[00:00:01] Speaker 01: Case number 23-1757. [00:00:04] Speaker 01: Marga Pierre-Noel, Ms. [00:00:05] Speaker 01: Pierre, on behalf of her minor child, Ken, a balance, versus Bridges Public Charter School and District of Columbia, a municipal corporation. [00:00:13] Speaker 01: Mr. Seibert, for the balance. [00:00:15] Speaker 01: Mr. Gertin, for the APOE District of Columbia. [00:00:18] Speaker 01: Ms. [00:00:18] Speaker 01: Baum, for the APOE Bridges Public Charter School. [00:00:22] Speaker 07: Good morning, Council. [00:00:24] Speaker 07: Mr. Seibert, please proceed when you're ready. [00:00:30] Speaker 06: Good morning, Your Honors. [00:00:33] Speaker 03: Mr. Seibert, before you begin, I am at a loss to know why we didn't find out until yesterday that this child has not been in school, or at least at Bridges, all year long. [00:00:48] Speaker 06: Well, I think to directly answer that, it was not hidden by any means. [00:00:55] Speaker 06: I mean, this was something that the school system knew about. [00:00:59] Speaker 03: Did you know about it? [00:01:00] Speaker 06: Yes, I knew about it. [00:01:02] Speaker 06: And of course, at the same time. [00:01:03] Speaker 03: And why didn't you inform the court? [00:01:07] Speaker 06: Well, I guess because I think it's beyond the record for the first part. [00:01:12] Speaker 06: I mean, the IEP only lasted for last school year. [00:01:16] Speaker 06: So I mean, this entire time. [00:01:18] Speaker 03: The direct effect on one of the defendants, the Bridges School, if he's not even in that school. [00:01:25] Speaker 06: Well, no, I respectfully disagree with that. [00:01:27] Speaker 06: I think that what needs to be mentioned in all this, the backstory, okay, is that last summer they had another IEP meeting and at that IEP, Bridges decided to take away the homebound services for KM. [00:01:41] Speaker 06: It's not in the record, but they decided to take the homebound services away. [00:01:45] Speaker 06: So my client was faced with, well, I'm not going to get any services at home. [00:01:50] Speaker 06: So what do I do? [00:01:51] Speaker 06: And she ended up finding a private school that would take him on a contingency fee basis that was opening a new school in the District of Columbia for starting this last fall. [00:02:01] Speaker 06: So faced with no services at home versus getting something from the private school, she chose the private school. [00:02:09] Speaker 06: And I think it's important to know that the relationship in these these kind of tuition reimbursement situations for private schools the there's an equitable consideration where the child is more likely to end up going back to that same public school because the public school has an incentive to offer the child of faith because if the parent asked acts unreasonably in [00:02:34] Speaker 06: you know, delaying or continuing private schools, she might get that tuition deducted or diminished. [00:02:42] Speaker 06: So there actually is an incentive for that public school to take the child back to offer the services he's entitled to under the IDEA. [00:02:50] Speaker 06: And if you want a case for that, Leggett versus District of Columbia from this circuit addresses that point. [00:02:57] Speaker 03: Is your position that it makes no difference that one of the defendants, that is the Bridges School, is not [00:03:04] Speaker 03: He's not enrolled there. [00:03:06] Speaker 03: Is that your position? [00:03:08] Speaker 03: That it makes no difference and hasn't been enrolled there for this whole year? [00:03:11] Speaker 06: Well, no, I think, I mean, principally, the District of Columbia is responsible for the transportation and supportive services that my child or my client's child is seeking in this case. [00:03:20] Speaker 03: All right, but you've got another defendant you've sued, Bridges. [00:03:25] Speaker 06: Well, I mean, I guess that I don't think any of this was hidden from Bridges. [00:03:31] Speaker 06: I mean, Bridges knew what was going on. [00:03:33] Speaker 03: Well, I'm going to ask Bridges the same question. [00:03:37] Speaker 03: Just go ahead with your argument. [00:03:39] Speaker 06: Well, I think, again, because it's capable of repetition while evading review. [00:03:43] Speaker 06: So in my mind, this entire time. [00:03:44] Speaker 07: What's the current status? [00:03:47] Speaker 06: He's enrolled with DCPS and the district continues to deny him transportation from his residence door to school and all the way back. [00:03:55] Speaker 07: And then the school is not bridges anymore. [00:03:58] Speaker 07: The relevant school would not be bridges. [00:03:59] Speaker 07: It's another school. [00:04:00] Speaker 07: It's another District of Columbia Public School. [00:04:02] Speaker 07: Correct. [00:04:02] Speaker 07: But there's the same issue about where and whether there would be a pickup at home. [00:04:07] Speaker 06: Correct. [00:04:07] Speaker 06: The state agency's obligation to transport the child all the way from his residence door to the school and back. [00:04:14] Speaker 07: Can I just ask, what's the status of the IEP that's the one that gives rise to the dispute? [00:04:21] Speaker 06: Uh, so, so I, so I P's only last for a year by their nature. [00:04:25] Speaker 06: And so, uh, you know, the, the, the failure to implement claim was only good for the 22, 23 school year that it was active. [00:04:36] Speaker 06: Um, but at the same time, the, the legal issue in this case is a broader ID a question of, [00:04:42] Speaker 06: What does transportation mean in the statute? [00:04:44] Speaker 06: What do supportive services mean? [00:04:46] Speaker 06: So this is the exact type of legal question that's right for capable of repetition while evading review. [00:04:52] Speaker 04: Does the new IEP have the same terms as the one before us? [00:04:56] Speaker 06: No, because in the wake of the district court decision, the LEA decided to take that service off. [00:05:01] Speaker 06: So because of the district court's action, they took that transportation away from my client. [00:05:07] Speaker 04: So the current IEP doesn't even provide for transportation services? [00:05:12] Speaker 06: It does just not the services between the bus and the services right. [00:05:19] Speaker 04: But. [00:05:22] Speaker 06: But again, because the legal question in this case is, I mean, the district court even said the judge said himself, this isn't failure to [00:05:31] Speaker 06: This is about what does this child require under the, what is this child entitled to under the IDA? [00:05:37] Speaker 06: What does transportation mean? [00:05:39] Speaker 06: In general, when a service gets put on an IEP, unless that IEP is challenged, the appropriateness of that service is presumed correct. [00:05:50] Speaker 06: But this district court said that's not the case. [00:05:52] Speaker 06: So the issue in this case is about the design of the IEP, about what appropriate services are, [00:05:59] Speaker 07: We take the case essentially on the idea that even though the current IEP doesn't include the disputed service, everybody is operating on a common understanding that if that disputed service were in fact within the compass of transportation under the IDEA, then it would be part of the IEP. [00:06:16] Speaker 07: So your view is there's still a concrete dispute about whether transportation encompasses the pickup at home and, in particular, the pickup at the door to the apartment. [00:06:27] Speaker 07: Because everybody thinks that even though the IEP currently doesn't have it, that's because that service was withheld by the district. [00:06:35] Speaker 07: If, as a matter of law, the IDEA did cover that kind of pickup within the compass of transportation, then the IEP would include it. [00:06:45] Speaker 07: Correct. [00:06:46] Speaker 07: Is that the way you're looking at it? [00:06:47] Speaker 06: Yes, and the IEP would be inappropriate currently. [00:06:50] Speaker 04: But I thought the way these suits arise is that a service is included in the IEP, and then if it's withheld, it gives rise to an action to challenge the withholding of that. [00:07:02] Speaker 04: But if there's no transportation included in the IEP, then what's the precise claim before? [00:07:10] Speaker 04: this court now. [00:07:11] Speaker 06: But I think the claim is the same. [00:07:13] Speaker 06: So quite frankly, I don't think it matters whether the service is on the IEP. [00:07:17] Speaker 06: IEPs are not contracts. [00:07:19] Speaker 06: IEPs are supposed to be the compilation of all of the services that the child needs under the statute. [00:07:28] Speaker 06: So quite frankly, an IEP doesn't have to exist in order for the child's rights [00:07:32] Speaker 06: to the services that the child needs under the IDEA to exist. [00:07:35] Speaker 06: The IEP is just the vehicle to memorialize the services. [00:07:39] Speaker 06: But if a service is not on an IEP, the child is still entitled to it if he's entitled to it under the IDEA. [00:07:45] Speaker 07: But not if there's an agreement. [00:07:47] Speaker 07: I mean, an IEP could be kind of an accommodation where everybody who's at the table gets together and says, we've got some disputes about the parameters of this, but why don't we all just come together and avoid all that by [00:08:00] Speaker 07: by collectively agreeing on an IEP that doesn't deal with this issue anymore and we're all okay with it. [00:08:06] Speaker 07: At that point, there wouldn't be a dispute any longer for us to. [00:08:10] Speaker 06: If my client waived or didn't think that this transportation was required anymore, then yes, she would waive her right to that under the IDA, but that's not the facts of this case. [00:08:19] Speaker 06: She's been insisting on this service since the pandemic ended, if I can be so brave to say that, and we were returning to in-person services. [00:08:31] Speaker 07: Can I ask you a question on the merits, then, just to go to the merits? [00:08:37] Speaker 07: So your view is that the transportation encompasses pickup at the door, at the door to the apartment. [00:08:46] Speaker 07: Yes. [00:08:47] Speaker 07: And if that's true, and let's just assume for these purposes that you're right about that. [00:08:52] Speaker 07: I just want to explore the implications of that. [00:08:54] Speaker 07: If that's true, would it mean that anyone in this situation [00:09:02] Speaker 07: where they had transportation services as part of an IEP would be entitled to pick up at the door, regardless of whether the parent is able to, on their own, assist the child to get to the parking lot of the curb. [00:09:22] Speaker 07: Because in this case, I understand that the factual predicate is that there's actually not a parent, at least for some days of the week, who's able to carry the child outside to the vehicle. [00:09:34] Speaker 07: And that's why there's a need to have somebody come to the front door and pick them up and carry the child. [00:09:39] Speaker 07: What I'm wondering is, suppose that this case is resolved in your favor. [00:09:45] Speaker 07: so that transportation services is construed to at least be capable of going to the door to the apartment. [00:09:52] Speaker 07: My question is, would that then mean that that's what transportation services means? [00:09:57] Speaker 07: So regardless of whether a parent is able to carry the child outside the door to the vehicle, now we'd have a reading of the statute that would say that the parent doesn't have to do that anymore because the school is obligated to do that. [00:10:12] Speaker 06: If the child's disability, if the unique needs of the child require transportation between the school bus and the door of the residence, then that service is required. [00:10:22] Speaker 06: So it wouldn't be required for all students with disabilities, because most students can translocate themselves between the residence and the school bus. [00:10:30] Speaker 07: Right. [00:10:31] Speaker 07: But it does put the onus then for that type of child who has that kind of disability, it puts the onus on the district to do it, regardless of the parent's ability to do it. [00:10:42] Speaker 07: Correct, correct. [00:10:45] Speaker 06: And I think that, again, I mean, all transportation convenience is parents. [00:10:50] Speaker 06: I think that an IDEA services in general convenience, parents, I mean, a parent could provide FAPE to their child. [00:10:57] Speaker 06: They could quit their jobs, they could homeschool. [00:11:01] Speaker 06: It's not a requirement other than school attendance laws in the district. [00:11:05] Speaker 07: Even with non-disabled children, school bus services, it's not as if everybody can't take advantage of a school bus, regardless of a parent's ability to themselves take a kid to school. [00:11:18] Speaker 07: And so in a way, the IDEA comes along and says that those kinds of services ought to be conformed in such a way that disabled children can get a benefit from transportation as well. [00:11:29] Speaker 06: With I guess the one caveat that in the district, there are no school bus services for non-disabled students. [00:11:34] Speaker 06: It's WMATA. [00:11:36] Speaker 06: It's the regular buses and the train. [00:11:39] Speaker 06: But otherwise, yes, I agree with the statement. [00:11:42] Speaker 06: And I do see that my time is up. [00:11:45] Speaker 06: But I think that particular to the district court's decision is that [00:11:52] Speaker 06: You know, we're not trying to seek an expansion of transportation. [00:11:57] Speaker 06: I mean, the ordinary and plain meaning of transportation is to move someone or something from one place to another. [00:12:01] Speaker 06: And the district court recognized that. [00:12:04] Speaker 06: But he thought that there was another narrower version. [00:12:07] Speaker 06: And that narrower version, unfortunately, clashes with other provisions of the act. [00:12:12] Speaker 06: And that means that he didn't do a whole text reading of the act. [00:12:17] Speaker 07: only the broader definition of transportation moving someone from one place to another uh gels with the rest of the act so let's assume that i um again just assume for arguments purposes that i'm on board with your understanding of transportation that it's taking someone from one place to another and here the one place is this home in the other places of the school so transportation in this particular context means taking someone from home to the school and the question becomes [00:12:44] Speaker 07: What does it mean to take somebody from the home? [00:12:47] Speaker 07: And would you think, for example, that if it's a situation in which the child, because of this layout of the home, needs help actually getting from point A to point B within the home, just to get to the front door, that word transportation could encompass an obligation on the part of the district to go inside the home, to carry the child from point A to point B inside the home, and then on out to a vehicle? [00:13:14] Speaker 06: So, no, I think that, first of all, my client's not asking for any services in the home, but going on the merits of it, or the hypothetical, I should say. [00:13:28] Speaker 06: No, I think that under Tetro and Gerda, if the Supreme Court was clear, [00:13:33] Speaker 06: that related services are designed for the child to reach and to remain in and exit school building. [00:13:38] Speaker 06: And I think that, you know, from the door of the residence to the school and then all the way back that that's reaching and that's exiting the school building. [00:13:48] Speaker 06: But when you're getting ready for school, when you're dressing [00:13:51] Speaker 06: of eating breakfast, whatever, to get ready for school, that's different in kind than reaching school. [00:13:57] Speaker 06: It's a precursor, perhaps, but it's different. [00:14:00] Speaker 06: It's not the same as reaching. [00:14:01] Speaker 06: So, I mean, I do want to add a caveat that I think if a child is in a homebound program, a residential program, then of course, related services are required in the home or the residence. [00:14:12] Speaker 06: But no, when a child is just living at home, like this child, and attends day school, no, I don't think any related services are required in the home. [00:14:21] Speaker 07: Right. [00:14:21] Speaker 07: So I'm assuming a situation in which the least restrictive environment is the school rather than the home. [00:14:26] Speaker 07: And so it's incumbent upon the district to help get the person to get help, help get the child to school. [00:14:32] Speaker 07: And then the question becomes in that situation, if it's, if it's necessary for the child to get to school, that someone actually come inside the home to help, then you would say, well, that's not encompassed by transportation because transportation stops at the residence door. [00:14:50] Speaker 06: Correct. [00:14:51] Speaker 06: I think the natural reading in the context of the IDA is it's the resident store to the school and all the way back and nothing larger. [00:15:01] Speaker 06: Additionally, I think it does need to be noted that the IDA does particularly talk about unique needs. [00:15:13] Speaker 06: And it says it all over the place. [00:15:15] Speaker 06: It says it in the purpose. [00:15:17] Speaker 06: And actually, in this particular provision, [00:15:20] Speaker 06: the 1413 G, the direct services provision. [00:15:24] Speaker 06: It says that when a state like the district decides that it's going to provide a regional or statewide transportation system, that that system is going to meet the needs of the children it serves. [00:15:33] Speaker 06: And because the district has decided to take on all the transportation from the residence store to the school and back, that they have to meet the needs of those students. [00:15:43] Speaker 06: It says so right in that particular section of the act. [00:15:48] Speaker 06: And I do want to say that we're not seeking to enlarge the meaning of transportation. [00:15:52] Speaker 06: I mean, the adjectival phrase is only going to modify transportation. [00:15:56] Speaker 06: I mean, there's other types of transportation. [00:15:58] Speaker 06: I mean, there's military transportation. [00:15:59] Speaker 06: I think the defendant brought up the crime of sentencing someone abroad from the past, or even transportation to a doctor's office or to some other maybe [00:16:09] Speaker 06: service in the community or in the community. [00:16:11] Speaker 06: So we're just looking for transportation, moving someone from one place to another between the home and the school and back and doing that in a way that's designed to meet the child's unique needs. [00:16:22] Speaker 06: And then I think it should also be mentioned that or not be lost that, you know, the IEP team got together [00:16:32] Speaker 06: And they looked at this child and they said, what are the unique needs of this child? [00:16:36] Speaker 06: Well, this child cannot translocate himself. [00:16:40] Speaker 06: between the door of the residence and the school bus. [00:16:42] Speaker 06: And quite frankly, it doesn't matter that there are stairs. [00:16:45] Speaker 06: For KN, he couldn't do it even if there was a flat road between the residence and the school bus. [00:16:50] Speaker 06: He's not able to operate his wheelchair, not able to wheel it himself. [00:16:55] Speaker 06: He has cognitive deficits that even if he could do those things physically, he might not even make it to the bus. [00:17:00] Speaker 06: He doesn't have the judgment that's required to do that. [00:17:04] Speaker 06: So I think, again, that at the heart of this case of the unique needs [00:17:10] Speaker 06: of this kid. [00:17:11] Speaker 06: And the IEP team did exactly as they're supposed to. [00:17:14] Speaker 06: And unfortunately, then the state said, no, we don't think that that's required and we're not going to do it. [00:17:22] Speaker 06: Even though their policy, when you look at their policy, it says that we're going to provide transportation from the residence to the school and back one round trip. [00:17:30] Speaker 06: And actually in the policy, it says we're going to use the address [00:17:34] Speaker 06: that you provide us when you verify residency in the district. [00:17:37] Speaker 06: And the address in the record is the apartment. [00:17:41] Speaker 06: It's not the apartment building. [00:17:44] Speaker 06: So I think with that, I've made my argument. [00:17:50] Speaker 07: Thank you, council. [00:17:52] Speaker 07: We'll give you a little bit of time for rebuttal. [00:17:54] Speaker 07: Thank you. [00:17:55] Speaker 07: And we'll hear from the district now. [00:18:04] Speaker 07: Mr. Gordon. [00:18:08] Speaker 05: Good morning, and may it please the court. [00:18:10] Speaker 05: Jeremy Gertin on behalf of the District of Columbia. [00:18:13] Speaker 05: I welcome the court's questions on any of the issues in this case, but I think it makes the most sense to start with Judge Henderson did on mootness. [00:18:20] Speaker 05: In our view, this case is moot as to bridges because the student is no longer enrolled there. [00:18:27] Speaker 05: And the only question really is whether the capable of repetition yet evading review exception [00:18:33] Speaker 05: applies for the injunctive relief that is sought here. [00:18:36] Speaker 05: And I think that is a ultimately factual question about whether there's a reasonable probability that the student will be re-enrolled in a public school, either a charter or DCPS. [00:18:48] Speaker 05: Is he not already? [00:18:49] Speaker 07: I thought we heard this morning that he's already re-enrolled in the district. [00:18:53] Speaker 05: So it's not entirely clear. [00:18:55] Speaker 05: We have been trying for the last few days to figure out his current enrollment status. [00:18:59] Speaker 05: We understand that they have submitted [00:19:00] Speaker 05: enrollment paperwork but he is not yet attending a DCPS school. [00:19:05] Speaker 05: Unfortunately it is spring break and all schools are closed so we have not been able to confirm that information. [00:19:11] Speaker 05: But I think the ultimate point is [00:19:15] Speaker 05: Whether it's DCPS or OSSE, it would follow OSSE's existing transportation policy. [00:19:20] Speaker 05: And if they represent that their intention is to re-enroll in a public school and not to move residences, we would come up to the same problems that we're encountering here. [00:19:31] Speaker 05: So we think that would satisfy, if the court is willing to accept their submission, that that's her intention and that her intention is to move residences. [00:19:39] Speaker 05: We would ultimately in a year or 2 be back here addressing the same legal question as to the district. [00:19:45] Speaker 05: I did want to say one thing about in response to Mister cyber to letter yesterday. [00:19:51] Speaker 05: I I our position is that compensatory education was abandoned at the district level. [00:19:58] Speaker 05: He represents that they could still seek some sort of compensatory education award for the prior school year. [00:20:07] Speaker 05: They sought that in front of the hearing officer. [00:20:10] Speaker 05: The hearing officer concluded that no. [00:20:12] Speaker 05: Under the virtual learning program, he was receiving a FAPE, and it declined to award compensatory education for the 13 days at that point that he'd been under that virtual learning program. [00:20:24] Speaker 05: And that's at J304 to 306. [00:20:27] Speaker 05: So they had the opportunity to appeal that to the district court and declined. [00:20:31] Speaker 05: So I don't think there's any award of compensatory education for that year that's on the table in this case or in any future case. [00:20:37] Speaker 05: So I think that takes bridges completely out of this case entirely. [00:20:42] Speaker 05: So unless the court has further questions on the mootness issue, I'm happy to turn to the merits. [00:20:50] Speaker 05: If the court reaches the merits, it should affirm the judgment below because the IDEA does not provide states or schools with clear notice that they must enter the home or apartment complex of a medically fragile student and carry that student up and down the stairs. [00:21:07] Speaker 05: And I think the best support for this really comes from Murphy, which says you need to provide states and schools with clear notice. [00:21:15] Speaker 05: And what is a reasonable administrator going to understand this word transportation to mean? [00:21:20] Speaker 05: And I was I was comforted to hear Mr. Seibert's concession that they would not ask the school to enter someone's home. [00:21:27] Speaker 05: That is directly contrary to what they said in the district court at page 732 of the JA, where they said, yes, if that's what the child needed, you would need to go all the way into their bedroom and get them out of bed, because our definition of transportation and supportive services has no limit other than the student's needs. [00:21:44] Speaker 05: So I think that they have acknowledged here that there is a reasonable limit on what transportation means. [00:21:50] Speaker 05: They're drawing it at the front door of the unit. [00:21:52] Speaker 05: I think Aussie reasonably drew it at the front door, the outer most of our residents. [00:21:56] Speaker 07: So you, you, you just, you started by saying that, um, there would be no obligation to go inside an apartment complex. [00:22:03] Speaker 07: That's right. [00:22:03] Speaker 07: So obviously if you have an apartment complex where the doors are all external, actually each unit has an external door. [00:22:10] Speaker 07: So there's a, there's an entry to an entire complex that consists of 20 buildings and the particular resident lives in the very back building. [00:22:17] Speaker 07: You're saying that the district could stop at the front at the street. [00:22:22] Speaker 07: at the front and not have to go through the internal routes. [00:22:28] Speaker 05: No, sorry. [00:22:29] Speaker 05: I apologize if I misspoke. [00:22:30] Speaker 05: Under OSSE's policy, and I think this is very clear, they will go to the external most door of a residential building. [00:22:37] Speaker 05: So I had been imagining when I said apartment complex, something similar to this, where all of the units have internal doors into an internal space. [00:22:46] Speaker 05: But yes, if it's something more akin to like a row house, where each unit's door faces the outside, they would go up to that unit's door, because that's the external most door of the building. [00:22:57] Speaker 05: And that's been their policy for many years. [00:22:59] Speaker 07: So if you go to the external door of a unit when it's outdoors, but won't go to the external door of a unit when it happens to be indoors, let's just take the outdoor scenario. [00:23:12] Speaker 07: If there's no stairs, then I take it that the district would have somebody go to the front door. [00:23:19] Speaker 07: And suppose they're in a wheelchair, the child's in a wheelchair. [00:23:22] Speaker 07: And then the representative would [00:23:25] Speaker 07: get that child and wheel them to the awaiting vehicle. [00:23:29] Speaker 05: Yes, under Aussie's policy, that's what they would do. [00:23:31] Speaker 05: And I think that's relatively common. [00:23:34] Speaker 07: But then if the child, for whatever reason, can't be kept in a wheelchair, say because of their stairs, then at that point, it's not that transportation doesn't cover going to the front door and taking them to the bus. [00:23:46] Speaker 07: Because you just said that if they're in the wheelchair the whole time and it's a pathway without stairs, it would be covered. [00:23:52] Speaker 07: So what then takes it out just because there happens to be stairs. [00:23:55] Speaker 05: So I think that there's there's two issues and your your question goes to only one of them, which is the stairs and if whether or not they would need to physically pick up the student and carry them. [00:24:07] Speaker 05: So that's one that I think that the word transportation doesn't extend to. [00:24:10] Speaker 05: And then the other one at issue in this case, but not in your hypothetical, would be entering into a residential building, either the lobby of an apartment or a unit. [00:24:18] Speaker 05: And that also we think is outside the definition of transportation. [00:24:22] Speaker 05: But just focusing on the carrying aspect, I don't think any reasonable administrator [00:24:27] Speaker 05: reading the idea and saying, well, we need to provide a transportation system for students with disabilities. [00:24:32] Speaker 05: That includes picking up physically with our arms a student who's medically fragile, has a lot of special needs. [00:24:40] Speaker 07: Even though it would encompass picking that student up at the exact same door, the exact same distance, and wheeling them. [00:24:47] Speaker 05: Yes. [00:24:48] Speaker 05: And if there's a way to navigate between an external. [00:24:51] Speaker 07: I mean, that's not the vehicle. [00:24:52] Speaker 07: I mean, your brief talks about. [00:24:55] Speaker 07: transportation as has to be in a vehicle. [00:24:58] Speaker 07: The wheelchair becomes one vehicle and then the van becomes another vehicle. [00:25:02] Speaker 05: So I don't think our brief was intended to say that there's nothing beyond a vehicle. [00:25:10] Speaker 05: I think that's the core of the definition is vehicle transportation. [00:25:13] Speaker 05: When we talk about Department of Transportation or school transportation, we're talking about using a vehicle. [00:25:19] Speaker 05: I think Aussie has gone a little bit beyond that and said we will escort the student from the external door. [00:25:24] Speaker 07: Getting them to the vehicle is part of the transportation because you're picking them up at the door and you're getting to the school. [00:25:30] Speaker 07: And that might entail [00:25:32] Speaker 07: wheeling the wheelchair from the front door to the vehicle and raising it and making sure the child's safely onboarded to the vehicle. [00:25:39] Speaker 05: Yes, under OSSE's policy, yes. [00:25:41] Speaker 05: I think there are other school districts that might draw a line at the curb or at the bus stop, and I don't know whether that would be [00:25:48] Speaker 05: whether that would be going as far as the idea requires, but Aussie has established a policy that gets you to the external most or a building. [00:25:56] Speaker 07: You think it would be a reasonable understanding of the idea that all the district has to do is go to us a bus stop. [00:26:05] Speaker 05: So there are certainly schools that do do that. [00:26:07] Speaker 05: The district doesn't have bus stops because the only buses they operate are through Aussie and so they'll go to the [00:26:13] Speaker 05: you know, closest curb or closest parking spot. [00:26:16] Speaker 05: So it's really not an issue here. [00:26:17] Speaker 05: I don't think the court needs to address kind of that. [00:26:19] Speaker 07: But I'm just asking for the district's position on that. [00:26:21] Speaker 07: So just to test out your theory. [00:26:24] Speaker 07: So if the bus stop is a mile away, then under that understanding, it would be the parent's obligation to somehow get their child to the bus stop. [00:26:34] Speaker 07: And that would be all the transportation [00:26:37] Speaker 05: I think it would be a much closer question. [00:26:39] Speaker 05: And I think the distance between the residence and the bus stop would be a factor the court would consider. [00:26:45] Speaker 05: I don't think any court has opined on that question. [00:26:49] Speaker 05: And if the bus stop is really inaccessible to the family, [00:26:54] Speaker 05: miles away, you know, then I think you have a question of are you really providing transportation at that point. [00:27:00] Speaker 05: So I think there are limits. [00:27:01] Speaker 05: And again, I think this all goes back to Murphy, which we think directs courts and administrators to use their common sense about what is necessary for the student. [00:27:11] Speaker 05: And to draw reasonable lines. [00:27:13] Speaker 05: I think, you know, other lines that courts have recognized include requests to transport a student outside the school district because of a custody arrangement. [00:27:23] Speaker 05: And the Eighth Circuit and Osseo said, no, we're not going to require schools to do that. [00:27:28] Speaker 05: There's other cases where parents have asked, we want them to go to a different address because on such and such days, they're with this parent. [00:27:37] Speaker 05: And the court said, no, you can just provide a neutral system. [00:27:41] Speaker 04: Mr. Burton, I mean, how many of these questions really relate to the meaning of transportation versus a determination about what is required to assist a student to benefit from special education? [00:27:57] Speaker 04: So I think if we were to determine that transportation included the act of something like carrying, would there still be [00:28:06] Speaker 04: you know, a further determination that would be necessary about whether that was required for the student to benefit from education. [00:28:13] Speaker 05: Yes, I think there would be. [00:28:15] Speaker 05: And I'm not sure that's really been explored in this case, mostly because of the student's unique needs here. [00:28:21] Speaker 05: He wouldn't be able to navigate himself. [00:28:23] Speaker 05: So I think we've focused on the definition of transportation, which we don't think [00:28:29] Speaker 05: I mean, I think even Mr. Cybert's argument of knowledge has reasonable limits. [00:28:33] Speaker 05: You have to draw a line somewhere. [00:28:34] Speaker 05: And I think if you just do that, what does the student need to navigate? [00:28:40] Speaker 05: Then you're all the way into the student's bedroom on the second floor. [00:28:43] Speaker 05: And you're requiring schools to enter people's homes, get them out of bed. [00:28:47] Speaker 05: And I don't think any reasonable administrator would think that's where the line is. [00:28:52] Speaker 05: you know, done a lot of work to consider where a reasonable line would be. [00:28:56] Speaker 05: And it said, outermost store of the residence. [00:28:59] Speaker 05: And it said, we're not going to pick up and carry students. [00:29:01] Speaker 05: And we're not going to do something we think is unsafe. [00:29:03] Speaker 07: So you're not disputing that the need part of it is met. [00:29:05] Speaker 07: You're just disputing whether transportation is satisfied. [00:29:08] Speaker 07: That's right. [00:29:09] Speaker 04: And I think even if we were to determine that the act of carrying is transportation, we wouldn't need to remand for determination about what was required. [00:29:21] Speaker 04: To assist the student. [00:29:23] Speaker 05: I think you would need to determine that the act of carrying is transportation. [00:29:26] Speaker 05: I think you would need to determine that transportation extends all the way to the unit door. [00:29:31] Speaker 05: And then I think you'd be presented with the question under 1413 G of whether the district has reasonably defined the scope of its transportation services as a related service provider. [00:29:43] Speaker 05: And in our case, I don't think even Ms. [00:29:46] Speaker 05: Pirnawell's brief contests that the district has drawn a reasonable policy that defines Aussie services. [00:29:53] Speaker 05: And so in that event, if the IDEA requires this service, then it would fall back on whoever the LEA is. [00:29:59] Speaker 05: At the time we're talking about, it would be Bridges. [00:30:03] Speaker 05: Presumably in the future, it would be DCPS. [00:30:05] Speaker 05: So even under that scenario, the district, the Aussie would not be responsible for that. [00:30:12] Speaker 07: That's just a question of as between the district and a school. [00:30:15] Speaker 05: Right. [00:30:16] Speaker 07: It's not a question as to whether the need part of the. [00:30:19] Speaker 04: So are you conceding the need part is met. [00:30:22] Speaker 05: I think given his needs, I don't think there's ever been any dispute about his severe. [00:30:27] Speaker 04: So in this particular context? [00:30:29] Speaker 05: In this particular context. [00:30:30] Speaker 05: I'm certainly not conceding that any time a parent asks for something that there's no inquiry into the needs. [00:30:34] Speaker 05: But I think with this particular student, [00:30:37] Speaker 05: There's extensive evidence that's never been contested about his severe cerebral palsy and other needs that would, I think, demonstrate that he would not be able to navigate himself. [00:30:51] Speaker 05: So yes, for this case, I don't think that would be necessary. [00:30:53] Speaker 05: But I do think it would invoke the 1413 G question. [00:30:58] Speaker 05: And I think just one other point on what we're thinking about when we look at transportation, we point to a number of other sources that are consistent. [00:31:06] Speaker 05: We think our definition, including the ADA, when it talks about transportation systems, and none of those sources talk about lifting and carrying or entering someone's home. [00:31:18] Speaker 05: And I think that those are reasonable lines that Aussie has drawn, and we would ask the court to affirm that judgment. [00:31:24] Speaker 05: Unless the court has any further questions. [00:31:28] Speaker 05: Thank you. [00:31:28] Speaker 05: Thank you for your argument. [00:31:44] Speaker 02: Good morning. [00:31:45] Speaker 02: Lauren Baum on behalf of Bridges may it please the court [00:31:48] Speaker 02: We agree with the district that the case as it relates to bridges is now moved. [00:31:53] Speaker 02: I apologize. [00:31:54] Speaker 02: I was not aware until last Friday that the student was no longer enrolled at bridges. [00:31:59] Speaker 02: We had received bridges have received notice in September, late September that the student was enrolled in a private school when we looked into the private school. [00:32:12] Speaker 02: It seemed like the private school was not yet operating in the District of Columbia. [00:32:16] Speaker 02: It was a New York-based school, so it was unclear whether the student was actually going to be attending there, whether this was some kind of future enrollment. [00:32:24] Speaker 02: So I reached out to the Parents' Council asking, you know, what does this mean? [00:32:30] Speaker 02: Is the student attending this school? [00:32:31] Speaker 02: Did not receive a response. [00:32:34] Speaker 02: I know that Bridges attempted to reach out to the parent. [00:32:37] Speaker 02: I'm not sure what response they got. [00:32:39] Speaker 02: At some point, they did unenroll the student, and I just was not made aware of that fact. [00:32:45] Speaker 02: So I apologize for that. [00:32:48] Speaker 02: But as it stands, there's no dispute that Bridges is no longer the student's LEA and therefore no longer has any role in his education. [00:32:56] Speaker 02: And so as a result, there's no effectual relief that the court could grant with respect to Bridges. [00:33:03] Speaker 02: and therefore we believe the claim as to Bridges is moot. [00:33:08] Speaker 02: When Bridges was the LEA, it is Bridges' position that it was in compliance with the law as it relates to transportation. [00:33:16] Speaker 02: As you've heard, the District of Columbia is uniquely set up with respect to special education transportation. [00:33:23] Speaker 02: The State Education Agency has elected to assume responsibility for that service pursuant to 1413G. [00:33:33] Speaker 02: And as such, the state education agency is responsible for implementing that service if it is properly documented on the IEP. [00:33:42] Speaker 02: Mr. Seibert himself admitted just a few moments ago that the IEP team did exactly as it was supposed to do, which is review the student's needs, document his need for transportation and related supports on the IEP, and submit that paperwork to OSSE for implementation. [00:34:01] Speaker 02: At that point, Bridge's obligation as it relates to transportation is complete. [00:34:08] Speaker 02: While the district certainly does have some discretion as to how it provides transportation, that policy and those decisions cannot violate the IDEA or result in a denial of FAPE. [00:34:19] Speaker 02: If there is an exception that needs to be made to that policy as a matter of law, then it is our submission that the district must make that exception. [00:34:28] Speaker 02: It's also our position that the district cannot abdicate its responsibility once it is assumed. [00:34:33] Speaker 02: So nothing in 1413 G preserves a role for the school once the state decides to provide the service. [00:34:41] Speaker 02: Similarly, nothing in Aussie's transportation policy preserves a role for the school in implementing transportation, one that properly documents the need and submits that information to Aussie. [00:34:52] Speaker 02: So we believe it is clear that bridges is not liable in this case. [00:34:57] Speaker 07: Thank you, counsel. [00:34:58] Speaker 02: Thank you. [00:35:02] Speaker 07: Cyber will give you two minutes for a rebuttal. [00:35:14] Speaker 06: All right. [00:35:14] Speaker 06: Well, to start with the last point. [00:35:17] Speaker 06: Uh, so we agree with bridges that if you look at 1413 G, uh, that, uh, yes, DC does have some discretion. [00:35:25] Speaker 06: The manner it provides transportation services. [00:35:27] Speaker 06: The next sentence or the last sentence in this section says that it still has to be provided in conformity with the rest of the subchapter, which is sections 1411 to 1419 of the IDEA. [00:35:39] Speaker 06: And that includes the requirement to provide a free, appropriate public education, includes the requirement to educate the child in the least restrictive environment with disabled and non-disabled peers. [00:35:48] Speaker 06: So they have some discretion, but it still has to meet those minimum requirements. [00:35:54] Speaker 06: Next. [00:35:56] Speaker 06: I think that the district brought up something about the home being inaccessible. [00:36:09] Speaker 06: And I think it's important to note that there's no inaccessibility exception in the IDEA. [00:36:14] Speaker 06: The district is trying to engraft that language into the IDEA. [00:36:18] Speaker 06: I actually think it's the exact opposite. [00:36:20] Speaker 06: When you look at, I believe it's 1412, it says, Congress said in exchange for federal funds states [00:36:26] Speaker 06: you're going to provide a free public education to all students within your jurisdiction. [00:36:31] Speaker 06: And the state understood that its jurisdiction is going to be the geographical territory of its state. [00:36:37] Speaker 06: So if a student lives on an island in the state, if the student lives on a mountain in the state, it doesn't matter. [00:36:41] Speaker 06: The state understood that it was going to educate all these students within the geographical boundary. [00:36:48] Speaker 06: I think that Mr. Gertin brought up comp ed and I do want to be clear that we received an award of comp ed at the administrative hearing. [00:36:56] Speaker 06: And it's important to remember that these claims have to go through an administrative exhaustion before they can come to the district court. [00:37:01] Speaker 06: So the reason that we didn't bring any comp ed for the latter half of the 2022-23 school year is because that claim wasn't exhausted yet. [00:37:09] Speaker 06: They don't have to go back through the administrative procedure first. [00:37:12] Speaker 06: Um, additionally, uh, I think, uh, you know, going back to his enrollment in DCPs now, uh, this child has the right to attend a DCPS school. [00:37:23] Speaker 06: So even if it is sort of still in the paperwork process, it's imminent that he's going to be enrolled in DCPS. [00:37:30] Speaker 06: It's, it's not a question of whether they can't deny him, uh, in education. [00:37:34] Speaker 06: He's entitled to it in the district. [00:37:36] Speaker 06: So lastly, I think, uh, I just want to close with what we seek in this case, which is, uh, Ms. [00:37:41] Speaker 06: Pierre is here. [00:37:42] Speaker 06: for you to order the district to transport Can, her son, between the residence door of her apartment to the school bus and back so he can attend school, receive an appropriate education with his peers. [00:37:56] Speaker 07: Thank you, council. [00:37:57] Speaker 07: Thank you all, council. [00:37:58] Speaker 07: We'll take this case under submission.