has down's syndrome and she has been a student of close unified school district since kindergarten until this dispute which happened in seventh grade and she had been educated in the general education classes ok i would really like to cover three issues three issues here that i think were erroneous lead cited by the court below the first one is the credibility determination of mrs mcvay their inclusion expert the second one i want to discuss is whether or not the issue of peer reviewed peer peer reviewed research was waived and the third one that i wanted discuss is the determination of the ritually factors ok now concerning the credibility of mr mcveigh a re decision in the sixth court l h versus hamilton county board of education the arguments that they made concerning the credibility of  persuasive including because of what he believed was her general philosophy of inclusion so whether the philosophy is correct or not wasn't he basically saying i just don't find her testimony persuasive well your honor i think one of the problems there is that he maybe did not understand what empirical evidence is  i if i may just a quick example if you thought you had a fever ok and i came up in a kick your head and i think you're warm you know maybe you do have fever and honour's you check is hidden and someone says no he's told i don't think he has a fever ok that's one way to say well i think my opinion is right your opinion is wrong i'm not persuasive because i'm the only one who thinks you for your forehead is warm i don't think you have the fever yet if we use data if we use something like if i go if i find a a good some ometer and i stick it in your mouth ok and then we leave it in there for i forget how many who ever reads that thermometer here if everyone read that their mom or hear that their mom or our observation is going to be the same it is going to be a hundred into the council b and the district judge wrote exhaustive lee with regard to the testimony of all of the witnesses and found found as a matter of fact that your client would derive no economic benefits from being i'm sorry no educational benefits from being in the regular classroom even if we had been the finders of fact and would have decided differently  certainly appears that the opinions are careful and well reasoned what basis is there for us to decide that there would have been substantial educational benefits your own first of all whether or not he gained substantial every educational benefit based on the seven and she i'm sorry i thought he whether she would gain substantial educational benefits based on the seventh grade curriculum is an incorrect standard the standard to determining whether a child is is gaining evidence or gaining benefit is are they making progress on the goals in the  accurate or was given less weight let me put it that way than the testimony of the teachers and others who actually dealt with a little girl and that's the normal process when you're in an i situation somebody has to be the trier of fact in this case it was the l j who heard the testimony of ms big could have prevented whatever she wanted to within the rules of evidence she did so the school district put on its inhabitants and the a l j believed the school district record and from what i can read i can understand i can understand that so back to what my colleague pointed out again since that evidence was there and the made the determination what is the basis that you would have for our overturning the l g s findings with respect to at least testimony versus the others well specifically turning miss concerning miss me they sed testimony again it is is basically identical to what the judge in the sixth circuit said and i know that that is not precedent here but what he was saying was that you were taking and expert and saying to this expert that this expert because she was not personally familiar with child because she did not lots of cases and there's a lot i've decided twenty or thirty of them myself so i know this law and the reality is that this situation we're talking about whether the l j was more persuaded   just stands to common sense if she's not spent any time with their client and the others work with her day after day after day and so on who is going to know about her your honor then the next issue the issue about peer review peer review research is basically why the factual determinations about how the jess was performing performing in school we don't dispute that we don't dispute that anymore then then what you're saying if i just read this i would say nope she's not going to get any benefit here the problem is missing the fake testified extensively to the fact that her current program and even the program that that was proposed there was not the required amount of aides and supports in there in order for it just to be gaining the benefit that you're talking about with respect that was her opinion and she's a learned person but not credit her testimony versus the school district to the same degree because the l j found otherwise looking at the facts listening to both parties or both there are lots of people involved here and found otherwise you know their peer to peer review that's all just great but at the end of the day you're talking about this child and what's best for this child it all has to go to a drier fact in this sure i understand your position your your position is that the ail today got it backwards that you can't say that we don't need any aids or supplements here because i've found that the curriculum should have couldn't be modified that he should have been starting with a presumption of sorts that the curriculum is modifiable in order to cut in order to have the the i e p comply with a congressional mandate and by doing it in the order he did he violated the idea yes your honor because basically it stated very plainly within the i e a that i   e a that a student cannot be removed from the general education class merely because of the need it modifications to the curriculum and the standard that they judge just as performance on was her ability to keep up with this seventh grade curriculum and if that were the criteria in your view basically there would be no students like jess who would be in the least restrictive environment oh no your hon believe that basically in fact that came up with with the introduced an introduction of what's called the c c c's the common core connectors and even another resource that their counsel presented that there is research and it's on the california department of ed website for how to modify the seventh grade curriculum where you are still teaching to seventh grade standards but the achievement standards are change what you're teaching how you're teaching how you're delivering it this is this is one of the biggest areas of lack of training within the whole field of inclusion but there but if it was not available to modify the seventh grade curriculum down to a level where students with severe cognitive disabilities put access and be productive within the curriculum that kind of those kind of resources wouldn't exist and it wouldn't be on the california department of its website and we introduced that evidence plainly and we stalked about that just to show that this is on the california department of beds website that there is material there oh i'm so sick ok everybody all right please let me get into the ridglea factors quickly and hopefully i'll still have about a minute to save the rachel age factors the first one department of education that was decided after the group that was decided in august of this year they based the standard on how that little boy had access the grade level curriculum not the goals that are in his i e p the goals that are in the child's i e p or the goals that have been determined individually to meet her needs and that based on the bold that is how you determine whether or not there's educational benefit not whether she could access the seventh grade unmodified or poorly modified curriculum but whether she was meeting her goals and she clearly met forty percent of those goals of says so right in the beginning of the district court decision it says she met forty percent of her goals she was game academic benefit out of that number of ideate cases is that when the l j is underlined decision is thoughtful and careful the district court the needs to give that that careful analysis to deference which in fact here after a four day hearing and thirteen witnesses and six hundred pages of documentary evidence the l j produced a thirty three page decision which thoughtfully goes through each of the witnesses substantive testimony analyzes each of case ms mcveigh wasn't persuasive in part because of her general philosophy of inclusion it seems to me that congress embodied a general philosophy of inclusion in the idea a itself why what is wrong why didn't the air when he rejected her testimony in part because of her philosophy that underlies what the congress mandated school districts like yours follow you are very good question i had a couple responses to that first you are right that the the i d s goal and the court talks about this the expectation is that this idea that we will have flown close inclusion that's our goal but it's also not it's also not unflexible and in fact twenty u s c fourteen twelve a five day is a well as the regs that implement the provision thirty four c f r three hundred point one one four one one five talk about the fact that mainstream may be our goal but it's not inflexible and there's no there needs to be a continuum of placement options and services provided what the l absolutely the what should be applied to each student including a student like that issue here who if we go through all of the court's cases on ellerey or at least the ones that i think most closely reflect what you're looking at here today whether it's the pool log case the katherine g case the k m case the garden grove case the facts in those cases all involve a very perhaps arguably close call a student at one grade level a great or two below in this instance we have a student who is fourteen years of age performing between a kindergarten and first grade level and so when when the l j is being told in terms of his evaluation makes missing what i look at and what the j found basically anyone with down syndrome with an i q of around forty like jess would never be in the least restrictive alternative in your school district because of the view that the curriculum can't be appropriately modified how does that comply with the idea right in your honor i don't i disagree of the proposition first keep in mind this was not this was a blended offer of fa with this program which they all j found was appropriate would not have had the student in a special day class one hundred percent of the time it was for forty two percent of the time while fifty eight percent of the time the student was going to be engaged with non disabled from right now right now or elective classes are and choir and physical education those types of of courses but but the and that's all i mean if we're looking at time it's a blended program this is this the concept that  she was being moved away she was staying at the castor camp campus and with she would be placed in a rear end in this special day class with like peers prefer performing at that same level between kindergarten and third grade and so the response your question on are is that the district not saying that no student with down syndrome can never be in a in a general education class what we're aiming for in consisted of andrew f is how can we make appropriately ambitious goals for her to gain both academically and socially which the court found in this ip was designed specifically to do that based upon testimony from nine individuals who were involved and as a resource specialist for psychologists who serve who said she couldn't benefit from general education classes he said based upon the fact that the testimony from the witness is that at that point in time her enrollment in seventh grade general of history and science course was not providing her educational or social benefit that in fact she had been read what regressing and doesn't and that the curriculum according to the school district could not be modified that it was impossible to modify the curriculum and the general education classes to be appropriate for her you're all right i think that is an entirely accurate and that what what what the testimony says that they in fact did through coordination with the district special ed administrators those miss mclean and her science teacher in fact did work on modifying the curriculum so that it could be  appropriate and effective for her and the course but looking at how she was progressing that that modification based upon the student's unique needs in this case it's very important this is not a blanket individual right absolutely or on the way yes the statute has the overall intention yes that's the goal you should try to push it that way but the reason you have these assessments based on the child is because you want to see what that individual child's needs are it's not just a statutory thing in this case i gather the district's position is that that is what you tried to do was to meet the needs of the child you had a blended program where she was part of the general population and he said fifty eight percent of the other propose i see that was rejected was forty two percent in the special they cost fifty eight percent of non disabled peers so  yes there is an attempt to blend as much as possible but unfortunately or fortunately the way it is parents have certain expectations that they would like so i want him to go to private school they do everything they can try to get that done but in this case you have people who cared for her just like the parents cared for her like that they did what they thought was required here l j heard the testimony of everybody concerned of the factors which the l j took into consideration and wayne miss mcveigh's testimony versus the district nine witnesses i would point the court to catherine g and where there was a similar analysis a distant district court case but a full analysis of the racial age factors and it was there that the district court reached a similar conclusion that when there was an when there is an unflattering scene theory of inclusion which is not accounting for the offered program for a student based upon the individual his knees and the evidence which is actually before the court in the l j that that can be a factor which makes that that recommendation or opinion less credible and so i think you really do need to look at this program in the totality abilities to see the student not just the lack of observation but also in accuracy as to what the student the child was really capable of a house he actually performed in the classroom to write correct your hon included in her view the student doing online research and as you do you know based upon the testimony of the district where this is it just wasn't going to be for this particular student and their unique needs something was going to occur  n i think this perhaps doesn't need addressing but i would i would say again consistent with a lot of that we submitted in response to the supplemental authority that the l h case in our view has no bearing here facts are different analysis and test in the six circuit is different and otherwise what would request it based upon the court's existing authority and the record in this case that you are from the district court in full have to understand this crippling was incorrectly modified the way the science teacher would modify the curriculum for jessica's force test she gave her the same test questions that the regular seventh grade students got but gave her less and that's not correctly modifying the curriculum down to her level you're you're you're saying that the way they purported to modify the curriculum predetermine the outcome yes they they tried they have not been trained they all admitted that they really had not been trained it's a much they tried their best and i believe that they genuinely feel that an s t c class would be better for her but unfortunately research and parents genuinely feel and they see that she is claiming knowledge from this like she comes home she talks about the in a she talks about mike's microscopes and the fact that if you say that this little girl who they say could sit down and copy words and access to the internet is one of the accommodations in her eye e p that she couldn't sit down at the computer and type in the ward like warm like the example and push the enter button and some pictures come up and then she could use pictures of worms while while the rest of the class is talking about how the actual t nima toys are or whatever but there are correct ways and it is done and inclusion has been proven and it is what congress it's there presumption it is