[00:00:00] Speaker 04:
Morning and may it please the court, Ian Crosby from Sussman Godfrey for plaintiff class, with me Alex Hagel from Cedar Law at counsel's table and the mother of class plaintiff, Andy, is in the courtroom.

[00:00:13] Speaker 04:
I'd like to reserve five minutes for rebuttal today and I'm going to spend most of my time on the merits because I think the issues tend to fall in line if the likelihood of success is established in this case.

[00:00:24] Speaker 04:
So first I'd like to discuss why the literal text of this court's ERK decision requires reversing denial of the preliminary injunction in this case.

[00:00:33] Speaker 04:
Then I'd like to talk a little bit why the reasons underlying that decision also compel that result.

[00:00:38] Speaker 04:
And explain how that result and how ERK is consistent with the second and first circuit cases, which also deal with this issue.

[00:00:47] Speaker 02:
May I ask, before you get into the merits, can I ask about mootness?

[00:00:51] Speaker 02:
So you have two named plaintiffs.

[00:00:53] Speaker 02:
Yes, sir.

[00:00:54] Speaker 02:
And ND has now turned 22.

[00:00:56] Speaker 02:
Is that right?

[00:00:58] Speaker 02:
Correct.

[00:00:58] Speaker 02:
And EA, I believe, will turn 22 this summer.

[00:01:02] Speaker 02:
In July, yes, your honor.

[00:01:03] Speaker 02:
In July, OK.

[00:01:06] Speaker 02:
As of the date of the district court's order, I believe EA had earned but not received his diploma.

[00:01:15] Speaker 04:
It was not a regular high school diploma.

[00:01:17] Speaker 04:
He contends and he had initiated an administrative proceeding to challenge the change in placement based on that issuance of that diploma and a stay put was in place.

[00:01:28] Speaker 04:
So the only reason that he exited on August 31st of 2023 was because of his age.

[00:01:34] Speaker 02:
And what has, so at the time of the district court order, the staple was in place and the due process proceeding was going on.

[00:01:43] Speaker 02:
What has happened since then?

[00:01:45] Speaker 04:
So he has exited and I believe that his parents are in the process of finding permanent placements for him.

[00:01:53] Speaker 04:
I don't know that he's landed in a permanent situation.

[00:01:57] Speaker 02:
But as far as the state is concerned, nothing more is happening with him because he's now 21.

[00:02:02] Speaker 02:
Is that right?

[00:02:04] Speaker 04:
So I believe that the due process wound up essentially settling with releasing the school district for past any claims, the school district itself, but not OSPI for past claims of compensatory education for the time from when he exited on August 31st to the present.

[00:02:20] Speaker 04:
and without resolving the exiting because of the diploma issue either.

[00:02:27] Speaker 04:
So that would be, so for example, if the court were to say that the school district is required not to reject him from re-enrolling based on his age, and then the school district were to re-raise the issue of the diploma, he would then have the opportunity to once again seek an administrative proceeding and get a stay put and then continue in his placement at the school district.

[00:02:50] Speaker 04:
until he turns 22 this summer.

[00:02:52] Speaker 02:
So has he now received a diploma?

[00:02:55] Speaker 04:
Whether it is a regular high school diploma, i.e.

[00:02:58] Speaker 04:
one that confirms in all ways to the standard diploma in this state is highly contested.

[00:03:02] Speaker 04:
He reads at a third grade level.

[00:03:03] Speaker 04:
He spends his time in academic classrooms on an iPad.

[00:03:08] Speaker 04:
So his position is he has not received a regular high school diploma which would terminate his eligibility for special education under the IDEA but for his age.

[00:03:17] Speaker 02:
But I guess maybe I can ask the state this.

[00:03:19] Speaker 02:
But he's received something that the state considers a diploma, but you consider not to be.

[00:03:24] Speaker 04:
So he has received from the school district a diploma that the state contends is a regular high school diploma.

[00:03:30] Speaker 04:
A regular high school diploma, in order to actually constitute it, constitutes a change in placement.

[00:03:36] Speaker 04:
And so that triggers the ability to challenge that and to get a state put while the issue of whether it is a genuine high school diploma is resolved.

[00:03:46] Speaker 04:
OK.

[00:03:47] Speaker 02:
And so if you were to prevail here, just to go through what would happen with him specifically.

[00:03:54] Speaker 04:
If we were to prevail here, then the Salah School District, under the supervision of OSPI, would be prevented from denying him re-enrollment on the ground that he is now 21 and has passed the end of the school year in which he turned 21.

[00:04:11] Speaker 04:
And if then, at that point, the Salah School District were then to re-raise the issue and say, we're still going to deny you enrollment because we believe you've been given a regular high school diploma, he would then at that point have a right to refile the due process, and there would be an automatic stay put, which would require that his previous IEP be maintained

[00:04:33] Speaker 04:
and his placement in the Salas School District go forward while that issue of the validity of the regular high school diploma is resolved.

[00:04:42] Speaker 02:
Okay.

[00:04:43] Speaker 02:
And I guess one final mootness question is, even on your view of the case, this will all become moot in July, won't it?

[00:04:54] Speaker 04:
Well, he will have hopefully received at least some additional... Well, but he'll be... I mean, I guess what I mean is if

[00:05:01] Speaker 02:
Unless you get some relief from us or the district court or somebody before July, the case will become moot in July when he turns 22, right?

[00:05:09] Speaker 04:
So his individual claim and the classes we've defined it will now have at that point aged out.

[00:05:14] Speaker 04:
But this is one of those situations where you have essentially capable of repetition, but evading review, where because every cohort that you bring this claim on behalf of is going to ultimately hit that statutory age of 22, that if you get a delay like you do here, you could have now another class coming up on August 31st, 2024.

[00:05:36] Speaker 04:
with absolutely no difference as far as the law is concerned yet again being

[00:05:41] Speaker 04:
improperly aged out.

[00:05:44] Speaker 04:
And certainly class definition is something that is something that class standing is established at the time that the issues are raised.

[00:05:52] Speaker 04:
And class definition is something that is subject to revision throughout the life of the case.

[00:05:56] Speaker 04:
So it would certainly be within the power of this court or the district court on remand to define the class as students who are going to exit in the future as opposed to just the 2023 year in order to do substantial justice.

[00:06:10] Speaker 00:
And you've brought this as a putative class action?

[00:06:13] Speaker 04:
Yes, Your Honor, we have.

[00:06:18] Speaker 04:
So I want to go to the text of the ERK decision literally resolves this case on the undisputed facts.

[00:06:26] Speaker 04:
ERK held that if a state provides secondary education at public expense and without charge to any non-disabled students 18 to 21 inclusive, as that is up to age 22, it must provide free appropriate public education to disabled students

[00:06:43] Speaker 04:
of the same age.

[00:06:45] Speaker 04:
So the issue here was the interpretation of 20 USC 1412 A1 B1, and that section provides an exception to the IDA's ordinary requirement to provide special education to disabled students until age 22.

[00:06:59] Speaker 04:
If doing so would be inconsistent with state law or practice, respecting the provision of public education,

[00:07:07] Speaker 04:
to children in the same age in general.

[00:07:09] Speaker 04:
And ERK read this and quote from the case to mean that Hawaii cannot deny special education to disabled students aged 18 through 21 if it in fact provides free public education to non-disabled students in that range of ages.

[00:07:24] Speaker 04:
So on its face, the ruling requires a state to absolutely refrain.

[00:07:29] Speaker 00:
You know, I didn't read ERK to say it.

[00:07:34] Speaker 00:
I thought that ERK read

[00:07:37] Speaker 00:
There are a lot of numbers here.

[00:07:39] Speaker 00:
A1B little i. Little i, yes.

[00:07:44] Speaker 00:
When it says public education.

[00:07:46] Speaker 04:
Correct.

[00:07:47] Speaker 00:
I read ERK saying that meant free public education.

[00:07:51] Speaker 04:
So I don't think that's exactly what ERK said.

[00:07:54] Speaker 04:
So ERK was interpreting this.

[00:07:58] Speaker 04:
It would be anomalous to take a statute in which one portion says free and appropriate public education, and the other part says- I'll just read you from Judge Nelson's opinion.

[00:08:07] Speaker 00:
In light of this legislative history, we interpret 1412A1BI, that's the one where it says, public education.

[00:08:17] Speaker 00:
We interpret that section to mean that Hawaii cannot deny special education to disabled students if in fact it provides free public education.

[00:08:27] Speaker 00:
Free public education.

[00:08:28] Speaker 00:
I mean, how am I misreading that?

[00:08:32] Speaker 04:
So they interpreted that section to mean, the effect of that section to be that if you provide free public education to non-disabled adults, you are disqualified from this exception.

[00:08:43] Speaker 04:
And that is clear from the legislative history that ERK was relying on, because the legislative history that ERK was relying on

[00:08:51] Speaker 04:
is basically gives a set of non-exclusive examples of things that would qualify the state for the exception and things that would affirmatively disqualify the state for the exception.

[00:09:02] Speaker 04:
And so it identifies providing free public education

[00:09:07] Speaker 04:
to non-disabled adults as something that would disqualify it from the exception.

[00:09:12] Speaker 00:
But that does not mean that charging some small amount for public education for adults would otherwise... Well, you see, that's the part I agree with you, that is to say that it's free within the meaning of this if it is a small amount.

[00:09:30] Speaker 04:
It is, I think, free within the meaning of this, is it's a small amount.

[00:09:33] Speaker 04:
But I do want, I agree.

[00:09:36] Speaker 04:
And it is a nominal amount in this case.

[00:09:38] Speaker 04:
But it also can't be the case that a state can avoid its obligation under the IDEA by charging a small amount, or that this court should create a circuit split with the First Circuit, in which case 20% of the charge was borne by the state.

[00:09:51] Speaker 04:
And they still said, this is public education within the meaning of this exception.

[00:09:57] Speaker 04:
And I do want to, because the ERK reiterated its holding literally in two different places to make absolutely clear that you have to completely exclude non-disabled adults from receiving free public education in order to qualify for this exception.

[00:10:15] Speaker 04:
It said a state's duty to educate disabled children until they turn 22 is only excused if free public education is foreclosed to disabled and non-disabled students alike.

[00:10:25] Speaker 04:
And it said, if Hawaii legislators wish to shut the door to students once they turn 20, that is their prerogative, but they must shut them to all students.

[00:10:34] Speaker 04:
And the emphasis was all in the court's opinion, regardless of disability.

[00:10:39] Speaker 04:
So there's no dispute in this case the state of Washington shuts the door to free secondary education for disabled students before they turn 22 by terminating their eligibility for enrollment in public schools

[00:10:50] Speaker 04:
at the end of the year in which they turn 21.

[00:10:52] Speaker 04:
And there's also no dispute that Washington does not shut the door to free public education for non-disabled students through age 22 and beyond.

[00:11:02] Speaker 04:
It does not deny that in the words of ERK, it in fact provides free public education at no charge whatsoever to thousands of non-disabled students for whom it waives all tuition for participation in adult education programs until age 22 and beyond.

[00:11:19] Speaker 04:
And there's no dispute that because the state of Washington expressly authorizes tuition waivers that are pervasively granted, that free public education is not foreclosed, in the words of ERK, to non-disabled participants in those programs.

[00:11:36] Speaker 04:
And so I think that the way that the court got it wrong was it reframed the question in ERK as to whether the state was providing free public education to any non-disabled students.

[00:11:49] Speaker 04:
to whether the programs themselves were free of charge entirely to everybody, and found because individuals are not entitled to a tuition waiver merely because they are members of the public, that the state does not, in fact, provide or assure the provision of free education to those non-disabled members of the public who may enroll in those programs.

[00:12:10] Speaker 04:
But the test in ERK is not

[00:12:12] Speaker 04:
whether the state entitles non-disabled adults in general to the provision of free public education.

[00:12:17] Speaker 04:
It's whether it forecloses all non-disabled adults from receiving public education.

[00:12:22] Speaker 04:
I'm well into my rebuttal time, Your Honors.

[00:12:25] Speaker 04:
If there's any further questions, I'd like to answer them, but I don't want to.

[00:12:32] Speaker 04:
I wanted to reserve five minutes for rebuttal.

[00:12:35] Speaker 03:
Oh, your five minutes that you were doing for yourself.

[00:12:37] Speaker 03:
Let me just ask one question.

[00:12:39] Speaker 03:
So yes, the GED education charges a nominal $25 fee.

[00:12:48] Speaker 03:
But was it high school plus education?

[00:12:53] Speaker 03:
Does that charge a fee as well?

[00:12:55] Speaker 04:
Yes, so High School Plus and the GED completion both authorized community colleges to charge a $25 fee.

[00:13:03] Speaker 04:
That fee does not need to be used for instruction.

[00:13:06] Speaker 04:
It can be used for any purpose that's related to the program, bus passes, books, which is exactly substantively the same as the fees that were in ERK.

[00:13:15] Speaker 04:
There was a fee that was charged there that could be used for similar purposes.

[00:13:19] Speaker 03:
There's no substantive difference.

[00:13:20] Speaker 03:
ERK did involve a sort of administrative fee.

[00:13:23] Speaker 04:
Yes, it did the district court expressly noted that and notwithstanding the fact that this district court expressly noted that this court found that the district court had found these programs were free.

[00:13:33] Speaker 04:
So I think substantively free is really what's that issue here that is that the formality of calling something a tuition that really

[00:13:41] Speaker 04:
There's deposition testimony in the record where the representative OSPI testified that 100% of the cost of these programs was provided by the state and federal government.

[00:13:51] Speaker 04:
These fees are not even counted as being funding for the education itself by the state itself.

[00:13:58] Speaker 03:
Okay, thank you.

[00:14:08] Speaker 03:
Mr. Rowe.

[00:14:17] Speaker 01:
Good morning, Your Honors.

[00:14:18] Speaker 01:
May it please the court.

[00:14:19] Speaker 01:
Brian Rowe with the Washington State Attorney General's Office for Defendants.

[00:14:24] Speaker 01:
Three key facts doom plaintiffs appeal.

[00:14:27] Speaker 01:
First, at the threshold, the long planned exit of special education students last summer has irreversibly passed.

[00:14:35] Speaker 01:
And so this case is moot.

[00:14:37] Speaker 01:
Second, plaintiffs provided no evidence that any injury they would suffer upon exit would be irreparable or beyond remedy by compensatory education.

[00:14:49] Speaker 01:
Third, Washington's adult education programs charge tuition, which makes them not without charge for purposes of this court's well-reasoned decision in ERK and makes the district court's decision well within its applied discretion, especially in the context of the mandatory preliminary injunction plaintiffs requested.

[00:15:09] Speaker 01:
I'd like to focus a little bit on mootness at the outset, since it's a threshold issue.

[00:15:16] Speaker 01:
The mootness of this appeal is clear now more than ever.

[00:15:20] Speaker 01:
The injury plaintiffs sought to prevent cannot be a moving target.

[00:15:25] Speaker 01:
It was the exit of special education students at the end of the last school year in the summer of 2023.

[00:15:31] Speaker 01:
None of the relief plaintiffs requested could undo the exit, and so this appeal should be dismissed as moot.

[00:15:39] Speaker 01:
This court's decision in Foster v. Carson says we should focus on the, quote, activities sought to be enjoined, end quote.

[00:15:47] Speaker 01:
It's clear from plaintiff's briefing below that the exits in particular, not deprivation of education in general, were the activities sought to be enjoined.

[00:15:57] Speaker 01:
Plaintiff's proposed order specifically asked the district court to enjoin defendants from allowing any LEA or local educational agency to terminate IEP services.

[00:16:08] Speaker 00:
But you don't dispute that EA is still eligible, assuming eligibility, EA is eligible until the end of this school year?

[00:16:17] Speaker 01:
That is in dispute, Your Honor.

[00:16:20] Speaker 01:
We did dispute below.

[00:16:23] Speaker 01:
We had some back and forth in the briefing on whether or not EA received a regular high school diploma.

[00:16:28] Speaker 01:
As my colleague on the other side noted, that is a contested issue.

[00:16:32] Speaker 01:
But that is not actually material for the mootness question.

[00:16:37] Speaker 01:
The mootness question does not hinge on whether or not EA has received a diploma or a regular high school diploma.

[00:16:46] Speaker 01:
That's a separate issue.

[00:16:47] Speaker 00:
Let me understand what you're telling me.

[00:16:48] Speaker 00:
Are you telling me that even though EA might not have aged out until the end of this current school year, nonetheless it's moot?

[00:16:55] Speaker 01:
Yes, Your Honor, exactly.

[00:16:57] Speaker 01:
Why is that?

[00:16:58] Speaker 01:
Because the relief that plaintiffs requested was specifically focused on the exit of the putative provisional class and the exit of EA, which has already occurred.

[00:17:08] Speaker 01:
That all occurred in the summer of 2023.

[00:17:10] Speaker 01:
That's clear from the declaration that EA's mother submitted in the case, which specifically

[00:17:20] Speaker 01:
identified the exit of EA as the injury to be avoided.

[00:17:26] Speaker 01:
As paragraph 16 of her declaration, it's actually very key.

[00:17:30] Speaker 01:
I want to call the court's attention to it.

[00:17:32] Speaker 01:
Paragraph 16, EA's mother declares that he would experience harm once he is exited from special education.

[00:17:42] Speaker 02:
But I mean, the mootness question is whether there's any effective relief that can be provided.

[00:17:48] Speaker 02:
doesn't seem to require extraordinary ingenuity that when what they were asking for was don't let people exit.

[00:17:55] Speaker 02:
Some people have now exited, including, I guess, EA, that the relief might be, well, you should let them back in, right?

[00:18:03] Speaker 02:
So why wouldn't that be effective relief that could be provided?

[00:18:05] Speaker 01:
Yes, Your Honor.

[00:18:06] Speaker 01:
So the remedy that plaintiffs for the first time on appeal asked for, which is reinstatement, that as a practical matter is impossible.

[00:18:18] Speaker 01:
We cited the case, I forgot the name of it, it's the hockey case, basically, where as a practical matter it would be impossible to implement.

[00:18:25] Speaker 01:
The relief that point is requested.

[00:18:27] Speaker 01:
So right now even if reinstatement were on the table as a remedy There is a huge months-long planning process that seasonal it begins around January sometimes earlier for planning special education there there has to be There's a long hiring process it's a seasonal I think those all

[00:18:49] Speaker 02:
seem to me to be to go to the sort of the equitable factors that the district court has to assess and deciding whether to grant an injunction and and might be a reason for the district court not to give you an or not to give them an injunction but

[00:19:03] Speaker 02:
They don't, but mootness turns on whether the court has the power to order effective relief, and none of those things seem to deprive the court of the ability to order reinstatement.

[00:19:15] Speaker 02:
It might not be a good idea, but it is something that the court could do, and isn't that enough to save it from mootness?

[00:19:20] Speaker 01:
I think, hypothetically, I think it would be a clearer case if plaintiffs had, in fact, requested reinstatement in their motion below.

[00:19:27] Speaker 01:
But I think there is, and beyond the practical issue, I think the timing of

[00:19:37] Speaker 01:
of plaintiffs' motion really shows that it was the exit and that was the injury.

[00:19:44] Speaker 01:
It's not just the deprivation of education in general, that's the injury here, but it's the exit.

[00:19:48] Speaker 01:
And the reason why I point to the timing is that I think as Your Honor's noted with

[00:19:56] Speaker 01:
Previously, there were two named plaintiffs here.

[00:19:59] Speaker 01:
There's ND and EA.

[00:20:02] Speaker 01:
ND was the original named plaintiff, and the plaintiffs did not add EA until late last spring, basically.

[00:20:16] Speaker 01:
But if the deprivation of education in general, even post-exit, was the activity sought to be enjoined, plaintiffs didn't need an enrolled student like EA who they believe would age out.

[00:20:29] Speaker 01:
If every day of education denied after an exit were an activity encompassed by plaintiff's motion, they could have filed their motion with the name plaintiff ND back in the fall of 2022 when they had originally filed their case.

[00:20:41] Speaker 01:
But instead they waited until they found EA and then waited some more.

[00:20:47] Speaker 01:
And that clearly confirms I think that the harm they sought to prevent was the harm flowing specifically from the exits.

[00:20:54] Speaker 02:
So Mr. Crosby brought up capable of repetition but evading review.

[00:20:59] Speaker 02:
Do you have any thoughts on that?

[00:21:01] Speaker 01:
Yes, I do, Your Honor.

[00:21:02] Speaker 01:
The standard for that exception to mootness

[00:21:10] Speaker 01:
That involves cases where I'm quoting from Hooks for and on behalf of National Laboratory Relations Board 54F4 1101, Ninth Circuit 2022, and when the challenged action is in its duration too short to be fully litigated prior to cessation or expiration.

[00:21:33] Speaker 01:
And so this case clearly does not fit that requirement.

[00:21:37] Speaker 01:
This is not a case where its duration is too short.

[00:21:40] Speaker 01:
The age requirement in state law is that issue in the case.

[00:21:48] Speaker 01:
No matter what happens in this appeal, plaintiffs have a full opportunity to litigate this case to the end in the district court.

[00:21:55] Speaker 00:
But how long a period are we talking about?

[00:21:58] Speaker 00:
That is to say, we're not talking about someone who's bringing this suit at age 16.

[00:22:03] Speaker 01:
Is that right?

[00:22:07] Speaker 00:
What's the age range that is at issue in this case?

[00:22:10] Speaker 01:
As plaintiffs have defined it, well, they've got two class definitions.

[00:22:16] Speaker 01:
They've got their putative provisional class definition that they put forward for purposes of their preliminary injunction motion, and then they have their main class definition that's now pending a motion for class certification in the district court.

[00:22:30] Speaker 03:
And what is it?

[00:22:31] Speaker 01:
If I can remember from memory, it's basically every

[00:22:37] Speaker 01:
Their main class definition is every student in the last three years who was enrolled in special education but did not, or basically aged out, was forced to exit the system due to the state age requirement which says that students are entitled to get special education until the end of the school year in which they turn 21.

[00:22:58] Speaker 00:
Right.

[00:22:58] Speaker 00:
But the age range in which we were really disputing this is a year or less.

[00:23:03] Speaker 00:
Isn't that right?

[00:23:04] Speaker 01:
Oh, yes, Your Honor.

[00:23:05] Speaker 01:
I think I misunderstood your initial question.

[00:23:06] Speaker 01:
My apologies.

[00:23:07] Speaker 01:
Yes.

[00:23:08] Speaker 01:
It's a range basically from a day to 12 months, depending on when the student's birthday falls in the school.

[00:23:15] Speaker 00:
And birthdays.

[00:23:15] Speaker 00:
Yeah.

[00:23:15] Speaker 00:
So it's a pretty small little time period here.

[00:23:18] Speaker 00:
And we've got a punitive class action.

[00:23:20] Speaker 00:
He's trying to get a class action so that people can move in and out of the class, and the case doesn't go away.

[00:23:25] Speaker 00:
But it goes away pretty fast.

[00:23:27] Speaker 01:
Well, Your Honor, the putative provisional class that they've requested for this preliminary injunction motion does have a short window.

[00:23:37] Speaker 01:
And to basically bring it within the realm of possibility of being implemented, if they were to get an order from the district court, they would have had to have brought it quite a bit earlier.

[00:23:47] Speaker 00:
But what I'm saying is that- I think that then feeds into the question of capable repetition yet evading review.

[00:23:53] Speaker 01:
Well, the plaintiffs, regardless, even if they lose here in the Ninth Circuit, when they go back to the district court, that class, their main class, still is just as capable of getting to those merits questions about whether or not

[00:24:11] Speaker 01:
the Washington state law conflicts with the IDEA.

[00:24:15] Speaker 01:
And so there is no question that they will have an opportunity to get to that question.

[00:24:20] Speaker 01:
The only question really at issue here.

[00:24:23] Speaker 00:
And can a 16-year-old bring that question, or is it not ripe for a 16-year-old?

[00:24:26] Speaker 00:
When is the suit ripe?

[00:24:28] Speaker 01:
There could be ripeness concerns with a 16-year-old, I think.

[00:24:31] Speaker 00:
That's right.

[00:24:31] Speaker 00:
I don't think it's really ripe until the person's about 21.

[00:24:34] Speaker 00:
And then bingo, you're in trouble if you go more than a year.

[00:24:37] Speaker 01:
Well, with individual students, they have individualized education plans and they have a sense, you know, whether or not they're going to graduate.

[00:24:46] Speaker 01:
There's a plan for each student going several years before their anticipated age out or graduation.

[00:24:53] Speaker 01:
that basically lays out the plan for them.

[00:24:55] Speaker 01:
I think it's pretty clear for many students that in a few years, they're on track to age out if they don't graduate.

[00:25:08] Speaker 01:
But basically, the issue in the district court, if plaintiffs lose here,

[00:25:16] Speaker 01:
is whether compensatory education can be awarded to the class in Maine.

[00:25:24] Speaker 01:
And compensatory education does not cut off at age 22.

[00:25:29] Speaker 01:
And so there is that remedy on the table that if the plaintiffs litigate to the merits in the Maine, they will reach the possibility of gaining compensatory education and addressing

[00:25:41] Speaker 01:
the alleged harm to the class, which includes the class in Maine is inclusive of the putative provisional class that they've alleged for the motion.

[00:25:54] Speaker 01:
As long as we're talking about compensatory education, I did want to touch on irreparable injury, which we haven't touched on much.

[00:26:00] Speaker 00:
Can we touch on the merits at some point before your time runs?

[00:26:03] Speaker 01:
Sure.

[00:26:04] Speaker 01:
Yes, Your Honor.

[00:26:05] Speaker 01:
I'll skip to the merits and come back to irreparable injury if I have time.

[00:26:15] Speaker 01:
Plaintiff's basic argument is that the inverse of programs without charge is programs charged without exception.

[00:26:24] Speaker 01:
That rigid of a requirement

[00:26:26] Speaker 01:
has no basis in ERK or in the statute, which merely refers to inconsistency, not strict parity between free special education and general public education.

[00:26:39] Speaker 01:
The dispute on the merits is about the word free, which this court has explained means without charge.

[00:26:45] Speaker 01:
The question posed by the district court shows why plaintiff's position is untenable.

[00:26:49] Speaker 01:
Why would a charge for free appropriate public education make it not free, but a charge for public education provided to other adults have no effect on whether it is free?

[00:27:00] Speaker 01:
Plaintiffs are attempting to draw lines that are not there.

[00:27:03] Speaker 01:
insisting in four ways.

[00:27:05] Speaker 00:
How do you get around ERK that treats it as free when there's only a nominal charge, and here there's only a nominal charge?

[00:27:14] Speaker 01:
Yes, Your Honor.

[00:27:15] Speaker 01:
Well, I would dispute that this charge is nominal.

[00:27:19] Speaker 00:
How much is it?

[00:27:21] Speaker 01:
It's $25.

[00:27:23] Speaker 00:
And how much was the charge at issue in ERK?

[00:27:26] Speaker 00:
I'm not sure that those it was it was not a tuition charge so in ERK, but I'm not asking what it was for I'm asking how much it was I I don't have I don't have that before me it was not in the ERK opinion and you're saying that ERK was nominal, but this $25 is how can you say that?

[00:27:48] Speaker 01:
Because in ERK there was no dispute at the appeal that the programs at issue were tuition free.

[00:27:57] Speaker 01:
There was simply no dispute there.

[00:27:58] Speaker 01:
And so that wasn't really addressed in ERK's opinion.

[00:28:02] Speaker 01:
In ERK there is no notion of nominality.

[00:28:05] Speaker 01:
There is, and there's, we do not concede that $25 is a nominal charge.

[00:28:10] Speaker 00:
In ERK, we do know from what the district court said that the students were charged for books, testing, and other miscellaneous expenses.

[00:28:18] Speaker 00:
Now, books are kind of, you know, how many books are you going to get for 25 bucks?

[00:28:24] Speaker 01:
Yes, Your Honor.

[00:28:26] Speaker 01:
And the tuition charge here can also be on top of other charges that individual school districts may impose.

[00:28:37] Speaker 00:
And so they're- I'm having trouble seeing that this is not nominal.

[00:28:42] Speaker 00:
If an ERK charging for nominal fees for books, testing, and other miscellaneous expenses,

[00:28:52] Speaker 00:
We're talking a difference of a few dollars maybe either way.

[00:28:57] Speaker 00:
That is to say, ERK may be charging more than $25 a quarter.

[00:29:00] Speaker 00:
I mean, talk to any student who goes to school and say, hey, are you getting all your books for the quarter for 25 bucks?

[00:29:05] Speaker 00:
I don't think so.

[00:29:07] Speaker 01:
Well, yes, Your Honor, I understand the point.

[00:29:09] Speaker 01:
The thing is, here $25 is charged to students.

[00:29:16] Speaker 01:
It can be in addition to those other charges that we're talking about for books.

[00:29:20] Speaker 01:
And I recognize that $25 doesn't seem like a lot, but one thing that speaks to its character is not merely nominal.

[00:29:27] Speaker 01:
Is that many students do apply for the waiver if it was truly a nominal?

[00:29:33] Speaker 01:
You know next to nothing fee I don't think we would see many students applying for waiver of the tuition charge, but the fact is It varies by by school district every school district is in charge of its own waiver criteria, but the they do see waiver applications and

[00:29:52] Speaker 02:
But how does that help you?

[00:29:54] Speaker 02:
I mean, because it seems to be that the fact that, I think it's like 40% of people get a waiver, some large fraction of people get a waiver, seems to cut the other way, given that Romanet 1 relieves you from the obligation to provide appropriate public education to people over 21.

[00:30:17] Speaker 02:
to the extent that it would be inconsistent with state law respecting the provision of public education to people in that age range.

[00:30:24] Speaker 02:
And given that 40% of people are getting it for literally zero dollars, it seems not inconsistent with state law to provide appropriate public education to people in that age range.

[00:30:38] Speaker 02:
So what's your answer to that?

[00:30:39] Speaker 01:
Well, the $25 charge is small, but the waivers are not inconsistent.

[00:30:52] Speaker 01:
ERK did not say that absolutely everyone needs to be charged.

[00:30:56] Speaker 01:
And I don't think it would make sense to draw as bright of a line of a rule as plaintiffs are insisting.

[00:31:00] Speaker 01:
And it shouldn't be that financial aid or subsidy or a scholarship renders an entire program without charge.

[00:31:09] Speaker 02:
So if we were to agree with you, would we be creating a conflict with the First Circuit and KL?

[00:31:15] Speaker 02:
And if so, where do you think they went wrong?

[00:31:19] Speaker 01:
Sure, Your Honor, and with the courts indulgence, I realize I'm over time.

[00:31:23] Speaker 01:
But the First Circuit, there is a difference between ERK and the First Circuit's KL opinion.

[00:31:30] Speaker 01:
I think that split is already there to the extent that it's active in this case.

[00:31:39] Speaker 01:
Before I address what's wrong with the KL decision, I just want to point out that plaintiff's argument that this court should overturn ERK is new on reply in this appeal.

[00:31:51] Speaker 01:
But the first circuit in KL, I think they went wrong.

[00:31:57] Speaker 01:
This court in ERK looked at the statute, looked how to define public education, and naturally looked to the terms of the statute to strip away the other parts of the definition and come up with what public education meant.

[00:32:10] Speaker 01:
And they came up that ERK says that public education basically means free and it's also secondary education.

[00:32:21] Speaker 01:
did not look at the statute.

[00:32:23] Speaker 01:
The dissent in KL, I think Judge Lynch in the dissent in KL, points out that the opinion in KL draws the definition of public education seemingly out of thin air, just going straight to dictionary definitions and common sense understandings of what is public education.

[00:32:43] Speaker 01:
And so, unless there are further questions, I realize I'm out of time.

[00:32:47] Speaker 03:
All right.

[00:32:49] Speaker 03:
Any other questions?

[00:32:50] Speaker 03:
OK, thank you very much, counsel.

[00:33:00] Speaker 04:
So first, I'd just like to quickly correct myself.

[00:33:02] Speaker 04:
I'm informed by my co-counsel is an actual education lawyer.

[00:33:06] Speaker 04:
that the due process is actually still pending.

[00:33:09] Speaker 04:
So the claims for compensatory education for this period have been settled, but the stay put is still in place.

[00:33:16] Speaker 03:
And what does that mean in the context of this case?

[00:33:19] Speaker 04:
That means that they would not even need to file a new due process for the purported high school diploma to not be an issue with respect to EAs.

[00:33:28] Speaker 04:
Because no diploma has been issued?

[00:33:30] Speaker 04:
No, well, a prior notice of intent to change placement based on the issuance of a diploma has been issued, but that is not effective to deprive him from special education because the stay put is in effect and remains in effect.

[00:33:48] Speaker 04:
Judge Miller, you quoted the statute as the key issue being whether it be inconsistent, and I think that you said state law, but it actually says state law or practice.

[00:34:01] Speaker 04:
So even if the law says that you have to pay the tuition, the practice is that many people do not have to pay the tuition.

[00:34:10] Speaker 04:
And it is not inconsistent with state practice if it in fact allows many people to obtain completely free adult education, even if those fees were not nominal.

[00:34:20] Speaker 04:
And I do believe strongly that they are.

[00:34:21] Speaker 04:
If I'm a flexitarian, it's not inconsistent with my diet to eat a cheeseburger every now and then.

[00:34:27] Speaker 04:
It's not inconsistent for the state to provide special education to students up to age 22 if it is in fact providing to at least some non-disabled students

[00:34:37] Speaker 04:
the equivalent for them in these adult programs.

[00:34:42] Speaker 04:
There's also no inconsistency with this court's opinion in ERK and the Second Circuit's opinion.

[00:34:50] Speaker 04:
Specifically, what this court was looking at was whether this clearly delineated exception in the statutory history, where it said, if you provide completely free public education to non-disabled assault, that clearly gets you out of the exception.

[00:35:06] Speaker 03:
One thing that's bothered me is ERK uses the term free public education, but the statute itself just says public education.

[00:35:16] Speaker 04:
Absolutely, Your Honor, and we presume that when the statute says one thing, one place, and another thing, another place, it means different things.

[00:35:22] Speaker 03:
Yeah, and free and appropriate public education is a term of art that's used throughout the statute.

[00:35:29] Speaker 04:
That is absolutely correct.

[00:35:30] Speaker 04:
If you're going to provide special education that needs to be this free, appropriate public education that has this own special meaning.

[00:35:37] Speaker 04:
And ERK said, the argument was made in ERK, well, the education that we provide to adults is not in a public school setting.

[00:35:45] Speaker 04:
It's not exactly the same as the free, appropriate public education we give to disabled students, and the principle of ERK was parity.

[00:35:53] Speaker 03:
Do you think that ERK just used the word free when they thought they were quoting the limitation that's set forth in

[00:36:05] Speaker 03:
A, one, and B, little i?

[00:36:08] Speaker 04:
I think it's an easy mistake to make, and I think it's won the district court.

[00:36:12] Speaker 04:
I was raked over the coals in the district court for allegedly arguing that free meant one thing in one part of the statute and a different thing in the other part of the statute.

[00:36:22] Speaker 04:
And in fact, it only appears in one place in the statute.

[00:36:25] Speaker 04:
But I know that it's very difficult for this court to find that a previous panel has erred.

[00:36:32] Speaker 04:
So I think that the better of a previous panel

[00:36:35] Speaker 04:
It might be a scribbler's error, it might not be well reasoned.

[00:36:39] Speaker 04:
I think the really the best way to approach it is to look at the statutory history that ERK was drawing from and really what it was doing was providing examples.

[00:36:49] Speaker 04:
And so the inverse of the position that providing a free

[00:36:54] Speaker 04:
public education to adults disqualifies you from the exception.

[00:36:58] Speaker 04:
It's not necessarily true that providing public education is not completely free to adults, then somehow qualifies you for the exception.

[00:37:06] Speaker 00:
You have to look at what the... Lots of negatives and double negatives floating around here.

[00:37:11] Speaker 00:
I think I am reading ERK now the same way you are, and you're saying that ERK made a mistake.

[00:37:17] Speaker 00:
Is that right?

[00:37:17] Speaker 04:
I think to the extent that one reads ERK to say that public education in the statute means free public education as in legislative history, that that would be a mistake.

[00:37:27] Speaker 00:
But they say it pretty clearly.

[00:37:30] Speaker 04:
I don't think they do.

[00:37:31] Speaker 00:
Let me read it to you.

[00:37:33] Speaker 00:
Yes, Your Honor.

[00:37:34] Speaker 00:
In light of this legislative history, we interpret 1412A1BI

[00:37:41] Speaker 00:
in fact, if it provides free public education.

[00:37:46] Speaker 00:
That's what it says.

[00:37:47] Speaker 00:
Maybe wrong, but that's what it says.

[00:37:49] Speaker 04:
I don't think it says public education means free public education.

[00:37:53] Speaker 00:
Even though it cites that precise section and it says that means free public education.

[00:37:58] Speaker 04:
Well, no, what it says is that the statute means that

[00:38:01] Speaker 04:
If you provide free public education, you don't qualify for the exception.

[00:38:06] Speaker 04:
So it's talking about the consequence of the statute.

[00:38:08] Speaker 00:
But in any event, I think- I'm willing to go your way based on nominal.

[00:38:13] Speaker 00:
So you don't have to persuade me on that.

[00:38:15] Speaker 03:
The legislative history that it's referring to includes places where there's nominal fees, right?

[00:38:21] Speaker 03:
Absolutely.

[00:38:21] Speaker 03:
Even if you send your kids to public high school in Pasadena, you're going to end up paying some fees for some things.

[00:38:30] Speaker 04:
You're absolutely right.

[00:38:31] Speaker 04:
And I will absolutely accept a reversal on the grounds that this is nominal.

[00:38:35] Speaker 04:
And what that means for ERK as written, I will leave for the jurists on this bench.

[00:38:45] Speaker 04:
Any further questions, Your Honor?

[00:38:46] Speaker 04:
Thank you so much for the additional time.

[00:38:48] Speaker 04:
I appreciate it today.

[00:38:49] Speaker 03:
OK.

[00:38:49] Speaker 03:
Thank you very much, counsel.

[00:38:51] Speaker 03:
This very well argued case.

[00:38:53] Speaker 03:
ND versus Rick Dahl will be submitted and this session of the court is adjourned for today.