a rehabilitation act different from frakes is claiming the union had brought in in action in state court for interpretation of a school called the lawler opinion has claim splitting and therefore i think that resolves the issue for that case if you need citation i c all she wrote my my main brief in the last portion your honor page thirty nine to the end to every man was unnecessary because of the flaming shows in brief then says well we incorporate what we said there and you can't incorporate famous into a brief you can't force the judges to go read some other  i specifically on page forty one raise the failure to object to claim splitting is acquiesce undisputed facts and i thought the best way to bring before the judge and it would be a dispute in this case which was over the valuation of it didn't comply with the local rule well i've cited the local rule and it just says we're supposed to say facts that are in disputed and there has surfaced sense about two thousand and ten somewhere the idea that you have to admit on these point counterpoint things a complete admission or not when the rule doesn't say that i don't see how that can be helpful  to the court i used the example of who got everybody and and recording a video seeing the defendant run the red light and you get a statement of fact defendants testified he did like was green when he went through well i don't think it helps much to admit to that said and leaves you open to an unqualified admission summary judgment which i have seen happen so that's why i've always been very it but when you look at the valuation value we look at the evaluations she has numerous and missions that she needs to improve her performance for example on the first page of her rebuttal document she says i'm the first to admit i need to improve in my job performance in that sense however we do really want perfect teachers teaching our kids i mean issue with intentional discrimination and i don't see any evidence of that well it's a good things to dislike each other they'd be fights every day that does not recognize what you're dealing with these these kids have break at disorders and they have act out in class and she's not even considering that because they're not acting like a mainstream class so you look at the another and her caring nature towards the students is a liability actually they need more of it these behavioral students are one step from an institution and if it doesn't work here it doesn't then there's i mean you can take and isolation her response and say well yeah i need to improve on things that's approaching constructively but you have to have someone who knows what the world's going on in these classes and is my discussion of these particular students she asked to have students assistant with or they have timeouts you have guards you have padded rooms where you take them if they can't control themselves and first has somebody evaluating mance who did not recognize that throws off the whole evaluation yeah she could have been better o and schedule whether it was her fault all or all those things yes you can say well sure but that's not enough to take her out the reason that i brought the case was that the the experts reviewed it he's not given the oldman opinion on whether what it affects me thinks it's for the court is there that this person did not know what it was to teach the students please the court plaintiff section five zero four claim presents two questions that need to be answered first of the plaintiff eight are students in the exercise or enjoyment of their rights under section five zero four and in second the defendant did the defendant's intend to and didn't but or and and in fact if they interfere with plaintiff when she was aiding her students based on the material facts that are not in dispute the answer both questions are no with respect to the first question there's no evidence in the record that that the district the defendant was discriminating against any disabled students either as part of a class or an individual's due on top of that there is absolutely no evidence that the plaintiff ever advocated on behalf of her students that we were discriminated and violating the law or protest the discrimination in this case she had ample opportunity to do so with these kids there is always an annual meeting in which their individual ice education program is set out before the year that decision of what plaintiff never objected to the placement of the students the teaching methods that were being used how discipline should be handled are or disputed any of the goals either social emotional or education the plaintiff never encouraged any of the parents to file i objections to the ip which he could have and in fact during this whole period of time no parent ever objected or filed a complaint with respect to the education they receiving either on their or the idea five zero for a da and most importantly paint plaintiff never raised any issues about her students with respect to her  evaluations from two thousand and six to the present and the prime example which i think is just been pointed out is in a rebuttal to her on says factory evaluation she never raised in that she never raised any issue about how she couldn't get up to that point because she did not either stupid person with respect to the second question because she did not in a sense aid her students with respect to section five zero four the tenets obviously did not interfere with her rights in fact or expert testified that what we have proposed to for improvement was appropriate and wasn't interfering but was helping her in her teaching methods that and she basically what happened at sun disputed that the evidence the school was that the way she taught caused chaos in the classroom leave out you know we can't evaluations from two and six two thousand and six to two to twelve showed constantly she was not able to make me answer class her her response to that is that's just the way the kids are but that's not a fence to an on satisfactory evaluation the evaluation into a violation of such a bio or in fact there's no evidence the way she taught prevented discrimination against her students and in fact there's no evidence of the record that after she left the district what went ahead and discriminated against these these students anyway and again in fact there her own expert testified that the founders of gracious were designed to improve or improve her instruction which she has her the end when did you first make that argument in the district we may we made it earlier in order to get a stay of the proceedings while the case was going on concrete  and twenty fifteen or and the panel in lawlor held that waiting eighteen months after the federal case was filed was too late and abandoned any objection to claim splitting so here the defendant waited seems twice as for did not become final until november twenty fifth yes so if we made the claim the law that just sounds like disagreement with the ball or you could have said the same thing they're right i could one panel doesn't just ignore another you have a panel that says eighteen months is too long i think we should take it as a given that eighteen months is too long you think you have reasons fine eighteen months is too long but we do have reasons because the whole point of playing splitting is it's not the fact that there are two cases go to parallel cases going on at the same the difference is one becomes final and that that then allows us a lo one side to raise the fact that it's now race to the top we raised it at the for in a sense the first opportunity we could hold first opportunity was the day the state lawsuit was filed you go to the federal court and say we would like you to stay your proceedings pending the resolution of the state case it's actually perfectly common in parallel litigation for the litigants to ask one court to stay in preference to the other right and you object at that time to claim splitting but i gather that's not what happened you know it was that but i don't think there's a there's a requirement say to stay oh it's just disagreement with lawler's sorry about that you know but i think the i think the way until until november twenty fourth team which case we raised it we raised it when our motion for summary judgment was was due which was it was april probably would insert earlier but i think discovery was continued for a while so our argument is we didn't we didn't acquiesce and they understand the issue between lawler and this case because there's no further questions federal law does put standards on that override state law ok and then at trial level to chad to talk about what i have shown interference from the right to public education well the