your honour's may it please the court i'm dan rhodes for the appellant and the reason this suit was brought is that g s was excluded from his public high school for acting on his disability and so this case is primarily about discrimination the next to a public about action seeking relief that is also available under the i d e a in counts one three and five of the complaint see compensatory damages under section five zero eight with the discrimination the discrimination that i mean course you're accused of  making it up are arriving at an appeal with facts that were not in the record on appeal but just plainly stated what was what was the non educational discriminatory access that was denied so i think the answer to that is in paragraph thirty five of the complaint which is on six of the joint appendix which is that excluding g s from high school due to conduct that was caused by or had a direct and substantial relationship to his disability constituted disability discrimination in violation of section five zero four and this perhaps is where the the clue that frye opinion gives at the end in the form of those two hypotheticals is helpful so those hypos are you know could the student have brought a similar claim against the public and any other than a school and couldn't all that brought a similar claim and of g s had been for example at a public library that had noticed of his disability of autism and tourette's syndrome and he had said something sort of off the wall that someone regarded as a as a threat but the library understood it to be related to his disability could the library have barred from from its premises for six months and i think that before claim would sound under those facts i also think if you have an adult say the parent of a student who  performed and the disability discrimination certainly could the the hearing contemplated by gosbee lopez would certainly include the opportunity to present that i don't know if it's a defense or a  procedural due process was denied in counts two and four so count five which is the one thousand nine hundred three claim alleges violations of federal law and constitution that the fourteenth amendment sort of right in the constitution has to process right as is not at issue in this case it's simply the issue of disability discrimination all but but the the ability the ability to to be heard on the eighty eight discrimination  part of what got free lopez contemplates public public schools will do before you do a long term suspension go here that wasn't pursued plaintiff learned that well the i e p team said that the i d e a trumps that process and that's and that's the relief we should have had on that so therefore that's our that's our claim for damages can't say that the ip team says you can't do a long term suspension you have to you have to you know bring him back with with whatever accommodations we say are required by the  amended or put him on a new placement correct and they did not do that the mom of those room of these are the core of the claim now for damages having walked away from the for pursuing the id a remedies we get  instead because we didn't give us the i d e a procedures in room of the quote respectfully judge look and we did not walk away from that i d e a remedies those were sought and pursued at the administrative level against the special school district which is the public agency responsible for for for answering the due process complex the other if correct correct and so the the strictest rule would would be to say that the special district is then liable for all the conduct of of iraq would such that it you know pays any any expenses that were incurred because of the the suspension but even even under that rule i think that only disposes of counts two and four of the complaint and the counts under section five be to follow the rule that the supreme court rejected in frye and perhaps more importantly it would be contrary to the intent of congress when wrote the exhaustion because our devices are wrong under fry i'm sorry which of our cases are wrong under fry i  do not i'm not even that well that we've had multiple idea exhaustion cases in which we've concluded exhaustion was required some before some after fry i'm aware just look at it which of those in your view had were overruled by my  j b correct in j m followed from i but again j m was about the provisions of the students i p and our claim here is that the e p itself was not inadequate during the suspension it was the fact that it was barred altogether from campus so i'd like to just reserve the remainder of my time thank you it started out with the suspension of the principals suspended the student for ten days his i e p team then was conducted a manifestation determination here in college to paragraph your re if you're reading from a paragraph that will help us to her manifestation determination was byers i u p team that the behavior was caused by or had a direct relationship to his disability as a joint appendix three according to the complaint under the i d e a at the time of this determination he should have been given the opportunity either to return to school part of are to be changed changes placement that also is that you join dependents page three the complaint claims that special school district in iraq which did not give him these options instead kept him on an out of school suspension it's the same sights are then complaint goes on to allege that the failure to return g s to school following the manifestation determination was non five the council argued not i don't know what you what it was very graph thirty five of the complaint in the council i think read he was excluded from school because of his disability does it say that i have and i didn't bring i appears in the complaint three time but i would go back to bush rice said and said when he said discount artful pleading and take substance over surface if you look at the complaint totality the whole core of the case depends on is because high e p t met made a determination that his meant middle edge misconduct was related to his disability and then the allegations are followed iraq would not follow the also like to spend just a few minutes on the futility argument that he raises where rock was not a proper party to exhaust his administrative remedies against his appellant sites to one sixty two eight ninety ninety i see that it relieves component districts such as rockwood from providing special education classes once a special school district is established it doesn't necessarily take away take rockwood out of the picture of providing faith in but are they are they told that you know you can't you can't sue the component district you can only sue the special district or are they told nothing at all so they get no advice and you make the point in your briefs that well if they did if they had gotten an administrative relief in the claim against the special district obviously the component district would have been involved that seems clearly true are the parents helped are they given any guidance as to how to pursue there anything in the record that would that clarifies that you know parents are left in the dark as to what to do with this situation where where you've got two different educational districts two pointing the fingers at each other or maybe name we couldn't name rock because it would it could have been bokes sanctions on us what they were named so we don't know it's all speculative judge intimate the missouri plan is clear that it's a joint  ibility to educate special education children if you look at rick in the regulation roman numeral fifteen b it says although the special school district may have primary responsibility  develop policy in these areas implementation shall be the joint responsibility of the special and component districts this is required because for most students with disabilities special education services are provided in a general education setting and that would be consistent with the i d e s definition of faith which doesn't only limit it to special education services it comprises a special education related  does have a role in providing services to special education students i'm going to cover one more topic of i have time and that is the argument that he could not have sought relief at the administrative level because because they know all the remedies weren't available to him and that in a pinch am that was  also the same for money damages money damages doesn't doesn't justify not was there a settlement of the administrators was dismissed before there was a ruling by the hearing officer it was a suicidal gesture right at the terms of settlement in but judge jackson noted that the settlement you see if we had in the record what the terms of the settlement were we would know whether rockford if there was relief granted whether rockford was a participant in the settlement implementation and we'd know a lot more about what the exhaustion was or wasn't drunk or didn't participate in a settlement that got us in their ducks in the complaint and it's in our motion well right that they just walk away because they thought it was more fun to sue for damages or what did the special school lopez requires a hearing district due process hearing in the pan than those of five will for anything else before you can do a long term suspension was that held was there there such a hearing the ten day hearing yes yes and was was that was there any claim that you should this is all attributable to disability and therefore if you exclude know the complaint in this case but i'm talking about the the one when the one when they went to the principal and said don't don't do a long term suspension they didn't yet know what the mother didn't know what the i e p team  one hundred eighty day suspension imposed but we don't know what the what the objection to the long term suspension was is that correct  what a terrible record you judge smith and judge loken paragraph twenty eight of the complaint says plaintiff in the special school district to read agreed on a resolution of the issues regarding g s educational placement and the provision of special education and related services going forward and the due process complaint  the point is that id a remedy is were pursued and that when those were resolved between g s and the special school district that was over in this case only six relief that was not available in those proceedings and that relief again was this case only only addresses the things that could not have been addressed in the administrative hearing commission exhausted your honor nashton doesn't mean you will you one regulation nine part three d five says that only special school districts can participate in the due process hearing and i think that's quoted and the district