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Case: 15-10098

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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]
marty@cirkielaw.com [Email]
LEAD COUNSEL FOR APPELLANTS
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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

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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). . . . . . . . . . . . . . . . .

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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 (5th Cir. 2012) . . . . . . 1, 11
Carmichael v. Galbraith, 2014 WL 267590( 5th 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 (6th Cir. 2008) . . . . . . . . . . . . . . 1, 7, 12
D.A. ex rel. Latasha A. v. Houston I.S.D., 629 F.3d 450, 455 (5th 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

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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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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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 Panels Decision, as it directly conflicts with the Supreme Courts
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 Panels Decision also conflicts with the Fifth Circuits

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 Panels 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.

. 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
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Kentucky Univ., 532 F.3d 445, 454 (6th 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 (5th 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 Panels 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 Reporters Record (ROA.), as well as Appellants Brief,


Appellees Response, Appellants 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:
... Plaintiffs 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. Plaintiffs 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 twofold 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 Appx at p. 233]. 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
[Appx 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. [Appx 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.
[Appx at p. 8, l. 1-11; p. 9, l. 14-18; p. 13, l. 10-22]. The Panel considered this
argument and questioned the ISDs Counsel on that point. [Appx 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 Estate
of 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 Districts 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 Panels
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 Higonbothams
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 Courts 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

. 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, 7981]. 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 Action


Based 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].
Appellants Petition For Rehearing

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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; Appx. At p. 22, l. 16-25].9

. In regard to this issue and under questioning the ISDs 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. [Appx at p. 23, l. 1-4].
Appellants Petition For Rehearing

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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,
Appellants Petition For Rehearing

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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. [Appx 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.

Appellants Petition For Rehearing

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Respectfully submitted,
/s/ Martin J. Cirkiel
Martin J. Cirkiel
Texas Bar No. 00783829
Cirkiel & Associates, P.C.
1901 E. Palm Valley Blvd.
(512) 244-6658 [Telephone]
(512) 244-6014 [Facsimile]
marty@cirkielaw.com [Email]
COUNSEL FOR APPELLANTS

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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
mwalker@wabsa.com [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
/s/ - Martin J. Cirkiel
Martin J. Cirkiel
Attorney Of Record For
Appellants-Plaintiffs

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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, 5th Cir. R. 25.2.1 and (3) the document has been scanned for viruses with
the 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.
/s/ - Martin J. Cirkiel
Martin J. Cirkiel
Attorney Of Record For
Appellants-Plaintiffs

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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 10 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 COURTS STRIKING
THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING
THE BRIEF.
/s/ Martin J. Cirkiel
Martin J. Cirkiel, Esq.

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APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

3
4
5

C.C. INDIVIDUALLY, BY AND

THROUGH HIS NEXT FRIENDS,

CHARLES CRIPPS AND KRISTIE

CRIPPS,

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
19
20
21

ORAL ARGUMENT
JANUARY 8, 2016

22
23
24
25

Transcribed by DONNETTE COWGILL


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P R O C E E D I N G S

MR. CIRKIEL:

3
4

Court.

May it please the

Counsel.
One short disclaimer, if I may.

You may

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

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

going around.

some water, please forgive me.

So if I cough or this or that or need

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.

14

writes in great, great detail.

15

So I follow the cases that this Court

I 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.

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

jailhouse pipeline is something that I ask the Court

to be mindful of as they go back and review this

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

things we look for is direction from the Court of

how we go forward.

that to represent their clients.

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

important case because it deals with issues much,

10
11

The lawyers on both sides need


And I would ask,

much greater than [name redacted].


THE COURT:

Counsel, you've used his

12

actual name twice.

13

the end of the day.

14

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

15

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

This recording will be posted at


So far the briefing and

16

MR. CIRKIEL:

17

THE COURT:

18

Yes, Your Honor.


-- his name, but you may

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

19

MR. CIRKIEL:

20

Thank you very much for pointing that out.

I will, Your Honor.

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

educational environment, perhaps a standard based

upon Davis and SS v. Kentucky regarding deliberate

indifference, as compared to what's called a gross

misjudgment or a gross deviation of professional

standard of care, which is also a separate Section

504 issue, which seems to have a different review.

And -- and in Stewart, Your Honor, in

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.


So I think this is a very, very important

13
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

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they're all both -- best subsumed by questions

related to the Section 504 basis (phonetic)-THE COURT: So the due process and

3
4

equal protection arguments?


MR. CIRKIEL: All the constitutional

5
6

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

Your Honor, is, I mean the constitutional claims are

always the most difficult. I think our -- our

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?


MR. CIRKIEL: Not at this point, Your

15
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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just dropped it.

THE COURT: I understand.

MR. CIRKIEL: Yeah.

THE COURT: I understand. I think --

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

problem with it.


MR. CIRKIEL: But to that end, I

7
8

would like to respond to all -- any and all

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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under Section 504, into the courthouse. Over the

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

incidents where he spoke to a young lady and brought

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

making porn. And the school district personnel

spoke to the parents and asked that the parents file

charges against the young man for sexual harassment.

A short while later the young man told a

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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Now, we think those -- those claims show,

one, hostile education environment under Section

504. We think those claims alone show a gross

deviation from professional standards of care, also

under Section 504, because clearly, teachers are not

supposed to steer kids into jail. In fact, teachers

are supposed to steer kids out of jail.

Now, there was a question about -- and a

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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there was a gross deviation from professional

standards of care against him based upon a

disability -- is that we admitted that it was

retaliation.

But you see, that subsumes the question

because the retaliation was based upon protected

activity of representing someone with disability.

So clearly, if the -- if that underpinning

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
23

going.
In addition, during the same period there

24

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

25

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against him for assault upon a public servant. This

was purposely done. They arranged for a teacher to

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

filed charges against him. I would argue, once

again, that is -- that is a hostile educational

environment, and that is not something we want

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

felony charges.

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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1
2
3

gross deviation from professional standards of care.


And let me say, as we kind of get into
what those standards might be --

THE COURT: Well, before you --

MR. CIRKIEL: Yes, sir.

THE COURT: Judge McBryde -- there

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

and most of your arguments below were the

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.
MR. CIRKIEL: That's correct, Your

24
25

Honor.
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THE COURT: That's not a requirement

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

special educational program.

MR. CIRKIEL: Correct.

THE COURT: This toilet incident

occurs, and he gets the MDR hearing.

MR. CIRKIEL: Correct.

THE COURT: And -- and then the

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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(No audible response.)

MR. CIRKIEL: Okay. Short anecdote.

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

magistrate in mental health court through Judge Guy

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

hospital, and we adjudicate whether or not people

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

of the things people always ask is what's the

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 -DepoTexas, Inc.

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MR. CIRKIEL: For him it was

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

everybody here, one of the issues that occurred was

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

through administrative exhaustion because, you know,

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

So the -- the case originally went before

Judge McBryde and included both the appeal and the

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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limits?

MR. CIRKIEL: Well, that goes --

backwards a second -- answers the question about the

constitutional claims very briefly. You know, to

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

very difficult. But to show bias and animus as an

underlying issue for deliberate indifference or to

show bias and -- and animus as a condition that

drove the placement is a fact issue that I think

10

needs to go back to the district court for us to

11

explore.
THE COURT: But what's the case that

12
13

says there could be gross deviation from a referral

14

to an alternative school for a period of two months?


MR. CIRKIEL: Let me be direct, Your

15
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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of -- of hostile educational environment and a gross

deviation of professional standards of care. I

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

use it at that point. Thank you very much.


THE COURT: Thank you, Counselor.

5
6

Ms. Walker, you can proceed, and you can

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

ahead.

9
10
11

MS. WALKER: Good morning. May it


please the Court. Counsel.
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
23

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


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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17

and revisit those things.

MS. WALKER:

when we're looking at the 504 claims that

Mr. Cirkiel and plaintiffs have brought forward, the

question is, is:

determine whether or not he has pled -- that

plaintiffs have pled a -- a cognizable claim to go

forward in this matter?

Yes, Your Honor.

So

What standard are we looking at to

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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18

that the conduct was because of the disability.

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

some other position.

MS. WALKER:

THE COURT:

Do

Yes, and Mr. -And I guess you are, and

I don't understand what you're saying.


MS. WALKER:

Well, and plaintiffs

argue that they do because the -- the conduct that

the district allegedly engaged in was bad faith or

10

gross misjudgment.

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.

16
17
18

And our argument is that that

There's been -THE COURT:

But the Court held that

there wasn't, so -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.

24

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

25

is solely because of the student's disability.

There's got to be more.

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19

Again, plaintiffs want to argue that the

1
2

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.

look at strict discrimination, sole discrimination,

10

And so you've got

to

not this bad faith/gross misjudgment.

11

But again, there is a disconnect, because

12
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:

20

THE COURT:

21
22

That -- that --- if there's no

connection here?
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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discrimination. And I haven't found any case law on

point looking at this direct issue. But again, if

every behavior gives rise -- excuse me -- every

behavior gives rise to a claim for disability

discrimination, then that's going to open the

floodgates.

And it goes back to what you were saying,

Judge Higginson, about the whole reason we have an

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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21

sufficient enough to have made that allegation.

if the allegation were there of such treatment,

wouldn't that hearing be irrelevant?


MS. WALKER:

4
5

No, I still think it's

relevant because of the reasons I stated, that it -THE COURT:

6
7

But

Because the procedure is

present?

MS. WALKER:

THE COURT:

Yes.
The school, to show their

10

good faith; no gross misjudgment, maybe; whatever

11

else?

12

MS. WALKER:

13

THE COURT:

14

MS. WALKER:

Correct.
All right.
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?

19

the allegation.

20

MS. WALKER:

21

THE COURT:

22
23

hard on the disability?

That's

Well, actually -Why isn't that stepping

I mean --

MS. WALKER:

The allegation that

24

there was a conspiracy to have this teacher file

25

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

1
2

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

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

why did the school district take an encounter in a

classroom and insist on bringing in the police force

behind that? We've seen that with truancy and

others.

If you -- you persist in arguing something

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

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

to take his allegations as true. Now, there are

some allegations --

5
6
7
8

THE COURT: You transferred him to


another school. Why wasn't that sufficient?
MS. WALKER: He was transferred to
another school.

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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of those other children. He's alleging that,

essentially, what the school district does, in

conferring with the parents of the child that --

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

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

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

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


MS. WALKER: Well, the district can't

8
9

file charges.

10

THE COURT: I'm sorry?

11

MS. WALKER: The district cannot file

12
13

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

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

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

these charges against him because we're providing

him with special education services." There's

nothing in the pleadings that say that.

THE COURT: Well, I assume that when

you have these incidents like that, that the parent

-- 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
15

subject of charges is there brought up.


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

allegations that the principal and the vice

principal were kick -- trying to kick him out by

having charges filed against him because of his

disability.

6
7
8

THE COURT: Why isn't that because of


his disability? What else is it?
MS. WALKER: Well, plaintiffs

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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MS. WALKER: Well, and if it --

THE COURT: The district court did.

MS. WALKER: And if his conduct is a

manifestation of his disability, that's where we go

back to the manifestation determination review, the

MDR, which is what ensures that children who are

receiving special education services are not

disciplined for conduct that was caused because of

their disability, which is why that is relevant,

10

because we did give him the MDR.


THE COURT: What was his disability,

11
12
13
14

then?
MS. WALKER: His disability, as pled,
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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28

police decided there was nothing to pursue for

anyone to untransfer him back.


MS. WALKER:

That's correct, because

school district decisions on discipline are not

dictated by what the prosecuting authorities do.

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

Education Code specifically says that conduct

occurring on campus -- and this is indisputably

conducting occurring on campus when he took a

In

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.

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
25

So if the Texas legislature

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


even an issue of the statute being ambiguous; it
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1
2
3
4
5

specifically exempted him from that reassessment.


THE COURT: All right. Counsel, do
you have anything else?
MS. WALKER: I do not if there are no
other questions.

THE COURT: Okay. Thank you.

MS. WALKER: Thank you.

MR. CIRKIEL: May I approach?

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
25

This might sound somewhat joking, but -but I want it to be taken seriously. You know, one
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man's conclusionary fashion is another man's

inference. And it's my position that the inferences

in this case clearly rise to the level of the

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

motion.

In fact, the Court's own language says

"which may have caused the above-described actions."

And I think that's a big difference from "may have

caused" to "there's no evidence." If there's no

10

evidence, there's no evidence. But if it's "may

11

have caused," I think we win. Like in baseball, a

12

tie goes to the runner. And for a 12(b)(6) motion,

13

we have made the standard that we need to make at

14

this juncture.

15

I'd like to point the Court's attention to

16

a recent case -- in fact, we -- the only other that

17

we're here on that dealt with a 12(b)(6) motion.

18

There was a -- Carmichael v. Galbraith; it was the

19

Joshua Independent School District. And one of the

20

reasons the -- another panel sent it back to that

21

school on a 12(b)(6) motion, and I quote, "The

22

district court did not analyze or even mention

23

certain portions of the Carmichaels' complaint."

24

And I think we see the same thing in Judge

25

McBryde's order is that it doesn't really discuss in


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full the issues that we have brought up. I think if

you have unanswered questions about what has

occurred in the pleadings or have unanswered

questions about what Judge McBryde meant, then

that's absolutely the reason why the case needs to

be sent back.

And -- and I don't think either of us are

-- are experts on juvenile law, so I don't want to

really speak for the -- with my -- my friend and

10

counsel over there. But I would disagree that the

11

Texas law does say that once the school district has

12

information from the juvenile justice authority that

13

a child has been relieved of any legal problems,

14

they -- they absolutely -- and the word is

15

"shall" -- under 37 -- the Texas Education Code,

16

37.006, they "shall" do something. And they did not

17

do that. And we would argue, once again, that that

18

rises to the level of deliberate indifference or a

19

gross deviation from professional standard of care

20

if you've got a "shall," and they don't do it.

21

I really want to thank y'all for letting

22

me be here today; it's a great, great honor. Once

23

again, I follow these cases in detail. Win, lose,

24

or draw, you learn something. And -- and I think

25

this is a case of great, great public importance. I


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think it needs to be sent back to Judge McBryde's

court for that reason.

I think it needs to be sent back to the

court because we've satisfied all the standards

related to a 12(b)(6) motion, and I think it needs

to be sent back to that court for all the children

in this circuit, and really, across the country,

that have disabilities and are unfairly targeted for

criminalization for their behaviors.

10
11
12
13
14

Do you have any further questions?


THE COURT: Guess not, Counsel.
Thank you. Thank you both.
MR. CIRKIEL: Thank you. Have a nice
weekend, everybody.

15

THE COURT: You're both representing

16

important interests. Thanks for bringing this case

17

to us. The argument's been useful.

18
19
20

That is our final case of the day and of


the week. We are adjourned.
(End of Recording.)

21
22
23
24
25
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CERTIFICATION

1
2
3

THE AUDIO RECORDING OF A


12(b)(6) HEARING

4
5
6

I, DONNETTE COWGILL, do hereby

certify that I have listened to and transcribed the

above-referenced audio to the best of my ability.

I FURTHER CERTIFY that the foregoing

10

pages comprise a true and correct computer

11

transcription by me of said audio.

12
13

Subscribed and sworn to by me on this


the 17th day of March, 2016.

14
15
16
17
18
19

________________________

20

Donnette Cowgill

21

DepoTexas

22

Firm Registration No. 17

23

1016 La Posada, Suite 294

24

Austin, Texas 78752

25

512-465-9100
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United States Court of Appeals


FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
CLERK

TEL. 504-310-7700
600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130

March 23, 2016

Mr. Martin J. Cirkiel


Cirkiel & Associates, P.C.
1901 E. Palm Valley Boulevard
Round Rock, TX 78664-0000
No. 15-10098

C.C., et al v. Hurst-Euless-Bedford Indep


Sch, et al
USDC No. 4:14-CV-646

Dear Mr. Cirkiel,


The following pertains to your rehearing electronically filed on
March 22, 2016.
You must make the following corrections to your rehearing within
10 days:
The only document allowed to be filed with your petition is
this courts opinion.
You must file a motion for leave of court to submit a
transcript of the oral argument with your petition.
Once you have corrected your petition please email it to:
Melissa_Mattingly@ca5.uscourts.gov . If the petition is deemed
sufficient, paper copies will then be requested.

Sincerely,
LYLE W. CAYCE, Clerk

By: _________________________
Melissa V. Mattingly, Deputy Clerk
504-310-7719
cc:

Mr. Kenneth D. Carden

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Document: 00513434735

Ms. Nona C. Matthews


Ms. Meredith Prykryl Walker

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