here making this argument this morning and i can say without a doubt that it would be a more incisive argument my challenge this morning is to speak for mr luvin but more importantly to speak for natalie and michelle administrative hearing officers determination that there was it denial of faith is a starting point for the analysis but from that point we have to establish that the denial of faith what has intentionality had deliberately that's associated with that's where the discrimination comes in and there's there's been this argument made that somehow the regulations promulgated under section five all four are separate from and cannot be read city it is not different and i don't think it's fundamentally different if you look at the regulations section of one zero four point three states in general  recipient that operates a public elementary or secondary education program shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction regardless of the nature of the severity of the person's handicap and then the next section states for the purposes of this stuff part the provision of an appropriate education is the provision of regular or special education and related aides and services that one are designed to meet individual educational needs of handicapped persons as adequately as the needs of non handicapped persons or math and to are based upon adherence to procedures that satisfy the requirements packages paragraph requirements here on the  well the i d f deals specifically with the requirement to provide a free and appropriate education it provides procedural standards it provides other standards and the and that is a benefit under the law t which handicapped children are entitled under section five zero four section five zero four prohibits discrimination on the basis of handicap in connection with the benefits  exclusion from programs denial of benefits or discrimination that's the way the statute is for and i didn't put it exactly as it reads you know otherwise qualified handicapped individual was not something that the states should have that the states were on notice of and therefore their level of the men men immunity prohibits a claim of private right of action against them for for that kind of a deliberately indifferent to the known need of these two girls to a particular type of educational and mental health service because the usual  case where i could forgive them the supreme court case but the case where that person wanted to be a nurse and the nursing school wouldn't provide adequate  basically accommodate this new year because in that case it was a hearing this ability and for that reason the claim was brought saying i'm being discriminated against because of my handicap here your claim of discrimination is not  so much on handicap as the motive or the discrimination but the fact that there's a whole class of handicapped people that the state simply overlook and that may have been because they don't want to spend the money and may have been because law that that constituted facial discrimination under section five zero four now the same kind of finding we have in this case in the felix case where judge as really looked at at the failure to provide a class of special education children with mental health services and found as a matter of law that it was a violation of section five or i guess my question compared to why i mean in my hall and was compared to everybody else right everybody the you can't compare the needs of it a severely autistic child with the needs of a regular education child just as apples and apples and that's why it's so important to use the well i think it certainly is is evidence and supports the claim that they they were not provided with services but that the finding within the administrative hearing is based upon a set of facts that are uncontested on this record i mean if we  services they'd be irreparably injured potentially it knew that those services were available in fact there were thirty b six designee stated that they supposed services should have been provided within a few months and it is undisputed the four years they received no special educate most autistic autism specific services and no mental health services and told my nine hundred ninety eight there's a chart in our reply brief at page eleven thanks reflects the i e p s there together between the department of education and the department of health in one nine hundred ninety the federal government came in and the department of justice and told the state that they were out of compliance because the the departments weren't working together in education and the department of health were out of compliance and it violated section five zero four because they were not providing mental health services to special education children always for the not for the question i asked i was i was trying to enter soon and i understand the bible deliberateness i think that's what the essence of the regulation is and i think that's completely consistent with the with the statute itself and you can look to the failure to provide a  under the id has as evidence of that it may not be dispositive evidence but it certainly indicates that but but you don't have to look at even at the administrative hearing officers decision here if you look at the facts in this case and you find that here you had a situation in which the state knew that these children were required to special education and failed to provide it and that is something that if you compare it to a child that is not in special education that is that is discrimination the child is not being treated similarly because the the predicate here is that a special education student who  made these services available to all their handicapped children suffering from office but didn't offer them or for the two girls here a remarkable extraordinary and unprecedented amount of compensatory education related services services for the parents i know that's twenty four hours a day seven days a week year this is really an extraordinary result for a faith administrators parent and the question for the court today and the answer is no it's right there after the plaintiffs prevail at the administrative hearing they then can turn around and spy on a claim for money damages which you can't get under the idea of a personal injury based on the same facts the same educational injury well you can't write there's no cause of action for two reasons one is because the plaintiffs have always tied it to faith into the denial of the faith and second of all in large part there's no cause of action because we have to go that at that section five zero four is only when the builtin i d e a remedy is simply not available and and perhaps right now are receiving the services that they say they should have received during the four years of this he didn't get the services now there's no question they didn't get the services during those four years and there seems to be no question that they were eligible for those services during those four years is that correct yes we did argue that that they did receive some of  heard but this district i suppose it is or the state of hawaii declined to prove or or these services were not provided during the four  years and i think your argument is well the state didn't know anything about the problems that the shallow natalie had if the state have known i think your argument would be they would have provided the benefits which they are doing now is that your argument or did the state know that they were entitled and just decided that we're not going to provide the benefits we don't have that much money we're not going to do it those children into the special education program you there was was was under the autism having one was for some childhood disorder and one for certain emotional impairment i think but it's not all wow  goes back to the seventh circuit case where they where the only reason they were in special ed was because of their disability and the question as were other people in that same group of receiving the services and the answer to that question  if the state of hawaii sad we're just not going to do artistic children it's too hard and we're not even going to take them into special ed and then then you would have the cause of action and then you would have the discrimination story because of the disability but that's not what happened here they were in special ed they they were receiving services throughout the whole time and then years later someone says well those were the wrong services and maybe they were but it doesn't mean that we were discriminated against them on the basis of their disability and if you look at the transcript of september thirteen plaintiffs coun mr livingston would you say that the evidence showed that you were deliberately or your clients were deliberately indifferent to providing services under the program you're saying no they weren't just schools or the state was doing reacted in a reasonable manner in providing what they did in not providing what they did not i think i think that's fair now doesn't that pretty well it sounds to me as if it means relevant i'm saying that for purposes of proving liberal indifference for these two children they have to prove their own case they can't just point and say well there were other problems out there wonderfully and that was part of and i can refer you to pages thirty one and thirty two of the september thirteenth transcript but once again i'm saying it is unfair to the state of hawaii to say you must be question about what the state knew and i think if you if you look at the letter from dr margaret coven in may of one thousand nine hundred four where she tells the state michelle has mild autism that she's got normal intelligence no behavior she needs special services during this critical time period it would be a shame if we didn't provide these and here's where you get on you know they're available and here's how you get them they even said you know if the teachers need help in the classroom this is where they should go to get the letter so compelling the judge real ask the attorney for the state in oral argument what the state did what about those recommendations the answer nothing nothing for four years i want to turn now to what is i guess what you can stand is the deliberate indifference has every right well that's one example i mean they knew that the children needed these services they knew the services were available they did not provide them and if you can we let you go to trial kind of like you're going to have a great battle of the evidence but you're not helping us much on the legal well i think the legal issue is set out in terms of the the regulations under five zero four and what that regulations require and that's our burden of proof to establish that there was a violation of those regulations i think the evidence on the record establishes that as a matter of law frankly but at the very least entitle us to a trial and on that point i want to just emphasize how critically important it is and it gives me no pleasure to make this request but if this court remands it's essential that the judge the judge be replaced he has made up its mind about this case he's prejudge the evidence if you look at footnote twelve to the state's brief they quote judge real has correctly observing that there was no pain  suffering in this case that says what he said from the bench if you look at living design his conduct in this case is very similar to what happened in that case he came in and after four years of intensive litigation after numerous considered decisions by judge s r t and swept them all aside he asked at the end of the summary judgment look at the last paragraph of the transcript of the summary judgment hearing he says well i'm finding in favor of the state but i think you're proffer of uncontested facts is all conjecture also why don't you go back and give me some undisputed facts and of course they were unable to do that nonetheless he issued his decision it's essential to get a fair hearing here