[00:01:02] Speaker 02:
So, what different

[00:01:44] Speaker 00:
that was that the incident that was under question occurred within a 10-minute window that moments before

[00:02:12] Speaker 00:
her, hits it directly to Ms.

[00:02:14] Speaker 00:
Hale, don't follow me.

[00:03:10] Speaker 00:
come up with a different determination.

[00:03:13] Speaker 03:
Look, counsel, I guess I have a question that follows on with Judge Graber's question, and that is, even if we agree that there was an error at the team stage when the manifestation determination was made, and that not everybody sitting in that room had all the information that was, that sort of served as the basis for the decision that they made in that room that day, following that they had a full

[00:03:43] Speaker 03:
cross-examination happened from the—of the school psychologist that you're talking about and all the other witnesses.

[00:03:50] Speaker 03:
And so how—and the statement that you're referencing that the psychologist maybe would have made a different decision had he understood that the child was escalated, he made that in the context of that hearing when all of the statements were fully aired out.

[00:04:08] Speaker 03:
So I'm trying to figure out what difference does it

[00:04:29] Speaker 00:
benefit of having revealed all of the witness statements.

[00:04:34] Speaker 00:
So I don't think it's a correct point of view to look at.

[00:04:39] Speaker 03:
That might be true, but the ALJ who made the decision

[00:05:28] Speaker 03:
I'm not sure what to do with that because if the point of these requirements is to make sure that a decision gets made based on all the relevant information, it seems to me that's the point of making sure that the full team has access to all the information when they're making their decision.

[00:05:44] Speaker 03:
I think you're correct, based on this record, that that didn't happen.

[00:05:48] Speaker 03:
That certainly mom didn't have access

[00:06:00] Speaker 03:
procedural problem here.

[00:06:02] Speaker 03:
But if the point of all of that is to make sure that we have a fully informed decision based on all the relevant information and you get to the ALJ stage and there is no procedural error in terms of all of the information and relevant evidence being aired out at that point and everybody having an opportunity to challenge that evidence to cross-examine the parents had a chance to present whatever additional information they wanted and they did, then what do we do with the fact that

[00:06:27] Speaker 03:
We now have a decision that is based on all the information related to this incident and this child's history and disciplinary, you know, prior incidents.

[00:06:56] Speaker 02:
And that is, what relief is available?

[00:07:00] Speaker 02:
This incident happened two years ago, and by now, just by the passage of time, there will have been presumably a new IEP for this year.

[00:08:28] Speaker 02:
Yeah.

[00:09:17] Speaker 02:
passes out of the

[00:09:56] Speaker 00:
and it's doable.

[00:09:58] Speaker 00:
A lot of cases are based upon having a district court or an administrative law judge determine what would be appropriate relief.

[00:10:07] Speaker 00:
The question you're asking is what, you know, can I tell you what the appropriate relief is right now?

[00:10:12] Speaker 00:
No.

[00:10:13] Speaker 00:
Is there appropriate relief because of his time out of school that he should have been in school but for the manifestation determination

[00:11:18] Speaker 00:
analyzing the information that was in the witness statements, she held the student to a higher standard of pleading than she held the district, because the district nowhere in its response to the complaint

[00:11:48] Speaker 00:
the OAH judge or the district court judge to justify their position.

[00:11:53] Speaker 00:
For example, the OAH decision, by and large, was premised upon a finding that the student was using functional communication, that he had time to make a choice, that he intentionally waited until Ms.

[00:12:06] Speaker 00:
Hale was alone, that he basically planned it out, that it wasn't impulsive.

[00:12:11] Speaker 00:
None of that

[00:12:25] Speaker 00:
that that was going to be raised as an issue for the due process hearing.

[00:12:31] Speaker 01:
Counsel, if I can interject, it's Judge Gould.

[00:12:36] Speaker 01:
Counsel, I'd like to ask you to address one point that hasn't been mentioned.

[00:12:44] Speaker 01:
I don't know if it played a part in the manifest, the manifestation, determination

[00:12:53] Speaker 01:
team at all, but when I reviewed this, I noticed that CD had threatened a teacher with shooting a teacher, and they had also threatened to blow up the school building.

[00:13:12] Speaker 01:
And I wonder, were those issues

[00:13:30] Speaker 00:
statements that when the child is uh acts out that way uses that type of language when he's frustrated this is a child that because of his disabilities it's very easily frustrated when he is frustrated he then takes that leap into the you know i'm not justifying what he said that he

[00:13:59] Speaker ?:
a teacher, not in its hail, a different teacher in the neck with a piece of wood.

[00:14:04] Speaker 00:
His one-on-one aid said that he gets frustrated, and this is the type of stuff that he does.

[00:14:12] Speaker 00:
And I want to say, and hopefully I can reserve 30 or 40 seconds, I want to say this is a ninth grade kid who had a full-time one-on-one aid

[00:14:45] Speaker 00:
that there were going to be a whole bunch of other issues raised.

[00:14:49] Speaker 00:
The judges went with that, and if I can reserve my last 30 seconds, I would certainly appreciate it.

[00:14:55] Speaker 00:
Yeah, we'll give you two minutes, very well.

[00:14:56] Speaker 00:
Thank you.

[00:14:57] Speaker 03:
Thanks.

[00:14:59] Speaker 03:
Ms.

[00:15:00] Speaker 03:
Garcia.

[00:15:06] Speaker 04:
Thank you, and good morning, Your Honors.

[00:15:10] Speaker 04:
I am here on behalf of Appellee at Tuscany Road Unified School District.

[00:15:14] Speaker 04:
Although Appellant's counsel has focused his brief and argument on what he has mistakenly characterized as witness statements, this case is simply an appeal of a thorough and careful 32 page decision from an administrative law judge with special expertise in special education law.

[00:15:35] Speaker 04:
After a seven day hearing, testimony from 12 witnesses, consideration of all evidence,

[00:15:45] Speaker 04:
ability and the relevance of that evidence, including what a felon's counsel has characterized as these witness statements.

[00:15:55] Speaker 04:
The ALJ carefully considered and weighed all of that information and decided that substantively the manifestation determination was correct.

[00:16:06] Speaker 03:
So I want to ask you about some of the questions I was asking your friend across the aisle.

[00:16:10] Speaker 03:
Yes.

[00:16:10] Speaker 03:
I mean, the statute makes clear that this decision is supposed to be a

[00:16:17] Speaker 03:
comes in at review and not at first instance.

[00:16:20] Speaker 03:
So assume for my question, purposes of my question, that it wasn't done properly at the team level because not everybody had all the information.

[00:16:28] Speaker 03:
I understand you're probably not going to agree with that.

[00:16:30] Speaker 03:
But again, assume that's true.

[00:16:31] Speaker 03:
Assume that we decide that.

[00:16:32] Speaker 03:
What do we do with that?

[00:16:35] Speaker 04:
Well, I would like to address why I think that's not an appropriate assumption.

[00:16:40] Speaker 04:
But I will start with your question, which is a procedural violation even if

[00:16:53] Speaker 04:
So the ALJ made a decision based on all of the information available, including these statements, that the substantive determination was appropriate.

[00:17:02] Speaker 04:
So even if the ALJ had reached the procedural issue that was not pled by appellant, there still would have had to be a determination that that procedural issue caused a substantive harm.

[00:17:14] Speaker 04:
And there was no substantive harm because the substantive decision was found to be appropriate.

[00:17:18] Speaker 04:
Now all of that being said.

[00:17:23] Speaker 04:
I'll give you that.

[00:17:34] Speaker 04:
20 USC 1415 F3E2.

[00:17:40] Speaker 04:
In matters alleging a procedural violation, a hearing officer may find that a child did not receive FAPE only if the procedural inadequacies resulted in that substantive harm.

[00:17:52] Speaker 04:
there was no procedural violation, pled.

[00:17:54] Speaker 04:
Those issues were clarified on the first day of hearing.

[00:17:57] Speaker 04:
The ALJ went so far as to ask about the sections of the statute that were being pled.

[00:18:04] Speaker 04:
The ALJ clarified that we were talking about subsections one and subsections two related to the manifestation determination meeting, which are the substantive elements of the manifestation determination meeting.

[00:18:16] Speaker 04:
The consideration of all relevant information

[00:18:27] Speaker 04:
was not reached.

[00:18:29] Speaker 04:
But if it had been reached, there would still have to be proven here an error that affected the child.

[00:18:36] Speaker 04:
Now all of that being said, it is significant to understand there was evidence presented to the ALJ, specifically testimony from the principal in this case, who as an administrator of the school district did review these attorney-client privileged statements that were created at the direction of insurance

[00:18:57] Speaker 04:
The principal, as an administrator of the district, did review those thoroughly prior to the manifestation determination and did make three separate phone calls to the parent to discuss all of the information.

[00:19:09] Speaker 04:
Those phone calls were lengthy.

[00:19:12] Speaker 04:
The principal testified that he provided all of the information and the ALJ found him to be a credible witness.

[00:19:20] Speaker 04:
Although the parent testified she didn't know that information, she did testify that when she came to the manifestation determination meeting, she was provided clarity for the first time about what happened during the incident.

[00:19:33] Speaker 04:
So there is evidence in the record that the information in these statements was available to and provided to the team for consideration prior to the meeting.

[00:20:08] Speaker 04:
over 20 school days, 10 of those happened before the manifestation determination meeting.

[00:20:14] Speaker 04:
So if a decision had been made differently at that manifestation determination meeting, it would not have reversed 22 days of school.

[00:20:20] Speaker 04:
It would have reversed the last 12 days of the school year, some of which were minimum days.

[00:20:26] Speaker 04:
And during those 12 days, he was receiving services from the school district.

[00:20:30] Speaker 04:
to make progress on both his general ed curriculum and his IEP goals and services during the 12 days that he was out.

[00:20:37] Speaker 04:
So there was evidence presented at the hearing to the ALJ that in fact he did not suffer educational harm during the 12 days that he was out, that his ability to ask for a review of that behavior intervention plan exists independent of this case.

[00:21:14] Speaker 04:
has happened since then.

[00:21:15] Speaker 04:
Revision of that plan has happened since then.

[00:21:18] Speaker 04:
Significantly, the student has been back in school since then.

[00:21:21] Speaker 04:
The student was returned to his placement before this case was even initiated.

[00:21:26] Speaker 04:
The district rescinded the expulsion recommendation before litigation was even started.

[00:21:32] Speaker 04:
This school district does not

[00:21:38] Speaker 04:
be served even if he had been expelled he would have remained their responsibility to provide faith and they knew that and they were eager to do that and the director of special education testified also deemed a credible witness by this ALJ that they would have continued to serve him appropriately no matter what that they served him during those 12 days he was out of school and that they happily

[00:22:03] Speaker 04:
returned him to his placement and rescinded the expulsion recommendation after the teacher requested a transfer.

[00:22:11] Speaker 04:
It was clear based on this behavior that the student was targeting this one particular teacher.

[00:22:17] Speaker 04:
She requested a transfer to a different school.

[00:22:20] Speaker 04:
That eliminated the concern for the district and they immediately returned the student to placement.

[00:22:32] Speaker 04:
was different.

[00:22:33] Speaker 04:
In reality, the only thing that would change is an award of attorney's fees and public money to a balance counsel.

[00:22:42] Speaker 03:
Just to be clear, my understanding of the record, and I think this is true based on I think your response to Judge Graber's question, the only thing that the parents claim that they didn't, or the mom, she was the only one in the meeting, claim she didn't get was the witness didn't

[00:23:02] Speaker 04:
she claimed she didn't get was the written incident statements that were created at the direction of Insurance Council for the purposes of risk analysis by the district.

[00:23:12] Speaker 03:
Because an assault was happening.

[00:23:13] Speaker 03:
Were those statements ever given to her?

[00:23:16] Speaker 04:
They were provided before the administrative hearing, but they were summarized verbally for her by the principal by phone call before the manifestation determination meeting.

[00:23:26] Speaker 04:
They were redacted for attorney crime privilege and given to her before the administrative hearing.

[00:23:44] Speaker 01:
family have the expense of paying for is being in a different placement program of some sort.

[00:23:55] Speaker 04:
They did not.

[00:23:57] Speaker 04:
When students with IEPs are removed from school for more than 10 days in a school year, they are provided with services by the school district.

[00:24:06] Speaker 04:
that are designed to individually allow them to continue to make progress in both the general curriculum and their program.

[00:24:14] Speaker 04:
So he was provided services during the time that he was out.

[00:24:22] Speaker 04:
on an educational opportunity as a result of the manifestation determination.

[00:24:27] Speaker 04:
And while we continue to believe that that manifestation determination was substantively appropriate and that the ALJ's decision does deserve the deference that the law provides, we don't think that a different decision at that manifestation determination would have changed anything prospectively for this student.

[00:24:52] Speaker 01:
Thank you, Council.

[00:24:53] Speaker 04:
I also would like to address the statements about him threatening to shoot the principal and stab another staff member.

[00:25:03] Speaker 04:
It is significant to understand that during the course of this day there were multiple sets of behaviors that happened.

[00:25:11] Speaker 04:
There were behaviors where he was escalated and agitated, and there were behaviors where he was not.

[00:25:18] Speaker 04:
The threat to blow up the school, the threat to shoot the principal,

[00:25:23] Speaker 04:
not the basis for any disciplinary action.

[00:25:27] Speaker 04:
It was the school district's belief in reviewing the facts that day that those people

[00:25:38] Speaker 04:
where they believe the behavior is a result of disability.

[00:25:41] Speaker 04:
So they did not even pursue discipline on the basis of those statements.

[00:25:45] Speaker 04:
Discipline was only pursued on the basis of the assaults.

[00:25:49] Speaker 04:
The two assaults on the teacher that happened the only two times during that day that he ended up alone with her without another adult present and chose to assault her in those moments.

[00:26:04] Speaker 04:
The two assaults during which he did use functional

[00:26:08] Speaker 04:
was discussed at the Manifestation Determination Meeting, that he did say in between two times pinning her up against a wall in a hallway, let's go, let's do this, that he did immediately after that walk down the hallway

[00:26:25] Speaker 04:
the door open for a different staff member.

[00:26:28] Speaker 04:
He was not agitated.

[00:26:29] Speaker 04:
He was not frustrated in a way that was resulting from his disability in that moment.

[00:26:35] Speaker 04:
And the school psychologist, who the ALJ deemed especially credible, was able to distinguish between those two things.

[00:26:43] Speaker 04:
Appellate's counsel has mentioned several times the testimony of the school psychologist saying that if he had

[00:26:54] Speaker 04:
he would have reversed his decision.

[00:26:57] Speaker 04:
That statement that Appellant's counsel is citing is a partial statement taken out of context.

[00:27:06] Speaker 04:
The end of that statement, the end of the testimony in the record from the school psychologist was that if he had seen that evidence, he would have changed his decision, but that that wasn't in the evidence.

[00:27:20] Speaker 04:
That he had reviewed these incident statements,

[00:27:23] Speaker 04:
and that he didn't in those incident statements see anything that concluded during the assault the student was agitated in a way that meant it was resulting from his disability.

[00:27:38] Speaker 04:
We're talking about individuals who spend their lives working with students with disabilities, who are committed to serving them appropriately, who are not eager

[00:27:51] Speaker 04:
remove those students from their schools.

[00:27:55] Speaker 04:
This is not how anybody wanted this to end up.

[00:27:58] Speaker 04:
But just because he has disabilities that result in elevated behaviors, that does not mean that every behavior that occurs is something that has to be overlooked because of his disability.

[00:28:14] Speaker 04:
We have to be able to distinguish between the two.

[00:28:17] Speaker 04:
And the school psychologist spent significant time at the manifestation determination meeting

[00:28:21] Speaker 04:
Reviewing the report that he had put together after reviewing a full chronology of what had happened after talking to all of the people involved And yes, the ALJ said that students statement was hearsay, but she also said that students written statement Contradicted the direct reliable evidence that she received at hearing It isn't that she didn't really

[00:28:49] Speaker 04:
It was contradicted by the direct evidence of other people who were there.

[00:28:54] Speaker 04:
Multiple other people who were there that day, his statement contradicted what they said.

[00:29:00] Speaker 04:
She deemed it not reliable.

[00:29:03] Speaker 04:
So even if that statement had been available to the manifestation team, it still would have been clear that it was inconsistent with the remainder of the evidence.

[00:29:28] Speaker 04:
I will also say just that if there is a determination that there has been a procedural violation or that compensatory education would have been warranted, then the law requires there to be more than a de minimis effect.

[00:29:48] Speaker 04:
There has to be a material deprivation in order to warrant compensatory education.

[00:29:55] Speaker 04:
And the record before you does not include evidence of any material deprivation.

[00:30:00] Speaker 04:
We are talking about a total of 12 days, the end of the school year, several minimum days where end of school year activities were happening, and during a time period in which the student was receiving services.

[00:30:28] Speaker 00:
therapy from a psychologist or a therapist because of the impact that this had on him that goes to the relief or compensatory education that would be available to him.

[00:30:39] Speaker 00:
His mother paid out of pocket for tutoring, academic tutoring, and speech language pathology services at the administrative hearing.

[00:30:47] Speaker 00:
I tried to get into what was provided for this

[00:31:03] Speaker 00:
This is a situation where we look at what are the limits?

[00:31:32] Speaker 00:
beyond what's being said at the IEP meeting.

[00:31:35] Speaker 00:
And that's important because the Ninth Circuit, in the case of Adams and in a U.S.

[00:31:40] Speaker 00:
District Court case, says that you use the snapshot rule.

[00:31:43] Speaker 00:
You look at what the administrative law judge is supposed to look at what was considered at the IEP team meeting, not go off and delve into all these other additional issues.

[00:31:56] Speaker 00:
The hearing officer didn't grapple with Moenco

[00:32:14] Speaker 00:
escalated.

[00:32:16] Speaker 00:
The mother at the IEP meeting, and this is in the transcript, that's part of the record.

[00:32:24] Speaker 00:
She said, I've been in three different versions.

[00:32:28] Speaker 00:
She now had three different versions of what went on.

[00:32:31] Speaker 00:
She left that meeting not knowing what was going on.

[00:32:33] Speaker 03:
Council, we understand the record, and you're out of time.

[00:32:36] Speaker 03:
Judge Gold, do you have any other questions?

[00:32:38] Speaker 01:
I have no further questions.

[00:32:40] Speaker 03:
Thank you.

[00:32:41] Speaker 01:
Thank you very much.

[00:32:43] Speaker 03:
I thank you, Council.

[00:32:49] Speaker 03:
56563 is now submitted and we are