mercilessly bullied as a result of his disability about his asking for help from the school and about him being ignored or punished as a result of the bully this is also about a pianist parent not receiving proper procedures notices or hearing based on the bully or his section five zero for an individualized educational plan as well as his subsequent expulsion the district c this case for appellant failure to exhaust administrative remedies under the individuals with disabilities education act we asked that the this court reversed the district court decision for three reasons before we get to that this is did you forfeit the argument by not raising a blow regarding the fry case you know i know accumulate but i don't think you made the exhaustion argument blown quite that is for the denial of a free and appropriate public education which i were for to from here on out as a fait previously anything that was educational in nature was considered to be part of the state so many bullying was that a p suffered greatly at school sickly and mentally was that he was terrified outside of the school and that he felt there was nowhere to turn to within the school while there were other educational happen to an adult at the school those are the two hypotheticals that fry asked scott if those two conditions are met then we're looking at a disability discrimination claim that does not require expulsion under the guise whereas if the answer to that is no then we're looking at something that deals with a free and appropriate public education in this case a p could have been bullied at the library with his disability by other individuals who knew about it causing him to react in a library or causing other individuals to choose some of reacting in a library and getting them for a life this would be a disability discrimination claim under the a da similarly it teacher at the school if this same or similar disability could be mocked by the other teachers and pushed to react or accused of reacting and could be fired and this to be a disability discrimination playing so fry has narrowed what we consider as a state versus discrimination let me ask you a question about those two scenarios if there had been bullying at the library or theater or somewhere else side of the school it's true you could have bullying but what would be with it would there be any cause of action for the librarians valure to protect a disabled person against a bully or a theater owner there this would be here talking about the denial of public service not of employment type discrimination claim you're talking about something else and to me that's even closer to a fake claim th employment discrimination type claims that would be a similar denial under based upon a disability that would be akin to this because the bulling claims come under the a b a in section t relief there was a second clue and i didn't put it in my notes here but there were two clues to thinking and then i think you typed the clues but then you didn't apply the second one that you know i have a clue is the history of the proceedings which goes into my second point there in which we had addressed below and the history of the proceedings is if you treat it like an id a claim if you treat it like it's a pile of hate it will also be treated like it's not safe now in this one this is a little bit difficult because the claims were originally under the i p a and the new law has separated them out so they were treated together however if you see the history of the proceedings separate times within the complaint where a p and his parents requested help for bullying and when they requested help based on his disability his five zero four plan has there are thirteen incidents listed alleged in the complaint where they requested help for his bowling and write with the word and because they specifically requested the help for that polling it was denied and look at that procedural history as asserted for example if your hypothetical an adult that was being bullied by someone else and they were banished from the library would there be any difference in the liability of the governmental entity that owns the library it in connection with your earlier answer versus a student an adult would have exactly the same claim right exactly an adult would have exactly the same claim to not have one in i'm being harassed at your school i'm being bullied based upon my disability so the school had notice of this and then ultimately some of the bullies complained to the administration about the visitor and the visitor was banned from the school pr the school at that point knows about the disability knows of the bullying because of the disability and ultimately bans the visitor from the school for the disability because these are the same thing under fry exhaustion is not required therefore we request that who engaged in conduct including making threats to other students and to shoot up the school this case comes to us by way of the amended complaint asserting claimed under the the test for determining whether or not certain claims need to be exhausted but i do not believe that fry changes the outcome of this case we indeed if you look at the fry test that we were talking about earlier i it's unclear from the complaint whether or not a face denial is alleged then you look to whether or not the test and fryer made are met i would say that it's not unclear from this complaint i realize that you can't look simply just the term but it's not like they dropped the terms faith and then the complaint kind of lackadaisically without knowing what it meant i mean the title of their counts one and two claims are the nihil of a free appropriate public education in injuries there are alleged in this case they are educational in nature and educational injuries under frye include are are defined by frye as a denial of the free appropriate public education what the  a complaint talk to separately about talk specifically about educational deficiencies that he did not receive that he's being removed from the classroom because of the suspensions and ultimately the expulsion and notified the school district that that was the case had been notified the school district that that was the case the school district would have had an obligation to consider those that potential new disabilities look at whether or not he needed to be on a new individualized has found if you look at the injuries or alleged as opposed to the relief that the plaintiff is seeking to need to look at the injuries alleged and here i submit that the majority of the injuries alleged or educational in nature one of the things i want to point out that i think is key to this case is that i don't even believe we we don't even need to be talking at this point about exhaustion because the plaintiffs conceded below that they needed to exhaust their administrative looked at is whether or not the injuries are education are denial of a state and in this case they are in addition not only did the plaintiffs concede below that they needed to exhaust their administrate of remedies there are a number of facts that were raised for the first time on appeal that were never discussed either in the response to the district most and motion to dismiss or discussed in the in a complaint all of those facts never an allegation that their verbal request to put this back on the i t t were refused by the school district there was never an allegation that the school district failed to provide them with notice of first usual rights under the idea and there was never an allegation that there were structural or struc should say using the term faith there found at paragraph seventy one zero one one zero six and one sixteen of the amended complaint in addition when you look at the actual allegations in terms of what they are alleging  wasn't educational related cause of action given the procedural history before the lawsuit was filed that they didn't request to be put back on i well i mean there's i disagree with that because the injuries they alleging are educational in nature they're saying that the school districts conduct in dealing with the bullying and dealing with with l t effectively denied him educational services and that is what they're complaining about and that is disagree with that i don't i don't believe that there is a private cause of action that someone in those situations could bring for bullying in this situation i think the fry test really is looking at a claim a claim and really what frye says is it's all about  if there is a face denial then you have to exhaust if there is a denial of access to a public facility then you don't have to exhaust so a situation in which the fry test  would be if a adult at the school could bring the same kind in a situation where adult where an adult at the school could bring the same claim would be like wheelchair access let's say an adult is trying to get into the school and is using a wheelchair and particular claim she seemed to be making in the do not i mean the way she analogized that on that first clue to the library was to say that her claim is not about bowling sensually it's about being thrown out of school and so if someone were bullied and they reacted in they got thrown out of the library they'd be denied public service essentially but what you're saying is this isn't about  service because that would be excluded from exhaustion requirements anyway this is about the actual bullying and denial medication will services or maybe i'm sure that i she made the analogy about the being thrown out of the library or being thrown out of another public place to analogize to being thrown out of the school for reacting to the bullying and if it's a student in the school who's thrown out level of generality that we're framing the claim here isn't it i mean you're keep it narrow to the classroom your colleagues keep in a broader to moral more of an axis i claim not really kind of what dispute over the application five boils down i'd submit that she is trying to make it an access crime at this point but i don't believe that was ever raised below i don't think it played in the i'm in the complaint and i don't think that the court should take that into account when determining the injuries alleged below were educational in nature which was overly broad and that that was not the same as asking the crux of the complaint moreover the lower court identified multiple discriminants disability discrimination