[00:00:00] Speaker 02:
We'll now call the next case DM versus Oregon School Activities Association.

[00:00:20] Speaker 02:
And as we're getting set up and people are moving around the courtroom, I want to thank counsel for agreeing to move this to today as opposed to tomorrow.

[00:00:32] Speaker 02:
It's very, very, very helpful that you did that.

[00:00:35] Speaker 02:
So I much appreciate it, the professionalism.

[00:00:48] Speaker 02:
And when you're ready, counsel?

[00:00:59] Speaker 00:
May it please the court, my name is Shanoa Payne and I represent DM.

[00:01:04] Speaker 00:
Defendant OSAA admittedly does not consider the ADA at all and does not engage in the required individual analysis of whether a student has a disability under the ADA or whether that student needs an accommodation.

[00:01:18] Speaker 00:
Instead, limiting its fifth-year hardship waivers only to a subset of students with disabilities, those with an IEP under IDEA.

[00:01:27] Speaker 00:
In turn, students like plaintiff here who have mental health disabilities

[00:01:33] Speaker 00:
but do not otherwise qualify for special education services are denied accommodations from defendant carte blanche.

[00:01:41] Speaker 01:
He does have a 504 plan, does he not?

[00:01:44] Speaker 00:
He did have a 504 plan issued by his school that determined that he had substantial limitations in attention-related tasks, completing activities, requiring strong skills in executive function, and self-regulating emotions.

[00:02:00] Speaker 02:
And Counsel, I just want to make sure I understood at this stage of the litigation what relief your client is seeking, because he's not seeking to play high school football anymore, correct?

[00:02:10] Speaker 00:
That's correct.

[00:02:11] Speaker 00:
We did appeal the denial of the injunction, but he graduated high school in that time, mooting our injunctive relief card.

[00:02:18] Speaker 02:
So if we were to agree with you on the merits and were to send this back to district court, what relief would your client be seeking at that time?

[00:02:25] Speaker 00:
Vacating the order for motion for summary judgment and he is continuing to seek damages both Compensatory which would be the limited damages post Cummings under the ADA and then we have a We have two state discrimination claims that do allow emotional distress damages on top of that.

[00:02:44] Speaker 00:
Thank you

[00:02:46] Speaker 00:
I'd like to begin with our argument that the OSA's policies constitute a facial violation of the ADA because I do think it is dispositive and this court need not go further into fundamental alteration or causation because of the fact that OSA has a strict adherence to its criteria without any exception for students with disabilities under the ADA.

[00:03:12] Speaker 00:
this sort of blanket rule or categorical exclusion of considering accommodations at all for students with disabilities under the ADA.

[00:03:21] Speaker 00:
constitutes a facial violation of the ADA.

[00:03:24] Speaker 00:
And also, the issue that was raised in the answering brief, it also constitutes deliberate indifference, which would allow for those monetary damages.

[00:03:34] Speaker 00:
This court has repeatedly found that a failure to investigate at all, whether a student has a disability under the ADA or whether an individual can be accommodated, constitutes deliberate indifference as well.

[00:03:48] Speaker 02:
Do you want to talk about there's this very recent First Circuit case?

[00:03:53] Speaker 02:
I know that the amicus brief that the United States filed relied very heavily on the district court case, which the First Circuit kind of changed a little bit.

[00:04:03] Speaker 02:
Can you talk about that First Circuit case and why we shouldn't worry about it?

[00:04:07] Speaker 02:
I assume that's what you're going to say.

[00:04:08] Speaker 00:
Yes, your honor.

[00:04:10] Speaker 00:
Thank you.

[00:04:10] Speaker 00:
I did file a 28-J letter addressing the First Circuit's reversal of the district court opinion and it primarily reversed on the issue of causation and it also aligned with circuit opinions that this court has already rejected in Martin.

[00:04:27] Speaker 00:
So there is a line of decisions

[00:04:31] Speaker 00:
in Potgan, McPherson, and Sanderson that allow for a finding that a rule is essential or fundamental without going into the individual circumstances of whether the particular person seeking the accommodation would actually undermine the purposes of the rule.

[00:04:51] Speaker 00:
This court rejected that trilogy of cases in Martin.

[00:04:54] Speaker 00:
And obviously, the Supreme Court affirmed this court's decision and said, you can't stop at just determining whether a rule is important.

[00:05:03] Speaker 00:
You have to look at whether accommodating the particular individual under the particular circumstances of the case undermine those salient purposes of the rule.

[00:05:14] Speaker 00:
And that's really where the district court erred here, is it followed that

[00:05:19] Speaker 00:
line of cases and stopped at sort of the prong one analysis, which was the rule is important.

[00:05:26] Speaker 00:
End of analysis.

[00:05:27] Speaker 00:
And this court and the Supreme Court has said you can't stop there.

[00:05:31] Speaker 00:
You must go further and consider whether providing a modification to an individual would actually undermine the purposes of that rule.

[00:05:40] Speaker 00:
This court adopted the dissent in Potkin and

[00:05:43] Speaker 00:
the Seventh Circuit's case in Washington, that both, when considering the individual circumstances, there would be no violation of the rule if, for instance, there is no redshirting, there's no safety risk.

[00:05:56] Speaker 00:
And here, there is no argument that my client was

[00:06:02] Speaker 00:
intentionally redshirting by taking a year of mental health treatment.

[00:06:06] Speaker 00:
It's also important to remember that DM is actually the same age as his peers when he was held back because he had previously skipped a year.

[00:06:14] Speaker 00:
So he wasn't older or more mature than his peers either, which is a

[00:06:19] Speaker 00:
very important fact when considering the individual circumstances.

[00:06:23] Speaker 00:
And there was also even a finding by the district court that playing football promoted his education and motivated him to go to college.

[00:06:31] Speaker 00:
And those are the types of facts here that were never considered by the district court and are ignored because the OSA doesn't consider individual circumstances at all.

[00:06:44] Speaker 03:
Can I go in a little slightly different direction?

[00:06:48] Speaker 03:
I was going to ask a little bit about deliberate indifference.

[00:06:52] Speaker 03:
First of all, am I correct in thinking that because all that's left is the various types of damages that you would need to show deliberate indifference in order to

[00:07:03] Speaker 03:
I guess what I'm trying to figure out is, is there any part of your case that wasn't addressed by the prior panel that still exists such that deliberate indifference is not an issue for that part of the case?

[00:07:17] Speaker 00:
The state claims do not require a showing of deliberate indifference.

[00:07:21] Speaker 00:
The Oregon Court of Appeals has determined that the education discrimination statute does not require a finding of deliberate indifference to seek damages.

[00:07:31] Speaker 03:
So if you decide

[00:07:33] Speaker 03:
the federal case, if the federal claim stays in, then the state claims are pending.

[00:07:39] Speaker 03:
But as to the federal claims only, what I'm struggling with a little bit is, in this case feels a little bit like a qualified, I realize it's not qualified immunity, it's not, but it feels a little bit like that because

[00:07:53] Speaker 03:
To me, sort of the elephant in the room is hard for me.

[00:07:57] Speaker 03:
There's very, very challenging issues that we've been talking about and that you've been talking about so far.

[00:08:03] Speaker 03:
But once you get past those issues, if we were to send it back, you would have to show deliberate indifference in front of the district court.

[00:08:11] Speaker 03:
And I don't really see any evidence.

[00:08:14] Speaker 03:
I had my clerk dig through because this was litigated.

[00:08:17] Speaker 03:
I understand the district court didn't rule on this, but it was litigated in front of the district court, correct?

[00:08:20] Speaker 03:
That's correct.

[00:08:21] Speaker 03:
And what is your best evidence of deliberate indifference that you were able to present to the district court?

[00:08:29] Speaker 00:
Again, it would be that failure to investigate and failure to engage in the individual analysis and having that blanket exclusion under Vincent Duvall.

[00:08:39] Speaker 00:
Those cases in the circuit have said that if you don't engage in that analysis at all, then that is deliberately indifferent.

[00:08:47] Speaker 00:
So here, there were no findings by OSAA that

[00:08:51] Speaker 03:
Our client didn't have a disability or that it would even pose a fundamental alteration to provide the accommodation to him They simply denied it because he didn't meet their existing criteria and that is a fundamental violation and deliberately and it was as I understand it was developed in litigation decades ago and I think it seems like the school district felt like we have this criteria and it's got these and we want this to be As formulaic as possible.

[00:09:18] Speaker 03:
I understand it's got to be individualized, but you can you can see also why you?

[00:09:21] Speaker 03:
If you're if you're somebody making decisions you want a formula to apply so they apply the formula and you're basically saying that It sounds to me like your argument is well if they apply to this formula that's deliberate indifference because they but is there isn't there some sort of

[00:09:40] Speaker 03:
aspect that they need to have known the law and somewhat been deliberately, willfully, at least in some aspect, disregarding it?

[00:09:48] Speaker 00:
So I think the Bingham case is helpful in this regard because the district... Which case, I'm sorry?

[00:09:52] Speaker 00:
The Bingham case, the prior litigation the OSAA went through.

[00:09:56] Speaker 00:
because Judge Coffin in that case ruled that the ADA did apply to OSA and that they were required to engage in an individual analysis.

[00:10:06] Speaker 00:
Now, in finding that they had complied with the injunction in that case, which was specific to a student with a learning disability and IEP, this sort of criteria was considered to fulfill the injunction in that case.

[00:10:21] Speaker 00:
But the court also was very clear that there was to be no deference owed to the institution unless they made substantial findings of fact.

[00:10:33] Speaker 00:
And here, that's exactly what's missing and why there would be no deference.

[00:10:38] Speaker 00:
So the OSA was aware that they were required to engage in an individual analysis that the ADA applied to them by this Bingham decision.

[00:10:47] Speaker 00:
and that they needed to make specific findings regarding disability and or fundamental alteration.

[00:10:53] Speaker 03:
I was going to ask about that, about the findings, because as I read the briefings, it seemed like they didn't make findings and facts, but it seems like they

[00:11:01] Speaker 03:
The district relied on certain facts.

[00:11:03] Speaker 03:
The facts that they relied on were that he didn't have.

[00:11:07] Speaker 03:
In other words, they weren't just making this decision in a vacuum.

[00:11:11] Speaker 03:
But the facts they thought were dispositive was that he did not have an IAP, which is something individualized to DM, right?

[00:11:17] Speaker 03:
But your argument is, yeah, but that's not a dispositive fact.

[00:11:21] Speaker 03:
And you may be correct on that.

[00:11:22] Speaker 03:
But it is.

[00:11:24] Speaker 03:
They did have individualized things that they're relying on.

[00:11:28] Speaker 03:
But your argument is, and you may be right, that they were not the correct individualized things that they're relying on.

[00:11:33] Speaker 00:
That's correct.

[00:11:34] Speaker 00:
I think the argument that my friend has made in the brief is that considering whether a student meets its existing criteria is an individualized analysis.

[00:11:45] Speaker 00:
But that's not the individualized analysis that the ADA requires, because OSA admits that.

[00:11:51] Speaker 00:
I mean, basically, there would have been no facts that our client could have put before this organization that would have

[00:11:58] Speaker 00:
let it to determine that he could be accommodated because they have the strict adherence to you don't have an i a p you don't get the they have this formula and he had his categories you fit into but there's no and it's really a bad criteria for the reason that is both under inclusive and over inclusive in the sense that it automatically excludes all this group of students with disabilities that don't have special education services that does it

[00:12:23] Speaker 03:
Does it affect this deliberate indifference analysis that they, you know, they had to, as I understand the first note is that they had to have knowledge that the harm to a federal protected right was substantially likely, you know, we have a district court judge here who

[00:12:39] Speaker 03:
ruled against you repeatedly, and seem to, if I was a school district, I would be thinking, we're winning, we're winning, we're winning.

[00:12:45] Speaker 03:
And so does that affect the substantially likely prong, or is that not something we should take into account?

[00:12:51] Speaker 00:
No, especially because the district court erred in its analysis here by citing two circuit court cases that had already been rejected by the Ninth Circuit.

[00:13:00] Speaker 03:
So the only question I've got on that is,

[00:13:03] Speaker 03:
Assuming it did.

[00:13:03] Speaker 03:
Assuming it did.

[00:13:06] Speaker 03:
I'm trying to figure out where's the room in your way of framing it.

[00:13:10] Speaker 03:
There's got to be play in the joints, so to speak, between being wrong and being deliberately and differently wrong.

[00:13:17] Speaker 03:
Correct.

[00:13:17] Speaker 03:
So where is that play and why?

[00:13:19] Speaker 03:
It seems to me when I'm asking you about that, you're more saying, well, they were wrong.

[00:13:23] Speaker 00:
If they had engaged in individualized analysis in this case and determined that our client didn't have a disability or that accommodating him would pose a fundamental alteration, then I think that would questionably not constitute deliberate indifference because they went through the analysis and they would actually be owed maybe some deference to their own findings on that.

[00:13:50] Speaker 00:
But they don't engage in that analysis.

[00:13:53] Speaker 00:
They will never engage in that analysis under their existing rules.

[00:13:56] Speaker 00:
And they did not do that in this case.

[00:13:57] Speaker 00:
And under Vincent and Duvall, that lack of investigation, that lack of individualized analysis is exactly what constitutes deliberate indifference.

[00:14:08] Speaker 00:
Unless you have a further question.

[00:14:10] Speaker 02:
You want to reserve?

[00:14:10] Speaker 00:
I do.

[00:14:11] Speaker 00:
I do.

[00:14:11] Speaker 00:
Thank you.

[00:14:11] Speaker 02:
And I may give you a little more time.

[00:14:12] Speaker 02:
This is a more involved case.

[00:14:14] Speaker 00:
OK.

[00:14:15] Speaker 02:
Thank you, Your Honor.

[00:14:15] Speaker 02:
You got it.

[00:14:22] Speaker 04:
May it please the court counsel, Jonathan Rodmacher, for the Oregon School Activities Association.

[00:14:27] Speaker 04:
The four issues I wanted to try and touch on were the fundamental issues associated with the rule, the causation analysis, meaningful access, and no deliberate indifference.

[00:14:37] Speaker 04:
Council focuses on one part of the rule, eight semesters and the IEP exception, but not the other part of the rule.

[00:14:44] Speaker 04:
And frankly, the real true fundamental part of the rule in this circumstance are its exceptions.

[00:14:50] Speaker 04:
And that is, are there circumstances beyond the control of the student and the student's parents whereby the student could not make academic progress?

[00:14:59] Speaker 04:
Because fundamentally, school is about school.

[00:15:04] Speaker 04:
somebody can demonstrate that they have a disability, whether it's under an IEP or not under an IEP, just a 504, and that as a result of that disability, they were unable to graduate in four years, then they do fall within one of the exceptions.

[00:15:19] Speaker 04:
So the fundamental rule is eight semesters, but with a caveat that an inability to demonstrate progress gives you the basis for an exception.

[00:15:30] Speaker 01:
If DM could have satisfied that criteria, he didn't have an IEP, so wouldn't your client have come to the same conclusion by invoking that aspect?

[00:15:42] Speaker 04:
No, Judge, and that's why I think by saying to the court, they only have an IEP exception, they ignore the fact that no, the pre

[00:15:51] Speaker 04:
2000, the pre-Bingham rule was, if circumstances beyond your control result in your inability to graduate in four years, then you have a basis for having an exception.

[00:16:01] Speaker 01:
And the individualized... Were there cases involving accommodations that were granted where the student did not have an IEP, even if he was able to make that to the showing that you're urging?

[00:16:14] Speaker 04:
There's one case that's actually called out by plaintiff where, and this is post-2000s, where the student's caregiver was murdered, and his brother was murdered, and he was out of school for a semester.

[00:16:27] Speaker 04:
And he got, I can't remember if it was a fifth year or just one extra semester, but that example is called out because that was part of the discovery in this case.

[00:16:35] Speaker 04:
So.

[00:16:35] Speaker 01:
But did that student also have an IE?

[00:16:38] Speaker 04:
The student did not that student one case did not have an IEP.

[00:16:42] Speaker 01:
I don't think that have granted at least one exemption to someone who didn't

[00:16:49] Speaker 04:
Yes, Judge, I don't know that if in that case there was an analysis of whether or not there was a disability.

[00:16:54] Speaker 04:
It again was, you couldn't graduate from school.

[00:16:57] Speaker 04:
And that really takes us to the causation piece.

[00:16:59] Speaker 04:
Because here, there's all kinds of ways in which you could imagine a causation, some third party or third actor causing something to happen.

[00:17:08] Speaker 04:
But in here, the record is factually clear.

[00:17:11] Speaker 04:
And surprisingly, the reply brief doesn't

[00:17:14] Speaker 04:
even mention it, that the school says to the plaintiff, you can graduate, to his mother, you can graduate this year.

[00:17:22] Speaker 04:
Congratulations.

[00:17:23] Speaker 04:
In fact, if you change this class to a language arts class, you can graduate after the second trimester.

[00:17:29] Speaker 04:
And yet the choice is made not to graduate in the four years.

[00:17:33] Speaker 04:
From an educational standpoint, does a parent have every right to do that?

[00:17:36] Speaker 04:
Of course.

[00:17:37] Speaker 04:
But do they get to make that decision and then say,

[00:17:40] Speaker 04:
and I get a fifth year of sports.

[00:17:42] Speaker 04:
That's where the fundamental nature of the rule is.

[00:17:45] Speaker 04:
If it's beyond your control, then you fall within one of the exceptions we can make.

[00:17:49] Speaker 03:
Well, we get to make that decision if the parent thought that the child's disability was such that they shouldn't graduate that year.

[00:17:58] Speaker 03:
They should graduate in a year.

[00:18:01] Speaker 03:
And if they were right about that, that the child had a disability, and that was why that decision should be made to keep them for another year.

[00:18:10] Speaker 03:
then they can make that decision.

[00:18:12] Speaker 03:
And then the fact that they didn't have an IDPA, IP, whatever the individual is.

[00:18:19] Speaker 03:
They didn't have that under idea.

[00:18:21] Speaker 03:
It seems to me that requiring that showing, if they still have a disability, there is some tension there.

[00:18:30] Speaker 03:
Which causes me to think, that's really complicated.

[00:18:33] Speaker 03:
That's really complicated.

[00:18:34] Speaker 03:
And I could see where somebody could screw that up and not necessarily be deliberately indifferent.

[00:18:40] Speaker 03:
And so what I'm trying to figure out is, first of all, let me ask you what I asked your colleague on our site, is there a, do we have to go through all of this to reach the deliberate indifference or is there some, is there any cases to say we have to do that or can we kind of like you would do in a qualified immunity case where you say, or as we were talking about earlier in a plain error prejudice type situation, can we just,

[00:19:07] Speaker 03:
jumped to the deliberate indifference.

[00:19:08] Speaker 03:
I understand the district court did not.

[00:19:11] Speaker 03:
But the record is there.

[00:19:12] Speaker 03:
The arguments were made to the district court.

[00:19:15] Speaker 03:
So what is preventing us from deciding this case on deliberate indifference?

[00:19:21] Speaker 04:
There's nothing, Judge.

[00:19:23] Speaker 04:
The request for injunctive relief is gone, it's just damages.

[00:19:27] Speaker 03:
Her argument is, yeah, but you didn't do an individualized, I think if I understood correctly, I want to give it, but that you err, or the school erred, because they did not do

[00:19:39] Speaker 03:
Any individualized inquiry they didn't look into the facts.

[00:19:43] Speaker 03:
And so why is that wrong?

[00:19:44] Speaker 04:
Well, it's false So so the record reflects that in fact, not only did we do the internal appeal both to the executive director and to the board But then our processes are we have I thought about there's a lot of steps you went through but I to give her argument is do I believe that the that

[00:20:04] Speaker 03:
The argument is not just that you went through the steps, but it's actually errors that you made in the steps.

[00:20:10] Speaker 03:
It's like you never did the right inquiry.

[00:20:13] Speaker 03:
You didn't do an individualized inquiry.

[00:20:14] Speaker 03:
You just applied some sort of rigid rule.

[00:20:18] Speaker 03:
And that's why it's a false statement.

[00:20:20] Speaker 04:
factually, what we did is after the internal appeals, we then have a third-party judge, former chief judge of the Oregon Court of Appeals, Mary Dietz, come in, hear in a full evidentiary hearing, opportunity for briefing and evidence and witnesses, and the judge, and of course, I say that because how could you have a more particularized assessment of a person's issues, arguments, and facts than that?

[00:20:43] Speaker 03:
Was the issue of whether or not DM

[00:20:45] Speaker 03:
had a disability presented in all of that?

[00:20:48] Speaker 03:
And was it addressed?

[00:20:50] Speaker 04:
That was not disputed, because somebody said he has a psychological disability.

[00:20:54] Speaker 04:
The question is, did it cause him to not be able to graduate?

[00:20:57] Speaker 03:
And the choice that his mother made to send him to- And your position is, if these decision makers and your client got that causation question wrong, they didn't deliberately get that causation question wrong.

[00:21:16] Speaker 04:
Right, they applied the rule, the two prongs that were issued.

[00:21:19] Speaker 03:
In other words, they could be wrong, but what's the evidence that they were deliberately wrong?

[00:21:24] Speaker 04:
There's no evidence, which is why we asked the district court to rule on the issue.

[00:21:28] Speaker 04:
I also think that it comes in a context that I can't imagine exists anywhere else, which is we didn't used to have a disability exception until Judge Coffin required it.

[00:21:37] Speaker 04:
The rest of his decision analysis

[00:21:39] Speaker 04:
was vacated because the case became moot, but he approved this rule and this court approved this rule.

[00:21:47] Speaker 03:
So the idea that even 20 years later... So on that issue, I believe that Diem's argument is that

[00:21:57] Speaker 03:
Yes, we have a rule, but that rule is not the rule for any and every circumstance.

[00:22:02] Speaker 03:
And so that's how you erred, was by applying that rule and not looking to see if there was some other way that under the ADA that you're required to accommodate

[00:22:14] Speaker 04:
But the plaintiff would say, if somebody comes and says, I have a disability, it hasn't caused me not to graduate timely, but it caused a parent to make a different decision so I couldn't graduate.

[00:22:24] Speaker 04:
You have to give me a fifth year.

[00:22:26] Speaker 04:
And we'd say, no, it's all about the choice piece and causation.

[00:22:30] Speaker 04:
Is circumstances beyond your control, whether it's an IEP or not?

[00:22:33] Speaker 03:
And I would point out.

[00:22:34] Speaker 03:
And if you're wrong on that causation, if they're correct that the causation that before, if you look at a before analysis and the parent makes a decision, but the decision is based in part on a disability, and that downstream effect of that is that you don't graduate in time.

[00:22:53] Speaker 03:
And that's enough to establish causation.

[00:22:56] Speaker 03:
Then I assume then you would lose on all of the first stuff.

[00:23:03] Speaker 04:
what's you know you wouldn't be deliberately indifferent on having made the causation argument right definition if if the court said you're wrong if that equals deliberate indifference then just throw out the words deliberate indifference it doesn't matter i also point out that the causation analysis here is not just

[00:23:19] Speaker 04:
the first prong of our exception, but also the IEP rule that Judge Coffin in this court approved in 2000, which is that if a student has an IEP and is meeting the terms of the IEP, but nonetheless is not able to graduate, then they could get a fifth year of sports.

[00:23:35] Speaker 04:
And I point that out because in that circumstance, if an IEP said, student, you need to take a math class, or you're not going to graduate.

[00:23:41] Speaker 04:
So your IEP requires you to take a math class.

[00:23:43] Speaker 04:
If the parent says, you know, math makes my student anxious, I'm gonna put him in PE instead, and so he didn't graduate in four years, that would be a causation issue under the IEP rule to say, you could make that choice as a parent for your kid.

[00:23:57] Speaker 04:
That doesn't mean you get to make a choice that then says, they get a fifth year of sports.

[00:24:02] Speaker 04:
So even embedded in the IEP rule approved by the district court and this court in Bingham, there's still that same causation element of saying, you can make a choice, but you can't then make a choice that says,

[00:24:13] Speaker 04:
you get a fifth year.

[00:24:16] Speaker 04:
The Rhode Island, the First Circuit decision did not just talk about causation, it also talked about the fundamental nature of the rule.

[00:24:25] Speaker 04:
I'm looking at slip-off 23 at footnote 11 where the court said, by contrast, here the proposed accommodation implicates the league's rules for the whole of its inter-classic athletics program and must be analyzed in light of the objectives served by that program at large.

[00:24:38] Speaker 04:
not merely the objectives of the individual sport that it facilitates.

[00:24:41] Speaker 04:
So it's looking big picture.

[00:24:43] Speaker 04:
How are you making sure that all students fundamentally try and graduate in four years if they can, but also are only going to get four years of sports because everybody only gets four years of sports.

[00:24:55] Speaker 04:
And to allow a choice by a parent to elevate some other student to the fifth year of eligibility is where it becomes a fundamental failure in the rule.

[00:25:06] Speaker 04:
Finally, meaningful access.

[00:25:08] Speaker 04:
It's raised not just in the briefing, but also was part of the administrative decision by Judge Dietz in the internal appeals process analyzing the plaintiff's claim.

[00:25:19] Speaker 04:
She talked about meaningful access and how the fact that he had access to sports for four years

[00:25:25] Speaker 04:
Just because he has a disability doesn't mean he gets sports for as long as he's in high school, because arguably you can be in high school until you're 20, if that's the choice that is made.

[00:25:36] Speaker 04:
That doesn't mean you get sports, because when he's on the field, somebody else is not on the field, somebody who only has four years.

[00:25:45] Speaker 04:
And that's where the meaningful access is.

[00:25:47] Speaker 03:
Can I ask you about that?

[00:25:49] Speaker 03:
You made that argument.

[00:25:50] Speaker 03:
As I read the other side, it seemed to me their response was, there's nothing in the record

[00:25:55] Speaker 03:
to demonstrate that he would have taken a spot from somebody else.

[00:25:59] Speaker 03:
I didn't know how to take that.

[00:26:00] Speaker 03:
It seemed to me like it was sort of a, just almost like a logic would say that, you know, if, well, it depends on what you mean by that.

[00:26:10] Speaker 03:
If he didn't, if he got on the team but didn't play,

[00:26:14] Speaker 03:
And the team was small school like I went to that could have always take more people, then it wouldn't take a spot from somebody.

[00:26:20] Speaker 03:
If he plays, it seems like it's a given he's taking a spot from somebody.

[00:26:24] Speaker 00:
Exactly.

[00:26:25] Speaker 03:
And if it's like the teams often are, I think, in bigger schools, even if he's not playing, there's only so many spots on the team.

[00:26:35] Speaker 03:
And so what I'm trying to figure out is,

[00:26:38] Speaker 03:
Does there need to be something?

[00:26:39] Speaker 03:
What is there in the record?

[00:26:41] Speaker 03:
And does there need to be something in the record for the fact that if he was put on this football team, that it would take somebody else's spot?

[00:26:50] Speaker 04:
Judge, I think the record is that it's a no-cut football program, but he could stand on the sidelines even as... I'm sorry, Judge Owens knows what no-cut means, but I don't know what that means.

[00:27:00] Speaker 04:
Everybody gets to be on the team.

[00:27:02] Speaker 01:
No one gets cut.

[00:27:03] Speaker 04:
Oh, everybody gets to be on cut.

[00:27:04] Speaker 04:
So you can stand on the sideline.

[00:27:05] Speaker 04:
But I don't think there's a dispute that.

[00:27:07] Speaker 01:
You can have a 100-man roster.

[00:27:10] Speaker 04:
I don't know if there's some upper limit.

[00:27:12] Speaker 04:
But for Sheldon High School, although I think they won state the year before, but I think they said it's no cut.

[00:27:20] Speaker 02:
They're a good team.

[00:27:21] Speaker 02:
But apparently, they don't cut people.

[00:27:23] Speaker 03:
And I don't think that.

[00:27:25] Speaker 03:
So just so I understand what that means, that means that you get to be on the team doesn't necessarily mean you get to play.

[00:27:30] Speaker 04:
If you're not eligible, you could stand on the sideline and be a team member in a jersey.

[00:27:37] Speaker 03:
I mean, even if you're eligible, obviously, you might be on the team, but you wouldn't necessarily get to play.

[00:27:43] Speaker 04:
Yeah, we're not going to force the coach to put the student in.

[00:27:45] Speaker 04:
Right.

[00:27:46] Speaker 04:
But it's the opportunity.

[00:27:48] Speaker 04:
And so that student who had played, there's no guarantees that he would have been on the field, but 11-person team on the field at any given time, you take that opportunity.

[00:27:58] Speaker 04:
And that's where, I mean, the First Circuit pointed that out.

[00:28:00] Speaker 04:
That is, preventing abnormally older students from depriving the younger peers of opportunities to play that they would otherwise enjoy.

[00:28:06] Speaker 02:
Now, they would say... But he wasn't older.

[00:28:08] Speaker 02:
Yeah, that's not the case here.

[00:28:09] Speaker 04:
He wasn't older than other people who were four or five years in, but he's older than the freshmen and sophomore and junior.

[00:28:15] Speaker 02:
But that's true.

[00:28:16] Speaker 02:
I mean, that's the nature of high school.

[00:28:18] Speaker 02:
I mean, you have seniors who are usually older than freshmen.

[00:28:20] Speaker 04:
Right, Judge, and that's where those people only have four years.

[00:28:24] Speaker 04:
So if I can't play my freshman or sophomore year because somebody's got a fifth year,

[00:28:28] Speaker 04:
necessarily, not that this particular person is going to take this particular person's spot on the roster, but that writ large, the reason why you say, we're not going to let you make choices that give you a fifth year is because you're trying to create harmony amongst schools and between the students.

[00:28:45] Speaker 02:
Let me ask you this, because it seems to me, and we have not conferenced about this case, so I don't know where this case is going.

[00:28:51] Speaker 02:
But if we were to agree with the other side in this case, it seems like this case

[00:28:56] Speaker 02:
could go on for years and years and years.

[00:28:58] Speaker 02:
And the relief being sought here is not for him to play football again.

[00:29:02] Speaker 02:
Those days, at least on high school, those days have passed.

[00:29:05] Speaker 02:
It's money.

[00:29:08] Speaker 02:
I'm curious what types of mediation efforts you guys have undertaken in this case.

[00:29:13] Speaker 02:
I see the smart coming.

[00:29:14] Speaker 02:
But I mean, because we have some very good mediators here in the Ninth Circuit.

[00:29:18] Speaker 02:
And to me, this seems like this is the classic case where this could be ended outside of the courtroom rather than keep dragging this through the courtroom.

[00:29:25] Speaker 02:
So what's your response to that?

[00:29:27] Speaker 04:
Judge, I'm only smirking because I just did a series of briefing with Judge Emerget.

[00:29:31] Speaker 04:
And it's all about mediation and good faith mediation.

[00:29:34] Speaker 02:
OK, well.

[00:29:34] Speaker 04:
So that's where a cavalcade of thoughts come to mind about reasonableness of settlement discussions.

[00:29:40] Speaker 04:
And I would say that neither side has had much by way of settlement negotiations.

[00:29:47] Speaker 04:
For example, I don't think we participated in the Ninth.

[00:29:49] Speaker 04:
We did participate in the Ninth Circuit program, but it was relatively abbreviated.

[00:29:53] Speaker 02:
OK.

[00:29:54] Speaker 02:
And would you be open to trying it again?

[00:29:55] Speaker 04:
Always.

[00:29:57] Speaker 02:
OK.

[00:29:57] Speaker 02:
All right.

[00:30:02] Speaker 02:
Thank you, counsel.

[00:30:03] Speaker 02:
Thank you.

[00:30:04] Speaker 02:
So get to your points, but I have the same question.

[00:30:10] Speaker 00:
OK.

[00:30:10] Speaker 00:
I do want to address really briefly the causation issue before I get to your settlement question.

[00:30:17] Speaker 00:
And here, OSAA

[00:30:20] Speaker 00:
repeated the relies on parental choice as somehow being dispositive in causation.

[00:30:28] Speaker 00:
Again, this is something that they can argue before a jury, but on summary judgment, there are absolutely facts for which a jury could decide that.

[00:30:36] Speaker 00:
the client's disability was the cause of his need for a fifth year.

[00:30:41] Speaker 00:
It wasn't simply parental choice.

[00:30:43] Speaker 00:
And OSA says, oh, he had enough credits to graduate in four years.

[00:30:46] Speaker 00:
Credits is not the only issue when it comes to being prepared to graduate with your cohort.

[00:30:55] Speaker 00:
And the school expressly found that due to the deficient education

[00:31:01] Speaker 00:
that DM received while he was at Triumph, that he was not prepared to graduate with his assigned cohort.

[00:31:09] Speaker 01:
I don't understand that.

[00:31:10] Speaker 01:
I thought they gave him full credit for all the coursework that he did in Utah.

[00:31:15] Speaker 00:
He did get credit.

[00:31:16] Speaker 00:
The substance of the education was basically filling out worksheets.

[00:31:21] Speaker 00:
Our client testified that it was not at a high school level.

[00:31:24] Speaker 00:
It was at a sixth grade level at most doing that work.

[00:31:28] Speaker 01:
But isn't the record that he could have graduated either in December or at the end of the school year with his cohorts had he taken a particular class?

[00:31:45] Speaker 00:
Based on credits only, without considering whether he was actually

[00:31:50] Speaker 00:
had actually received a thorough substantive education while he was at triumph.

[00:31:54] Speaker 01:
Where does that come from?

[00:31:55] Speaker 01:
I mean, the rule here is designed to make sure that the students progress to graduation.

[00:32:01] Speaker 01:
The record says he could have graduated if he'd done this one course.

[00:32:07] Speaker 01:
I'm not sure I'm following your arc.

[00:32:09] Speaker 01:
Where's the damage?

[00:32:12] Speaker 00:
Well, again, I think

[00:32:13] Speaker 00:
you would defer to the school's decision in this case to allow him to stay in school for a fifth year because they looked at the education that he received at Triumph Academy and determined that it was not rigorous, it was atypical, and therefore he was not prepared to meet graduation requirements

[00:32:34] Speaker 01:
with his assigned cohort and I think that is a totally confused me with this argument I thought that he would have been able to graduate

[00:32:46] Speaker 00:
Again, he could have credit-wise only, if you considered credits.

[00:32:51] Speaker 01:
But education... I don't understand the distinction.

[00:32:52] Speaker 01:
If you have enough credits to graduate, you graduate.

[00:32:57] Speaker 00:
No, for students with disabilities, they are allowed to stay in school, I believe, up until the age they are 21 years old.

[00:33:04] Speaker 01:
Is that what you're telling us that the school was saying?

[00:33:08] Speaker 00:
The school determined that he was not prepared to meet graduation requirements with his assigned cohort.

[00:33:13] Speaker 00:
So they're not going to let him graduate.

[00:33:16] Speaker 01:
Okay, we'll check the record, but this is a surprise to me.

[00:33:22] Speaker 00:
And one more brief point.

[00:33:23] Speaker 00:
I realize I'm over time, but to answer your question about settlement, we did discuss settlement during the Ninth Circuit mediation, and we were open to those discussions, but we were far apart on the money values and couldn't.

[00:33:43] Speaker 00:
And I think OSAA's position was,

[00:33:46] Speaker 00:
It succeeded at the TRO stage.

[00:33:48] Speaker 00:
It succeeded at the preliminary injunction stage.

[00:33:51] Speaker 00:
It succeeded at summary judgment.

[00:33:52] Speaker 00:
And it believes it's going to succeed here.

[00:33:55] Speaker 00:
And so I think it may take a decision from this court to help facilitate settlement.

[00:34:00] Speaker 00:
And then one more point for Judge Van Dyke on the deliberate indifference.

[00:34:08] Speaker 00:
In LaValle, this court made very clear that a deliberate indifference is not to measure ill will toward people with disabilities.

[00:34:16] Speaker 00:
So there is no requirement that OSA have any hostility towards students with disabilities or that it was motivated to discriminate against him.

[00:34:24] Speaker 00:
Again, it goes back to failing to engage in that required analysis.

[00:34:31] Speaker 03:
So you said what it is, and that makes sense.

[00:34:33] Speaker 03:
Am I correct in thinking that what it is is knowing you have a legal right and then deliberately, or maybe recklessly, I don't know, but something more than negligently ignoring that legal right?

[00:34:44] Speaker 00:
I think that's correct.

[00:34:45] Speaker 03:
OK.

[00:34:46] Speaker 00:
And no other questions?

[00:34:50] Speaker 00:
Thank you, Your Honor.

[00:34:50] Speaker 02:
Thank you both of you for your briefing and argument.

[00:34:53] Speaker 02:
In this case, matter is submitted.