[00:00:00] Speaker 03:
Case number 20-7105, JT at balance versus District of Columbia.

[00:00:05] Speaker 03:
Mr. Tirica, party at balance, Ms.

[00:00:07] Speaker 03:
Labstad, party at vote.

[00:00:13] Speaker 01:
Good morning, and may I please record?

[00:00:16] Speaker 01:
I'm Douglas Tirica.

[00:00:17] Speaker 01:
I represent JT, the mother of the minor student VT.

[00:00:22] Speaker 01:
As the parties greet the court today, it is undisputed that VT cannot tolerate a long commute to and from school.

[00:00:29] Speaker 01:
But if he is subjected to one, he will be unable to participate in his education.

[00:00:35] Speaker 03:
Where is JT now?

[00:00:37] Speaker 03:
A lot of time has elapsed.

[00:00:39] Speaker 01:
JT, as the district court's opinion makes clear, DCPS offered him no school whatsoever for the 2019-2020 school year, and compensatory education for that deficit is pending.

[00:00:52] Speaker 01:
for the 2021 school year.

[00:00:54] Speaker 01:
He did a portion of it at home.

[00:00:56] Speaker 01:
Of course, this is when the lockdown began.

[00:00:58] Speaker 01:
He is currently still being educated to some degree at home by DCPS because he cannot tolerate the face mask restrictions.

[00:01:06] Speaker 03:
Is he in a school or is he only at home?

[00:01:08] Speaker 03:
He just said to some extent.

[00:01:10] Speaker 01:
He is officially enrolled in a school.

[00:01:13] Speaker 01:
What school is that?

[00:01:16] Speaker 01:
Deal.

[00:01:17] Speaker 01:
What school is that?

[00:01:18] Speaker 01:
Deal middle school.

[00:01:19] Speaker 03:
How far is that from his house?

[00:01:21] Speaker 01:
Well, he's not intending in person.

[00:01:23] Speaker 01:
Um, were he to go by car?

[00:01:25] Speaker 01:
I think it would be less than 15 minutes, I believe.

[00:01:30] Speaker ?:
Okay.

[00:01:30] Speaker 01:
Thank you.

[00:01:31] Speaker 01:
Um, there's just as there is no dispute regarding the limitations on VT's tolerance for road transportation.

[00:01:39] Speaker 01:
There is no supported dispute that DCPS placed VT at each of the schools in question without ever consulting his parents in the least.

[00:01:47] Speaker 03:
I'm just, I'm still trying to understand now what exactly is before us.

[00:01:52] Speaker 03:
So you're not here contesting placement of deal.

[00:01:55] Speaker 03:
That's not before us and how they're doing whatever balance of home and person they're doing, you're not contesting that.

[00:02:04] Speaker 03:
You can't be contesting the IEP because you didn't contest that and you've got a new IEP anyhow.

[00:02:12] Speaker 03:
And you got no one's appeal the district court's decision on

[00:02:17] Speaker 03:
reimbursement for home education 2019-2020.

[00:02:20] Speaker 03:
So what question is before us?

[00:02:22] Speaker 01:
This regards the 2018-2019 school year.

[00:02:26] Speaker 01:
So the district court awarded compensatory education for the 2019-2020 school year.

[00:02:31] Speaker 01:
This is the proceeding year.

[00:02:33] Speaker 03:
This is the year in which... Did the district court here address compensation for 2018-2019?

[00:02:37] Speaker 01:
I'm sorry.

[00:02:40] Speaker 03:
Was 2018-2019 before the district court in this case?

[00:02:43] Speaker 01:
Yes.

[00:02:44] Speaker 03:
Compensation for that.

[00:02:46] Speaker 01:
Compensatory education for that, yes.

[00:02:48] Speaker 01:
That is a relief request.

[00:02:51] Speaker 03:
What your complaint says is you wanted an assessment for a future administrative complaint for compensatory education.

[00:03:04] Speaker 03:
You didn't actually ask for compensatory education.

[00:03:07] Speaker 03:
That's an assessment for a future claim for compensatory education.

[00:03:12] Speaker 01:
That's correct.

[00:03:13] Speaker 01:
The system that we worked out, which works out much more amicably for all the parties, is if we can get a compensatory education evaluation awarded, then once that is complete, the parties can negotiate compensatory education.

[00:03:27] Speaker 03:
Well, that may be how you work it out logistically, but you haven't asked the court for compensatory education for any year in your complaint

[00:03:37] Speaker 03:
Have you?

[00:03:38] Speaker 01:
If you ask for compensatory education relief, in this case, relief in the form.

[00:03:42] Speaker 03:
No, the relief that you asked for in your complaint, unless there's something else you want to point me to, again, is for a compensatory education evaluation, which, quoting your complaint, may serve as the basis for a future administrative complaint for compensatory education.

[00:04:01] Speaker 03:
We haven't asked, actually, for compensatory education.

[00:04:06] Speaker 01:
Yes, your honor.

[00:04:06] Speaker 01:
I'm afraid I'm talking past your honor.

[00:04:08] Speaker 01:
I'm saying the nature of the belief requested was the evaluation plus the right to bring a case later if necessary.

[00:04:17] Speaker 01:
So it's an order of an evaluation and essentially a dismissal of the remainder of the claim without prejudice.

[00:04:25] Speaker 03:
So all the only relief you're asking for at this point is for an assessment.

[00:04:29] Speaker 01:
for an assessment.

[00:04:30] Speaker 03:
The only thing you're asking, sorry, all these masks and everything.

[00:04:33] Speaker 01:
I'm doing my best.

[00:04:34] Speaker 03:
I appreciate that.

[00:04:36] Speaker 03:
The only thing you're asking for from this court is an assessment.

[00:04:39] Speaker 01:
In order of an assessment and explicit permission to bring a case later if necessary based on that assessment.

[00:04:45] Speaker 03:
Wait, explicit permission?

[00:04:48] Speaker 03:
First of all, you're, are you, have you found courts, have courts ordered this, an assessment and permission to bring a claim that you may or may not bring?

[00:04:56] Speaker 01:
Yes, and in fact, right now,

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We actually have an active administrative case for exactly that reason.

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Is there a court decision from this court or one of our district courts that says we can order an assessment without an actual live claim yet for compensatory education?

[00:05:13] Speaker 01:
Well, actually in this case regarding the 1920 school year, that's exactly what the court ordered.

[00:05:18] Speaker 01:
and we got that assessment.

[00:05:20] Speaker 01:
Regarding the 2019-2020 school year, the combination of the hearing officer and then the district court in this case found that DCPS had entirely failed to provide education, and each of them ordered a compensatory education evaluation.

[00:05:36] Speaker 01:
We got those two evaluations done.

[00:05:37] Speaker 01:
DCPS, in fact, did not disagree with the substance of those findings, and unfortunately had some disagreement about the details, so we're hashing that out now.

[00:05:49] Speaker 03:
I've interrupted the merits of your argument.

[00:05:51] Speaker 03:
I'm sorry, go ahead.

[00:05:52] Speaker 01:
Not at all, Your Honor.

[00:05:52] Speaker 01:
I prefer the questions as most of us do.

[00:05:56] Speaker 01:
As there is no dispute regarding VT's inability to tolerate a long commute, there is no dispute that the supported dispute that DCPS made each of these placement decisions without consulting the parents for their opinion, even in the most general matter, nevermind complying with the strict procedural requirements within the IDEA.

[00:06:17] Speaker 01:
You have a little less despite these facts.

[00:06:19] Speaker 00:
On the procedural claim, how do you get around the Lunsford opinion, which seems pretty clearly to say that the selection of a school site is not itself a placement.

[00:06:36] Speaker 01:
Also, the participation argument is not only based on the question of the change of placement, but on some other issues I'll address in a moment.

[00:06:46] Speaker 01:
But regarding Onceford, as was discussed in the briefs, that this court did hold that way 35 years ago.

[00:06:54] Speaker 01:
That was before the Supreme Court had ever made any placement decision, any decision on a placement case.

[00:07:00] Speaker 01:
The Supreme Court did so shortly thereafter words in Burlington, and then this court

[00:07:06] Speaker 01:
beside a Mackenzie in which, uh, as we say in our brief, the court repeatedly, um, identifies the particular school as a child's placement and every decision since then, this court has, uh, has, uh, identified a particular school as a child's placement, not just a type of program as the district argues today.

[00:07:32] Speaker 01:
Um, and this court also in night, which follows shortly after Mackenzie noted the conflict between, uh, Lunsford and Mackenzie and said that that could be put off for another day.

[00:07:44] Speaker 01:
This may be that day.

[00:07:45] Speaker 01:
I think that would serve a good purpose in this jurisdiction to have that clarified.

[00:07:50] Speaker 01:
And as we review in our brief, uh, I think Lunsford to the degree that it

[00:07:57] Speaker 01:
held that placement did agree that agreed with the district's current position.

[00:08:01] Speaker 01:
I think was wrongly decided.

[00:08:02] Speaker 01:
It was based on nothing other than one line of commentary from the department, which line contradicts the statute.

[00:08:10] Speaker 03:
I was also relied on a decision from the Second Circuit leading decision in the case in the area.

[00:08:18] Speaker 01:
Well, the second circuit and this circuit went back and forth to treating that same reasoning in a few decisions.

[00:08:26] Speaker 03:
And I'm just telling you, as a matter of fact, that Lensford relied on more than just Department of Education.

[00:08:31] Speaker 01:
I stand corrected, Your Honor.

[00:08:32] Speaker 01:
But any decision holding that placement does not refer to a school traces back to this one line of commentary, not to the statute, not to the regulations.

[00:08:42] Speaker 01:
And that commentary is not

[00:08:46] Speaker 01:
There's not any kind of authority unless there's some ambiguity in the word placement, which there is not.

[00:08:51] Speaker 01:
If we go out and ask a hundred people, we tell them we're going to write up a document describing a child's education.

[00:08:58] Speaker 01:
And then we're going to base the child's placement on that document.

[00:09:02] Speaker 01:
Every one of those hundred people will understand you to be talking about this doesn't always write like plain folks.

[00:09:07] Speaker 03:
Congress doesn't always write like plain folks when it writes statues.

[00:09:11] Speaker 03:
The question is whether it is a term with a specialized meaning within the IDEA and at least in my read has contradictory indications.

[00:09:22] Speaker 03:
Sometimes it seems to lean toward specific school and sometimes it leans toward the sort of character and nature of the type of education

[00:09:32] Speaker 03:
that this child is going to be entitled to.

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And so if we have precedent on point, you may disagree with it, but a panel of this court can't depart from it.

[00:09:41] Speaker 01:
I think this court has questioned that president.

[00:09:44] Speaker 01:
As I said, we listed, I think, 10 different cases, or certainly more than five, in which this court has consistently identified a particular school as a child's placement.

[00:09:54] Speaker 01:
Regarding Congress's choice of language, they did include a large definitions section, and they did not provide any definition for this term.

[00:10:02] Speaker 01:
So we start, as always, with the common usage of that term.

[00:10:06] Speaker 01:
I was hoping to save two minutes, and I have much more to say on.

[00:10:09] Speaker 03:
What was the prejudice

[00:10:11] Speaker 03:
You talk about JT not being involved in placement decision, and even assuming that's a school-specific decision as you advocate, given all the back and forth that she had with DCPS, all the input that she had, what prejudice was there from her not being involved?

[00:10:34] Speaker 03:
Did she have a school?

[00:10:35] Speaker 03:
She never just mentioned them?

[00:10:37] Speaker 03:
Did she have a school in mind that she wanted to use?

[00:10:41] Speaker 01:
No, Your Honor.

[00:10:42] Speaker 03:
What was the prejudice of her not having, I guess, is your prejudice that she didn't get to veto these schools?

[00:10:50] Speaker 03:
Is that your view, that parents have a unilateral veto?

[00:10:55] Speaker 01:
No, the parents don't have unilateral veto, of course not.

[00:10:57] Speaker 01:
The IDA explicitly identifies as a denial of faith, the denial of or substantial interference with participation in the process.

[00:11:07] Speaker 03:
What is the prejudice to her in this case?

[00:11:13] Speaker 03:
What more would she have done?

[00:11:14] Speaker 03:
She had all the input that anyone could ask for on these school decisions.

[00:11:19] Speaker 03:
And if she didn't have another school to propose to them, what would have changed?

[00:11:25] Speaker 01:
I fully disagree that she had input in the school decision.

[00:11:27] Speaker 01:
She had absolutely no input regarding CSM.

[00:11:29] Speaker 01:
She never even heard the name.

[00:11:31] Speaker 01:
until she was informed of the placement.

[00:11:33] Speaker 03:
First, she went there and visited before it was chosen.

[00:11:35] Speaker 03:
She went with her son.

[00:11:36] Speaker 03:
She interacted with the school and had communications with them and visited.

[00:11:40] Speaker 01:
That's not true, Your Honor.

[00:11:41] Speaker 01:
The sequence of events regarding CSM, which was the school placement for the majority of the year, is DCPS, having never mentioned the school before, sent her a letter saying, he is going to CSM.

[00:11:52] Speaker 01:
After that, and it said, if you want to visit, this is how you arrange for a visit.

[00:11:56] Speaker 01:
After that, she went to visit.

[00:11:58] Speaker 01:
That placement decision was completely made.

[00:12:02] Speaker 01:
Frost was slightly more complicated, but but his viral herself was very clear that she alone made the placement decision then informed JT of that decision.

[00:12:12] Speaker 01:
We review the timelines on pages 2 and 3 of the reply brief with citation to the record.

[00:12:17] Speaker 01:
It's it's perfectly clear that the placement was made without any consultation whatsoever with the parent.

[00:12:23] Speaker 01:
And as far as the prejudice, as I said, Rowley supporting the IDA said that the protections, that the guarantees of participation are every bit as important as the substance of the program.

[00:12:36] Speaker 01:
In this particular case.

[00:12:38] Speaker 03:
What would she have said?

[00:12:39] Speaker 03:
What didn't she get to say that she wanted to say?

[00:12:44] Speaker 03:
What piece of input was she not able to provide that she wanted to provide?

[00:12:48] Speaker 01:
The DCPS held a meeting with the mother to discuss with JT to discuss CSM, for example, and preferably a representative of CSM.

[00:12:57] Speaker 01:
She would have explained that it was too far away, that he could not tolerate that commute to make it there.

[00:13:03] Speaker 01:
She would have talked about the noise, his noise intolerance, and that he was extremely sensitive to noise.

[00:13:10] Speaker 01:
And the CSM witness at the hearing said he had no idea what VT's tolerance for noise in the classroom was.

[00:13:18] Speaker 01:
And they would have talked about the class size.

[00:13:20] Speaker 01:
So we can speculate as to what impact this might have had on DCPS's decision or on the school's decision.

[00:13:27] Speaker 01:
But in fact, when asked, the CSM representative said that he had been in meetings, in meetings like this where the school was discussed as a possible placement.

[00:13:36] Speaker 01:
He has changed his mind based on what he had heard.

[00:13:38] Speaker 03:
OK.

[00:13:39] Speaker 03:
My colleagues, do you have any further questions?

[00:13:44] Speaker 03:
No.

[00:13:44] Speaker 03:
All right.

[00:13:44] Speaker 03:
Thank you.

[00:13:44] Speaker 03:
We'll give you a couple of minutes on rebuttal.

[00:13:46] Speaker 00:
Thank you.

[00:13:56] Speaker 03:
Council for the district now.

[00:14:00] Speaker 03:
Ms.

[00:14:00] Speaker 03:
Lebsack, am I saying that right?

[00:14:18] Speaker 02:
Good morning, may I please support Sonia Lebsack for the District of Columbia.

[00:14:22] Speaker 02:
There are 2 main issues in this case.

[00:14:23] Speaker 02:
1 is the parental participation claim, which is what we've been talking about.

[00:14:27] Speaker 02:
The other one is material implementation.

[00:14:30] Speaker 02:
Let me start with the issue of parental participation.

[00:14:33] Speaker 02:
There are 2 independently sufficient bases on which this court could affirm.

[00:14:39] Speaker 02:
First, educational placement issue is actually clear-cut as a matter of law.

[00:14:44] Speaker 02:
The statute, the regulations, the Department of Education's position, and Court of Appeals precedent all move in the same direction here.

[00:14:52] Speaker 02:
Educational placement is not school assignment.

[00:14:56] Speaker 02:
It's also consistent with this court's decisions in Lunceford and other cases where this court, in speaking about what educational placement is,

[00:15:05] Speaker 02:
has made clear that what it's talking about is a general type of educational program, or what the Department of Education has also referred to as a point along the continuum of placements.

[00:15:17] Speaker 02:
So for example, moving from general education to a separate school, to a hospital or facility.

[00:15:23] Speaker 02:
This has been stable law in the courts.

[00:15:27] Speaker 02:
It is a matter of national regulatory practice for decades.

[00:15:31] Speaker 02:
Any position to the contrary by this court

[00:15:34] Speaker 02:
would create a deep circuit split for essentially no reason.

[00:15:42] Speaker 02:
Second, the court could affirm without resolving the educational placement issue simply because even if the IDEA's procedural protections apply, they were certainly satisfied here.

[00:15:56] Speaker 02:
There is no substantive

[00:15:58] Speaker 02:
denial of a fate in this case.

[00:16:01] Speaker 02:
And the record is replete with parents participation in the school selection process.

[00:16:09] Speaker 02:
And let me start by saying that the notion that parent had never heard of CSM is simply flat wrong.

[00:16:17] Speaker 02:
On September 6th, on August 1st, IEP was finalized.

[00:16:25] Speaker 02:
DCPS solicited parents input into schools.

[00:16:28] Speaker 02:
They said, let us know if you're interested in a school.

[00:16:32] Speaker 02:
Council responded.

[00:16:33] Speaker 02:
We will respond quickly to any schools that contact us.

[00:16:37] Speaker 02:
September 6, CSM reaches out for an intake interview with the parent.

[00:16:43] Speaker 02:
On September 18, parent arranges to visit

[00:16:46] Speaker 02:
CSM with the child.

[00:16:48] Speaker 02:
September 24th, that visit takes place.

[00:16:51] Speaker 02:
At this visit, she confers with the director of education.

[00:16:55] Speaker 02:
She observes her child in a classroom.

[00:16:57] Speaker 02:
The school also observes the child that is part of this process.

[00:17:02] Speaker 02:
Admissions decisions can only be made by the private schools themselves.

[00:17:06] Speaker 02:
They only admit students, which are good fits for the school.

[00:17:12] Speaker 02:
And then on October 18th, there's an admissions letter

[00:17:16] Speaker 02:
to JT.

[00:17:17] Speaker 03:
So the notion that somehow... What interaction did DCPS have with her about the CSM visit?

[00:17:26] Speaker 03:
What interaction did DCPS have with her about the CSM visit?

[00:17:32] Speaker 03:
Prior to advising them that CSM... So the contact was primarily, I mean, and almost exclusively,

[00:17:40] Speaker 02:
between the school and the parent.

[00:17:43] Speaker 02:
And that's actually pretty typical of admissions processes.

[00:17:47] Speaker 02:
Here in the record, we don't see direct communication between CSM and JT.

[00:17:53] Speaker 02:
But we'll say at that point though, she had already declined frost.

[00:17:57] Speaker 02:
So we do see some, like for example, after the frost visit, which parent attended with her child, she actually sort of, Sue Espante sent an email to DCPS.

[00:18:06] Speaker 02:
She said, thanks for the referral.

[00:18:08] Speaker 02:
The visit went, you know, we had the visit.

[00:18:10] Speaker 03:
That's why I'm asking.

[00:18:12] Speaker 03:
There was much more interaction with DCPS.

[00:18:15] Speaker 03:
I'm not talking about between the school and the parent, but DCPS is the one that's supposed to involve the parent in this type of decision-making, debating to what level, but even assuming it's a school-specific one, I didn't see much from DCPS.

[00:18:31] Speaker 03:
I didn't see anything from DCPS between

[00:18:37] Speaker 03:
Nothing.

[00:18:38] Speaker 03:
Honestly, they didn't mention CSM at the meeting.

[00:18:40] Speaker 03:
And then it seems all between CSM and them.

[00:18:43] Speaker 03:
And then October 18th, boom, you're going to CSM without eliciting.

[00:18:48] Speaker 03:
I get that she didn't volunteer feedback, but DCBS didn't elicit any feedback either.

[00:18:53] Speaker 02:
The course reading of the record is accurate in this respect.

[00:18:56] Speaker 02:
The one thing that I would add is that, for example, we do know from the record that when a parent mentioned to the director of education at CSM that there was a concern about the diploma track, the record reflects that concern immediately made its way back to DCPS.

[00:19:10] Speaker 02:
There is a loop.

[00:19:11] Speaker 02:
The record is not wholesome in this respect with respect to CSM, but when parents are talking, DCPS is listening.

[00:19:20] Speaker 02:
it's listening to the parents, it's trying to understand the concerns.

[00:19:24] Speaker 02:
And so the record does have that aspect to it.

[00:19:27] Speaker 02:
And certainly there was more DCPS back and forth with respect to Frost.

[00:19:32] Speaker 02:
And at the time JT visited- There was zero back and forth.

[00:19:36] Speaker 03:
With respect to Frost?

[00:19:37] Speaker 03:
CSM.

[00:19:39] Speaker 03:
Between DCPS.

[00:19:41] Speaker 02:
Based on this record, that would be fair.

[00:19:43] Speaker 02:
We do know that some things that were said in the record, for example,

[00:19:48] Speaker 02:
the concern about the diploma track.

[00:19:50] Speaker 02:
We heard about that at the hearing.

[00:19:51] Speaker 02:
So we know that there was contemporaneous collaboration between DCPS and the school regarding the placement.

[00:19:58] Speaker 02:
So that's essentially the size of the CSM record.

[00:20:02] Speaker 02:
But the reason that I do, and the hearing officer here, I think made very astute findings and credibility determinations that at the point that CSM was the school,

[00:20:15] Speaker 02:
Frost had been rejected.

[00:20:17] Speaker 02:
It had been declined by the parent.

[00:20:19] Speaker 02:
And so there was already sort of this notion that, look, from DCPS, we provided a fake.

[00:20:25] Speaker 02:
We found a school.

[00:20:28] Speaker 02:
And the offer for CSM is actually a second fake.

[00:20:33] Speaker 03:
What evidence on the record shows that Frost had the quiet place?

[00:20:38] Speaker 03:
I'm not talking about noise generally in the background, but the IEP required that there be a distinct quiet place that he could retreat, that the child could retreat to at times when needed.

[00:20:50] Speaker 03:
And I didn't see any evidence in the record, but you can tell me if I missed it, that there was such a quiet place at Frost.

[00:20:57] Speaker 03:
I know there was one at CSM, but not at Frost from the record, unless you can tell me otherwise.

[00:21:03] Speaker 03:
I didn't see it in the record either.

[00:21:04] Speaker 02:
I'll also say it's never been an issue in the case.

[00:21:08] Speaker 02:
Well, noise was very much an issue.

[00:21:10] Speaker 02:
So there very well could be such a room, but there very well could be such a room.

[00:21:14] Speaker 02:
It doesn't appear in the record.

[00:21:15] Speaker 03:
Wait, wait, wait.

[00:21:16] Speaker 03:
That's a specific part of the IEP, that there be a quiet room.

[00:21:20] Speaker 03:
And so I'm going, well, maybe there is one.

[00:21:22] Speaker 03:
We don't know.

[00:21:22] Speaker 03:
Seems to me that BCPS didn't do its job of making sure that Frost could implement the IEP.

[00:21:28] Speaker 02:
Let me back up.

[00:21:29] Speaker 02:
I don't know.

[00:21:30] Speaker 02:
However, what we have is- But the record doesn't show it.

[00:21:34] Speaker 02:
What we have our test statements in the record that the hearing officer found credible that frost stood ready to implement every aspect of the child's IEP.

[00:21:45] Speaker 02:
And so there was testimony on that score.

[00:21:49] Speaker 03:
So the question statement like that sufficient when there are all these noise concerns and.

[00:21:55] Speaker 03:
And there was no evidence, affirmative evidence, that there was a quiet room.

[00:21:59] Speaker 03:
There would be a place of quiet for this child when there's very much a dispute about sound levels.

[00:22:05] Speaker 03:
It's sufficient to go, well, they said they could do it, and not to be more particularized?

[00:22:09] Speaker 02:
The testimony that I'm referring to was in the hearing where essentially the school district was responding to the concerns raised by the parent.

[00:22:18] Speaker 02:
So if there had been a quick Q&A, like, well, is there a quiet room?

[00:22:22] Speaker 02:
There would be a yes or no.

[00:22:25] Speaker 02:
I do think the IEP is about 26 pages to have the person testifying at the hearing go through and say, you know, as to page 17, paragraph one, we can implement this in paragraph two.

[00:22:42] Speaker 02:
Your honor is right.

[00:22:44] Speaker 02:
The hearing does not reflect that kind of meticulous sort of implementation, but what we do have... Well, the hearing officer found that she made out a prima facie case

[00:22:55] Speaker 03:
as to frost is not being sufficient.

[00:22:58] Speaker 03:
And then there was nothing to rebut that evidence, at least as to the quiet area from DCPS that I can see in the record.

[00:23:08] Speaker 02:
DCPS certainly carried its, I mean, as the hearing officer found, carried its burden to show that frost could implement, and this is, you know, materially implement,

[00:23:18] Speaker 03:
The IEP was having a quiet area, something that a school could avoid doing.

[00:23:23] Speaker 03:
I had thought it was very important part of the IEP that had that wouldn't be something that would be an immaterial failure to implement.

[00:23:31] Speaker 03:
Not have a quiet.

[00:23:33] Speaker 02:
I think I guess I have two points on that one.

[00:23:36] Speaker 02:
The issue is not whether the issue of noise is material, but whether the failure.

[00:23:41] Speaker 02:
It is material and here, I guess I sort of have two points.

[00:23:46] Speaker 02:
One is that the school could not was not capable.

[00:23:49] Speaker 02:
Of implementing the is speculation.

[00:23:54] Speaker 02:
And the 2nd circuit precedent on this point, I think is very if it did not have a quiet room.

[00:24:00] Speaker 03:
Let's say it was accredited, but was found that it could manage the noise level, if something was going on that day.

[00:24:07] Speaker 03:
They can manage the noise level.

[00:24:08] Speaker 03:
So they can do that.

[00:24:09] Speaker 03:
They can do everything in the IEP, but they lacked the quiet room.

[00:24:16] Speaker 03:
Would that be, that would not be an immaterial deviation from the IEP as I read it.

[00:24:24] Speaker 02:
I think that would that at first that is an issue that would have been raised at the hearing and we would have heard testimony.

[00:24:30] Speaker 02:
She testified there was no quiet place.

[00:24:32] Speaker 02:
It was very noisy and there was no quiet place.

[00:24:35] Speaker 02:
I don't think the parent.

[00:24:37] Speaker 02:
I'm not aware where that is in the record.

[00:24:38] Speaker 02:
Parent did say that she was unaware that she was concerned about the fact that there were noisy children in the classroom.

[00:24:46] Speaker 02:
So there was testimony on that and that the child felt overwhelmed.

[00:24:51] Speaker 02:
That was the testimony by the parent.

[00:24:54] Speaker 02:
And so therefore parent concluded that there were no solutions that essentially the school could not was not appropriate for the child.

[00:25:02] Speaker 02:
That's actually not.

[00:25:04] Speaker 02:
a basis on which to find a material failure to implement.

[00:25:09] Speaker 02:
They're actually, first there should be an actual failure, but that sort of speculation by the parent doesn't actually rise to the level that's required.

[00:25:19] Speaker 03:
I'm just asking one last, and I know we're over your time here, but one question.

[00:25:22] Speaker 03:
If they did not have a quiet room, what is your position on whether that would have been a free, appropriate public education implementing the IEP?

[00:25:33] Speaker 02:
It would, to me, it would be a fact inquiry about whether the child could access the education.

[00:25:38] Speaker 02:
My guess, my own instinct is to say, no, I don't think that's a material failure to implement.

[00:25:43] Speaker 02:
What we know is that you look at the proportion of services that are mandated by the IEP, and you look at what the IEP would have provided.

[00:25:51] Speaker 02:
Now here, if there were special circumstances with this quiet room, and again, that concern about a quiet room, it crosses nowhere in the record.

[00:25:58] Speaker 02:
Parent didn't raise it to my knowledge.

[00:26:00] Speaker 02:
And,

[00:26:02] Speaker 02:
There very well could be such a room, we simply don't know.

[00:26:05] Speaker 02:
There would really need to be something extraordinary there to say the child could not be educated at all.

[00:26:11] Speaker 02:
That there would be no educational benefit to the child in the school.

[00:26:14] Speaker 03:
I don't think educated at all is the test, but my colleagues have any more questions?

[00:26:19] Speaker 03:
Any questions on that?

[00:26:19] Speaker 03:
All right.

[00:26:20] Speaker 03:
Thank you very much.

[00:26:21] Speaker 03:
Thank you.

[00:26:27] Speaker 03:
Mr. Tirca, we'll give you two minutes.

[00:26:30] Speaker 03:
Did I say that right?

[00:26:30] Speaker 03:
Is it Tirca?

[00:26:31] Speaker 01:
Thank you for.

[00:26:32] Speaker 01:
Regarding what was discussed, I think it's very important to keep in mind that DCPS or the burden of proof by DC statute regarding these substantive issues.

[00:26:44] Speaker 01:
Council cannot, the district cannot say we don't know about the quiet space one way or the other.

[00:26:49] Speaker 01:
DCPS had to prove it.

[00:26:51] Speaker 01:
And they knew what the issues were.

[00:26:52] Speaker 01:
They knew it from the email about Frost, and they knew it from the pre-hearing conference, and they knew it because JT put on her case first.

[00:26:59] Speaker 01:
They knew exactly what issues they had to cover.

[00:27:02] Speaker 01:
I do want to say a few points about the participation issue, but not on the question of definition of placement.

[00:27:08] Speaker 01:
I didn't fully answer Judge Katz's question.

[00:27:11] Speaker 01:
The denial of participation has actually four aspects to it.

[00:27:16] Speaker 01:
One is that it was a change of placement.

[00:27:19] Speaker 01:
DCPS has always said no, a school is in a place and the school is location and they send out those letters.

[00:27:24] Speaker 01:
They're called location of service letters.

[00:27:27] Speaker 01:
That's what they say consistently through the litigation.

[00:27:29] Speaker 01:
Well, the problem for the district is that location is also a necessary part of the IEP and therefore location must also be discussed and negotiated with the parents.

[00:27:39] Speaker 01:
So whether this is a change in placement or a change in location doesn't or both.

[00:27:43] Speaker 01:
doesn't matter much either way, the parent was entitled to participation and DCPS utterly denied it.

[00:27:50] Speaker 01:
The third aspect is the regulation.

[00:27:53] Speaker 01:
This is what the district court spent, unfortunately, all of its time on, but 300 3, 2, 5, a has a specific requirement for when that when DCPS is making a placement to a private school, they did not come close to meeting it here.

[00:28:05] Speaker 01:
We did not have any kind of meeting with that private school representative.

[00:28:08] Speaker 01:
And we discussed what CSM thought was the importance of that.

[00:28:11] Speaker 01:
Finally, even by the district's is my last sentence, even by the district's formulation.

[00:28:16] Speaker 01:
This was a substantial change in the education of VT, as even the hearing officer, while ruling against us, held.

[00:28:25] Speaker 03:
Thank you.

[00:28:25] Speaker 03:
Thank you very much.

[00:28:27] Speaker 03:
The case is submitted.