good morning ladies and gentleman our first case for argument this morning is b g against jackson appellants independent educational evaluation claims and i hope it will become clearer if it hasn't already that c p s has not responded adequately this case is unlike most cases under the individuals with disabilities education act in many ways chiefly three first in most idea cases involve challenges by parents to a student's educational program under shape or against we in those cases parents bear the burden of proving that the district's program was inappropriate this is a different kind of case that involves a part of the statute which specifically allows school districts to avoid funding an independent educational evaluation if the district files for a hearing  which it has the burden of proof and shows that it's assessments were really compliant with the law and regulations were appropriate second this case is unusual in that involves very clear specific regulations most idea cases involve somewhat nebulous issues of how much educational benefit is and know this case involves very clear regulations which courts are very well suited to enforcing and in this particular case where district representatives admitted many errors in their ministration no educational expertise is required to resolve these matters third there has been enormous confusion about what standards have been applied below i would rather defer that talking about that until after  responding to questions and also i would like to get right away to why this case is important this family's simple request for a legally compliant independent educational evaluation has culminated so far  published decision that you disarray tz independent educational evaluation rights for any student whose adjudicator is convinced by this approach basically it creates a situation in which students can only get publicly funded evaluations if they first get a privately funded or pro bono evaluation c p s does not deny that this is the result c p s embraces this result the effect is that the leveling of the playing field that i e rights are supposed to create has been negated the decisions below destroy i e rights that congress the department of education and the supreme court deemed critical in five separate ways first b g stands for the proposition that although districts have the burden of proof and i eat cases they can win even if they don't put on any testimony that their assessments complied with applicable regulations typically these cases involve sort of a little litany of we chose appropriate tests we did the right and so on in this case c p s did not even put on that kind of evidence yet it won second c p s as to b g is decided so far stands for the proposition that although just rights have the burden of proof in i e cases they can win even if staff admit that they decided not to assess on or or report on all areas of suspected disability admit they did not follow test manuals admit they don't know where their behavioral data came from and mit disregarding illinois state board of education assessment guidelines and they can win after making those admissions even if not a single assassin or or any other witness says that those errors considered in combination were harmless third this case suggests although the district court somewhat sidestepped this issue that independent assessment assessors and witnesses can be found and persuasive if it's precisely if the independent if they do not have an illinois public educator license the only reason one would need such a license is to work in an illinois public school and yet this case indicates that if someone does not have that license they cannot be  a court or a hearing officer is entitled to entirely dismiss their testimony fourth this case stands very strongly for the proposition that in order to get an i e e e you first have to get an i e e e that their experts conduct an independent educational evaluation it's not enough to have witnesses who testify about what areas the student had to be assessed and what disability were suspected or how assessments were done wrong it is necessary actually for the end of the expert who criticised the district the valuation to have already done their own about you ation they're actually arguments that someone who only has access to district records is ideally suited to criticize the district evaluation  here the students witnesses were totally disregarded in part because they did not have cells already assessed the student and fifth c p s or the offered no witness for its narrow approach to psychology yet the hearing office and the district court accepted that psychologists do not involve themselves with issues of language of course they do verbal i q that's helped a large part of the educational psychologists look like psychologists also do visual closure testing that's relevant to identifying whether students have a learning disability affecting reading so the court said that psychology was and there are all and excluded students experts in part on that basis but then also excluded them regardless of what they said about anything of course only a tiny percentage of students ever try to access i e rights but parties tried to do was try to access i'm sorry independent educational evaluation rights very few students ever do that however good how would they do that well they basically a student writes a letter disagree or makes a written statement that they disagree with the district's assessment they don't have to say why they don't have to know what's wrong with it they just say i disagree i want an independent educational evaluation and in illinois parent knows that right and if in illinois if a parent does that the district has to either grant that independent educational evaluation or file for hearing within five days and attempt to prove that the district assessment was appropriate so that's how procedurally you invoke that right how do they do th few parents do i don't know how many are requested annually but some parents do that's what the parent did in this case the parent through counsel requested an independent evaluation and gave more specific reasons than were required to do that then c p s initiated a hearing in which basically they just said our segments are appropriate we file for hearing and that was the only showing that they had to make at that point or the only claim they had to make that point  even though few students use this process other assessors and parties act in the shadow of the law so assessors now know if they believe this decision is likely to be followed that very poor assessments will pass muster c p s as lawyers now know that even if their assessments are quite defective parents are not going to be able to get independent assessments and that creates an incentive for c p s to do quite limited segments in this case if say c p s had done an adequate assessment that assessment would have noted that the student's i q had dropped quite dramatically it would have noted that he started out almost average in math and had learned almost nothing in five years in special education it would have noted that he had been getting multisensory reading instruction or some facsimile of it for approximately one month five years after entering special education so even a decent district forget which is the right fourteen fourteen right and he was it says starting in september two thousand and fourteen to go before the time he was moving with his father yes for several years and then his mother after the father's death didn't have adequate housing so the children temporarily or two of the children temporarily lived went and she doesn't make you correct to time and effort put into the school a lot of different people you know i think the problem i think that was what the district court basically felt and the hearing officer as well that a lot of people spent time on this but you know if you have many defective components and you put them together you're not going to get a working computer you know one of these assessments was done correctly and i think in various cases it was assumed that there were a rating documents when there weren't so for example the district court thought that there was other information supporting the validity of the i q testing there was just one i q test that was the wistful mark there was not any other  test was was accurate similarly the basque rating the teacher ratings in which extreme caution should have been reported because of the extremely negative responses the hearing officer in court said yeah but there was other information as well that other information pointed almost entirely in the same direction that this was a student who still had signs of a d h d so it's not like looking at the entire record made these problems go away looking so i'd like to talk about some of the legal and factual errors that the court made and ones that i think are primary i'm more questions now i think the first legal error was that the court erred in thinking that assessors need not try to identify disabling conditions the court accepted the hearing officers view that labels do not matter at all and labels can matter they're often used in the decisions of this court they're often used in checking research to find out what programs are likely to actually be effective with students labels are obviously not the dispositive of what a child needs but they are a very good starting point for identifying interventions and they there are specific legal requirements for example for assessing students with learning disabilities there are specific cautions required in i q testing if a student has a speech language impairment so these labels are important secondly the court erred legally in thinking that it did not matter if assessors violated specific regulations so long as the hearing officer deemed the assessments  enough and so there was kind of this well they did a lot of stuff it must have been enough without looking at the rules which require them to do the assessments correctly in accordance with the publisher's instructions  e court erred legally where that hearing officer erred legally in thinking that the parents had to prove that it correctly done assessment would yield a different result and she disregarded goldstein's testimony in part because he could not firmly say that if you used a nonverbal i q test or a test with appropriate cautions that you would get different results the district court sort of sidestepped that and said well the hearing officer didn't reply on goldstein's testimony anyway but the fact remains that the hearing officer was requiring student to meet a burden that the student doesn't have the student the district had the burden of proof in this case to show that it had complied with the law and done proper assessments and it met it that it hadn't done that something i said the district court got this right the two issues before the court are a motion to supplement the record the district court properly denied that motion because admitting the evidence that claims presented to the district court for admission into the record would have transformed the district court's review of the administrative decision into a new trial and that's impermissible so the district  properly excluded the evidence plaintiffs requested and did not abuse its discretion in making that ruling second issue before the court is whether the district court properly denied the plaintiff motion to reverse the hearing officers determination that the assessments done by the school district were appropriate that determination made by the district court was also correct the district court had to give d weight to the decisions of the administrative agency which has the educational expertise that the district worked in not the district court determine that there were no legal errors made by the hearing officer and the district court determined that the hearing officers factual determination were appropriate and there was no clear error for that reason under the standard that the district court uses which is a preponderance of the evidence giving due weight to the determinations of the administrative agencies the district were properly denied the motion to reverse now i'd like to further explain that to conclusions that i've just described the first is the district court district court's decisions not to admit additional evidence is allowed allowed to permit new evidence into the record but that's not the default the default is the administrative record the district court is encouraged not to admit additional evidence where doing so would transform the hearing and in this case there were two types of evidence that plaintiffs wanted the district court to add to the record the first were individual educational assessments new ones individual educational assessments that claims did not even get until after the hearing was over so were those come from those were prepared by experts employed by the plaintiffs subsequent to the hearing officers ruling that the assessments done by the district by the school district were appropriate so after that determination was made regarding the appropriateness of the school district's assessment plaintiffs went out and got individual educational assessments which if they were relevant at all they would have been relevant to the determination that was before the hearing officer and plaintiffs getting them postering did not give the hearing officer an opportunity to look at those independent educational valuations or assess them in any way so for that reason the hearing officer didn't pass on the new individual educational assessments and for the district court to have considered them would have transformed its review into a new trial because it would have had wholly new evidence on which to base a determination regarding the appropriateness of the school district's assessments typically where new evidence is admitted by district courts because in one of the very cases plaintiff cited there was about a year and a half to lay between the time of the administrative hearing and the district court's review the needs of the child had changed during that subsequent period so there was additional information that was it made it into the record in order to update the court on what the child is so these reus these individual educational systems that the plaintiffs wanted to admit would have just simply transform the whole review process into something that it's not supposed to be and it would have not allowed the district court to do its job which was to determine by a preponderance of the evidence whether or not the district court the hearing officers determination of the appropriateness of the district court's assessments was valid based on the evidence before the hearing officer giving due regard it the other piece of evidence that the plaintiffs ought to have admitted was an instruction manual for one of the tests and that piece of evidence unlike the new individual educational system and was actually presented to the hearing officer when the manual is presented for admission to the hearing officer the hearing officer excluded it so when that issue came before the district court the district court's duty was to determine whether the hearing officer had abused its discretion in making the evidentiary ruling that it should exclude  district court properly determined that the hearing officer did not abused its discretion in excluding the manual and the district court also excluded the man appropriately for that reason because it didn't add anything there was no testimony in the hearing that the test that the manual governed was improperly administered the only evidence plaintiff cites for that position is the new individual educational assessment that was pos here in which he can't even rely on to challenge the evidentiary ruling that was made by the hearing officer relative to the manual and so the district court and the hearing officer in the administrative proceeding properly excluded that manual now i'd like to turn to the district court denial plaintiff's motion to reverse the hearing on his determination so the first issue is the standard of review at the appellate court level a district court ultimate determination in an ideal case is juneau but that's a two par review the appellate court looks at the district court's determinations of law for legal error and looks at the district court's factual findings for clear error so if i just may quote from one of the seventh circuit cases joe versus board of education quote whether a school district has satisfy the requirements of the id is a mixed question of fact and law which court reviews do no absent a mistake of law the court must review the district court's decision for clear  close quote to place claim that the entirety of this courtroom view is to know who is simply wrong and in the district court level the burden of proof and the standard view is also questioned by the plaintiffs all the district court the duty was to make an independent determination regarding the hearing officers decision based on the preponderance of the evidence and because of the expertise that is available to the hearing officer the congress has stated that even though the district court makes an independent decision about a hearing officer determination it does so giving due weight and d regard to all the decisions made at the administrators level it is not the purview of the district court to simply substitute its decisions or its notions of educational policy for the determinations made  the administrative level so here where appropriate the district court properly deferred to the evidentiary factual incredibility determinations that were made by the hearing officer and did so correctly for example relative to the district's assessors their individual qualifications both the hearing officer and the district court went through great detail regarding the training and experience and knowledge of those  sessors they talked about the fact that the assessors had used each of them a variety of tools to enter to evaluate the child in this case in addition to formal tests they used in formal tests they also observe the child in a variety of settings in the classroom in hallways at home in gym class they also did interviews with the child with his mother and wishes with his teachers and they looked at all the record and the one and only case the plaintiff's sites which was seattle vs b s to say that there weren't knowledgeable sisters in that case the reason the assessors weren't deemed knowledgeable was because none of them none of them knew anything about the disorders that were affecting the child here as the hearing officer found and as the district court found all of the assessors were very well trained had a lot of experience and knowledge about the particular disorders that this child ha assessors in our case were completely qualified to determine and make the valuations that they did and importantly as a result of their training and knowledge and experience they were able to provide the i educational program team with useful and comprehensive assessments that considered together with all the other information provided the team enabled the team to produce and indicate individual education program for the child that was completely appropriate and is not being challenged in this case so basically the big good cake and all the ingredients that went into it like the assessments were good otherwise the cake would have fallen in the oven  currently he is at a c p s high school c p s a district high school who you know he really high school a regular high school and he's getting multisensory services and basically in each area where the district assessed him he is getting services i think the only exception is the physical therapy because he was able to function and get around without physical therapy services but in all the other areas that were tested by the district and recently tested again is perceiving all the services that were sussed reading the rule that i couldn't tell you that he's in high school he's in high so under applicable law getting back to the validity of the assessments that were made by the district back in two third two thousand and fourteen the law under the law plaintiff emphasizes the rules governing the assessments but basically it comes down to this assessments are only inappropriate if they're not conducted in the appropriate language for the child if they're prepared by untrained or are knowledgeable assessors which i've already dealt with if they're not based on formal tests and other evaluation tools which clearly is the district court detail all of the assessors performed formals us as well as other valuation tools and an assessment may be inappropriate if it fails to test for appropriate areas and in this case all of the appropriate areas were tested for when the plaintiff mentioned the a d h d for example in the district not assessing for that particular disorder this district didn't assess formally for that particular disorder because there was no indication of that being a disorder with a child schools are not required to test every and any possible disability that may exist just because child presents as having a potential disorder what the law requires is that the district assess in each area where there's a suspected disability and there is nothing in this child's record of a set of suspected a it was an issue that district in those cases didn't test was because in those cases the district had been provided with an outside opinion from a medical doctor or otherwise that the child in those cases did potentially suffer from a d h d so the district's failure in those cases to assess for it was significant here there is no testimony and nothing in the record before the a p team that suggested that the child needed to be tested for eighty eighty h t in the district didn't formally do so for that reason and plaintiff's expert agreed there was no indication in the record that he was a problem and when plenty of talks about issues like  not thoroughly testing for emotional distress disability that also is incorrect that was precisely tested for and it was found to exist in this child in the child did get emotional disability related services and relative to the comments about the school district's sort of dismissal of the importance of labels that didn't happen at all the testimony before the hearing officer showed that in certain situations either tests weren't the assessors were able to administer tests because the child was either unpopular to and also because of issues like his significant depression and emotional the disability and his absences from school because of those large absence it's difficult to determine whether or not there's a learning disability should not apply a label like that because assessments the assessments were in two thousand and fourteen he spent i believe three years at a therapeutic day school he did quite well there for a while when he really wanted to be back in his neighborhood school and that was  not in his own neighborhood school but a nearby school where he wouldn't have such a community that the whether he was provided a free appropriate public education was absolutely not litigated in this case it was able to get assessments that would have served as what the supreme court court calls firepower and hearing and that served in leverage and someone to go shushan the there was ample