schools versus March in the Clinton School District. Okay Mr. White. Thank you. My name is Greg White. I represent the Neville's. For purposes of my argument today I'm not going to try and dance around the names. The young victim is named Austin and his mother is Jamie. So if you, if I say those names you'll know who I'm talking about and it's short enough time that we can deal with that here. This is a case about discrimination against the disabled. There is a difference between the statutory scheme for disability discrimination than with others. When we read Title VII and Title IX it is a prohibition only. Do not discriminate. When we read Section 504 and we read the ADA there is not only this prohibition against discrimination but there are affirmative duties that persons in the educational context which 504 deals with must allow the disabled to participate and must provide for the disabled educational opportunities and must not discriminate. We are always tempted I think when we look at cases that involve children mistreating children to draw up on our own experience where we have seen our history, our children, our grandchildren's history and known that kids are mean to other kids. But this case is not about the kids. It is about the adults response to what they see. And 504 and the ADA say and I'm of course arguing it here, they tell the adults when you see children who are disabled being discriminated against it is your responsibility to stop that, to fix it
. It is not a responsibility perhaps that we in this room would always think can be accomplished which we always think it's a good idea. But for better or worse Congress has both required it and provided money to do it. So there is little that the adults can say here that absolutely excuses their failures as a matter of law. In this case the district court had two grounds for granting some rejudgment in favor of the school district. I'll paraphrase them because Judge Smith worked apparently very hard. Walter Smith I'm sorry, worked very hard to write an opinion here. But first of all the district court said that he was not convinced that the statements, that the actions taken by the adults in this case were related to the disability of Austin. And then second the district court said that he believed that the school district had made reasonable efforts to address the incidents. Now there are not just a couple of incidents here. The affidavit of Austin and his mother Jamie are included and they are clear and they are factual and they are detailed. We read in those affidavits that Austin had his clothes soaked up so that he couldn't wear them anymore. He had his shoes stolen. He had his brand new shoes that he bought to replace the stolen shoes thrown in a toilet and urinated on. He was slapped. He had rocks thrown at him. He had chemical, cleaner, sprayed in his face by students. He was kept in a room and I don't want to make it sound worse than it was but locked in a room
. And you read in there that it wasn't like he was in a jail cell but he was kept in a room until he urinated on himself. He was told by kids that they were hitting on his shoulders to fix his tics, his spasms that he had because of his Tourette syndrome. He was knocked off his crutches which he was wearing for an unrelated broken ankle and suffered a serious shoulder injury. He was slammed into the wall. He had his pants ripped off. Athletic kind of pants, not blue jeans. And he had one other student forced Austin's face into the other students' crotch. He also says that I have this condition for which I am being medicated, medicated in part by school district employees who give him his medicine at lunchtime. I mean medicated for what the doctor has said at Tourette's, it makes me have spasms, it makes me have tics. You know, I can't help it and when I have them badly, I can't see, I can't use my hands, I can't speak. It inhibits my ability to read, to learn and to be productive at school. All that's in the record and the affidavits that are attached to the response to the summary judgment outline all that stuff. The school says, oh, one, we didn't know he had Tourette's. A nice turn of the phrase, I think, because although the record does not include any doctors diagnosis given to the school, they were giving him his medication. The teachers saw what happened to him and how he was impacted by this condition that he had, whatever name they chose to give it. But to contend as they did and do in this court that they did not know that he had a disability is not served well by the record here. Nor is it served well by common sense when you read what they say happened and what Austin and his mother say happened
. I noticed that in your reply brief, you did not respond at all or mention the state of Lance case which was relied on heavily by the school district. So, I think that's a good question. So, I think that's a good question. So, Brian, do you agree that the Lance case properly sets forth the test and the elements from this circuit? Well, I think it sets forth the test. But, Judge Smith, could I point you to another one that is also recent and from a panel here, Carmichael. It's number 11, I'm sorry, number 12, 11, 07, 4, a June 2014 opinion out of this court. It was relied on heavily by Judge Walter Smith when he wrote his opinion. And the Carmichael case, I want to ask you about the Lance case. You have to understand. My antenna goes up when an appily relies extensively on a case and then the appellate doesn't even mention it in the reply brief. But, Lance really describes this test as one of deliberate indifference rather than as what you described in the first part of your argument as an affirmative obligation. Do you acknowledge that deliberate indifference is ultimately the test for liability? Absolutely. And I may not have made myself clear when I was talking about affirmative duties. The statute says you have to do these things. The failure to do them must be shown by deliberate indifference. Perhaps that would be better explained from my point of view. We acknowledge that Lance exists and we acknowledge that it states what the law is in this circuit
. But, of course, I think that all these cases, Lance, Carmichael, this case, kind of turn on what the record is in front of the court. Carmichael was a case where a young student committed suicide after being called names that directly related to his gender identification and sexual orientation. I mean, they called him a homo. And it was repeated. And they pulled his pants off and turned him upside down in a trash can and put it all out on a YouTube video. And when the courts below dealt with that, they said, oh, well, that YouTube video is just absolutely horrible. And that's really mean. That's only one time. When the court here, this court reversed Carmichael and set it back for trial, it said to be careful not to focus only on the most egregious of the events. Because the summary judgment record, I'm sorry, Carmichael was a pleating case. When the pleating say that parties continuously or daily were impacted by bullying or discriminatory conduct, you have to give credit to the daily or continuous as much as you have to give credit to the most egregious and detailed of the events. So I think the panel and Carmichael and Judge Dennis actually wrote an additional opinion in addition to the percurium there, reveals something that's more helpful here. That is that the summary judgment record and the reason these cases ought to go back for trial is because there is very much to learn from the credibility of both sides and many determinations yet to be made at trial. I think that the district courts determination that these events were not related to the disability, begs for a credibility determination. And I say it that way because this is a group of adults who know what all the children are saying, all the names they are calling and all the things that they're doing. And they could be construed to be doing the same thing to Austin. They sent him out of the room 15 times
. They told him, don't tattle on people when they say names about you or do bad things to you. Don't be a tattle tail. Write this down on a sheet of paper. I will not be a tattle tail over and over again. It's really your fault, Austin, that these people are doing this stuff to you because you tattle on them and you fight back when they call you names. You need to just grow up. It is fair for us to conclude that the school district not adults actually knew what was going on and they were contributing to Austin's problem as much as his peers were doing so. In addition, the district court concluded that the school district's responses to all of these incidents was reasonable. There is a different inference that can be drawn from the summary judgment evidence here. Children, adults, employers and administrators like to justify their wrongdoing. When they write up their memory of what happened, it often is not what it looked like at the time. It is reasonable to conclude that the school district's explanations that we thought Austin was misbehaving. We thought he was disruptive. Could easily be concluded to be, we were punishing Austin because he had ticks and spasms and he disrupted the class. That is exactly present in a fifth circuit case. Stuart versus Waco independent school district, that was a young lady who was sexually assaulted on a number of occasions. The school district's response to that was, will you need to just not be at school? She was a little bit mentally impaired
. The school district's attitude was, will she invited it or didn't mind it or it was okay with her and she consented but of course her mind was not really sufficient enough to understand what was going on. But if their response to it was, will you just need to go home and not come to school because you're not acting right where you're at school? And they said in their appeal, see we're just dealing with disciplinary issues. But the reality was they're dealing with a disabled person in a way that the law doesn't let them. You don't deal with disability problems by saying go home, go sit in the hallway, go do something else. Those cases follow the pattern that we see in rees versus sanders and plumbing. That is, you've got a plaintiff that says, I've got my discrimination case, the defendant comes in and says, here's my response to it. And the plaintiff says, well, I think it's all pretext. The Supreme Court says, all that evidence remains on the table. You can't just take the defendant's explanation, believe it and grant summary judgment. We also get instruction from tolin versus cotton, a recent case out of this court where the Supreme Court reminded us that witnesses on both sides come to a case with their own perceptions, recollections and even potential biases. It is for that reason that we have jury trials. And Carmichael, I think also is instructed there. Discrimination cases, no matter what they involve, are rarely marked by the smoking gun. They are more often proven by circumstantial evidence. And I think that this case certainly begs for the opportunity for someone to decide who is telling the story in a credible fashion, who in the universe of facts that we know is telling a story that is believable. And it does not offend our sense of justice to believe that juries should decide this case. I'll yield the rest of the time
. I've saved some for a bottle. Yes, you saved time for a bottle. Thank you, Mr. White. Mr. Robinson. I'm not pleased with the court. I'm Bridget Robinson representing the defendant, Apple Lee, Mark, Independent School District. With me is the principal of Mark Middle School, Dr. Tanya Nell, whose affidavit appears in the record on a pill of this case, as well as her contemporaneous documentation of the events about which plaintiffs complain. Your honors, the district court's very well-reasoned decision granting some rejudgment to the Mark Independent School District should be affirmed for a plethora of reasons. The district court properly found that the Mark Independent School District was not deliberately indifferent to any known disability-based harassment of AN. Similarly, the district court correctly held that even accepting as true plaintiffs' allegations of temporary and sporadic removal from the classroom approximately 15 times over a two and a half year period, based on what AN himself admitted was his own disruptive behavior. Did not result in the deprivation of benefits of services programs or activities of the Mark Independent School District. For those reasons alone, the district court's decision should be affirmed. It is clear in analyzing the causes of action pled by plaintiffs under both Section 504 and the Americans with Disabilities Act, that the plaintiffs cannot establish a Promethasia case or show the imposition of liability. Because they can't meet any of the elements required in this particular case
. As this court is well aware, under Lance mentioned by Justice Smith, plaintiff has to show that he was an individual with the disability. He was harassed based on that disability. The harassment was sufficiently severe or pervasive that it altered the condition of his education and created an abusive educational environment. The defendant knew about the disability based harassment and the defendant was deliberately indifferent to the harassment. Plaintiff mentioned in the briefs and again today that the alleged disability in this case is Tourette syndrome. However, it is clear from the documentation before the district court and in the record on appeal that there was no evidence ever presented to the school district that A.N. had Tourette syndrome or any other disability. The plaintiffs claim that the school district had to have known that A.N. allegedly had Tourette syndrome because they gave him medication. However, it is clear from the enrollment forms that Mrs. Neville submitted to the school district that there was never any medication listed for Tourette syndrome or any indication that A.N. had been convicted. The court was not interested in Tourette syndrome. Instead, when A
.N. was enrolled in fifth grade, Mrs. Neville spilled out his enrollment form and said that A.N. was taken clonidine and mentioned or wrote that his element was asthma. In his sixth grade year, Mrs. Neville's wrote that A.N. had ticks but listed no medications he was taking. In his seventh grade year, which was also the year that A.N. was ultimately withdrawn from the Mart Independent School District, Mrs. Neville's wrote that A.N. was taken gongfacine but that the elements she listed were only allergies and asthma. So the only two years of Mart Middle School enrollment forms that A.N
. had medication prescribed for him. It was the fifth grade year for asthma and the seventh grade year for allergies and asthma. Although on the sixth grade enrollment form, Mrs. Neville's wrote that A.N. had ticks, there was never anything noticeable about A.N. that anyone thought could actually have been ticks. As a matter of fact, as you see from the affidavits of A.N.'s teachers, such as Mr. Lairman, A.N. never had any ticks or unusual facial movements. We are talking about summary judgment. It seems to me there is some evidence here just from the way other kids reacted to them with some of the descriptive names they used against him that there was contrary evidence that he had these patterns, that he had some sort of ticks. You know that some of the judgment evidence better than I do. Isn't that in the record as well? There were never reports that the time A.N. was enrolled in the Mart Independent School District that any student called him the names that they now claim in the lawsuit on this appeal. For example, there is an allegation and A.N. signed a declaration claiming that he was called Spaz and Twitch, but there is nothing other than his unsupported allegations and his own self-serving declaration that support that allegation. We have contemporaneous documentation of everything that was reported during the time A.N. was a student at Mart ISD and there are some name calling incidents. But when you look at those incidents, they were all explained, all investigated and prompt remedial action was taken. We have some pretty definitive circuit law that says that unilateral self-serving declarations in affidavits can be sufficient to defeat some re-judgment. In other words, they account as evidence just as contravening affidavits might. Well, self-serving affidavits alone are insufficient as this court is aware under Cedar Hill. However, the district court not only viewed the evidence in the most favorable to plaintiffs regarding the alleged disability, the district court went a step further and actually accepted as true plaintiffs allegations of a disability. However, it is not clear even today that A.N. has Tourette syndrome because the only documentation in the record was submitted to the Mt
. Isn't that in the record as well? There were never reports that the time A.N. was enrolled in the Mart Independent School District that any student called him the names that they now claim in the lawsuit on this appeal. For example, there is an allegation and A.N. signed a declaration claiming that he was called Spaz and Twitch, but there is nothing other than his unsupported allegations and his own self-serving declaration that support that allegation. We have contemporaneous documentation of everything that was reported during the time A.N. was a student at Mart ISD and there are some name calling incidents. But when you look at those incidents, they were all explained, all investigated and prompt remedial action was taken. We have some pretty definitive circuit law that says that unilateral self-serving declarations in affidavits can be sufficient to defeat some re-judgment. In other words, they account as evidence just as contravening affidavits might. Well, self-serving affidavits alone are insufficient as this court is aware under Cedar Hill. However, the district court not only viewed the evidence in the most favorable to plaintiffs regarding the alleged disability, the district court went a step further and actually accepted as true plaintiffs allegations of a disability. However, it is not clear even today that A.N. has Tourette syndrome because the only documentation in the record was submitted to the Mt. Comm Independent School District, which A.N. currently attends in 2013 more than a year after he was withdrawn from the Mart Independent School District, in which A.N.'s doctor said that he had attention deficit. However, it is not clear that the report was submitted to the Dr. D. D. D. D. D. D. D. D. D. D. D
. Comm Independent School District, which A.N. currently attends in 2013 more than a year after he was withdrawn from the Mart Independent School District, in which A.N.'s doctor said that he had attention deficit. However, it is not clear that the report was submitted to the Dr. D. D. D. D. D. D. D. D. D. D. D. there was a reference to AEN as lawsuit. But there were also references by AEN to other students, such as booty liquor, he called students gay, and there was also an episode in which he called a student an L-fing B, except he used the actual profane terms rather than using the restricted terms. There was another incident in which AEN told a student to shut up during class, and the other students said, oh, that's a put-down word, which in their declarations, AEN now characterizes as being something that was said on the basis of disability, but that situation was diffused by the teacher in the room as Alan, who said that they could continue their argument in the office or be quiet and get back to work, and they were able to settle down and get back to work. The physical altercations in which AEN was involved at the school district involved other types of incidents which also showed no disability-based animus at all. For example, there was an incident on the football field at one point where AEN made some rude comments to a student who told AEN not to talk to him at which point AEN went over to that student, made a fist at extended his arm and put his fist on the student's chest. That student knocked away AEN's arm at which point AEN took his fist and hit the other student, and then that student slapped AEN. Both those students were counseled about their behavior, and they both received punishment as a result of that incident. There was another incident in which AEN went in the locker room, turned off the light switch, and stood in front of the light switch, so when another student tried to turn the lights back on, the student tried to move AEN out of the way, and AEN hit him, and the student responded in kind, and they were both punished and received ISS for fighting. There were incidents all of which were investigated, and in which prompt remedial action was taken because of the disciplinary infractions involved. The plaintiffs in this case complied about many incidents, including an incident in which Mrs. Neville's case was called Dr. Nell at home at night one evening, and claimed that AEN had been hit in the shoulder by another student. Although the plaintiffs claim that the shoulder injury was caused at school, it's clear that the shoulder injury was not caused at school. As a matter of fact, there is, in the record, at page 263, an EAR from a note from Mrs. Neville's, claiming that AEN had dislocated his shoulder, and they were in the emergency room until 4 a.m., we know that incident did not happen at school, as shown on the record at page 403, paragraph 25
. there was a reference to AEN as lawsuit. But there were also references by AEN to other students, such as booty liquor, he called students gay, and there was also an episode in which he called a student an L-fing B, except he used the actual profane terms rather than using the restricted terms. There was another incident in which AEN told a student to shut up during class, and the other students said, oh, that's a put-down word, which in their declarations, AEN now characterizes as being something that was said on the basis of disability, but that situation was diffused by the teacher in the room as Alan, who said that they could continue their argument in the office or be quiet and get back to work, and they were able to settle down and get back to work. The physical altercations in which AEN was involved at the school district involved other types of incidents which also showed no disability-based animus at all. For example, there was an incident on the football field at one point where AEN made some rude comments to a student who told AEN not to talk to him at which point AEN went over to that student, made a fist at extended his arm and put his fist on the student's chest. That student knocked away AEN's arm at which point AEN took his fist and hit the other student, and then that student slapped AEN. Both those students were counseled about their behavior, and they both received punishment as a result of that incident. There was another incident in which AEN went in the locker room, turned off the light switch, and stood in front of the light switch, so when another student tried to turn the lights back on, the student tried to move AEN out of the way, and AEN hit him, and the student responded in kind, and they were both punished and received ISS for fighting. There were incidents all of which were investigated, and in which prompt remedial action was taken because of the disciplinary infractions involved. The plaintiffs in this case complied about many incidents, including an incident in which Mrs. Neville's case was called Dr. Nell at home at night one evening, and claimed that AEN had been hit in the shoulder by another student. Although the plaintiffs claim that the shoulder injury was caused at school, it's clear that the shoulder injury was not caused at school. As a matter of fact, there is, in the record, at page 263, an EAR from a note from Mrs. Neville's, claiming that AEN had dislocated his shoulder, and they were in the emergency room until 4 a.m., we know that incident did not happen at school, as shown on the record at page 403, paragraph 25. However, because of the report, two Dr. Nell, by Mrs. Neville's, the AEN had been hit in the shoulder, even though the shoulder injury had not happened at school, we don't know if it happened in the outside P.W. Football League, the outside baseball league, or the youth rodeo, in which AEN participated. Dr. Nell took it upon herself to initiate a bullying investigation to determine what had happened. What she found had happened as a result of that bullying investigation was that while applying a vocabulary game, AEN was eliminated from the game, and sat in another student's chair. That student, P.A., was a student with whom AEN evidently held a grudge because that student had accidentally staffed on AEN's jacket the week before while it was in the floor in the gym room. At the end of class that day, AEN said to P.A. Baba and tried to shoulder into him, but P.A. turned so AEN would miss him, and P.A
. However, because of the report, two Dr. Nell, by Mrs. Neville's, the AEN had been hit in the shoulder, even though the shoulder injury had not happened at school, we don't know if it happened in the outside P.W. Football League, the outside baseball league, or the youth rodeo, in which AEN participated. Dr. Nell took it upon herself to initiate a bullying investigation to determine what had happened. What she found had happened as a result of that bullying investigation was that while applying a vocabulary game, AEN was eliminated from the game, and sat in another student's chair. That student, P.A., was a student with whom AEN evidently held a grudge because that student had accidentally staffed on AEN's jacket the week before while it was in the floor in the gym room. At the end of class that day, AEN said to P.A. Baba and tried to shoulder into him, but P.A. turned so AEN would miss him, and P.A. hit AEN in the back of the shoulder after he had hurt his shoulder. Dr. Nell found that there was bullying as a result of this investigation, even though the entire situation seemed to have been caused because of the accidental stepping on the jacket, which was on the floor of the gym the week before, because she found that P.A. had bullied and been inappropriate toward AEN. She not only punished P.A. suspended him, she also took other measures to try to make sure nothing like that would ever happen at the school district again. To address the conflicts, Dr. Nell scheduled teacher training on bullying for all of more ISD teachers, which was conducted by voices incorporated on February 21, 2011. In addition, there was a student presentation on bullying, which was conducted for the fifth and sixth grade boys on February 25, 2011. Dr. Nell also made a plan to bring Rachel's challenge to the school, which was a program designed to teach kindness and compassion to the students, and was presented on September 21, 2011 to the school district. All of those things that were done, the remedial action that was taken, the bullying investigations, all of the disciplinary action imposed against students, as well as the training for students and for staff, was in addition to the policies that the school district maintains, which prohibit discrimination on the basis of disability among any other protected characteristic, provide equal educational opportunity, and provide for anti-bullying rules and allow plaintiffs to file any complaints they want with the ADA 504 Title IX coordinator or Martin ISD Board of Trustees, which the district court properly found plaintiffs never did. All of those policies are in the record on appeal at pages 313-3352, but none of those were used by the plaintiffs in this case. Paintiffs also complain about an incident in which they claim A.N
. hit AEN in the back of the shoulder after he had hurt his shoulder. Dr. Nell found that there was bullying as a result of this investigation, even though the entire situation seemed to have been caused because of the accidental stepping on the jacket, which was on the floor of the gym the week before, because she found that P.A. had bullied and been inappropriate toward AEN. She not only punished P.A. suspended him, she also took other measures to try to make sure nothing like that would ever happen at the school district again. To address the conflicts, Dr. Nell scheduled teacher training on bullying for all of more ISD teachers, which was conducted by voices incorporated on February 21, 2011. In addition, there was a student presentation on bullying, which was conducted for the fifth and sixth grade boys on February 25, 2011. Dr. Nell also made a plan to bring Rachel's challenge to the school, which was a program designed to teach kindness and compassion to the students, and was presented on September 21, 2011 to the school district. All of those things that were done, the remedial action that was taken, the bullying investigations, all of the disciplinary action imposed against students, as well as the training for students and for staff, was in addition to the policies that the school district maintains, which prohibit discrimination on the basis of disability among any other protected characteristic, provide equal educational opportunity, and provide for anti-bullying rules and allow plaintiffs to file any complaints they want with the ADA 504 Title IX coordinator or Martin ISD Board of Trustees, which the district court properly found plaintiffs never did. All of those policies are in the record on appeal at pages 313-3352, but none of those were used by the plaintiffs in this case. Paintiffs also complain about an incident in which they claim A.N. was sprayed in the eyes with sanitizer, but it is clear from the record that that was reported as an accident in Mr. Lerman's class, as a matter of fact, when he was asked how he got the spray in his eyes, while the students were cleaning their desks, a N. told Mr. Lerman that he didn't know, and then he told Wendy Cubs, who was the school secretary, and helped him wash out his eyes, that it was an accident, and thus an accident report was filled out. Even plaintiffs admit that they never reported the spray sanitizer as an intentional act, and that's shown in the record on appeal at page 171-admission number 4. So the things they complain about now, either didn't happen at all, or did not happen the way that plaintiffs allege. However, even when you look at what plaintiffs admit occurred, it is clear that the school district was not deliberately indifferent in this case, and the district court properly held. For all those reasons, as well as those articulated in the brief, the district court's well-reasoned decision should be affirmed. All right, thank you, Ms. Robinson. Why, you've said a time for a buttold. The case then presents, who do you believe? Do you think that the school district has explained this well? Do you think that their story is better and more believable? Do you think that it's more detailed? If that is the thought process, then this is not a summary judgment. This is a trial, because that's what jury decide. Who is more believable? Who's story fits the known facts better? Who is more credible about what they are saying? All, and it's just blatantly obvious. All affidavits at summary judgment are self-serving. That's the point. Putting in your own proof and writing up your own affidavits
. was sprayed in the eyes with sanitizer, but it is clear from the record that that was reported as an accident in Mr. Lerman's class, as a matter of fact, when he was asked how he got the spray in his eyes, while the students were cleaning their desks, a N. told Mr. Lerman that he didn't know, and then he told Wendy Cubs, who was the school secretary, and helped him wash out his eyes, that it was an accident, and thus an accident report was filled out. Even plaintiffs admit that they never reported the spray sanitizer as an intentional act, and that's shown in the record on appeal at page 171-admission number 4. So the things they complain about now, either didn't happen at all, or did not happen the way that plaintiffs allege. However, even when you look at what plaintiffs admit occurred, it is clear that the school district was not deliberately indifferent in this case, and the district court properly held. For all those reasons, as well as those articulated in the brief, the district court's well-reasoned decision should be affirmed. All right, thank you, Ms. Robinson. Why, you've said a time for a buttold. The case then presents, who do you believe? Do you think that the school district has explained this well? Do you think that their story is better and more believable? Do you think that it's more detailed? If that is the thought process, then this is not a summary judgment. This is a trial, because that's what jury decide. Who is more believable? Who's story fits the known facts better? Who is more credible about what they are saying? All, and it's just blatantly obvious. All affidavits at summary judgment are self-serving. That's the point. Putting in your own proof and writing up your own affidavits. It's self-serving because nobody gets to cross-examine your affidavit. Nobody gets to judge the people who are signing these papers. That's all reserved for trial. It's unfair to conclude that one side has made self-serving. Affidavits and the other has not. That simply begs a court, like this court, to decide that one's side's story is better than the other. It is also important to realize that what we are asking here is that the court decide whether to believe that some parties assertions about state of mind or intent are to be believed. It is hardly surprising that a party that has been accused of being indifferent or intentionally doing wrong would be able to put in affidavits that say, no, I was not indifferent. No, I was not intentionally wrong. But the courts have traditionally been reluctant to decide issues of state of mind on summary judgment. I just refer the court back to that toll-in case that says everybody is going to come to these things with a different perception and different recollections. They are going to present them in a way that they want them presented. It is for jury's ultimately determined how these things should be decided. Which one is more credible? There is a rather remarkable argument, and this will be the last thing that I will take up, that none of the incidents are disability related. I think ignores totally the evidence that Austin said that I was daily called a spaz, a tick, a retard, tick-tock, and things like that. To believe that none of the events had anything to do with that name calling, that there was some wall of separation between what they called him at one point in time and what they did to him at another makes no sense. It is far more sensible in the scheme, I mean everyone's experience, to understand that when children call each other names, there's going to accompany it physical conduct or perhaps even from Austin's viewpoint a reaction to it
. It's self-serving because nobody gets to cross-examine your affidavit. Nobody gets to judge the people who are signing these papers. That's all reserved for trial. It's unfair to conclude that one side has made self-serving. Affidavits and the other has not. That simply begs a court, like this court, to decide that one's side's story is better than the other. It is also important to realize that what we are asking here is that the court decide whether to believe that some parties assertions about state of mind or intent are to be believed. It is hardly surprising that a party that has been accused of being indifferent or intentionally doing wrong would be able to put in affidavits that say, no, I was not indifferent. No, I was not intentionally wrong. But the courts have traditionally been reluctant to decide issues of state of mind on summary judgment. I just refer the court back to that toll-in case that says everybody is going to come to these things with a different perception and different recollections. They are going to present them in a way that they want them presented. It is for jury's ultimately determined how these things should be decided. Which one is more credible? There is a rather remarkable argument, and this will be the last thing that I will take up, that none of the incidents are disability related. I think ignores totally the evidence that Austin said that I was daily called a spaz, a tick, a retard, tick-tock, and things like that. To believe that none of the events had anything to do with that name calling, that there was some wall of separation between what they called him at one point in time and what they did to him at another makes no sense. It is far more sensible in the scheme, I mean everyone's experience, to understand that when children call each other names, there's going to accompany it physical conduct or perhaps even from Austin's viewpoint a reaction to it. To then believe that this has been going on for two and a half years and no administrator ever saw any of it happen. Also is completely out of line with the summary judgment evidence. Jamie. But there was nothing in the record to definitively indicate the presence of a disability. Right? I mean all these prescription records and things have those been accurately described to us. Their records, they have described their own records accurately. But there's no doubt that teachers knew that Austin did the things that he said that is I had spasms. At times I could not do anything related to my schoolwork because the ticks that I had were so bad. To believe that teachers didn't know that that was a medical problem, belies reality. You can't imagine. Well what doesn't it belie reality that if there was a significant disability of any kind in prescriptions being given that the school would have been provided records of some kind of a diagnosis or some reason other than things like allergies and asthma for the prescriptions. You can go ahead and answer that. I don't think that everyone, every parent understands that they have an obligation to tell the school district every medical problem and every diagnosis their child has ever received. If they've gone to school and said to the nurse, here is the medicine my son needs. Would you give it to him at lunch? And it's for allergies and asthma, right? Well, she also said it was for ticks but regardless of what she says it's for. You know, if the teacher sees what is going on that is that the kid has spasms and ticks all the time, you can't say that they have no idea that that's a medical problem. All right
. To then believe that this has been going on for two and a half years and no administrator ever saw any of it happen. Also is completely out of line with the summary judgment evidence. Jamie. But there was nothing in the record to definitively indicate the presence of a disability. Right? I mean all these prescription records and things have those been accurately described to us. Their records, they have described their own records accurately. But there's no doubt that teachers knew that Austin did the things that he said that is I had spasms. At times I could not do anything related to my schoolwork because the ticks that I had were so bad. To believe that teachers didn't know that that was a medical problem, belies reality. You can't imagine. Well what doesn't it belie reality that if there was a significant disability of any kind in prescriptions being given that the school would have been provided records of some kind of a diagnosis or some reason other than things like allergies and asthma for the prescriptions. You can go ahead and answer that. I don't think that everyone, every parent understands that they have an obligation to tell the school district every medical problem and every diagnosis their child has ever received. If they've gone to school and said to the nurse, here is the medicine my son needs. Would you give it to him at lunch? And it's for allergies and asthma, right? Well, she also said it was for ticks but regardless of what she says it's for. You know, if the teacher sees what is going on that is that the kid has spasms and ticks all the time, you can't say that they have no idea that that's a medical problem. All right. Thank you Mr. White. I think Judge Riegel wanted to mention something. Now let me say this to the council. I have decided a long time ago doing this and I've been doing it a long time. How important it is for fellow judges to read the record of the case below. I think we fail at that point more often than we fail anything else. Even though competent lawyers argue and write briefs and both of you, not only are competent, but you have shown it, displayed it by your arguments today, you certainly know your records and you bring your cases forward well. I just want to assure both of you that in this case at least one of the judges on this panel is going to read every page of the record. Thank you. All right. Your case and all of today's cases are under submission and the court is in.
schools versus March in the Clinton School District. Okay Mr. White. Thank you. My name is Greg White. I represent the Neville's. For purposes of my argument today I'm not going to try and dance around the names. The young victim is named Austin and his mother is Jamie. So if you, if I say those names you'll know who I'm talking about and it's short enough time that we can deal with that here. This is a case about discrimination against the disabled. There is a difference between the statutory scheme for disability discrimination than with others. When we read Title VII and Title IX it is a prohibition only. Do not discriminate. When we read Section 504 and we read the ADA there is not only this prohibition against discrimination but there are affirmative duties that persons in the educational context which 504 deals with must allow the disabled to participate and must provide for the disabled educational opportunities and must not discriminate. We are always tempted I think when we look at cases that involve children mistreating children to draw up on our own experience where we have seen our history, our children, our grandchildren's history and known that kids are mean to other kids. But this case is not about the kids. It is about the adults response to what they see. And 504 and the ADA say and I'm of course arguing it here, they tell the adults when you see children who are disabled being discriminated against it is your responsibility to stop that, to fix it. It is not a responsibility perhaps that we in this room would always think can be accomplished which we always think it's a good idea. But for better or worse Congress has both required it and provided money to do it. So there is little that the adults can say here that absolutely excuses their failures as a matter of law. In this case the district court had two grounds for granting some rejudgment in favor of the school district. I'll paraphrase them because Judge Smith worked apparently very hard. Walter Smith I'm sorry, worked very hard to write an opinion here. But first of all the district court said that he was not convinced that the statements, that the actions taken by the adults in this case were related to the disability of Austin. And then second the district court said that he believed that the school district had made reasonable efforts to address the incidents. Now there are not just a couple of incidents here. The affidavit of Austin and his mother Jamie are included and they are clear and they are factual and they are detailed. We read in those affidavits that Austin had his clothes soaked up so that he couldn't wear them anymore. He had his shoes stolen. He had his brand new shoes that he bought to replace the stolen shoes thrown in a toilet and urinated on. He was slapped. He had rocks thrown at him. He had chemical, cleaner, sprayed in his face by students. He was kept in a room and I don't want to make it sound worse than it was but locked in a room. And you read in there that it wasn't like he was in a jail cell but he was kept in a room until he urinated on himself. He was told by kids that they were hitting on his shoulders to fix his tics, his spasms that he had because of his Tourette syndrome. He was knocked off his crutches which he was wearing for an unrelated broken ankle and suffered a serious shoulder injury. He was slammed into the wall. He had his pants ripped off. Athletic kind of pants, not blue jeans. And he had one other student forced Austin's face into the other students' crotch. He also says that I have this condition for which I am being medicated, medicated in part by school district employees who give him his medicine at lunchtime. I mean medicated for what the doctor has said at Tourette's, it makes me have spasms, it makes me have tics. You know, I can't help it and when I have them badly, I can't see, I can't use my hands, I can't speak. It inhibits my ability to read, to learn and to be productive at school. All that's in the record and the affidavits that are attached to the response to the summary judgment outline all that stuff. The school says, oh, one, we didn't know he had Tourette's. A nice turn of the phrase, I think, because although the record does not include any doctors diagnosis given to the school, they were giving him his medication. The teachers saw what happened to him and how he was impacted by this condition that he had, whatever name they chose to give it. But to contend as they did and do in this court that they did not know that he had a disability is not served well by the record here. Nor is it served well by common sense when you read what they say happened and what Austin and his mother say happened. I noticed that in your reply brief, you did not respond at all or mention the state of Lance case which was relied on heavily by the school district. So, I think that's a good question. So, I think that's a good question. So, Brian, do you agree that the Lance case properly sets forth the test and the elements from this circuit? Well, I think it sets forth the test. But, Judge Smith, could I point you to another one that is also recent and from a panel here, Carmichael. It's number 11, I'm sorry, number 12, 11, 07, 4, a June 2014 opinion out of this court. It was relied on heavily by Judge Walter Smith when he wrote his opinion. And the Carmichael case, I want to ask you about the Lance case. You have to understand. My antenna goes up when an appily relies extensively on a case and then the appellate doesn't even mention it in the reply brief. But, Lance really describes this test as one of deliberate indifference rather than as what you described in the first part of your argument as an affirmative obligation. Do you acknowledge that deliberate indifference is ultimately the test for liability? Absolutely. And I may not have made myself clear when I was talking about affirmative duties. The statute says you have to do these things. The failure to do them must be shown by deliberate indifference. Perhaps that would be better explained from my point of view. We acknowledge that Lance exists and we acknowledge that it states what the law is in this circuit. But, of course, I think that all these cases, Lance, Carmichael, this case, kind of turn on what the record is in front of the court. Carmichael was a case where a young student committed suicide after being called names that directly related to his gender identification and sexual orientation. I mean, they called him a homo. And it was repeated. And they pulled his pants off and turned him upside down in a trash can and put it all out on a YouTube video. And when the courts below dealt with that, they said, oh, well, that YouTube video is just absolutely horrible. And that's really mean. That's only one time. When the court here, this court reversed Carmichael and set it back for trial, it said to be careful not to focus only on the most egregious of the events. Because the summary judgment record, I'm sorry, Carmichael was a pleating case. When the pleating say that parties continuously or daily were impacted by bullying or discriminatory conduct, you have to give credit to the daily or continuous as much as you have to give credit to the most egregious and detailed of the events. So I think the panel and Carmichael and Judge Dennis actually wrote an additional opinion in addition to the percurium there, reveals something that's more helpful here. That is that the summary judgment record and the reason these cases ought to go back for trial is because there is very much to learn from the credibility of both sides and many determinations yet to be made at trial. I think that the district courts determination that these events were not related to the disability, begs for a credibility determination. And I say it that way because this is a group of adults who know what all the children are saying, all the names they are calling and all the things that they're doing. And they could be construed to be doing the same thing to Austin. They sent him out of the room 15 times. They told him, don't tattle on people when they say names about you or do bad things to you. Don't be a tattle tail. Write this down on a sheet of paper. I will not be a tattle tail over and over again. It's really your fault, Austin, that these people are doing this stuff to you because you tattle on them and you fight back when they call you names. You need to just grow up. It is fair for us to conclude that the school district not adults actually knew what was going on and they were contributing to Austin's problem as much as his peers were doing so. In addition, the district court concluded that the school district's responses to all of these incidents was reasonable. There is a different inference that can be drawn from the summary judgment evidence here. Children, adults, employers and administrators like to justify their wrongdoing. When they write up their memory of what happened, it often is not what it looked like at the time. It is reasonable to conclude that the school district's explanations that we thought Austin was misbehaving. We thought he was disruptive. Could easily be concluded to be, we were punishing Austin because he had ticks and spasms and he disrupted the class. That is exactly present in a fifth circuit case. Stuart versus Waco independent school district, that was a young lady who was sexually assaulted on a number of occasions. The school district's response to that was, will you need to just not be at school? She was a little bit mentally impaired. The school district's attitude was, will she invited it or didn't mind it or it was okay with her and she consented but of course her mind was not really sufficient enough to understand what was going on. But if their response to it was, will you just need to go home and not come to school because you're not acting right where you're at school? And they said in their appeal, see we're just dealing with disciplinary issues. But the reality was they're dealing with a disabled person in a way that the law doesn't let them. You don't deal with disability problems by saying go home, go sit in the hallway, go do something else. Those cases follow the pattern that we see in rees versus sanders and plumbing. That is, you've got a plaintiff that says, I've got my discrimination case, the defendant comes in and says, here's my response to it. And the plaintiff says, well, I think it's all pretext. The Supreme Court says, all that evidence remains on the table. You can't just take the defendant's explanation, believe it and grant summary judgment. We also get instruction from tolin versus cotton, a recent case out of this court where the Supreme Court reminded us that witnesses on both sides come to a case with their own perceptions, recollections and even potential biases. It is for that reason that we have jury trials. And Carmichael, I think also is instructed there. Discrimination cases, no matter what they involve, are rarely marked by the smoking gun. They are more often proven by circumstantial evidence. And I think that this case certainly begs for the opportunity for someone to decide who is telling the story in a credible fashion, who in the universe of facts that we know is telling a story that is believable. And it does not offend our sense of justice to believe that juries should decide this case. I'll yield the rest of the time. I've saved some for a bottle. Yes, you saved time for a bottle. Thank you, Mr. White. Mr. Robinson. I'm not pleased with the court. I'm Bridget Robinson representing the defendant, Apple Lee, Mark, Independent School District. With me is the principal of Mark Middle School, Dr. Tanya Nell, whose affidavit appears in the record on a pill of this case, as well as her contemporaneous documentation of the events about which plaintiffs complain. Your honors, the district court's very well-reasoned decision granting some rejudgment to the Mark Independent School District should be affirmed for a plethora of reasons. The district court properly found that the Mark Independent School District was not deliberately indifferent to any known disability-based harassment of AN. Similarly, the district court correctly held that even accepting as true plaintiffs' allegations of temporary and sporadic removal from the classroom approximately 15 times over a two and a half year period, based on what AN himself admitted was his own disruptive behavior. Did not result in the deprivation of benefits of services programs or activities of the Mark Independent School District. For those reasons alone, the district court's decision should be affirmed. It is clear in analyzing the causes of action pled by plaintiffs under both Section 504 and the Americans with Disabilities Act, that the plaintiffs cannot establish a Promethasia case or show the imposition of liability. Because they can't meet any of the elements required in this particular case. As this court is well aware, under Lance mentioned by Justice Smith, plaintiff has to show that he was an individual with the disability. He was harassed based on that disability. The harassment was sufficiently severe or pervasive that it altered the condition of his education and created an abusive educational environment. The defendant knew about the disability based harassment and the defendant was deliberately indifferent to the harassment. Plaintiff mentioned in the briefs and again today that the alleged disability in this case is Tourette syndrome. However, it is clear from the documentation before the district court and in the record on appeal that there was no evidence ever presented to the school district that A.N. had Tourette syndrome or any other disability. The plaintiffs claim that the school district had to have known that A.N. allegedly had Tourette syndrome because they gave him medication. However, it is clear from the enrollment forms that Mrs. Neville submitted to the school district that there was never any medication listed for Tourette syndrome or any indication that A.N. had been convicted. The court was not interested in Tourette syndrome. Instead, when A.N. was enrolled in fifth grade, Mrs. Neville spilled out his enrollment form and said that A.N. was taken clonidine and mentioned or wrote that his element was asthma. In his sixth grade year, Mrs. Neville's wrote that A.N. had ticks but listed no medications he was taking. In his seventh grade year, which was also the year that A.N. was ultimately withdrawn from the Mart Independent School District, Mrs. Neville's wrote that A.N. was taken gongfacine but that the elements she listed were only allergies and asthma. So the only two years of Mart Middle School enrollment forms that A.N. had medication prescribed for him. It was the fifth grade year for asthma and the seventh grade year for allergies and asthma. Although on the sixth grade enrollment form, Mrs. Neville's wrote that A.N. had ticks, there was never anything noticeable about A.N. that anyone thought could actually have been ticks. As a matter of fact, as you see from the affidavits of A.N.'s teachers, such as Mr. Lairman, A.N. never had any ticks or unusual facial movements. We are talking about summary judgment. It seems to me there is some evidence here just from the way other kids reacted to them with some of the descriptive names they used against him that there was contrary evidence that he had these patterns, that he had some sort of ticks. You know that some of the judgment evidence better than I do. Isn't that in the record as well? There were never reports that the time A.N. was enrolled in the Mart Independent School District that any student called him the names that they now claim in the lawsuit on this appeal. For example, there is an allegation and A.N. signed a declaration claiming that he was called Spaz and Twitch, but there is nothing other than his unsupported allegations and his own self-serving declaration that support that allegation. We have contemporaneous documentation of everything that was reported during the time A.N. was a student at Mart ISD and there are some name calling incidents. But when you look at those incidents, they were all explained, all investigated and prompt remedial action was taken. We have some pretty definitive circuit law that says that unilateral self-serving declarations in affidavits can be sufficient to defeat some re-judgment. In other words, they account as evidence just as contravening affidavits might. Well, self-serving affidavits alone are insufficient as this court is aware under Cedar Hill. However, the district court not only viewed the evidence in the most favorable to plaintiffs regarding the alleged disability, the district court went a step further and actually accepted as true plaintiffs allegations of a disability. However, it is not clear even today that A.N. has Tourette syndrome because the only documentation in the record was submitted to the Mt. Comm Independent School District, which A.N. currently attends in 2013 more than a year after he was withdrawn from the Mart Independent School District, in which A.N.'s doctor said that he had attention deficit. However, it is not clear that the report was submitted to the Dr. D. D. D. D. D. D. D. D. D. D. D. there was a reference to AEN as lawsuit. But there were also references by AEN to other students, such as booty liquor, he called students gay, and there was also an episode in which he called a student an L-fing B, except he used the actual profane terms rather than using the restricted terms. There was another incident in which AEN told a student to shut up during class, and the other students said, oh, that's a put-down word, which in their declarations, AEN now characterizes as being something that was said on the basis of disability, but that situation was diffused by the teacher in the room as Alan, who said that they could continue their argument in the office or be quiet and get back to work, and they were able to settle down and get back to work. The physical altercations in which AEN was involved at the school district involved other types of incidents which also showed no disability-based animus at all. For example, there was an incident on the football field at one point where AEN made some rude comments to a student who told AEN not to talk to him at which point AEN went over to that student, made a fist at extended his arm and put his fist on the student's chest. That student knocked away AEN's arm at which point AEN took his fist and hit the other student, and then that student slapped AEN. Both those students were counseled about their behavior, and they both received punishment as a result of that incident. There was another incident in which AEN went in the locker room, turned off the light switch, and stood in front of the light switch, so when another student tried to turn the lights back on, the student tried to move AEN out of the way, and AEN hit him, and the student responded in kind, and they were both punished and received ISS for fighting. There were incidents all of which were investigated, and in which prompt remedial action was taken because of the disciplinary infractions involved. The plaintiffs in this case complied about many incidents, including an incident in which Mrs. Neville's case was called Dr. Nell at home at night one evening, and claimed that AEN had been hit in the shoulder by another student. Although the plaintiffs claim that the shoulder injury was caused at school, it's clear that the shoulder injury was not caused at school. As a matter of fact, there is, in the record, at page 263, an EAR from a note from Mrs. Neville's, claiming that AEN had dislocated his shoulder, and they were in the emergency room until 4 a.m., we know that incident did not happen at school, as shown on the record at page 403, paragraph 25. However, because of the report, two Dr. Nell, by Mrs. Neville's, the AEN had been hit in the shoulder, even though the shoulder injury had not happened at school, we don't know if it happened in the outside P.W. Football League, the outside baseball league, or the youth rodeo, in which AEN participated. Dr. Nell took it upon herself to initiate a bullying investigation to determine what had happened. What she found had happened as a result of that bullying investigation was that while applying a vocabulary game, AEN was eliminated from the game, and sat in another student's chair. That student, P.A., was a student with whom AEN evidently held a grudge because that student had accidentally staffed on AEN's jacket the week before while it was in the floor in the gym room. At the end of class that day, AEN said to P.A. Baba and tried to shoulder into him, but P.A. turned so AEN would miss him, and P.A. hit AEN in the back of the shoulder after he had hurt his shoulder. Dr. Nell found that there was bullying as a result of this investigation, even though the entire situation seemed to have been caused because of the accidental stepping on the jacket, which was on the floor of the gym the week before, because she found that P.A. had bullied and been inappropriate toward AEN. She not only punished P.A. suspended him, she also took other measures to try to make sure nothing like that would ever happen at the school district again. To address the conflicts, Dr. Nell scheduled teacher training on bullying for all of more ISD teachers, which was conducted by voices incorporated on February 21, 2011. In addition, there was a student presentation on bullying, which was conducted for the fifth and sixth grade boys on February 25, 2011. Dr. Nell also made a plan to bring Rachel's challenge to the school, which was a program designed to teach kindness and compassion to the students, and was presented on September 21, 2011 to the school district. All of those things that were done, the remedial action that was taken, the bullying investigations, all of the disciplinary action imposed against students, as well as the training for students and for staff, was in addition to the policies that the school district maintains, which prohibit discrimination on the basis of disability among any other protected characteristic, provide equal educational opportunity, and provide for anti-bullying rules and allow plaintiffs to file any complaints they want with the ADA 504 Title IX coordinator or Martin ISD Board of Trustees, which the district court properly found plaintiffs never did. All of those policies are in the record on appeal at pages 313-3352, but none of those were used by the plaintiffs in this case. Paintiffs also complain about an incident in which they claim A.N. was sprayed in the eyes with sanitizer, but it is clear from the record that that was reported as an accident in Mr. Lerman's class, as a matter of fact, when he was asked how he got the spray in his eyes, while the students were cleaning their desks, a N. told Mr. Lerman that he didn't know, and then he told Wendy Cubs, who was the school secretary, and helped him wash out his eyes, that it was an accident, and thus an accident report was filled out. Even plaintiffs admit that they never reported the spray sanitizer as an intentional act, and that's shown in the record on appeal at page 171-admission number 4. So the things they complain about now, either didn't happen at all, or did not happen the way that plaintiffs allege. However, even when you look at what plaintiffs admit occurred, it is clear that the school district was not deliberately indifferent in this case, and the district court properly held. For all those reasons, as well as those articulated in the brief, the district court's well-reasoned decision should be affirmed. All right, thank you, Ms. Robinson. Why, you've said a time for a buttold. The case then presents, who do you believe? Do you think that the school district has explained this well? Do you think that their story is better and more believable? Do you think that it's more detailed? If that is the thought process, then this is not a summary judgment. This is a trial, because that's what jury decide. Who is more believable? Who's story fits the known facts better? Who is more credible about what they are saying? All, and it's just blatantly obvious. All affidavits at summary judgment are self-serving. That's the point. Putting in your own proof and writing up your own affidavits. It's self-serving because nobody gets to cross-examine your affidavit. Nobody gets to judge the people who are signing these papers. That's all reserved for trial. It's unfair to conclude that one side has made self-serving. Affidavits and the other has not. That simply begs a court, like this court, to decide that one's side's story is better than the other. It is also important to realize that what we are asking here is that the court decide whether to believe that some parties assertions about state of mind or intent are to be believed. It is hardly surprising that a party that has been accused of being indifferent or intentionally doing wrong would be able to put in affidavits that say, no, I was not indifferent. No, I was not intentionally wrong. But the courts have traditionally been reluctant to decide issues of state of mind on summary judgment. I just refer the court back to that toll-in case that says everybody is going to come to these things with a different perception and different recollections. They are going to present them in a way that they want them presented. It is for jury's ultimately determined how these things should be decided. Which one is more credible? There is a rather remarkable argument, and this will be the last thing that I will take up, that none of the incidents are disability related. I think ignores totally the evidence that Austin said that I was daily called a spaz, a tick, a retard, tick-tock, and things like that. To believe that none of the events had anything to do with that name calling, that there was some wall of separation between what they called him at one point in time and what they did to him at another makes no sense. It is far more sensible in the scheme, I mean everyone's experience, to understand that when children call each other names, there's going to accompany it physical conduct or perhaps even from Austin's viewpoint a reaction to it. To then believe that this has been going on for two and a half years and no administrator ever saw any of it happen. Also is completely out of line with the summary judgment evidence. Jamie. But there was nothing in the record to definitively indicate the presence of a disability. Right? I mean all these prescription records and things have those been accurately described to us. Their records, they have described their own records accurately. But there's no doubt that teachers knew that Austin did the things that he said that is I had spasms. At times I could not do anything related to my schoolwork because the ticks that I had were so bad. To believe that teachers didn't know that that was a medical problem, belies reality. You can't imagine. Well what doesn't it belie reality that if there was a significant disability of any kind in prescriptions being given that the school would have been provided records of some kind of a diagnosis or some reason other than things like allergies and asthma for the prescriptions. You can go ahead and answer that. I don't think that everyone, every parent understands that they have an obligation to tell the school district every medical problem and every diagnosis their child has ever received. If they've gone to school and said to the nurse, here is the medicine my son needs. Would you give it to him at lunch? And it's for allergies and asthma, right? Well, she also said it was for ticks but regardless of what she says it's for. You know, if the teacher sees what is going on that is that the kid has spasms and ticks all the time, you can't say that they have no idea that that's a medical problem. All right. Thank you Mr. White. I think Judge Riegel wanted to mention something. Now let me say this to the council. I have decided a long time ago doing this and I've been doing it a long time. How important it is for fellow judges to read the record of the case below. I think we fail at that point more often than we fail anything else. Even though competent lawyers argue and write briefs and both of you, not only are competent, but you have shown it, displayed it by your arguments today, you certainly know your records and you bring your cases forward well. I just want to assure both of you that in this case at least one of the judges on this panel is going to read every page of the record. Thank you. All right. Your case and all of today's cases are under submission and the court is in