again good morning may it please the court under marcus for the appellant k m and her family her mother and grandmother are here with us today i'd like to reserve three minutes pleas for rebuttal at the heart of this case is the importance the i has placed on two things first that school districts properly address disability based behaviors and second the school districts don't segregate children in distant facilities because they are disabled without first determining that they cannot be satisfactorily included in their neighborhood school k m asserts her behaviors and needs were not met from march two thousand and thirteen at which point the ale j n district court agreed that she was kept from inclusion with general with the general population even at lunch and recess due to behaviors which included screaming and leaving her class and the inability to maintain her attention to task the elgin district court noted court preserving all kinds of other claims is staying for the proceedings right yes or five different claims you have yes then are those claims not just saying in the district court yes there stayed pending the outcome of the i judgment usually means the judgment that determines all claim to all parties who are to respond to that but well the district court's determination on the i d e a claims were definitely a final judgment determination on what you another kind of procedural argument it seems like you may have waived certain claims with respect to the first issue on appeal and that is whether the district court bill to provide k m pay for the twelve months prior to march two thousand and fourteen and the four months after november two thousand port the only time well let me ask you because it peers to me the only time period litigated in the district court was september two thousand and thirteen to march two thousand and fourteen is that correct i'm sorry september twenty third teen you said yes no that's not correct actually the  and i'm remiss because my hard copy so i can say to the record were misplaced with my luggage getting here but i do have at the district court level in our briefing we did discuss the fact that the determination with regards to the march twenty third teen i e p were remiss because they did not apply the same rules that she did when analyzing the march twenty the the ale jan district court committee clear error in excusing the district's failure to assess k m's increasing behavior for over a year number one by interpreting california law at the time to only require assessment when a child's behavior became assaultive or involved property damage while ignoring stated federal law which required assessing the child's behavior problems as soon as it interfered with learning and thereby violating the supremacy clause the next clear a law was interpreted california law at the time to only conduct a to require only to only require conducting assessment of problematic behavior once and i e p team had met again ignoring the federal mandate and i e p team meeting be called or that the disc or that the behavior be assessed as soon as it was determined that the behavior was interfering with the child's education and then finally excusing the school district from assessing k m c increasing its behaviors for over a year as the behaviors might get better on their own there simply is no legal basis for excusing the district's addressing her behavior and till the next scheduled i e p and neither th district court nor the a l j cited any what was that unreasonable if this is the time period you're talking about i think you're talking about what why was that unreasonable for the district to see  progress after the two thousand and thirteen incident the choking incident well there's multiple factual reasons and the basic line is that the e p really didn't change much the opposition has made a point to show out that there were new goals but there weren't any significant supports or services or any measurement of any supports or services that were offered to support new goals so in essence they were offering the same thing i think the l j placed a lot of importance on the fact that there would now be a permanent teacher in the classroom but most importantly the statute does not provide that you need to assess and address behaviors in a systematic manner unless you think they might get better on their own but it seemed like the l j noted that in december of two thousand and thirteen began to communicate much more on january tenth two thousand fourteen the district sent k m parents a progress report describing camps progress on her goals or her communication writing reading math and social motional goals so i thought seems like one of your main arguments is that there was some delay in not putting amending the plan or getting together for another plan or that the district d and i'm just trying to figure out why i mean how much of what the district did here was try to assess what how the student was progressing and i'm trying to see how that was unreasonable it was reasonable because what we have is anecdotal assertions that for the snapshot in time during december her behaviors were better other in other parts of the ale days decision she also knows that the child at this point was screaming crying was hitting kicking and also required segregation she shouldn't it was the ip team even at the march two thousand and thirteen i had already determined that she shouldn't be integrated with other children because of her behaviors so again once those types of behaviors are being acknowledged regardless of what the california statute said at the time the here today at this point what we are seeking is some compensatory education some instruction to make up for the two years period of time that she was not allowed to attend school or during which she attended school and was not able to focus or attend a task because she was running away from the class or she was spending the time kicking or screaming and alienating herself from her peers with her unmitigated autistic behavior in the two years you're referring to would be from roughly from the march twenty third team through march the entire period at issue the statutory period meaning roughly from march twenty third teen to march twenty fifth teen and another thing that was a real error of law here was that the a l j and the district court considered timelines according to when and i e p was held as opposed to what's necessary under the law which is when a child demonstrates that they're not responding positively to the ip you're supposed to change the i e p i do really quickly with this visit say what the within how many days i mean  well the assumption is immediately as soon as it's determined that the ip is not working to mitigate the behaviors the team needs to get together and assess how to change that which implies assessment and under this court's whole holding intim absolutely absolutely requires assessment it should not just be determined according to a thought that maybe if we get a new teacher her autism will mitigate itself i just would really like to very quickly discuss the errors with regards to the least restrictive environment the error it was clear error of law where the district court improperly upheld the l g s determination that the appropriateness of the proposed stockdale class placement could be proven without first analyzing whether cam could be properly supported in her least restrictive placement coming through her neighborhood school the statute is really clear that the least restrictive environment for a child is her neighborhood school this little girl had the right to go to her neighborhood school and be supported with the behavior intervention plan or behavior support plan that the whole i e p team had not only agreed was necessary for her but conducted for her it was analyzed for her home school placement and then once it was finished the i and there is no determination other otherwise the ip team refused to consider allowing her to use it in her home school instead they propose stockdale i would like to reserve time for  good morning honors may please the court my name is jack clark and i am co counsel with down and we represent the appeal the hatch be unified school district i will be speaking to the court for approximately seven minutes to address analysis in context much of opponents argument seems to make linear assumptions in terms of education who's best prepared to address the issue that just  state your appearance thanks for the catch be unified school district it's our position that there was no final judgment and in light of the fact that what you're dealing with is a new kid the same nucleus of facts that stem from the id a claim and these other claims relating to her issues brought up with the educational programming we believe that it is improper to have an appeal at this point there should be a final judgment on on all issues because everything is so so intertwined or if you're in an object on that basis in your brief  these issues are so factually intertwined that i don't see how there could be a final judgment with regard to all issues presented in the other in the other arenas she's bringing it now at the time there was no in the original administrative hearing there was no issue involving a denial of faith for an appropriate public education by failure to call an i p t meeting in a meaningful time also if you look at the administrative law judges record part of what is shown is at the time after the student was attacked by a fellow student there was a big flux of who the teacher would be it was an unstable environment if we look at the behavior behavior can be and it is contemplated under the idea a behavior can supports are not just a behavior plan but can be imbedded through strategic teaching  accommodations that are implemented classroom wide there was no chance until they had a permanent teacher to see if the embedded behavior supports would have a positive effect or negative effect so in that sense i believe the the ale g s finding was highly supported by the record so after the august two thousand and thirteen show incident what steps did the district take to address cam's growing behavior and well the first step is they found a permanent teacher who was credentialed i believe in the record the teacher did try to work with her they  did give her aide support if we're looking at the period from the choking until march now at the march i p i believe the judge was correct at that time and it is well and you could look at her progression in total another thing to keep in mind and this goes into least restrictive environment so the markups of the november i guess period that's what the district court have found to be where she was denied the papers that correct the well the denial faith was at the march meeting when they did not agree to implement a behavior plan at that time there was no allegation that faith was denied  there was no issue brought forward by student at the time that faith was denied by failure to call a meeting and i would remind the court that at the administrative level in due process cases the student gets to frame their issues so  that what she's bringing up now is her argument was never litigated at the by the administrative judge or the district court because now her theory has changed and was not originally brought before the tribunal but if i may before i give time to co counsel one think the court should keep in mind is the student's behaviors were not the only reason for the stockdale placement her own experts dr gilbertson and dr hayden recommended a uniform categorical classroom of students with a like disability a teacher with autism experience implementing discrete trial training and that was taken from students own experts at the  ministry of hearing that placement did not exist at the school district within the boundaries of the school and this court has found before that if a child needs to be translated  you know under the pool ah case the ninth circuit has found that two hundred fifty miles is appropriate if that's where the services are we're dealing with a rural school district in a rural county that's approximately the size of new jersey  in the record it was noted that general education students in the district sometimes ride within the district boundaries a bus ride of an hour so her transportation was not out of line in the geographic context of the district as to what was available with regard to the claim that the district they held to consider continuing the child in her neighborhood school is that an accurate characterization of what happened i don't believe it is and i don't believe it's supported by the evidence because there is more than one need driving the stockdale decision there were the behavioral needs and it's quite clear from the record she has very intensive behavioral needs but she also had processing issues other issues that required a very structured environment curriculum  broken down in a very particular away way students own experts conceded she needed a placement with an autism specialized teacher all of these things contributed to the decision to move  it's not just the behavior plan is as opposing counsel tries to linearly assert you have to look at the ip in total and i think the ala jay did a very good job of that at hearing you're dealing with a hearing that has over seventy seven i believe seventy pages of very detailed findings and a very methodical district court review of the errors that were alleged at the time this is a case where you cannot just they didn't try the you know that it it's not a case of where you did you can say the district didn't try behavior plan they should've there were a lot of components that were required for the student's education plan  the behavior being one of them and then i do not believe there's any case law or or statute that supports you have to try it in the home school in fact if you look at the reg it's  thirty four c f r three hundred one hundred six and i believe it's a c or even i apologize unless the ip plan specifies otherwise it shall be the home school for disabled students well this was an ip that specified otherwise to do a high level of need and if i'd like to give the balance of my time if unless there's any direct questions to me classroom would not be appropriate those reasons included the visit in process and information working memory attention and then she went on after a very detailed analysis to make this point there was no evidence consider the alternative school because i mean that's one of the issues was the to me in two thousand and fifteen your honor it was in february in two thousand and fifteen the court noted that the administrative law judge noted there was a detailed discussion concerning that and then it was offered in two thousand and two thousand and fifteen when the child to move from school and was at the appropriate time yes i because it seems that that's what's being challenged and i'd like to know the yes it was because the school had been working very diligently assistance or tried to make a success from the general general this occasion environment that was what the law required and that's what the school did my final point on it in there and the few minutes i have is that there's been a continued effort  both the administrative level and the district court level to watered down shaffer v waste a two thousand and five us supreme court case which said that the party bringing the action has the burden of proof  the district court made a complete legal analysis of this which was correct and in fact the decision which was relied upon by the appellant the l b versus ramsey case of the believe the third circuit made a detailed analysis and said the shape of the we stood is still good law i would point out that they are now raising for the first time and we would ask the court to grant our motion to exclude the information that was not raised below and that is on file we did make the point that education code five six three four six does not in any way which simply has a do with the obligation school districts when there's a need to implement an ip to implement the ip within a reasonable time that in no way by its by its terms under any form of statutory construction could suggest that the california evidence and no finding that implementing the behavior intervention plan that had been designed for my client had been considered for her neighborhood school before moving her also it was never an issue for  that full time integration into general education be compared to the stock deal placement the detail j and the district court both both misapplied rachel each to a fact scenario not at issue in this case  my client merely wanted to stay in her neighborhood school have a b aide support and be integrated and provided with a new behavior plan or are you saying that the agreed upon plan was available in the neighborhood school it was designed a behavior plans are actually an analysis of the child's environment as well as the child's behavioral responses to the environment the entire plan was designed to keep her in her neighborhood school and once it was finally completed the district said no she knew she wouldn't be able able to even try it and her school actually they didn't even consider trying it in her neighborhood school she went her parents went to a series of i p s december january and february december twenty fourth teen january and february of two thousand and fifteen as of the first day they were there the the assessments that opposing counsel referred to were discussed then the assessors who had done all the analysis of the child weren't invited back to discuss placement the only placement that was discussed was shipping her off to the remote facility  another district isn't there evidence that the people who are participating in the not u p process talked about how the child's needs could not be met in her neighborhood school it was it was the position of the district that her needs could not be met there correct i think it was definitely the position of the administration it was not the position of the family or the people who had actually conducted the behavior intervention plan to be clear you're not suggesting that the administration did not consider the feasibility of keeping her in her neighborhood school i am actually suggesting absolutely so you think that they simply asserted that her needs could not be met there without even considering the question exactly and one thing that's really smoke and mirrors here is that there's a lewd the record alludes to the consideration of the continuum of placements what happened and there's no evidence to the contrary is a list of of placements vailable in the district were read from a document and none of them were analyzed for whether or not those would be suitable for my client and particularly not with any additional support if i could just point out one more thing i guess but you said that that didn't satisfy i guess the rachel  with the first rachel age factor if i understand your argument that the district failed to compare the benefits of the general education costs was was supplemental and services no i see your honor let me correct that because it's a really important thing here what the district court in l j did was they compared my client being fulltime in general education and being sent off to stock deal all my client wanted was her special day class some integration into general education and her home school with her new behavior plan and appropriate behavior supports and not to be sent off to a remote facility where she would lose her home a b a program providing treatment for her autism because it was page thirty three of the decision noted that in january happened was she read a list of placements that the district had available there was no analysis of how my client could be supported in any of them and it's important  opposing counsel stated that our experts dr gilbertson and dr hated and described the placement just like that in stockdale homogeneous small autism classroom it's very important to know that they provide they first of all they recommended that for a part of her day and dr gilbertson our expert was the only person at hearing or at the ip meetings other than k m's mother here today who had ever seen both placements there was no analysis of how to keep her in the neighborhood school so your own experts did say that there was a need for a structured environment a structured environment is a very amorphous term and in education they have a lawyer they've described their own program and coming in says a structured program embedded programs and in fact that's their excuse for not drafting a pep behavior plan earlier that there were imbedded supports in the classroom it was a structured setting the districts certainly just cannot be justified in not assessing my client and not serving her needs because they had a chaotic classroom that exacerbated her behaviors and then once they got to putting together a behavior plan only offered to send her elsewhere  purposes of clarification is it your position that a categorical classroom for students with autism was available with cummings it's my position that no and it's also our position that the first under that first her least restrictive environment had to be considered second there was no evidence that a categorical classroom was beneficial to her when the expert from the county was asked that question and it's in the record and referred to all he could say was that it was easier because all the kids could get the same programming that sounds like it's appropriate for the district not the individual needs of my client that was never assessed so in this case the family was not seeking a categorical classroom no and it's contrary to all the science if you stick a bunch of autistic children who are non communicative together they don't learn to communicate and they don't learn typical behaviors it's it's illogical are you claiming that the dysart was obliged to place kenya in the regular general education classroom for academic never no no that was never never never our case again the district court  be at the structured classroom setting of stockdale the structure just like her special day class in her neighborhood school which is where she sought to remain thank you thank you very much thank you for your or submitted thank you