large place where consumers can type in what the problem is they are happening and if there are other experiences. the complaint databases where i get my data from, this is the front page of the complaint database which is also where consumers would go if they want to see what other people are writing. of note the cfpb says reading consumer narratives will allow others to learn from the consumer's experience. again played us know -- please let us know what's going on in importantly help the cfpb improved the financial marketplace. and though the cfpb began taking complaints basically the moment it opened and started publishing the database in june of 2012, who wasn't until june of 2015 about a year ago that started publishing consumer complaints narratives for public use and public consumption. the narratives are to give you

an example of what a narrative looks like, straight from the consumer's keyboard. this is what the consumer would see and they would see a bunch of them lined up if they were to put the narrative in the complaint right onto their desktop or the computer. so consumers must consent to the narrative being published. it is scrubbed of any personal information and more often than you might think seemingly offensive or offensive language. so that was my entrée into what people were thinking. more than half of the people who submit complaints on line say that their narrative can be published and the people who submit complaints on line are about half of the people who submit complaints in general to the cfpb. but in total that amounts to 5000 complaints with narratives published on line per month. and because the cfpb only

recently began publishing these narratives they haven't been assessed and addressed. which is what i aim to do for this symposium and turned into a much broader project because as you can see there's a lot to work with in a lot of ways to think about the data. what i want to do for today is describe the data and what i think the data suggests and then get your feedback on what i have and where i might go with it and what you think it's showing her other avenues i could go down with it. so i want to talk about what i think it suggests about how people are using the complaint function to voice their problems and then to ask for cfpb's help in a variety of ways which can be thought of as an expressive element of the complaint function and this expressive element has been brought up in prior work about the function and general but it was mentioned

in passing in prior articles that focused on consumer protection. then i want to take that enciarte aligns with the cfpb is a role in processing complaints and then what it suggests about how the cfpb could tweak how it addresses the complaints and for the general advancement of consumer protection which again is the main question raised in prior articles and a cfpb's main goal. quickly, beginning with my data what i did was i downloaded every complaint with the narrative that was filed and they carried of may 12015 and april 30, 2016 which is a total of about 23,000 complaints with narratives. at that point i took a random sample of 20% of them because i wanted to read what consumers were saying once i had done their first sweep of the coating.

the table on the left of this side rates down my sample byproduct and it was the best way i could think of trying to get a relatively good sample of the complaints that cfpb is getting overall. the table on the left or on the right rates down cfpb data about complaint volume products, volume byproducts for 2014 and 2015. as you will see their there are are slightly more complaints about mortgages and credit reporting and payday loans which might be a function of who has access to the internet and your ability to write a complaint and also who is going to check that locks that says yes, you may publish my complaint. to move onto my empirical strategy and what was going on one of the goals i had was to assess how people are telling their stories and how they are

voicing their problems. so what i did was to create a primary coding scheme based on major emotions expressed through a narrative language and there's a whole work scholarship that i pulled these emotions out of. anger, sadness, fear, disgust shame and guilt are six of the major emotions. as i was looking through the narrative i realized i could break out what i called frustration which is not an emotion but anger like, something short of the first narrative that you saw where there is clearly anger and words that trigger anger and the narrative and there still is a frustration expressed by the consumer. as compared to this other clip of a narrative that i have on the slide when the consumer simply saying i never lived here and i never worked here, there really is no emotion in this narrative in a way that i coded

it and about half of the narrative says things like this and the other half of the narratives are representative of the first narrative you saw where there is clearly a big story going on. once i did that i got this table the emotions in the sample of narratives with that emotion expressed. this table tells you nothing at all. what is more interesting is you go through each of the narratives and read what the consumer is saying and see what is going on with that. when the narrative expresses anger, frustration and to a lesser extent discussed which didn't come up all that often the consumer story is about the company and how they are being treated by the company and they are really speaking to the

company or in some instances yelling at the company. when they express sadness and fear which comes up more often than you would think, they are not really talking to the company or they talk to the company who are -- and then they move on to essentially a very sad story about how their problems with the company have intersect did with their lies and impacted their lives. so they focus on an ability to provide for their family such as food. there's a whole lot of talk about not eating and problems that have affected the medically, physically and mentally. at this point in more rigorous qualitative or quantitative content analysis would be one avenue to pursue and something that needs to be pursued. that's for another paper. instead what i did was i added a layer to the analysis that speaks directly to the cfpb's role in processing these

complaints. what the cfpb does is for the complaints the company, the company response in the consumer can respond to the company and the cfpb also looks at the complaints to figure out unfortunate and otherwise regulatory efforts. what i looked at was that the narrative evidence what i call different to the company saying please help me, let's have a dialogue was what i meant by deference. did the narrative evidence deference to cfpb, same thing, please help me personally with my problem. did the narrative mentioned a legal claim and did it mention stay proceedings? this table shows what i call coming to lock him using the narrative space to say hey company you are violating a federal and state law and also hey i filed for bankruptcy or i'm going to file for bankruptcy. i think when you look at the

percentages that mentioned bankruptcy you have people's thoughts about what it means to file for bankruptcy not what it means to file complaints. however if you look at frustration and anger you see those are the ones that mentioned law so it seems like people are trying to turn to the narrative they sent to the company they are more likely to say hey company here is the legal violation of the legal claim that i would like to raise and this is the avenue that i'm going to do it in. actually probably one of the bit bit -- functions people don't have the time to money or resources to raise a claim to begin with. whether the claims are dealt with in the process is a engulfing question but for now i will just know that i'm contrasted with narratives that ask the cfpb for personal help which intercepts way more with sadness and fear. what you have is, is a narrative as a sadness in it that talks

about how basically awful their lives have become, 24% of them say please help me personally cfpb right now. i need help from you verses 9% with anger, 13% with frustration and if the consumer is asking the cfpb for help personally what percentage of those have an emotion in them. sadness and fear stand out and this is language imploring and pleading with the cfpb personally for help, not simply thank you for your time and consideration, i like what you are doing or in the case of paypal after the paypal rule saying hey cfpb you didn't do enough and you should do more to help others, that's telling the cfpb to do something with its regulatory enforcement function

not help me personally which has nothing really to do with what they are going to get from using the complaint function in the first instance with the database. so quickly what does this all mean? this is where i need the most help. i think what the narrative language shows is to completely separate ways that consumers are using the complaint function. first there's the bats and it's a bigger batch of consumers that are expressing anger and frustration with the company and saying this is the way that i'm going to be able to speak to you in the first sentence, please help being and the benefit of telling that story and also along with these narratives in a broader way hey maybe you should look into this company for the benefit of all consumers can't be underestimated and also importantly it tracks with the function of the cfpb's complaint database and processing mechanism.

however if you take sadness and fear in telling your story about the impact and credit and debt on your life and a broader instance with the what the company has been doing to you or how the company is treating you and adding on that consumers ask the cfpb to make sure they have food and otherwise are able to live their lives. if they don't receive the assistance that they contemplated from the cfpb they might become disillusioned which backfires with what the cfpb function is in thinking that functions are taking the narrative and also this mic i think offer an avenue for the cfpb to start focusing on which companies enforcement actions might be worthy of being

prioritized or looking to first in terms of what companies, what products are intersecting, that is making them reach out to the cfpb. with that i'm out of time and we can move to question-and-answer period. [applause] as moderator i would like to take immoderation roll in see if anyone in the audience first would like to ask any questions of anyone. >> page from vanderbilt law school. thank you so much for this panel. it's really a fascinating unpacking but the cfpb is doing. a couple of questions. chris i wanted to ask you what wells fargo tells us about your

analysis and deceptive and abusive enforcement actions and then for anyone it's been an interesting week for the cfpb. for those of you following the payday world, the cfpb had a very public enforcement action against linda which pushed itself as the nicer and friendlier payday lender so is a very public enforcement action against a company that many of us thought were the good guys. i wondered if any of you have talked about what that might mean for smaller companies trying to work in the consumer credit space. >> first with respect to lend a my recollection is a

9 million-dollar penalty so in the grand scheme of things it's not that much money. it's not a big case. on the other hand the penalty in the wells fargo case was $130 million, and much larger case than people affected and i guess i would resist the impulse to say good company, that company. the question is whether or not they violated the law but the faction of a violated the law. it does look like windows that might be a good company wouldn't be their job to decide that. the question is do they violate the law and the scale of my recollection is that the scalable slide bar that they used on their webpage violated the truth in lending act and there were potentially misleading practices that being gauged in. the lender doesn't have a lot of things to offer and may be a good guy as you say.

if you take a look at that press release the comparison in the press release is doing this study the bureau pulled its punch on that press release. i don't know if that makes you feel any better about it and your other question was about what the wells fargo case is about the future of the bureau. i don't think that the wells fargo cases that interesting. that case is interesting because wells fargo is one of the largest financial situations in the world and it's troubling to find out that thousands and thousands of their customers or their employees were engaging in fraud and identity theft. that is what's troubling about that case. it has an echo of the financial crisis just as some of the largest financial institutions in the world were underwriting mortgage loans, paid options interest only exotic mortgage

products without any documentation. the concern about wells fargo was also creating bank accounts at the consumers did not agree to the that that's illegal and has always been illegal. it's only interesting because of who the defendant was. whether or not the wells fargo case is interesting we will have to follow the bureau. the bureau has to follow the facts on that. the financial institutions are doing what wells fargo did in that may signal something about what could likely happen in the future. other financial institutions are carefully monitoring their packages for the airline employees and their branches of distribution and distributed branch networks i think the wells fargo case is not going to be a harbinger.

>> i am very curious for nick and chris to some extent but this idea that payday lenders, the payday borrowers are not using these loans for unexpected expenses but for regular run-of-the-mill and i think the data is all over the place on this. some people say yes it's an unexpected expense in some know they need to pay their rent. first of all what is the methodology? are you asking people what they are using a foreigner you actually looking at their finances? i wonder could you be taking out a loan because it was unexpected expense but to pay your rent? the money that is going to pay the rent and the reason you have this $500 shortfall is something that happened this month and whether it's even possible to take out that exogenous factor causing you to take out the loan. i think everyone who studied

this comes out differently and maybe it depends on what you think about payday loans. you can be opposed to them and think it's an unexpected expense verses what you are taking it out to pay for in general. >> the point in us drilling in on it the way that we did, and we did this initially through 22 focus groups throughout the country over the course of a couple years and asking questions directly and we did a variety of survey work with polls of payday loan borrowers. we wanted to do dig in and asked the question many different ways in some ways that haven't been asked before. if you talk to somebody focus group oh was an emergency.

i couldn't pay my rent. it was the second month in a row is past due. a lot of the previous research, why did you get this loan? was an emergency? yes. that doesn't tell the whole story. we asked a very simple question. when you got this loan what did you do in seven out of 10 said it was some kind of the bill. sometimes they had an unexpected emergency and they couldn't pay the bill but i think the bigger picture and the story there and what i really think we -- is the reason why people are getting payday loans because their lives are financially difficult and they get knocked off balance easily when they have a mistake or an unexpected event further hours change. that's the narrative that we all agree on and that's why we have come to the conclusion that credit can help people in those situations. only if it structured a certain

way and in that way it has to have an affordable payment that takes only a small percentage of 30%. most borrowers can afford more than five. it needs to last a reasonable amount of time. that printed dollar loan lasted i think it was 18 months and that's crazy. $500 and six months to take a -- pay off. policy should get us to that conclusion. >> did you look at those who did not have payday loans, did you survey those states? >> our survey doesn't answer that question. i can really answer it more qualitatively with focus group findings. the way that i think about it and i think it's reflective of

reality. people in our focus group told the story like i'm trying to solve the problem. we talked to some people in new hampshire. they used to have payday loan stores and we have people using payday loans and they don't have the stores available. please would you do now that do now they don't have the payday loans available? i need $4 to pay my mortgage. i could ask my dad, good cell mice dario or not be dinner. next week and we said okay which one of those do you choose? they said all of them. i would get 50 bucks and my dad if 50 bucks in my data by canon why can't i will sell my stereo and if i need more money i won't eat dinner. a payday loan is another option on the table for people trying to solve the problem. if it's there they will use it and if it's not there they will use the other stuff. as for the reason i say in an examination process is hard to see where harm has occurred. not eating dinner three nights a

week does not show up on a credit report are not buying clothing for your kids doesn't show up on a credit report that examiners don't see it when you forgo maintaining your home or something like that. >> i would like to get your thoughts. when dodd-frank was being drafted you went out and forth and cfpb being run by a three-person panel and finally got to a single administrator. what are your thoughts on what had been originally enacted on the three-person panel and i know there's legislation pending to make it a three-person panel to oversee the agency. >> this is the sort of question that for five years i have dodged and i had a good reason not to. my first comment is that whether or not that's a good idea depends on whether not you get somebody to run the show. if are the past five years they

have had this guide named richard cordray who was my boss for the past few years and he is in my view one of the most astonishing and remarkable human beings i have ever met. the guy is genius level performer has attention to detail and recovery and its ability to process information i'm mike anybody i have ever met he has unimpeachable integrity and honor. he's just a remarkable person. my sense is if you give somebody who does a good job job in his thoughtful and has integrity and approaches the project with the thoughtfulness that it requires and the confidence that requires an individually led organization is more efficient because somebody efficient because somebody is accountable and can get things done. the problem with the commission as they split in deadlock and that's why oftentimes we cast aspersions on wonderful people and the federal trade commission

but i think the criticism that's been leveled not by me but by others that they oftentimes are a little bit hesitant perhaps or maybe not sufficiently assertive in their important actions and bear work becomes stale in the industry goes around them and creates new products that are not deterred. the downside of commissions is they can be inefficient. that being said the trump administration's single individual director could be harmful to the consumer interest that the agency was created for predicting their risks and benefits for both sides and i think that the importance of actual individuals and their capabilities is undervalued in that conversation. in my view. >> richard. >> i'm curious about the enforcement actions.

you talk about the nature of the claim and they are obviously much higher than 100%. what they are basically the same number and i'm curious about whether du death claim was an add-on claim where they are adding it on to something else or how often was independent in the sense that the other consumer statutes can be extremely technical. it certainly possible for somebody to violate the consumer statutes and not be a bad guy in the sense that you could format your form incorrectly and nobody reads them. you show a violation of the statute so how often are the deceptions tacked on as just an additional claim?

>> calling the claim attack on claim made beginning at backwards. there was a chart that i showed in there some other church in another piece i have coming up that are more illustrated on this point but there's a chart that looked at enumerated claims and the thing i highlighted was the consumer relief and redress in those cases is quite modest in comparison to the udap claims. just look at the array of cases that are out there that are just a larger number of udap cases and producing much more in return. in most of the cases you are going to find a mixture of enumerated claims alongside the udap claims. not at all, there are some cases they are udap only.

to see if there any enumerated only claims of udap off the top of my head the only ones i can think of there may have been equal credit opportunity and fair lending cases that it didn't have udap claims attached to them. hopefully that's responsive. >> a question for you. he talked briefly about some people are taking a legal remedy. i'm curious to people ever get any monetary compensation when they have a complaint? i know they sampled and they said they weren't in that. is there any compensation for emotional distress and if not is the cfpb taking some sort of

role to provide compensation if the company is getting it wrong? >> in terms of the role of the cfpb with its complaints which goes along with telling the stories in the narrative and how people are interacting with the functions the cfpb sends the complaints to the company. it's very clear every homepage now the first line you read usually in a box says the company has 15 days to refund to you and then you as a consumer can respond effectively. the complaint database itself has what the company said and it sort of results of the complaint in a very broad category. say the company disputes within

their a few other things. that's the only marker within the database. i was more looking at do people understand what they are doing and when the donors than what they are doing how might that affect the cfpb's role in processing these complaints and how might the cfpb intern look at what people are saying to figure out how people allocate its resources to enforcement regulation because part of the taking the complaint is looking at what people are complaining about. in the paper use paypal as an example. there are narratives about it before and after so i think you can track activities of the cfpb but in terms of we don't really know what the end result is.

>> the end results are the companies provide relief. you see whether the consumer is disputed that you don't intervene after the dispute and you don't see the company resolve the problem. in interviews of cfpb officials i got the impression that was likely to get -- to pull that complaint and actually look at it but it was not completely clear. i will say that the relief is granted if you break it down as products and subproducts. you need to most likely be granted when it's smaller and what is less meaningful. ..

there are dictionaries upwards that are basically synonyms for this emotions. for that sake. those were the ones you can ask i head for the software. and that would be more of a

quantitative content. is that what they did initially with the emotions expressed in the narratives. look for actual words. i am disgusted. and then there is a few synonyms for discussed in anger. some of them there is anger in there. a lot of exclamation marks. and those are the ones that we tagged as frustration almost manually. if you take it out of the analysis and just go with the pure anger you still see the same type of those coming through. we went through and did it. you mentioned something. a number of things.

the lack of the power give rise to the need for them to explore that more and we need a jurisprudence around that. it rings true to me in many ways. i like you to say more about that. recall that in the abusiveness standard three of the four potential prongs contemplate one of the elements. involving some form of unreasonable advantage taking. it's not defined be on that. to my way of thinking one thing that might tend to show that would be price gouging or taking too much or taking a form of compensation that's unreasonable. at the same time they can't establish a usury limit.

i know that because i read them all. and we went and read all 50 state. you know what those are. the universe of potential price gouging is not the same as the universe of interest rate limitation. in the history of usury laws. i think also the one rulemaking that the bureau has bureau has announced is the one that you focused on the payday rule and a fair disclaimer. that was obviously something that i worked on. the bureau has been resident to list excessive pricing as a justification for the action either in highlights or the rulemaking or the enforcement

actions. it is just a prohibition. it is nothing else. was it willing to take a high cost loan. or was that being financially fragile. yes nick i do. yes nick i do. i think to elizabeth. i think they know more about that. taking advantage of that. how are you can react that. our product is so that it benefits are upfront.

you don't read it that way at all? >> is it's not that i don't do that. with the inability. with the selection. i think the behavioral piece to unconscionability. it's a very similar idea. at least with respect to that. it doesn't seem to me unreasonable advantage taking is limited to only some behavioral process. also, senator warren also the highlighted payday lending. it's an example of an exploding type of product.

i think they were concerned that the loan was expensive. the consequence of the new payday rule. the things like that. and with the model they should. it's basically cannot guarantee the only product available for consumers. they have everything controlled by national companies versus smaller mom-and-pop organizations. actually get to love our consumers. it is yet to be seen but nationwide within with any

given state about 30% what we saw when we lived in colorado which in 2010 stayed there is -- changed their state law .-ellipsis to this. about 25 percent of the stores in colorado are owned by those types of smaller businesses. the rule is a lot more burdensome. it stands to reason that will probably be harder for lenders generally to comply with it. i think there are a lot bigger opportunities. with the turnkey operation. have no reason to believe that.

that sounds like industry propaganda to me. it depends on what the loan product is that they are offering. if they are able to make a 5,000 interest rate loan to consumers with a longer duration loan. but doesn't take a leverage payment mechanism such as the pre- authorized debit or a lean on the borrowers vehicle it's not a role as a proposal. the notion that you can run a business doing. based on the consumers. the regulations does not touch you. so as soon as they figure that

out i don't see what they cost her challenges are for that type of business. and those are legal in many states. some of those loans were cited. nothing said if you can try and make loans that are like that. and you want to try to fit into the framework. it is the case that attempting to verify that the borrower can repay the 600% is can be more complicated than it was in the past. >> i remember when they presented the paper in draft form i was wondering do you

think as time went by she would continue to be as optimistic as i remember her being. would she you write the same paper. >> i think she read about supervision. it is continue. she was one of the people that influenced me and thinking that's right. this is behavioral economics. for example. that hasn't moved or been used at all. >> do you think they are doing

more than that with those issues. i think she's excited that the process is continuing. >> we thought that it was not the correct body to implement the pay lending rules. it seems like a success story. it's only a success story because it deals with the product of high prices. with the less states. they ultimately get rid of that. he comes to me.

their statement price is a problem. it is a problem. an enforceable payment. to make the credit you made available. they can't regulate price. and they can impose a different set of rules. in their upfront. they could really improve and clean up this.

i think they made some key adjustments they would dramatically improve this market. they could open up the market it to be a much more level playing field among all types of lenders which speaks to that role. but make a rule that banks and credit unions can use as well. get into this market. they have the ability to make loans profitable. they already had checking accounts. in a nutshell that's not happening more today. there is no federal guide guidance for a. the lack of guidance is

keeping the banks and credit unions out. >> i am a huge fan of nick. the resources that they've head. it is just astonishing. it is wonderful scholarship. nick is without question among the very foremost thinkers on the country. i sometimes feel you are at a touch unrealistic by his legal risk associated with that it is the first rule time. it is the apa that justifies any of the things that it designates as being abusive, deceptive or unfair practice. experts in what i can testify

to it. in federal court. some of the other things that you're talking about and other potential levers recall that each of those was justified. i also don't me to defend the bureau proposal. i learned that they also get made in the executive branch sometimes. you're right colorado in its complicated framework a lot of other things also. when you take it out that i'm not so sure that those pieces continue to function. an essential piece.

it doesn't have the thing that binds altogether. particularly in light of the litigation risks associated with the evidence they have to justify. all of those mechanisms. when you put all of those pieces together it is an extremely difficult rulemaking. seen sena policy can't work if it doesn't have a price limit is about the same as that they can't form this problem. the logical conclusion is maybe that the rule will be so difficult that they push the levers out of this market. also is not can happen. the rules allow lenders to take a quarter of a person's

paycheck. it's not a great improvement. they concluded that those are consumer benefit. they said there is a very severe regulatory overhang and a cost that is associated with this rule. that cost benefit analysis becomes really dangerous. i think that ray rate made it stronger to promote better consumer benefit has a stronger case. i'm not cannot defend that euros rule i was merely raising the point you have to recognize that there are

substantial legal risks but that was an excellent point. >> we had three minutes left. they are coming at it from a bank angle.

>> i think it's under $100 million a year nationwide which is really quite small. that being said, before the federal deposit insurance corporation and the office of the comptroller, you know, issued some, issued a regulatory guidance on bank payday loans or, what do they call them, deposit advance products, that was a more robust market. some of the largest, large -- not just large, cfpb banks, but the largest banks. at least one of the largest banks was offering that product to millions of consumers. so they can get, they can get

there if they're allowed to do so, but now, i mean, the thing going forward that's going to be tricky for them to sort through is how they can comply with both the bureau's ultimate rule once it settles on it -- if it does, again, it's just a proposal as well as the fdic/o to cc guidance, that's going to be a complicated overlay. and add to that now the military lending act goes into the sort of new and improved regulatory version of the military lending act goes into effect, i think it's next monday, on octoberthe 3rd. and that's another segment of the market the banks would have to deal with in some way. my guess is that the banks are not going to be willing to invest the sort of load in the capital they would need to build a compliant, robust system until the bureau's rule settles the market. >> yeah. and the rule would have to be, i think, a lot more clear in terms of what was expected in terms of

monthly payments. they wouldn't, they would have to have an ability to automate a lot more than this rule as proposed would allow. because they do pre-screening of customers, and they automate the offering and expect origination of these loans because they can't make a loan for a fair price unless they only spend 2 or 3 or $4 originating it. there's just no regulatory path for them to do that right now, which is part of the point. and, you know, i think if the cfpb offered that streamlined path, that would go a long way to helping banks and credit unis getting in the -- unions get in the -- [inaudible] >> so we're out of time. if we want to stay here for a little while longer, we can continue talking. otherwise 15 minute break and reset for the next panel. come down for, to continue the conversation in the meantime. [applause]

[inaudible conversations] ♪ ♪ >> c-span's "washington journal," live every day with news and policy issues that impact you. and coming up friday morning, afghanistan veteran ashley nicholas and iraq veteran brendan knew lainny will join us, talking about their transition back to civilian life. also author suzanne gordon will be on to talk about issues facing veterans. be sure to watch c-span's "washington journal" live at seven eastern friday morning. join the discussion. ♪ ♪ >> the supreme court heard oral argument in friday v. napoleon community schools, a case on whether a disabled girl who was prevented from using her service dog in school can sue the school

district for motional damages. her parents sued in 2012 alleging that she was discriminated against at her elementary school in napoleon, michigan. >> we'll hear argument first this morning in case 15497, fry v. napoleon community schools. mr. bagenstos? >> thank you, mr. chief justice. congress made clear that the i.d.e.a. is not the exclusive vehicle for protecting the rights of children with disabilities, and congress also sought to make clear that cases brought under other federal statutes, like the ada and the rehabilitation act, may proceed to court so long as they are not seeking relief that is also available under the i.d.e.a.. it is irrelevant whether the plaintiff could have sought some other form of relief that would have been available -- >> suppose that there's a school district and two surrounding

school districts within the same federal court jurisdiction and same circuit. have each been ordered to make accommodations under faip, under faip for a dog? and then a person in the third school district just sues under the ada. is there an exhaustion be problem? >> well, i think the question would be what is the relief that the plaintiff is seeking in that third -- >> so it just depends on what the complaint says? >> i think it depends on the relief sought because that's what the language says. >> but then you're saying that the artful form of the complaint suffices to subject the district court to damages that it might not -- the school district to damages that it might not otherwise have had to pay. >> well, a couple of points about that. first, i don't think it's the artful form of the complaint, i think it is the relief the plaintiff is seeking. secondly, remember, this is damages being sought that would

fully apply even if exhaustion existed. the question isn't whether the school district is going to be subject to damages under the ada or not. that is something that might exist anyway. the question is whether i.d.e.a. proceedings have to first be exhausted, and what congress said about that in this statute unlike in other federal statutes where it said exhaustion is required whenever any remedy is available, here what congress said is when the plaintiff is seeking relief that is also available under the i.d.e.a -- >> but you could, you could have, as justice kennedy suggested, gone the i.d.e.a. route. you could have asked to accommodate the dog. and if you had done that and you were turned down, could you then switch to the ada track, or would you have to have started under i.d.e.a. to continue on that route? >> well, under respondent's position here, i think we -- and under the 6th circuit's

position, certainly, we would have to follow all of the i.d.e.a. procedures through to their conclusion before filing a lawsuit under the ada. i think we still would be able to file the ada lawsuit. now, there's a difference not just in terms of relief in the lawsuit filed under the ada versus the i.d.e.a. which is under the i.d.e.a. in order to get any relief, the plaintiff would have to show not just that there is a denial of a dog, but that actually depeeved the plaintiff of -- deprived the-of an education. you should the ada, the rights that individuals with disabilities have the same in all public facilities. you have a service dog, you can bring it. >> i understand you'd be making two arguments. one is that you don't have to exhaust because you're asking for damages, and those aren't available under the i.d.e.a -- >> yes. >> and the second one is you don't have to exhaust because you're not complaining about the fair and appropriate public education provision. are those separate arguments, or

are -- do you have to satisfy both of them? >> no, i think they're independent arguments, mr. chief justice. i think the fact that we are seeking emotional distress damages and as the 6th circuit recognized are not available under the i.d.e.a. are fully sufficient for us to say exhaustion was not required. >> so if that's the case, why -- i would suspect that the denial of what is sought under the i.d.e.a. for a fair and appropriate public education is something that could well cause emotional distress in most cases. and so is all you're saying is that you have to tack on to an i.d.e.a. claim a claim for damages for emotional distress, and then you don't have to exhaust? and so whenever a school district denies an element of an fapa or a proposed element, they will always face two-track litigation. >> i don't think that's right, your honor, because it's not the case that every time there's a

denial of a free, appropriate public education under the i.d. ea. there's also going to be a violation of the ada, right? these are overlapping -- >> that's true, but you could find, i mean, in -- i have exactly the same question. a very large number of suits, you know, very large number of suits brought are controversies where a child is seeking a special plan. there is a statute that gives him that right, and it rests heavily on his getting together or his parents getting together with the school board and trying to work something out that makes sense. now, it seems to me as the chief justice just said that if we accept your first argument -- not in all cases, but in many cases where their lawyer wishes to avoid this exhaustion requirement, all he would have to do wait and then sue not for

putting the child in a private school, but rather, for emotional suffering. now, if that argument -- if what i have just said is right, which i think is what was just said by the chief justice, that would seem to gut the carefully written procedural system that the i.d.e.a. sets up. and that's what is concerning me, and i don't think the word "relief" has to be read in the technical way in which you're reading it. >> well, so i think this goes not just to what the word "relief" actually says, i think, you know, this is a highly, carefully crafted procedural regime, as your honor says, justice breyer. but part of the careful crafting of the regime is the handicapped children's protection act which, remember, overruled a decision of this court or overturned a decision of this court that had sought to channel all disability education claims into i.d.e.a. proceedings. what congress said in the hcpa

was there are other statutes that may provide independent remedies under -- at that point it was the rehabilitation action, section 1983. congress later added the ada to that list. and those cases may be pursued independently, said congress, so long as the plaintiffs are not actually seeking anything they can get in i.d.e.a. proceedings. and -- >> [inaudible] answer to me and, i think, to the chief so far is, so what? because that's what congress wanted. is there any answer other than that? >> well, so, i mean, i think there are a couple of answers other than that. i do think it's what congress wanted, and i think if you look at both the text and the legislative history, senator wiker's brief shows which is what congress wanted. but in addition to that, yes, i think there's a lot of reason to believe -- and we have an amicus brief here from former special education administrators thomas heir, melody musgrove and madeleine well says, look, we think parents are going to go

through i.d.e.a. procedures, because they want to get the relief available in i.d.e.a. proceedings. there are some cases like this case, like the fry case -- i'm sorry, like the payne case in the 3th circuit where you have a case of abuse, where the principal injuries are not injuries to education, they're emotional injuries. those are cases that are going to proceed to court -- >> i guess that's right, but even if what you say is right and it makes a lot of sense, a lawyer advising a client might advise that, look,s this is what you want the school to do so that you can have a free and appropriate education for your child. you will have a lot more leverage getting the school to do that if you also sue them under the ada and section 504. and the school board's sitting there looking at it and saying, gosh, we're not only exposed to the relief is under the i.d.e.a., but we're going to have to pay damages. you understand my point -- >> i do. >> as a practical matter, it would be -- could well be in the child and parents' interest to proceed along two tracks because

that makes it much more likely. even if what all they really want, they don't care about the money, they want an education for their child. >> i think the point about that, that is right about a lot of practical issues here. the crucial point is that exhaustion does not change the leverage that the plaintiff has here, right? so even under the 6th circuit's rule, the plaintiff -- our clients could have exhausted i.d.e.a. proceedings, said at the time we filed a complaint, by the way, school district, we are also going to sue you under the ada -- >> later on, once we're done -- >> once we're done with this. >> i think one of the more important things is timing. we're talking about a school year, and all this takes time. so the idea that, well, when all this ends, you know, who knows -- and i gather there's a debate about how quickly these things are resolved, then we might do this. if we do it at the same time, that gives you the leverage when you need it to get the accommodation in place that you want for the child. >> well, your honor, i think there are, obviously, a lot of variables. i think a lot of defense lawyers

would certainly say being threatened with long, drawn-out proceedings at the end of which is a damages award is pretty significant leverage as well. and i think the point is that time also works both ways here. one of the things that congress was trying to do in the hcpa was recognize that the ada and rehabilitation act in 1983 are independent and requiring parents to, first, proceed through what are likely to be time-consuming proceedings under a separate statute, the i. d.e.a., that can't give them the relief g. >> mr.-- >> but your whole point again is what's in the complaint. and the statute says that before the filing of a civic -- civil action, you have to exhaust. if the statute were written your way, it would have said at the time you file the complaint, the complaint must ask only for. that's what you're saying, but that's not what the statute says. >> so i'd say a couple of things about that, your honor. first of all, i think seeking relief might natural by be

read -- naturally be read to the look at what's in the complaint. in any event is, i don't think our argument turns on what we asked for in the complaint particularly. we have made clear throughout these proceedings not just in the complaint, but as the proceedings have gone on that a what we are asking for is compensatory damages -- >> could i ask about that? >> yes. >> and this takes you back to the first part of the chief justice's question just so i can understand the argument. you're really making two arguments. one argument is initially when we filed the complaint and ever since, we've really only sought emotional distress damages and emotional dissan francisco damages are -- distress damages are something that can't be begin under the i.d.e.a., and that's one argument. >> yeah. >> but there's a second argument which says, you know, putting that aside, the reason why we don't need to exhaust is because we're not alleging that we've been denied a fair and appropriate public education. you know, we're alleging some other denial or deprivationing,

but we're not alleging that -- deprivation, but we're not alleging that. we agree that the school has given us a free, appropriate public education. and that in itself, as i understand it, would also mean that you don't have to exhaust be, right? so it can be one or the other. is that what you're saying? >> yeah, so i tried to say -- yeah. >> this case is, actually, the combination of the two, is what you're saying. so in some ways you're saying this is the easiest case where both are true. you're neither alleging a denial of a faip, nor are you seeking the kinds of damages that an i.d.e.a. officer could provide. so it's the intersection of the two theories. but if i understand your argument, either one of those things would mean that you don't have to exhaust. is that right? >> i agree with that, justice kagan, yes. i think this -- i think under either theory we wouldn't have to exhaust, and because this is a case where both what we are seeking is something that categorically is unavailable in

i.d.e.a. proceedings -- >> and, mr. bagenstos, could you clarify what you are giving up by taking this route, by suing under the ada and not under the i.d. e.a.? >> so what we are giving spup what parents are giving up generally by pursuing this route is anything you could get under the i.d.e.a.. that is reimbursement of educational expenses, compensatory compensation. we are seeking none of that in this lawsuit, what we are seeking -- >> but you might be. and and this goes to, i mean, suppose, suppose you weren't alleging a denial of a faip, but you were seeking damages that included, you know, i sent my kid to private school, i had to hire a tutor. damages that you could get from an i.d.e.a. officer, but for some reason that didn't have to do with the denial of a faip. you're saying that you don't have to exhaust in that context east. >> right.

so that is the second argument, and i agree that the court does not have to reach that argument in order to rule in our favor here, but, yes. >> but if we did, it seems to me that that might address many of the concerns that have been raised about the impact of the two-track proceeding. >> yeah. >> in other words, if, in fact, if your argument were to be that, no, you need both, out seems to me -- it seems to me that would address a lot of the practical problems. i appreciate the fact that you think in this case both are present -- >> right. >> but yet you want to make a more aggressive argument that you only need one. >> right. and i think we would certainly prevail under the you need both theory, and that's why we allege and we have argued throughout this case -- >> and i suppose one understanding of this is we don't have to really deal with what happens if you only have one, because you're saying you have both. is that right? >> that is entirely right. so let's be clear about the second point here. so the defendants have said all along that because they gave my client a one-on-one aid, that

all of her physical and educational needs were satisfied, and we have not challenged that. if, you know, it would be difficult for us to challenge that. i know this court has a different free, appropriate public education case in front of it later this term that may clarify what fape means, but under current law, it would be difficult to challenge it. the injury to my client is not a denial of education but, for example, the humiliation that she experienced when she was forced to go to the toilet with the stall door open and four adults watching her because defendants did not trust her to use her dog to transfer to the toilet bowl. that is not a free, appropriate education plame, your honor -- >> made by someone who doesn't qualify, who is disabled but doesn't qualify for i.d.e.a. because doesn't have any learning disabilities. >> absolutely. a person who has a disability that does not require special education so is not covered by the i.d.e.a. would still be covered by the ada and be able to make exactly the same claim here in a school, yes. that's right, justice ginsburg.

>> what would happen if the claim was that the child suffered emotional damages because of the denial of educational benefits? >> so i think that would be a harder case because that would present only the first of our, the first of our two theories. we'd be seeking damages that are not available under the i.d.e.a., and remember, the statute says seeking relief that is also available, not alleges an injury that might be redressed in i.d.e.a. proceedings. under that plain text, i think the exhaustion wouldn't be required, but our case is stronger because we have both here. and if i may reserve the balance of my time. >> thank you, counsel. >> thank you. >> mr. martinez? >> mr. chief justice and may it please the court, the parties -- both parties and the government now all agree that the rule under which the 6th circuit decided this case is wrong and that exhaustion is required only if the relief that the plaintiff

actually seeks in the case is available under the i.d.e.a.. in light of that agreement, we think the most sensible way to resolve the case is simply to reverse the decision below and let the claims go forward. as the 6th circuit pointed out, the relief actually sought in this case is money damages, not a change to the iep, and that relief is not available under the i.d.e.a -- >> mr. be martinez, that begs the last question that was asked which is the pain, you know the 3th circuit -- 9th circuit payne decision. >> right. >> it doesn't just look at the relief, it looks at the nature of claims and decides whether they're a fact claim or not, whether it is seeking a change in a faep or not, in essence, in substance. so it's not looking at it technically as if we're asking for relief, but it's looking at whether or not a faep claim is the substance of the allegation.

you're disagreeing with the 9th circuit approach presumably. >> we -- justice sotomayor, i just want to be clear, we understand the 9 circuit, and we explained this in our brief at the petition stage to be departing from the other circuits and actually saying what matters is what the plaintiff actually asks for. >> no, what they're saying is the nature of the relief that they're asking for, would it require or necessitate a change in the faep. that's one of the three prongs that they look at -- >> are you talking about the third prong? >> yes, exactly. >> we do disagree with that, your honor, but i think that's addressed to circumstances in which the elements of the non-i.d.e.a. claim that's being brought overlap entirely with the provision of faep -- >> so let's go to the last argument, the last question directly then. complaint be says the faep was all wrong, it's hurt my child,

and can that's the nature of the complaint. >> yes. >> and it seeks injunctive relief for the future not to be hurt. >> yes, you have exhaust -- >> no change of faep -- no other thing is said, it's just i want compensatory damages. >> yes. we think if you're seeking injunctive relief -- >> how about no injunctive relief, paris and future -- past and future damages for emotional distress? >> i think if the only relief sought in the complaint is money damages, we think that the text of the statute says that you have to figure out whether that relief sought is available under the i.d.e. ea., and i think there's common agreement that that relief sought is not available under the i.d.e.a., so you would not need to exhaust. now, i want to address -- >> if it's that simple, then why are we in a argument? you apply ordinary exhaustion principles. under ordinary exhaustion principles, you never have to exhaust.

exhaustion would be futile, okay? so you say exhaustion applies, it would be futile, they can't give what i want, end of the matter. >> that -- >> what is all this complexity? i had thought that it might be because -- well, you tell me. >> i agree with that, justice breyer. we think that what congress did here was adopt a rule that, essentially, embodies that -- >> so could i say that? could i say, very well, what they did here is adopt well known, for a hundred years or more, exceptions to the exhaustion requirement where exhaustion would be futile? >> you can -- >> judge, you go back and a apply that to this case, end of case, no reason for special law, for prisons, for i.d.e.a., for other things. >> i think you could adopt the rule as set out in the mccarthy decision, as set out on the house report on page 7 -- >> i haven't memorized that. are they essentially saying what i am saying? i will find some words, and those are the words.

>> the words i would suggest are the words that you used are as follows: if the hearing officer lacks authority to grant the relief sought -- those are the words of the house report -- then exhaustion is not required. those are also -- >> i just want to make sure of the government's position. is the position of the united states that a faep cannot include relief for this sort of problem? personal assistance during the school day to accommodate the particular disabilities? >> in some circumstances, a faep can accommodate that, but we don't think that's the relative question for purposes of allying the statute. because the statute turns -- says that the exhaustion question turns on whether the relief that the plaintiff is actually seeking, those are the terms that the statute uses, the relief that the civil action -- >> all right -- >> -- is available under the i.d.e.a -- >> but it talks about before filing the complaint. >> it says before filing the complaint -- >> suppose it was very clear

that most faep plans cover precisely this kind of problem. same case? >> i think that if, if -- the facts of whether a faep would allow for the school to take account of the service dog really isn't the question, because the question under the statute turns on what the person is asking for be, what the relief that he seeks. and the statute says that the civil action has to be seeking particular form of relief, then -- >> all you're talking about is artful pleading then. >> no, not at all, your honor. and i want to address your question and concerns that came up, the practical concerns about the parents who actually do want, what they really want is a change to the iep. if the parent files the ada lawsuit and says i want an injunction that's going to require the service dog, that is the kind of relief that would -- >> so would you have to get a service dog if, in fact, it's going to cost him $5 million in damages? and they're talking about before filing the complaint. all right, before filing the complaint you're already in negotiation with the board, and

you think i'm also entitled to this under this ada statute, let's file a complaint and ask for damages. it will be race judicata or something when i win, and then they'll have to give me the dog. and if that is the theory, then -- well, it might work in this case. there are thousands of cases where parents don't have the money to litigate, where some do or some don't, where boards are in difficult problems, and all these very great difficulties in such cases which are worked out through negotiation p won't be. >> no, i don't think that's right, your honor, because i think as a practical matter -- i'm a parent. if one of my children were being harmed in a school, i would try -- and i thought this was wrong, i would immediately be looking to find the most, the quickest form of relief that the law could provide me. and the quickest form of relief for a parent who actually wants a change on the ground to the situation is to follow the i.d.e.a. procedures. >> no, no, but the point is you're likely -- they're going to listen to you a lot more

carefully if you say, by the way, i'm also filing a suit under section 504 in the ada -- >> right. >> that's a lot more leverage. >> with respect, mr. chief justice, i think i would say up front, you know, if i lose in this i.d.e.a. process, i'm going to bring the ada claim with all the damages involved. so i can make that threat at the beginning because everyone agrees here that at the end of the day, regardless of whether or not i exhaust, i can ultimately go to the ada process or file a suit under the ada or -- >> well, i don't think that's what you would do, but i guess you're the better judge of that than i am. [laughter] what -- what is your position on the question i asked earlier about the two-track proceeding? is it enough that they're seeking damages, and is it enough that the, they're fine with the fapa or the iep or does it have to be both? >> no. we think these are two different, independent reasons why exhaustion is not required

here. the plaintiffs in this case are seeking money damages. money damages is not available under the i.d.e.a., therefore, they don't have to exhaust. that's argument one. argument two is everyone on both sides of this case agrees that a faep was provided and that the i.d.e.a. was not violated. therefore, it makes very little sense for the court to say you need to go to an administrative process so that the question of whether a faep was violated can be resolved, because both parties agree on that. our legal system does not require parties to go into any proceeding, in court, in an agency and make arguments that they do not belief are true. >> so is the party's concession sufficient to answer that question? >> i think the party's concession is sufficient to answer that question. >> what if you had a complaint where the parties did concede that i.d.e.a. was not violated, that a faep had been provided, but as you looked at the allegations in the complaint, it really seems that there is ground to think that a faep was

not provided and that the i.d.e.a. was violated? what do you do with a complaint like that? >> i think if the parties agree that that a faep was provided, that could be enough. i don't think the statute has in mind the process by which a federal court or an i.d.e.a. court officer is given some roving provision to sniff out. it's an adversarial process, it depends on the parties to come together, bring their disagreements forward, bring evidence and then a decision is made. it's not some sort of process where the hearing officer's supposed to say, well, i know the parties agree there's no legal violation, but we're going to go ahead and maybe there is one anyway. and i think the rule that responsibilities advocate here -- respondents advocate here, not only is it unheard of in american law, but it actually is inconsistent with the i.d.e.a. itself which would allow for an award of attorneys' fees against a parent who brings a claim that is frif lent, unreasonable or without --

[inaudible] >> thank you, counsel. mr. katyal? >> thank you, mr. chief justice, and may it please the court. the case that was actually filed in this case illustrates the point -- the type of dispute congress chose to channel through local education experts. they don't have both, they've got neither. the brief on opposition appendix page 21 has the complaints for relief, and it contains three forms of relief we believe are available under the i. d.e. ea.. first, a declaration that she was entitled to attend school, second -- [inaudible] >> [inaudible] >> page 21 of the orange brief -- >> no, i know. the respondent be's appellates -- >> yeah, the orange -- >> what allegation says they want reimbursement for her schooling, etc. >> so, first, they want a declaration, okay? and that's number b. and then --

>> the declaration was that the ada had been violated. >> correct. and our point is that the statute requires you to look at is this relief available under the i.d.e.a -- >> well, if it's not available, you don't get a declaration that the ada has been violated or the rehabilitationing act has been violated -- >> that's -- absolutely, justice kagan. we couldn't read the statute to, the second half of section 1415, the exhaustion requirement to say you've "to show, you know, that the i.d.e.a. gives that form of relief. really i think what 1415 does, it has two parts. the first, as the argument was started with, it's about the what. it's about what can, it's saying that smith v. robinson was wrong, that basically, you know, there's rights above and beyond the i.d.e.a.. the second pardon though is the timing, and it says if you're choosing to bring one of those lawsuits, you've got to first exhaust the i.d.e.a. procedures

if the relief is one that you could get from the i.d.e.a.. if you read it to say, oh, you've got to show in violation that they've got to ask for an i.d.e.a. declaration, then you're essentially gutting the statute. >> [inaudible] any relief? i mean, that finish i gather your furthest argument is that if any relief is available under the i.d.e.a., you must pursue that route first. but that's exactly what congress declined to adopt when it was proposed by the national school board association. so so you must be saying something short of if any relief is available -- >> well, we certainly caution the court about failed legislation, trying to read too much into that. but you're right, justice ginsburg, that's our broadest argument. and the argument works like this: the complaint has invoked the idea that seeking any appropriate relief. and here any appropriate relief

means anything that is available that could be granted by a federal court. if -- >> well, that's boilerplate that may or may not be significant. but do you concede, and i couldn't quite tell from your brief, they will be able to get money damages for everything they're seeking under the ada in section 504 under the i.d.e. ea.? >> we don't concede everything, but we do think that they get a part, brief pages 44-50 explains. the only thing the complainant seeks is the word "damages." page 21. and to understand the damages, you have to look to the complaint. the complaint isolates, as the brief goes through in quoting chapter and verse of the complaint, things like compensatory education, thing like home schooling -- >> so they're asking, they're asking for other things, right? i know, basically -- so are you saying they'll get some of the damages they're seeking but not all of them? >> correct. that is -- >> well, then under jones' case,

isn't the rule, well, then, you know, they get to proceed with the things they're not going to be able to get under the i.d.e.a.? >> absolutely not, your honor, for a few reasons. first, the jones case itself, your opinion is about letting good claims go forward versus bad claims. here there are only two claims. one is a violation of the ada, the second is the violation of the rehabilitation act. now, it is true that one of their prayers for relief is damages. not, by the way, emotional damages which is what the reply brief pointed out and says it 27 times, it just says "damages." in order to -- jones does not permit and, indeed, no decision of this court has ever permitted a plaintiff to try and slice and dice a prayer for relief in one way or another. rather, the question is, is this claim under your opinion a good claim or a bad claim. liberty mutual, your decision in liberty mutual, says a claim is a cause of action. and here the question then under 1415 is, is the cause of action something that requires exhaustion?

>> when i look at the claim forms, which the only only allegations besides the prayer for relief at the end, is in response, respondent's appellate 11 ooh 50 or 51a-f. every one of those harms alleged is a component of emotional harm. nowhere are they saying she was harmed by having to pay, to pay for a tutoring program or harmed by her mother losing her job which is what your brief was talking about. here all of the forms alleged -- harms alleged are essentially compensatory, emotional harms. a, the denial of equal access; b, the denial of the use of wonder; c, interference to form bonds with other kids. the denial of an opportunity to

interact with other children. and f says it very directly, emotional distress and pain, embarrassment, mental anguish, inconvenience and loss of enjoyment. those are -- every one of these are the classic damage harms that are compensatory. so how does the i.d.e.a. provide compensatory damages for these injuries? >> our brief goes into this in detail -- >> i know, but i was trying to look for it in the complaint, and i couldn't. >> well, i do think the only place in which emotional is isolated is f. this is, of course, a nonexhaustive list in paragraph 51, and things like interference and denial of the opportunity to interact are exactly the kinds of things i.d.e.a. relief officers provide in the form of counseling -- >> think of it this way. suppose this girl wanted to go into a public library a couple of times a week, and the library said you can't take your dog

here, we're going to just provide you with a librarian who will help you do all the things that your dog otherwise helps you with. and the girl brings a suit. isn't that suit exactly the suit that she brought except that instead of a library, it's a school? but that's, that's her claim, and be those are her damages, that she was deprived of access to a public facility in a way that caused her distress and emotional harm. >> justice kagan, it may work in that case as opposed to this one. that's because 1415 is a unique exhaustion statute geared to the school setting. it's a carefully calibrated situation where the i.d.e.a. congress -- >> but this goes back to justice ginsburg's point. the entire point of this statute and the overruling of our prior case was congress saying -- the fact that the i.d.e.a. exists for schools does not mean that you don't have separate ada and rehabilitationing act claims. -- rehabilitation act claims.

and if you bring those separate kinds of claims which are essentially denial of access claims to public facilities and then you're asking in addition to that for a form of damages that has nothing to do with what any i.d.e.a. officer can provide, then you can go forward without exhaustion. >> that's exactly right in terms of explaining the first half of 1415. it doesn't explain the second half, the timing provisions of 1415. and to understand this, one nice way of doing it is to just look at the government's brief that they filed in payne. and this was going back to your questions about jones and bach. a money damages suit. the government told the 9th circuit that a money damages suit would not go forward because implicit in it is a declaration that there is an i.d.e.a. violation. so if you -- mr. martinez said in response before if the complaint only sought motional distress money damages could that suit go forward? in payne the government said the reverse. if the reason for that is that

when a federal court awards money damages, the first thing it is doing is issuing a declaration that the underlying problem was a violation in some way or another. so if you accept it, ef's complaint here, what you'd be doing is accepting the idea -- ordering a declaratory -- >> see, i see this is what we're -- [inaudible] [audio difficulty] fighting against you. not necessarily in this case, but in other cases where, in fact, it would be fairly easy by how you write the word "damages" in your complaint to have judges deciding ieps without the preliminary negotiation and views of the school board which would seriously undercut and hurt this statute which is designed to get the educational plan. the trouble with deciding it your way is, i think, exactly what justice kagan said.

almost anything can be written into an educational plan having to do with the child's day at school. and, therefore, when there's nothing more to it than a claim that the librarian wrongly kept the dog out of the library, the school librarian, you wouldn't be able to bring the suit because, after all, you could have written such a thing. don't keep the dog out of the library. in the plan. so what to do? now, i'm here thinking in the back of my mind of words that have come up in other cases like graveman of the complaint which we've had in many cases involving southern immunity in all kinds of things which, you know, holmes and frankfurter talked about, what is the graf man of the complaint. the heart of the complaint. what it's really about. if what it's really about is a significant matter in respect to

the iep, then you do have to exhaust. unless, of course, it's utah. if it is not, you don't. and then let the lower courts decide this one. >> so three points. first, in response to the first half about whether or not this would gut the exhaustion provision, we absolutely agree. and i found the answer mr. bagenstos gave about leverage and destroying the kind of system astonishing, he said, that's right. he admitted this would destroy the carefully wrought system. now, second, would ours do that? going to your other point -- >> i didn't hear -- i thought he simply said if you're going the i.d.e.a. route, you must pursue it to the end. but he said we're not going the ada route are, we're asking the same thing that we would ask if this child didn't have an iep. we're asking for access to this

facility. >> as i understood his answer, justice ginsburg, to the chief's question it was that, yes, a lawyer could walk in on day one and sue for money damages and then, and then extort or possibly leverage that into a better situation in terms of money. the amicus brief from the school board explains that this actually happens in real life. now, with respect to the concern that you had, i think this case is an easy one because in this case the iep -- the complaint itself says the iep denied the dog. if a federal district court, going back to justice kagan's first question, orders declaratory judgment which is what they sought expressly, then you'd be calling the iep into question. that's why petition appendix page 49 -- >> what does it say other than it's a recitation of fact? there was an iep, and it didn't include the dog? >> and what that means is if the

federal district court said here are money damages because you denied the dog, imbris sit in that -- implicit in that -- this is the government's brief in payne, that means that there is a declaratory judgment that the government -- that the school erred. and that itself -- >> the plaintiffs here are not suggesting that the iep was deficient. they're saying that the iep was perfectly sufficient. if all you look at is the kinds of educational criteria that i ieps usually look at, then the dog was necessary. what the dog is necessary for is things that don't have anything to do with the iep, is what the plaintiffs say. and be, after all, that's what they're saying, and that's what they're seeking, and that's what this statute suggests that we ought to look to. >> justice kagan, i think that's wrong about the facts in the law. i don't think you can affirm on that theory. this is a new theory they've put before this court that somehow they've conceded there is no

faith violation -- >> you're supposed to look at a complaint as a whole, okay? at the moment it's filed. what's clear in this complaint as the allegations say it is, this is what happened. it didn't have it in the i.d.e.a.. we asked them to do it, they didn't do it. they finally agreed to do it, and then we have placed our child in another school. they have a paragraph that says she's now happily in another school that welcomes her and her dog. okay? >> correct. >> they then talk about all the emotional distress. at that moment either because of futility because she can't change the i.d.e.a. at a school she no longer attends, the school she's in is already giving her her dog. there's no declaratory relief being sought that her current i.d.e.a. is deficient. forget about the past one. is deficient.

why in the world at the moment she filed the complaint would she have to go back or should have gone to the school earlier? she's no longer seeking anything related to the i.d.e.a -- >> justice sotomayor, two answers. we agree with you absolutely, read the text of the complaint as we were having that interchange earlier. including the paragraphs you read, talk about how the denial of the dog undermined her independence. and part of the i.d.e.a., one of the three statutory goals, and this is in 20usc1400d1, is concern. >> we're now getting, we're now going past where i am, okay? you're going behind what i'm saying but not getting to the point, mr. katyal. maybe before she changed schools she might have been entitled to something related to her i.d.e.a.. but at the moment this complaint

was filed, on its own face, where's it asking for any change potentially or otherwise to the i.d.e.a. that is no longer in effect? >> and that is my second answer to you. so the second answer is the complaint asks for a declaratory judgment, and that's what we were talking about at the beginning. to ask for a declaratory judgment under this court's decision in golden and city of lyons, the only way they can invoke article iii jurisdiction is by saying there's a reasonable prospect that the situation would occur. there is not a word in the complaint that says she won't return to the school. and, indeed, the 6th circuit grapples with this all the time when children leave the school and file these lawsuits. there's a case called woods which is at 487 federal appendix9 79, and what that case says is even if you leave the school, the school has an ongoing obligation to keep an iep current in case the person comes back to the school.

if you adopt it, if a federal district court granted their declaratory judgment, the only way they can do so and invoke article iii processes is by saying, look, there's a chance e.f. might come back x. that happens all the time. that happens, you know, in the pan case itself. people file lawsuits, they leave the school, and then they come back. that's what they asked for, justice sotomayor. they didn't ask -- and, indeed, the 6th circuit briefing is very clear or on this point. they never asked for emotional damages or even the word -- >> would you fit into the payne three criteria, the 9th circuit's three criteria? >> the -- >> the 9th circuit's criteria that it uses to -- >> yes. so we think there's a denial -- they can't just concede and say, oh, we think there's no faep violation. rather, we think 1415 asks is the relief available. and to understand whether the relief is available, it's not a

subjective inquiry. it can't be plaintiff-centered, it's got to be objectively is relief available. >> well, in all of these cases -- >> how much relief? going back to what you said before, you, i think you told me you're not pressing any relief. so how much relief? >> well, i do think that if the complaint seeks relief that is available under the i.d.e.a., then at least that claim can't go forward going back to the jones v. bach thing. so if, for example, justice ginsburg you had a claim like the dog one here, and then you had a separate claim that said something like the child was being abused in the bathroom or something like that, something that didn't implicate a faep or an i.d.e.a., i think that claim could go forward. it's a good claim under jones v. bach. what can't go forward is something like this, because congress had this in mind. they had the idea that a plaintiff can gut 1415 by saying, oh, i don't want an i.d.e.a. violation, i just want -- i don't want i.d.e.a.

relief, i want money damages because then they could file that lawsuit on day one, evade the cooperative process that congress has set forth, get relief from the district court and then, by race judicata -- .. here also lies the peripheral. this is a dog for a child who is not subject to regulations. they have a teacher who was going around or a person who is acting as a guide within the schools and this is to that degree a peripheral matter with respect to the plan and perhaps

arguably more la like brary in in the school or the person who does beat up somebody which could be the subject but a pretty minor part. >> this is going back to something i was trying to get too earlier about the second after your question. look we agree if there's a circumstance in which the iep or faith processes are not directly and hated in some way that's a different case. that's not this one. in this one you have them invoking the iep process for the very same thing they are asking the federal district court to do which is the declaration that the school aired. >> i don't understand that mr. cat y'all. you yourself have an example in your brief of abuse towards a handicapped or disabled student that would result in money

damages and maybe emotional distress but maybe also the parents to the kid out of school and is asking for the school, the private school tuition that they had to incur and all kinds of things but it was not because of anything the iep said or didn't say but there was discrimination based on the disability. it could be remedied by school type things like stop discriminating or abusing a disabled student but even you in your brief say that doesn't have anything to do with it i.d.e.a. so why isn't this the same thing? b because just as kagan is page 37 explains a lot of lower courts have said many of the discrete instance of abuse that doesn't violate the idea. >> you had a continuing stream of abuse. >> something that does implicate processes absolutely would require exhaustion. >> the i.d.e.a. doesn't care

about particular instances but cares about. >> there are some things just as kagan who are dealt with through the process. typically those are things that occur as a one-off. the court does need to get into it here. here you got a core situation in which they have invoked the ied -- iep process. >> you are saying there's no such thing as continuing discrimination that happens in the school setting that actually does not have anything to do with the iep. >> except that something like that exists our position requires exhaustion there. there has to be, relief has to be available. here relief is available under the i.d.e.a.. >> as i understand from one of the amicus briefs to put a fine point on this there are close to a million students who are disabled in some way but who do not get an iep so if there is

discrimination or a failure to provide access to one of those students you don't have to look to the i.d.e.a. for procedure do you? >> i caution the cord into saying that iep is the only thing that the iep is a good template and the centerpiece of the idea. a good template for whether or not there's an i.d. and a. it may not always map him perfectly but it's a pretty good proxy so when you have a circumstance like this in which they had tried to invoke the idea. >> i'm not sure and it's advantage of the question. matt casey would not send the child to the i.d.e.a. office? >> just as kagan you talked about a million different possibilities. so some of those may be circumstances in which for one reason or another the iep didn't govern the situation but should. in this circumstance yes we think exhaustion would be required. others which follow more like the examples on page 37 the

discrete one-off things those are situations when absolutely they would require exhaustion in those circumstances. congress had something similar in mind and 14/15 that if you can get the relief for the i.d.e.a. that's where set up war. if that's a scheme congress wanted to channel that's other than go through that first. here you need no better evidence of that happening than those processes here and if you allow their legal theory to proceed to siegell me money damages. >> there will often be situations where parents will secretly under the i.d.e.a. told early in the process or whatever may be the school will help. if they can do that and here's why the parents will say this is not available and we are not going to pursue it. we are going to sue under the ada. >> certainly this feudal and they say he lacked the authority authority. >> they say we could press ahead of this and we could sit down

with him and say he needs to do this or that but it will be easier for us to proceed under the ada. >> the choice congress made going back to the earlier question it's sound strange to say why are you forcing plaintiff parents into a scheme that they don't want? that's the scheme that congress laid out and the consequence of the exhaustion statute. >> it may be a scheme that they decided the relief we seek is not available under this. this is the case, they do have the human who is taking care of these things and that's enough for fipa but you know we still have this discrimination complaint. you agree that that's an awkward position for them to go to the media and say we don't want anything. >> is certainly awkward mr. chief justice but what congress said it's not up to the individual parents objectively to say hey i don't want any part of this process. rather if you have to go the process and at the end of the 105 days the short statutory

process then you can come in. >> is the only argument you're making that they are not entitled to their declaratory judgment as they didn't exhaust that? are they entitled whether they exhausted or not to the ada claims for monetary compensatory damages for pain and suffering? >> just a sotomayor they first have to exhaust. >> it's not too late to exhaust. >> not at all. >> how. >> how about if they just play ball that and say i want my money. >> again i think that it can't be for the reasons that the chief justice and justice breyer said the plaintiffs can kind of wave things around. congress had an objective standard to mind. is relief available? >> i'm so confused by your position. i am so horribly confused.

what is the purpose of all of this? let them go back to a school they are no longer in, they will say to the school give me money and what else? >> just a sotomayor that is not, he told me to look at the text of the complaint. none of that appears in the complaint. if anything the complaint says the reverse. they want the declaratory judgment that the school aired to the only way they can invoke that is by saying that this is a situation that is bound to occur. the purpose, why are we standing here and what we worried about? >> they let her bring the dog back in. she just said i don't feel welcome here and left. so they are to gut the relief they wanted. they got admission by the school that she was entitled to bring the dog dare. they have already said that. >> petitioners never make that argument and it's on the complaint in the reason for that is what is in the complaint as they felt that the dog wouldn't be able to be welcomed back.

the idea that they could allow money damages for this type of situation without first exhausting the state processes the x. -- a runaround for the expert agency. they want to give the first in resolving this rather than abandoning the i.d.e.a. system which is exactly what happened here. i understand that there is awkwardness here but that's a knock witness of the statute congress laid out. >> it's not necessarily awkward. damages are something you get when somebody didn't give you something but go back in time before they make that decision. at that point what you want is the dog, not the money. if that's the truth you have to go to the board. once the board makes it clear they won't give you the dog at that time you are free to sue.

you have met and in the exhaustion requirement because it's futile. they have made clear they want in this suit has been brought after that was done, so i don't see how this solution is going to ever get that for exhaustion because the school has made clear they won't. so stay exhaustion applies to future suits before anything happens but not after the board makes clear the exhaustion applies but the futility exception also applies. it am i right? >> on the face of this case is not available in the reason for that, the reason for that is that they have not gone through the independent due process hearing. you can't just say i met with some administrators and they didn't like the dog. you have to go through the complicated process that i.d.e.a. is a time-sensitive one. so my 105 days start to finish

but you have to go through the whole thing. they walked out on the process before was over. >> 105 days is a big part of the school year. so say how they have to do is go to 105 day process is not particularly responsive. >> we don't mean to minimize that your honor but the statute says the short timeline that we are talking about money damages of this is about injunction are the type of school year. all they are seeking is money so the 105 days would deal with that problem of the school year. cynic thank you ms. -- thank you counsel. >> thank you chief justice. let's be clear about what the statute says. what are we seeking here? i think it would help to clarify a lot of what happened in the last half of the argument and what we are and are not seeking. we are seek e-money chant -- damages. just a sotomayor you are correct. our allegations are about emotional distress and they're not about this pocket costs

under the i.d.e.a.. we are not seeking the type of relief the defendants they are available under the i.d.e.a.. we are we are not seeking reimbursement of educational expenses and compensatory compensation. there is no iep between the defendants in my client at this point. we do not have standing to assert prospective relief. >> yours is an ideal situation for the purposes you are arguing but how about the mixed complaints because that's what's been bothering my colleagues from the beginning. let's assume that you have wrought this case not after you have moved her bed while she was still in the school and you didn't say as you conceded now that you don't want the facts changed. the complaint says they haven't let the service dog in.

it's causing and has caused emotional distress. we want damages. it's not clear that you do want the facts changed. what happens? >> i want to answer that question let me say one thing about the facts. the standing is something we would have to assert in her complaint. we would have to assert a desire to complain we didn't do that. so i think the answer there is the jones case. jones does say when you have one part of the complaint that is seeking relief that is not harboring the exhaustion requirement in another part that is the good part of the complaint proceeds and leave the bad part by the wayside. i want to respond to what my opponent said about jones and what clay means. jones itself this court cited as an example of a court applying the right approach. if you look at cassidy what cassidy did was it said well

some request for some relief are allowed to proceed and request for other relief by the same plaintiff are not allowed. the right thing to do is apply at the jones partial exhaustion rule which discourses as the is the general rule in that case. if the cork and lose that are complaint might be read to embrace requests for anything that might be available in i.d.e.a. proceedings the proper thing to do is allow the damages to proceed. >> does this court have the power to stay until the ide eight -- i.d.e.a. is exhaustive? >> in some circumstances the court addressed the something similar to this were a total exhaustion rule applies an even ryan said staying is not something that should be done as a matter of routine. maybe done as a matter of discretion but the ordinary process should allow the plaintiff to decide do we want

to proceed with the unexhausted requests are not which is what we have asked for. after all this case staying with being annihilist. my minor child client. >> i appreciate the nature of your case but your suggestion is likely to raise a lot of hesitation in this court among some, maybe even me. >> i'm getting that. >> because of what you are saying is we are going to be on a dual-track in every case it's not going to be very attractive to the court. >> may mabrey financer your honor? are position is we are going to be on one track which is the things are not on the exhaustion requirement and everything else goes by the wayside. >> thank you counsel. the case is submitted.

legal analysts looked at the constitutional issues facing a trump administration. topics included the use of executive order, repealing federal regulations come relations with congress and judicial appointments. the event was hosted by the heritage foundation and the american enterprise institute. this is an hour and 15 minutes. [inaudible conversations] >> good afternoon. it's my pleasure to welcome everyone to the auditorium to

welcome those who are joining us on the heritage.org web site and those who are joining us on c-span tv. we remind everyone in-house if you'll be so kind as to check the mobile devices are silenced and turned off as we prepare to begin. it's always appreciated. for those watching on monday were welcome to send questions or comments at any time by simply e-mailing speaker at heritage.org and we of course will post today's program on the heritage homepage for everyone's future reference as well. it's also my privilege at this time to introduce the one gentleman at heritage who probably needs no introduction and we are so pleased to have president jim demint to open this program so please join me in welcoming senator jim demint. [applause] >> thank you, john. thank all of you for participating all of our panelists and those joining us via c-span. what a great event. i think it's john malcolm i commend you and ed meese.

this preserve the constitution series has gone on for several weeks now with greater than such is the event with justice thomas, the opportunity to talk about our constitutional republic and the things that make this country great. it's really been a great series. today is the wrap-up and i'm just kind of the warm-up act for that. i won't pretend to get into all the intellectual discussions that our distinguished panelists will be talking about but i did want to talk a little bit about the perspective that comes from someone who has actually been in the house and the senate with the purpose of applying constitutional principles to lawmaking. i frankly think that what just happened in this election they have preserved our constitutional republic. we know the intent of mrs. clinton and she talked a lot about it and what her belief was about at a constitution and we know donald trump has talked

about the importance of the constitution and the list of supreme court justices that he released gave us at least some positive indication that it wasn't his intent to select justices that would actually carry out the original intent of the constitution. there are a lot of ways to talk about the constitution and you will hear a lot of that today. we look at what the constitution actually says, what it means, what it originally meant. that's an important discussion. you will hear a lot today about okay how do you take those ideas , those principles and apply them to lawmaking, to regulation, to civil society as a whole but there is another layer of discussion that i hope james will get into somewhat today. it is why do we need a constitution at all? why do we