Public Servants Aggravated Perjury

Case: 15-10098
Document: 00513434512
Page: 1
Date Filed: 03/22/2016
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
Appellants Petition For Rehearing
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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
ii
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
I.
RULE 35 STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.
CASE REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III.
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
IV.
CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
V.
CERTIFICATE OF FILING AND SERVICE .. . . . . . . . . . . . . . . . . . . . . . 17
VI.
CERTIFICATIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
VII. CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

VIII. APPENDIX (TRANSCRIPT OF ORAL ARGUMENT). . . . . . . . . . . . . . . . .
iii
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TABLE OF AUTHORITIES
Federal Cases
Supreme Court Cases
Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009) .. . . . . . . . . . . . . . . . . . . . . . . . . . 1, 11
Barnes v. Gorman, 536 U.S. 181 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) .. . . . . . . . . . . . . . . . . . 1, 11
Davis v. Monroe County Board Of Education, 526 U.S. 629 (1999) . . . . . . . . . . 12
Youngberg v. Romeo, 457 U.S. 307 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Courts Of Appeal
Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (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
iv
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District Courts
T.K. v. New York City Dept. of Educ., No. 10-cv-00752, 2011 U.S. Dist. LEXIS
44682, 2011 WL 1549243 (E.D.N.Y. April 25, 2011). . . . . . . . . . . . . . . . . . . . . . 15
Federal Statutes
20 U.S.C. 1401, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
29 U.S.C.A. 794 et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 6, 8, 10, 12
42 U.S.C. 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Federal Rules Of Procedure
FED. R. P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 7, 13, 14
Federal Rules Of Appellate Procedure
FED. R. APP. P. 35(b)(1)(A).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
FED. R. APP. P. 35(b)(1)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
FED. R. APP. P. 40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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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
10
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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
11
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the Panel Decision based upon C.C.s theory that professional staff at the School
District grossly deviated form professional standards of care in their mistreatment of
him. Rather the Panel Decision has seemed to incorrectly conflate the two.8
26.
As noted above, the focus of the analysis for violations of Section 504,
as to a hostile educational environment theory, is predicated upon the test in the

above noted section regarding a deliberate indifference standard, relying upon Davis
v. Monroe County Board Of Education, 526 U.S. 629 (1999) and the S.S. line of
analysis. In contrast, a cause of action related to a gross deviation of professional
standards of care rejects this deliberate indifference standard, Youngberg v. Romeo,
457 U.S. 307 (1982) and is, as C.C. states, more akin to the standard review of
discrimination based upon disability, as noted in Barnes v. Gorman, 536 U.S. 181
(2002) [city refused to provide necessary accommodations to person who was in
wheel-chair]; Delano-Pyle v. Victoria County, Texas, 302 F.3d 567(5th Cir. 2002)
[county refused to provide necessary accommodations for person who was hearing
impaired]. The 5th Circuit has further stated, in Marvin H. v. Austin Indep. Sch. Dist.,
714 F.2d 1348, 1356 (5th Cir.1983) that A cause of action is stated under 504 when
8
. C.C. re-urges the proposition and fact that since C.C. had Attention Deficit
Hyperactivity Disorder, with the related behaviors of distraction, not listening to directives or
following orders, not processing information normally and blurting out inappropriate comments
without regard of consequences, that the retaliation, conspiracy and hostile educational
environment imprinted upon him by School Officials, were absolutely due to his disabling
condition, the ADHD. [ROA. 147, fn. 2, 3].
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it is alleged that a school district has refused to provide reasonable accommodations

for the handicapped plaintiff to receive the full benefits of the school program.
27.
In the instant case, and at this stage of the pleadings C.C. only need show
he was a person with a disability and he did not receive accommodations by School
District personnel commensurate with unique and individualized needs and was
denied a public service afforded others, as did Barnes and Delano-Pyle.
28.
Moreover, C.C. has provided significant factual support the School
District personnel failed to accommodate his disability, when, and among other
things, they refused to return him to the public school when the juvenile justice
authority dropped charges against him on multiple occasions [ROA. 163, 78;
164,79-81]; refused to see his various adolescent behaviors as manifestations of the
very same conditions he was receiving special education services for; refused to treat
him the same as his non-disabled peers for certain school code of conduct violations
[ROA. 149, 6]; when refusing to provide him counseling in a timely manner [ROA.
162, 65]; and among many other things, and refusing to treat his disabilities when
asking other parents and even a school teacher to file felony criminal charges against
him. [ROA. 148, 3; 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].
13
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29.
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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,
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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.
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Respectfully submitted,
Martin J. Cirkiel
Texas Bar No. 00783829
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
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.
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.
Martin J. Cirkiel, Esq.
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Audio Transcript of Oral Argument in 5th Circuit Court
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
amending the complaint, because I think they -DepoTexas, Inc.

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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
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25
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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
charges against the student -DepoTexas, Inc.
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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

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
Case: 15-10098
Document: 00513434735
Ms. Nona C. Matthews

Ms. Meredith Prykryl Walker
Page: 2

Public Servants Aggravated Perjury

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Case: 15-10098

Date Filed: 03/22/2016

APPELLANTS PETITION FOR REHEARING EN BANC

Date Filed: 03/22/2016

CERTIFICATE OF INTERESTED PERSONS

/s/ - Martin J. Cirkiel

Appellants Petition For Rehearing

Date Filed: 03/22/2016

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

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

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

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

Appellants Petition For Rehearing

Date Filed: 03/22/2016

Appellants Petition For Rehearing

Date Filed: 03/22/2016

Appellants Petition For Rehearing

Date Filed: 03/22/2016

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

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

jurisprudence when failing to distinguish and consider differing standards of review

Date Filed: 03/22/2016

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

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

Date Filed: 03/22/2016

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

including the entire Reporters Record (ROA.), as well as Appellants Brief,

Appellants Petition For Rehearing

Date Filed: 03/22/2016

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

Date Filed: 03/22/2016

support a finding that the District intentionally discriminated against

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

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

Date Filed: 03/22/2016

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

Appellants Petition For Rehearing

Date Filed: 03/22/2016

Date Filed: 03/22/2016

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

Date Filed: 03/22/2016

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

Date Filed: 03/22/2016

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

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

Appellants Petition For Rehearing

Date Filed: 03/22/2016

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

The Panel Erred By Not Distinguishing The Differences In A Cause Of Action

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

Appellants Petition For Rehearing

Date Filed: 03/22/2016

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

Date Filed: 03/22/2016

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

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

Date Filed: 03/22/2016

As this Court has repeatedly reaffirmed bad faith or gross misjudgment

The Panel Decision if left as is would reinforce the worst type of

Date Filed: 03/22/2016

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

Jailhouse Pipeline on children with disabilities, maybe those floodgates need

Appellants Petition For Rehearing

Date Filed: 03/22/2016