our next case is number seventeen dash one four eight two four l j versus the school board of broward county missy eagle it please the court i'm jody siegel this is kiersten andersen attorneys with southern legal counsel and kevin going b s d with bernie and saying we represent l g the plaintiff appellant in this case before you get going i don't interrupt your that's a  compensatory education yes is fight his age yes compensatory education is permissible beyond the age and i know it generally is but a lot of times it depends on the age of the child as well it's our position that the cases hold that compensatory education is allowable at any time when there's a finding that the school board failed to provide an appropriate education so it does not matter that he is over the age of the so he's not eligible to go back to public school but he is eligible for compensatory education in other in another manner once what if you could remind me and the knowledge you go with your argument what if any compensatory education to the administrative law judge order the a l j ordered four years of compensatory education and we think at this point since it's been a long time to have  remained to go back not for a determination of liability but for a determination of the compensatory education and what he currently needs in order to make up for the failure to implement the my in the behavior plan and so that we would the district court would hear evidence about what would be appropriate we we aren't here telling you what's appropriate and to order that but the district court can take evidence and determine that green had this case  about what standards should be adopted in this circuit for determining when a failure to implement an individualized education program or ip violates the individuals with disabilities education act or i d e a and whether in this case the implementation failure is denied l j and appropriate education other circuits have addressed this and use what has become known as the materiality standard in which a court would one determine if there are failures implement and i to analyze the significance of the failures on the child's education using either the old rally educational benefits standard before entry or now would use the current  progress in light of his circumstances standard and then three determine whether the failures taken together materially impacted whether the child received an appropriate education the a l j correctly applied this legal standard the district court made substantial legal error by only determining if there were implementation failures without analyzing the significance of those failures on the child's education under either rally or engineering and by failing to determine whether the failures taken together materially impacted whether the child received an appropriate education and on top of those errors as yes as i read the js order there were deficiencies found two respects one was implementation issues right but there were also findings about the plans themselves and i use that term generally were inadequate in certain respects right the a l j made findings that the behavior plan was inappropriate and the reason that's an implementation failure is that the behavior plans that were in place had part of it because behavior is not static it changes and so it actually explicitly said that they needed to be updated to accommodate newer behaviors and to change that plan as appropriate that was an implementation failure by not doing that so when the is looking at what services were promised and whether those were implemented so that they're that is what they are they found look at those but in terms of a behavior plan since the behavior playing itself in vision and change then that change had to be implemented as well so how the a l j looked at it and what the testimony discussed was whether the behavior plan was appropriate in effect in order to address and teach l j appropriate behaviors and to get him to school and that was their responsibility there's another aspect of stay put which the district court mentioned john m the john m case about flexibility need the need for change or not applying it in the middle school versus the elementary school whether there is really a reason and the a l j specifically looked at the buddy system which was required and the weekly meetings of the teachers which was also required the district court found that there needed to be some flexibility but the a l j specifically found that those were the excuses given by the school board were not reasonable and that they could have and should have been implemented and so there really is was no need for any flexibility because they this school board could have implemented the entire eye on the implementation issues yes the district court laid out the appropriate legal standard right the district court laid out the appropriate legal standard however the dischord didn't apply that state oh i know you have issues about application and interpretation and lack of giving way to the ale jay and all that but i just want to figure out where you think the deficiencies are right herm's of laying out the implementation side of the case the district court the laid out the correct generalists the district court look to bobby r since there is no you know standard in this court and the circuit and laid out bobbie are but where the district court went wrong in laying that are not just implementing it but in a prior order had said that rally doesn't even apply and so that's where we think just applying bobbie are if you had applied babi yar appropriately fine but he did make a legal error in saying that there's no appropriate this that needs to be addressed in looking at implementation so he didn't really lay it out sufficiently and that's that's one of my questions is the implementation standard a separate procedural question that we and the district court can evaluate in terms of by the are or is that reflective of some substantive requirement that may have shifted between rally and giraffe i think at this point if we're going to adopt a standard it needs to incorporate n g o s which is the current legal standard and because the materiality standard involves looking at appropriate education so it isn't different in that way because when it's drafted or looking at the implementation after the fact you need to look at the appropriateness of the education rally was the old standard of how to look at whether an appropriate education is a vision and do f is the new looking at whether the child it's appropriate in light of the child's circumstances i don't materiality incorporates the appropriateness idea i can say that's one way to interpret it but couldn't you also separated and say when you're first developing that i it needs to meet whatever the appropriate standard is whether before some had a conception of what that meant in a rally and now we know a little bit more about what that means under andrew half but that once you've got once you've got the appropriate i e p that the question is soley with regard to its implementation rather than importing an additional substantive standard well it it's not a yes or no yes it does incorporate materiality is what you're looking at but in order to determine materiality there's no way to determine it without looking at the appropriateness of what was implemented so that's where the district court looked at four percent shortfall thirteen percent shortfall and looked at those in a numerical way and said that can't be material but the only way to determine that where he where the district court failed was looking at the importance of what that whatever the service was that was a shortfall and determine exactly the import of it and then determine whether or not an appropriate education in light of the child circumstances was provided so the when you look at the ip it's kind of looking forward and you're looking at the implementation and you're looking backward in a way but they both look at the appropriateness of the education so would your argument be that if if one child has a cadillac plan that everyone everyone agrees is outstanding and maybe even goes beyond what would be required at the minimum level and it misses the implementation misses by a relatively significant mark but you can still the school can still argue well this child still made appropriate progress in light of their circumstances then even if that stair was missed by say twenty five or fifty percent maybe that's ok whereas if the i p as drafted just barely reaches just barely reaches that's that a program the standard and then  implementation is only off by two percent but that two percent takes the child down below the end of standard then that would be a failure as is that a correct version of your argument well i guess i would start from the premise that you just take the you're not determining whether it's a cadillac or the chevy you're just determining what was crafted so the teen carefully crafted an i based on his needs and so it needed to be fully implemented so so i don't know that  there is an i p that has a cadillac but you can look at it that way just need to look at the import of it i mean maybe you can look at it and if you're under your assumption that there is a cadillac and there may be an extra service that really didn't have a whole lot to do with the importance of his education yes the district court could look at that and say that really wasn't that important to his education and so it's really not a matter of a percentage it's a matter of the import of what the service is that wasn't provided and the district court did not do any of that analysis can i ask you a sort of procedural question yes when i ask your colleague the same thing ok this case has been around for a long time yes it has right  and at the time that the hail j ruled andrew f was not around that's correct when the district court ruled andrew f had come out and was the district court was notified about who wins and who loses whether to apply andrew f to nail j decision to which we have to give due weight right and to a district court decision which didn't address were really discuss andrew f right what do we do well i think we just we just do it take the record and just say ok here go and drew f all the way through and will do what we do in that's the way it because the district court specifically held rally was not a playable if the district court even after an draft came out applied brownlee and applied the educational benefit and looked at the significance and didn't look at entry where it wouldn't be reversible error it's the fact that he didn't look at anything appropriateness of the education anything about the import of the education to determine materiality that's the error so whether it was rallies at the time that the ailed line oh i know what the alleged error is my question is assuming you are right what do we do about that error you want is to remand for proper application no or you want us to take the role of a trial court and apply the normal standard that the district court would apply the eleventh circuit does sit in the same shoes as the district court and can affirm the a l j because it was a cold administrative record that this district court was looking at the district court didn't take any additional evidence was not making his own findings so yes you can look at what the ail day did determine that it was appropriate determine that it was used the correct legal standard had sufficient findings that supported the conclusion and was thorough and careful which it was every single thing that the concluded there was support and for it and made extensive findings and conclusions and yes this court can just go directly to the ale day order and affirmed that reversed the district court does not have to send it back to the district court to determine any kind of factual findings it already had that it please the court hudsonville on behalf of the school board of broward county touching on the issue of the school board's position is that there are different types of challenges under and there are rally and and draft dealt with were content based challenges to the i p meaning that an ip was drafted and provided and that one party typically the parent objected to the content of that i e p's saying that that did not offer a free and appropriate public education and rally first laid out the process for that and then enter f amended it and i mean it's a two step process for she look at the progress appropriate in light of the child circumstances this case is kind of a more narrow subset that doesn't come up very often which is an improvement or as much was it which is an implementation challenge saying that we're not challenging with the ip offer challenging how you implement it and it's just simply a different test that has come about and it's that the body our test was the initial one but the done case from the ninth circuit also dropped in a couple others and it's really a e which was one of the aspects and were in this case i stay put i p and then part of that is the ip says that behavior will be addressed through a functional behavior assessment and behavior intervention plan and those are provided and the ale jay did make some claiming those those weren't fish and they were updated enough and what judge maura did appropriately is is look at what the ip require the content of the ip the specific wording and what the school board did and what the record testimony was about that and he c ded that those those comply with the ip that were sufficient and the school board did what was required of it right now i'm focusing on paragraph three fifty seven and three fifty nine of the a order in the ale jay said and i know you may take issue with it that the child's p b ip was inadequate quote unquote to meet his needs and the two thousand and seven p b ip was almost identical to the previous one and that was a problem too that one is not just a failure to implement right that's more on the substantive level that andrew f begins to speak to well it's a little bit of a i guess hybrid a unique circumstance because you know the ip is what we're here about and that's the educational plan that provides the behavior plan it's the p b ideas positive behavior intervention plan and what it stands for is something that the ip says behavior will be address ip is what the school boards position is and we think that those tests require you to look at you know what the eyepiece pacifically requires you know that that's all the school boards required to provide you can't invent new things and then what was actually provided and that's a standard and the judge morris role in the district court's role here is certainly he has to give due weight to the ale j s findings but he is permitted to accept those conclusions when they're supported by the record and he's permitted to reject them when they're not if you reject them he is required to explain why and that's what he did in this case if the parent here to challenge the substance of the child's p b ip or it's implementation if you look at the initial due process which was filed in the were some amendments done but it's part of the record that is merely just challenging the implementation of the ip so that is what this case was about it was an implementation case from its inception  a have the authority to conclude that a plan is substantively insufficient in the face of a challenge to that plan's implementation no i mean a due process complaint which  commences this process is a good complaint in the in a lawsuit it defines what the issues are and the j in the parties or are bound to limit it to what those issues are you can't go outside and bring up other issues are not supposed to are supposed to be limited to what the parents actually challenges are in two problems that he identified one he notes that at times the algae appears to be employing some different standard that that simply doesn't exist in the one example that stuck out was with respect to capturing data the algae says they captured sufficient data but not all data and then found a violation there and judge morris said well that's not the standard standard isn't all data it's if you're getting sufficient you've met the other problem the hail jazz's while there are a lot of findings in here there's no citation to the record of the actual testimony and there's only a handful of citations to exhibits which put on is why is that a problem because for a district court reviewing that when you want to determine whether those findings are supported by the record you have to then go back and thousand agents testimony to find where they are and that's what happens a fair amount of the time in our work a district court sometimes provides you you know exact citations to transcript page and line and sometimes they just say here's the testimony here are my findings here's what i say about credibility so forth and so on with no findings at all and then it's up to the parties to tell an appellate reviewing tribunals this was supported because the testimony in the record said x and y and here are the pages so i understand the point that the ail j could have said more in terms of citation but why is a failure to provide book and verse a problem in terms of the due way you give to the order i think when you combine that with which it's ma recognised where he's applying appears to be applying a different standard in some cases  it impacts the deference given but nonetheless judge mora appropriately as he's permitted under the standard he can review those findings and look for the record and what he found was a number of them or supported by the record he goes point by point through the algaes order and his or her citing sometimes the basin to the testimony and says well this is what the actual testimony showed this is what the document actually showed an interview them and determined that those findings weren't supported by the record or of the conclusions more supported by the  feels ok then maybe i won't disturb it but i have the authority to disturb it it is not clear error review it is an abuse of discretion it is not substantial evidence and not clear and convincing and i think you have the wrong we're all stuck with that is so stipulated that i would uncertain your role here when it's a court administrative record is you know you can sit in the same shoes as a district court so maybe unfortunately for you you can go back through those one thousand days of testimony in those hundreds of exhibits and determine was order was was appropriate but there are i guess two points that that i think are important which one was touched on that this is the stay put i get there being alleged they didn't implement fully and it wasn't just a year old it's three or four years old it's from when he was in the third grade and drafted then and it was presumably appropriate for him in the third grade but now i have a student who's in the seventh and eighth grade is five and six years older and so what the john m case says is you have to you know when you're looking at imitation case in that sense you have some flexibility and things that might have an appropriate when you're in an elementary school where you're in one classroom all day and things might not be appropriate when you're now in a situation where you're transferred from class to class  with different teachers and the example one of the sticks out is the algae fall to the school board for not having because the the what the requirement of the ip was that the general teacher would attend meetings on a certain basis an faulted the school board because in middle school there is now i think five or six gena teachers the ip doesn't address that because there is only one jenna teacher blown as well that general teacher should have conferred with the other ones before attending the meeting but again that's not a a and because we're in a state put there should be some flexibility in implementing that and find that being an aran implementation when that's not what's required is simply inappropriate the other issue which judge maura noted is the fact the student wasn't in class for a majority of the time at issue here i mean we're looking at two thousand and six and two thousand and seven two thousand and seven two thousand and eight and if you look at what is the exhibit i believe five eighty six that was  below is a summary of his attendance and there's a lot of ways to parse that information but if you look at the total number of class periods that would have been available for that student and what he actually attended it comes out to about twenty two percent so he's only in class twenty two percent of the time and then to you know say that oh well we provided x number of speech and language classes or o t sessions which is what the l j did without putting it in context is inappropriate you have to look at when was actually there and then what was required when he was there a level of responsibility does the school and the school districts have towards putting in place strategies to to get him into class so that there's other portions that i can be implemented what they do have some responsibility and in this case they've already identified him as a student that had special needs yet he had an ip they act in fact developed a new ip in august of two thousand and five which they weren't allowed implement because as is apparent right it was challenging it and then in addition to that and judge moore lays out some of the strategies that were designed to make him feel comfortable that the school board also especially at the beginning of the two thousand and six two thousand and seven school year had numerous meetings to develop certain strategies like social stories to get the student in o class but part of the problem is this wasn't a case where the student was coming in a low being from class and leaving out oftentimes he wasn't even making it to the bus stop or making it on a campus where the evidence showed is once he got on a campus the school board was in getting him to stay on campus longer while a version which is what i guess the term a school version was part of the reason he missed time there were a host of other reasons often times he would leave school early is a parent would come it so that he would only attend one or two classes per day and then we've that's not a school version issue that's the parent withdrawing it from class there were other times when the parent with the reform school for extended periods of time i think at the end of the two thousand and six two thousand and seven services do so while there is some obligation on the school board to make sure students get to class if they're never are they're being withdrawn by their parents or they're never even making it on a campus it's difficult that we can't go to the go to their house and  them from their home there's limits to what the school board can do how typical is it that it would take this long to work through this process because you can certainly see how and i see may need to change over time as is the parent's right to challenge the new ip but when it drags out over this number of years i mean how typical i've been in these cases that at all levels and it's it's an unfortunate byproduct of how the system works that sometimes there's so many issues and you have an l j who's going to do what things in the ministry of hearing drags on for x in a pretty time and it takes a long time i mean if the system is designed to be quick so you can get rulings but it's some of the cases when themselves are that if you get the situation where they drag on for now it's been years  supreme court or the circuit hasn't spoken but plenty of other circuits have and they basically have adopted the same test that's the material failure test and you do look at progress in that i mean that's part of what i think the ninth circuit said in the van dunn case but it's not the end all be all would your request involve some sort of presumption or assumption on the part of the court that the ip itself met the appropriate  standard yes because that there that i was not challenged you know that the procedural history this is this is developed in third grade in two thousand and two it's implemented for a number of years as he's transitioning from elementary school to middle school a new i p s created that's challenging a separate proceeding that went through the process and was before judge moore this case is while there that challenge is going on we're obligated through to stay put the school board is to implement that stay put i so that's all that was being challenged once was us implementing you know of five six year old for a two year period while the next ip is being challenged again it's a bit of an odd procedural circumstance but that's where we are so there was no challenge the substance of that is that is that other case matter over it is your honor it was judge moore ultimately and the l j and judge moore both found that the mind behavioral services correct right but he didn't do too much was that well that was never determined by the court that was part of the issue what he did in order with those findings and basically directed the parties to try to work out some arrangement that it was a aled and then set back down because it wasn't a turn to be a final water and that i think by that time the the parties and moved on to where they were and so that that's where that case it's never been ever been shown in the case is closed and there was never an award an actual not determined so that no competition was provided in that case well no competition was ordered i don't i ordered or provided well i i honestly i that's not the record i can't speak to but i do know that subsequent to this the child is now in a residential place or what a residential placement school board paid for the education component of that and then medicaid covered the residential portion of that and that was in two thousand and eight do you have a specific understanding of what type of unfortunately the child still needs to learn to read appropriately still needs many services that were in the i p n could be still useful even though he is older he is still needing to know what ages  caught because it goes and he is i believe twenty five somewhere around there that this the a l j didn't or lease in the main order i haven't looked to see whether there was a subsequent order doesn't explain exactly what the compensatory services back then were right right was there a second order that's spent at least at that time specified what those services were no we were attempting to to get the district court to determine that and have evidence on that and determine that and in the way these cases work in a let mr gill respond to from the from the table and the way these cases work of a nail j orders some compensatory services are those left sort of vague and to be worked out or they or they specifically laid out they often are they do it in different ways if there's a  think that is accurate that it happens sometimes that things are left sort of general and more vague than usual standard or appropriately apply the legal standard and the ale jay did it is very clear that the that the a l j deserve the deference and should have given due weight by the district court and that this court does not have to characterize it as a lower standard than and but he would have won under either standard so it doesn't matter which standard but clearly you can't fault in a day for applying a supreme court case that wasn't in existence so it did but it should have done properly then in the significance of injury is that today since we need to adopt a materiality standard in the eleventh circuit that today we should be using the current legal standard even the district court like i had said earlier if it had applied rally instead of anger that would have been reversible error because it's the the the core is whether or not the looked at the appropriateness of the implementation and the appropriateness of the  education please articulate for us exactly what you say the standard should be following and the school boards should be held accountable for implementation and not denying an appropriate education by failing to materially implement if the failures are substantial and significant and impede the child's ability to make progress appropriate in light of his circumstances and that is the way to incorporate n g o s into the materiality standard repeat the second part of that again materially implement the i e p yes material if they failed materially implement the i e p in the failures are substantial and significant and impeded the child's ability to make progress appropriate in light of the child's circumstances