we'll hear argument this this morning in case fifteen eight twenty seven andrew after says douglas county school district mr fisher mr chief justice the map please the court the idea does not permit a school district to provide a child with a disability a barely more than de minimus educational benefit rather what the act requires is for the school to provide instruction related services to the child that are reasonably calculated to provide substantially equal educational opportunities the school districts primary response to our argument is that the standard i just described to you does not appear anywhere in the operative text of the i d e a but i think you're right to also didn't appear we've had before it can didn't justice ginsburg yes justice blackmun proposed a standard similar to the one that we offered the court today but that was nine hundred eighty two and congress has amended the i d e a the federal government proposes a deal to the states if the states want the money they have to agree to these provisions and now you're saying that the content of those provisions no is changed by new legislation and i just wonder whether that puts some strain on the idea that the states have agreed to these provisions but when they accepted the offer under the spending clause no i don't think it does i think it's critical to get to the tax for jack for the reason you say mr chief justice we know from rally that there's a work that's a page two or three into a four of rally so to get to the text in exactly what the state agrees to you start with the faith definition the definition for free appropriate public education we all agree on that so that definition says that the school has to provide an education quote in conformity with the i e p plan then to understand what that means again this is straight out of raleigh and straight out of the text you turn to what the i u p provisions provide and those are laid out of pages fifty two way and fifty three day of the government's appendix and in a nutshell what they say over and over again is that standards generally speaking for children of disability should be aimed at the general educational curriculum so what you do is you start with a general educational curriculum that as to all kids then you identify the child's disability and how it impacts that child's ability to participate and progress in that general educational curriculum how does that one i'm sorry how does that work with students whose disabilities generally wouldn't allow them in their own with their own potential to follow the general educational curriculum i understand how it worked in rally we were dealing someone with this particular disability but one that was rather readily and easily addressed here you have a very different context i mean you would not say that the goal here would you was to progress consistent with the general educational curriculum most likely not all the way up to grade level in this case mr chief justice but that question just as you asked me earlier is expressly answered in the statute so on page fifty two way on the bottom of fifty two way in subsidy see what this what the i e p provision say is that for children with disabilities who take alternate assessments aligned to alternate achievement standards a description of benchmarks or short term objectives are appropriate and then the much post dating rally what congress is referring to expect to alternate achievement standards are laid out at page seventy nine a of the government's appendix these are the amendments to the e s e a that congress enact in the no child left behind act and that have been aligned with the i d e a so if you look at page seventy nine a there are four subdivisions or five sorry five subdivisions that describe what you do for the child mr chief justice that you are asking about and perhaps the most important are sub three and sub four so if you'll permit because the text is so important to read them to you sub three says that the standards in this situation must quote reflect a professional judgment as to the highest possible standards achievable by such students and then what subform does to complete the circle and make absolutely clear to the states and everybody else that this is required it says those standards most quote be designated in the individual eyes education program developed under  the question you asked is expressly answered in the text is expressly answered in the i d e a and so to bring me back to our standard substantial educational opportunity are the words congress used in the findings the purpose is to  is required by these that you pop ups i suppose it's implicit in your standard and some of the provisions you read that what we're talking about is the word reasonable that we see throughout the law do you see in any  function for that word and in addition as part of what reason will is is there any place to discuss the cost of that the would would be incurred first say severely disabled reasonably calculated to achieve the level of educational benefit that should be guaranteed so if you go into court or actually here you don't start in court you start with a hearing officer and if there's going to be a dispute what a parent has to show is that the plan the school adopted was one that no reasonable educator would have adopted and so reasonable this is an important part of the way a court would look at a hearing officer and indeed the p t now with specific reference to cost let me say three things about cost justice kennedy first of all the vast vast majority of i e p's and programs put together in the statute don't cost much at all they involve things like providing braille textbooks providing an i pad providing some specialized instruction by oh by a staff member who's already on staff there are going to be some extreme cases in the court saw one several years ago in the garret after which involved a situation where a child with a ventilator needed full time nursing services in the court quite clearly said that even they are where the school just was saying that was just thirty to forty thousand dollars the act does not permit cost to trump what the act otherwise requires and the reason why justice kennedy is because congress expressly thought about this all the way back to the one nine hundred seventy five act what congress said is it's yes it costs money and that's why it's spending cause i just listen and that's why we're giving money to the states but it is cheaper to provide services to somebody while they are being litigated it was more like forty thousand dollars in the private school currently it is closer to the number you described but the tab to put the child in private school remember the school district had an opportunity come to come forward with  with a proper i e p plan to provide drew with a faith and in your plea in your position what in your view what should have been done for this stupid the first and most important thing that should have been done is what's known a behavioral assessment should have taken place to figure out why drew's behaviors were so dramatically interfering with his education that's something that every reasonable educator would have done all the peer reviewed research say it's vital it's a very first thing that the private school did in this situation and if you look at the plans that are laid out a supplemental joint appendix that was never done and what's amazing particularly striking justice kennedy is that even after drew was really  emergency situation in the spring of his fourth grade year put into private school the parents came back to the school district again six months later in november and said now that we see he's progressing now that they've done a behavioral analysis what we that the same old plan was presented with no experts they then offered to have another conference a month later in may and but the parents decided at that point as things had reached such a critical emergency stage that drew was falling so far behind th had to put him in a private school so they did not attend that meeting but justice ginsburg what my friend on the other side leaves out of his brief is that what i just described is the parents did return in the fall once drew had been stabilized and did offer to meet with the school brought no autism expert to that meeting and the plan that they proposed to deal with his behavior is verbatim the same plan that they had offered back in the fourth grade and so at that point the school the parents had no choice reasonably but to leave drew in private school and to seek remedies under the act and there are going to be i think it's returns me to justice kennedy's question about cost we recognise in congress recognized in this court recognized in burlington that there are going to be rare explained circumstances where children are going to be put into a private school or otherwise need significant resources why do what why didn't the the statement but p what it has to do is it has to based on peer reviewed research when practicable will be a program i did for the child to advance appropriately towards attaining the end you will go to make progress in the general education curriculum and so poor so you just described it the situation is that wouldn't that have been violated or if they wrote the p that way wouldn't you be able to go to court and say look there is there i e p and they didn't live up to it well then you already have two arguments under the statute  the problem that's working in my mind is that we suddenly adopt a new standard all over the country will have judges and lawyers and and be people interpret it differently and and so why isn't the present sufficient besides having nine people who don't know i mean at least speaking for myself i don't know that much about it creating a new standard out of legal materials which are at this from the people the children and the parents who need help so i think the critical reason why the court in rally itself gestured towards meeting the need for a overall standard that encapsulates the act and the reason why we ask for here today is that you will find in every brief in this case our brief the read brief their amicus briefs everyone agrees that school districts i believe this is a page twenty nine and forty seven of my friends brief they agree that the ip provisions have to be followed everybody agrees that the difficulty is that it just doesn't happen and i know ari if it doesn't happen what are we supposed to do to make it happen i mean you have a statute that certainly seems to say that and you have a system for enforcement and how does us suddenly using this word equal you know the word equal has history from a lot of different areas of law and and what do you do with a wide range of disabilities a huge range an individual students  and you see what i think i see i foresee taking the money that ought to go to the children and spending it on lawsuits and lawyers and all kinds of things are extraneous said that is what's actually bothered right so let me  address a word more about why we need a standard and i'll say something about the lawsuits question that you raise so first we need a standard because the act that it's best to encapsulate what the i e p provisions required if you don't like the word you quote i'm seeing the giving you the word that congress used when it amended the act and that very much this court just said that very much the same thing in a rally when it said in the general situation a child's plan should be tailored to allow her to advance from grade to grade now if you don't want to use the word equal here's what we would suggest just as prior you can say as a general rule the i e if the provisions and therefore the faith requirement of the act demands a level of educational services to design to allow the child to progress from grade to grade in the general curriculum well that is not suppose we have a child who is the handicapped child there's a range of people and they can't do much for them but they can do something for them and if they can do something for them do it but if you say measure that in terms of their ability to progress from grade to grade maybe some will some won't and how does that it seems to the word appropriate try to recognize that and do you to recognize that i mean you can't ask for more than is reasonable for them to do so so what words do we use at bottom we agree that there is flexibility in the act two of comedy each child's individual potential in needs but if i could just give a full answer to your question we think that it would be fine if the court just said the i e should be tailored to achieve in the general educational curriculum at grade level for most kids and when that is not possible just as briar and this goes back to mr chief justice question if you do the alternative cheeseman standards according to the language i described to a page seventy nine and that is all straight out of the text of the act it's more complicated way of putting it in and makes a big difference with the take the word equal out that what you've just said takes the were equal out of the view in my view justice alito i'm describing which means to broaden equal educational opportunity if you don't think that i'm actually well i understand what an equal outcome would be but i don't understand when an equal opportunity means when an equal outcome is not practical what it means is that you give the so when you're dealing with a child you cannot get to grade level i think that's what you're asking what it means and this isn't a two thousand and five guidance document by the department of education what it means is you're giving children disabilit challenging curriculum on the academic side and in terms of their functional engine functional and developmental goals that for the standard i would just say the standard is highest possible stand standards achievable directly in the text of the statute for those of us who have some feeling that the word equality is a poor fit for this statute and its focus on individual nation what would you say to those of us how would you describe what you think is required without it's going to be mr chief justice in may it please the court the requirement of a free appropriate public education is not satisfied but a program that aims a barely more than minimum progress what it requires so i think we would take the same position with respect to amy and similar students it's grade level competence for students who are in the regular classroom were in the general were taught regular not somebody for whom i think you'd agree that that standard doesn't apply right and so that is where we have a slight area of disagreement we would say significant significant progress towards grade level standards not as close as possible to grade lame  that's appropriate the only one i would urge you away from actually is meaningful and the reason is that it has baggage in various courts of appeals it means different things to different courts and it has been applied in different ways by different standard and it's not a maximisation standard what it is is and i would leave it to you to choose any of those adjectives that the problem as you say leave it to us you represent the department of education here they at least have experience with it and we have far less than so obviously i'm relying and must rely upon people who have connection with expertise and i don't want to do something it uses words that has appropriate now you've taken that word appropriate and spelled it out in light of the student's particular needs and abilities i think that's what you're doing with appropriate yes and if we stick appropriate in that sentence somewhere significant inappropriate does that matter that happened then we were  require a school district to provide i begin to think everybody is going to happen or start suing about whether they did provide no no is what i'm thinking well maybe it should be something like they're reasonably calculated to get revenge that's absolutely we agree with that that is what riley said and that is what the standard of that's what it means to require it it's a program that is reasonably calculated to make significant introverts progress right of the child circumstances for all of us who might be a little slow now tell me what the new standard you're proposing is and i don't mean to be buying into your so adversaries position i do think the act provides enough to set a clear standard but the words are what we're trying to come to that would be less confusing to everyone so one formulation that i think that would be consistent with what we are saying is reasonably calculated to make progress that is appropriate in light of the child's circumstances so how does that actually work in practice i mean i understand the rally standard you're dealing with someone who has a disability that is really addressed so that they can keep track with gr but if you're out of that realm where that is not a realistic goal in light of the child's potential how do you decide what it is you're sitting you're sitting down at the meeting and how do you decide all right so use what privileges provisions tell you where to start you look at the where the child currently is in terms of academic performance what are their proper present levels of achievement and then you examine the disability and you asked to what extent has this impeding progress in the general curriculum and then what you do is you basically make an essay that or somebody at that meeting i mean you have the people who have the expert you have educational experts who will say  so here here is what we mean by that mr chief justice you start with that it's great grade level standards but then you see the building blocks of a missing underneath those grade level standards and you set those out so if you can't multiply and you can't add and multiplication as the standard maybe you need to learn how to add first so you set forth what are the building blocks that the child is missing everybody say everybody sume everybody needs to learn how to add before they learn how to multiply and the basis of my concern is that it seems to me that even though you have a lot of maybe because you have a lot of different adjectives to describe the standard that there's really nothing concrete there and when you're asking the courts to undertake judicial review it's not clear to me exactly what they're supposed so so again it's appropriate light of the circumstances and we think that this is just what most school boards are already doing and i agree that the concern is with court enforcement of the standard in the  court court over involvement in educational decisions but the response to that is not to adopt a barely more than de minimus standard that nobody purports to apply but is to say that the court's role is limited to ensuring that the state's program for progress are appropriate progress is based on reasonable educational judgment do you agree with mr fisher that cost has no place in this calculation no matter how expensive it would be in the matter what the impact and let's say a poor school district would be on the general student population cost can't be considered and do you think in the real world school boards are disregarding cos entirely so they're definitely not disregarding costs entirely because there could be two different programs both of which are reasonable and they would take into account costs surely in deciding which of those reasonable programs to adopt but more generally i would say the answer is no in the usual case and from cedar rapids that's what the court said is you can see consider costs in deciding what the standards should be in the first place but cost can't define what the standards are and that makes sense to me in law and wind of the way you look at this statute congress obviously knew when it passed this law that there were going to be some significant expenses associated with some kids and that's why it gave money and made  opt in program so at the very least it seems to me cedar rapids and the structure of the statute tell you that then in the usual case it can't be cost but the well you know what percentage of the funds that are spent by school districts for this program are paid by the federal guy think it's a relatively i think it's like fifteen percent or something like that at all government pays fifteen percent i think it's something like that could be right could be corrected in and maybe my mind but the point of it is they realized that they were going to give money and they made it an open ended choice for the school districts or decide what do you think that costs should be measured against the possible results to be achieved so not in the usual case i think cock congress took costs off the table in the usual case i think in the extreme case you would do exactly what you're talking about you would say for a very little game for extreme cost no appropriate is not appropriate yes so the case in this case no no and the school district in this case hasn't raised a cost defense and more importantly the close of significant progress the cost did give i'm sorry that the cost the only thing it said is that there was a free appropriate a public education because drew had made minimum progress on some of the schools in the prior years and that's clearly not enough to meet the standard that we're talking about just thank you mr chief justice it may please the court to prevail my friends have to overcome three different things first they must overcome the spending clause which requires that any standard be imposed on him big you asli second they must overcome rally which found far from a clear statement that the statute was noticeably absent on a substantive standard for the level of education including any standard based on equality and third they must overcome the fact that with each amendment to the idea a congress has reaffirm so he has two different arguments justice ginsburg about about the changes to the amendments we think neither of them is going to come close first of all nothing is an ambiguous as the spending clause requires these are changes to the procedural protections in fourteen fourteen d and in an additional goal found in fourteen hundred none of that comes close to this and i think the best barometer of this is that it's taken until mr fischer is creativity for any court really to even entertain the notion that the ninety seven or two thousand and four amendments change the standard he has not a single case to cite that supports this idea but all are single standards certainly are the measure by which a court can determine whether or not the procedures were adequate absolutely justice kennedy we agree then why doesn't that automatically make these part of the standard we do think it makes them part of the standards it just makes them part of the procedural standards that is to say we agree with them that in one thousand nine hundred seven in two thousand and four congress really changed the idea in a significant way to agree the question of the jurors have to meet the standards absolutely absolutely and so to the extent the procedures aren't meant to the extent that is i don't understand your disagreement with mr fisher though it's very large that is we think that these are proceed a procedural checklist and it's a detailed and exhaustive one to be sure justice kennedy but after are not the procedure is subject to judicial review to see that the procedures were follow absolutely justice can we agree with that that's actually the way and that's what congress had in mind the idea that you've got to go through the checklist you can look at the checklist here it's very detailed an extensive the supplemental panix pages one thirty one to one forty two  until long as the court has considered those things the exam is the longest the ip process is considered those things that the procedure is as i'm sure you'll agree is geared toward something it's geared towards the provision of the free appropriate public education and then the  what it does is it sets up this is why i guess i can't readily agree with you our understanding of its procedures and we just have to make sure the procedures are followed because what the act does is it sets up an administrative process and it says when you have disagreements about the provision of a of a faith you go to this administrative process and what is the hearing officer do i'm going to just read you subject to another exception a decision made by hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education so that's what the dispute is ultimately going to be about it might be about some procedures along the way and maybe it will be solved just by saying follow the right procedures but often not often what the hearing officer is told to do shall do is to decide on substantive grounds whether a child has received a free appropriate public education just as we don't disagree with a lot of what you said that is to say that we do think that and raul is very clear on this that there is a substantive standard in the id a it's just some benefits standard not and there's nine different standards now that we've heard just in the last half hour which i'll walk you through in a minute but with that the petitioner and the government are saying so it's some benefit we do think there are substantive review that's what the provisions about and by the way that provision also says there can be procedural review that you are  is so low is so easy to meet and then you justify that you say don't worry about it because it's all in the process but this provision the idea of what here an officer is supposed to do and then what a court is supposed to do it's not all in the process there's a question of whether a student is receiving a fate so we disagree in two different respects number one the experience for thirty four years since raleigh almost every circuit both the government in p agree whether eight or ten circuits have been applying the sun benefits standard and that it's had by indeed their own reply brief to page one thousand admits and says look actually schools are doing fine so to the extent that you're concerned about some really low standard in the courts that's actually not what's materializing and you want to look at case after case on the c s a briefly page twenty four so it's three cases using some benefits standard just from this year judge politicians opinion and c b there's case after case saying this is not some you know totally minor standard it is the standard that you think it says some benefit but you you're reading it as saying some benefit and the other side's reading is saying some benefit and you don't and it makes a difference and i can reason i think that it's problematic for you is because wrongly just doesn't say some benefit it tells you what it is and it's enough benefit to keep track with great progress and if that's what the standard is that's certainly more than you know slightly more than de minimus and now obviously we you can't take that actual substantive standard and apply it in a case such as this but it does seem to indicate that there is a substantive standard and it's not just some benefit our position is rarely doesn't say that it's got to be grade level progress rather it says it you've got that the word appropriate this is footnote twenty one reflects reflects quote it's recognition that some settings simply are not suitable environments for the participation of some handicapped children not as a term of art which concisely expresses the standard found by the lower courts the quality standard that is to say i think you can read there are lots of different ways of trying to understand what the statute means but rally said the way for the court to understand it is spending clause legislation that is the state and to read into a contract and they need to know the terms of the deal and to the extent there is any ambiguity i think rally was very clear in saying it is just some benefit and that is a natural thing it follows from the oh i think that there's a little bit of ambiguity in that but i think it's a lot easier to administer that question because a question you know just ginsburg let's just say there's a way ordinary english works if i have a duty to benefit you justice ginsburg if i give you no benefit i think courts can easily review that i've given you no benefit i falling down on my duty now if i've given you some benefit i've met my duty to benefit you but i don't think i  much and that's why you get the ambiguity the second thing that happens is this is amended so what we're doing is going back and looking at those somewhat ambiguous words in light of this that was amended you know when you look at the statute mended in the you do see it least two and maybe more places that that i e p is designed to be a statement that will produce meet the child needs to enable the child to be involved in and make progress in the general education and then further advance appropriately to words and annual goals to make progress in the general education so now what the  those words make progress and put them in a phrase which in fact i think with not much modification says look let's read what reilly said in light of these additional words agree that rally itself isn't bigamous as it's been interpreted for thirty four years indeed they can't cite any cases showing that there is any problem indeed the reply brief admits that page nineteen things are working just fine so the idea that there is like some need for this court to get involved in clarify rally i think you know there is no case law or anything to support that second the idea that the amendments somehow change the game i think is not nearly enough to be the clear statement that penn hurst requires i mean this isn't just elephants being hired ahead in mousehole this is all things being hidden in roman that mouse holes i mean this is you know and just listen to the things that he had to point to with subsection d for two and things like that ginsburg we disagree with that we think more than de minimus which is what almost every circuit is using right now has worked and it follows naturally from the some benefit language in rally now you might disagree pla some benefit to more than more than de minimis we think it means the same thing and we think there's a long history of experience with this showing that it's working and returned just this prior to a point that you had made before it took something some concern about the standard that's really got to be up to congress if this court were to change the standard you know it would invite all sorts of litigation and just look at what mr fisher said as the chief justice started he first his petition started with a substantial equal opportunity standard then it became in his merits brief equal opportunity standard then in the beginning of his oral argument it was quote tailored to achieve at grade level what goes on let's say that during the school year the school districts  districts send someone to work with the particular student in this case and they send her there for two weeks she goes around and that's it and that's all they do that's some benefit better to have the person there for two weeks than not at all but you wouldn't say that satisfies the stat it does not as their brief explains there are two different provisions in the statute fourteen fourteen b r c five a which explain that the benefit from special education must be quote continuous and cedar rapids actually said that it's ok so you just change the hypothetical she's there five minutes a day it and it get you know five minutes a day i think wouldn't meet the diminished standard that is that is that itself is not a significant that is not a i guess it depends somebody somebody who can tell us at some point whether it's beneficial and yet i think most people would agree that it well i mean are you saying that the judicial review is supposed to be whether that's de minimis or more than de minimus and they're supposed to say well a half hour is is is good and it's not de minimus but that's all you have to do mr she just i'm saying two different things one is yes ultimately if we got there that it would flunk substantive de minimus review but you wouldn't get there congress's hold judgment here was to put the emphasis on procedural protections in the act and they bolted them in ninety seven in two thousand and four and as long as they could shine a light by creating an i p team process where they trusted teachers and they trusted parents who are highly incentivized to come up with your putting a lot you're assuming that the procedural process will yield significant results what if they do the whole thing you know we have a hearing everybody comes in we bring the expert in and the expert says well you need to have somebody there six hours of the day to help the child learn and they say ok that's that's the procedure we listen to you in fact we're only going to have somebody there a half hour and i am assuming that it is which is what rally itself said it page two hundred six of its opinion that that was congress's judgment now i agree you can give me a hypothetical which says that in some case the procedures aren't going to work and there's going to be a bad result and note the system is perfect not even a judicial system is the error correction rules of this court recognize i think the question for the court is should you kind of rejigger the statute and impose a new standard particularly that's not exactly what you had to do excuse me i am not sure i understood your answer the chief justice he he had a hypothetical where you have the hearing and hearing makes a recommendation recommendation not following what result if the recommend and i thought i heard you say well the procedures were followed that's good enough if i may have misunderstood i thought tho minutes of service is a thing if that if it's not followed everyone agrees there's judicial review that the ip is essentially a contract or brief cites the provision which says that you can come in and force the ip i don't think there's any disagreement about that i am so the hypothetical to be about some really lul level of benefit in our point is rally says there is some benefit standard that has been interpreted in court after court to actually have bite say brief cites three cases just in the last year alone there is some baggage as mr gorenstein says but the really important baggage is actually what this court said in cedar rapids which is that meaningful access doesn't require a particular level of education so we have we have now we have two words you mentioned they are in over cases as was just pointed out those words some what is it some prose some some benefit you could say some benefit or you could say some benefit right now that's an ambiguity and as you point out most courts of interpreter i think it's the correct thing they've said benefits ok and you say there's really no problem ok there's really no problem but there still is a problem with the language and a anyway and say look at these two words of ambiguity and we think we should interpret them in light of the e p requirements which are pretty close to what the s g suggested just as gray don't think that there is some problem in the lower courts they're not citing cases that show that there's some parade of horribles akin to the hypotheticals that we've heard in congress's judgement was that the procedural protections will do a lot at the front end to avoid that problem there might be some situation at the back end but that's where the systematic systemic requirements of the idea of no child left behind are so important because what they say is that the department of education can cut off funds can redirect funds can require annual reports all sorts of things happening and indeed annual reports have been required since two thousand and four to congress congress has never changed the statute in the way they want a substantive standard change you know in again their own reply brief to page nineteen in the estes brief it minutes the standards generally working teachers are teaching to the top what is frustrating about this case and about the statute is that we have a blizzard of words and if you read them literally it's not clear to me that they mean anything different that progress to benefit i don't see how you can have a significant it's something that's one that you know so it's really what everybody seems to be looking for is the word that has just the right new wants to express this thought well we think that you should look to what rallies did here which is to say the word is some benefit and that actually follows from the text of the statute itself there's a long presumption justice alito against a minimalist starting with wrigley which is courts it applies to all statutes so we think our standard comes from the text but there is no canon about significance or quality or anything to some benefit and significant i think it's quite large that is you know you know a think it's straightforward so you know basically i think you know if the court is to ask whether there is some benefit as i was saying to justice ginsburg in my hypothetical you know that's a pretty easy question is have i benefited has the day has the school district benefited but once we start getting beyond that to significant the court house to ask both was there some benefit and then was that benefit significant and i can imagine of july the abuse about what is just say some benefit it's said that that benefit would normally allow this the student with the disability to keep up with his peers in a different gr is soon as they say that you appreciate that you're dealing with simply more than just some benefit i mean that's a significant benefit significant significant meaningful whatever it's more than simply that suggests that you can't just look at something and say aha here that was helpful that was helpful because it's the whole package has got to be helpful enough to allow the student to keep up with his peers or she just i don't think that's what riley said when he used grade to grade i think that all the grade the grade to grade was just to say procedurally they've got to consider that and make sure that for example a high school kid isn't put in first grade but i don't think that's part of the test and several times riley rejected this idea that there's any sort of level of well how do you know i'm position  you have a passage in your brief on page forty seven which says and i must have the goal of advancing the child in the general education curriculum and to the extent possible enable her to be educated in the schools regular classes and to me that sounds exactly like what the chief justice just said that and i asked to be reasonably calculated to do those things and if it's not then so i think again it's just a procedural guarantee that they have to think about and consider grade level progress it does not being sort of substantive standard guarantee yes the id has lots of procedures in it but they're all geared towards a particular substantive result and it's that substantive result that's the focus of the vote the administrative process and then judicial review of what comes out of the administrative process i don't think so just kagan i think all that those standards say is what must address not how and i must deal with them and so if you look i think the second circuit recently in a case called elo versus new york city just a couple months ago decided basically went through this and said stan the fourteen fourteen standards like that or checklist you've got to consider grade level progress and things like that but if we consider all of them and we do none of them that's just fine that's the big congress's judgment was the process and this is something that happens in  if you consider everything but do nothing that's ok no because there's still so if you do nothing then you haven't provided any benefit and so there's still some substantive bite in the standard of rally itself what we're saying is in the context spending cla legislation you can't do more than that and require something significant and the reason justice kennedy is once you start going into significance is point out education is the most one of the more contested areas in our society parents have been known to disagree there's more acronyms about lawsuits about this newfangled theory or that newfangled theory or thirty hours versus thirty five hours being significant and you get into a huge morass what rally said citing san antonio vs rodriguez is that that kind of thing in the educational context is not where federal generalist court should be now i suppose you could say maybe that's not the right policy maybe you know this is something that should happen courts should get involved in this that's really got to be a judgment for congress to make and it's got to be something they say clearly in the context of spending cause legislation rally expressly said the pen hurst principle applies to this provision of the statute this is core legislation core a core requirement of the statute and they are imposing any number of different standards and so i understand that there are some policy concerns among among the court even if they're not shared by the might my friends on the other side because they disclaim them but to the extent there are by and more than gaming me don't sound like a clever and to me i think they are and i think that's what the circuit after circuit has said which is that some bad occasional benefit the language of page two hundred means more more than there found that the i e p substantively didn't meet the protections of the some benefit or merely more than a minimal stand we said that i mean how does this actually work i thought there is a statute fourteen fourteen before that it says you have to school district right and i e p then it says what and i e p is and one of the things it says i e p is it is a statement of the services etc based on p review stuff that will be provided for the child to advance appropriately and to make progress in the general education now suppose a school district writes a statement called an but it does not show that the child is likely to advance can't they go to the administrative thing and then go to court and say to the judge and look they didn't write what they were required to write absolutely so correct justice prior but what there is not is something in fourteen fourteen which says that they've got to provide a significant benefit or that they have you have something that makes progress in the general education  education but if you say some yeah this is inconsistent with well i don't think so i think it's got to be some educational benefit designed to get the general education curriculum  the wake of the many years this act has been enforced and these many individual meetings have there been documented areas of consensus as to certain standards certain methodology areas i mean you know people disagree about the most simple things about education what we want to we've gone know so well why don't we do we've gone nowhere but i think that worry is that of the rest courts into the business of deciding which philosophy is appropriate in take recognizes that there is a lot of disagreement and rally itself says this picking up on senator johnny versus rodriguez that the congress is judgment was not to thrust courts into these really highly very difficult considerations and if i could just give you one example talking about justice sotomayor your invocation of firefly so is absolutely right that you know once true went to firefly there was progress that was made but there was also a lot that was given up i mean one of the corporate purposes of the idea is mainstreaming and of course firefly is not a mainstream school so yes there were some behavioral problems that were addressed by the private but can i go back to justice ginsburg's question that i'm a bit confused of and about for the same reason  said something like well the the standard is is being applied with byte so i'm just going to do you favor assist a standard with byte we favor the standard that rally said which lower courts have done for thirty four years which standard with i have some bite it does we're not saying that be some light or somebody write it it is some educational benefit that's a language of rally and if you disagree with it congress and somebody said to you write a statute with and write a standard with bite i doubt you would come up with the words more than merely to minimize well but again i think justice kagan in congress is bite the substantive bite is only at the back and it's a small if we were to look at what the lower courts had been doing we don't see very many of these cases the lower courts see a lot of them if we looked at what they have been doing in general would you say that they are doing that they are applying the statute appropriately and consistent with a correct interpretation i would tend circuits are applying the more than the minimal standard it's working sometimes it has some by but to change it as justice pryor was indicating to my friend is it with eight million potential i three points your honour's to about the statute and one about the practicalities first as to the statute the word procedural has been used by my friend to describe the u p provisions but whenever pressed even he admits that the i provisions are enforceable in the way justice breyer described which is that plan has to meet the requirements of fourteen fourteen d and if the services on the ground don't meet the requirements of the plan they're in forcible that's a page forty seven a of his brief and threw out any othe justice alito is question what's the practice today pardon me what's the practice today do most courts use the more than timid in the stands yes that is the formula in most of the circuits that brings me to an important question on the ground  involved circle back to my other statutory point before on the court just putting aside take ten seconds putting aside the words are the outcomes appropriate or do you think the lower courts need to kick i think they need a kick i think the outcomes are quite scattered  think the only reason why you get some favorable outcomes is because even the courts themselves don't believe barely more than de minimus but i think you have a disjoint in my friend keeps pointing to the amicus briefs i think educators are by and large following the plan i'm sorry the  standard we propose and solicitor general imposes the no child left behind act in two thousand and four was a very important revolutionary bipartisan policy change and so educators on the ground are aiming high as they put it t maximize the benefit for our students and so you have a disjoint between what educators are doing and the courts and the reason they need to kick is because the very very very very very rare case that makes it into the court system is not being properly reviewed and that leaves the last point i want to respond to which is the fact that congress left this alone after rally what the court has said in rally and in honing in other cases the i d p rules are quote the centerpiece of the act but the centerpiece for health education delivery services  put forward if you look at page one eighty two of rally the i prefer p provisions were quite hollow they didn't have any benchmarks at all that has dramatically changed they now have the general educational curriculum benchmarks just as briers been referring to and we repeatedly referred to in our brief and i think mr chief justice you agree cannot be met under their standard and then that leaves the last little piece of the puzzle here which is a child who cannot get up to grade level standards we give you an answer to that question that is directly in the text of the act just as my friend demands alternative achievement benchmarks at the bottom of fifty two areas what is required and that takes you to seventy nine a which gives you the exact statutory formula so if you want to use that formula combined with a general educational curriculum a grade level we think that would be a proper answer to the question presented in this case thank you counsel the case is submitted