation of discrimination in access not denial of education you ask what is kids club provide this is a place where you have high school educated individuals working part time they are engaging the kids in playtime they have a homework hour but the handbook for kids club actually notes that the staff is not allowed to require students to do their homework they don't assist with the homework they're not allowed to require students to the homework this is not a place where education is taking place this is daycare and in fact the declaration of donna wright says that is it is provided quote for the convenience of parents and students the case law makes clear that things that are provided merely for the convenience of parents and not for the purpose of allowing the student to benefit from the education are not items that are required under the i letter i just feel that you are you setting too high a bar for yourself because i didn't read for are you saying that you have to show that you can't get the relief under you know get the screen well you're right your honor the way that fry has interpreted this is that you look to the gravity of complaint is this a complaint for access or is it a complaint for denial of education and so you're right this is not necessarily the high standard that you must prove that this relief could not be available and in fact noted that you don't have to prove this belief could not be available you look at what relief is actually sought and is the gravel and of complaint the government of the relief sought case it would be required to exhaust remedies under the looking at frys clues we would submit that the court should look to the grab them and if the complaint the key aspects that is addressed in friday however even if you were to apply frys clues exhaustion would policies to prevent further discrimination against disabled students in access to kids club and were seeking compensatory damages of three if you look to fry's first clue it is whether a plaintive could have brought essentially the same claim if the alleged conduct occurred at a public facility that was not a school this is not an invitation for a merits inquiry which would be inappropriate at the motion to dismiss it is not an invitation for merits inquiry over yes your honor the tennessee daycare regulations provide that if a student with disabilities is admitted to a daycare that they would be required to provide diapering and toileting assistance as needed and those regulations are included in appendix a dash i i hear sophie's claim for discrimination in admission to daycare could be brought against another public facility that offers daycare services such as a court house that offers a daycare even if we adopt wilson county's position that you don't look at this apples to apples comparison that you would look to a theater or a library that doesn't offer daycare the question of access is still an issue and access restriction a blanket access restriction would still violate the eighty and the rehabilitation act in facilities without a daycare the accommodations might be different than a daycare but access is what we're seeking in this complaint and a blanket denial of access is something that cannot be issued against an adult it cannot be issued against another it cannot be issued when there is another public facility at issue thorough detailed analysis in this case and first pointed out well there's an injunction so at the district court level that issue was not appealed so that's not before the court today or i'm losing the end of  sentences longer was an injunction and what there was an injunction sought at the district court level which was denied but they have not appealed that aspect so that's not in front of the court this is strictly the question of i d e a for the court  the complaint at the due process level was clearly that they saw a one on one assisted for so fiji in the aftercare kids club broke now they saw fit as part of fate it's in  their in their due process complained look in a paragraph twenty three so in the ip wilson can be determined sophie will have every opportunity to pitch to participate in extra curricular and nonacademic it pities that she qualified as despite saying so she has to not have access to the tucker crossroads elementary school aftercare program because of her disability they are seeking to continue it sounds like i mean if you read that is it you could very well read that is the growth of a man of that complaint if she wants to go to the kids club she does there's no question the that she needs an individual it's interpreted that you're going to have to have somebody diaper step two step one is admission the consequence of that is that the reason you aren't readily admitted is because you are toilet trained and so the consequence of admission yes it follows there from right that you will need and they it's and didn't seem to all eyes i heard you read it it didn't say the word needs an individual a well i mean it would be a consequence i say yes undoubtedly if you read through it it's a you're reading from the due process complain yes that is correct ok but because we're dealing with the with  different complaint now we're dealing with the complaint in the court and it's very clear that you can take one test you can ask for things in one venue in which they didn't get anywhere in you can decide well i'm not going to ask for that anymore i'm going to ask for something different and vindicate that other right that is correct i don't think that that's what fries serves i think it says that we really are going to let the plaintiff be the master of the complaint true you can't disguise it but you have to look at the relief that you want asserted and so if you are relying on the right to have a free and appropriate public education then you have to exhaust it but if you're relying on rights that come not from that statute but from the anti discrimination statutes then you can pursue it well i respectfully disagree with the concept that a plaintiff has the right to an  to look at these underlying issues to determine what the truth is rather than here so what how are they asking for something that is based on a free and appropriate public education in this case the request that they are asking is that effectively to have an assistant or aid to help with taunting needs in the kids club program and it's our position that well if you look at the regulations it's clear that that wouldn't apply with the eighty in our view it's likely that that would apply would say that then they lose but then that that's the point that they go to court and we're talking about the merits here either these two statutes give them a right to be in that program with whatever they think they need or it doesn't and if it doesn't give them that right then then they lose they can say but wait i need to do that to get my free appropriate public education will the the concept of under that concept her goal is to a teen and kids club we have imposed what we believe is a lawful allowable limitation on eligibility not not as if we put in a fifteen year old eligibility there are certain milage ability that are allowed by law under the regulations we believe that each child requiring attendance the law doesn't protect that it doesn't make that a criteria that can bypass the eligible to and so but under the ip in the ip process working with the parent we can design methods that will achieve her goal she knew but the point is the chief forfeits that she has to forego that if she wants to bring this lawsuit in the exhaust if she wants to keep it pled the way it is then she has to for go at that she doesn't get to say look taylor this for me she has to face your rules and face the possibility that they're going to be deemed not discriminatory that they're going to be valid rules and she's going to have to live with that well the kids club does not discriminate against disabled children there are numbered of disabled children in that program there are just no non toll train train children in the program and so that lack of discrimination exist but which she is saying is we have a right to bypass those rules under section five zero four and and continue with the same procedures we've got in place through an id through the i addressed this aspect in her educational goals this is a program we concede that there's federal funds that are good or governmental phones are effectively involved in the operation of the system even though it's a page you go by the know there's been there's certainly no law that supports that interpretation that it's mandatory that every day care in the state of tennessee have diapering services i think cracker it wide what job do you have to do it with everybody no question in and i think if we if we did open up even one of our twelve because we have twelve of these facilities in our school system then we would have to have them in all of them and we have to follow the state guidelines but the fact that we are were licensed the states initially came in n y c insists without the existence of this i think belies the argument that the law mandatory requires every day care and all ninety five counties to to have these services  and so if they can't pass any of the fry test then they undermine interpretation of prior out of they're not entitled to proceed until they exhaust so if they are saying mature if they are but if they're saying that the claim that we're bringing we could bring against any daycare that received federal funds it has nothing to do with it being part of a school system how do you respond to that i'd have no response to that i mean if that's if if that's what they're saying they can certainly say that but i think the regulations  i believe and we've said it on our brief and i'm certainly not an educator but but there are avenues to get this child in a situation where she can attain this aftercare program but that's best worked with the teacher in the parent and they can set up transitioning services methods where maybe they can get her kind of regulated intake or in a day at a time next week or or there's an extended summer learning program that they can target exclusively to this i'm sure there are other avenues those are available but those are things you discussed as part of the behavioral plan in the ip i guess but didn't you guys go through that you know they withdrew they voluntarily drew so any other questions you have i'm glad to answer but i think our positions pretty well set forth and judge crenshaw's opinion is very detailed and well written but is that the school system to do with  children that are trained in the regular school at this daycare during the during the academic day they'll provide them as as or i may list with a personal aide or assistant to help with those tasks they have train teachers some of the teachers are trained to do those types of things and during the school day that they fall off the name and clearly the ip you know you you comply with it there yes or yes or thank you thank you very much freeze the court i'll start first with counsel's venn diagram comment as this court seemed to recognize this is not the law after fry freiburg back to the field of education test now when council him to quote things that the school could do to prepare the child for kids but you can look to their brief to say what they suggest they say they might do transition services if and when she chief to modicum of regularity course they're not suggesting that she could currently gain admission there saying well you could put something in her i e p to teach her how to independently use the toilet and when she can independently use the toilet then she can be admitted ok but i just want to make sure that  rights that you are serving are you are you going to be realigning simply on these two statutes without any regard to anything that you might be entitled to under the ok so your you believe that these statutes garin to you both as as judge cook noted access is the first step accommodations what accommodations are appropriate would be would be separate here we're seeking access the complaint seeks access we don't talk about what kind of aid would be required adopting councils view would be like saying that a facility doesn't need to build access ramps for wheelchair users because they have a policy of excluding all individuals who can't walk from entering the building what we're seeking here is access for seeking access to the building  admission to the program this is something that cannot be denied under the regulations in fact twenty eight c f r thirty five point one thirty eight which is site in our briefing prevents eligibility criteria that screens out individuals with ok but you're prepared to litigate this under the correct and if i may also clarify all of the id a claims have been resolved through the settlement in the final consent order if i may read from that order a paragraph or two says quote the parties have satisfactorily resolved that substantive part of the petitioners complaint produce process seeking relief or educational benefits under the id the idea came claims have been resolved at the administrative level what we are seeking now access that is injunction and the relief sought which is an injunction permitting access which we still do see your shaking injunctive relief but is it permanent junction or correct the preliminary we we ultimately did not raise the opinion in the course thank you thank you and