public servants aggravated perjury

8/19/2019 Public Servants Aggravated Perjury

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No. 15-10098

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________________

C.C., Individually, by and through his next friends, Charles Cripps and

Kristie Cripps; KRISTIE CRIPPS; CHARLES CRIPPS,

Plaintiffs, Appellants

v.

THE HURST-EULESS BEDFORD INDEPENDENT SCHOOL DISTRICT,

SCOTT HURBOUGH; DAMON EMERY,

Defendants, Appellees

______________________________________

Appeal from the United States District Court

Northern District of Texas

Fort Worth Division

USDC No. 4:14-CV-646 _____________________________________________

APPELLANTS’ PETITION FOR REHEARING EN BANC _____________________________________________

Respectfully submitted,

/s/ Martin J. Cirkiel

Martin J. Cirkiel

Texas Bar No. 00783829

Cirkiel & Associates, P.C.

1901 E. Palm Valley Blvd.

Round Rock, Texas 78664

(512) 244-6658 [Telephone]

(512) 244-6014 [Facsimile]

[email protected] [Email]

LEAD COUNSEL FOR APPELLANTS

Appellants Petition For Rehearing

Case: 15-10098 Document: 00513434512 Page: 1 Date Filed: 03/22/2016

mailto:[email protected]:[email protected]


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CERTIFICATE OF INTERESTED PERSONS

In compliance with Fed. R. App. P. 35 and Fifth Circuit Local Rule 35.2.1 and

28.2.l, Counsel notes the number and styling of this case, is as follows:

C.C., Individually, by and through his next friends, Charles Cripps and Kristie

Cripps, Plaintiffs-Appellants v. THE HURST-EULESS BEDFORD

INDEPENDENT SCHOOL DISTRICT, Scott Hurbough; Damon Emery,

Defendants- Appellees, No. 15-10098, IN THE UNITED STATES COURT OF

APPEALS, FOR THE FIFTH CIRCUIT.

Further, and also in compliance with these rules, the undersigned counsel for

Plaintiffs-Appellants certifies that they know of no other persons, associations of

persons, firms, partnerships or corporations that have an interest in the outcome of

this particular case save for the parties noted in the style of this case and their counsel

of record. These representations are made in order that the judges of this court may

evaluate possible disqualification or recusal.

/s/ - Martin J. Cirkiel

MARTIN J. CIRKIEL

Attorneys for Plaintiffs-Appellants

Appellants Petition For Rehearing ii



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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

I. RULE 35 STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. CASE REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

IV. CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

V. CERTIFICATE OF FILING AND SERVICE . . . . . . . . . . . . . . . . . . . . . . . 17

VI. CERTIFICATIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

VII. CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

VIII. APPENDIX (TRANSCRIPT OF ORAL ARGUMENT). . . . . . . . . . . . . . . . .

Appellants Petition For Rehearing iii



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TABLE OF AUTHORITIES

Federal Cases

Supreme Court Cases

Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 11

Barnes v. Gorman, 536 U.S. 181 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) .. . . . . . . . . . . . . . . . . . 1, 11

Davis v. Monroe County Board Of Education, 526 U.S. 629 (1999) . . . . . . . . . . 12

Youngberg v. Romeo, 457 U.S. 307 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Courts Of Appeal

Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5 th Cir. 2012) . . . . . . 1, 11

Carmichael v. Galbraith, 2014 WL 267590( 5 th Cir., June 19, 2014).. . . . 1, 2, 7, 11

Estate of Lance, 743 F.3d 982, 996 (5th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . 1, 2, 7

S.S. v. Kentucky Univ., 532 F.3d 445, 454 (6 th Cir. 2008) . . . . . . . . . . . . . . 1, 7, 12

D.A. ex rel. Latasha A. v. Houston I.S.D., 629 F.3d 450, 455 (5 th Cir. 2010). 1, 2, 7

Stewart v. Waco Indep. Sch. Dist., 711 F.3d 513, (5th Cir. 2013). . . . . . . 2, 3, 7, 14

Klein Indep. Sch. Dist. v. Hovem, 690 F.3d 390 (5th Cir. 2012).. . . . . . . . . . . . . . 3

Marvin H. v. Austin Indep. Sch. Dist., 714 F.2d 1348, 1356 (5th Cir.1983). . . . . 12

Delano-Pyle v. Victoria County, Texas, 302 F.3d 567(5th Cir. 2002).. . . . . . 12, 13

Appellants Petition For Rehearing iv



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District Courts

T.K. v. New York City Dept. of Educ., No. 10-cv-00752, 2011 U.S. Dist. LEXIS

44682, 2011 WL 1549243 (E.D.N.Y. April 25, 2011). . . . . . . . . . . . . . . . . . . . . . 15

Federal Statutes

20 U.S.C. 1401, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

29 U.S.C.A. §794 et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 6, 8, 10, 12

42 U.S.C. §1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Federal Rules Of Procedure

FED. R. P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 7, 13, 14

Federal Rules Of Appellate Procedure

FED. R. APP. P. 35(b)(1)(A).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

FED. R. APP. P. 35(b)(1)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

FED. R. APP. P. 40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appellants Petition For Rehearing v



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I. RULE 35 STATEMENT

1. Pursuant to Fed. R. App. P. 35(b)(1)(A), C.C. asks for Rehearing En

Banc on this Panel’s Decision, as it directly conflicts with the Supreme Court’s

decisions in Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009) and Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 557 (2007) regarding standards of review when affirming

or denying a Motion To Dismiss pursuant to Federal Rules Of Civil Procedure

12(b)(6).

2. In addition, the Panel’s Decision also conflicts with the Fifth Circuit’s

related decisions as to 12(b)(6) Motions, as noted in Bowlby v. City of Aberdeen,

Miss., 681 F.3d 215, 219 (5th Cir. 2012) and more recently in Carmichael v. Galbraith,

2014 WL 267590( 5th Cir., June 19, 2014) likewise regarding standards for affirming

or denying a Motion To Dismiss pursuant to Federal Rules Of Civil Procedure

12(b)(6).

3. Furthermore, the Panel’s Decision also conflicts with the Fifth Circuit

jurisprudence when failing to distinguish and consider differing standards of review

when a cause of action is based upon a hostile educational environment , construed

pursuant to Estate of Lance, 743 F.3d 982, 996 (5th

Cir. 2014)1

quoting S.S. v.

1. C.C. notes that both Lance, S.S. and D.A. were all cases decided upon Motions For

Summary Judgment. In fact, C.C. argued in his Reply Brief at p. 7, fn. 4 that all the cases cited by

the School District in support of their contention that C.C. was not a victim of discrimination

Appellants Petition For Rehearing 1



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Kentucky Univ., 532 F.3d 445, 454 (6 th Cir. 2008) and one based upon a gross

deviation from professional standards of care, as contemplated by D.A. ex rel.

Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 455 (5

th

Cir. 2010); see also

Stewart v. Waco Indep. Sch. Dist., 711 F.3d 513, (5th Cir. 2013)[unpublished]

withdrawn at June 13, 2013 ).

4. As C.C. has provided sufficient facts to raise an inference that the

conspiracy he experienced was based upon his disabilities or in addition and in the

alternative, he was a victim of discrimination based upon his disability, Rehearing by

the Panel is appropriate and warranted, as it necessary to secure and maintain

adherence to both controlling Supreme Court caselaw and the uniformity of decisions

within this Fifth Circuit Court of Appeals.2

5. More importantly, and additionally pursuant to Fed. R. App. P.

35(b)(1)(B), and as this Counsel noted at Oral Argument, this case also addresses

important public policy issues regarding what is termed the Schoolhouse To The

based upon disability, and not applicable. In fact, in the most recent cases coming out of the 5th

Circuit dealing with civil rights violations at a school at the 12(b)(6) stage, both sent the cases

back to the District Court. See Stewart v. Waco Indep. Sch. Dist., No. 11-51067, 2013 U.S. App.

LEXIS 11102 (5th Cir. 2013)[unpublished]) and see also Estate of Carmichael v. Galbraith, et al,

574 Fed. Appx. 286, 2014 U.S. App. LEXIS 11581 *8 (5th Cir., June 19, 2014)[unpublished].

2. Counsel is mindful of the extraordinary nature of this procedure and the fact that it is

often misused. Nevertheless the undersigned counsel, a practitioner in disability related law in

general and the area of special education law in particular since 1993, is firmly convinced that

the Panel’s Decision conflicts with a previous decision by this Court and more importantly, of

the Supreme Court.




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Jailhouse Pipeline. If the Panel Decision is left “as is” School Districts across this

circuit will be left with the clear message, staff can misrepresent facts before a

governmental agency like the Office of Civil Rights or an Administrative Hearing

Officer, steer a child with a disability towards jail rather than the class, conspire with

other staff members, and do so with impunity and without worry of liability.

6. It is a result that flies in the face of every federal law intended to protect

the disabled including and especially those related to children with a disability, see

Dissent of Chief Justice Stewart in Klein Indep. Sch. Dist. v. Hovem, 690 F.3d 390

(5th Cir. 2012)[approach taken by the majority undermines the rehabilitative purpose

of the IDEA], Section 504 of the Rehabilitation Act and common sense, all of which

are intended to protect children with disabilities, not those who conspire against them.

7. For this and all reasons noted above, a Rehearing En Banc is warranted.

II. CASE REVIEW

8. Appellants incorporate by reference all items noted in the case file,

including the entire Reporter’s Record (ROA.), as well as Appellants’ Brief ,

Appellee’s Response, Appellant’s Reply and the Oral Argument conducted on or

about January 8, 2016, all incorporated herein as if fully set forth. In addition, each

paragraph incorporates by reference the proceeding paragraph.

9. The Appellants filed a request with the T.E.A. complaining that the




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Appellee violated the rights of C.C., as contemplated by the Individuals With

Disabilities Education Act (“IDEA”), 20 U.S.C. 1401, et seq. [ROA. 150, ¶11, 75].

A Due Process Hearing was convened, and the Hearing Officer ruled in favor of the

Appellee on most relevant issues, and C.C. appealed to the Federal District Court

accordingly, with the Honorable Judge J. McBryde, Presiding. [ROA. 175, ¶143-149].

10. When filing his complaint, C.C. added claims related to violations of his

civil rights [ROA. 19] and amended the complaint [ROA. 146]. The District (and the

other Defendants) filed their Motions To Dismiss the civil rights claims (and not the

appeal of the IDEA proceeding)[ROA. 150, ¶11, 75]. Of note was their commentary

that C.C. was not a victim of discrimination based upon disability, but rather, and

parroting words from C.C.’s First Original Complaint that “the District took the

alleged action against C.C. in retaliation for Plaintiffs’ advocacy. [ROA. 348].

11. On December 24, 2014 Judge McBryde severed the IDEA appeal from

the civil rights violation case. He required C.C. to file an amended complaint for the

newly severed IDEA appeal case, but refused to let C.C. do so, in regard to the

constitutional claims. [ROA. 657, 630, 667]. As such the Judge solely relied upon

C.C.’s First Amended Complaint and granted the Appellees’ Motion To Dismiss.

Most relevant to this Rehearing was the following commentary by Judge McBryde:

“... Plaintiff’s complaint alleged no facts which, taken as true, would




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support a finding that the District intentionally discriminated against

him based upon disability. Plaintiff’s complaint lists a litany of

behavioral infractions, which may have caused the above described

actions, but plaintiff pleaded that such actions were based upon his

disability only in a conlusory fashion. Because plaintiff has failed to plead sufficient facts to support a plausible claim under the

Rehabilitation Act, such claim must be dismissed.” [ROA. 677, 678].

12. C.C. appealed the decision to Fifth Circuit [ROA. 691]. It included

claims that the District Judge erred in refusing to recognize his claims related to

retaliation, erred in denying his procedural and substantive due process, as well as

equal protection rights were violated and that the District violated his rights in a two-

fold manner. First, that staff grossly deviated from professional standards of care

when conspiring against him and second, and in a related vein, failed to provide him

a non-hostile educational environment, both pursuant to Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. §794. In doing so, he abandoned a Civil

Conspiracy Claim, pursuant to 42 U.S.C. §1985 (Appellants Brief at p. 1, 2, ¶3-9].

The School District, Appellee herein filed their Response and C.C. filed a Reply.

13. On January 8, 2016 Oral Argument was held before the Honorable

Circuit Court Judges, Higginbotham, Southwick and Higginson. [See App’x at p. 2-

33]. Counsel reported on the record he abandoned any constitutional claims and he

waived the argument the District Court erred by not permitting an amended complaint

[App’x at p. 4, l. 22-25]. As such, what survived were the two separate claims related




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to Section 504, the first based upon a gross deviation from professional standard of

care theory and the second based upon a hostile educational environment .

14. Counsel reiterated that if there are sufficient facts in the record to show

C.C. was a victim of retaliation based upon protected activity, i.e., the advocacy

undertaken on his behalf as child with a disability, then the allegation he was a victim

of discrimination based upon disability, when the retaliation took on the cloak of

conspiracy, was likewise based upon disability. [App’x at p. 8, l. 8-25, p. 9, l. 1-18].

15. Counsel also spoke to the issue, and not withstanding the retaliation =

disability discrimination issue, that C.C. was able to show he was a victim of

discrimination based upon disability, when simply construing the term “disability”

as “behaviors” (or “conduct”) with such facts replete in his Amended Complaint.

[App’x at p. 8, l. 1-11; p. 9, l. 14-18; p. 13, l. 10-22]. The Panel considered this

argument and questioned the ISD’s Counsel on that point. [App’x at p. 26, l. 6-25].

16. On March 9, 2016 the Panel issued an opinion, written by Justice

Higginson. It reviewed the procedural history noted above and further, discussed

C.C.’s claims pursuant to Section 504 and wrote:

“... Taking the allegations in the light most favorable to the Plaintiffs,the complaint attempts to allege discrimination in the form of hostile

environment. To sufficiently allege harassment in the form of hostile

educational environment under §504, the Plaintiffs must allege:




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(1) [C.C.] was an individual with a disability, (2) [C.C.] was harassed

based upon that disability, (3) the harassment was sufficiently severe or

pervasive that it altered the condition of his education and created an

abusive environment, (4) [Defendants] knew about the harassment, and

(5) [Defendants were] deliberately indifferent to the harassment.

3

Estateof Lance, 743 F.3d 982, 996 (5th Cir. 2014)4 quoting S.S. v. Kentucky

Univ., 532 F.3d 445, 454 (6th Cir. 2008). This Court has also held that

‘Facts creating an inference of professional bad faith or gross

misjudgement are necessary to substantiate a cause of action for

intentional discrimination under ¶504.’ D.A. ex rel. Latasha A. v.

Houston Indep. Sch. Dist., 629 F.3d 450, 455 (5th Cir. 2010).”5

17. The decision further noted, “Plaintiffs did not sufficiently plead the

conspiracy was based upon C.C.’s disability.” Moreover, “Plaintiffs did not allege

facts suggesting the Defendants acted against C.C. for any reason other than his

multiple behavioral infractions. The Plaintiffs also did not plead facts sufficient to

3. Both review of the School District’s Response and this opinion both agree that C.C.

was a student with a disability, that the harassment and conspiracy he experienced at the hands of

school personnel was severe or pervasive, that Defendants knew of the harassment and were

deliberately indifferent to it. The only issue apparently left for analysis, is whether the acts and

omissions of school personnel were “based upon his disability” as defined in the Panel’s

decision.

4. C.C. notes that both Lance, S.S. and D.A. were all cases decided upon Motions For

Summary Judgment. In fact, C.C. argued in his Reply Brief at p. 7, fn. 4 that all the cases cited by

the School District in support of their contention that C.C. was not a victim of discrimination

based upon disability, and not applicable. In fact, in the most recent cases coming out of the 5th

Circuit dealing with civil rights violations at a school at the 12(b)(6) stage, both sent the cases

back to the District Court. See Stewart v. Waco Indep. Sch. Dist., No. 11-51067, 2013 U.S. App.

LEXIS 11102 (5th Cir. 2013)[unpublished]) and see also Estate of Carmichael v. Galbraith, et al,

574 Fed. Appx. 286, 2014 U.S. App. LEXIS 11581 *8 (5th Cir., June 19, 2014)[unpublished].

5. As Counsel noted at Oral Argument the deliberate indifference standard was relevant to

the hostile educational environment claim, pursuant to Lance and S.S. but the gross deviation

from professional standards of care, was different as noted in D.A. and Judge Higonbotham’s

dissent in Stewart. As noted above, the Panel Decision failed to address this distinction.




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establish these behavioral infractions were the result of C.C.’s ADHD. The Plaintiffs

complaint merely states that his ADHD resulted in C.C. having difficulty in

‘Executive Functioning’ which [a]ffects his ability to manag[e] his social

environment, make good decisions and communicate in an appropriate manner.6“ The

Court found this proposition “conclusory” and affirmed the District Court’s Opinion

that the District did not discriminate against C.C. based upon disability as to the

hostile educational environment claim.

III. ARGUMENT AND AUTHORITIES

A. The Panel Erred As C.C. Provided Sufficient Evidence In His First Amended

Complaint That He Was A Victim Of Discrimination Based Upon Disability

As The Retaliation He Experienced (Based Upon His Disability) Manifested

Itself As A Hostile Educational Environment

18. While it is true that C.C.’s separate cause of action under Section 504

retaliation was not considered by the District Court, the underlying facts are still

relevant in this cause, especially since the Panel Decision did not address this issue.

19. First, it is absolutely uncontroverted that C.C. brought forward facts that

6. The Opinion also apparently relies upon the proposition that because there was a

Manifestation Determination Review which determined that the taking of the pictures in the

bathroom by C.C., was not a manifestation of his ADHD (or disabilities), then by extension the

conspiracy by school district officials against C.C. was likewise not due to his ADHD (or

disabilities). In due respect to the Panel, such reliance upon the MDR is misplaced. C.C. alleged

that acts rising to the level of a conspiracy, which have to be taken as true, occurred well-before

the picture taking incident and resultant MDR proceeding, and also well after. In addition, the

inference is clear, if the incident related to the MDR was not due to his disabilities (or behaviors)

than those not considered by the MDR, must in fact be related to his disabilities and behaviors.




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he was a victim of retaliation, based upon the advocacy on his behalf by his parents

and the retained Special Education Advocate. It is noted generally throughout the

First Amended Complaint [ROA. 147, ¶3; 149, ¶6; 155, ¶35; 156, ¶38, 40; 157, ¶46;

158, ¶50, 52; 159, ¶53; 160, ¶60]. It is underscored in facts raising an inference of

retaliation, noted during the Manifestation Determination Review proceeding [ROA.

161-163, ¶61-76] and when the District refused (emphasis added) to review his

placement in a Disciplinary Alternative Education Placement (“DAEP”) even after

the Juvenile Authorities dismissed the criminal charges against C.C. [ROA. 164, ¶79-

81]. Further, the Office of Civil Rights confirmed that C.C. made a prima facie

showing he was a victim of retaliation and discrimination, based upon his disability

due to the advocacy undertaken on his behalf. [ROA. 164-165, ¶82-85]7.

20. The School District Appellants, Hurbough [ROA. 303, 306], Emery

[ROA. 281, 284] and the District itself [ROA. 325, 328] filed their respective Motions

To Dismiss with the required Brief. Of particular note was their admission that:

“... In fact, Plaintiffs’ Complaint fails to tie any of the alleged actions of

HEB ISD to C.C.’s disability; to the contrary, Plaintiffs actually plead

7. The OCR later determined that the District had a non-retaliatory reason for the acts

taken against C.C. As noted in the Amended Complaint , C.C. contends the information given to

OCR by School Officials falsely characterized some of C.C. behaviors at school rose to the level

of sexual harassment which was not only false, but singularly prejudicial. [ROA. 165, ¶84]. As

the Amended Complaint later notes, it was not the only time school officials misrepresented facts

before a government official. [ROA. 168-171, ¶98-112; 174, ¶136-138; 178, ¶159]. Importantly,

allegations that School Officials made such misrepresentations must be taken as true.




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that the District took the alleged action against C.C. in retaliation for

Plaintiffs advocacy. [ROA. 348].

21. The District Court noted that C.C. had made factual allegations that he

was a victim of retaliation based upon disability, but refused to consider it as a

separate cause of action under Section 504 because it “...was not properly before the

Court.” [ROA. 686]. The Judge went on to describe the various allegations made by

C.C. that he a victim of a conspiracy by school district officials when

mischaracterizing evidence before the Office of Civil Rights and Texas Education

Agency, contacting other parents to file criminal charges against him, having a

teacher file an assault charge against him, failing to return him to the public school

when the juvenile justice authority dropped charges against him, as well as a

multitude of other allegations [ROA. 686-687].

22. The Judge denied C.C. claim he was a victim of discrimination based

upon his disabilities, as purportedly “there are no underlying factual allegations” that

the litany of actions noted above, “were undertaken due to his disability...” [ROA.

688]. C.C. appealed [ROA. 691] alleging the District Judge failed to consider that if

C.C. pled sufficient facts that he was a victim of retaliation based upon his

disabilities, and one such manifestation of that retaliation was to conspire against him

in the manner and particulars noted therein, then he has provided sufficient facts, and




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surely an inference that such conspiracy was likewise based upon his disabilities.

23. A review of the Panel Decision would evidence that it failed to address

at all, the relationship between the representation by C.C. and even the admission by

Counsel for the Appellees, that C.C. was a victim of retaliation, because his parents

and Special Education Advocate, had undertaken protected activity on his behalf. As

a matter of course, the complaint with the Office of Civil Rights and finding of

retaliation is solely predicated upon his status of child with a disability.

24. The failure to accept such facts by the Panel, and all the reasonable

inferences drawn therein, conflict with well-settled Supreme Court Law. Ashcroft v.

Iqbal, 556 U. S. 662, 678 (2009), see also Bell Atl. Corp. v. Twombly, 550 U.S. 544,

557 (2007) as well as Fifth Circuit Law, on same. Bowlby v. City of Aberdeen, Miss.,

681 F.3d 215, 219 (5th Cir. 2012); see also Carmichael v. Galbraith, 2014 WL

267590( 5th Cir., June 19, 2014). As such, C.C. believes that not only has he provided

an inference that the retaliation/discrimination he experienced was predicated upon

his disabilities/conduct/behaviors but has provided actual evidence in support of

same. For this reason alone the Panel Decision should be reheard.

B. The Panel Erred By Not Distinguishing The Differences In A Cause Of ActionBased Upon A Hostile Educational Environment As Compared To One

Brought Under A Gross Deviation From Professional Standards Of Care

25. Second, there does not appear to be any commentary or legal analysis in




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the Panel Decision based upon C.C.’s theory that professional staff at the School

District grossly deviated form professional standards of care in their mistreatment of

him. Rather the Panel Decision has seemed to incorrectly conflate the two.

8

26. As noted above, the focus of the analysis for violations of Section 504,

as to a hostile educational environment theory, is predicated upon the test in the

above noted section regarding a deliberate indifference standard, relying upon Davis

v. Monroe County Board Of Education, 526 U.S. 629 (1999) and the S.S. line of

analysis. In contrast, a cause of action related to a gross deviation of professional

standards of care rejects this deliberate indifference standard, Youngberg v. Romeo,

457 U.S. 307 (1982) and is, as C.C. states, more akin to the standard review of

discrimination based upon disability, as noted in Barnes v. Gorman, 536 U.S. 181

(2002) [city refused to provide necessary accommodations to person who was in

wheel-chair]; Delano-Pyle v. Victoria County, Texas, 302 F.3d 567(5th Cir. 2002)

[county refused to provide necessary accommodations for person who was hearing

impaired]. The 5th Circuit has further stated, in Marvin H. v. Austin Indep. Sch. Dist.,

714 F.2d 1348, 1356 (5th Cir.1983) that “A cause of action is stated under §504 when

8. C.C. re-urges the proposition and fact that since C.C. had Attention Deficit

Hyperactivity Disorder, with the related behaviors of distraction, not listening to directives or

following orders, not processing information normally and blurting out inappropriate comments

without regard of consequences, that the retaliation, conspiracy and hostile educational

environment imprinted upon him by School Officials, were absolutely due to his disabling

condition, the ADHD. [ROA. 147, fn. 2, 3].




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it is alleged that a school district has refused to provide reasonable accommodations

for the handicapped plaintiff to receive the full benefits of the school program.”

27. In the instant case, and at this stage of the pleadings C.C. only need show

he was a person with a disability and he did not receive accommodations by School

District personnel commensurate with unique and individualized needs and was

denied a public service afforded others, as did Barnes and Delano-Pyle.

28. Moreover, C.C. has provided significant factual support the School

District personnel failed to accommodate his disability, when, and among other

things, they refused to return him to the public school when the juvenile justice

authority dropped charges against him on multiple occasions [ROA. 163, ¶78;

164,¶79-81]; refused to see his various adolescent behaviors as manifestations of the

very same conditions he was receiving special education services for; refused to treat

him the same as his non-disabled peers for certain school code of conduct violations

[ROA. 149, ¶6]; when refusing to provide him counseling in a timely manner [ROA.

162, ¶65]; and among many other things, and refusing to treat his disabilities when

asking other parents and even a school teacher to file felony criminal charges against

him. [ROA. 148, ¶3; App’x. At p. 22, l. 16-25].9

9. In regard to this issue and under questioning the ISD’s Counsel admitted, based upon

C.C.’s pleadings at the 12(b)(6) stage, the allegation the ISD was refusing to deal with disability

when steering parents to file criminal charges against him “was true.” [App’x at p. 23, l. 1-4].




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29. As this Court has repeatedly reaffirmed “bad faith or gross misjudgment”

are just alternative ways to plead the refusal to provide reasonable accommodations

... In this view, it is immaterial whether the District explicitly refused to make

reasonable accommodations, professionally unjustifiable conduct suffices. Stewart

v. Waco Indep. Sch. Dist., 711 F.3d 513 (5th Cir. 2013). Surely, the number of

“refusals” noted above, would satisfy relevant criteria at the 12(b)(6) stage of the

pleadings. Of course if there is still any uncertainty as to whether or not the acts and

omissions of Appellees Hurbough and especially Emery, satisfied the standard of

“professionally unjustifiable conduct” we look no further, than the other facts pled,

taken as true that not only did they steer C.C. into prison and away from the

classroom, but misrepresented and mischaracterized essential facts, in doing so. For

this reason as well as the reason noted above, the Panel Decision should be reheard.

C. The Panel Decision Conflicts With Federal law And Strong Public Policy

30. The Panel Decision if left ‘as is’ would reinforce the worst type of

behaviors by public officials at the expense of not only children with disabilities, but

those with the types of disabling conditions that create a propensity steer the child

into the prison system, rather than the special education classroom. It would let public

officials believe they could mischaracterize evidence before an investigatory agency

like the Office of Civil Rights or a Tribunal like a Texas Education Hearing Officer,




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with no adverse results. It puts form over substance to the detriment of tens, if not

hundreds of thousands of children receiving special education services in this Circuit.

For this reason, perhaps most importantly, the Panel Decision should be reheard.

31. At Oral Argument the Panel was concerned that a finding for C.C.

“would open he floodgates.” [App’x at p. 20, l. 1-6]. Later, in the Decision the Panel

reiterated this concern when writing wrote “...if that conclusory statement was enough

to plead discrimination, any plaintiff would ADHD could attribute any conduct, no

matter how severe, to the disability.” This concern has been eloquently and fully

addressed and rejected in T.K. v. New York City Dept. of Educ., No. 10-cv-00752,

2011 U.S. Dist. LEXIS 44682, 2011 WL 1549243 (E.D.N.Y. April 25, 2011).

32. Of course, if one understands the full impact of the “School House To

Jailhouse Pipeline” on children with disabilities, maybe those floodgates need

opening. A Rehearing En Banc would be a good first step.

V. CONCLUSION AND PRAYER

33. For the all foregoing reasons the Appellant respectfully requests this

Panel GRANT this Petition For Rehearing , reverse the decision of the District Court

accordingly, and for any and all other relief that may be afforded, whether it be by

equity, by law or by both.




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Respectfully submitted,

/s/ Martin J. Cirkiel

Martin J. Cirkiel

Texas Bar No. 00783829Cirkiel & Associates, P.C.

1901 E. Palm Valley Blvd.

(512) 244-6658 [Telephone]

(512) 244-6014 [Facsimile]

[email protected] [Email]

COUNSEL FOR APPELLANTS

16




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VI. CERTIFICATE OF SERVICE

This is to certify that, on March 22, 2016, I electronically filed the foregoing

document with the Clerk of the Court using CM/ECF system, which will send

electronic notification of such filing to the following:

Ms. Meredith Prykryl Walker, Atttorney

[email protected] [Via Email]

Texas State Bar Number 240566487

Walsh, Anderson, Gallegos, Green & Trevino, P.C.

105 Decker Court

Suite 600

Irving, Texas 75062

(214) 574-8800 [Telephone]

(214) 574-8801 [Facsimile]

Attorneys For Appellee School District


Martin J. Cirkiel

Attorney Of Record For

Appellants-Plaintiffs

17




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VII. CERTIFICATIONS

I further certify that the (1) required privacy redactions (if any) have been

made, 5th Cir. R. 25.2.13; (2) the electronic submission is an exact copy of the paper

document, 5

th

Cir. R. 25.2.1 and (3) the document has been scanned for viruses withthe most recent version of a commercial virus scanning program and is free of

viruses.

I further certify that I will mail the correct number of copies of the foregoing

document to the Clerk of the Court.

I further certify that two (2) true and correct copies of the foregoing document

will be served to all counsel of record, once approved, via Overnight Mail by Federal

Express and addressed to Counsel, and the Clerk of The Court, as noted above.


Martin J. Cirkiel

Attorney Of Record For

Appellants-Plaintiffs

18



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CERTIFICATE OF COMPLIANCE

1. Pursuant to Fed. R. App. P. 32(a)(7)( c) and Local Rule 32.3, the

undersigned certifies this brief complies with the type-volume limitations of Fed. R.

App. P. 32(a)(7) and Local Rule 32.2 because:

X this brief contains 4,158 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and Local Rule 32.2,

or

this brief uses a monospaced typeface and contains __________

lines of text, excluding the parts of the brief exempted by Fed. R.

App. P. 32(a)(7)(B)(iii) and Local Rule 32.2.

2. Pursuant to Fed. R. App. P. 32(a)(7)(C) and Local Rule 32.3, the

undersigned certifies this brief complies with the typeface and type style requirements

of Fed. R. App. P. 32(a)(5) and (6) and Local Rule 32.1 because:

X this brief has been prepared in a proportionally spaced typeface

using Corel Word Perfect in 14 pt. Times New Roman, or

this brief has been prepared in a monospaced typeface using using

Corel Word Perfect in 10½ characters per inch Times New

Roman.

3. THE UNDERSIGNED UNDERSTANDS A MATERIAL

MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR

CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN FED. R. APP. P.

32(a)(7) AND LOCAL RULE 32.2, MAY RESULT IN THE COURT’S STRIKING

THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING

THE BRIEF.

/s/ Martin J. CirkielMartin J. Cirkiel, Esq.

19



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Audio Transcript of Oral Argument in 5th Circuit Court

DepoTexas, Inc.

1 IN THE UNITED STATES COURT OF APPEALS

2

3

FOR THE FIFTH CIRCUIT

4

5 C.C. INDIVIDUALLY, BY AND (

6 THROUGH HIS NEXT FRIENDS, (

7 CHARLES CRIPPS AND KRISTIE (

8 CRIPPS, (

9 Plaintiffs-Appellants, ( NO. 15-10098

10 VS. ( USDC No. 4:14-CV-646

11 HURST-EULESS-BEDFORD (

12 INDEPENDENT SCHOOL DISTRICT, (

13 ET AL., (

14 Defendants-Appellees. (

15

16

17

18

ORAL ARGUMENT

19

20

21 JANUARY 8, 2016

22

23

24

25 Transcribed by DONNETTE COWGILL

APPENDIX Case: 15-10098 Document: 00513434512 Page: 25 Date Filed: 03/22/2016


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DepoTexas, Inc.

1 P R O C E E D I N G S

2 MR. CIRKIEL: May it please the

3 Court. Counsel.

4 One short disclaimer, if I may. You may

5 hear in my voice I've been a little bit under the

6 weather this week, a little bit of that crud that's

7 going around. So if I cough or this or that or need

8 some water, please forgive me.

9 As this Court may know, and even some

10 members of this panel, frankly, I've dedicated my

11 life to representing children with disabilities, and

12 children in -- with disabilities in schools who have

13 been injured. So I follow the cases that this Court

14 writes in great, great detail.

15I have, over the course of my career,

16 represented hundreds of children in special

17 education cases and had a couple dozen cases filed

18 in federal court regarding very similar issues that

19 we're going to discuss today.

20 Now, I've thought a lot about this case,

21 and I will submit to you that I think this may be

22 the most important case I've ever had. And the

23 reason why is because while I'm here representing

24 [name redacted], I believe that the social and

25 policy and legal implications of the -- of this case



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DepoTexas, Inc.

1 regarding what's considered the schoolhouse-to-the-

2 jailhouse pipeline is something that I ask the Court

3 to be mindful of as they go back and review this

4 case, because I believe, as an attorney, one of the

5 things we look for is direction from the Court of

6 how we go forward. The lawyers on both sides need

7 that to represent their clients. And I would ask,

8 once again, that I think this is a very, very

9 important case because it deals with issues much,

10 much greater than [name redacted].

11 THE COURT: Counsel, you've used his

12 actual name twice. This recording will be posted at

13 the end of the day. So far the briefing and

14 otherwise has -- has not generally used his name, so

15

I'm not sure exactly why you're using --

16 MR. CIRKIEL: Yes, Your Honor.

17 THE COURT: -- his name, but you may

18 want to refer to him in a somewhat more generic way.

19 MR. CIRKIEL: I will, Your Honor.

20 Thank you very much for pointing that out.

21 The other issue that I think is incredibly

22 important, and it may, in fact, be an issue of first

23 impression for this Court, is we're creating the

24 distinction, under Section 504, the Rehabilitation

25 Act of 1973, as to what's the correct standard of



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DepoTexas, Inc.

1 review when we're looking at -- at a hostile

2 educational environment, perhaps a standard based

3 upon Davis and SS v. Kentucky regarding deliberate

4 indifference, as compared to what's called a gross

5 misjudgment or a gross deviation of professional

6 standard of care, which is also a separate Section

7 504 issue, which seems to have a different review.

8 And -- and in Stewart, Your Honor, in

9 Stewart 1, in the dissent, there was some discussion

10 about what that means, and also in Lance that --

11 that Judge Higginbotham -- Higginson wrote also,

12 there was a discussion about these cases.

13 So I think this is a very, very important

14 public policy issue for those attorneys that

15 represent children and those attorneys that

16 represent school districts as to what's the correct

17 standard of review that we need in those kind of

18 cases.

19 And then third, of course, is the general

20 standard of what's the standard of review in a

21 12(b)(6) motion.

22 To that end, I'd like to say that we're

23 going to abandon any of our constitutional claims.

24 We're going to abandon any of the claims related to

25 amending the complaint, because I think they --



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DepoTexas, Inc.

1 they're all both -- best subsumed by questions

2 related to the Section 504 basis (phonetic)--

3 THE COURT: So the due process and

4 equal protection arguments?

5 MR. CIRKIEL: All the constitutional

6 issues are out. You know, my theory, quite frankly,

7 Your Honor, is, I mean the constitutional claims are

8 always the most difficult. I think our -- our

9 strongest cases are on the -- the statutory claims

10 under Section 504. As I'll go into in a minute, I

11 think we meet the standard for a 12(b)(6) motion.

12 THE COURT: You're not going to --

13 you're not asserting the procedural due process

14 substantive claims, are you?

15 MR. CIRKIEL: Not at this point, Your

16 Honor. And the reason why -- I -- I can address

17 that once I --

18 THE COURT: You don't -- no, you

19 don't need to defend that. I -- I -- I -- you got

20 Harris v. Pontotoc -- said that a transfer is not

21 necessarily a denial of the procedure of due process

22 -- no underlying right. So you have no law against

23 you. So I'm not -- I just want to know what you're

24 saying.

25 MR. CIRKIEL: Yeah, that's why we



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DepoTexas, Inc.

1 just dropped it.

2 THE COURT: I understand.

3 MR. CIRKIEL: Yeah.

4 THE COURT: I understand. I think --

5 I think you did the right thing. I don't have any

6 problem with it.

7 MR. CIRKIEL: But to that end, I

8 would like to respond to all -- any and all

9 questions that y'all might have regarding the

10 pleadings in this case and how they do or do not

11 satisfy criteria under a 12(b)(6) motion, because I

12 think they do.

13 One of the issues -- I'm sorry, Your

14 Honor. It looks like you're going to ask me a

15 question.

16 THE COURT: Well, you -- you're

17 asking us for our input at this stage. I'd rather

18 respond to the arguments that you're making. So

19 please proceed.

20 MR. CIRKIEL: Fair enough, Your

21 Honor. Over the course of a very, very short period

22 of time, the school district professionals in this

23 case steered this young man, instead of into special

24 education services and the remedial accommodations

25 and modifications he's due under special education



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DepoTexas, Inc.

1 under Section 504, into the courthouse. Over the

2 course of a two-week period, the young man had

3 incidents where he spoke to a young lady and brought

4 up some comments about -- did she have -- was she

5 making porn. And the school district personnel

6 spoke to the parents and asked that the parents file

7 charges against the young man for sexual harassment.

8 A short while later the young man told a

9 little boy in class that he had a small penis. The

10 school district officials spoke to his parents and

11 asked them to file charges against the young man for

12 sexual harassment.

13 A little while later he belched in a boy's

14 face. The school district personnel spoke to their

15 parents and asked their parents to file charges

16 against him for sexual harassment.

17 A little bit later there was an incident

18 where he put a wet willie -- which is you put some

19 saliva on your finger and you put it in a boy's ear

20 -- and they went to those parents too and they asked

21 them to file charges against the young man for

22 sexual harassment -- or sexual assault.

23 The reason for that is because if it's a

24 sexual assault, it's in -- a felony -- and you get

25 the kid out of school. It's real simple.



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DepoTexas, Inc.

1 Now, we think those -- those claims show,

2 one, hostile education environment under Section

3 504. We think those claims alone show a gross

4 deviation from professional standards of care, also

5 under Section 504, because clearly, teachers are not

6 supposed to steer kids into jail. In fact, teachers

7 are supposed to steer kids out of jail.

8 Now, there was a question about -- and a

9 pleading issue about whether we satisfied criteria

10 that these types of acts and/or omissions rose to a

11 level of discrimination based upon disability.

12 And one of the subissues in this is that

13 was there concerns about retaliation. And early on

14 we had tried to add a claim solely based upon

15 retaliation, because actually, under Section 504,

16 there is another claim for retaliation when you

17 advocate on the behalf of someone with a disability.

18 We find that similarly in the ADA under Title IX.

19 People who advocate on behalf of a person in that

20 position is also protected; you can't retaliate

21 against them.

22 So the defendant wrote that we didn't --

23 we haven't proved that the child was discriminated

24 against or that there was a hostile education

25 environment against him based upon a disability or



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DepoTexas, Inc.

1 there was a gross deviation from professional

2 standards of care against him based upon a

3 disability -- is that we admitted that it was

4 retaliation.

5 But you see, that subsumes the question

6 because the retaliation was based upon protected

7 activity of representing someone with disability.

8 So clearly, if the -- if that underpinning

9 is based upon disability, then clearly, we've raised

10 an inference. And once you have -- we're at a

11 12(b)(6) motion, unlike Lance, which was a motion

12 for summary judgment. And in fact, Stewart was a --

13 was a motion to dismiss case as well.

14 I believed that we have raised sufficient

15 facts -- sufficient inferences to show that he was a

16 victim of discrimination based upon disability for

17 both -- I would almost call it opposite sides of the

18 -- of the same coin.

19 Any questions yet?

20 (No audible response.)

21 MR. CIRKIEL: No? Okay. Let me keep

22 going.

23 In addition, during the same period there

24 was a teacher that ran into the young boy. And the

25 teacher ended up filing assault charges in --



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DepoTexas, Inc.

1 against him for assault upon a public servant. This

2 was purposely done. They arranged for a teacher to

3 run into the boy, and then a few weeks later, they

4 filed charges against him. I would argue, once

5 again, that is -- that is a hostile educational

6 environment, and that is not something we want

7 teachers to do, setting kids up for -- for -- for

8 felony charges.

9 What I think, to me, really, in plain

10 English, took the cake, so a little boy is walking

11 through the hall one day, and he's tapping or

12 rubbing his pencil against the wall, and he hears

13 two teachers say, "Aha, now we can get him for

14 destruction of public property."

15 So we have a conspiracy in the whole

16 school that they want to get rid of this kid. Now,

17 granted, he does a lot of things that are stupid.

18 And like most kids, you know, thank God he's grown

19 up and he's beyond all that now, is doing quite

20 well.

21 But at the time, this was a conspiracy

22 across the school to get rid of this kid. And once

23 again, I believe, for 12(b)(6) purposes, it clearly

24 raises an inference of a hostile education

25 environment, and it clearly raises an inference of a



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DepoTexas, Inc.

1 gross deviation from professional standards of care.

2 And let me say, as we kind of get into

3 what those standards might be --

4 THE COURT: Well, before you --

5 MR. CIRKIEL: Yes, sir.

6 THE COURT: Judge McBryde -- there

7 isn't -- that -- I mean, most of your brief to us

8 and most of your arguments below were the

9 constitutional arguments that we're putting aside.

10 MR. CIRKIEL: Correct, Your Honor.

11 THE COURT: So Judge McBryde didn't

12 spend that much attention to this. But I thought

13 the essence of his argument was that even if you

14 take you allegations of a conspiracy, a hostility,

15 as true, you didn't allege any facts that it was

16 because of his disability, that instead, their --

17 their -- their -- their attention to him was because

18 of multiple behavior infractions, one that lets --

19 lets the police referral. And in fact, some of the

20 allegations that you assert would be inconsistent

21 with the insensitivity to the disability, because --

22 for example, what's it -- it's -- it's called the

23 MDR hearing.

24 MR. CIRKIEL: That's correct, Your

25 Honor.



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DepoTexas, Inc.

1 THE COURT: That's not a requirement

2 at all, but they gave him that. So he's in the

3 special educational program.

4 MR. CIRKIEL: Correct.

5 THE COURT: This toilet incident

6 occurs, and he gets the MDR hearing.

7 MR. CIRKIEL: Correct.

8 THE COURT: And -- and then the

9 referral to the police occurred after that. So --

10 so I thought Judge McBryde, on the -- the tail of

11 your arguments, the 504, was saying, "Let's accept

12 that there was some hostility. Those facts we

13 accept." But it wasn't solely because or even at

14 all because of the disability. No facts were

15 alleged as to that. And then --

16 MR. CIRKIEL: I think --

17 THE COURT: So that's my question.

18 But it -- even as you argue it now, it's a shift --

19 I hear you shift between -- not because of the

20 disability but because of frustration at the

21 advocacy relating to the disability?

22 MR. CIRKIEL: The -- two -- that's

23 correct, but I haven't shifted. Let -- let me --

24 better underscore might be a better term to use --

25 is that -- I'm going to -- how much time do I have?



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DepoTexas, Inc.

1 (No audible response.)

2 MR. CIRKIEL: Okay. Short anecdote.

3 One of the things I do besides this is work with the

4 magistrate in mental health court through Judge Guy

5 Herman, Travis County, Texas. And I go to the state

6 hospital, and we adjudicate whether or not people

7 need to be in the -- stay at the hospital. And one

8 of the things people always ask is what's the

9 person's diagnosis.

10 And my position, as magistrate, is I don't

11 care about his diagnosis. What's his behaviors? So

12 to answer your question, Your Honor, the issue is,

13 is that it was -- it was -- but if it's a student's

14 behaviors that got him in trouble. Those -- if you

15 look through our brief and their brief, and every

16 time you see the word "disability," put in the term

17 "behaviors," then absolutely, we have made arguments

18 that the discrimination that he bore was based upon

19 his behaviors, his disabilities.

20 And he was -- you know, he was accepted as

21 a student with a disability, so there's no question

22 about that. I hope that answers your question.

23 THE COURT: Well, what -- maybe be

24 precise -- what about the MDR hearing? Was that

25 required, or was that --



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DepoTexas, Inc.

1 MR. CIRKIEL: For him it was

2 required. And -- and -- and in fairness to

3 everybody here, one of the issues that occurred was

4 that when we -- when we appealed the case -- we went

5 through administrative exhaustion because, you know,

6 we've learned that we have to in all these cases.

7 So the -- the case originally went before

8 Judge McBryde and included both the appeal and the

9 separate cause of action, and he severed them. So

10 that's created a little bit of confusion even in the

11 original complaint, because we really had both

12 issues in there.

13 But once again, I want to underscore that

14 the reason there was the animus, the reason there

15 was the hostility, the reason there was the gross

16 deviation of professional standards of care was

17 based upon the student's behaviors. And those

18 behaviors are a disabling condition, part of which,

19 in fact, the school district provided services for.

20 THE COURT: Wouldn't there be some

21 dovetailing even in the 504 line of authority with

22 the Harris Navaras (phonetic) line, which is: How is

23 there a gross deviation if -- if the action taken

24 was referral to an alternative school that may be

25 able to assist the child to understand privacy



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1 limits?

2 MR. CIRKIEL: Well, that goes --

3 backwards a second -- answers the question about the

4 constitutional claims very briefly. You know, to

5 show bias and animus as a due process issue is very,

6 very difficult. But to show bias and animus as an

7 underlying issue for deliberate indifference or to

8 show bias and -- and animus as a condition that

9 drove the placement is a fact issue that I think

10 needs to go back to the district court for us to

11 explore.

12 THE COURT: But what's the case that

13 says there could be gross deviation from a referral

14 to an alternative school for a period of two months?

15 MR. CIRKIEL: Let me be direct, Your

16 Honor. I'm not bringing that up today. That's not

17 my --

18 THE COURT: But that's --

19 MR. CIRKIEL: That's not my question.

20 That's not the --

21 THE COURT: You --

22 MR. CIRKIEL: -- issue I'm bringing

23 before the Court. My issue before the Court is that

24 there was a course of conduct over a significant

25 period of time that -- that satisfies the standard



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DepoTexas, Inc.

1 of -- of hostile educational environment and a gross

2 deviation of professional standards of care. I

3 understand I have some rebuttal time. I'll -- I'll

4 use it at that point. Thank you very much.

5 THE COURT: Thank you, Counselor.

6 Ms. Walker, you can proceed, and you can

7 proceed in my absence. I'll be right back. Go

8 ahead.

9 MS. WALKER: Good morning. May it

10 please the Court. Counsel.

11 I'm Meredith Walker, and I'm honored to

12 represent Hurst-Euless-Bedford Independent School

13 District as well as Principal Hurbough and Vice

14 Principal Emery, who I guess no longer have claims

15 pending against them.

16 I want to start with the retaliation issue

17 that Mr. Cirkiel brought up. He told you at the

18 outset of his argument that he is not challenging

19 the repleading issue, so I'm unclear as to how or

20 why we would be discussing the retaliation issue.

21 As we -- as we put forth --

22 THE COURT: It's -- it's only under

23 the 504, as I understand it.

24 MS. WALKER: Yes. And so if --

25 THE COURT: We don't need to go back



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1 and revisit those things.

2 MS. WALKER: Yes, Your Honor. So

3 when we're looking at the 504 claims that

4 Mr. Cirkiel and plaintiffs have brought forward, the

5 question is, is: What standard are we looking at to

6 determine whether or not he has pled -- that

7 plaintiffs have pled a -- a cognizable claim to go

8 forward in this matter?

9 Mr. Cirkiel and plaintiffs, in their

10 brief, rely on the bad faith/gross misjudgment

11 standard that was discussed in both the vacated

12 Stewart opinion as well as in the Lance v.

13 Lewisville case.

14 And I think you have to go back and look

15

at D.A. (phonetic) v. Houston to get an idea of what 16 we believe the Fifth Circuit was doing when they set

17 forth the bad faith and gross misjudgment standard.

18 In D.A. v. Houston, the Court said, "We

19 concur that facts creating an inference of

20 professional bad faith or gross misjudgment are

21 necessary to substantiate a cause of action for

22 intentional discrimination under Section 504."

23 THE COURT: (Inaudible) the Court

24 said that -- granted your relief on the basis that

25 they did not -- it was not a sufficient pleading,



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1 that the conduct was because of the disability. Do

2 you -- you seem to be making some other -- defending

3 some other position.

4 MS. WALKER: Yes, and Mr. --

5 THE COURT: And I guess you are, and

6 I don't understand what you're saying.

7 MS. WALKER: Well, and plaintiffs

8 argue that they do because the -- the conduct that

9 the district allegedly engaged in was bad faith or

10 gross misjudgment. And our argument is that that

11 pleading standard doesn't even apply, and even if it

12 did, as you said, Your Honor, there's been no

13 connection between C.C.'s disabilities and the

14 alleged conduct -- or the alleged conduct by the

15 district. There's been --

16 THE COURT: But the Court held that

17 there wasn't, so --

18 MS. WALKER: Right. And -- and

19 plaintiffs haven't shown that there was. Just

20 because a student has a disability and engages in

21 misconduct doesn't automatically mean that the

22 student is being punished or being disciplined

23 because of the disability. There's got to be more.

24 You have to show that the action that's being taken

25 is solely because of the student's disability.



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DepoTexas, Inc.

1

2

3

4

5

6

7

8

9

10

11

Again, plaintiffs want to argue that the

bad faith/gross misjudgment standard applies, but

there's nothing in this case that's predicated over

a disagreement under the Individuals with

Disabilities Education Improvement Act. And they

haven't alleged that there's been a denial of FAPE

under 504, and they're not alleging in this case a

denial of FAPE under the IDEA. And so you've got to

look at strict discrimination, sole discrimination,

not this bad faith/gross misjudgment.

12 But again, there is a disconnect, because

13 there is no connection between the actions he's

14 engaged in and the conduct alleged against the

15 district.

16 THE COURT: What's -- what's your

17 best case for that proposition, which was the one

18 the district court ruled on --

19 MS. WALKER: That -- that --

20 THE COURT: -- if there's no

21 connection here?

22 MS. WALKER: I would go back to all

23 of the case law that says that you have to have --

24 discrimination is based solely -- or I'm sorry --

25 that the conduct has to be based solely on



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1 discrimination. And I haven't found any case law on

2 point looking at this direct issue. But again, if

3 every behavior gives rise -- excuse me -- every

4 behavior gives rise to a claim for disability

5 discrimination, then that's going to open the

6 floodgates.

7 And it goes back to what you were saying,

8 Judge Higginson, about the whole reason we have an

9 MDR proceeding is to prevent students from being

10 punished because of their disabilities. That's the

11 entire reason that exists. Before we --

12 THE COURT: What binding effect on

13 this case does that MDR result have? The fact that

14 there was a hearing independent of this lawsuit --

15 we're looking at a 12(b)(6), whether there are

16 sufficient allegations here. What relevance is that

17 at this stage?

18 MS. WALKER: At this stage the only

19 relevance that it has is just goes to show that

20 there was no -- that there was a mechanism in place

21 to ensure that he wasn't being punished because of

22 his disability. That's the relevance that that has

23 on this case.

24 THE COURT: Well, we have -- but

25 you're talking about whether the complaint is



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1 sufficient enough to have made that allegation. But

2 if the allegation were there of such treatment,

3 wouldn't that hearing be irrelevant?

4 MS. WALKER: No, I still think it's

5 relevant because of the reasons I stated, that it --

6 THE COURT: Because the procedure is

7 present?

8 MS. WALKER: Yes.

9 THE COURT: The school, to show their

10 good faith; no gross misjudgment, maybe; whatever

11 else?

12 MS. WALKER: Correct.

13 THE COURT: All right.

14 MS. WALKER: Because we followed --

15 we followed what we were supposed to do.

16 THE COURT: Why have -- why do you

17 refer these to the police -- an encounter between a

18 young student and a teacher, for charges? That's

19 the allegation.

20 MS. WALKER: Well, actually --

21 THE COURT: Why isn't that stepping

22 hard on the disability? I mean --

23 MS. WALKER: The allegation that

24 there was a conspiracy to have this teacher file

25 charges against the student --



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1 THE COURT: No, I'm not -- I'm not

2 talking about conspiracy. I said what -- I mean, my

3 question is, why do you -- why does the police --

4 why did the school district take an encounter in a

5 classroom and insist on bringing in the police force

6 behind that? We've seen that with truancy and

7 others.

8 If you -- you persist in arguing something

9 that (inaudible) district court's already ruled in

10 favor of you on these pleadings, they -- but I'll

11 just suggest to you, then, okay, let's talk about --

12 a little more about that and see where that goes.

13 And one of the things that it -- it takes you to is

14 that -- is he says that you were -- you were

15 referring these people for criminal charges.

16 And that seems to suggest that you're

17 doing that despite -- you're not treating his

18 disability; you're not dealing with that by calling

19 in the -- getting felony charges against him,

20 etcetera. I don't see how that helps the benefit of

21 the child, bringing in the police. And -- now, that

22 -- I don't know what happened. I'm just going by

23 pleadings. I don't suggest that that happened,

24 it -- but I -- he says it did, and I don't hear you

25 denying it.



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1 MS. WALKER: Well, I can't deny it at

2 this stage because we're at the 12(b)(6), so we have

3 to take his allegations as true. Now, there are

4 some allegations --

5 THE COURT: You transferred him to

6 another school. Why wasn't that sufficient?

7 MS. WALKER: He was transferred to

8 another school.

9 THE COURT: Yes.

10 MS. WALKER: Yes, and why -- it

11 wasn't the school district's choice as to whether or

12 not charges were brought against him. That's a

13 choice that's made by parents. And the district did

14 not need charges to be brought against him in order

15 to transfer him to the DAEP.

16 And I think that's where there might be a

17 disconnect with plaintiffs is there are allegations

18 that the district was continually referring him to

19 the police for felony charges in an effort to kick

20 him out of school. Well, the reality is, is that

21 whether or not charges are brought against him has

22 no bearing on whether the district --

23 THE COURT: Well, it depends on

24 whether the district is -- is a party to those --

25 filing those charges and how you handle the parents



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1 of those other children. He's alleging that,

2 essentially, what the school district does, in

3 conferring with the parents of the child that --

4 with the (inaudible) what's been done, then to

5 (inaudible) file charges. Now, I don't know what

6 happened, but I don't hear you saying that the

7 school doesn't -- doesn't discourage that.

8 MS. WALKER: Well, the district can't

9 file charges.

10 THE COURT: I'm sorry?

11 MS. WALKER: The district cannot file

12 charges.

13 THE COURT: I understand that. But

14 they could -- they could have a policy that -- that

15 encourages that to be done by the parents. I don't

16 -- I'm just asking questions, and I'm -- because

17 (inaudible) these pleadings. I didn't see that

18 alleged, but -- but you're -- I -- how you make your

19 argument. I --

20 MS. WALKER: Well, even assuming for

21 the facts of their -- for the purpose of other

22 12(b)(6) that that is true, I think that the issue

23 still goes back to there's no allegation that

24 Principal Herma -- Hurbough and Damon Emery -- Vice

25 Principal Emery were encouraging parents to file



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1 charges against C.C. because of his disability.

2 They're not saying, "Hey, come file these charges

3 against him because he has ADHD," or "Hey, file

4 these charges against him because we're providing

5 him with special education services." There's

6 nothing in the pleadings that say that.

7 THE COURT: Well, I assume that when

8 you have these incidents like that, that the parent

9 -- that the school people are -- are talking to the

10 parents of -- of the -- the other children.

11 MS. WALKER: Absolutely. You know,

12 when you look at your Title IX precedent --

13 THE COURT: And -- and that the

14 subject of charges is there brought up.

15 MS. WALKER: Well, according to

16 plaintiffs, yes. But when we -- the district was

17 not speaking to parents about filing charges.

18 THE COURT: Well, why would -- if --

19 if that's sufficiently pled, they -- why don't --

20 why isn't that a matter to be -- we're here on a

21 12(b)(6) motion. Why isn't he entitled to go

22 forward with that if he pleads it?

23 MS. WALKER: And the district still

24 goes back to because there's been no connection

25 between the special education services that were



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1 being provided to C.C. by the district and these

2 allegations that the principal and the vice

3 principal were kick -- trying to kick him out by

4 having charges filed against him because of his

5 disability.

6 THE COURT: Why isn't that because of

7 his disability? What else is it?

8 MS. WALKER: Well, plaintiffs

9 specifically pled, in their amended complaint, that

10 C.C. was -- "Like many other -- many other immature

11 prepubescent boys, he found great humor in making

12 fun of others, especially when it came to things

13 like flatulence, genital size, and various bathroom

14 activities." He's not even tying all of the things

15 that happened to his disability in the amended

16 complaint. He specifically says he was like other

17 boys who found humor in this information and

18 these -- this type of conduct.

19 THE COURT: Well, and you say, "Well,

20 it's just his conduct, that -- that we -- we're not

21 doing it because of his disability; we're doing it

22 because of his conduct." Now, his disability is the

23 -- is -- is -- his conduct is just a manifestation

24 of his disability. Now, you're cutting it pretty

25 thin, aren't you?



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1 MS. WALKER: Well, and if it --

2 THE COURT: The district court did.

3 MS. WALKER: And if his conduct is a

4 manifestation of his disability, that's where we go

5 back to the manifestation determination review, the

6 MDR, which is what ensures that children who are

7 receiving special education services are not

8 disciplined for conduct that was caused because of

9 their disability, which is why that is relevant,

10 because we did give him the MDR.

11 THE COURT: What was his disability,

12 then?

13 MS. WALKER: His disability, as pled,

14 is ADHD.

15 THE COURT: Is what?

16 MS. WALKER: ADHD, attention deficit

17 hyperactivity disorder, which is actually subsumed

18 under " other health impairment."

19 THE COURT: Thank you.

20 THE COURT: Part of their allegation

21 was that if -- if it -- if it really were not for

22 disability but for misconduct, then the school would

23 have some interest in the subsequent referrals

24 declination. And the allegation is that there was

25 no policy in place or no interest at all once the



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1 police decided there was nothing to pursue for

2 anyone to untransfer him back.

3 MS. WALKER: That's correct, because

4 school district decisions on discipline are not

5 dictated by what the prosecuting authorities do. In

6 fact, if you look at Texas state law, the Texas

7 Education Code specifically says that conduct

8 occurring on campus -- and this is indisputably

9 conducting occurring on campus when he took a

10 picture of another student using the bathroom -- no

11 question -- that conduct is specifically exempted

12 from the review when a prosecuting authority decides

13 not to -- not to pursue charges.

14 If it's conduct occurring on campus, the

15 Texas legislature says that school districts don't

16 have to reassess that. So if the Texas legislature

17 says that schools don't have to reassess that,

18 essentially giving them the opportunity to make

19 their own disciplinary decisions, then we don't see

20 how not reassessing it could give rise to any kind

21 of constitutional violation, constitute bad faith,

22 gross misjudgment, whatever standards you want to

23 look at.

24 The Texas legislature -- it -- it's not

25 even an issue of the statute being ambiguous; it



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1 specifically exempted him from that reassessment.

2 THE COURT: All right. Counsel, do

3 you have anything else?

4 MS. WALKER: I do not if there are no

5 other questions.

6 THE COURT: Okay. Thank you.

7 MS. WALKER: Thank you.

8 MR. CIRKIEL: May I approach?

9 THE COURT: Please.

10 MR. CIRKIEL: Thank you. A couple

11 points. Judge McBryde's order says that -- and I'm

12 going to read this, because I think it's relevant --

13 "Plaintiff's complaint allege no facts, which taken

14 as true, would support a finding that the district

15 intentionally discriminated against him based on his

16 disability.

17 "Plaintiff's complaint lists a litany of

18 behavioral infractions" -- and once again, when you

19 say behavioral, I think that means disability --

20 "which may" -- uses the term -- "may have caused the

21 above-described actions where plaintiff's pleaded

22 that such action was based upon his disability only

23 in a conclusionary fact -- fashion."

24 This might sound somewhat joking, but --

25 but I want it to be taken seriously. You know, one



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1 man's conclusionary fashion is another man's

2 inference. And it's my position that the inferences

3 in this case clearly rise to the level of the

4 pleading requirements we have under a 12(b)(6)

5 motion.

6 In

public servants aggravated perjury

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