it please the court good morning my name is jonathan brushing together my colleague amy tucker we represent the clear creek independent school district the district court erred when it failed to apply controlling  daniel r r versus state board of education case to reverse the hearing officers finding that c c i estes proposed placement of a b was not the least restrictive environment right there i'm an ass kissing your reply brief you say the parties agree this court's decision and daniel are our governments the substantive arguments as a result the dispute before this court focuses exclusively on how the facts developed from that position i understood your argument was that the district court made clear on here the district court made clear that committed clear error reversible error by misapplying the law to the facts and so here the facts are largely undisputed in terms  capabilities ab's abilities in the classroom the hearing officers findings were consistent with all the witnesses testimony that a b could not master any of the rd grade curriculum his curriculum was one hundred percent modified to the kindergarten level or the st grade level those are fact findings that no one challenged the district court with those fact findings that are unchallenged by any party applying daniel r are should have reached the conclusion that a b was not appropriately placed in the general education curriculum and that the district's proposed placement was the least restrictive environment under the circumstances presented by  made the fact finding that a b situation was not one that created a burden or for absorb the teacher's time correct your honor and cited daniel r r that's right your honor and in particular cited daniel  r but misapplied it and here's how he misapplied it because under daniel r r and i think the fact finding is clearly erroneous is that while his behavior while ab's behaviors improved over his time in the general education classroom and he was not taking up all of the teacher's time he was taking up all of the paraprofessionals time in the paraprofessional was delivering all of the instruction to give one hundred percent of the instruction at one thousand four hundred and twelve i mean in order for texas schools to get federal money one thousand four hundred and twelve says to the maximum extent mainstream and mainstreaming includes giving supplemental services so what's the law that says well you don't have to you can get the federal money but you don't have to give a supplemental service director on that that is what the statutory law says but the law is daniel r it's when the curriculum can be presented to the student through the supplemental services and through the specialized instruction that mainstreaming is appropriate but here baby was not receiving the rd grade curriculum he was receiving a curriculum that had been so completely modified that he was not the supplementary services were not mainstreaming him he was sitting in a classroom receiving an entirely different set of instruction than everyone else in the class you know or body of i d e a cases usually when the argument is that that the child with a handicap or the disability can't be there it's because there's manifest disruption in the class or it's deeply stressful for the student and they began to manifest yet it seems like a good portion of your brief brief was this young man child was actually thanks to you giving him the t a a the teacher's aide was not disrupting people and before and after especially after the stay put order did well with a different curriculum that's almost inherent in having a special aide but covering the same elements so so it it seems like your school was commended this young child is doing well with this supplemental service in your honor i think that is correct the school district did and the hearing officer commended yes stocks efforts they did everything they could for this young man and yes his behaviors wench peaked at the beginning of the rd grade year had begun to taper off and by the nd semester of the rd grade year behavior was largely not an issue in the classroom but what is also undisputed is that he was not mastering the curriculum the hearing officer found that while behaviors tapered off that did not result  a corresponding increase in academic ability or corresponding increase in academic ability to access the rd grade curriculum but i thought there was evidence in the record i mean little bits of evidence could be vital to assess whether it's clearly erroneous or not that in other students regular class students said you want to be my math partner yes your honor that is in the record however they asked the testimony on that point goes further to say while the other student invited him and they were not working on the same work they were again in a parallel situation because a b couldn't access that curriculum that math curriculum the teacher's testimony was undisputed that he was being taught at a different level a much lower level so to your point earlier yes peshawar education necessarily requires modification modification of the curriculum but what daniel r r and brylin from the score teach is when that modification becomes so significant that you're not even teaching the grade level curriculum the student can't master the grade level curriculum and is not getting any any educational benefit then mainstreaming is not a pro and is not getting any educational benefit where's the record support it's not getting any educational benefit and that's a very fair clarification because i spoke orally not getting any educational benefit from them the curriculum being presented to the general education students a b s educational benefit came from the one hundred percent modified curriculum that was administered to him no that's how i understood so just to back so with respect to factor two as i understand your argument you're saying and correct me if i'm wrong all the evidence says that a b is the benefits that a b is receiving are not from the regular education curriculum but instead from the aide that is correct and in and that explain to me why is that a misapplication it's as a legal matter of the factor service so with that fact that fact that fact you just identified where did that factor the result that daniel are dictates is that mainstreaming is not required when none of the been know it no academic benefit flows from the regular education curriculum now it's really not disputed that the school district took great steps to accommodate and his disability that's a factor one the school district certainly took every available step right down to creating a classroom with a classroom the overall experience and mainstreaming factor three his experience in mainstreaming is that he was sitting in a general education classroom but receiving an entirely different curricula different from the other general education students and we talked to judge concern a little bit about the effect on the classroom during the st semester behaviors did create a negative effect in the classroom which is why the initial change in placement arose around that time but it's a misapplication of the law when you have the evidence meeting those factors and the undisputed fact that a b was getting no educational benefit from the regular education curriculum mainstreaming simply not required now the district court now why the district i'm just asking this is just a factual was a new placement for a b it was in a new more challenging placement his behaviors increased and it became apparent that he wasn't accessing the general education curriculum as his teachers testified he didn't attend to it he paid no attention to them everything came from the paraprofessional now the district court confronted with those facts under daniel r r should have held as a matter of law that mainstreaming was not required instead the district court supported its decision and i think in this was what you were alluding to right at the outset on that on the grounds that he made good grades on his modified curriculum that's an undisputed fact he did make good grades on his modified curriculum and he made progress on his i p goals and the district court also relied on the fact that general education curriculum would offer the opportunity for peer modeling and i think the core pointed out the factual circumstance of the math partner but at the same time the district court failed to account for the fact and i think this is an error of fact that a b was proposed to remain in general education for our recess and lunch the non  classes so he would continue to be mainstreamed to the maximum extent possible where he would have the opportunity for peer modeling where he would have the opportunity to interact with his non disabled peers and in fact thomas i just back on this point you're saying the record reflects that when the regular school class student came to him about math they were not able to work together thomas one of a b s teachers testified that the regular education environment wasn't the ideal place for the socialization and peer interaction anyway because the class is too rigid and it moved at too quick a pace for a b and that that would only get worse in th grade as the academic pace excel aerated in fact even a b's own expert his words certified behavior analyst garo testified that opportunities for peer modeling existed in the on four classes so your argument is a very narrow one it's not that there's evidence that he harmed the regular class nor is there evidence that being there harmed him the art nor are you saying that the principal teacher was distracted and we do acknowledge that the law says supplemental services are required and you're supposed to maxim's don't mainstream but it's just the point that if we dig into this record we'll see that his school curriculum was beyond recognition different than the main one so he's in a bubble that's is that the argument here is there's a fine distinction in there that captures a great deal of the argument yes your honor of yours the fine distinction may be remaining in the general education class four core core courses would not present a risk of physical harm because the behavior had improved and so i think with the record before us by the end of rd grade year the evidence was that his behaviors had improved but in the sense that he would not be in the right placement given his abilities he would be harmed in an educational sense but  discords very clear to cite unless it's clearly a wrong about this that the alternative special ed class every student was younger than him and when he'd been in it he had to cover his ears because of the shrieking in the throw so the hearing officer in the district court are very sensitive to find out where is the best placement director are now with respect to this prior placement in the in the learning to learn classroom while there is evidence that a b would cover his ears because of tricking at a time that of course in a prior year and it was during the year when a b was exhibiting the exact same behaviors that the children in that class were exhibiting what's more excuse me with respect to the age of the children learning to learn class yes the evidence reflects that  younger than a b in terms of their age but the evidence is also clear that a the interests and educational level of attainment more closely matched younger students there's evidence in the record that his interests for instance were in thomas the tank engine and the wiggles but back on this core point you're pressing what is the best record site overlooked by the hearing officer and the district court that his curriculum didn't cover the same elements just at a lower level which is inherent in a challenge student but was beyond recognition different so what would you point to as the best evidence so i will give you a couple your ok i think that's the best way to answer this and interestingly the st one is one of the hearing officers on factual findings and that is on page seventy seven of the record it's paragraph number thirty seven and this is the hearing officer summarizing the facts which course were not challenged by a b although student was in the rd grade classroom his academic work was modified to the kindergarten or st grade level he was not expected to master any of the rd grade core curriculum but doesn't that say it's still the same elements it's just at a reduced level and that's why you have a teacher say  hundred percent to a lower level she further testified that he didn't attend to her instruction at all the instruction was coming from the paraprofessional which of course means ab was not getting instruction from a teacher but from a paraprofessional and accepting that the entire construct of the statute contemplates you get money for supplemental services so it's not that you don't need the school never needs to give a teacher's aide it's just in this case it was so extreme the difference that's a fact finding i couldn't find a single circuit opinion where a circuit overrules the two prior fact finders hearing officer going over review district court can you think of a single least restrictive means swear a circuit daniel r and from rowland that when a student presents in the manner a mainstreaming is simply not required now i think one thing to consider under the standard of review and i do see oakley i asked the question after the light came go why i started my st question is i didn't see in your briefs that you were saying look to me like both sides were saying daniel are was the controlling law everyone understood it the issue here is a factual one i think the issue is a misapplication of that law to the fact a place the court mark will burn for a this court has rightly pointed out that the standard of review for the underlying facts is clear i was no clear  that is providing is a very flexible one there are at least four factors i count five factors articulated by daniele are all are and the only one that the district met was number one that they did offer to be mr weaver and that seems to be the core disagreement is understood the council opposites argument the undisputed facts here he says are that the educational benefits are not coming from the regular classroom they are instead coming completely and solely from the aide and that therefore that factor way strongly against mainstreaming what's your response to that i don't know if that's a factual that what the idea implies the case for makes explicit a child need not master the general education curriculum for mainstreaming trim a viable option rather the appropriate yardstick is whether the child with appropriate supplemental aids  services can make progress toward the i e p goals in the regular education setting that's what the th circuit said a year ago so the question is that right there if if this court agrees that that is consistent with daniel or are that education setting within the context of idea what is the purpose of mainstream media child who's not who's not is this or is this classrooms in a classroom idea we have the child physically in a regular classroom but all the instruction is coming solely from a separate paid and it's not much whatsoever to the regular classroom how does have to fill ideas purposes so with respect to the general idea of mainstreaming and then i'll apply it to this specific case i would suspect of the general idea of mainstreaming there are all sorts of advantages that can come to a child who is in a regular education classroom for example there are all kinds of non academic benefits that accrue the opportunity to model typically developing peers with respect to language skills with respect to behavioral skills the opportunity look at the general education curriculum even if it even if it is at a higher level than that what that child is operating at and learn from that even if unable to grasp so for example in the nd grade he was in the rd grade when all of these things happened but he was in general education the nd grade as well and in general a good education the nd grade the c c i steese own staff would would articulate so something changed with respect to that in the st part of his rd grade and what changed was that he had all of these behavioral issues he had behavioral issues because of the transition and he had behavioral issues because as the hearing officer found in finding in fact thirty six dollars c c i stay did not implement a behavioral intervention plan that was appropriate for his circumstances in rd grade they would yank him out of the class and then because he was exhibiting task avoidance behavior which basically reinforced those behaviors that interfered with his ability to learn he was learning from his ability to get out of the class that he shouldn't participate in the class that he should be relatively obstructionist once we file the state the due process proceeding and c c ice t was forced to do something different as opposed to just remove him to a learning of our classroom he all of a sudden did much better his behaviors decrease as c c i steese only instructional staff members testify and his ability to glas material increased because his behaviors were interfering with the ability to learn and so by the end of the year he was getting to a point where he could just start grasping those materials now the fact that he was rolling on a pa aprofessional in class is not any kind of excess burden it's not even a service that would be required to mainstream him the evidence in the reichard is that the paraprofessional would be with him wherever he was even if we went to the learning to learn classroom he's always got a paraprofessional woman because that's part of the issue of having autism you have a one dollar to one dollar aide with you in whatever context you're in to help or redirect you at opportune moments but that's  extra burden in fact in the in the general education classroom unlike with daniel are all are there's absolutely no evidence of any burden at all and daniel or there was a hapless pretty kindergarten teacher who had no body helping her modify the the materials at all he was doing ninety to one hundred percent of the modification herself she was getting distracted from any of the other class members she couldn't do anything but but work with daniel are this is a completely different circumstance is it is undisputed then that the staff members at c c i state collectively had to modify the materials to a lower level that he needed increased repetition and that he needed it is that or at a reduced level of work but that doesn't mean modifying modifying beyond recognition and as this court focused in daniel r r and in the brill case the point is what is the burden on the school district is the school district having to go through all of these contortions to try to design this program in a way that will fit this child reduce the burden on the school district fall in the daniel are factors you're trying to apply these multi factor tasks and we're talking about what's the burden on the curricula to such a degree that will take an enormous amount of time and effort to do it or their academic benefits to the child from being in the general education classroom are there not on academic benefits to being in the general education classroom and are there har mful effects on the classrooms and so on the general classroom and so i i put that in number two and i think the district is is focused on this as sort of in the abstract that well yeah you have to moat you have to modify the curriculum for a b there's no question that you have to modify the curriculum for a b but is there any burden on the school district to do them not because as the teachers when you look at the record sites that school district has pointed to when the school district staff members are testifying about what is happening with a b in their classroom they're not testifying about any burden to them as as as general education teachers what they say is  work with the state we work with the special education staff we work with care professional to modify these these materials and when when a b is working on these things within the classroom he's generally working on them with a pair of professional but there is no sense at all but the actual teacher is taking these it is engaged in an  materials that are from the general education curriculum it's just that the teacher would lock off a few things that you don't need to worry about be things over here spend your time on these things over here so if there are highly abstract concepts and the science teacher testif about that about the questions i had is there any evidence of him working with any of the other students there there's evidence of human work of other students approaching well not just any collaborative work at all with i don't think that there's evidence one way or the other the math incident he described it correctly he did what i think you described it correctly that the there's evidence that the from c c i city staff members there's testimony that the other that the other individual in the classroom very kind to him very outgoing with him very receptive of him i don't think there's evidence one way or the other that they sat and did lesson plans with him  but the reality is that that's no on a critical factor it would be critical if it did happen but the fact it didn't happen is not so damaging from the from the perspective of whether or not to keep a b in the general education classroom i didn't hear them emphasize that this was such a burden on them i really heard them saying this isn't appropriate for him he's a kindergarten level they're the th so we simply can't educate him at that level and therefore we are to blige to and it's not on i know all of them so i'm not really hearing them saying it's a burden on him certainly not disrupting the others not hurting him he's around children that wonderfully don't seem to be enhancing of each other it's simply texas a school district saying we don't have to do this we don't have to give a teacher's assistant the is reducing the expectations best law that helps us understand the phrase that's become so important here beyond recognition so you think it's the th circuit case you gave you pointed us to another is when does a child end up learning material that's beyond recognition so the beyond recognition is not a term in statute i know that you want recognition as a term in the annual or and so so the th circuit case i think is is absolutely on all fours with this one i think that in order to find for the school district this court would have to just say th circuit was completely different from circuit law in terms of a a case that really describes what beyond recognition means i don't think you're going to find one except for daniel or or and brillant which doesn't really explain unpack what the phrase beyond recognition actually it is correct that he was a kindergarten level do you accept that character is student to make progress along the same lines as as a tip as the others it's based on his right exactly in the eye or hitch this court has reinforced that same idea in in the houston bad i think is the reason i think if this court even recognized that daniel or are which is why i think when it was focus thing focusing on the beyond recognition i the question was not so much taking that student in the abstract and figuring out whether it's appropriate for him to be in general education because of the modifications to the curriculum this korten danial or was talking about the beyond recognition because of the effect it had on the general education teacher in other words she herself because she had no age she had no other staff members to work with it was only her she was she was modifying ninety to one hundred percent of that but let's change the facts here then let's imagine texas couldn't have the teacher say wouldn't that then put the burden on the only teacher and others is the rule you're asking for one that requires them to have the aid the rule that i'm asking for is one that requires them to have a yes in other words it's in a different set of circumstances if the school district had taken him out a nd grade and said wow he's great we're going to put him in rd grade and he doesn't even need an aide anymore and they had propels him in there and then he had done really poorly then i think i don't think the question would at that point in that sort of counterfactual would have would have gotten to well ok so now let's come all the way back in the morning to in nd grade do they have to provide that so it yes in a completely different facts if we were back today or are where the school district had not ever made the decision to provide him with a with a  and this school district just didn't have any purpose was at their disposal then and this is where the dead were danial are specifically says about the rocker decision in the  a regular mainstream setting if it can provide the same special education services that it would in special education  and this court and venue are said we're not going to require that we're not going to say that the district automatically has to use every tool that it would use in special education setting to supplement what is doing the regular it's cation setting and to provide the child with education in a regular education setting it specially if there are no other advantages that accrue that child but that's not what happened here what happened here is that he only said it her professional he always was in it least in this in from the nd grade for he was in the general education classroom he had the perp refreshment he was doing well they moved into the thirty the rd grade with the same set up he had before he would have been doing well if they'd implemented an appropriate behavior intervention plan they didn't he have problems they may rectify the issue he was starting to do well he was starting to get back on track the way  class he did that evidence relevant can and cannot evidence been relied on to say this is working this is where you want to be in the me make sure i understand your question correctly is the question whether the district court should properly have cut off the inquiry at the time in michigan if the issue before us is the school district's placement decision can one nonetheless test that by subsequent state put good job in mainstream evidence is implemented a district court can always look at new evidence there are mechanisms to allow this report to look at new evidence that would allow the district court to get to the new to get to the correct decision i think it's appropriate to i think it's appropriate for the district court to look at that evidence in this case i think that there or there's another procedural reason why that's true as well and that is that the due process complaint itself was on the whole your lights your lights on you're so focused you're not i never used to myself but i think we've got the argument thank you very much thank i think posing council's presentation was fairly illuminating on the distinction between the law in the circuit and the law he's asking in daniel r r the th this circuit pressley rejected the six circuits wrong card test going so far as to circulate the opinion to the court before issuing it because it expressly initiates a conflict with the six circuit the six circuit case may be cited is predicated on wrong or it is a different body of law there is a conflict between the circuits return articulate for me what exactly is the conflict and how does it help your case ranker applies a feasibility test and that's essentially what he is asking so yes it it's critical it under wrong if it's feasible if it's possible to create a classroom within a classroom the school district asked to do it under this circuit these abilities not the test everything a b argued to you was a feasibility argument if you look at what the what this court wrote in daniel are and the focus by a b was on the st part of the sentence but there's a very important or this court said the act does not require regular education instructors to devote all or most of their time to one handicapped child or to modify the regular education program beyond recognition the response to that was in the annual or that's a reference to modifying the curriculum for everyone is that a distinction here i don't think it's modifying the curriculum for everyone i think it's modifying the curriculum for the special education students and but we doesn't special agent they always have to have a modified course or it's right  going to have a modified curriculum but not beyond recognition this is where we get to the beyond recognition so a supplementary age of service could involve more time it could involve changes to the assignments but it can't involve it becomes beyond recognition when it's modified down to grade levels to a grade level and a half that's when rd that seems to undo the entire purpose the whole purpose is these are challenge students it's really wonderful for them and their regular peers to be together once we say well not if we modify but by nature they need modification they would allow schools to just say we'll take the federal money but we won't give the supplemental services because they need a modification well and so i think that's the the real crux of it's not doesn't your position is not my position it's the modification is modification beyond recognition and we do is a question of degree it is it is a question of degree and isn't that a fact finding and it's a fact yes it would be a fact finding but here the facts are undisputed that it was modified down to a different grade level the hearing officer made that finding all the evidence comes to that finding and supports that finding the district court doesn't even really quibble with that finding the district court really relied mistakenly on the fact that he needed or that he could access his peers in the general education curriculum this court and daniel are focused on modified beyond recognition which is what we have here this case is nearly on foursquare's with daniel are in berlin was there a teacher's aide in daniel are with their teachers and daniel are you asked and i just blanked out on that so i don't know i'm hesitant to say i thought from his characterization was i forget too that our focus was it absorb the teachers time or it would disrupt the regular curriculum i don't remember d r are saying well he's fine he's not disrupting the teacher's fine with the rest of them but because he needs help lots of help he we're going to put him in the other place here's that distinction in the sports language those are two possibilities two problems mainstreaming is not appropriate if it would take up all of the teacher right so to your question suppose budgetary constraints precluded a paraprofessional in here different from a one to one aide the purple factional became the teacher but i'm not sure that's been decided  supposedly came because you're getting money to give those so school can't say well we don't have the money that means they get the federal money but then they can use it for other thing that's not the argument that because of that the argument is just was his curriculum modified too and i think that's a fairly fair summation ok here is was the curriculum modified beyond recognition and if it was in here all of the evidence and the factual findings support the conclusion that it was modified beyond recognition it was no longer a rd grade curriculum then this court has held that mainstreaming is not appropriate the only benefit would be that the student would be sitting in a regular education classroom while getting some other curriculum that's not what the law requires that's not what this circuit's authority requires for that reason we request that you reverse and read thank you thank you thank you very much that can