department of education and  yes good afternoon your honors may please the court my name is carl shanti and i represent the appellant's of the matters of mendez vs new york city department of education and paulino versus the new york city department  education and state education department and the pelleas and matter of carrillo versus the new york city department of education the three students in these respective matters a c r p and m g are all medically disabled children with severe brain injuries who are non verbal and non adulatory take it may be so with the case three children receive special education under the individuals with disabilities education act or idea and are simply seeking to attain what they are entitled to under federal law under what is known as the staple provision or tennessee provision of the i york city department education or do we provided them with a free appropriate public education also known as a fait the adjudications of their faith plans are determinations of their administrative claims on the merits specifically whether the individual ised education programs or i p s that deal we created for them were appropriate to address their individual educational needs by contrast the purpose because the purpose of pendency is to maintain a student's educational status quo pending the outcome of those three plans this court is how the pennsy does not concern the merits of an administrative complaint and therefore must be evaluated independently congress's policy choice that all handicapped children regardless of whether their case is married are to remain in their current educational placement until the dispute with regard to their placement is ultimately resolved and quote  made to have constant that which is why a lot of the staff carried over a lot of the teachers as well a lot of the ministry enters and so their educational programs were specifically designed to be you know do and so because of the congressional mandate regarding before we get into the big picture want to get just very an understanding of what these cases are about to follow up on to the sax question of the migration even though each disabled student has a right to pendency under the statue and i understand i'm just trying to get an understanding as a losing cause and through what is it to happen that would lead to rather massive migration and then the firing of separate lawsuits is the reason why there was one last year which involved all of them are class action perhaps go ahead i'm sorry concerning the administrative positions there were different outcomes and so various times there are certain students who were successful at attaining tennessee orders at the i shall level which at the hearing level and other  the school attempts to transfer student right or to modify the placement as opposed to the through the fence to the lateral decision to transfer child have that the deal we has fought against and the irony of the do is position is that currently it's stating that you know the placements the edge meaning the educational programs were at the i hope and also in the t m case as chief judge mcmahon found the definition of educational placement for all of the idea not just to stay provision but all the idea is educational program which means it's not tied to a specific location the bricks and mortar of you know a physical location of a school which is the do is position the t y specifically rejects that definition of a school location being educational placement and instead says that it's an educational program just as in the concerned parents case does just as t m does and the t y case specifically rejects the ip the notion that it's the bricks and mortar which is the physical structure of the building that terminus when educational placement is so what judge and chief judge of man did which the court in concerned parents did which is look to the definition of educational placement find that it means educational program and for that reason make  charming nation that there can be this transfer as long as which is crucial there has to be the task met of the substance of educational program that the students receiving at the new location has to be similar substantially similar to the prior educational program that the student received and that is the case here the do we has not in its papers argued at all that their programs are not similar name only argue that th needs to be shown by the parents but to the extent that you know that if there was any limitation that we would be placed on it given that we are in or not public schools involved both in either case if there was a limitation on the amount of tuition for instance that it would have to be tied to what the tuition for the seven thousand eight hundred school year you know certainly the the the parents will accept that position from the court but we don't believe that that is that afternoon your honour's me for the new york city department of education i want to cover three areas that i think will address the questions that was exchanged earlier st on the pendency provision judge brown is you're right the pen it's a provision really was designed as a shield for the status quo not a sword for unilateral moves with the parents want to do here the pendency provision doesn't grant a voucher redeemable at the school of the parents choice because it's trying to preserve the status quo and the reason why the pendency provision is so focused on preserving the status quo it's because it's trying to keep the focus on the true underlying substantive dispute issue in all cases which is that which is the i e p not whether a new school that the parents have picked should be the school for pendency purposes the test that the parents are pushing a theory of portable pendency which is really an oxymoron pendency is supposed to be certain and the whole reason why this court has said that pendency a separate question that is an exception to the exhaustion requirement because it's relatively straightforward what was the last educational agreement that the parents had agreed to in this case it was i hope in fact in all these cases the  parents there was a litigation at the ministry of bubble and in many of these cases and i joe officer said after hearing a year of evidence we've concluded that the hope academy is the appropriate school the parents in these situations may know word that they were going to suddenly run to a different school a brand new start up school that moved three different three different times in the st year was short on several services most notably in these cases vision services from told by deo you that it was short other services and well i think it's natural for it for any school district big or small to say this is not how pendency works the reason why pendency that provision comes with a grant of immediate nonrefundable public money is because both parents both sides have agreed this is an appropriate school in that case it was i hope and the parents theory of portable pendency fundamentally goes against a foundational principle of the idea and this is straight from burlington this is common on the pendency provision parents who unilaterally transfer their child to a new school during the pendency of a faith litigation which is what we have here do so at their own financial risk this court in dover says eastleigh double down reaffirmed their principle and said when a parent rejects a stay put placement by unilaterally placing the child elsewhere retroactive reimbursement is available if at all only through a through a faint claim i want to address judge sack your question about the substantial similarity test and there was some suggestion whether this is a goose gander situation it's not a goose gander situation substantial similarity as articulated by this court in concerned parents the case is very clear it their dressing the narrow issue of whether the school has the traditional authority to move a set of children to another school because of the fact that the original school was unavailable due to severe budget cuts and this court said a school district can't do that it's in the same district same classification because that respects the traditional authority that the school has under the idea of the parents arresting that standard and moving it to the context  yes and i'm going to i will address that but i want to stress that t m forecloses in the pennsy context and i think t m you know parents are really wrap themselves around t m but it's really an end to conduct that that that actually goes for us and i'll tell you why m the school district had agreed to a set of pendency services but then they decided they no longer wanted to provide that the parents in that situation then you laterally move their child to a private provider and then they say because we've made th unilateral move you need to honor our unilateral move at pendency this court said no this court said even though there was good reason and even though in that case in t m dependency the pendency services found were identical so we're not even talking to substantially similar the parents and we have found identical service providers were willing to do this this court said no and it said quote it is up to the school district to decide how to provide the educational program and you know the parents are saying th that is hope academy that is the school that not only did both sides agree upon an officer said this was the appropriate placement what resolution makes sense services your original placement seems to be available at the place word and that's all there simply are no longer given one of the parents today i'm glad you raised that and that's what i was going to address this is where this is the the route that the parents could have instead of perverting the pendency provision and claiming that they have an immediate right to nonrefundable money under hoenig versus doe and as recognising the four circuit in the wagner versus board of education case which we said a number parents do have an option they have the option to go to court ask for it but they have to as the th circuit and supreme court explained they have to prove up all four factors a preliminary injunction test they have to show clear a substantial likelihood of success they have to show your parable harm they have to show your honor they have to address the court and say we can't attend school a because it's unsafe because my child was kicked out my child is being threatened under physical harm and then the court has to weigh those four factors they know they can't win that that's why i wonder they're sort of sort of cramped version of substantial similarity they've said this year today they disavow any explanation why these parents moved on mass the new school they said it's not important you just need to know that we move to a new school and you have to pay us money immediately school district should be put in that position warner versus board of education and hone it is very clear parents are allowed because they are the parents of the child to move their child to school what does not follow is what they want immediately immediate nonrefundable nonrefundable taxpayer money that only comes through through are there actual reasons truly to justify the full reimbursement of the tuition they concede that that unilateral moves by parents need to be vetted under that system but they say listen in this situation don't even worry about it that's going to happen during the parallel fete litigation that's not how the idea works there's no need to create collateral litigation about pendency when it's very crystal clear what pendency is and i think pendency while it is the educational program known disputing the educational placement means educational program but it cannot simply be what the parents say it is and they say well it's substantially similar you don't even need to look at the location whether it's actually safe for the children again the record of these three cases alone suggests that school districts have good reason to say we're not comfortable with this this is a school that is brand new moving three to three different times has a shortage of services and i think they pitched the idea of the substantial similarity test sort of a crude version of was articulated in concerned parents is very easy but it in fact it's not the reason why there's been so much start of school is truly substantially similar courts in particular judge in the nest a decision which the parties discussed in the briefs had said this is a principle that knows no bounds if you're saying literally kids can move from school to school as long as you need to meet this general test basically literally a comparison of the eye on paper and say well look substantially similar it's you know ok they're missing it conserves we're going to just move this allow you to move this kid to this school even though the litigation involving the actual substance the substance of ip is still in dispute she says that allows parents then to say i want to move my kid out of public school and move them to a private school because it's substantially similar and vice versa for school district to say that's great you're going to the public school but we now want to move you back to the system because look yes you're arguing these general principles with respect to these three cases right that's correct let's just go through very mechanical way if we may let's begin with their power lino school the brain drain and i think that there needs to be a reversal there and instruction to dismiss the complaint because again it's based on the same theory they're based on this theory that they can go from school to school to right and then on mendez mendez is interesting because that's technically an appeal of a refusal to sign an order to show cause that's actually jurisdictionally frankly defective and i think a different panel of this court in the about costs and whether the costs of the same my understanding from deal is actually the costs are significantly higher for the children to attend the new school is not necessarily based on tuitions i don't really have the dollars and cents on that saying it's more expensive because when the children were tending hope academy the deal he actually arranged for transportation and when the school district is able to arrange for the transportation there's cost savings naturally and in fact we like that we encourage that to happen with brain institute what the kids are doing is all of them my understanding is they've disavowed the do you eat public transportation and they've gone with the transportation company that's tied with the school so now you'll see in some of these cases i think even  there's sort of a discussion of ok now you're going to the new school now the parents are also saying well we want these services as well because of the fact that the kid is going to the new school which is creating satellite issue off of a satellite issue and that's why i think it's not accurate to say that the cost of something some somewhat of a wash and frankly in the t m decision which i think your honor was alluding to the court was very clear that in that case it was because of the fact that the deal we will district had refused basically and so there was an understanding that for one year they could pay for the cost of going forward the parent would have to either put the kid back with the public school system or they would have to take on as this court said take on that unilateral which this court may affirm on either of two independent grounds st it is undisputed that the parent did not challenge the that ruling in her opening brief on appeal and therefore has waived any such challenge but even if there were no way for a state agency is an improper party here because the parent failed to state cognize cause of action against the state in this suit for pendency funding the parties do not dispute it is the city not the state agency that is responsible for any pendency funding here in addition the complaint also does not support the parents claim for a declaratory judgment that the state agency is vicariously liable a deprivation of the child's pendency rights their complaints only allegation pertaining to the state agency is that the state agency certified mr brinkley out to serve to be eligible to serve as an impartial the court has no further questions we would ask that they the court affirm on that basis directly provide pendency services as was its obligation and it failed and the parents rejected that offer so the parents instead of accepting the penance is services that the district was offering went to a private institution instead and the court found that it was that public expense for the private institution that it would not allow where there was an offer for these kind of services here there was no offer for penny services for any of these three children the deal we is seeking to argue that there was no there was a rejection of the placement but the placement is the educational program so instead of a rejection of the placement there was an adoption of the placement by making sure that at the eye brain school the students have had the same or substantially similar educational programs the substance of their educations was the same and that's why there was no rejection of educational placement there playing on words the use of the word placement and at times and are saying that there it's a school so if the i hope school move that would be no problem because it would be the same school well its placement doesn't mean school it means educational program as this court has found not only in concerned parents but also in t y and in c m as well and as i mentioned t m was decided based upon the fact that there was this public private dichotomy that doesn't exist here why because both i hope and are both nonpublic schools the only thing the district ever offered and the district mentioned piece in the i p s those were public school placements that were offered in the piece and had nothing to do with pendency they were offering these public schools that do not match up with the the basis for pendency for any of these children the bases for panaceas for these children was the educational program that they had and the one thousand seven hundred and eighteen school year which was unarmed at a nonpublic school so the district cannot shoehorn that to say oh well we offered pendency they did not and it was it's also a fallacy to say that they were they were not not on notice of the fact that the students were going to our brain because there was a ten day notice in each of these cases so they knew that these students were going to go to our brain and still they made no effort to offer pendency services for them  that is correct but what's important about what you're on is due here today is is to not depart from concerned parents because what the district is arguing is that there should be in essence back event in one thousand nine hundred and eighty one concerned parents was decided they took the position that educational placement meet means educational program and here today before you they're taking the opposite position and that's the position you're taking in that's what we're dealing with today i'm and twenty to certain extent as well but what's important to note is that there was no offer a penny services by the district the district is in actually the district fought against i hope being determined to be the placement for these students during the seven hundred school year and now they're taking the opposite position just like with concerned parents then they they state that they argued successfully that educational placement means educational program and it's not tied to a particular location but here they're arguing opposite so what they're arguing for really is is that for there to be a double standard in place for under the idea for the words educational placement to mean educational program only when it's invoked by school district and that's not what is called for given the fact that there is only one definition for placement and that means educational program and let me ask judge sax a question in a slightly different direction which is  would it have been possible would have been possible for the parents to proceed otherwise than by making the unilateral move to seek approval for the move would have been possible to proceed otherwise and and possibly secure for right then and i hope it would not have been because as i mentioned before the facts of this case that the record establishes is that there was no offer for pendency services and  do even though they receive a ten day notice and notice that the students would be attending i've been so in the absence of that in that void that was left knowing that these students are entitled to pendency the their parents sought pendency program but that the district rather than ever offering tenancy services at the time instead ex post facto is saying oh you missed that because even though we didn't offer parents the services you shouldn't have gone to our brain despite the clear law of this circuit in t m and t y and concerned parents that educational program means i hope was no longer offering was no longer doing what qualifies for being pendency voces correct i mean there in the record there is no evidence to suggest that the i hope had to be as it exists today and that's not the standard that has to be met because there could possibly be more than one institution that can provide the services that a student has been establishes the students pencey placement but there's been no evidence brought forth by the district to show that i think that these educational programs that were stablish in the seventy one thousand school year could also be fulfilled and i hope during the eighteen thousand secured by where by which you could go to court or any other place to say that i hope is no longer offering the services the justified prior placement and  seeking an injunction or whatever to require that this be transferred to two i brain i'm sorry seeking an injunction or some kind of a forward looking order as opposed to backward looking after the fact to get i brain designated in place of i hope where i hope is no longer do with doing what's required right where you aren't two thousand and twenty but these cases were brought in during the one thousand nine hundred school year so they were you at the time when it was still possible looking forward there was nothing that you could do well yes in terms of the the i hope as an edge institution for pendency was never offered ourselves but those proceedings were always going on and that the point being it pendency is an interim relief it's procedural right for internally so it's only good it's only valid affective as as long as the administrat and so that all the references by the district of well is this place appropriate basically saying is it properly vetted that is the term the courts have stated that is for the fate proceeding which is not well guard to the merits any question as to cations are held you think the state is is an appropriate part of the proper party yeah because its actions or inaction does affect pendency in that sense it does affect it because  they are sponsible for the process and it's the process that has been failing these these children you know you made a reference to guns shown before them some as one of the indicated parties in came to you and got some against new york very quickly your honor i want to address the questions that were posed by the judges st of all on the t m public private distinction i think we very adequately address in our briefs that was not at all an issue the court said very specifically it is up to the school district to determine what that is it did not at all hinge on that and in fact as you mentioned the reply briefs this court said specifically school districts can provide their can meet their burden through both a private placement or private or public the  is i want to address the questions i think were being posed which is could there have been other options yes in fact what should parents have done if you say the parents could not unilaterally move the child from hope to  brain and say this is this is the pendency has now changed from the brain right what should they have done yes they have three options and st of all of course they can unilaterally move it what they want is the immediate nonrefundable funding school b they bring the faith claim they say school district your proposed date was terrible we think you should pay for school b guess what that litigation happens if the parent wins and the school district doesn't appeal or even if the mesereau firms they get money for that school district what they wanted to do here is a classic game of hands we went to was you lose they want to run to court and say listen don't even care about whether school b is actually appropriate just look at the papers look at look  it's the same thing pay for it now two dollars more yes they have two options the nd option is pendency is can be determined by mutual agreement by both parties they could have said listen we are moving these children on mass to this new school here the reasons why we're doing so we think it's urgent we think there's irrepairable harm please work with us and recognise recognise this new school guess what the dealy does that if a parent comes the delia says my child was kicked out of the school we can't go back to that school creating all of this unnecessarily here's a rd wrap around is explicitly endorsed by the supreme court and own it versus doe and endorsed by the force or warner versus board of education we say these cases repeatedly they never once refuted this and they no standards and the four circuits clear on this they said you have to if you're going to change the placement if you're going to say i we don't want that to be we want now a new school to be the educational place and you have to meet all four standards and you have to show that you're likely to show that this is an adequate program for the child and you have to show your parable harm you my opposing counsel was asked repeatedly why did you guys move why was it necessary to do so he has repeatedly disavowed giving you an answer and he's and his answer has been well there's been no evidence that hope academy could have been appropriate for this child that's not the right question the right question is why did you move your child from a school that everybody a month ago said this they moved wrecked and and asked for funding for their move they could have short preliminary relief of some kind and importantly as the warner case explains citing hoenig analyzing that saying you need to as the school year begins at school a hope right as the school year begins they become aware that the school is no longer satisfactorily performing what was the basis for for a finding at  provides is no longer satisfactory do they that the as these proceedings go on the year passes and the child is not getting the services well again the parent is always motion and the court said with the district court feeling to truly analyze all four factors and the court said we except that parents can do this what is inappropriate is this idea that they get automatic nonrefundable money when they've unilaterally rejected what was the penalty placement and the last point i think this is implied doesn't need to be sought prior to the move no promptly probably exactly and he and this is the important thing and it comes back to sort of their accusation that we are somehow imposing a double standard misunderstanding concerned parents i think this court understands that case and knows how that case was applied in t n there's no double standard here it was a completely different question it was not on pendency it was about a school district's ability and the reason why the school district and parents are situated differently is because the school district always has an obligation under the idea to provide an education and educational placement parents can choose to move their kid child if they so wish on their own whim from school to school to school what they do not get is funding that follows them like a voucher and unless