good morning everyone and welcome to the th circuit judges clifton and bennett i want to welcome you to our court and thank you for having us here in phoenix we love being here we have a number of matters on calendar today some of the been submitted i will call them in the order the appear on the calendar one thing counsel just remember keep track of your time if you want to save rebuttal time that's fine just it's up to you to reserve it and just remember when that light starts flashing red that means stop it's not like at the i always say it's not like the crosswalk where you start walking faster what flashing red flashing red means stop and i will try to enforce that rule and with that we'll go ahead and call the st case i apologize if i'm pronouncing the last name it was hang girl disabled daughter tiffany pink girl piecer voces and also the denial of faith because the school district had failed for the entire two hundred and one thousand three hundred and fourteen school year to provide tiffany with any of her services and the matter went before the confused so i this because the district court's order made it pretty clear in the least the court's view that i don't roman was a maybe statistical or a state accounting or state funding issue but it didn't mean that the school district wasn't prepared to provide educational services do you dispute that well that claim here is that the school  not provide those services well yeah but if they didn't provide the services because you elected that point to send her to the private program instead that's not the same as the state of the school district saying no was there an effort made to re because she was placed in the private school based on your judgment i don't see anything that suggests the school district wasn't prepared to provide educational services in you've just indicated you didn't ask them to reenroll her the letter that the district court cites speaks of smooth transition enrollment when you are ready to have her begins google so i haven't seen anything that says the school district wasn't prepared to provide the services now you may have received this notice of an enrollment and it's suggested in in the district's brief you decided well there's my opportunity because i'd rather send her to the private school but i don't see where the school district ever said brief indicates is driven by the state's desire not to be paying financial support for students that art attending the school so they have this provision about how you keep track of how many students are enroll but i haven't seen anything that suggests the school district wasn't prepared to provide educational services that the school district ever denied services well that they never offered her a free an appropriate public education how do you know that day if you never asked to enroll her again what's the basis for that statement well it was their obligation to offer faith and they did not do that honor no no you just said you never attempted to reenroll her so what is the school district supposed to do go and drag her out of the private program even or older him well your honor even when students are in private schools or their expelled or suspended the district still is obligated to provide a free an appropriate public had to wait as they ever turned down any request a education well when my daughter became very ill and was hospitalized i reached out to them again after reaching out to them previously and they still denied an operatic in the record that talks about that this well it's in our due process complaint your honor it's in all my briefing at the district court level and at this level as well could you point to it because this is all news to me that the talk about what happened months later because i haven't found any i'm asking you to point me to it is certain the record i haven't found anything that suggests the school district said no to any requests to provide services to her after this unenrolled mn episode it's it's in and keep in mind you've acknowledged that there's been no request of the school district to reenroll her so i'm not sure exactly what it is the school district supposed to have done provision they were not allowed to own and roll her well that's an entirely different objection and i don't understand where that comes from and you know it's an objection you've made so far you've complained about not providing services but the school district has suggested this may be a result of your desire to send her to the private program instead if there was no request after this a number which your own gates is driven by state financial support but if there's nothing that says the school district wouldn't reenroll her and wouldn't provide services i have trouble finding out what the what the problem is and the talks about this explicitly and i don't see in your brief to us where you can test that and if you look at the due process notice your honor on pages peach it's actually my excerpts of the record for the opening brief it talks about page six we requested services after my daughter became ill and the district you're opening brief this is the due process complaint notice the den you're talking paged so it's page six of the e r yes but page three of the due process complaint correct ok so on that page there are a number of paragraphs what paragraph are you emailed me and said the district is not obliged to the provision of faith and refuse to provide any service i look at the top of that page six and it says the letter that was received from the school district acknowledges the t p still remained eligible for such programs and services and advised tepees parents to contact her home school to schedule a new i e p meeting the parents ever contact the school they were trying to change her school her home school was not where she had been placed under i e again you've got grievances that i haven't seen articulated a place or discussed in the brief i'm trying to follow and i actually did reach out to the school year on her but we never had a hearing this case was dismissed for lack of jurisdiction so we never had a hearing to present evidence issue you're free to make your argument i mean i got to tell you i haven't figured out what the problem is where the school district said no and if you can point me to something where the school district says no i understand the grievance if you don't and i don't think you have so far i'm willing to listen in and you know have to say but i have hard time seeing how the school districts liable idea you're required to have a hearing what i hear judge clifton asking you is that to get a hearing you have to show that you were actually denied something you requested you have to show that your claim relates to the evaluation and benefit cation or placement of the child the special education student placement of the student means their ip services what's listed in their ip so that the claim that we made on behalf of tiffany was with respect to the failure of the district to provide her i e p services and so as to vet boy i think what gets clipped in ists asking is where was the distance how the district failed to provide it if it was never requested i think that's what he's what he's getting at so can you help us assuming that's a gap in the case can you help us fill that gap well tiffany was already under an eye e p and so the district was already obligated to provide those services and that the district violated stay put which is federal i d e a statute when they under rolled her and removed her from her services it wasn't us that they were they removed her from her special education services pursuant to her then current i e p so what's your argument then by the by the district and rolling your child and the fact that you complained about that that triggered the right to hearing their correct their violation of stay put and their removal of her from her services triggered the parental right to request a due process hearing because i think the concern that's been expressed is that what triggers the right to a hearing because clearly is there was no hearing interact and if you had a right to hear it didn't happen then you probably get a hearing the question is what triggers the right to hear and you're saying the under the role that of your daughter and that in this stopping this but the services she was receiving that was enough yes they failed to provide her with faith which is a free an appropriate public education and i would like to reserve a little time if i me very very well will do   they have been denied a fee were an evaluation of an educational placement of a child with a disability even if their claim is factually meritless that the congress and the regulations has provided them an absolute right to a due process hearing at which the hearing officer can say absolutely meritless your child wasn't disenrolled you're misinterpreting what you've got  doesn't the claim that you're denied a faith entitle you to a hearing even if your claim is meritless as i'm sure your position is claims are often meritless what was actually alleged in the office of administrative hearings was that her an enrollment under state law violated the i d e a well there are other things in there too that there are i agree so what is what is mandatory is the opportunity for a hearing what a guaranteed right what does that mean that you have the opportunity for here if you you allege a claim that falls within the i d e a parameters the identification evaluation or placement of a student or the then you have the opportunity for a hearing what does that mean the opportunity for a hearing as opposed to the way i read the statute is that as long as you provide the appropriate notice you're entitled to a hearing what is opportunity for is earing mean are granted sometimes partial claims are dismissed because they don't state a claim because there is no relief that can be granted there is not a guaranteed a right for all of those so so someone makes a claim i was denied a favor and the hearing officer thinks this is a pretty meritless claim they're never going to be able to prove it i've given you an opportunity for a hearing that i don't think you get one so you don't get one and that's ok under the statute if all that complaint says says i was denied faith that's correct that is insufficient under the i d e a pleading requirements to state a claim well you know that that is under the  so the hearing officer can decide on what disenroll meant means without giving her here i believe she absolutely can what the l j did here was say you're alleging the an enrollment is illegal and that is truly what the complaint said i don't have authority over that parent did not allege that her educational placement was changed because it wasn't the student was actually not impacted at all by this notice a bun in roman under state law so there was no allegation in the complaint that tiffany was impacted the a l j in our office of administrative hearings has jurisdiction over what's happening to that student is was her educational placement changed the a l j could have taken jurisdiction under the i d e a that's not what was alleged here preliminary determination in your view without a hearing she says this disenroll meant means without positive action by her the student can't come back in the school and even if that is true even if that's arguably true the you can say no no no i don't think that's what the statute means your tiffany could have come back in the school so no he i don't know if the a l j made those that had that thought process she didn't allege that in her order what she said was you're complaining about a state law and i don't see an i a claim over which i have jurisdiction so state law can provide for disenroll amount of a student who's entitle to a faith and if the state law provides exactly what the state that there's no right to due process here not if it doesn't implicate the student with disabilities although the claim here and i read the due process complain a little bit differently than you do the claim is th meant meant without positive action she couldn't go back well positive action so there was an offer a fate and i made available to her her choice not to take it because of a state law puts a tremendous onus on the state law well she was given a notice that said your child is disenrolled she was indeed and she was also given a notice that said we remain ready willing and able to funding statutes there is a way that we count heads for funding purposes and a student who has been absent for ten or more consecutive days me an excuse to there's a list of reasons allowed by the arizona department withdrawals withdrawals include students who are formally withdrawn from schools and students who are absent for ten consecutive days except for the excused absence is identified by the department of education is there anything in the statute that says that w student is with is on in rolled they still nonetheless have a right just to come to school not under the funding statutes you know so so is there anything that would tell  parent that even though you get a letter saying your child is disenrolled that doesn't mean your child can't come to school in this case ms payne girl had communication from the district upper level administrators telling her that while telling her that were ready to meet with you and we can discuss this but they didn't say your child is not an enrolled no they did not take it back they couldn't they could not count this student she didn't attend for five weeks so we have the provision of id a service is on one hand but we also have two administrative leave run a forty thousand student district what we said to her was she spent  administratively withdrawn but we're here all you have to do is let us know you want to come back she was already embroiled in litigation with the district ok so by telling her you have to let us know you want to come back that means that we've done something that without your telling us you want to come back we've done something that stopped you from coming unless you tell us you want to come back that is correct so without  the i want to come back part to find he couldn't have gone to school without her mom saying yes we want to come back to school did something that stopped her from accessing services stopped her from accessing services she could have walked into a school the next day and said i'm back and it would have been made to happen so yeah she had to get in a car and drive to the school it would have been made to happen it  had asked to come back well if she did if she had asked to every student makes a choice to go to school every day if tiffany made that choice on september th rather than sending a notice she would have been taken back to her class parent we would have said mrs payne girl would you sign this and it would have been done is that too much affirmative action every single student in the district is held to that standard anybody if somebody new moves to the district is that the same process it's slightly more onerous for a new parent they have to prove that their residence they have to provide their immunisations they have to come in and sign documents so a new attendee of a district has more hurdles than tiffany would have had so this is more like a student who's lived there maybe the family goes on a sabbatical for a semester or something and he's going to school elsewhere but comes back the process simply means showing up at school again and they've a lot of paperwork and that's it absolutely absolutely no difference for any student and there are almost forty thousand dollars students in the still strict there is no way for the district to be held that ms penger all gets a different standard than the other forty thousand this is how we get our funding one of the problems here may be that the hearings officer dismissed the matter on a ground that the district court ultimately concluded wasn't appropriate and that is that it didn't have jurisdiction because it didn't relate to the educational services one of the phrase was should that have required a hearing because the ground cited by the hearings officer was deemed by the district court to be incorrect what was the basis for the district court deciding at that point the claim was extinguished on a different ground which the hearings officer hadn't cited actually but the district court found was that the ale jay had ruled on two grounds although it took some word smithing she divided the sentence and half the administrative law judge held that it was a matter of state law not within the i d e a the district court said as to the nd half not within the i d e a i disagree but it is a matter of state law and then it looked at the state law p s judge silver in the district court did and judge silver found that it was as simple as coming back and so it was disingenuous in fact judge silver found the argument to be specious to claim that because even though judge silver agreed with parent that it was related to educational placement however ten us it was a matter of state law that the excuse me that the un and roman be up held as a matter of state law and so up held the administrative law judge under grounds divided the sentence and a half and looked at them both separately so as to the stay put that is not an appropriate argument when you are two years past the event stay put is injun relief it is not to be used as a sword is it is a shield the district court didn't consider the argument and i don't believe it has merit here the preemption argumenta i think we've covered and that is  that there is no necessary conflict between the state funding statute and the i d e a the state funding statute is applied in a nondiscriminatory matter there were no additional hurdles to tiffany it if it's just a matter of state funding what's the purpose of sending a notice to the parent if it doesn't really affect anything the parent takes their child away for fifteen days on a vacation without notifying the school or here completing summer school if it's if it really has no impact at all on the student and it's just a matter of funding what's the purpose of this notice to the parent your student is an enrolled i think the purpose is to advise them that there has been this change in their status at the school at the district and parent don't go through the parent drop off line if you're going to bring them back parked the car and walk the student in because you're going to need to sign some paperwork i think that is the purpose so it is a change in the student's status and placement unless and until they do certain things which you say are ministerial and routine but it is an actual change in the student's placement until the parent does these things and that's why the notices sent well placement implies that it's educational placement under the i d e a we did not change her placement she was privately placed there but it's a change in the student's status absent absent doing certain things that is correct your honor ok parent also made discrimination and retaliation claims the office of administrative hearings and the district court found that those were properly dismissed not within the i d e a jurisdiction as to discrimination so if if someone alleges you have stopped my special education classes for which i'm qualified because i'm asian american you're not entitled to a  process hearing if you're claiming that the district discriminated against you because you're asian american and that stopped you or your placement that is correct you need to exhaust the remedy but that's a rehabilitation act section five  you're entitled to a hearing the district cut back on my services because they improperly evaluated my condition they just got it wrong absolutely a failure but they just got it wrong and i'm asian american that's why they did it and you're entitled to due process hearing on part one but not part to correct the office of administrative hearings won't hear the discrimination claims this court has consistently held that those are not within the i d e a they're within section five  four so your view is that notwithstanding the fact that the regulations any  then you have the right to file a complaint relating to the identification evaluation were educational placement of a child with a disability or the provision of a faith if you allege i was denied a faith for multiple reasons and one of them is discrimination based on race that you get a due process hearing on some of what you're talking about but not on that you were discriminated against because of race that is correct so if you have the hearing and the hearing officer finds at the hearing you know you were denied a faith but it wasn't because they miss evaluated you it's because you're asian american you lose i'm not sure how  judge would make that finding i have found that they will not they'll simply say i note that you have pled you are noted to be exhausting your remedies whether or not discrimination occurred is a section five  claim that you can hear in the federal court that is how it's handled in our office of administrative hearings my understanding from the th circuit court laws that that has been blessed many times as the appropriate mechanism for all discrimination claims if there is nothing further i am over my time thank you very much counsel thank you very much because we were a little over let's give five minutes thank you so the district state and that parents did not allege that tiffany's placement was changed or that tiffany was impacted when the due process complaint was filed the due process complaint your honour's is thirteen pages it talks all about how to phonies placement was changed and how she was impacted that district removed her from her school removed her from all of her i e p services that is of course a change and her placement it's the removal of her placement but that's not all the complaints in the complaint acknowledges that the school district communicated and said she's still eligible for programs and services and you got to contact her home school sign up and schedule a meeting where's the denial employment the services and or ip and that's their requirement for them to do a stop they failed to implement was a request ever made for those services to be provided after this notice of an enrollment i asked that question before and you told me no is it well that i read here now the i well the e p was already in place it was already agreed upon it was already in full force then a fact i mean let me tell you the impression i'm getting complaint tells you that she's still eligible for programs and services contact the home school and you don't do anything to contact the homeschool you don't make a request for the services to be provided instead you pick up the enrollment concept and rush over to the private program that your preferred that you can do that but i'm having trouble figuring out where the school district said no where the school district refused to provide services well you point me to something i believe that they already had an enrolled her before they made any offers its all about to have a meeting at a different school is this all about this notice of on and roman it which your own brief talks about as a state financial provision is not itself a denial by the school district of services if you have anything else other than this notice of an enrollment dwelling at well that's the notice that they used to with to remove her from all of her educational special educational services and did they ever say no that they wouldn't reenrolled her you've already answered that question no and to me that means you're trying to take advantage of this notice of an enrollment driven by state law to mean a whole lot more than it really meant  hurt that's what i understood it to mean and i wait a minute how did you understand that if according to your due process complaint you get a letter that acknowledges she still remained eligible for programs and services and invite meeting to create a new ip because there was already an ip in place that the district was required to implement they were required to implement that they never they never received a letter that they're implementing these services here's where she can go to obtain these services we never received that at any time else i had a quick question for you the regulation that i think is good for your opposing counsel says well opportunity does not mean an actual hearing and she indicated that there is authority suggesting that it's basically opportunity for someone to decide whether you're going to have a hearing do you have any authority that says that that's incorrect that opportunity for impartial hearing means you get a hearing i don't have any specific authority with respect to that but the idea does say that parents on behalf of their students can file and due process complaint when they are contesting the evaluation placement or placement of a student do you have any authority that says anything about that because it seems to me for your case you have to say she's wrong where you have to say that her reading of that language and five hundred and eleven is wrong and that opportunity for hearing means you get a hearing you don't have any authority suggest that it's wrong well we really didn't have an opportunity to have a hearing because there was no hearing well but no but i think that kind of presupposes the question here she's saying that the language i know what over time what i'm taking you so you're ok she's indicating that opportunity for hearing merely means that the official can look at it and decide whether or not they should proceed to a hearing or not you're saying as soon as the complaint is filed under three hundred point five zero seven you get a hearing correct if your argument  you are contesting the placement of a child if there is a dispute between the parent and the school district regarding the placement of the child or a couple of other issues regarding the special education student in this case placement of a child then that is sufficient to warrant a hearing but you don't think you have any authority interpret that regulation that's helpful to just the regulation that tells us what is required to be and due process hearing notice we met all those requirements and we met the requirement that it needed to be a dispute regarding the educational placement of the child this case was dismissed because a l j didn't think this had anything to do with tiffany's educational placement  thank you very much counseling q a thank you both for your business cases these are always challenging cases soit prescience your efforts on both sides on this matter are submitted and will move on to the next matter on calend