[00:00:04] Speaker 02:
Please be seated.

[00:00:10] Speaker 02:
All right, I'll call the last case on the docket, case number 234058, Jacobs versus Salt Lake City School District.

[00:00:31] Speaker 04:
Good morning, Your Honors, and may it please the court

[00:00:35] Speaker 04:
My name is Laura Henry, and I represent the appellants EJ and HS through their respective guardians, as well as the Disability Law Center.

[00:00:43] Speaker 04:
Since the New Mexico Association gazed over 40 years ago, this court has affirmed the right of children with disabilities to assert claims of discrimination, even when that discrimination occurs within an educational context.

[00:00:56] Speaker 04:
The fundamental assertion in the appellant's amended complaint

[00:01:01] Speaker 04:
is that the Salt Lake City School District implements the IDEA in a way that is discriminatory and violative of the ADA and the Rehabilitation Act because its hub policy predetermines educational placements for children with intellectual disabilities and cognitive impairments, requiring them to be assigned to self-contained placements that are located at select hub schools.

[00:01:23] Speaker 04:
The district court aired when it failed to analyze or consider this framework and instead exclusively relied on and in our view drastically expanded the holdings in Urban and Murray to preclude the entirety of appellants claims.

[00:01:37] Speaker 03:
How are your claims distinct from Urban and Murray?

[00:01:40] Speaker 04:
Certainly, Your Honor.

[00:01:41] Speaker 04:
So I think there's several things, but the dispositive thing is that in Urban and Murray,

[00:01:47] Speaker 04:
Those cases were steeped in an individualized analysis of the LRE for those individual kids.

[00:01:55] Speaker 04:
And the Murray Court went to great lengths, in addition, to say the appellants there were not challenging the degree to which those students were being allowed to participate in the general education environment.

[00:02:09] Speaker 04:
They were only narrowly challenging the location of the surfaces.

[00:02:14] Speaker 04:
And I think that is the fundamental distinguishing factor between Urban and Murray.

[00:02:22] Speaker 04:
Again, the analysis we would argue applied by the district court precludes an individualized analysis

[00:02:29] Speaker 04:
for EJHS and similarly situated students.

[00:02:33] Speaker 03:
I just wanted to have a better understanding of the practical implementation of the hub policy.

[00:02:42] Speaker 03:
So if a student's IEP team wanted to place them in a regular classroom,

[00:02:51] Speaker 03:
but they were, by the hub policy, sorted into, by the sorting mechanism, they were sorted into a certain category that directed the placement be in a hub school.

[00:03:04] Speaker 03:
Would the IEP team not be able to make that placement individualized?

[00:03:09] Speaker 04:
Our position is no, because all students with intellectual disabilities and cognitive impairments, to the best of our knowledge, based on the facts asserted in the complaint and without the benefit of discovery, are either essential elements or severe kids or academic support, quote, mild, moderate kids.

[00:03:25] Speaker 04:
And all of those kids go to a health school.

[00:03:28] Speaker 03:
So once those placements or that sorting occurs,

[00:03:31] Speaker 03:
into those categories, there is then no opportunity for the IEP team to say, well, maybe this kid who is sorted into this particular category because of their disability could succeed in a general placement.

[00:03:45] Speaker 03:
They could not do that.

[00:03:46] Speaker 03:
The hub policy would prevent that.

[00:03:49] Speaker 04:
That is our allegation.

[00:03:50] Speaker 04:
That's the way we believe it works, yes.

[00:03:53] Speaker 00:
essential difference you're saying is that right from the get-go, your fake clients did not get individualized treatment because their symptoms put them into a cubbyhole or a peg that says you're going to go to a special entire program rather than getting potentially individual treatment.

[00:04:16] Speaker 04:
That's correct, that once a child, again, not a child with ADHD, not a child with dyslexia, that's again the crux of our complaint.

[00:04:25] Speaker 04:
Only a child with an intellectual disability or cognitive impairment where the IQ is implicated.

[00:04:30] Speaker 04:
And that's why the testimony of the special education director about the dividing line between these two classes, she was very clear that that is 70, that if you are above 70 and you still have a cognitive impairment, you are assigned

[00:04:46] Speaker 04:
to a mild moderate class that is called academic support for purposes of the hub system.

[00:04:52] Speaker 04:
And if you are below 70, you are assigned to essential elements or a severe class placement.

[00:05:00] Speaker 00:
You alleged an equal protection argument as well?

[00:05:03] Speaker 04:
We haven't made constitutional claims, no.

[00:05:06] Speaker 04:
These are under the IDEA, ADA, and Rehab Act.

[00:05:08] Speaker 03:
But what's the difference between your IDEA and ADA claims?

[00:05:13] Speaker 04:
Certainly.

[00:05:14] Speaker 04:
Well, I think with the IDEA, it has to do with a predetermination of placement that the IDEA guarantees that placements are to be individualized.

[00:05:24] Speaker 04:
You know, the Supreme Court in EDUF said a child's educational services have to be delivered in light of that child's unique circumstances.

[00:05:32] Speaker 04:
Excuse me.

[00:05:32] Speaker 04:
And we believe the HUD system just precludes that analysis.

[00:05:37] Speaker 04:
I think the distinguishment between the ADA and the IDEA is that the claim with respect to the ADA and 504 is that this disparate treatment is because of the nature of their disability.

[00:05:49] Speaker 04:
There are other ways in which you could violate predetermination or a failure to provide individualized services that don't rely on

[00:06:00] Speaker 04:
being subjected to a discriminatory policy based on disability category.

[00:06:03] Speaker 04:
And I think, in fact, that's the way most IDEA cases function.

[00:06:07] Speaker 04:
There's a dispute about whether or not an IEP team just predetermined an individual placement.

[00:06:13] Speaker 04:
So I think that's the difference between those claims.

[00:06:16] Speaker 00:
Thank you.

[00:06:17] Speaker 00:
Well, what would you say if the school district said, we think your child is disabled because

[00:06:26] Speaker 00:
of an intellectual shortfall.

[00:06:31] Speaker 00:
We don't know what we're going to do with him or her.

[00:06:33] Speaker 00:
We're going to do an analysis of what they need best.

[00:06:37] Speaker 00:
They then do an analysis, and they say, OK, we've determined that they need this kind of service, and that we cannot offer it on an individualized basis.

[00:06:47] Speaker 00:
We can only offer it on a collective basis, kind of equivalent of a magnet school, out of concentrated school, out of HUD school.

[00:06:55] Speaker 00:
And so that's where we're going to send your kid.

[00:06:58] Speaker 00:
Would you have any problems with that approach if that was done?

[00:07:04] Speaker 04:
I'll try to answer as directly as I can, which is to say, I think it would really depend on what the service is, what the service package is.

[00:07:10] Speaker 04:
I think what we're saying here is that everything you would need to consider an individualized placement already exists at a neighborhood school.

[00:07:18] Speaker 04:
And so I think I would have to assume for purposes of this argument that what the district was saying was it was something totally not available to effectuate a general education placement at a neighborhood school.

[00:07:31] Speaker 04:
I do think there's case law about a very particularized behavior program or something like that that can't be proliferated everywhere that really needs to be at a particular location.

[00:07:42] Speaker 04:
And I think that the law sanctions that.

[00:07:45] Speaker 00:
So that was a good answer.

[00:07:46] Speaker 00:
But let me make it a little bit harder.

[00:07:49] Speaker 00:
I mean, the prize for giving a good answer is you get another question.

[00:07:53] Speaker 01:
All right.

[00:07:55] Speaker 00:
What if they said, well, we think you need a certain kind of treatment?

[00:08:01] Speaker 00:
And yes, we could do that individually, but it's very expensive for us.

[00:08:07] Speaker 00:
And it is beyond our budget, but there's a bunch of kids in the district that need that, and we can administer it more efficiently at a HUD site.

[00:08:18] Speaker 00:
And so we want to take you there because we can't...

[00:08:24] Speaker 00:
we do not have the facilities to provide that kind of treatment individually that we can only afford to provide it collectively.

[00:08:32] Speaker 00:
Then what?

[00:08:34] Speaker 04:
I don't think that would be permitted under the IDEA because there are sort of specific CFRs that speak to placement decisions can't be made based on administrative convenience or sort of

[00:08:47] Speaker 04:
the configuration of the service system.

[00:08:50] Speaker 04:
So if that's sort of where it fell, I don't think that would be appropriate.

[00:08:55] Speaker 04:
I'm sorry if I'm still misunderstanding the question a bit.

[00:08:57] Speaker 00:
No, no, no.

[00:08:57] Speaker 00:
I mean, it's important because it could be that the district did decide.

[00:09:03] Speaker 00:
I don't know how much into the detail the record will show, but they could conclude that there were specialized counseling treatments that they couldn't provide on a one-to-one basis.

[00:09:17] Speaker 00:
That's all based on money constraint.

[00:09:19] Speaker 00:
And with enough money, you could do anything.

[00:09:22] Speaker 00:
So you're saying that if they come to you and say, this needs a specialized kind of treatment, unless they were to say it needs a collective treatment, that part of the treatment is interactivity with others with like disabilities.

[00:09:37] Speaker 00:
that that's an essential part of the treatment, then I suppose you could really justify a HUD situation.

[00:09:42] Speaker 00:
But that didn't happen here.

[00:09:44] Speaker 04:
Correct.

[00:09:44] Speaker 04:
And I want to just be clear that the record doesn't reflect that there is anything special about HUD schools.

[00:09:50] Speaker 04:
And I think that's a really important fact to keep in mind, that if you look at the information that was presented in the PowerPoint, the special education director, in fact, says,

[00:10:02] Speaker 04:
We at Salt Lake City School District have had a historic problem with LRE, or the Least Restrictive Environment, which I think the reasonable inference of is that these kids, which are kids with intellectual disabilities and cognitive impairments, have for a long time not had the benefit of an individualized analysis because that is what LRE rests upon.

[00:10:22] Speaker 04:
And so there was an acknowledgement of that in the

[00:10:26] Speaker 04:
policy or the presentation, you know, laying out this policy, I think it's difficult to conclude that there is anything, you know, particular because that would have been the time to say, here's exactly why we have to do this.

[00:10:39] Speaker 04:
And instead they said, you know, we want to stop kids from moving all over the district, which is fine, but it doesn't explain what the service is or what's necessary about the hub schools to send whole swaths of kids with disabilities.

[00:10:53] Speaker 04:
And I think that that's concerned.

[00:10:56] Speaker 00:
But you think that the decision of where to send these two children was made strictly on the basis of their IQ rating, pretty much?

[00:11:05] Speaker 04:
And the nature of their disability, yes.

[00:11:07] Speaker 00:
And so it did not offer them an individualized program?

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

[00:11:12] Speaker 00:
What if they had looked at it and said, we're going to now work with you, we're going to give an individual treatment program for you and an IEP, and we can only do that at this remote school?

[00:11:27] Speaker 00:
What would you say if they said that?

[00:11:30] Speaker 04:
I think if the analysis aligned with what happened in Murray, wherein that child was allowed to attend their neighborhood school, it looked like they were struggling to make progress, then the IEP team reconvened and said, hey, we've got to do something about this.

[00:11:45] Speaker 04:
That's the appropriate process to follow.

[00:11:47] Speaker 04:
Of course, you can remove a student when they're not making progress in the general education environment, but you can't pre-assume that a student won't make progress in a general education environment simply because of their IQ score or disability.

[00:12:00] Speaker 04:
designation.

[00:12:01] Speaker 04:
And I think that is what's happened here.

[00:12:04] Speaker 04:
That's what the amended complaint alleges.

[00:12:07] Speaker 04:
And the record just doesn't have evidence to the contrary.

[00:12:11] Speaker 02:
What do you want us to do in this case?

[00:12:13] Speaker 02:
You want us to reverse the dismissal?

[00:12:16] Speaker 02:
Correct.

[00:12:16] Speaker 02:
Go back to the district court to do the record review or to consider procedural claims?

[00:12:27] Speaker 02:
Yes.

[00:12:29] Speaker 04:
I think we would ask for a reversal.

[00:12:32] Speaker 04:
We'd ask for clarification on Urban and Murray, because I think without that, it's hard for the district court to, I think, rule in a way that is appropriate.

[00:12:46] Speaker 04:
And I think also direct the court to review claims of discrimination, because again, there was sort of just no real analysis of that in the decision below.

[00:12:56] Speaker 04:
If it's OK, I'll reserve the rest of my time.

[00:13:01] Speaker 01:
Good morning, Your Honors.

[00:13:08] Speaker 01:
May it please the Court, my name is Joan Andrews and I'm here today on behalf of the Defendants Appellees, Salt Lake City School District and its Board of Education, which for the sake of brevity I'll just refer to as the School District.

[00:13:22] Speaker 01:
Your Honors, I respectfully submit that the district court correctly granted the school district's motion to dismiss the three claims filed by plaintiffs under the IDEA, ADA, and Section 504 of the Rehabilitation Act, and that its decision should be upheld by this court on appeal.

[00:13:43] Speaker 01:
The district court's decision correctly recognized that plaintiff's claims were not cognizable and should not proceed under the longstanding precedence of Murray and Urban.

[00:13:56] Speaker 01:
These two cases clearly and unequivocally established that children with disabilities do not have a right

[00:14:05] Speaker 01:
to attend their neighborhood schools, regardless of whether the claim is couched as one under IDEA 504.

[00:14:21] Speaker 02:
That can't be a circumstance that can be considered.

[00:14:25] Speaker 02:
You don't have to consider that at all.

[00:14:27] Speaker 02:
They just said you don't have a right to it.

[00:14:29] Speaker 01:
I think you're absolutely right, Your Honor.

[00:14:31] Speaker 01:
And I think part of the challenge with this case is that a fair reading of plaintiff's amended complaint actually reveals that this is all about neighborhood schools and not really about LRE.

[00:14:47] Speaker 01:
So yes.

[00:14:48] Speaker 03:
Is a different way of saying that location and placement?

[00:14:50] Speaker 03:
Correct.

[00:14:51] Speaker 03:
So your position as the district court was correct in understanding this claim to be about the location of services, not the placement of the child.

[00:15:00] Speaker 01:
Exactly, Your Honor.

[00:15:01] Speaker 01:
And Murray, which was a location case, recognized that, yes, the right to be educated in the least restrictive environment is one of the most fundamental aspects of the IDEA.

[00:15:16] Speaker 01:
And Murray said,

[00:15:18] Speaker 01:
This is not an LRE case and we don't even need, in Murray, to establish a standard for LRE.

[00:15:25] Speaker 01:
This court did not really adopt a standard for LRE until 2004 in the Nebo case.

[00:15:32] Speaker 01:
But when we look particularly, I think, at the plaintiff's claim for relief in their first amended complaint,

[00:15:44] Speaker 01:
The request was to order Salt Lake City School District to make individualized placement decisions for each of the placements based on their IEPs and meaningfully consider the full continuum of placement options and supplementary aids and services necessary to place them at their neighborhood schools.

[00:16:05] Speaker 01:
And that to me is key.

[00:16:07] Speaker 01:
And when we also look at the first amended complaint, we look at the kinds of issues and complaints that are made about the inability to attend neighborhood schools.

[00:16:20] Speaker 01:
Those are not the kinds of rights that any of these statutes are particularly concerned about.

[00:16:27] Speaker 01:
The IDEA and other statutes are concerned about the ability of students to be educated in a general education classroom

[00:16:36] Speaker 01:
except where their needs, as determined on an individualized basis, require something different.

[00:16:43] Speaker 01:
So once they are, a determination is made by the IEP team that their needs require removal.

[00:16:50] Speaker 03:
But isn't that just the problem here?

[00:16:52] Speaker 03:
It's that the decision isn't being made by the IEP team.

[00:16:55] Speaker 03:
It's being made by the predetermination that the HUB policy directs.

[00:16:58] Speaker 01:
That's the allegation, but these... Let me pause just a minute right there.

[00:17:04] Speaker 00:
How is this case coming before us right now?

[00:17:08] Speaker 00:
What's the procedural status?

[00:17:11] Speaker 01:
So it's a review of a motion dismissed.

[00:17:13] Speaker 00:
And doesn't emotionally dismissed deal with allegations.

[00:17:16] Speaker 00:
So when you're dismissing the comments about, isn't this what happened, you say, well, yeah, that's the allegation.

[00:17:22] Speaker 00:
But shouldn't the sentence end at, yes, that's the allegation, period.

[00:17:30] Speaker 01:
Yes, Your Honor, and I understand your point.

[00:17:33] Speaker 01:
Let me try to respond to that, which is that the district court ruled as a matter of law that the first amended complaint fell under the purview of Murray and Urban.

[00:17:46] Speaker 01:
So I think that is the overarching legal question.

[00:17:50] Speaker 01:
And no, we're not getting into the merits of the factual allegations, but rather looking did

[00:18:00] Speaker 01:
the first amended complaint plausibly allege violations that should in fact be heard on a more factually intensive basis, or was the district court correct in saying, as a matter of law, these fall under the Murray urban purview and can be dismissed without getting to the merits?

[00:18:23] Speaker 01:
And we think the district court was correct.

[00:18:28] Speaker 02:
does contain plenty of allegations about how this should work and how placement decisions should work, not location decisions.

[00:18:37] Speaker 02:
And I guess I'm struggling to see why you don't think that that sufficiently alleges procedural violation.

[00:18:45] Speaker 01:
I think that ultimately, again, going back to the idea that what they are seeking is placement in a neighborhood school.

[00:18:55] Speaker 02:
They're seeking consideration of placement in a neighborhood school.

[00:18:59] Speaker 02:
They're not demanding it.

[00:19:01] Speaker 02:
That's the difference.

[00:19:02] Speaker 02:
They want it to be considered.

[00:19:05] Speaker 03:
Interpreted in the light most favorable to the allegations, it could just be a way of saying neighborhood school is just a proxy for generalized placement.

[00:19:14] Speaker 03:
If it had said generalized placement, would you have the same concern?

[00:19:18] Speaker 01:
You actually just anticipated where I was heading, which is I think that would be a different case.

[00:19:22] Speaker 01:
Because what these complainants are talking about is walking to school with their neighbors, going to school with their siblings.

[00:19:32] Speaker 01:
These are things that, if it were a general education classroom, might not be the same.

[00:19:40] Speaker 00:
It's interesting reading the briefs.

[00:19:42] Speaker 00:
It's clear that what they're interested in is the neighborhood school.

[00:19:47] Speaker 00:
But the legal issue they're presenting to us is that not that, because they know that that's really kind of, they don't have a right to it, although it can't be precluded.

[00:19:59] Speaker 00:
But the right that they're asserting is the one we have to deal with the legal issues, not their private motivations.

[00:20:06] Speaker 00:
And the legal issue they're asserting is that they got pigeonholed

[00:20:10] Speaker 00:
without an individualized treatment plan, really by their IQ levels.

[00:20:16] Speaker 00:
And that meant that they were denied an individualized treatment that they're entitled to.

[00:20:23] Speaker 00:
And so that's the only issue we really have to address.

[00:20:26] Speaker 01:
Yeah, and I think that the district court did fairly consider that, and that its ruling can be upheld by this court on the basis of those Murray and Urban precedents.

[00:20:37] Speaker 03:
Could you speak a little bit to something that I need clarity on from your briefing?

[00:20:43] Speaker 03:
I thought the school district's position was it wasn't clear that there were individual IDEA claims in this case, and I'm not sure I understand how that can be.

[00:20:51] Speaker 01:
Yeah, so I think it goes to how it has been framed, actually, by the plaintiffs here, which is that it does appear to be that the individual claims are very much secondary.

[00:21:05] Speaker 01:
And when we look at, again, the relief that was requested, it wasn't really specific to EJ or HS, but goes more to

[00:21:15] Speaker 01:
We want you to order that the HUB policy be enjoined and that you change systematically the approach to the handling of these cases.

[00:21:27] Speaker 01:
And so the individualized elements, again, were really no specific allegations regarding how- Wasn't it a procedural violation?

[00:21:36] Speaker 02:
Weren't they just alleging that procedurally there were violations in how this was handled?

[00:21:42] Speaker 02:
Isn't that really what it is?

[00:21:44] Speaker 01:
So, well, I mean, I think it depends, right?

[00:21:46] Speaker 01:
So when we talk about IDEA violations, we've got procedural and substantive, and so certainly the LRE requirement, I think, would be a substantive mandate of FAPE.

[00:21:56] Speaker 01:
A procedural issue would be were we required to do a written prior notice before changing the location of the program itself.

[00:22:05] Speaker 01:
which was in fact addressed by the administrative hearing officer in EJ's due process hearing below.

[00:22:13] Speaker 01:
So we had both procedural and substantive issues that were addressed.

[00:22:19] Speaker 02:
So the failure to consider individual circumstances with respect to placement would not be a procedural issue?

[00:22:28] Speaker 01:
If it were to result in a substantive denial of FAPE, which I think

[00:22:35] Speaker 02:
ultimately is... Is that what they're asking?

[00:22:40] Speaker 01:
I'm not 100% sure, Your Honor, in terms of sometimes where that difference in IDEA between a procedural violation and a substantive violation can be a little bit blurry.

[00:22:53] Speaker 01:
But notwithstanding that dividing line, I think clearly the issue would be whether or not that

[00:23:04] Speaker 01:
violation has resulted in a denial of FAPE, one element of which is certainly being educated in the general education curriculum with non-disabled peers to the greatest extent possible, which, again, we think that the hearing officer did address below, but has not been made any kind of focal point of the issues on appeal to the district court.

[00:23:35] Speaker 00:
My understanding was that they're arguing a systemic challenge in order to justify the fact they didn't have a procedural default when they didn't raise all of these issues uniquely with the hearing examiner because they say the hearing examiner can't give us a ruling

[00:23:55] Speaker 00:
on large legal interpretations that are systemic challenges.

[00:24:00] Speaker 00:
So I think they're arguing that in order to address the fact they didn't raise this in me.

[00:24:06] Speaker 01:
Right.

[00:24:07] Speaker 01:
And to that point, that certainly isn't an argument that has been raised.

[00:24:11] Speaker 01:
And I do think that the facts and circumstance of this case can definitely be distinguished from those other systematic type cases.

[00:24:25] Speaker 01:
So in Murray, for example,

[00:24:29] Speaker 01:
and Urban were able to distinguish, well, Urban actually distinguished the New Mexico Association case because it said, listen, that

[00:24:45] Speaker 01:
You know, New Mexico Association, very interesting factual circumstances, right, but that went back to the statewide failure to adopt IDEA, really, and so it was extremely broad.

[00:25:02] Speaker 01:
The court, I think very well justified, said these are not the kinds of things that can be addressed on any kind of individual basis.

[00:25:09] Speaker 00:
This is a fairly systemic claim, too, that you have a HUD system systemly.

[00:25:15] Speaker 00:
Your system does that analysis by HUD, and that circumvents the individualized treatment program.

[00:25:24] Speaker 01:
But I don't think that these cases can only be addressed on a systemic basis, because we have two plaintiffs here.

[00:25:31] Speaker 01:
But these, and this goes to Urban as well, these cases are exactly the kinds of issues that need to be addressed on an individualized basis with the benefit of a full administrative record below.

[00:25:47] Speaker 01:
Because what is the district court supposed to review?

[00:25:50] Speaker 01:
It's supposed to review the administrative record, not act

[00:25:55] Speaker 01:
as its own arbiter of what is, in fact, appropriate for children and the degree to which it is appropriate for them to be mainstreamed.

[00:26:05] Speaker 01:
They need the benefit of that administrative record from hearing officer, which then is entitled to that prima facie presumption of correctness.

[00:26:16] Speaker 01:
And without that, the district court is just making things up as it goes along.

[00:26:23] Speaker 00:
But are they correct or incorrect?

[00:26:24] Speaker 00:
in saying that what we're really challenging here is the initial determination under their HUB based on our test scores.

[00:26:42] Speaker 00:
And we think that that general policy that applies to all kids is wrong.

[00:26:48] Speaker 00:
They say if they had raised that to a hearing examiner, the hearing examiner would say, I can't rule on that.

[00:26:53] Speaker 00:
That's too systemic.

[00:26:55] Speaker 00:
And so they're now saying, well, that's why we didn't exhaust.

[00:26:58] Speaker 00:
That's why we didn't raise it there, because it is the kind of claim that can only be brought in district court.

[00:27:03] Speaker 00:
Is that right or wrong?

[00:27:06] Speaker 01:
I think it's right that, in fact, the hearing officer did say, I'm not going to consider your systemic claims.

[00:27:11] Speaker 01:
But I think that each individual child

[00:27:15] Speaker 01:
should bring an administrative action there because only with the benefit of that administrative record can we determine whether or not in fact an IEP team did

[00:27:29] Speaker 01:
make a decision regarding LRE and what factors went into that.

[00:27:33] Speaker 02:
The district court, don't they have the ability to take additional evidence?

[00:27:38] Speaker 02:
And wouldn't this be the type of case where you could take additional limited evidence about whether there was this categorical type of action on the part of the school district?

[00:27:49] Speaker 02:
And couldn't it do that and resolve it based on that, on a motion, essentially,

[00:27:56] Speaker 01:
The district court certainly does have authority to take evidence, but I would posit that the limited amount of evidence that they should take, it

[00:28:07] Speaker 01:
These are fact-intensive, evidentiary-intensive decisions.

[00:28:12] Speaker 01:
The record from this lower court, the hearing officer decision, is voluminous.

[00:28:18] Speaker 01:
Four days of hearing about issues related to this child's individual needs.

[00:28:26] Speaker 01:
I don't think that is intended to be the structure and the role for the district court on

[00:28:33] Speaker 01:
an appeal of these, and so I do think that each of these cases should be exhausted rather than being heard on a systemic level.

[00:28:43] Speaker 01:
And I see that I'm over, and I'm happy to take any additional questions, but I thank you for your time today.

[00:29:03] Speaker 04:
Yes, just a couple of, if I can make this work, just a couple of quick points that I think are critical.

[00:29:10] Speaker 04:
One, in terms of the relief that we requested.

[00:29:13] Speaker 04:
I think if this were a case that does, as Appellee suggests, that was only about location, here's how the relief would look.

[00:29:20] Speaker 04:
It would say, we'd like you, the district, to put an essential elements class and an academic support class in every school in the district.

[00:29:27] Speaker 04:
That's the opposite of what my clients want.

[00:29:30] Speaker 04:
They're saying, please don't pre-assign me to that based on my IQ score.

[00:29:35] Speaker 04:
Will some kids with a fair reading and assessment and individualized look end up there?

[00:29:42] Speaker 04:
Sure.

[00:29:43] Speaker 04:
But they're entitled to that individualized look under both the ADA and the Rehab Act and the IDEA.

[00:29:50] Speaker 04:
And I think the other point that I wanted to make about exhaustion and the hearing officer's decision

[00:29:58] Speaker 04:
is that one, the hearing officer in EJ's case specifically said, I won't take evidence on the HUB system.

[00:30:03] Speaker 04:
You can't talk about the HUB system.

[00:30:06] Speaker 04:
I won't look at any similarly situated students.

[00:30:08] Speaker 04:
So to say that each student affected by the HUB system should come doesn't provide the kind of relief you need if you're not able to have the kind of evidentiary hearing that would lead to relevant evidence that affects your case.

[00:30:23] Speaker 04:
I think as a final point, I would say without

[00:30:26] Speaker 04:
the ability to at least challenge the hub system on the merits.

[00:30:30] Speaker 04:
There is no world in which EJ or HS or any of the other kids with intellectual disabilities and cognitive impairments at Salt Lake City in Salt Lake City School District will have a chance to the process that they are entitled to under the law.

[00:30:44] Speaker 04:
It won't matter how much progress they make on an IEP goal or a general education setting because their IQ isn't going to change.

[00:30:53] Speaker 04:
And that has to be wrong.

[00:30:56] Speaker 04:
And with that, I would ask that this court reverse.

[00:31:00] Speaker 02:
Thank you.

[00:31:01] Speaker 02:
Thanks to both counsels.

[00:31:02] Speaker 02:
You presented your cases very well today.

[00:31:04] Speaker 02:
We appreciate your argument.

[00:31:08] Speaker 02:
Counsel, I'll excuse.

[00:31:10] Speaker 02:
The case is submitted, and the court will be adjourned until the next call.