[00:00:05] Speaker ?:
and his friend of M.K.

[00:00:06] Speaker 01:
Appellate versus E.I.

[00:00:08] Speaker 01:
Haynes Public Schools School.

[00:00:10] Speaker 01:
Mr. Neighbors for the appellate, Ms.

[00:00:12] Speaker 01:
Allen for the appellate.

[00:01:07] Speaker 04:
We'll just wait for the judge to return.

[00:01:34] Speaker 04:
Council?

[00:01:36] Speaker 07:
Good morning.

[00:01:37] Speaker 07:
Hello, Your Honor.

[00:01:39] Speaker 07:
May it please the court, Stevie Negros on behalf of Velma Olu Cole, I'd like to reserve two minutes for rebuttal.

[00:01:46] Speaker 07:
Your Honors, this court should reverse the trial court because the trial court erred when it denied Ms.

[00:01:52] Speaker 07:
Cole's state-put relief.

[00:01:54] Speaker 07:
Once a parent satisfies state-put's two-part test, they are entitled to two forms of relief.

[00:02:01] Speaker 04:
So let me ask you, there's a reference by

[00:02:06] Speaker 04:
I believe to a statement by the district court that the parties agreed the four-part test should apply, JA 18485.

[00:02:16] Speaker 04:
I read that and I wondered, I wasn't totally clear what they were agreeing the four-part test applied to.

[00:02:28] Speaker 07:
We would respectfully disagree with the trial court's characterization about what we agreed to.

[00:02:33] Speaker 07:
If you look at JA 140, you can actually see the exchange between myself and the trial court.

[00:02:40] Speaker 07:
And there, what I was basically emphasizing is that Haynes had to satisfy the four-part test.

[00:02:45] Speaker 07:
And then again, if you look at JA 156, you can see that the court actually frames the question the same way when he's asking counsel for Haynes.

[00:02:54] Speaker 04:
But then he goes ahead and applies the four-part test to your client.

[00:02:59] Speaker 07:
Yes, Your Honor.

[00:03:01] Speaker 07:
Which we believe is a reversal error, and the reason why we're before you today.

[00:03:05] Speaker 04:
All I'm getting at is the district court seems to have understood the agreement to be that he could apply the four-part test.

[00:03:15] Speaker 07:
I think that the district court misunderstood how to apply the four-part test, or rather who to apply the four-part test to.

[00:03:22] Speaker 07:
So a state court is a statutory construction by Congress.

[00:03:27] Speaker 07:
Its purpose was to strip school districts of the unilaterable authority to exclude students with emotional disturbances in particular from their schools.

[00:03:36] Speaker 02:
Thank you.

[00:03:37] Speaker 02:
I just actually need to declare something to you.

[00:03:38] Speaker 02:
So you want the district court's decision denying a preliminary injunction reversed.

[00:03:46] Speaker 07:
No, Your Honor.

[00:03:47] Speaker 07:
What we want is the district court's denial of state but relief, his finding that Ms.

[00:03:52] Speaker 07:
Cole was not entitled to any relief under state but reverse.

[00:03:55] Speaker 07:
And the reason why is because she is entitled to compensatory education for the nearly month that MK was excluded from Haynes in violation of the state but provision.

[00:04:07] Speaker 02:
And you seem to request compensatory education as part of your preliminary injunction motion, at least in your memorandum, but not in the motion

[00:04:16] Speaker 02:
itself, is it your position that you were entitled to an award of compensatory education as part of a preliminary injunction?

[00:04:24] Speaker 02:
Or just that you should have had the stay put?

[00:04:27] Speaker 02:
The preliminary injunction should have just automatically been the stay put injunction.

[00:04:31] Speaker 02:
and then you would litigate over compensatory education.

[00:04:33] Speaker 07:
No, Your Honor.

[00:04:34] Speaker 07:
We think that it's all one and the same.

[00:04:36] Speaker 07:
You use the preliminary injunction as the vehicle to request statehood.

[00:04:40] Speaker 07:
The statehood is a statutory injunction, and that's why its test is different than the four-part test for a PI.

[00:04:45] Speaker 07:
And if there's a violation of statehood, because it's automatic, akin to a stay in bankruptcy, it goes all the way back to when statehood originally applied.

[00:04:54] Speaker 07:
In this case, it was February 1st.

[00:04:56] Speaker 07:
And so we had about 26 stays

[00:04:59] Speaker 07:
Roughly, the student was wholesale denied the services that he was entitled to.

[00:05:02] Speaker 07:
Not only state, but also state.

[00:05:04] Speaker 02:
Not wholesale, he was getting tutoring.

[00:05:06] Speaker 07:
He was.

[00:05:07] Speaker 07:
He was, Your Honor, but there was a problem with the tutoring in that when Haynes crafted it, they did not appropriately develop a program for him, and he was rejecting it as a manifestation of his disability.

[00:05:21] Speaker 02:
So you don't want the district court's judgment vacated?

[00:05:25] Speaker 07:
We would accept the vacator so long as he came with an instruction for the trial court to then develop an appropriate compensatory education remedy.

[00:05:33] Speaker 07:
The problem here is that state book was violated and disarmed.

[00:05:37] Speaker 07:
And that's far before the court is to pursue that remedy.

[00:05:40] Speaker 04:
That's what I understood from your reply brief, too, as to what you're asking this court to do.

[00:05:50] Speaker 07:
It's the, well, first and foremost, we would like reversal of the trial court's denial of statehood.

[00:05:57] Speaker 07:
It's finding them as cold as not entitled to statehood.

[00:06:00] Speaker 07:
And then with remand for instructions to craft an appropriate remedy for the violations of statehood.

[00:06:05] Speaker 02:
Aren't you litigating compensatory education already right now?

[00:06:08] Speaker 07:
I'm sorry, Your Honor.

[00:06:09] Speaker 02:
I thought you were litigating compensatory education already right now.

[00:06:12] Speaker 02:
So why do we need to say anything about that?

[00:06:16] Speaker 07:
I'm sorry, I don't understand the question.

[00:06:19] Speaker 02:
I thought you were litigating either before the hearing officer or the district court.

[00:06:22] Speaker 02:
I think the district court, aren't you?

[00:06:24] Speaker 02:
No, Your Honor.

[00:06:24] Speaker 02:
The district court on compensatory education.

[00:06:26] Speaker 04:
In other words, the whole case is this preliminary injunction appeal?

[00:06:31] Speaker 07:
That's right, Your Honor.

[00:06:32] Speaker 07:
The whole state put component, whether she's even entitled to compensatory education or the automatic injunction, all falls under 1415J.

[00:06:42] Speaker 07:
And that whole case was wrapped up when the trial court said you are not entitled to relief under that provision.

[00:06:48] Speaker 01:
Do you have a separate case pending seeking separate competitive education?

[00:06:53] Speaker 07:
There was a separate case and what was being sought in terms of competitive education there was a period up till January 25th, 2018.

[00:07:02] Speaker 07:
So the cutoff is six days, sorry, four days before state put even applied.

[00:07:10] Speaker 07:
And there's two different standards that you're talking about in terms of combat here.

[00:07:14] Speaker 07:
There's the what he should have received versus state put, and then there's what he should have received as a fake.

[00:07:20] Speaker 07:
That prior period before January 25th dealt with that former standard and not the state put standard.

[00:07:28] Speaker 07:
Even though they're both for combat, they're for two different types of educational harm and violations of two very different parts of the IDEA.

[00:07:41] Speaker 07:
We would also submit to the court that in applying the four-part test to Ms.

[00:07:46] Speaker 07:
Hull, the court committed a reversible error because a plaintiff requesting state court relief is not required to demonstrate irreparable injury.

[00:07:56] Speaker 07:
That comes from this court's decision in Anderson

[00:07:58] Speaker 07:
by Anderson versus District of Columbia.

[00:08:02] Speaker 07:
Perhaps Haynes actually did.

[00:08:04] Speaker 02:
I apologize, but I want to get back and clarify one thing.

[00:08:06] Speaker 02:
If the district court had gotten state put right from your perspective and just immediately ordered the reinstatement, how would you have litigated the compensatory education?

[00:08:20] Speaker 02:
There have to be sometimes disputes about what's needed, and so would you then have had

[00:08:28] Speaker 02:
a little trial on compensatory education, or do you think the order, he should have issued an order that day that said reinstate, comply with state put, and here's

[00:08:43] Speaker 02:
and would you just say offer a compensatory education?

[00:08:46] Speaker 02:
I assume there's going to be disputes about that.

[00:08:48] Speaker 07:
That's correct, Your Honor.

[00:08:49] Speaker 02:
So how is that prong of it supposed to be handled in your view?

[00:08:51] Speaker 07:
The way that the trial court in KP versus District of Columbia resulted, KP was resolved by this court in March 2017, dealt with a violation of the state.

[00:09:00] Speaker 07:
But Judge Cooper, in that case, remanded it to the hearing officer and told the hearing officer to use his specialized expertise to develop an appropriate compensatory education.

[00:09:09] Speaker 07:
And the district court didn't do that here.

[00:09:11] Speaker 07:
I beg your pardon?

[00:09:11] Speaker 02:
The district court did not do that here.

[00:09:13] Speaker 07:
He did not do that, Your Honor.

[00:09:14] Speaker 07:
Though the court still could do that if this court remands back to him.

[00:09:19] Speaker 04:
So here's what your reply brief says on page 25.

[00:09:23] Speaker 04:
This court should reverse the trial court, denial of stay put, find that MAK was entitled to stay put as of February 1, 2018, and remand with instruction

[00:09:40] Speaker 04:
for the trial court to award an appropriate amount of compensatory education.

[00:09:46] Speaker 04:
That led me to believe, perhaps incorrectly, that that was a separate matter, not part of what was before us now on the appeal of the denial of the preliminary injunction.

[00:09:59] Speaker 07:
Your Honor, my time has expired.

[00:10:00] Speaker 07:
May I answer your question?

[00:10:02] Speaker 07:
Jason.

[00:10:02] Speaker 07:
I apologize for any confusion on that, Your Honor, but the entitlement to compensatory education

[00:10:08] Speaker 07:
for the violation of sacred is all kit and caboodle before you right now.

[00:10:12] Speaker 04:
No, what I'm trying to understand is I get the point that there are two different parts of the statute.

[00:10:18] Speaker 04:
All right.

[00:10:19] Speaker 04:
The question here is I didn't understand that you were asking us to make a determination without any factual record

[00:10:37] Speaker 04:
to determine precisely what MK should receive in the way of compensatory education.

[00:10:44] Speaker 04:
I thought either the district court or, as you say, the administrative agency would have to make that determination.

[00:10:52] Speaker 04:
You might challenge it and there might be some back and forth, but that was not before us.

[00:11:00] Speaker 07:
We believe, Your Honor, that the record is sufficient for this court to determine that, but we would be completely amenable, very happy with an order from this court for the trial court to determine that remedy.

[00:11:12] Speaker 07:
There's no dispute that Ms.

[00:11:13] Speaker 07:
Cole satisfied the two-part test, nor that Haynes affected that fundamental change in placement, and that there is an enormous gulf in the services he should have received versus what he actually got.

[00:11:24] Speaker 02:
When you ask this court to

[00:11:28] Speaker 02:
make the order about stay put and then remand.

[00:11:30] Speaker 02:
Did you mean to direct the district court to remand to a hearing officer to compute compensatory education?

[00:11:36] Speaker 02:
Is that what you meant by that?

[00:11:37] Speaker 07:
We would totally accept that, Your Honor.

[00:11:38] Speaker 02:
I'm asking what you meant when you said that.

[00:11:39] Speaker 02:
Is that the envisionment that you had, or were you envisionment that this would be litigated before the district court?

[00:11:47] Speaker 07:
Both, Your Honor.

[00:11:48] Speaker 07:
We thought that it would open the door for the district court to apply its discretion as to how best to determine appropriate compensatory education award, because

[00:11:57] Speaker 07:
relying on boosts in BD versus District of Columbia.

[00:12:00] Speaker 07:
Once you get to that part where you have a violation of the IDEA and it has caused an educational harm, you have to award compensatory education to put the student where they should have been.

[00:12:12] Speaker 07:
That standard is articulated in Reed versus District of Columbia.

[00:12:18] Speaker 02:
Can I ask you to just

[00:12:22] Speaker 02:
I assume you litigate these types of cases?

[00:12:24] Speaker 07:
Yes, Your Honor.

[00:12:25] Speaker 02:
In your experience, the statute sets out sort of 20 days to get to the hearing and then 10 days to get to a decision before the hearing officer.

[00:12:35] Speaker 07:
Yes, Your Honor.

[00:12:36] Speaker 02:
Are those dates usually met or do they sometimes look, because it looked like the hearing officer scheduled the date for the hearing, in this case three days beyond, it was 23 school days and not 20.

[00:12:49] Speaker 02:
So I'm trying to figure out, is that something that's generally complied off, or do those time frames tend to slip sometimes?

[00:12:55] Speaker 07:
They do slip sometimes, and the reason why is the hearing officers are coming from out of town, and they're very limited in the dates that they'll give us in terms of available dates.

[00:13:05] Speaker 07:
And then you have to coordinate three ways, the hearing officer, plaintiff's counsel, and the respondent's counsel.

[00:13:12] Speaker 02:
OK, so do you have any sense of what time frame?

[00:13:16] Speaker 02:
So if a hearing was going to be held

[00:13:19] Speaker 02:
on the 23rd day.

[00:13:21] Speaker 02:
So it looks like those days may shift.

[00:13:23] Speaker 02:
But once they have the hearing, do they usually get decisions out within 10 days, or does that sometimes shift as well?

[00:13:29] Speaker 07:
Oh no, they're almost always within either the statutory 30-day period, that 10 days after the hearing.

[00:13:35] Speaker 07:
But the hearing officer's usually a lot, let's say.

[00:13:37] Speaker 07:
In this case, he'd only have seven days, because he ran over rehab out on the seven days.

[00:13:43] Speaker 02:
Okay, so they stick with the 30 days, even if the 2010 balance sometimes shifts.

[00:13:47] Speaker 07:
Yes, your Honor.

[00:13:47] Speaker 07:
The reason why is because the hearing officers are independent contractors, and it's a part of their contract provisions that they have to have those decisions in.

[00:13:55] Speaker 07:
That's a byproduct of the Blackman-Jones class action.

[00:13:59] Speaker 04:
So let me follow up on our discussion about what remedy you're seeking and ask you to discuss that in terms of the mootness argument.

[00:14:12] Speaker 07:
Sure, Your Honor.

[00:14:13] Speaker 07:
Our position is that the case is not moot because Ms.

[00:14:16] Speaker 07:
Cole still has a claim for compensatory education.

[00:14:19] Speaker 07:
It's live and it could be remedied by the trial court or this court.

[00:14:27] Speaker 04:
In other words, I understand your argument that there's this gross disparity.

[00:14:33] Speaker 04:
But I'm not clear how we would make that finding.

[00:14:39] Speaker 04:
In other words, there is evidence in this record that the MK is improving, et cetera, despite this setback or whatever.

[00:14:52] Speaker 04:
And hypothetically, you could have a case where

[00:14:56] Speaker 04:
Although his mother initially wanted him to stay at the school, somehow things have gone well nonetheless.

[00:15:12] Speaker 04:
And at this point, there was an error by the school, legal error.

[00:15:23] Speaker 04:
But whether he's entitled to compensatory education in a substantive sense could still be an open question.

[00:15:35] Speaker 04:
I mean, there's a violation of the stay put provision.

[00:15:42] Speaker 04:
That's one issue.

[00:15:44] Speaker 04:
But whether he gets compensatory education as a result could be another issue.

[00:15:52] Speaker 04:
And you're just saying, legally, he's entitled to it.

[00:15:55] Speaker 04:
Whether it has any substance to it is a different question.

[00:16:03] Speaker 07:
Bill, Your Honor, to kind of jump down into the weeds of this, the reason why we're saying he's almost certain to be entitled to it is because what he got versus what he should have received under statehood is a material 3P.

[00:16:19] Speaker 07:
When you take a student who is supposed to be- I get that argument.

[00:16:22] Speaker 04:
And I'm just pushing you.

[00:16:25] Speaker 04:
I don't know what the advert was you just used, but we couldn't order a district court to grant it unless we found that your client was entitled to it.

[00:16:36] Speaker 07:
Yes, Your Honor.

[00:16:38] Speaker 07:
And on this record, you can see that it is a material failure to implement an IEP.

[00:16:43] Speaker 07:
And once a court finds that, a parent doesn't have to show that there is educational harm.

[00:16:48] Speaker 07:
that automatically leads to, you must remedy that violation.

[00:16:53] Speaker 07:
And in this case, we had a material failure to implement.

[00:16:56] Speaker 04:
So help me understand this.

[00:17:00] Speaker 04:
In a hypothetical case, a child who is entitled to special education and remains eligible to special education is moved out of his placement school.

[00:17:17] Speaker 04:
for a period that exceeds the 45 authorized days.

[00:17:24] Speaker 04:
And the government fails to get an extension of that time.

[00:17:36] Speaker 04:
On the record, we have the type of educational assistance that the child has been receiving

[00:17:47] Speaker 04:
at the temporary placement is different than what he was receiving in his original placement.

[00:17:59] Speaker 04:
But we have no idea whether on this record there's been any harm to the child.

[00:18:17] Speaker 04:
And that's why I thought that whole question had to, if you prevail, either had to go back or the case is moved.

[00:18:27] Speaker 04:
You still have your compensatory education claim, but now you've told me no.

[00:18:33] Speaker 04:
The only thing that was ever before the district court was the violation of the state put order.

[00:18:39] Speaker 04:
And once the district court found that as he should have, then he had to go ahead and award your client

[00:18:47] Speaker 04:
compensatory education, or at least have someone determine whether that was warranted.

[00:18:56] Speaker 07:
There's two forms of relief for a state put violation, Your Honor, and Ms.

[00:18:59] Speaker 07:
Cole requested both.

[00:19:00] Speaker 07:
It's the automatic statutory injunction and compensatory education to make up the difference in what the student received and what state put would have required him to receive.

[00:19:10] Speaker 07:
In this case, you have such a complete failure to provide.

[00:19:15] Speaker 04:
If we were to tell the district court that it erred in failing to give you your stay put relief, why wouldn't that keep the case open before the district court in terms of your compensatory education request?

[00:19:40] Speaker 07:
It would, Your Honor.

[00:19:42] Speaker 04:
So all we need to decide is

[00:19:46] Speaker 04:
the legal error, whether that is valid or not.

[00:19:52] Speaker 07:
Yes, Your Honor.

[00:19:56] Speaker 04:
And if we were to hold this case is moved because the injunction was seeking to get the child back at his original placement, would that have the effect of denying

[00:20:16] Speaker 04:
your request for compensatory education?

[00:20:21] Speaker 04:
I think that's the thrust of your argument here today, is I hear it.

[00:20:25] Speaker 04:
And I didn't get that from the brief, and I may have misunderstood.

[00:20:30] Speaker 07:
Your Honor, the preliminary injunction, I understand that I keep saying this coming back to it, it's just one of the two forms of relief that are requested.

[00:20:38] Speaker 04:
I'm with you.

[00:20:39] Speaker 04:
That's why I thought that if the district court was wrong, as a matter of law,

[00:20:47] Speaker 04:
in not giving you your injunction, you still had this claim for compensatory education.

[00:20:55] Speaker 04:
Because no question, the child was moved out of his original placement for more than the 45-day period.

[00:21:02] Speaker 07:
Yes, Your Honor.

[00:21:02] Speaker 07:
But the trial court denied that relief.

[00:21:06] Speaker 07:
He denied the request for compensatory education along with the request for the injunction.

[00:21:11] Speaker 07:
And we appeal both of those denials before this court.

[00:21:15] Speaker 07:
And respectfully, that's the basis of our argument.

[00:21:17] Speaker 02:
The district court didn't dismiss the whole case.

[00:21:19] Speaker 02:
It just said no PI.

[00:21:22] Speaker 02:
And I thought you had ongoing litigation for the district court right now.

[00:21:29] Speaker 07:
Yes, Your Honor.

[00:21:30] Speaker 02:
Some re-judgment filings addressing compensatory education.

[00:21:33] Speaker 02:
So I'm kind of confused.

[00:21:35] Speaker 02:
Is it your point?

[00:21:38] Speaker 02:
Tell me if I got this wrong, that you think that your position is that in moving for

[00:21:44] Speaker 02:
what I'll call the stay put injunction, the stay put order.

[00:21:47] Speaker 02:
The district court erred both in not giving you stay put and in not issuing a declaratory judgment that you're entitled to compensatory education.

[00:21:59] Speaker 02:
That should have happened then?

[00:22:00] Speaker 02:
No, that's not it.

[00:22:01] Speaker 02:
Okay.

[00:22:01] Speaker 07:
No, Your Honor.

[00:22:02] Speaker 07:
We would respectfully submit that the court erred in adjudicating that we were not entitled to stay put relief.

[00:22:08] Speaker 07:
that because the four part test is applied to Miss Cole warranted a different outcome.

[00:22:13] Speaker 07:
She's not entitled to any state.

[00:22:15] Speaker 02:
How do you define when you define stay put relief, you define that as both back to school immediately and compensatory education.

[00:22:26] Speaker 07:
Yes, your honor.

[00:22:27] Speaker 02:
That's how you define stay put relief.

[00:22:28] Speaker 02:
Yes, not just as the go to school.

[00:22:31] Speaker 07:
Yes, sir.

[00:22:33] Speaker 02:
Are you currently litigated on summary judgment?

[00:22:35] Speaker 02:
Your entitlement is compensatory education in the district court.

[00:22:38] Speaker 07:
We amended the complaint to ensure that the complaint also reflected what the PI and the TRO requested.

[00:22:52] Speaker 07:
We told the court that we had done that out of an abundance of caution, but that that issue was before the D.C.

[00:22:57] Speaker 07:
Circuit.

[00:22:59] Speaker 02:
And your view of state put is having two aspects, back to school and compensatory education.

[00:23:08] Speaker 02:
What is your best case that those things are packaged together in that way?

[00:23:13] Speaker 02:
Because the statutory text only talks about state put as dealing with the physical location versus education of the child and adherence to the IEP that goes with that schooling.

[00:23:29] Speaker 02:
Do you have a case that says state put also includes an automatic declaration of your right to compensatory education and will figure out

[00:23:38] Speaker 02:
The nitty-gritty of that as the case goes forward.

[00:23:43] Speaker 07:
No, Your Honor, but we can refer the court back to KP versus District of Columbia and the proceedings that happened after remand.

[00:23:49] Speaker 07:
Once the case is remanded, the student wasn't actually able to enjoy her statehood placement for a multitude of reasons that aren't relevant.

[00:23:58] Speaker 07:
But the trial court found that because she was entitled to statehood and she wasn't able to go to it, she was entitled to compensatory education for the violation of statehood that had occurred.

[00:24:09] Speaker 07:
And then he remanded it to the hearing officer.

[00:24:12] Speaker 07:
The hearing officer awarded about, I want to say, 300 hours or so of compensatory education.

[00:24:17] Speaker 02:
OK, so I get it.

[00:24:18] Speaker 02:
So your concern is that when the district court said you're not entitled to statehood, that that meant that you wouldn't also be able to claim compensatory education associated with the statehood violation?

[00:24:31] Speaker 07:
Exactly, Your Honor.

[00:24:35] Speaker 04:
OK.

[00:24:35] Speaker 04:
And if we look at the record in this case,

[00:24:39] Speaker 04:
we are going to find that argument was made to the district court, this packaging argument.

[00:24:45] Speaker 07:
We never got to it, Your Honor.

[00:24:48] Speaker 04:
The only question I was before- Well, in asking for state relief, presumably, you would have said, in this dialogue that we've been having recently, that you want MK immediately return to his original placement.

[00:25:08] Speaker 04:
and he won compensatory education.

[00:25:12] Speaker 04:
But the injunction was simply to get him back in his original school.

[00:25:19] Speaker 07:
Yes, Your Honor.

[00:25:20] Speaker 07:
But if you look in the preliminary injunction itself, in the prayer for relief, there is a request for compensatory education.

[00:25:26] Speaker 07:
And in the proposed order, we proposed that the court order relief in the form of compensatory education.

[00:25:32] Speaker 07:
But in terms of the oral argument before the trial court,

[00:25:35] Speaker 07:
We never even got that far because the trial court was focused on the two-part test and then applied the four-part test on top of that and denied safe relief.

[00:25:44] Speaker 04:
Well, that's part of what I'm getting at here.

[00:25:47] Speaker 07:
It's not in the complaint.

[00:25:49] Speaker 04:
Yes, it's not in the complaint.

[00:25:51] Speaker 04:
And it's in a memorandum in support of the injunction.

[00:25:56] Speaker 07:
Yes, Your Honor.

[00:25:58] Speaker 04:
And when I looked at what the district court did, I thought it was saying

[00:26:03] Speaker 04:
I have to decide whether you're entitled to an injunction.

[00:26:09] Speaker 04:
And if I decide you're not entitled to an injunction, the case isn't over because you may be entitled to some compensatory education.

[00:26:22] Speaker 07:
Respectfully, Your Honor, the trial court did not say that.

[00:26:25] Speaker 07:
Instead, he said that Ms.

[00:26:26] Speaker 07:
Cole was not entitled to statehood, and in evaluating

[00:26:30] Speaker 07:
the full entitlement to that right.

[00:26:32] Speaker 07:
What he found was that because the four part test did not also weigh in her favor, then state foot was not applicable to her claim.

[00:26:39] Speaker 07:
Even in something to say that.

[00:26:41] Speaker 04:
All right.

[00:26:42] Speaker 04:
So in response to Judge, let's question for your best authority.

[00:26:48] Speaker 04:
You cited the district court.

[00:26:50] Speaker 07:
Yes, your honor.

[00:26:52] Speaker 04:
As to what the district court actually did in that case.

[00:26:56] Speaker 07:
Yes, your honor.

[00:26:56] Speaker 04:
And I notice in your brief you cite a lot of cases, but they're mostly district court cases, plus the Third Circuit and the Ninth Circuit.

[00:27:05] Speaker 07:
Yes, Your Honor.

[00:27:08] Speaker 04:
It may be that a lot of district court judges understand that, but I was looking for something that either in the statute, the regulations, or an appellate court case tell me they are one and the same.

[00:27:24] Speaker 07:
I do not believe that there is a

[00:27:26] Speaker 07:
regulation, a circuit board case, or a statute that says that.

[00:27:29] Speaker 04:
So you're asking us for the first time to hold that in seeking a state put relief, that must necessarily be interpreted as also including a request for compensatory education.

[00:27:52] Speaker 04:
Yes.

[00:27:54] Speaker 04:
putting the child back where the plaintiff says he should be, namely, and in his original placement.

[00:28:04] Speaker 07:
Yes, Your Honor.

[00:28:06] Speaker 07:
But the plaintiff would still have to expressly request it, and it would still have to be warranted.

[00:28:11] Speaker 07:
If the state court injunction is granted the next day, say, day 46, then there is no educational harm that the student is entitled to remedy for.

[00:28:19] Speaker 04:
So here's what your motion said.

[00:28:22] Speaker 04:
You said,

[00:28:24] Speaker 04:
Mrs. Olu Cole requests a stay put injunction to allow MK to continue to receive services during the pendency of the proceedings under the IDEA.

[00:28:39] Speaker 04:
And then you mentioned that memorandum of points of authority is attached.

[00:28:47] Speaker 00:
Is that, well, the memorandum in connection with support of the motion for TRO.

[00:28:54] Speaker 00:
does say at the end, third, order the defendant to provide compensatory education.

[00:29:04] Speaker 02:
Is the theory that it is no good to put the child back in the school if the child is now two months behind?

[00:29:13] Speaker 02:
You have to sort of have some very fast compensatory education?

[00:29:17] Speaker 02:
Or are you just saying that what should come with

[00:29:22] Speaker 02:
an order to put the child back in the school is a declaration of your legal right to compensatory education, the content of which is to be determined later.

[00:29:32] Speaker 07:
The latter, Your Honor.

[00:29:34] Speaker 07:
That can be remanded to a hearing officer to determine.

[00:29:37] Speaker 02:
But in this case, you said you amended your complaint.

[00:29:39] Speaker 02:
This court didn't dismiss the case.

[00:29:41] Speaker 02:
You amended your complaint to expressly ask for compensatory education.

[00:29:44] Speaker 02:
And you're litigating that right now.

[00:29:47] Speaker 02:
And if the district court there were to rule,

[00:29:51] Speaker 02:
Why doesn't that move this aspect of the case?

[00:29:53] Speaker 02:
Because you're now litigating whether you're entitled to compensatory education or not.

[00:29:57] Speaker 02:
And if the district court there were to say, you're not entitled for this reason, another reason, all manner of reasons, you would be able to appeal that determination.

[00:30:08] Speaker 02:
I'm just a little worried that we would be getting ahead of the district court's current summary judgment proceeding if we were to declare you have some entitlement to it.

[00:30:18] Speaker 07:
Just to be clear, it's a 12B6, a motion to dismiss.

[00:30:24] Speaker 07:
But Your Honor, the reason why we think this court still needs to adjudicate- I'm sorry, it's a motion to dismiss here or in district court right now?

[00:30:30] Speaker 07:
In district court.

[00:30:32] Speaker 02:
No one's put in any evidence on- On the defense for education?

[00:30:36] Speaker 07:
There was a cross-motion.

[00:30:38] Speaker 07:
Yes, Haynes filed a cross-motion to dismiss an alternative summary judgment.

[00:30:48] Speaker 07:
I understand it's confusing it there.

[00:30:50] Speaker 07:
But the problem here is that the whole relief for combat comes from that statement claim that began on February 1st and was adjudicated by the district.

[00:31:00] Speaker 07:
And if this court affirms that decision and says the trial court correctly decided that, then Ms.

[00:31:07] Speaker 07:
Cole is not entitled to compensatory education despite the fact that Haynes

[00:31:11] Speaker 02:
Because they were right to keep you out of school.

[00:31:14] Speaker 02:
And so they don't have to give you anything for that period.

[00:31:20] Speaker 04:
And you read the district court's order saying that, but your basic point is the district court's whole analysis is wrong.

[00:31:30] Speaker 07:
Yes, Your Honor.

[00:31:31] Speaker 04:
In using this four-part test.

[00:31:33] Speaker 07:
Yes, Your Honor.

[00:31:34] Speaker 04:
Given the uniqueness of the state put provision.

[00:31:39] Speaker 07:
Yes, Your Honor.

[00:31:40] Speaker 04:
All right, let's hear.

[00:31:42] Speaker 07:
Thank you.

[00:31:43] Speaker 04:
Thank you.

[00:31:54] Speaker 03:
Good morning.

[00:31:55] Speaker 03:
Morning, Your Honor.

[00:31:56] Speaker 03:
May it please the court, Lauren Bowne, on behalf of the Elaine's Public Charter School.

[00:32:00] Speaker 03:
I'm happy to jump right into the mootness issue because it is... Let me just ask you, I'm trying to come to an understanding here.

[00:32:06] Speaker 02:
If you're legally entitled for the 45-day period that you clearly were entitled to have this child out of school, and let's assume in a hypothetical case the 45 days ends and it's fine, child goes right back into school.

[00:32:25] Speaker 02:
There's no compensatory education obligation that would go

[00:32:28] Speaker 02:
to cover up whatever may have been missed during that 45-day suspension.

[00:32:34] Speaker 03:
Assuming there's an agreement that the interim placement was appropriate, which in this case there wasn't.

[00:32:39] Speaker 03:
That was a whole separate thing, but not before you did not.

[00:32:41] Speaker 02:
Got it.

[00:32:42] Speaker 02:
But if you didn't have that dispute, then at that point, they wouldn't be entitled to a statehood order on day 44 or 43.

[00:32:52] Speaker 02:
And so they couldn't claim a legal right to compensatory education.

[00:32:57] Speaker 02:
Yes.

[00:32:58] Speaker 02:
Once it's day 46 or 47, then a right to compensatory education would kick in if you did not have a legal right to extend that time period.

[00:33:15] Speaker 03:
or if there was a violation of IDEA and educational harm to the student.

[00:33:20] Speaker 02:
So if there's a legal, whether or not there's a legal right to stay put on that time period after the 45 days elapsed and before he was returned, whether he has a right to stay put determines whether he has a right to compensatory education, a legal right to compensatory education.

[00:33:38] Speaker 02:
Have to prove it, have to, that could be disputed, but when he has a legal right to claim that compensatory education,

[00:33:43] Speaker 02:
would rise or fall with whether he had a right to be returned to school at that point.

[00:33:48] Speaker 03:
Yes.

[00:33:49] Speaker 03:
And I think that question is still before the district court, as Mr. Nevers pointed out.

[00:33:54] Speaker 03:
The complaint was actually amended after the preliminary injunction was denied to more clearly assert that there was still a pending compensatory education claim.

[00:34:04] Speaker 02:
The decision on the preliminary- But if you're right on your- I'm sorry, just to be clear, if you're right on your legal theory that you've advanced to us, that he has

[00:34:13] Speaker 02:
no, he had no right to be put back in school for those additional days because you'd requested a hearing officer process.

[00:34:20] Speaker 02:
If you're right about that, then he would have no right to commensatory education for those additional days.

[00:34:27] Speaker 03:
I'm not actually sure that's true.

[00:34:29] Speaker 03:
We haven't made that argument before the district court.

[00:34:31] Speaker 02:
I thought that's what you were just answering to me about that interim time period after the 45 days, but before he's returned to school.

[00:34:37] Speaker 02:
That turns on whether

[00:34:39] Speaker 02:
I thought that was exactly what you told me before, but I've been confused a lot this morning.

[00:34:43] Speaker 03:
That's okay.

[00:34:44] Speaker 03:
It might be my fault.

[00:34:46] Speaker 03:
The issue before the district court was whether Haynes was in violation of statehood.

[00:34:51] Speaker 03:
There were legal questions about what version of statehood applied, but Haynes' argument was even if typically statehood would require the student to return,

[00:35:00] Speaker 03:
given the circumstances of this case, there are compelling reasons to allow us to finish the administrative process that was ongoing rather than immediately return him to school.

[00:35:10] Speaker 03:
What the district court decided was there may very well be a stay put violation, but given the circumstances, he thought there was a compelling reason to not

[00:35:22] Speaker 03:
award the preliminary injunction, allow the administrative process that was ongoing to finish, which it would have done in a matter of days, and then that left open the question of whether there is a compensatory education award owed to the student given the time they leave out after February 1st.

[00:35:43] Speaker 02:
But your current litigating position, and still before us in this very appeal, is that you had the right to keep him out of school.

[00:35:51] Speaker 02:
I get that he was returned, but you had the legal right to keep him out of school until the hearing officer ruled, correct?

[00:35:58] Speaker 03:
So there's kind of two bases for our claim.

[00:36:00] Speaker 03:
One is that a different version of state put actually should have been applied, but the district court didn't actually apply that version, didn't kind of side with us on that.

[00:36:08] Speaker 02:
That's your legal right to keep him out until the hearing officer rules.

[00:36:11] Speaker 02:
Correct.

[00:36:11] Speaker 03:
I don't know that the district court agrees with us on that and would agree with us on that on a compensatory education claim, but in terms of the preliminary injunction,

[00:36:20] Speaker 02:
No, no, I just want to be crystal clear.

[00:36:21] Speaker 02:
You are still litigating before us that issue of whether he had any stay put right to go back into school, correct?

[00:36:29] Speaker 02:
Right.

[00:36:30] Speaker 02:
And you've asked us to say he did not.

[00:36:32] Speaker 02:
Right.

[00:36:33] Speaker 02:
If you're going to rule on the merits.

[00:36:34] Speaker 02:
Correct.

[00:36:35] Speaker 02:
I'm just trying to understand this, OK?

[00:36:36] Speaker 02:
And if you are correct, then his legal right to any compensatory education for days 46, 47, 48 evaporates.

[00:36:49] Speaker 03:
Yes, if he was not entitled to stay put in the first place, as per that two-part test and the kind of traditional stay put provision, then yes, we would argue he's not entitled to a convinced story education.

[00:37:02] Speaker 03:
That would be a decision on the merits that the district court has not made and which we would argue is not before you.

[00:37:08] Speaker 03:
What's before you is whether the district court erred in denying the motion for a preliminary injunction.

[00:37:14] Speaker 03:
And that, frankly, has no

[00:37:19] Speaker 03:
impact in terms of whether the parent can still pursue a claim for compensatory education on the merits of her underlying complaint, which is still before the district court.

[00:37:28] Speaker 00:
You said the administrative proceedings would have concluded in a matter of some days.

[00:37:33] Speaker 00:
Why didn't it?

[00:37:35] Speaker 03:
So on February 22nd, we had our oral argument before the district court on February 13th.

[00:37:43] Speaker 03:
The hearing, due process hearing,

[00:37:45] Speaker 03:
for the administrative matter was set for February 26th.

[00:37:48] Speaker 03:
On February 22nd, Haynes actually decided to allow the student to return.

[00:37:54] Speaker 03:
And then on February 23rd, the court issued its decision.

[00:37:59] Speaker 03:
But we never got to the due process hearing because Haynes.

[00:38:01] Speaker 04:
On the 27th, Haynes withdrew its request.

[00:38:04] Speaker 03:
Correct, yes.

[00:38:05] Speaker 02:
Anne told O'Lacool that he could go back to school.

[00:38:09] Speaker 02:
Correct.

[00:38:09] Speaker 02:
And the difference with the 45-day period ended?

[00:38:13] Speaker 02:
January 31st.

[00:38:15] Speaker 02:
January 31st, so it would have been a month.

[00:38:19] Speaker 02:
We're talking about a month here of whether or not he gets compensatory education or not.

[00:38:23] Speaker 02:
That's the delta between your two legal positions.

[00:38:26] Speaker 03:
Correct.

[00:38:27] Speaker 03:
And the reason is not before you, we actually believe he's already received or been authorized what he would be due even for that month period of time.

[00:38:35] Speaker 03:
But that's an issue that's before the district court.

[00:38:37] Speaker 02:
There's not agreement amongst the parties on that.

[00:38:39] Speaker 03:
Correct.

[00:38:40] Speaker 03:
But we believe

[00:38:42] Speaker 03:
that the appropriate entity to decide what, if any, contemporary education is owed and whether that claim is still alive for different reasons is the district court, and that is before the district court.

[00:38:57] Speaker 02:
To have this be moot under your voluntary cessation theory, you have to not only have

[00:39:04] Speaker 02:
said we won't do it again, you have to, I don't have the phrase exactly right from the Supreme Court, but all the effects of your position have to have been remedied.

[00:39:14] Speaker 02:
And that clearly hasn't been met here because there's this embedded in the district court's decision whether the district court recognized this dual aspect toward or not was a determination or potentially a determination whether he'd be entitled to

[00:39:32] Speaker 02:
this compensatory education for that one month period.

[00:39:35] Speaker 02:
And you're still litigating to us that he shouldn't get it.

[00:39:38] Speaker 02:
I'm not litigating that before you... You've raised in your brief the issue about whether the district court got state put wrong.

[00:39:45] Speaker 02:
Right, but not... Well, if we agree with you, then there was no basis for compensatory education.

[00:39:51] Speaker 02:
You properly excluded him.

[00:39:53] Speaker 03:
Sure.

[00:39:53] Speaker 03:
For the purposes of the mootness discussion, we are not arguing that the underlying claim is necessarily moot because

[00:40:02] Speaker 03:
Haynes let him back into school.

[00:40:04] Speaker 03:
We're arguing that the request for preliminary injunction ordering Haynes to immediately allow him to return to school was moot at the time that the order was issued by the district court, although understandably the district court didn't know that.

[00:40:18] Speaker 03:
And also that whether that decision in and of itself was correct is now moot because the activities for which the injunction was sought have occurred.

[00:40:28] Speaker 03:
We have never made a claim before the district court that

[00:40:31] Speaker 03:
Because the student's now back in school, there's no need for discussion about compensatory education because as you said, that might very well still be an effect of a state put violation that needs to be remedied.

[00:40:42] Speaker 03:
Why didn't you tell the district court right away?

[00:40:45] Speaker 03:
So on February 22nd, there was a motion to withdraw.

[00:40:48] Speaker 03:
There was immediately discussions and disputes about whether that withdrawal should be with or without prejudice.

[00:40:56] Speaker 03:
And so that was going to be resolved as of the following Monday.

[00:41:00] Speaker 03:
I believe the 22nd was a Thursday, the 23rd when the court issued its decision was a Friday.

[00:41:06] Speaker 03:
By the following Monday, there was going to be a decision as to whether withdrawal was with or without prejudice.

[00:41:11] Speaker 03:
And frankly, I thought it would be premature to alert the district court before we had a final decision about the disposition of the administrative process.

[00:41:22] Speaker 02:
Was it ultimately without prejudice or with prejudice?

[00:41:24] Speaker 03:
It was with prejudice by agreement.

[00:41:30] Speaker 03:
With respect to the merits, with respect to the merits, it's Haynes's position that the... Right, sorry, I am going to interrupt you again before you get on to the merits on this.

[00:41:45] Speaker 02:
Are you of any case that has recognized, you agree you have extremely heavy burden on voluntary cessation?

[00:41:55] Speaker 03:
Yes.

[00:41:56] Speaker 02:
It's a very high burden to meet.

[00:42:00] Speaker 02:
And are you aware of any case where either we or the Supreme Court has recognized voluntary sensation when both there are lateral legal consequences that have not been redressed and the defendant is not disavowing his legal position, but in fact, in the very case, is continuing to litigate

[00:42:27] Speaker 02:
and asking a court to decide its legal entitlement not to clean up those collateral consequences.

[00:42:34] Speaker 03:
No, and that's not what we're kind of suggesting should happen.

[00:42:38] Speaker 03:
All we're suggesting is that the issue on the preliminary injunction is moot.

[00:42:44] Speaker 03:
The merits of the underlying claim that gave rise to the request for a preliminary injunction are still alive and being litigated.

[00:42:51] Speaker 03:
We're not suggesting that the entire case below must be dismissed because the student was returned to school.

[00:42:57] Speaker 02:
If we were to rule for you on your merits argument, your construction of the statute, would you then say he's not entitled to commensatory education for that extra month-ish that he was left out of school?

[00:43:10] Speaker 03:
If you determined that the state put provision and the discipline procedures of IDEA applied rather than they kind of were general... If we accept your legal argument in your brief, yes?

[00:43:20] Speaker 03:
Yes.

[00:43:22] Speaker 03:
then if Payne's had a legal right to keep him out pursuant to that kind of modified stay put provision, then yes, he would not be entitled to compensatory education merely because he was in an interim alternative educational setting.

[00:43:35] Speaker 03:
Now again, if there's a dispute about whether that interim alternative educational setting was appropriate, that would be a different question.

[00:43:44] Speaker 04:
And that would be true even if, in his original placement, he was getting 10 types of assistance

[00:43:51] Speaker 04:
And in the temporary replacement, he was getting half.

[00:43:56] Speaker 04:
I mean, on this side, a really gross disparity.

[00:44:01] Speaker 03:
Yes.

[00:44:03] Speaker 03:
Hypothetically, I mean, there was no gross disparity in our view.

[00:44:05] Speaker 03:
But the fake requirement for interim alternative educational settings is modified from the kind of more general FAPE requirements.

[00:44:15] Speaker 03:
So the standard by which we judge what is appropriate is not exactly the same.

[00:44:23] Speaker 03:
Again, it'd be a question of the merits.

[00:44:25] Speaker 02:
Are you also aware of any voluntary cessation case where simply representations in a legal brief about, we won't let this legal issue arise again, have been held sufficient?

[00:44:41] Speaker 03:
No, but I think it all comes down to reasonable expectations of what may occur in the future.

[00:44:48] Speaker 02:
We have a case part of way that actually

[00:44:51] Speaker 02:
And the circuit that holds it, I mean, your promise in a brief is not good enough for voluntary cessation.

[00:44:56] Speaker 02:
So if, and maybe you haven't seen that, but if that's, if I'm accurately summarizing the holding of that, that promise is in a brief, without more a declaration from the school, something like that, some change in policy we could look at is not enough, then you would not be able to establish voluntary cessation.

[00:45:17] Speaker 02:
Because all you have here, as I understand it, is your promise is in a brief.

[00:45:20] Speaker 03:
I don't think that's all we have.

[00:45:21] Speaker 03:
I think we also have a very fact-dependent scenario that brought us to the preliminary injunction motion.

[00:45:28] Speaker 03:
So it's not just a matter of saying we can reasonably anticipate that MK will commit another violent act at school, which, by the way, he hasn't since this all happened, which I believe is evidence that he won't necessarily do it again, hopefully.

[00:45:43] Speaker 03:
but also that he would be subject to a 45-day removal, that the school would then decide that he could not return at the end of the 45 days and in doing so not be able to secure a hearing officer's order before the 45 days expired.

[00:45:57] Speaker 03:
It's not just about the removal, it's about all the things that happened and the kind of unfortunate timing in this instance of a very complicated legal process.

[00:46:06] Speaker 02:
What timing was it within your control?

[00:46:08] Speaker 02:
somewhat, but not entirely.

[00:46:10] Speaker 02:
You could have asked for a hearing before the hearing officer immediately and then canceled it later if things worked out.

[00:46:17] Speaker 03:
Perhaps, but I don't know that that's... Is that a perhaps or you could have?

[00:46:21] Speaker 03:
We could have.

[00:46:22] Speaker 03:
I think it would have been premature to do so.

[00:46:24] Speaker 03:
One is we didn't know on November 7th when the 45 days began or even necessarily in early December when we started having conversations about the potential need for a change in placement, we didn't know that

[00:46:36] Speaker 03:
When January 31st arose, the school would definitively not want to allow the student to return based on these safety concerns.

[00:46:43] Speaker 03:
They certainly had the safety concerns, but they had not made a decision at that point.

[00:46:47] Speaker 03:
Second, we didn't know what the outcome of the change in placement process would be.

[00:46:51] Speaker 04:
When you say we, who are you as opposed to the school?

[00:46:56] Speaker 03:
The school, sorry.

[00:46:57] Speaker 04:
Well, the school could make a decision.

[00:47:01] Speaker 04:
They could make a decision, but they hadn't.

[00:47:05] Speaker 04:
That's all Judge Millett was getting at.

[00:47:07] Speaker 03:
Yes, but I think practically speaking, it would have been premature to request a hearing as soon as that 45-day period started without knowing how things were actually going to change there.

[00:47:20] Speaker 04:
So that undermines the commitment in your brief.

[00:47:25] Speaker 03:
No, not necessarily, because at the very least, let's say we found ourselves in the same situation.

[00:47:32] Speaker 03:
What Ms.

[00:47:33] Speaker 03:
Ola-Cole was arguing is,

[00:47:35] Speaker 03:
Haynes should have requested the preliminary injunction and then therefore argued the four factors kind of on the side of Haynes rather than on the side of Ms.

[00:47:44] Speaker 03:
Olukole or the student.

[00:47:46] Speaker 03:
And that very well would be within our control and we absolutely would do that because as you can see, this has kind of evolved into a much more complicated, lengthy and costly legal matter than it needed to be in the offset.

[00:48:00] Speaker 04:
Because the school

[00:48:03] Speaker 04:
didn't do what it was required to do in a timely manner.

[00:48:10] Speaker 04:
This court has been very strict on enforcing the rights of special education.

[00:48:18] Speaker 04:
And so should the schools.

[00:48:24] Speaker 04:
So it knew it had a 45-day limit.

[00:48:29] Speaker 04:
And if it wanted to do something more to keep him out, it had to get some authorization.

[00:48:36] Speaker 04:
And so the fact that the school dilly-dallied and said we hadn't made up our mind, that's all well and good, and I'm not suggesting any bad faith.

[00:48:44] Speaker 04:
But it couldn't just ignore what the statutory scheme required of it.

[00:48:57] Speaker 04:
Because you're talking about a young child.

[00:48:59] Speaker 03:
If I may, the school very much takes the rights of students with disabilities and the needs of all their students very seriously.

[00:49:07] Speaker 03:
This was not an easy position to be in on the part of the school.

[00:49:11] Speaker 04:
My only point is, I'm saying no bad faith, but I'm getting at the point that you said in your brief this will never happen again.

[00:49:18] Speaker 04:
But you could be in the same situation six months from now.

[00:49:22] Speaker 04:
School can't make up its mind what it really wants to do and the 45 days lapses and a month passes and the parent is very concerned that the child is not getting the assistance he needs.

[00:49:38] Speaker 03:
So in terms of the statutory construction, the statute says

[00:49:44] Speaker 03:
They can unilaterally remove the student based on the serious bodily injury for up to 45 school days.

[00:49:50] Speaker 03:
They did that.

[00:49:51] Speaker 03:
The statute says they can petition a hearing officer for an extension of that 45-day removal for an additional up to 45 days based on a concern that allowing the student to return to school was substantially likely to result in injury to the student or others.

[00:50:07] Speaker 04:
So you're saying you're reading the statute that you could wait until the 45th day, file on the 46th day,

[00:50:13] Speaker 04:
for an extension, and then you are entitled to wait for the hearing officer to set up a schedule that's convenient to all parties, then get a decision.

[00:50:23] Speaker 04:
And meanwhile, the child is not getting the original services under the plan.

[00:50:32] Speaker 04:
Yes, the statute does then say that.

[00:50:34] Speaker 02:
And has no right to compensatory education for all that period either.

[00:50:37] Speaker 04:
Why would Congress ever set up a scheme like that?

[00:50:42] Speaker 03:
My response would come in the form of a question, which is why would Congress set up a scheme where while schools have assuming legitimate concerns about safety and they're trying to adhere to the

[00:50:56] Speaker 03:
IDA's procedures for seeking and getting a hearing officer's order, would the school have to allow that potentially dangerous student to return?

[00:51:04] Speaker 02:
They don't.

[00:51:07] Speaker 02:
If the school has that serious concern, then they better ask for a hearing, request a hearing before a hearing officer within the first 15 days.

[00:51:15] Speaker 02:
That's all they have to do.

[00:51:17] Speaker 02:
And they can dismiss it later if they all end up working something else out.

[00:51:21] Speaker 02:
just like you just missed it here.

[00:51:22] Speaker 02:
That's one option, and the statute also says that- Well, maybe that's why Congress set it up that way.

[00:51:27] Speaker 02:
I mean, these are really short deadlines.

[00:51:29] Speaker 02:
Congress was serious on, even when you have substantial offenses like this, that the clock runs very quickly, and it's short time period decisions have to be made.

[00:51:41] Speaker 02:
But you can go on a dual track, so that would be a perfectly sensible decision for Congress to make.

[00:51:46] Speaker 03:
Congress also said quite clearly in the statute

[00:51:49] Speaker 03:
that once that hearing request is made and a school district appeals to a hearing officer to extend that 45 days or ask for an initial 45 days when those three unilateral circumstances don't exist, that the state put placement is the interim alternative educational setting.

[00:52:08] Speaker 04:
I know, that's why I didn't.

[00:52:10] Speaker 04:
address, because I thought, well, the court might well hold that if you filed within the 45-day period and there was a reasonable anticipation that you'd get a decision within that period.

[00:52:21] Speaker 04:
But that's not this case.

[00:52:23] Speaker 04:
You acknowledge that the school had made up its mind what it wanted to do.

[00:52:28] Speaker 03:
I'm sorry, I don't understand.

[00:52:30] Speaker 04:
Well, you're going to say the plain text of the statute

[00:52:35] Speaker 04:
allows you to keep the child away for more than 45 days.

[00:52:41] Speaker 04:
And suppose I agree with you.

[00:52:44] Speaker 04:
And the question is, if you had a motion pending within the 45-day period, there might be an argument that would entitle you to keep the child away if the hearing officer hadn't made a decision

[00:53:00] Speaker 04:
by the 45th day.

[00:53:02] Speaker 03:
Those are the facts in this case.

[00:53:04] Speaker 04:
The hearing request... Except for the fact that you didn't file a motion or the request, either within the 45-day period or in a time such that it was reasonably anticipated that the hearing officer could render a decision.

[00:53:21] Speaker 04:
I mean, the district court's whole point was 10 days.

[00:53:24] Speaker 04:
I don't think that's going to prejudice

[00:53:27] Speaker 04:
the child.

[00:53:31] Speaker 04:
But your colloquy with Judge Millett just says that the statement in the brief is nothing you can rely on.

[00:53:42] Speaker 03:
I'm sorry.

[00:53:43] Speaker 03:
I have to respectfully disagree.

[00:53:44] Speaker 04:
In other words, you acknowledge that the school may be in similar circumstances again, if not with this child, with some other child.

[00:53:55] Speaker 03:
So we don't actually believe there's a reasonable expectation that the facts, as they kind of arose in this situation, will arise again.

[00:54:03] Speaker 04:
That you will never have another child in a fight where one child is injured such that the custodians of the school want to, I mean, the educational custodians want him removed or her removed.

[00:54:21] Speaker 03:
That's not the only fact that led us here.

[00:54:24] Speaker 03:
If that were, then it would be a different conversation.

[00:54:27] Speaker 03:
But that is one fact, and then there are several other facts as to how this case.

[00:54:32] Speaker 04:
And what are the, just in a brief sentence, what are those facts?

[00:54:36] Speaker 03:
Sure, so the initial 45-day removal due to serious bodily injury was one thing, but then the question about the need for a change in placement, the dispute about the need for a change in placement, the decision by the school to extend those 45 days, those are all unique facts to this case.

[00:54:53] Speaker 03:
that frankly I have not seen in my 10 years of practice as a special education attorney in D.C.

[00:54:59] Speaker 03:
This school has never seen.

[00:55:00] Speaker 03:
I believe that the totality of the facts in this case are quite unique.

[00:55:08] Speaker 03:
I see that my time is up.

[00:55:11] Speaker 03:
Thank you.

[00:55:13] Speaker 04:
All right.

[00:55:27] Speaker 07:
I wanted to pick up on the conversation you were just having with Bozen Council about their position about whether or not state put applies during disciplinary proceedings.

[00:55:36] Speaker 07:
And we actually think that because Haynes sincerely believes that state put doesn't apply, that there is a different provision that requires a student not to return to his then current educational placement, but to remain in the IAES beyond the 45 school day limit that Congress has set, that there's actually a substantial likelihood that this could recur.

[00:55:56] Speaker 07:
This is a student much like the student in Honig who has an emotional disturbance.

[00:56:01] Speaker 07:
It manifests itself in physical outbursts.

[00:56:04] Speaker 07:
He will continue for the remainder of his life to struggle with this disability.

[00:56:09] Speaker 07:
It is an ingrained inherent impediment to the way that he interacts with other people.

[00:56:15] Speaker 07:
So as respectfully as possible, we think that there is a likelihood this could happen again.

[00:56:19] Speaker 07:
And when it does, Haynes is going to take the same position.

[00:56:22] Speaker 07:
And that is that state put does not apply when there are disciplinary proceedings and the student has been placed in an IAES.

[00:56:30] Speaker 07:
Additionally, your honor, Haynes had stated that there is a modified FAPE standard that would apply and that would affect the compensatory education determination.

[00:56:40] Speaker 07:
That's actually not accurate.

[00:56:42] Speaker 07:
That modified FAPE standard only applies

[00:56:45] Speaker 07:
during the 45 school days that the student can be unilaterally moved to IAES.

[00:56:50] Speaker 07:
On day 46, it's the ordinary review.

[00:56:54] Speaker 07:
It's what does the IEP say and what did the student get?

[00:56:57] Speaker 07:
What's the difference between it?

[00:56:59] Speaker 07:
And then we have to use that to create an equitable remedy pursuant to Reed versus Dishonored Columbia.

[00:57:05] Speaker 07:
And finally, we just emphasize that the Haines could have taken a two-track approach to this.

[00:57:11] Speaker 07:
They could have requested the hearing officer

[00:57:14] Speaker 07:
and an expedited due process hearing and the change in placement process from Aussie.

[00:57:19] Speaker 07:
And if one had worked out versus the other, they could have canceled.

[00:57:22] Speaker 07:
They opted not to do that.

[00:57:23] Speaker 07:
They went with the change in placement process, scheduling it for January as an intentional and purposeful act.

[00:57:30] Speaker 07:
I see that I'm out of time.

[00:57:32] Speaker 07:
Thank you, Your Honors.

[00:57:32] Speaker 04:
Thank you.

[00:57:33] Speaker 04:
We'll take the case under advisement.

[00:57:35] Speaker 04:
Stand, please.