begin my argument by pointing out three givens that will set in context what we're here to decide today number one the supreme court has now explained what shape a free and appropriate public education means for a student with an intellectual disability does not require them to perform in the same way or make the same progress as a non disabled peer rather they need an i e people with challenging objectives that will allow the student to make progress that is meaningful in light of their circumstances in this context meaningful progress is usually measured by the i e p goals and objectives to congress has mandated that students with disabilities be educated in the least restrictive environment l r e that means in this context that we look at the ninth circuit's rachel age standards three the code of federal regulations designed to implement the congressional policy of inclusion require that as with a disability attend the same school that they would attend if they were not disabled the home school the neighborhood school in this context they will go to their home school unless the e p provides unique services that are necessary for faith and are unavailable at their home school now so i just know this is a very unusual case i have a number of these over my years as you can a mansion recist the first time i've ever seen parents argue that the school was doing too much for their child usually the argument is there are unwilling to give us the services there are unwilling to give us the amount of time that's required for our child our it just seems weirdly  backwards doesn't mean that you're necessarily wrong but i just it seems highly unusual let me respond first of all the parents are not arguing that they're providing too much the parents are arguing that this child is making appropriate progress in l if his circumstances progress that a developmental psychologist testified in affidavit was appropriate and meaningful it well there's a there's a there's a quick evidence on both sides of that question and i guess that brings me to another issue that i'd like you to address it seems to me that the evidence that's in this record could support what the district has called for but it doesn't require that it's not you know the only evidence but there is evidence to support it and more that's true what sort of deference if any do we give to the factual findings and the judgments of the district where there is evidence to support their recommendations in the law is very clear on that in the n l case and the timothy oks if the a l j did not look at evidence that was critical to the analysis or had the incorrect standard then we do not give deference and well that's a roundabout way of saying that we know normally do give deference isn't absolutely ok here it's important to remember temporally that enter f came out after the administrative law judge is finding and literally a week before my brief was due in the district court and in light of that we need to focus on what is the relevant factor here honor says that there are two sides to the facts in this case and we would submit that that's not true under made us versus social and county of san diego versus see how when we're looking at whether or relating to the actual progress reports of the i e p mandated be issued to measure progress every quarter and on those goals your honor this student made progress on one hundred percent of them on hundred  and there is something wrong with a situation where a district steps in and unilaterally seeks to move a student from his congressionally preferred home school where he is making progress on one hundred percent of the goals and to claim that we can do better a standard that this court rejected you know for me rachel age that has never been the standard and rest assured if congress tomorrow sought to change the standard to a better standard or districts were required to play students in the best placement where the most progress could be made parents would heal the day tickertape parade in d c for congress but that isn't the standard easement the law congress has stopped at a l r a standard which districts support students special minutes are spent one on one because there are no other children with disabilities similar enough is that correct so far well this is time one on one at least  interaction with other children because the skills classroom would be the replacement for one on one time well he is is that true is that the replacement for the one on one minute's correct the skill signed to replace the one on one time the minutes in the resource room but it's important if you look at please easy or three thirty eight this is the september kindergarten and then the reason the student was in the resource room one to one was quote to limit distractions in order to benefit more from the specialized instruction they could have brought in other students your honor and differentiated instruction just like he was getting in the general ed classroom where he's in just the limiting distractions were distractions for our am or distractions for the remainder of the student for our end is if you remove everybody we can focus on pacing exactly at the pace he needs providing exactly the interaction and instruction that would benefit him and provide quote more benefit so they determined based on his needs the needs are a need for repetition and the need for intensive instruction that's what his ip provided for in the resource room would be better for him wonder one and now they want to move him with other children who would distract him so one could argue if we wanted to look at what was appropriate for him based on his i e pete that it was more appropriate if that was the standard but putting him in there does seem to be closer to mainstreaming when you can put somebody with other students as opposed to having the one one but he's with other students all day in the general education classroom he's in small group in the general education classroom all that the testimony from the general education teacher was that he's in a reading group with others who needed supplemental instruction in the general a classroom he plays math games doing this is kindergarten so you know they do math activities that are games he's when they're doing writing he's doing writing the problem here is because they have engaged in the sleight of hand by calling it a change of location they don't want you to look at the where they want you instead to look at a math computation and this is the danger of this decision if you look at this i e p where the didn't understand your continuum because at least in this case the new school that is record by the different school that is recommended is not per se a restrictive environment the skills class i preference but not of requirement or do you see the word require it is required unless the i e p has unique services that's the letter to treat case that o sets interpreted that language as requiring placement of the homes will unless p provides a unique services that have been centralized and those are hearing impaired cases and things of that nature and here is the skills the skills classroom is not available at his current school because it is not available and so if that is the most appropriate setting then the unless clause of that you are relying on is met no because the other last clause looks at the type of services your honor and whether they're unique and they've gone to great lengths to explain and we agree that the services would remain the same basic reading basic math basic writing that's available at every school including his home school the player not in a social environment not in an environment where he has the added benefit of being with other students but his i think he does not require that he received his supplemental instruction in a small group his i e p c according to your three thirty eight s that it's better for him to get the specialized services one to one he get small group with typically developing peers all day long he's i e p requires something different intensive individual services for basic reading writing and math and whether you want to call it a location or a placement the critical factor here is the why importantly no one contended that he wasn't making progress they've admitted he was making progress mi opening statement to the l j said he's making progress what law well as you know that supreme court says some progress isn't necessarily enough nobody made the argument your honor here that this was minimal progress they do now in the briefs but look at the record he made progress on a one hundred percent of his schools one hundred percent and we're talking about goals that are uniquely tailored for him and what were the teachers concerned about they were looking at his it's morning your honor may it please the court aaron waltz on behalf of the gilbert public school it is not about trying to do more or better for the student it's about trying to provide him with a meaningful educational benefit and there's two distinct issues as there has been since january twenty sixth teen i p t a meeting two issues both of which the district has asked to implement regardless of the other twenty additional service minutes for the student he is not in general at all day not today never has spent he currently receives one hundred and five minutes a day of specialized instruction the ip team proposes that that is increased to one hundred twenty five minutes the second proposal from the i p team is where to implement and the just stripped has said they would like to implement his  e in the skills classroom he does not have any peers currently in the resource room his i p t does not call for a one on one instruction it calls for small group and he does not have prog new to peers that the resource teacher could use as peers in the instruction of the student that is what the testimony was it hearing we would love to have him with other students but there are no peers for him so the idea that it's one on one because everybody likes a thought way is not what the record reflects this special education teacher testified extensively about how she thinks he will benefit from being in the skills classroom that he needs to have the infusion that that classroom offers show as we look at both of these issues location b placement this court is very clear in how to decide whether or not to change whether or not to allow a change if it's location or placement can we implement his ip is written yes yes we can because service minutes are separate so you deny the service minute increase that's fine him we implement his ip as written yes we can the district are the educational professionals that we call want to make those dissensions and this court has said we're allowed to specialize we're allowed to have specialized programs we can aim higher than some are good nuff for the kids under our  cindy moran of there was a specialized teacher at a campus five miles away and the district wanted that student to go to that other school not the neighborhood school but it is our job to make sure that he has access to all of the various things that make an education important so the edge of the school took into account transportation certainly and if he requires transportation to the school five miles away they'll provide transportation to take into account impact on the family to the extent that the internal runnings of the family are part of our decision making certainly and there was a point when other options were considered as far as bussing back and forth for a half day at his neighborhood school versus a half day at skills but what it came down to was the district believes he is not obtaining any benefit at from the janet classroom and we need to give him an education how do we do that and the skills room was the proposal it is the best suited environment with the most specially trained professionals and his peers in his disability so that they can all come together and help this student make some meaningful show these skills classroom is what was reached we did consider his access to typical peers whether or not if we go to the rachel h factors all of that was considered for the increase in service minutes but on the location the fisher factors dictate that we look at nonacademic benefits he's still going to have all of those he's still in gen ed for the same percentage of the day it's just gen added at different school so what is your progress would be a denial of faith in any other case so i don't think some progress is a fate i have worked extensively with looking at how this student did and none of his educators believe he was in the right setting believed that he was getting what he's entitled to and drew out if said sabran to be ambitious it doesn't say let's limit this kid we did a test on one day we did one test we did an i q test here is i q these are his circumstances don't aim high i can't imagine how we would explain that standard to our families that is not what the ninth circuit is about this is one of the only circuits they didn't have to scramble with new law when andrew left came out because we were already in aiming high appropriately ambitious good not his teacher said he's an island he's alone with this para in the back of the general classroom you would think we were trying to harm the child we're trying to help truly trying to help keeping him in general the majority of his day regardless of location or service minutes this is not about full inclusion it's not about segregation the id he specifically loved certain pieces to the schools it  needs to be it is neighborhood school to the extent appropriate unless the student requires otherwise if the mandate was the neighborhood school we would be really creating programs on every camp with limited resources has no one's going anywhere and the system just isn't simple when you approach it that way we need to be able to specialize so look turning back to the fisher factors his ip can be implemented as written in the skills classroom he will have the same access to non academic benefits the same access to his typical peers is it the same placement on the continuum yes it is the name we put on a classroom does not change its position on the continuum it simply doesn't continuum is about access to general education it's an l r u continuum are we pulling him further out and segregating him what the idea is designed to prevent if he is receiving the same minutes in the same fashion in the skills classroom or in the resource classroom to say that that's a different placement on the continuum is contrary to everything that the id in the case of say so this is a change in location and both lower courts looked at it accordingly as they needed to this is location this court has been really clear on the letter to fisher factors and that decision should be upheld similarly the rachel h analysis that's used for twenty extra service minutes i would point out that the twenty minutes there was a compromise made in the meeting most of the members wanted to increase its minutes by thirty parents were resistant to that so we compromised at twenty ten minutes and math ten minutes in writing those are the two subjects he made the least amount of progress and he made the most in reading he get sixty minutes a day yes your honor are just going to say a memory was that he the place where he made progress was the place where he had many more minutes out he currently receive sixty minutes a day in reading that is where he made the most progress the least amount of progress was in math and writing were seeking to add ten minutes to each of those the rachel h analysis you can go straight through i don't need to tell you the factors but in this one the educational benefit the first factor absolutely unequivocally supports increasing the student's minutes there was not a single piece of evidence or testimony at the hearing that student obtained any educational benefit in the jennet classroom not so is he making progress on his goals you bet he has these teachers are doing her kilian efforts to recreate the appropriate program for him in an environment that is not most conducive to his learning but he obtained no benefit from sitting in the back of the janet class room with his para the benefit comes from his specialized instruction we should be allowed to increase that by twenty some of the law coming out of the circuit says that the first factor can be dispositive but if it isn't the rest of the factors similarly weigh in favor of the increase the non academic benefits he still gets those it's one hundred five minutes a day versus one hundred twenty five still has the majority of his day with his john that peers he's not being denied that in any fashion whether or not he is a disruption to the class there was some evidence on that but it wasn't a deciding factor for anyone through the chain up to this court and cost was a non issue show rachel age location should be allowed to be changed all of the analysis that this court furthers and agrees with indicates that we are allowed to change his location that it is the appropriate way to provide an at meaningful educational benefit to this student and a conflation of these issues as was seen in the briefing is contrary to all of the law contrary to the i d e a it ends up overturning decades of law under this circuit and it's not it is not what is best for the student so two distinct issues both of which have been appropriately addressed in the if the only issue in implementing and i e p l r e was the computation of math minutes we would abolish the issue of setting which rachel age versus hawaii makes clear is a where stephen r f that we cited this past week's makes clear that there are two separate issues both the number of minutes as well as the setting and rachel age makes clear virtually forces holland makes clear that when we're selecting we're looking for the least honor but what we're looking at here is the least restrictive environment where faith can be achieved that's the standard that's the standard the teacher should have been applying but they were not and when miss wealth says to you that he didn't make any progress that is actually the first standard under rachel age and the fact is that if he even just made some progress under rachel age that takes us to the second and third factor because in rachel it's the court said that a placement that might allow more academic benefit is nonetheless too restrictive if it is not the student's least restrictive environment and the fallacy of ms walters argument is best replicated by the fact that she says to you he's going to have the same general minutes that's what she says that's their argument because they made a change of location they did not change that and think about that they want you to believe he's languishing in the back of the class and he is receiving any benefit whatsoever yet they're going to sustain it there they would need to do what they did and were versus marano which is not a change of location case but a change of placement they found she was receiving faith so they were required because she had unique services with a specialized teacher that wasn't available at her own school they had even move to a different district to get the c p teacher for a child with cerebral palsy so that was a fait case with unique services here in order to look at what benefit is were some meaningful she wants she claims want me to fall on your suggesting that we're saying that some is enough we're suggesting your honor he made meaningful benefit and the only person who is qualified to determine that is a developmental psychologist because it has to be based on what is the expectancy for student not community and his home school in a general education placement receiving supplemental services in the resource room that was enabling him to make progress that was one hundred percent of his goals that was meaningful three months into his kindergarten year thank you counsel the case just argued is submitted we appreciate helpful arguments from both of you and the most challenging case