[00:00:00] Speaker 00:
Case number 14-7021, Jane Leggett and K.E., a minor, by her parent and next friend, Jane Leggett.

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Appellants versus District of Columbia, a municipal corporation.

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Ms.

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Leggett for the appellant, Mr. Shipley for the appellee.

[00:01:08] Speaker 01:
Morning.

[00:01:16] Speaker 03:
Good morning, Your Honors.

[00:01:18] Speaker 03:
Good morning, Ms.

[00:01:18] Speaker 03:
Leggett.

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I am Jane Leggett, appearing pro se today on behalf of my daughter and myself.

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Palance here, I would like to reserve six minutes for rebuttal, please.

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We contend that this court should reverse the decision below because under any of the legal standards in the cases cited by either side, the Brewer School was a proper placement for my daughter because it provided her special education as defined by IDEA, it provided her educational benefit, and it was necessary because it was the only placement I could find that could meet her rather unusual combination of needs and would accept her.

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The undisputed evidence in this case is that District of Columbia Public Schools did not offer an IEP, an Individualized Education Program, or a placement for my daughter before the beginning of the 2012-2013 school year.

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I contend that it would have been irresponsible for me as a parent to have placed my daughter back into Wilson High School, where she had failed the previous year.

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The undisputed evidence is that she had failed the 2011-2012 school year and that for the previous two and a half years I had been asking, trying to get Wilson High School officials to evaluate my daughter and they refused.

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I had to hire attorneys and then file a due process complaint before they would evaluate her.

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When they did, they found that she was eligible for special education with multiple disabilities, a primary disability of other health impairments from multiple executive dysfunctions, as well as emotional disturbance.

[00:03:03] Speaker 01:
Could you tell us a little bit more about your search within the district for an alternative school?

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I know you said you found one that you thought was good, but they rejected KE, correct?

[00:03:16] Speaker 03:
Yes.

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Were there others?

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Yes, there were.

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May I go beyond the evidence?

[00:03:21] Speaker 01:
Yes, go ahead.

[00:03:21] Speaker 01:
I'm just curious.

[00:03:22] Speaker 03:
Sure.

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I didn't really begin searching extensively until after the June 14th IEPT meeting when I was told that Wilson High School could offer no more than two inclusion classes for her, so they were not going to be able to meet her needs throughout her day.

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So it seemed as if what we had been discussing was not going to be an adequate placement.

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I searched, there are multiple directories of both public and private schools.

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First, I started looking at DC public schools as well as charter schools, seeing if they had learning support programs, some kind of programs, but also looking for a setting that might be more therapeutic and supportive for her when I didn't find any there.

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I looked at a number of private schools.

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Did you want me to name names?

[00:04:10] Speaker 01:
No, no, you don't need to name names.

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And at that point I also began, a friend of mine had identified a boarding school in New Hampshire some months before.

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And so at that point when I wasn't finding anything, when I found something, first I learned quickly to look at a website and find out what kinds of programs it offered.

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Did it accept students with learning disabilities?

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If so, what kinds of programs did they offer?

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I would call the admissions officers and explain what I was looking for.

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And I learned very quickly to note that my daughter had a diagnosis of emotional disturbance.

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continuing suicidal ideation and usually that closed the door immediately.

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The district in its footnote 9 on page 32 cites to a Washingtonian magazine article saying that there were about two dozen schools specifically identified for children with emotional disturbance.

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Are those the kind of schools that you were looking at in that search that you just described?

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Well, generally not, because on the IEP team meeting, nobody had felt that she really required a full-time special education placement.

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I think the general, I mean, maybe it would be necessary if there were nothing else available, but everyone felt that she would be better off learning with non-disabled peers, which is the strong preference of IDEA.

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The other thing is that

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In my judgment and in the primary classification of executive dysfunctions, her primary difficulties were with her executive dysfunctions.

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And it was her continuing struggle over many years without being served that was aggravating her underlying mental health issues.

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And it created sort of an adverse cycle.

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And I felt strongly that she needed to begin feeling some success

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in school before she was going to get past this despair.

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And so it was necessary that we had her in a school that was also academically appropriate for her.

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Let me ask you about the remedy.

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If it were the case that the district court erred in holding that this was not an appropriate placement, but that Greer did meet the minimum required by the act,

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What are the factors that a court should consider?

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I mean, I guess the concern is, let me just put it out there, the concern is that if you have a school district that is scrambling to put an IEP in place but doesn't do it on time and gets it in place a couple of months late, and let's just assume by hypothesis that this IEP they put in place is adequate, but it's a couple months late,

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Follows from that in terms of of today does the district and have to pay for the entire school year at the private placement at the parental placement or a semester or.

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Does their duty stop at that point how how do you think that should be analyzed as an equitable matter.

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As an equitable matter, so not in the portion of the Carter approach about whether or not the private placement is proper.

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Assuming the private placement is proper, but that there's some mitigation that might be available where the school district, instead of having to pay for a private placement, could provide the appropriate services in house.

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Well, I think that there are a number of important equities that should be taken into account.

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The first one is, was the school's district scrambling to get an IP and placement in place?

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That was not the case here.

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In fact, DCPS was not responding to my or my attorneys' multiple communications asking them to reconvene

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the IEP team meeting, they never responded at all to say, gee, we're really under the gun, and this is what we intend to do.

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Even when we gave them our notice of intent to withdraw, we heard nothing back.

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Even when... What happened at the August 29th meeting?

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Excuse me?

[00:08:10] Speaker 01:
What happened at the August 29th?

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That's the first... That was a serious meeting, right, on August 29th?

[00:08:16] Speaker 03:
Well, that was the resolution... What happened there?

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All the record says is it was not resolved, right?

[00:08:22] Speaker 03:
Well, there are notes from that meeting.

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I would say that neither side of us probably agree word for word what was in there, but what happened was we went before, we stayed at our sides of what our perceptions were.

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We both agreed that the IEP needed to be completed, and so we agreed that it was not complete before the beginning of the school year.

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The district agreed with you at that point that it was not complete?

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Oh, yes.

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And there's a statement from the special education coordinator, and she stated that also in her testimony.

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We agreed to meet as soon as possible to complete the IEP.

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That was held in a meeting on September 11th.

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And that was the resolution, so we worked to move forward.

[00:09:11] Speaker 02:
So is there no time at which, I mean, assuming that the district wasn't diligent but did at some point get an IEP in place, is the fact that they were, as you described, non-responsive and not prompt in doing so, does that

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disable them from bringing a student back into the school system and require if they can be educated within the public school system that they be so educated?

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No, I don't think so.

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And that was never our attitude either.

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However, with a child such my daughter who had continuing suicidal ideation, her case needed to be managed very carefully.

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It was not the case that we could put her someplace

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yank her out after two weeks, put her someplace else without appropriate transitions.

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But my counsel in the hearing talked about actually proposing, let's get this IEP finished.

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We can talk about transitioning her back either to a public school or to a private school.

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But it needed to be someplace appropriate that could meet her needs.

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But I would argue then that the remedy is because a parent needs to place her child someplace at the beginning of the school year.

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It would have been grossly unfair to have left my daughter with no place to go.

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stated in my testimony that I think it would have been actually life-threatening for my daughter to put her back into the same school with no program in place, no necessary supports in place, no emergency plans, which we hadn't discussed.

[00:10:51] Speaker 02:
Now remind me, did they end up just not finalizing the IEP process, or have they proffered what they say is an adequate IEP with respect to your daughter?

[00:11:03] Speaker 03:
Well, from my perspective, they never completed the IEP, and they certainly never proffered a placement which could implement an IEP, any placement at all, and that's what's required to offer a FAPE.

[00:11:17] Speaker 03:
They would say that by placing an IEP document in the hearing disclosures, I think, although they never actually say that that was an offer of an IEP, I think that that's

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what's implied by it, but there is no indication to me, it was never given to me or my eternities, except in the disclosure.

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And have you formally challenged that, its adequacy, or?

[00:11:43] Speaker 03:
Well, I never understood it to be an actual offer.

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It wasn't sent to me as required by the law.

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It's incomplete.

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It contains errors as serious as the hours and duration of services that they were offering.

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And the special education coordinator stated in her testimony that if the presumptive placement were at Wilson, Wilson could not implement.

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what they had in that document.

[00:12:12] Speaker 04:
They didn't ever make an offer of replacement of a limousine, right?

[00:12:16] Speaker 03:
No.

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I don't believe that they have ever contended that they made any kind of an offer.

[00:12:20] Speaker 04:
They presumed it, but that's... I mean, your point is, even if the paper was completed, the law requires more, and they were not offered a replacement anywhere.

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Right.

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That's correct.

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But also, I just had no reason to think that that was...

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one because it so does not match what apparent what the law says a parent should expect.

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It wasn't until the district court's opinion

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in January 2014, so well after a year after the hearing that for the first time it was suggested that I should have challenged that document.

[00:12:56] Speaker 01:
And at that point it would have been... Who suggested that?

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Who suggested?

[00:12:59] Speaker 01:
Oh, you mean in the district court opinion?

[00:13:00] Speaker 03:
The district court's opinion for the first time suggested that I should have challenged that.

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And at that point it would have been pointless.

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The school year in question was well over.

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I had already filed

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yet another due process complaint because DCPS refused to develop an IEP in placement for my daughter for the following year, the 2013-2014 school year.

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And that complaint was dismissed res judicata.

[00:13:28] Speaker 01:
Now, there's another lawsuit.

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That's covered by a separate lawsuit that's been stayed, right?

[00:13:32] Speaker 03:
Yes.

[00:13:33] Speaker 01:
So it was dismissed res judicata.

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Why?

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I mean, because of the previous hearing?

[00:13:39] Speaker 03:
Well, the hearing officer found that DCPS had denied my daughter a faith, but it was dismissed as judicata because it refused to develop an IEP in placement.

[00:13:48] Speaker 01:
Was that after DCPS claims in the fall that it did develop an IEP?

[00:13:57] Speaker 03:
No, it was the subsequent fall.

[00:14:01] Speaker 03:
So the hearing for this complaint was in fall 2012.

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In October 2013, a second hearing officer

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found without hearing that DCPS violated, denied of faith, but dismissed the case, res judicata, because she said that Greer had already been found improper by the first hearing officer, and therefore that could not be heard again.

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So another complaint would have been dismissed.

[00:14:33] Speaker 01:
I realize it's a different case, but as part of those proceedings, just to continue the question Judge Edwards was asking you,

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Did DCPS produce an IEP at that point?

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They were ordered by the hearing officer to complete one as soon as possible.

[00:14:51] Speaker 01:
You're talking about the 2013-2014 school year?

[00:14:56] Speaker 01:
But at the beginning of that school year, did they have an IEP in place?

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No, they refused to place, to develop one saying that I had voluntarily withdrawn my daughter.

[00:15:06] Speaker 03:
But they never completed the IEP.

[00:15:08] Speaker 03:
I understand.

[00:15:09] Speaker 03:
Thank you.

[00:15:09] Speaker 03:
Even under the second hearing officer's order.

[00:15:12] Speaker 02:
And the race judicata, that was the hearing officer who so held, but there was a, you file a case in district court and that's being held as I understand it, pending resolution of the state.

[00:15:21] Speaker 01:
Yes.

[00:15:23] Speaker 01:
Okay.

[00:15:25] Speaker 01:
Do you want to save your time or do you have some other things you want to cover?

[00:15:30] Speaker 03:
How much more time do I have?

[00:15:32] Speaker 01:
Why don't you use your 23 seconds and I'll give you a little more time.

[00:15:39] Speaker 01:
Go ahead if you'd like.

[00:15:41] Speaker 01:
I'll just give you a couple minutes.

[00:15:49] Speaker 05:
Good morning.

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May it please the Court, Carl Schifferle for the District of Columbia.

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This Court should affirm the District Court for any of three independent reasons.

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First, there was no denial of free and appropriate public education that justified a unilateral private placement.

[00:16:05] Speaker 01:
Second, the hearing... Do you disagree that under the law the school district had to have an IEP ready by the beginning of the school year?

[00:16:14] Speaker 05:
That was a procedural deadline.

[00:16:15] Speaker 05:
I agree.

[00:16:16] Speaker 05:
Yes, that is correct.

[00:16:18] Speaker 01:
But whether the hearing officer said it was not a procedural violation, that it was a substantive violation.

[00:16:24] Speaker 05:
Well, we disagree with the hearing officer's analysis.

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It did treat it as though a procedural violation was a per se denial of a free and appropriate public education.

[00:16:35] Speaker 01:
So what's your best?

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I know you've got a situation here with the hearing officer and the district court.

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both agree that the district denied free and appropriate public education to the child, right?

[00:16:47] Speaker 01:
Yes.

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And you want, so what's your best argument that given our deference to fact-finding and everything else, you think this Court should overrule it?

[00:16:57] Speaker 05:
Because neither found that there was an actual educational deprivation.

[00:17:02] Speaker 05:
We believe, just assume that because the IEP was not in place, that there was a substantive... What does that mean?

[00:17:10] Speaker 01:
What does that mean?

[00:17:11] Speaker 01:
I don't understand that.

[00:17:13] Speaker 01:
She, under the Act, every child has a right to an appropriate education, correct?

[00:17:20] Speaker 05:
Right.

[00:17:21] Speaker 01:
And there was none in Wilson at the beginning of the school year, was there?

[00:17:27] Speaker 01:
There was no IEP.

[00:17:29] Speaker 05:
That is correct.

[00:17:30] Speaker 01:
Okay, so just explain it to me.

[00:17:33] Speaker 01:
I don't understand why this isn't a violation of the statute that triggers the right of the parent to send her child to a private school.

[00:17:44] Speaker 05:
Well, there are several responses to that.

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First, I would point out the CH case from the Third Circuit.

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That was a case where there was the same procedural violation that an IEP was not in place, but it found that there was no denial under the facts of that case.

[00:18:01] Speaker 05:
And I think they're somewhat similar to the facts here, which we have to look at, that the private school decision was made well before the procedural violation occurred.

[00:18:09] Speaker 01:
What about the private school decision by who?

[00:18:12] Speaker 01:
By the parent?

[00:18:13] Speaker 05:
by the parent, correct?

[00:18:14] Speaker 05:
On August 6th, there was the letter.

[00:18:16] Speaker 01:
The letter from the lawyer says she's happy to consider whatever comes out of the IEP.

[00:18:21] Speaker 01:
I mean, what choice did she have at that point?

[00:18:24] Speaker 01:
The district had answered none of her emails or phone calls.

[00:18:28] Speaker 05:
Right?

[00:18:29] Speaker 05:
Well, no.

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I think there was a process that was in place that was continuing.

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There was an evaluation.

[00:18:35] Speaker 01:
Are you challenging the hearing officer's findings that

[00:18:42] Speaker 01:
He filed it at the June 14th meeting.

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They promised a summer program, never delivered.

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He said following the July, following the June 14 meeting, the case manager was supposed to meet with the mother.

[00:18:53] Speaker 01:
That meeting did not happen.

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June 21, she emails a special coordinator, also left a voicemail, no response to either.

[00:19:05] Speaker 01:
July 21, lawyer contacts special head coordinator to schedule meeting, no response.

[00:19:12] Speaker 01:
Are you challenging any of those findings?

[00:19:15] Speaker 05:
No, I'm not challenging the findings.

[00:19:17] Speaker 05:
I'm asking the court to look at the other findings and what was undisputed.

[00:19:20] Speaker 05:
But there was an evaluation that took place that there were two IEP meetings in June before the conclusion of this full year, admittedly that there was a lot of progress being made in those meetings, that it was agreed upon that there would be a third meeting.

[00:19:32] Speaker 05:
at the end of August before the start of the school year in order to complete the process.

[00:19:36] Speaker 05:
The process was in place on August 17th.

[00:19:39] Speaker 05:
Ms.

[00:19:39] Speaker 05:
Leggett filed an administrative complaint that did not seek the completion of the IEP process.

[00:19:44] Speaker 05:
It sought only placement and funding at the queer school.

[00:19:48] Speaker 05:
So we have to consider those facts.

[00:19:50] Speaker 01:
Unless either of my colleagues has questions on that, why don't you go on to your second point, which is that even if the district denied faith, we should affirm, right?

[00:19:59] Speaker 01:
Yes.

[00:20:00] Speaker 01:
Why don't you go on and talk about that?

[00:20:02] Speaker 05:
Yes, the hearing officer in the district court was correct that there was the residential placement that was selected by Ms.

[00:20:10] Speaker 05:
Leggett was not appropriate.

[00:20:11] Speaker 05:
It was not necessary for educational purposes, which is the test.

[00:20:16] Speaker 02:
I don't understand that to be the test.

[00:20:18] Speaker 02:
I thought the test was whether it's appropriate.

[00:20:21] Speaker 05:
Yes, generally speaking, but when it comes to a residential placement, the law of this circuit is clear, that it has to be necessary for educational purposes.

[00:20:29] Speaker 02:
Are you talking about McKenzie?

[00:20:31] Speaker 05:
That's the McKenzie case.

[00:20:32] Speaker 02:
I don't read that case to say that any residential placement has to be appropriate.

[00:20:36] Speaker 02:
I believe that where there is a non-residential alternative that's proffered that would be appropriate, that for the parent to insist on residential, they would have to show that it was necessary.

[00:20:47] Speaker 02:
But in this case,

[00:20:48] Speaker 02:
The parents were not looking for a residential placement as such, but looking for an appropriate placement.

[00:20:55] Speaker 02:
And sometimes the only place you can find that, especially in the summer or late, is gonna be at a residential placement.

[00:21:02] Speaker 02:
So isn't the basic standard, the minimum standard of is this appropriate?

[00:21:06] Speaker 02:
And anything about whether it's too good or too much or too expensive would have to come into the remedy phase.

[00:21:13] Speaker 05:
No, I do disagree with that.

[00:21:15] Speaker 05:
There are alternatives.

[00:21:16] Speaker 05:
If you set aside the IEP process itself, we pointed out that there are several dozen schools, high schools, private high schools with day programs, including two dozen for educational, or excuse me, emotional disturbance.

[00:21:28] Speaker 02:
None of which the district investigated and actually proffered as part of an IEP.

[00:21:33] Speaker 05:
Well, because the district was implementing an IEP, which involved a public school option.

[00:21:39] Speaker 05:
But I'm saying that in order for Ms.

[00:21:40] Speaker 04:
Leggett to carry her burden, she has to look at... The district acknowledged that Wilson was not a proper placement.

[00:21:45] Speaker 05:
No, I disagree with that.

[00:21:47] Speaker 04:
Wilson was... There's nothing to suggest, at least as I read the record, that Wilson was adequate to serve the needs of this child.

[00:21:53] Speaker 05:
Well, I do have to put in one caveat first before I get to my answer, and that is location, i.e.

[00:21:59] Speaker 05:
Wilson versus some other public school, is not the placement.

[00:22:02] Speaker 05:
The placement is the type of educational program that... I understand.

[00:22:06] Speaker 05:
Okay.

[00:22:06] Speaker 05:
So we have the type of educational program that was offered here.

[00:22:10] Speaker 05:
We had inclusion classes and at least two of the four core academic subjects.

[00:22:13] Speaker 04:
I think it was one district official that agreed in this record that Wilson was not adequate to the test that was needed.

[00:22:20] Speaker 05:
No, respectfully, there was no dispute, at least from the district's perspective, that Wilson would have been an appropriate placement or the type of educational program that... I don't understand the way these work.

[00:22:31] Speaker 04:
If the district

[00:22:33] Speaker 04:
or was able to do what it was supposed to do, this would have come in a timely manner.

[00:22:38] Speaker 04:
The parent's sitting waiting.

[00:22:39] Speaker 04:
The child has to be placed.

[00:22:41] Speaker 04:
You can't just go willy-nilly.

[00:22:42] Speaker 04:
If you have a child who has problems and they're suicidal, you can't just kind of hang around and hope things work out.

[00:22:48] Speaker 04:
If the district does it correctly, they're going to come in with the IEP complete, including here's where you should go and the programs are there that address your daughter's needs.

[00:22:59] Speaker 04:
That never happened here.

[00:23:01] Speaker 05:
Well, Your Honor, if the programs are not in place, as the school district agreed to put in place, then the parent has an immediate administrative remedy, filing an administrative complaint challenging... The parent doesn't have to wait for disaster.

[00:23:13] Speaker 04:
The case now does not say the parent has to wait for disaster to occur before the parent can take action.

[00:23:18] Speaker 05:
I absolutely agree with that, Your Honor, but we don't have that situation here.

[00:23:22] Speaker 01:
It was already agreed upon.

[00:23:24] Speaker 01:
Were the programs you're talking to Judge Edwards about in place at the beginning of the school year?

[00:23:29] Speaker 05:
Ms.

[00:23:30] Speaker 05:
Leggett never sent her child to Wilson.

[00:23:35] Speaker 01:
The IEP, you concede, was not developed until the fall.

[00:23:40] Speaker 01:
So as of the beginning of school, the program you're talking about was not available to her.

[00:23:44] Speaker 05:
I disagree.

[00:23:45] Speaker 05:
The IEP was mostly complete.

[00:23:48] Speaker 01:
The statute says the statute doesn't say the district's obligation is to have a mostly complete IEP available by the

[00:23:56] Speaker 05:
It says NIEP.

[00:23:59] Speaker 05:
I understand, but we're talking now about the appropriateness.

[00:24:01] Speaker 01:
I was simply responding to your answers to Judge Edwards.

[00:24:07] Speaker 01:
You're the one, in response to his questions about necessity, who went back to whether or not there was a... It can't be that the place, even if you're right that the test is necessity,

[00:24:20] Speaker 01:
And I want to ask you about that because I actually, I'm not sure I agree with that.

[00:24:24] Speaker 01:
But even if you're right, the comparison can't be between Greer and a program that didn't exist at Wilson on the beginning of the school year.

[00:24:31] Speaker 01:
That can't be the right test.

[00:24:35] Speaker 01:
If you had had an IEP in place and Ms.

[00:24:39] Speaker 01:
Leggett had put her child in a private school, then you could argue, assuming the standards necessary, it wasn't necessary because it was a program at Wilson.

[00:24:47] Speaker 05:
But there wasn't one at Wilson.

[00:24:50] Speaker 05:
Okay, I can agree with that general statement, but I have to disagree on the facts here.

[00:24:55] Speaker 05:
Go ahead.

[00:24:56] Speaker 05:
There's no dispute that Wilson was perfectly prepared, willing, and able to offer two out of four inclusion classes.

[00:25:03] Speaker 01:
What do you assume, for purposes of the discussion here, that since that wasn't available at the beginning of the school year, that it isn't the right comparison?

[00:25:14] Speaker 01:
Assume for a minute that we agree with the district court that there was no IEP in place at that time.

[00:25:23] Speaker 01:
Then now make your argument about necessary, and then I have a question for you about whether that's the right standard.

[00:25:31] Speaker 05:
because none of KE's evaluations suggested that a residential placement was proper or appropriate.

[00:25:37] Speaker 05:
Greer is not a therapeutic or special education school.

[00:25:41] Speaker 02:
Isn't that a good thing, consistent with the statutory priority on less restrictive alternatives?

[00:25:48] Speaker 05:
No, just the opposite, Your Honor.

[00:25:49] Speaker 05:
Because it's a residential school, it is very restrictive.

[00:25:52] Speaker 02:
No, because it's mainstreaming with kids who are not all special emotional needs.

[00:25:56] Speaker 02:
That makes it less restrictive.

[00:25:57] Speaker 05:
Right, but Wilson would have offered the same thing, in fact, better because... I think we've just been over the ground about Wilson not being the appropriate comparator.

[00:26:04] Speaker 05:
If I could finish my answer.

[00:26:06] Speaker 05:
Two out of four, at least, would have been inclusion classes.

[00:26:10] Speaker 05:
That is, a general education setting, but with special education teachers in the classroom.

[00:26:14] Speaker 05:
Greer could not offer that.

[00:26:16] Speaker 05:
In addition, again, DCPS was willing, able, and agreed to provide one class period with a learning specialist per week, also 45 minutes per week with a behavioral specialist, a social worker, to work on behavioral support.

[00:26:30] Speaker 05:
So you have to consider those facts.

[00:26:34] Speaker 05:
And getting, because I am talking about Greer as well, as whether it was an appropriate placement in light of the facts that we have here.

[00:26:42] Speaker 05:
Greer could not offer those inclusion classes.

[00:26:44] Speaker 05:
No special education teachers in her academic classes.

[00:26:48] Speaker 05:
No IEPs.

[00:26:49] Speaker 05:
It was simply

[00:26:50] Speaker 05:
an all-goral sporting school known for its dance and equestrian programs, but did not address in the way that what BCPS was willing to provide those sort of special education needs.

[00:27:00] Speaker 05:
It's not ultimately a comparative analysis, as the support said tonight.

[00:27:04] Speaker 01:
Let me take you back to your argument that the standard is necessity.

[00:27:08] Speaker 01:
And for that you rely on McKinsey, right?

[00:27:11] Speaker 01:
Yes, McKenzie's is correct.

[00:27:12] Speaker 01:
And McKenzie's relied on a third circuit case, right?

[00:27:16] Speaker 05:
Right.

[00:27:16] Speaker 01:
Okay, so I'd beat those cases as dealing with a different provision of the statute.

[00:27:23] Speaker 01:
Tell me if you think this is wrong.

[00:27:27] Speaker 01:
Kruel, the Third Circuit case, that was about a parent's decision to place a child not in a private school, but in a residential medical facility.

[00:27:40] Speaker 01:
The child was severely disabled, had cerebral palsy, it was a 16-year-old with the social skills of a six-month-old, couldn't walk, dress, or eat.

[00:27:52] Speaker 01:
And the question was whether 24-hour residential service was needed for the child's education.

[00:28:00] Speaker 01:
That was the question there.

[00:28:02] Speaker 01:
And in McKenzie, it's exactly the same.

[00:28:04] Speaker 01:
The question there was psychiatric services.

[00:28:07] Speaker 01:
And as I read those cases, they arise under a different provision of the statute, 1412A10B.

[00:28:17] Speaker 01:
which is for children placed in private schools by the public agency.

[00:28:23] Speaker 01:
That's what those cases are about.

[00:28:26] Speaker 01:
And the regulation is a completely different regulation.

[00:28:29] Speaker 01:
In this case, we're dealing with subsection C, which is where the parent puts the child in a school, not a medical facility, but a school without the parents' consent, without the school district's consent.

[00:28:45] Speaker 01:
So isn't it just a different set of regulations and statutes that those cases are dealing with?

[00:28:50] Speaker 05:
Because that's not the issue here, right?

[00:28:53] Speaker 05:
I think there are two things that are similar.

[00:28:57] Speaker 05:
First is that, as Your Honor said, the purpose of the residential placement has to be... Wait, wait, wait.

[00:29:03] Speaker 01:
I asked you a question about McKinsey and Kruegel.

[00:29:06] Speaker 01:
Yes.

[00:29:07] Speaker 01:
I asked you a question about the statutes and the regulations.

[00:29:11] Speaker 01:
And my question is, am I misreading these cases?

[00:29:14] Speaker 01:
Aren't they about a different set of provisions?

[00:29:18] Speaker 01:
A set of provisions designed, A, for a situation where the school district makes a placement, and B, where the placement is for medical purposes.

[00:29:29] Speaker 01:
It's a residential medical facility, and the issue there is, are those medical resources needed for the child's education?

[00:29:37] Speaker 01:
Because if they are, the district has to pay for it.

[00:29:39] Speaker 01:
If they aren't, the district doesn't.

[00:29:41] Speaker 05:
Yes.

[00:29:41] Speaker 01:
So I'm asking you a legal question.

[00:29:44] Speaker 05:
Right.

[00:29:45] Speaker 05:
I guess I do agree.

[00:29:46] Speaker 05:
I do agree.

[00:29:47] Speaker 05:
But under Forest Grove, the private... Wait, wait, wait.

[00:29:50] Speaker 01:
Let's just take this one step at a time.

[00:29:53] Speaker 01:
So you agree with me that McKenzie and Krull deal with a different statute, right?

[00:29:59] Speaker 05:
Well, a different statutory provision.

[00:30:02] Speaker 01:
Yeah, different part of the statute.

[00:30:03] Speaker 05:
Well, because it is the public school making the placement.

[00:30:10] Speaker 01:
Yeah, right.

[00:30:10] Speaker 01:
And we're dealing with subsection C, right?

[00:30:18] Speaker 01:
OK.

[00:30:19] Speaker 01:
And under subsection C, this

[00:30:24] Speaker 01:
A, first of all, subsection C says that where there's no faith,

[00:30:32] Speaker 01:
The parent can get reimbursed for private school if the parent does not behave unreasonably.

[00:30:38] Speaker 01:
It doesn't say anything about necessity.

[00:30:41] Speaker 01:
And the Supreme Court cases that interpret this provision, Raleigh, Burlington, and Carter, they don't say anything about necessity either.

[00:30:52] Speaker 01:
They say the standard is, was it proper?

[00:30:55] Speaker 01:
So shouldn't we be looking at subsection three and those three cases to decide whether or not Ms.

[00:31:05] Speaker 01:
Leggett's decision here was proper under the Act?

[00:31:08] Speaker 01:
Isn't that where we should be looking?

[00:31:10] Speaker 05:
I would say McKenzie did involve a parental private placement.

[00:31:14] Speaker 05:
But let me address those subsection C. The district court was correct that there was no, the district court did not abuse its discretion in finding that

[00:31:22] Speaker 05:
under that subjection, reimbursement was not appropriate.

[00:31:25] Speaker 05:
It did analyze the relevant factors.

[00:31:27] Speaker 05:
It concluded that the removal of K three weeks before the school year started and before any procedural violation occurred suggested unreasonableness on the part of Ms.

[00:31:37] Speaker 05:
Leggett that the school was far from the district.

[00:31:39] Speaker 01:
It was 58,000 plus a year.

[00:31:40] Speaker 01:
Okay, before we get into that, let me ask you another question so you can help me understand the statutory structure here.

[00:31:48] Speaker 01:
So if I'm now looking at

[00:31:52] Speaker 01:
at the proper provision of the statute and these three Supreme Court cases.

[00:31:58] Speaker 01:
The standard is whether it's proper, correct?

[00:32:01] Speaker 05:
The general standard, yes.

[00:32:03] Speaker 01:
And we know from Raleigh that the standard, when the school district makes a placement, is it reasonably calculated to ensure the child, what is that phrase, reasonably calculated to enable the child to receive educational benefits, right?

[00:32:20] Speaker 05:
Correct.

[00:32:21] Speaker 01:
That's the standard when the school district does it.

[00:32:23] Speaker 05:
Correct.

[00:32:23] Speaker 01:
OK.

[00:32:24] Speaker 01:
Can you think of any reason why the standard shouldn't be the same when the parent makes it?

[00:32:29] Speaker 05:
Well, I am suggesting that the standard is the same because it's a residential placement.

[00:32:34] Speaker 05:
The school district would have to show that it was necessary for educational purposes.

[00:32:39] Speaker 01:
So you agree then that the standard we're to look at here under this provision of the statute and these Supreme Court cases is whether the parent's decision, whether Greer was reasonably calculated to enable the child to receive educational benefits, correct?

[00:32:57] Speaker 05:
No, I thought I just said that the standard is – well, the standard is necessary for educational benefits, and that's because it's a residential placement.

[00:33:06] Speaker 04:
The Supreme Court cases didn't involve – Why do you assume residential carries the weight that you're suggesting?

[00:33:13] Speaker 04:
You're conflating residential that is medical and psychiatric.

[00:33:18] Speaker 04:
with residential.

[00:33:19] Speaker 04:
Residential should, can't carry the weight that you're trying to give it.

[00:33:23] Speaker 05:
I think it does, respectfully, Your Honor.

[00:33:25] Speaker 04:
That may go to the remedy.

[00:33:27] Speaker 04:
It may go to the question as to whether the room and board should be covered, but the school can otherwise be appropriate educationally and satisfy the standards the judge there was talking about.

[00:33:39] Speaker 04:
You're putting too much weight into reference to residential, which doesn't make any sense.

[00:33:43] Speaker 05:
Well, the weight is in part because of the purpose of the statute, which is least restrictive environment, and a residential school is the most restrictive environment.

[00:33:51] Speaker 04:
Well, that is not the evidence in this case with respect to this placement.

[00:33:54] Speaker 05:
Well, as this court said in the Kirkham case, for example, I think it was talking about... Well, with respect to this placement.

[00:34:00] Speaker 04:
That was not the evidence with respect to displacement that it was overly restrictive or restrictive in a way that the statute intends to avoid.

[00:34:08] Speaker 04:
That is not the evidence.

[00:34:10] Speaker 05:
Respectfully, the Kirkham case, I think, discusses residential placements, generally speaking, and that because they are far from home, removed from the family, removed from the community, that they are restrictive by nature.

[00:34:21] Speaker 04:
But that doesn't mean in this case that that's K.

[00:34:24] Speaker 04:
that that is the case.

[00:34:26] Speaker 04:
In this particular situation, because the court observed that in the case, they didn't need to say that every residential placement

[00:34:35] Speaker 04:
would be overly restrictive.

[00:34:36] Speaker 05:
And that's fine.

[00:34:38] Speaker 05:
But then we look at the district court's discretion here.

[00:34:40] Speaker 05:
And I think it did recognize properly it was a relevant factor that this is a school far away from home.

[00:34:46] Speaker 05:
It is, for that reason, more restrictive than what DCPS could have provided.

[00:34:52] Speaker 05:
It was not a school that was principally for or even particularly for kids with emotional disorders or other disabilities.

[00:35:01] Speaker 04:
I mean, you're missing the point completely.

[00:35:03] Speaker 04:
Wilson doesn't offer what you're suggesting either.

[00:35:06] Speaker 04:
That's not the point.

[00:35:09] Speaker 04:
The point is whether or not there is a school placement.

[00:35:12] Speaker 04:
Forget it's a thousand miles away or two blocks away.

[00:35:16] Speaker 04:
One question is whether the school that is being suggested or picked by the parent is appropriate to the needs of the child.

[00:35:23] Speaker 04:
We're not talking about an educational, we're not talking about a residential placement involving psychiatric and medical care.

[00:35:29] Speaker 04:
That's a different question entirely under the statute of arrest.

[00:35:32] Speaker 05:
Okay, but then we can look at it under the third reason that I gave, that the district court still has the discretion to consider that.

[00:35:40] Speaker 01:
Wait, wait, wait.

[00:35:41] Speaker 01:
Before you go on to the third reason, let's continue with Judge Edwards' question.

[00:35:45] Speaker 01:
Maybe it would help if we actually looked at the statute.

[00:35:48] Speaker 01:
Do you have it in front of you?

[00:35:50] Speaker 01:
Why don't you get it?

[00:35:55] Speaker 01:
Maybe this will help us.

[00:35:57] Speaker 01:
When in doubt, look at the statute.

[00:36:00] Speaker 01:
So paragraph two says that if the parents enroll the child in a public school without the school district consent, court can require reimbursement if the court or hearing officer finds that the agency had not made a free, appropriate publication.

[00:36:16] Speaker 01:
Now, for purposes of my question, we're going to assume that hasn't happened here, that there's no free, appropriate public education.

[00:36:23] Speaker 01:
Now, then it goes on and says it gives the reasons why

[00:36:29] Speaker 01:
Right?

[00:36:30] Speaker 05:
Right.

[00:36:31] Speaker 01:
It gives four reasons.

[00:36:33] Speaker 01:
And you agree that the first three don't apply here, right?

[00:36:37] Speaker 01:
You didn't argue in your brief, at least.

[00:36:39] Speaker 01:
So we're only up to the fourth one, which is three, upon judicial finding of unreasonableness.

[00:36:51] Speaker 01:
Right?

[00:36:53] Speaker 01:
So your answer is to me, your answer is to Judge Edwards.

[00:36:57] Speaker 01:
are dealing with that issue.

[00:36:58] Speaker 01:
Your position is, as I understand it, if you look at the statute, is that the parents' actions were unreasonable, right?

[00:37:08] Speaker 01:
Isn't that what you're arguing?

[00:37:09] Speaker 05:
That's what the district court found, yes, and that's our position.

[00:37:11] Speaker 01:
And you're arguing that too.

[00:37:13] Speaker 01:
And it's unreasonable, you said, because there wasn't any need for residential school far away from the city, right?

[00:37:21] Speaker 01:
I'll go back to Judge Edwards' question, which is, did anybody ever consider the possibility that

[00:37:30] Speaker 01:
You know, maybe the residential program was unreasonable, but the program at Greer was a proper program, and that maybe there should have been reimbursement for the educational part of the program, but not for the residential part.

[00:37:45] Speaker 01:
Did that ever come up?

[00:37:46] Speaker 05:
Well, no.

[00:37:47] Speaker 05:
The plaintiff never made that claim.

[00:37:50] Speaker 01:
Does the district ever do that?

[00:37:52] Speaker 01:
Do you look at cases that way?

[00:37:55] Speaker 05:
To separate out the room and board from that?

[00:37:57] Speaker 05:
Uh-huh, yeah.

[00:37:59] Speaker 05:
No, I'm not aware of a case like that.

[00:38:01] Speaker 05:
Again, the plaintiff in this case has made no attempt to separate it out, make some alternative theory.

[00:38:08] Speaker 05:
The strategic choice for counsel made at the hearing, when even the hearing officer specifically asked, do you want some type of partial reimbursement, his response was no, we want it all.

[00:38:17] Speaker 02:
Why would it be the plaintiff's burden to ask for less?

[00:38:23] Speaker 02:
I'm not sure how a child could attend a boarding school in central Pennsylvania

[00:38:28] Speaker 02:
with a parent living in DC without room and board available.

[00:38:32] Speaker 05:
I agree your honor.

[00:38:33] Speaker 05:
I think that suggests why the district court though didn't abuse its discretion in looking at it.

[00:38:37] Speaker 02:
I'm really interested if we were to find that this were an appropriate placement and the district denied a free and appropriate public education so the first two factors are gone.

[00:38:47] Speaker 02:
I'm interested whether you can shed any light on how

[00:38:54] Speaker 02:
how the courts should think about whether the district has any entitlement or prerogative to limit the payment for a child in this situation.

[00:39:06] Speaker 02:
Assume that this is an appropriate placement.

[00:39:10] Speaker 02:
What are the factors?

[00:39:12] Speaker 02:
I mean, this is a school, it's a whole program, recreation is covered under the statute if it's appropriate.

[00:39:20] Speaker 02:
What are the factors that you would point to to guide a district court in the exercise of its discretion in finding the whole or part of this placement or a placement like this unreasonable?

[00:39:33] Speaker 05:
Well, I think the Supreme Court has said that if you look at all relevant factors, one of those factors is expense.

[00:39:39] Speaker 05:
I think the Supreme Court specifically mentioned that expense was an issue.

[00:39:43] Speaker 05:
I think the other factors to answer your honest question is that the parents' own actions, removing or at least filing administrative complaints before the... I think we've been over that.

[00:39:55] Speaker 01:
Did you have anything else to say in response to Judge Billings' question?

[00:39:58] Speaker 05:
Well, the other factor that... Because you're way over time.

[00:40:01] Speaker 01:
We took you over time, but you're way over time.

[00:40:03] Speaker 05:
Okay, if I could just complete my answer.

[00:40:04] Speaker 05:
The other factor that I haven't talked about is it's like it's failure to challenge the IEP once it was completed and provided to her and I think the district... Okay, but that may have anything to do with the 2012 school year, right?

[00:40:18] Speaker 01:
That's the 2013 school year.

[00:40:20] Speaker 05:
No, Your Honor, that's the 2012 school year because... Even though the school year started... Was there an IEP in... I don't understand that.

[00:40:27] Speaker 01:
How could that be?

[00:40:29] Speaker 05:
Because at that point, there was a perfectly valid option of the IEP, and if Ms.

[00:40:37] Speaker 05:
Leggett believed that it was inappropriate, she could have challenged that and her failure to do so.

[00:40:42] Speaker 05:
I think this court has to then accept that that IEP was proper and was available to her very early in the school year.

[00:40:50] Speaker 01:
Thank you.

[00:40:50] Speaker 05:
Thank you.

[00:40:52] Speaker 01:
Ms.

[00:40:52] Speaker 01:
Leggett, you are out of time, but you can take two minutes if you'd like it.

[00:40:57] Speaker 01:
You don't have to take it, but if you would, it's yours.

[00:41:02] Speaker 03:
Thank you.

[00:41:04] Speaker 03:
Let me first respond to the last point, that there was no IEP ever offered to us, and what was put into the disclosures had serious errors in it, including what the hours of service would be.

[00:41:18] Speaker 03:
The special education coordinator herself admitted that there was no offer of placement, there was no place for me to sign

[00:41:26] Speaker 03:
or to say that I accepted or rejected it, so I had no reason to think that they had offered me something that was right for challenge.

[00:41:34] Speaker 03:
I'd also like to make the point that the district's focus on inclusion classes is a red herring, it is off point.

[00:41:42] Speaker 03:
The IEP must be built by law

[00:41:45] Speaker 03:
on the needs of the child and not on what the school, the presumed placement has to offer.

[00:41:51] Speaker 03:
And my daughter's needs, as articulated by the neuropsychologist, were that she needed to have small

[00:41:59] Speaker 03:
highly structured, therapeutic classes with a low student to teacher ratio throughout her day.

[00:42:05] Speaker 03:
And there is nothing that is in that IEP or in what the council has articulated that meets those needs, except perhaps that the inclusion classes might have

[00:42:17] Speaker 03:
the student to teacher ratio, but we don't know anything about the size of those classes, how many other special ed teachers there would be in there.

[00:42:25] Speaker 03:
It didn't address such fundamental questions as what would happen with my daughter when she had another panic attack at school, which she was having.

[00:42:34] Speaker 03:
There was just, I was unable to have any discussion with them about, their solution was, well, she should go to the hospital.

[00:42:40] Speaker 03:
That's not a constructive or effective way.

[00:42:43] Speaker 03:
Greer, on the other hand, offered all of those things that we needed, provided a small, very structured, positive, predictable environment with small classes, a program, the LEAP program, coordinated by a certified special ed teacher who worked with each of her classroom teachers, as well as the dorm mothers, the so-called tutors who monitored the special ed,

[00:43:10] Speaker 03:
study halls at night, she had adult eyes on her around the clock, pretty much.

[00:43:16] Speaker 03:
There were always people she could go to who, if she needed help.

[00:43:20] Speaker 03:
And I think that the neuropsychologist in his testimony has a very nice discussion of why it was appropriate.

[00:43:27] Speaker 01:
We've read that, thank you.

[00:43:28] Speaker 01:
Okay.

[00:43:29] Speaker 01:
Okay, thank you both.