the disability definition pretty much stayed the same where as the need is the find somewhat differently in california generally it's where services are required because modifications cannot suffice in the classroom but california had some bad experience when they first elected the federal law here in california and they adopted two specific sections dealing with two specific disabilities one is a specific learning disability the other speech language impaired which a lot of which is not involved in the specific learning disability what you're dealing with is you have a processing disorder which prevents the student from doing as well as the student should be able to do given the students  the second thing is that this inability this discrepancy between what they should be able to do and what they are actually doing this discrepancy this one point five standard deviation can't be corrected through services in the regular classroom the best analogy that i can give to to put this in perspective and it is important because of this it was a fundamental misunderstanding of this the cause the problems all along if a student is able at the beginning of a year to lift do an exercise with five pounds and that fits right in with what most of the students in the class are doing but because that student has a disability the student should be able to lift six pounds but can't there's a discrepancy of twenty percent the student should be included twenty percent higher if at the end of the year through constant exercise the student has doubled her capability to now this ten pounds she has certainly made progress she certainly keeping up with the class but without the disability she would have been able to lift twelve pounds there were still a twenty percent gap between what she is able to do and what she should be able to do that the school district obligation under this law to eliminate the disability you know it the what should be the ability is now less than one point five standard deviations then the students no longer disabled the analogy is  the effect of the disability on the student if it remains consistent over time the student's disability is not being corrected corrected refers to the gap this one particular disability that a specific learning disability is treated differently because the disability is itself a gap it's the processing disorder keeps the student from doing you don't have to curate you don't have to provide under only all you have to do is provide some meaningful benefit to a student to to help overcome and narrow this gap but rarely was not an old ability statute or case rather wrongly was just once a student is eligible how much services do you have to provide that the services have to overcome it so that that yeah the percentage is reduced or has to be eliminated yes under california which which has a different statute california defines need somewhat differently than does the federal law as states are allowed to do whether it expands the protection of the law or not we don't need to get into but this is the way california defines need and it's been left up to the space to define need california says you need special education if you have this gap if what goes on in the classroom what correct yeah if it won't narrow it and in this case there was a lot of testimony that it could not be and you're saying it has the arrow it education no you have to provide some services for example this student was acknowledged by everybody in the case to have a visual processing disorder couldn't use the visual information properly an auditorium processing disorder a speech language they they do pay for vision therapy and the in this particular case this district didn't never considered the statute fifty six three three seven california what they said was well the student doesn't need education w because what the student is making progress she used to be able to lift five pounds now she can lift ten pounds that's progress they didn't analyze the fact that the student's disability was keeping her from performing as one would expect her to perform a gap greater than one point five standard deviations the another analogy would be if it sort of person in a wheelchair was very a clinic and was able to jump the wheelchair over the curve we don't say that the person in the wheelchair is not entitled to have wheelchair ramps yes they are able to to overcome it but that doesn't mean that they lose their eligibility under the law the hearing officer never mentioned never discussed that out aloud whether or not there was a one point five standard deviation and whether or not it could be corrected in the classroom or what because the school district had not done so and he couldn't say the school district was correct when they hadn't gaging the proper analysis what the hearing officer said was well in addition to discrepancy a need the two prongs of the state and federal law there is an additional requirement that the student need special education but need was already defined by the fact that the the discrepancy couldn't be corrected in the regular classroom so he imposed the second prong a second time and how did he define need need is if she's making progress in the classroom she doesn't need it so he did after some special thurber thermoclines know she had modifications there's a big difference she had modifications under section five all four of the really rehabilitation act which merely means for example she sets up closer to the teacher she has a little bit more time to take the test things like that they're not services that they care would check on  and the answer in the school district the school district never answered because they never addressed the question the hearing officer never addressed the question they only looked at the fact that she was able to do better this year than last year she was making some progress she was able to lift more weight if you will the hearing officer did not consider the statute he merely applied needed to find his own way the district court which should have made to go full review of the record and look at the evidence to see if  statute was satisfied seems to have handled this just as an appeal he looked to see whether the hearing officer applied the correct standard of law which the hearing officer had not and the court seemed to realize that so the court goes through the decision looking for something and found two sentences in the entire hearing officer of sixteen or twenty page decision that mentions the fact the issue of whether or not the discrepancy can be corrected and the court and the court does this as if to say look the hearing officer consider the correct standard what the court said was the hearing officer petitioners expert this is the hearing officer talking and being quoted by the district court the petitioners experts testified that the discrepancies could not be corrected through services offered in the regular education program that's three seven but hearing officer was not convinced of that again that was the hearing officer whose language you now what the court left out was the very next sentence by the hearing officer which shows that he wasn't talking about narrowing the gap the very next sentence was a repeat the previous sentence for the flow the hearing officer was not convinced of that the classroom accommodations must have been helping anna to continue to make progress in the general curriculum in other words he the hearing officer was merely saying well it was we i'm not convinced that it's not be corrected why not well because she's able to lift more weight but that says nothing about the fact that she's not able to lift any closer to what she should be able to lift the gap the discrepancy is not being corrected and that's what the section talks about the discrepancy must be able to be corrected in two services list helped in the classroom the hearing officer  logically have found that the discrepancy could be corrected in the classroom the hearing officer is not an expert he is a judge who listens to the expert testimony and reaches a conclusion based on the testimony  the school district never even approach the subject of discrepancy or correction in the classroom they base their own eligibility on an entire different point which is not section which is not the section which applies so he didn't consider it excuse me the school district and consider it none of their witnesses testified that it could be corrected whereas five experts on behalf of the the petitioner testified that it could not be corrected through services delivered classroom a developmental optometrist an audiologist a speech language pathologist a neural psychologist and an educational psychologist all said this girl has processing disorders that must be addressed through prayer through services delivered outside the classroom this is the only way we're going to fix this gap it's not going to be done by moving it to the front of the class we're giving a little bit more time that is modifications and services if school just three recognize the argument that you just made this obviously hiked that question provided special education services to the child and the end result was that potential was not achieved is that a violation of law no if the services at the time they are delivered when they are offered are reasonably designed to achieve a result they're reasonably decide that's ok to benefit the choice to close the gap now if at the end of the year the gap has not been closed you have to actually during the year you do have to go back and see whether or not what you thought was going to do the job is not enough and you have to give more you can't just say well it's not working so we're going to keep doing so but at the time you don't measure it by seeing whether or not it is successful what you do see whether it's successful determine whether or not you're going to continue it and whether or not she's even eligible if they did given her any services made her eligible for special education and given her services and that closed her discrepancy from one point five it was actually over one point five to one point three she would no longer have been eligible under the s l t pattern or because her discrepancy would no longer have been considered a disability but they didn't do that all they did was look to see the fact that she is improving the same thing with the second category of always try other health impaired the school district agreed she had some chronic problems he was either seizure disorder or a d h he they didn't know and it was causing excuse me  discrepancy one point five everybody agreed to that the fact that our witnesses said that it couldn't be corrected in the classroom their witnesses had no idea because they'd never considered it and as far as always try the school and our experts said she's got the disability and it is adversely affecting her with the school district denied it on the grounds that she's able to keep up with the class keeping up with the classes were held by the supreme court in raleigh not to determine whether or not that what's being delivered to a special kid is even appropriate let alone making the student not eligible any rally who was the student in the rally case was an eighth student she was getting some special in services and she was an a student and she was still found eligible for special ed because she had a disability the qualified her you don't become not eligible for the idea because you're able to work harder and overcome your disability and be able to keep up with your class it is not a tutor it's that you have to disabilities that you i think you have your argument very could you want to save a little time for about my understanding is that i have twenty minutes you have twenty minutes you can use it anyway you know i was a little bit more like a couple more points than this hearing officers decision is not entitled to any difference  he made up his own legal standards he did not refer to any law this court should be doing to novo review as well he ignored both sides he became his own expert he started trickling the tests and he got it wrong  he can't do that he can't go back to his office and talk to other people the district court did not i don't lies any evidence here the district court merely looked at the hearing officers opinion and said well he the hearing officer did talk about cannot be corrected  as we see the hearing officer said i'm not convinced of that which ignores all the evidence and the reason he wasn't convinced of it is because he was confusing whether or not it could be corrected with whether or not there was progress i would just point out one last thing at this point while reserving the rest of the district court there simply weren't enough pages in the brief to this court to lay out the evidence where all the testimony was one would expect that if the school district he actually was trying to support the hearing officers decision in the district court and the district court's decision in this court they which cite some law showing that the interpretations of those two lower tribunals was correct at the district court level they cited one case improperly because it was an unpublished decision and they cited no other cases and they make reference to no evidence whatsoever from the hearing in this court they have cited eight cases four of them merely go to the issue district at the hearing officer level to show that the child was not eligible of the other eight cases of the other four two are dealing with the standard of review one is the feeling with two we're dealing with the fact that you don't go to legislative history when the statute is not ambig and one is the only with a special it student should be mainstreamed in the general classroom with whenever possible they have cited not one case supporting their position that the law was interpreted properly nor have they made any reference in the brief to this court of any evidence whatsoever to support either the hearing officers decision or the district court's decision with your permission i'll reserve the first you have a little over three minutes we'll hear from the school district at this time that morning would i would argue one point in particular first off there is no corroborating evidence to support the severe discrepancy calculation mathematically and that's an important and alice and it hasn't been addressed really effectively in the briefs but i would refer the authority to the hearing officers decision at page one two to eight where he says the district did not base its denial of eligibility on a finding that there was no discrepancy we all agreed that there was a discrepancy rather it was the district's position that in his overall performance including classroom achievement grades and sat nine testing not only failed to provide the necessary corroboration but also demonstrated that she did not require special education and that particular sentence goes directly to the bottom part of the mathematical passage that the court may remember my rather painful brief on how to calculate one point five standard deviation i'll make a couple other points about that in a moment but the bottom spart of the sentence after you go through the three steps in thirty thirty of the regulation in title five after you go through the three steps in mathematics it's as if you get the severe discrepancy it's a severe discrepancy corroborated by other evidence and in this case he specifically found that there was no corroboration school districts have been told repeatedly by both congress and by our legislature in california that we are not to rely on any one single testing criterion to determine if a child is or is not disabled in this particular case this young lady was arguably a genius a great deal of the fight went on  discrepancy greater this case is an issue where we're trying to find out if there is a difference between her tested at the holiday and her performance that is let me simplify the language too large  discrepancy is too large she's required to be provided with special education by the school district they had a bottom line they had her tested scores they were trying to make her appear to be more intelligent all of their experts were arguing she had one hundred thirty one i q the hearing officer decided on a slightly lower i q probably far greater than mine but that that doesn't really reach the issue the issue they never thought of her as a special ed student all of our experts at the district said she was not a special ed students she didn't require special education now counsel argues a lot about the difference between the court  court's decision that the district attempted to address the disability and i instead of using the word corrected the statute said we must correct and the trial court said they addressed it and i thought that it was very telling that the trial court put a large footnote in that section of the opinion discussing that particular argument because it's a big debate in this case he said that aggressing work correcting is an issue of time the school district only had one shot at this little girl and we didn't assessment and we determined that she had a disability there was a discrepancy and we thought we could provide an appropriate education to her in the classroom making modifications not to the curriculum but to their arrangements in the classroom under five zero four and we made a five hundred floor plan and very soon thereafter her parents took her out of school and put her in a private school so we really didn't have an opportunity to find out if our program  o four had really corrected it certainly addressed but we didn't know if it had corrected it because we had built a plan but we needed some time to see if it would actually work and i think that the the meaning of the word correct and he's right i don't have any case law on this but but i think the meaning of that and the legislative intent of both congress and the state of california in using a word like correct is we need to build a plan that's reasonably calculated to provide it to deliver some education it will provide a benefit to the student and we did that but we didn't have a long enough to be able to determine if it actually works there is some tiny amount of evidence and i can cite it to the court if it would be helpful at all it's in the first volume of the excerpt of the record at page one twenty nine the director of the program says that that she had heard the parents saying that there were some slight improvements in attention after the five zero four plan had been put in but there were there was substantial other evidence indicating that there was an improvement that we just didn't have time to be able to determine whether or not  the evidence was sufficient to prove that either way the primary issue that we've been talking about here is the special education classification of specific learning disability which requires the severe discrepancy and all of that math out there i think that if the legislature had intended the distinction to be made using twenty two point five the number that we were talking about all through this they would have said twenty two point five they didn't say twenty two point five the legislature of the state of california and the regulation gives us a gives us along i said that wrong is not the state of california as legislature it's the regulation gives us the long mathematical analysis and tells us how to do one point five standard deviations adjusted by four correction points they didn't say twenty two point five points because it's different for every education but our teachers are so good in our classrooms are so excellent that we think inside that classroom we can do this scene or better than special education can provide good school district do that well not correctly you know the first part of the sentence you're eligible for special education includes a component to determine whether or not we can provide the education the regular education classroom under  fifty six zero twenty nine one of the analysis that we need to make yes we have a disability can we provide the education in the regular classroom without modify curriculum that's the determination of whether the child is entitled to special education so the first part of your hypothetical  would be wrong here she's not entitle to special education because we we are so good that we can provide her with an education in the regular ed classroom and if we were right about that it would be correct to deny special education your argument is that the of state and federal requires the district to make the determination whether the regular classroom can do the job if you will and in this case you didn't have the time to do that that's a that's a significant part of our argument on specific learning disability yes and the three statutes really that say that are fifty six zero two six that stands the impairment the eight paragraph says there's a disability that the paragraph says the impairment as described in a requires instruction services or borth that cannot be provided with modifications in the regular school program that means regular education can't do it so there's a disability regular education can't do it in the shorthand way that i have always talked this when i'm teaching it to people you know as of five zero four requires you to modify the room  or the or the seat or the arrangement of special education requires you to modify the curriculum and we don't if we don't need to modify the curriculum then we can provide a realistic place in the education of the child that needs the rally test for providing a specific benefit then the child doesn't need special education that's the first test but then they they echo the same language in fifty six three thirty seven where the c subparagraph fifty six three thirty seven is the specific learning disability statute in california it says a pupil shall be assessed as having a specific learning disability and they list a number of things the discrepancy is i'm sorry they list the number of things that can be bothered like oral expression or listening comprehension then they say the disability is due to a disorder in one or more of the basic psychological processes and then see they echo that earlier language in fifty six zero two six the discrepancy cannot be corrected that's where we got the word corrected through other regular or categorical services offered within the regular instruction program so that you bringing us back to whether or not we can provide  the necessary instruction or whether we can correct that discrepancy in the regular education classroom so then there's the other point and that is in thirty thirty the regulation that deals specifically with calculate how to do the math thirty thirty j said this after the one you take some numbers and then two you put the numbers together it is beyond me how the regulators thought that educators even were going to be able to do this corroborated by other assessments and the other assessment data which may include task ales instruments observations work samples so what we have here is a deviation we have a discrepancy we have performance that's not as good as what she appears to be able to do but there is no corroborating evidence that the testing that shows the discrepancy really means that she needs special education services and all of the teachers thought she was progressing fine which is why they were talking about progressing they thought they were providing her with an education the psychologist thought that the discrepancy was not sufficient and we got into a quibble and in reviewing the evidence you may see that she didn't think the discrepancy should be based on s parts of the task and the psychologist was arguing about whether you could use some parts to get to this crap and see what we discussed can see that there are discrepancies in the testing procedure but but that doesn't get you to the issue of whether the disability is causing a severe discrepancy which can for which there is corroborating evidence there just isn't any corroborating evidence it's equally possible that this little girl likes to read and hates nath and isn't going to do that math is going to bring her homework and her seizure disorder has nothing whatsoever to do with it so on an analysis of the evidence there is no corroborating evidence to support it so she's not got impaired standard but that requires a disability with evidence that the disability caused her limited strength vitality alertness which then there's a second part adversely affects the educational performance again the hearing officer the trial court reviewing the evidence determined that they did not see evidence that while she may have had limited strength vitality or alertness it adversely affected her ability or her educational performance of the words of the of the statute she was making very good grades in most of her classes the discrepancy was between genius level work and above average work somewhere around one hundred ten better than most people perform so that same analysis that was used over there would be applied to determine whether she had limited strength that adversely affected  district making its own making a determination that the classroom cannot provide what the student needs and that in this instance the school district simply didn't have the time to do that and but they pulled the student and we never had an opportunity to show that the five of form accommodations in the classroom would have corrected this discrepancy the final four plan had been in effect for two years already and this girl had the discrepancy at the end of the two years  parents were screaming and hollering she had a five for play that's very clear they were already making accommodations in the classroom and when at the end of two years when she was struggling twice as much time to do her homework the teachers were noting that she wasn't completing her homework that she wasn't paying attention in class and she was spacing out this dovetails with the our other argument he saying that there was no corroborating evidence but learning all the problems that she was having a class were evidence were  evidence of her disability they tried to fix it by moving her in the classroom by moving her closer to the board by having the teacher face her and talk to her to try to keep her attention it wasn't working for two years it didn't work i  that no your honor the teachers testified that it was sufficient to allow her to keep up with the class all that means is look two years ago she was able to look five lb she's able to lift ten pounds now aren't we better caused problems courses where she had to look from the board to her paper she didn't have the the visual motor ability to switch back and forth reading things like that but your honour's point to address it they wanted to continue to do the same thing that they had done for two years again it hadn't worked at the end of those two years the discrepancy of the script has been with still more than one point five standard deviations he seems to be arguing that we're asking for this girl who is a genius to get more she's already doing better than most other kids that's the point that they are making if you're doing ok you're not to sable if you're able to get up the ramp even though the ramp is too steep you're not disabled if you're in a wheelchair if you can walk up stairs were to get up the curb by jumping the curb your not disabled but that's not the law you do not address specific learning disability and thereby satisfy the law you have to have things in the classroom to correct the disability and they've been trying to