it please the court my name is terry scott a libyan now and i'm here representing the child's parents in this appeal from the district court decision that gave deference to an s r o decision a state review officer decision in an educational case that we find was not well reasoned the department of education and the district court believed paramount that this decision was well reasoned simply because it was a twenty six page single spaced decision half of that decision talked about the procedures that got us to the district court the level of deference that this court has found that the courts themselves must give to state review officers and officers of the education department is a level is a level of deference that is fairly high but limited and with the limitation of that deference for the state review office or decision and the impartial hearing officers decision is a well reasoned decision that is supported by the record i'm a little puzzled what's the difference between deciding whether the opinion is well reasoned and deserves deference and deciding on the merits that we don't agree with the the analysis the analysis itself from the s r o and the district court discounted quite a lot of information about the child and in fact that information came from the only evaluations that were presented during the impartial hearing which are evaluations that were not done by the department of education this court has actually found that in if you the deal i made program must be consistent with the recommendations of those evaluators in this case the deal we did none of its own evaluations they did none of their own testing but there the i e p the finalized ip of june two thousand and thirteen was inconsistent with every single one of the recommendations of those evaluators namely that the child continue in a very small specialized special education class as he had been in preschool i do understand that going from preschool to kindergarten does give you a different set of needs and services that made you provided but they took a child to a neuropsychologist a medical doctor all his teachers all his service providers recommended rate so that's basically you're saying was wrong yes ok so i'm not i'm not sure i get the two  level and this is my question you seem to be saying first we decided that it was wrong and therefore we don't give a deference and then without giving it deference we proceed to decide whether it was right or wrong but we've already decided it was wrong i mean  o the district court upheld the s r o as opinion believing that they had a better understanding of the needs and that the court shouldn't interfere with an educational decision but i mean i don't would extend absolutely but again the decision in this particular case by the s r o because it's not based on the actual evaluations that were done of this child it's not based on the record it's not based on the testimony of those evaluators it's so you're saying the if we accept the evaluations of the child's situation where the child's abilities we therefore necessarily are required to accept and the department and the reviewing authorities are required to accept the recommendations of those people in this case i believe that's exactly what you see in this case so i always thought that the test was whether the s r o i h o and so on adequately considered all of the evaluations in connection with arriving at its decision but you started your answer to just lynch with in this case what do you mean by that well in again in this case in new york city but a decision has to be well reasoned and the reason why it's wrong and therefore shouldn't be given deference is because this court has found that if you don't rely on these evaluations which are the only ones we have the dia we chose not to do their own evaluations and testing then the p must to be consistent with those recommendations and in this case in this particular case that is not the fact the were there some confounding factors the kid the child was moving from preschool to kindergarten he had shown some improvement and there was a competing interest in integrating him to a larger pool of students so they still retain the one to one but tweaked some other aspects of it and maybe they were wrong but it wasn't like it wasn't based on anything that suggested that that would be a reasonable course i believe and i agree that the transition from preschool to kindergarten especially when it comes to socialization certainly is a difference and i believe that that's some of why there is a difference between the committee on preschool education's department of education and then the c s evaluation i p that was only done three days later i  believe that that's because they were considering more so that transition from preschool to kindergarten isn't that isn't that reasonable and what there aren't we faced here essentially with the choice by the department to prioritize mainstreaming  and therefore they've chosen a classroom that has the same teacher student ratio plus this child is getting a one to one  professionals to students instead of twelve to one which sounds to me like exactly the same ratio plus it has the benefit of mainstreaming plus the student has still  dedicated instructor for himself so i'm having a little trouble understanding why this is an unreasonable decision to make notwithstanding the recommendations of the people who essentially work with him in the preschool setting i do disagree that the ratios are the same the i c t class the only information that we have that the i c t class is capped at twenty two students is that of the district social worker that class can be upwards of thirty tuesday the i see but when you say when you say the only evidence we have of that is what the district social workers says it is what is the contrary evidence then when they say it's the only evidence is this is what the official of the board of education says this program is ok it well is there some contrary evidence that it isn't that well they are from comparing i c t classrooms in new york city they are not necessarily talking a teacher to student ratio and yes i agree ones eight to one and the others twelve to one but even that increase this court held was not appropriate for the student because of their level of distractibility but this student has a singular person to help focus him so that's why i'm having trouble with the argument that was made that there wasn't sufficient attention to behavioral issues the substance of what's given is somebody to work with him full time on behavioral issues right the one to one crisis paraprofessional was assigned to him in the i c t class that was a in his preschool class in his twelve to one to one preschool class he had a plus one a one to one crisis right i understand that but in terms of his distractibility that's what this person is supposed to work on wrecked and it was that one to one in the twelve to one to one class wasn't completely affective in reducing his distractibility there are also issues that the child continuously narrates the day's events out loud in the classroom we're talking about an i c t classroom with sixty percent general education students one teacher is special and the other is a general education teacher this is a child also dermot did you want him to be in a class  hundred percent special education students is that right i do in this case i believe it was in this case i believe he needs it and in fact in the successive i e p's the dia we admits that he needed to be in the twelve to one to one classroom every single i e p there after but that's there after i understand that i mean each each year stands on its own footing so what i'm having trouble understanding is why we should infor even if it was the case with the benefit of hindsight maybe this didn't work out that's not the standard but the standard also doesn't insist that a parent place the child in a setting that they know is inappropriate and allow him to regress before we play catch up it's much more dangerous in a child to play catch up but we're not going oh well the question is we look at this as of the moment that the decision is made when we don't have the benefit of some hindsight as to what may have worked and what may not have worked we're asking was there a reasonable decision made at the time i agree and it is my belief that according to the holdings in am versus the new york city deal we this court found that if the i e p deviates from the evaluators recommendations that it's inconsistent and not offering faith of free appropriate public school education and in fact in and now this court found that reasoning as inescapable if it is inconsistent with the evaluators recommendations which this inconsistent with every evaluation recommendation made by the child's teacher by the neuropsychologist by the child's medical doctor that makes it the i e inconsistent if  is inconsistent with those evaluations it's substantial it's substantially violating this child's right to a free and appropriate public education this child would not have learned essential you're saying it is our it is the rule of this circuit that we don't need to have meetings discussions among the of the committee we just take what the evaluators presented but unless they're going to do their own testing they're required to accept the recommendations that this the group that made the evaluations and centrally dictates the i believe in scien because these are his educational evaluations this is the testing that was done and i p n n of itself is looking into the future but these tests and these evaluations and these doubt here that the c s e took into account the full breadth of the evaluations they just disagreed but the bottom line program that would meet that was partly because the idea expressed as a strong preference in favor of integration over segregation and at the end of the day what this case really boiled down was to was one in the parents believed that he needed a more restrictive environment and the deal believe you could progress in one that was less restrictive but one that you do you agree do you agree that there may be a case where the quantity quality and scope of the evaluations is such that it would under just about any circumstance dictate what the i p says or does i think there there could be i what would that be what would that what would that look like hard to say i mean in in the because that's a and there is so am there was near universal agreement as a particular methodology in the teaching but what we have here is really more just a disagreement of what is what's the fit that makes sense that's a predictive judgement of this child and it's not black or white that like i think everyone has to agree that this is at the very of the subject a reasonable disagreement either way i that was on the autism spectrum something fundamentally different here if you look at the evaluations themselves no one disputes that the child to show the growth he's shown quite a bit of progress he responded well to in one to one intervention and it really just came down to disagreements to whether that intervention should be in i c t classroom with one to one intervention and other supportive services or should it be in a more restrictive environment in a specialized classroom a specialized school those the kind of quintessential judgments as educational policy that are reserved to school officials and i'm here everyone agreed on that point i'd like to just briefly talk about c that was mentioned by my counsel mention their reply it's an it's a nonpresidential summary order from this court so that it only goes so far but even there i just want to mention that the part of the problem was that the o i believe had focused exclusively on ratio and miscalculated it because he treated or she treated all of the adults in a classroom as if they were functionally equivalent that's not the case here we have there's no dispute that the s r o in the eye of cho all understood what the i c t classroom would be it was a special education teacher general education teacher no more than twelve students with disabilities and then a forty sixty split between them that was closely looked at it was exhaustively thought about wasn't over looks nothing was  and sorry just one quick point if there's no other another question from the bench but i'd just like to briefly address a misimpression that's left from from my adversaries reply i don't think it really in the end of the day matters but there was an f b i and a b i p o prepared in this case there was a typo in the eyepiece saying that it wasn't but you can find that at i believe it's at fifteen thirty nine in the confidential appendix i might not have that right but on top of that it was prepared it was discussed in the in the two meetings you can see you say no procedural errors no i think there i would admit that the  they were also coupled with an eye e p that discussed the problem behaviors intervention methods it provided five and well goals you can see that at fifteen sixty three to sixty five that were specifically directed at those you know for their questions mr thank you thank you i only have a few moments to discuss some of the points of my adversary here the one thing i do want to mention that has not been mentioned before is the deference argument as far as the decision regarding the burlington carter test burlington carter test is where if the child is not provided with a free and appropriate public school education that the the department of education will reimburse the parent for that private education if the act would you support that the test for equity is whether the parents frustrated the course of the i this case they did not do so and the i h o actually found that the cook school where the child was placed was an appropriate placement for him and that was after testimony and all of the school and educational records that were before before the i h o so i wanted to just make one that one point the department of education really is making a point that there's a floor on what a free and appropriate education is the courts have been very specific and in fact in andrew recently the supreme court had said that a de minimus education is is a paramount is amounts to no education at  all i do agree that the department of education tries to place students in the least restrictive environment and i believe that that is a very good thing to do unfortunately in this case because of the child's level of distractibility they what they did was they tried to place him in a program that just would not have educated him in any way as for whether any evidence though that it was the other children that were the distractibility fact wasn't it kind of inherent where the one to one would address it so i didn't recall seeing anything that said more children means this is going to be more problematic for this child well the test is also two parts it's not only whether he needs a b a p a behavioral intervention program because his behaviors interfere with his own education the second step of that is whether his behaviors interfere with the education of those students around him now as an example one of his interfering behaviors is the child continuously narrates the day's events as the day goes on i'm not quite sure how it a crisis professional will stop that behavior but it will certainly interfere with the general at sixty percent of general education students in that classroom so that it as just an example it's not only a focus on him although i am here to focus solely on j p i would just mentioned j c if i am permitted to i am running out of time on the issue of ratios and my quote is that given that the child j c is easily distracted the number of students in the classroom counts not just the ratio of students to adults let me ask you just as a housekeeping matter i thought that your argument was that there was no be ip and yet were pointed to fifty fifty one m are wrong or right about your argument in my part of my argument is that there is no f b as a functional behavioral assessment and no real b i p o real b they created a b i p through testimony and t's did out this child has a much more than five interfering behaviors and they are required by new york state law and not to mention federal law in the i d f i to deal with those behaviors to try and fix those behaviors to have a frequent assessment of the point is that it's not a proper b p i believe they call it a b i p and my opinion there isn't one but at the bottom line they did try and tease out five interfering behaviors and create one i don't believe that that is appropriate but they did tease out five interfering behaviors thank you very much you will reserve decision