we begin with mr stephen that's great they met with our f b i related service providers met with her collectively three hours and forty minutes per week roughly a little more than ten percent of the school the rest of the time or it was in the classroom where they were for her academic where she made no progress so what we have is are a meeting only incremental progress minimal progress if you look worse approximately ten percent of the time that she was in school this falls far short of the standards set of the it is a different standard than what you would say to just before that because that's that's the goal the fact that their goal may or may not be met is not the same thing as the well the interest and your honor talks about us and what i was saying before it's a goal to make progress but there's nothing in the statute or anywhere else or commonsense that says that because you have a goal you're going to be capable of these supreme court made abundantly clear that progress is in the ideology says that a comparison of the baseline with the testimony of all of the witnesses shows incremental progress on some but not all of the goal so student progress will do little to remedy the pervasive and tragic academics a nation that probably congress that act as a quote from the supreme court's decision and so the a o'jays decision not to use progress as a measure of whether or you raised as an issue that the district court of the ale j applied the wrong standard under andrew f to the fact that it used only eight of minimum a standard which was pre andrew f is that there are going to be places where there is not progress and that that is actually appropriate given the steeper to be expected given the students condition and then we see like repeat is reviewing where there is progress where there is not progress and less and some things  it's only inconsistent if you take that sense out of context if you read if you go on to the next page said using lack of progress may not be appropriate in every circumstance because the factors that are present here and it goes on it one point says at the end of the year she may not be achieve percentages stated on her objectives it wouldn't mean that she failed to make progress but the findings undisputed findings of facts are that she did not make progress or academic and a rolls which were being addressed ninety percent of the time and she's lying to them in light of the circumstances in which undisputed bones of facts again are that she not made any progress towards his academic and payroll goals you know in your eyes i'm trying to sort of connect the argument that you're making what i understood you context of a very lengthy one of two mary lynn the opinions that looked pretty comprehensively r s situation so i'm trying to tie that to the argument that i extract it from your brief program where she had been a general education for fourteen and a half hours a week and that's what the ip said it moved her elder general education classes into this something special education class there was no ip there was a new one changed by the school ministry for judging the district  the mood generalized educational environment in felt that a more focused approach with diminished external circumstances in stimuli might be more productive in that and the reason for finding that it was a procedural violation but not a substantive thank file ation was back it was calculated to address problems that manifested itself is there some tension and some inconsistency because she says you know you seem to me she's taken out of a more generalized environment and given more individual attention ah going to be progress and we've already been there back through the language that indicated at some great length all the difficulties that your client faces were there can't be a guarantee of if the school system parents try to do the best they can come up with the program but it seems like to me we keep coming back to saying that there's no progress you're really making an argument of a guarantee i  i am not what i am saying though is that the school system was under an obligation to review a revised people in this job was not making progress that's right instead so that's that's what i'm really saying there's no guarantee but there really a guarantee that the school system is required to meet in the visor ip is appropriate including changing her place not you know which we had asked for multiple times change or placed into an environment where we thought she could make progress and there is plenty of evidence in the record including the school systems no documentation or of me progress when she was in kindergarten when she was in first grade she she shows some really unique problem solving skills she learned a hell of a lot of her parents cell phone and access a mr anthony court is too far in part to the educational expertise of local school authorities in addition this court has made clear that the factual findings of an l j are entitled to a measure of  they are the ones who are hearing the witnesses they are making credibility determinations as is common they are in the best position to find that neither of these two principals education which is the requirement under the id now and then the district court actually said explicitly when it comes to the point about making progress that just reports that the a l j findings of facts th same time may have independent determination of that we submit that actually this court has meant and the way that these two cases these two lines of basis are to be read in harmony is that recognise that this is actually in fact the next question of law and as we outlined in our brief everybody or circuit in this country says that that whether the i d p is adequate is a mixed question of law that one in addition we also outlined in our grief other errors of law that the district that we believe that this report may for example the district court articulated the requirements under under rallying as i was  that progress may or may not be appropriate i'm sorry you're disagreeing with my premise but just hypothetically assume that the l j applied the right standard if that is the case doesn't matter if the district court applied the wrong standard given that our review has to no so i think that the minimal progress that the a r j found even assuming she looked at progress appropriately it wouldn't be the appropriately ambitious challenging objectives that the supreme court continuously emphasize context because progress is going to depend on the circumstances the context that which will change from which may not be as ambitious in some circumstances reasonable to be as ambitious in some circumstances of no absolutely and progress there will always to pound a new goal all depend on the circumstances of each individual child but the supreme court and her repeatedly emphasized every child should have the opportunity to meet challenging objectives and so when the l j said explicitly she made some progress towards very basic goals that seems to run into conflict with andrew explicit saying no no we don't want very basic also continuing year after year where they make no progress which is what was going on in andrew in which the district or armor man found it was insufficient and light and that that is sufficient well in andrew the language reasonably calculated is used in evaluating the ips that are developed for students with disabilities because while the desire is to provide an outcome for students with environment requirement when our app was moved gone having her special education services and in general education environment to what was called the intensive communications support us room or the i se as it's referred to in the record comes on i'm in i maybe you can help me out i am so i'm confused by that claim because i thought that parents are and that their objection all along had been that she was spending too much time in the general pool which would give access only to disabled disabled peers i was are was my point any it's because if it's a it's very hard i have the same sort of their little difficulty because we if we know anything i would if i thought it was the goal of the i d e a use to mainstream disabled children into general education classes in this seems to be  we can we move on to the procedural violation because of the elgin the just record found that there was a procedural violation when i was unilaterally change without notifying the parents and very substantially so but they went to say that under our existing case law it didn't really matter because the i d p was substantively reasonable so my question is why that case law hasn't been abrogated by this two thousand and four and then in which seems pretty clearly to say that although usually when you're considering whether if there's been a violation of the free appropriate public education you look at substantive grounds but there are three exceptions to that and one of them is for procedural faith here they didn't say there's been a violation by now we'll use our equitable hours to fashion the right remedy they said there's no violation because the the plan was substantively ok and i just don't see how that can be reconciled with the statute or law there had been no violation to remedy in the first place so we think there was a violation i totally understand that there are questions about what the right equitable remedy would be but but no one has considered that should we send it back and let someone else take a the first two things to say about that one is that neither the algae nor the district court thought they had any discretion under our prior case law they they just thought if the ip is substantively reasonable there is no violation period because that's what we set until the statute was inactive and also the such it says the first part of the statute says that subject to these exceptions a decision made by hearing officer shall be made on s acknowledging the fact that that the courts go through all sorts of equitable considerations in the term in whether or not ultimately around it is you on the other not that happened in this case do you want us to do that in the first instance wouldn't be more sensible to send under the bill is in and of itself a determination of whether a remedy would be because the standard of the itas whether the child has been off or what their substantively entitle to know for that the law we don't know that we just we don't exactly that may be your response but it we don't know that that's we have to assume that that's the analysis in which the that the  which say that as a general a decision made by a hearing officer should be based on substantive grounds but there are three exceptions cases in which allegations of a procedural violation entirely free from ambiguity either way weather and individuals student has received a substantive base under the idea that there may be circumstances where the court would want to offer some sort of injunctive relief well what about i mean i read the statute differently i guess  as saying that usually if the item he is substantively out of which there is no faith by elation but there are these exceptional cases where there may be one simply because of the procedural violation and it looks to me like  performance here the parents had no opportunity to participate in the decision making process because a change was needed unilaterally without consulting them and there's no evidence in the record as to why that happened but you denied for some period of time and then the remedy is you get sort of an extra four months tacked on to when the student becomes twenty one all over starts compensatory services to remedy a temporary violation of a student it's a matter of the pair is that period before the eye was revised in december that the parents were participating so the question i'm not sure how compensatory relief works the problem did that i guess i read the statute a little bit differently because  it does not seem to me necessarily unreadable that the i j could have decided that looking at the nature of the violation that there was no harm from it there was no significant harm from that four month period the parents were pretty clear for the entirety of this process about the only thing that they thought would be acceptable in that was the pr souter that that particular denial would not have had would not have given them what they wanted what they had fairly consistently said is the only thing they w so the problem is more that the a l j didn't walk through its analysis in that regard yes yes your honor so i'm not sure that was a question or very clear but i guess i read the statute as having a little bit more as necessarily having a little bit more flexibility perhaps than my colleagues right which are and i'd like to point compensatory education or in t v in this case and in this case the the palace were seeking a perspective placement going forward placement of benedictine school there is no other damages extra summer school anything like that it's either either the big either the benedictine school or not i believe the  judge in addition i think it's worth noting you could read the statute is simply saying that there are three instances in which a procedural violation could be a substantive violation but that's how i read the statute your honor and i read the statute and the way that the below holding fits into that the spreadsheet is that is this court's guidance on how district court should be exercising the of other circuit court cases that i could cite you from the second circuit the eleventh circuit that say we used to do it this way but check out the statute it turns out under the two thousand and four amendments you can have a purely procedural violation of faith even if there is no at on the be that the interference here was not that significant given that the change was only one of the parents had been asking for all along your honor that the change in this case i would say was unique in that respect  class that if in point of fact heaping r a in the placement that was listed in her eye without changing it would have deprived her of faith because the schools no longer would have had a reasonable that was out or did the provider say he knew the interfering behavior is there anything on the record about why the school didn't just contact the parents and this is it this does seem like such a fundamental part of the statute that you keep the parents in the loop so what and you know i don't need to add another i and he needed it was asked this practice became more prominent based on her interfering behaviors by december yet it was clear that significant and pediment apparent parental participation but that it that's over it's been cured how do you what's the relief for something like that and why would it be going forward a private school placement how does that address opinion it should be something else side of the general l side of the whole school system because this is the best program they could offer they don't have anything else that they can offer the street so she doesn't need to be but how does that internationalized that if the harm is that the parents were cut out of the process assuming that that is an independent ground for saying that for this for my period there was no faith no schools not offering a free appropriate public education how do you fix that by now two years later doing  private placement how does that address the harm given your program by giving your program where she really can make that addresses a different harm and i'm assuming for purposes of this question that the only harm we have in front of us this procedural violation of really parental rights to be involved well there's there's my question which is if you would just assume hypothetically just for a minute and i understand that you think there are other violations but just hypothetically if there was one violation and that violation was the procedural violation of the parental right to participate for appropriate education that isn't responsive that's a response of now the question is it that the violation is the parents involvement or at least it wouldn't be responsive to what to my i think we have the same question the problem is that period when and it sounds as though it wasn't an action it was undertaken in one day he knew there wasn't just a decision to pull out of the general education environment thing into the more isolated environment you cracked it was incremental and because it was incremental and the parents were not notified or  would be a relief so i think in light of the fact that you know there are going to be plenty of parents who don't have the resources to do that sort of thing every relief would mean doing the same thing as a parent you know a lot of the place their child you know and that is saying this child needs to be