we looking at here we're looking at a teacher who i think that we don't agree on the standards and you know that you can't abuse or use excessive force on a child that's clearly so then here's the four or five things i have one you've named which is walking on the pavement four times best what they what they have and what the hearing officer found after listening to all the testimony that perhaps the teachers didn't employ best practices and what you have year and if you read their complaint and if you look at the hearing officers it says in the s r o office is just state reviewing officers decision what happened was the teacher grabbed the child's hands and when the child was was abusing himself with stuffed self stimulating behavior hitting himself which the teacher grabbed the child's hand says don't do this that's that's what's i'm going to the complaint about the repeated slapping and slamming so how do we in europe you how does that complaint allegation fit with the administrative hearing in terms of our burden to try to re straight of hearing it carries with it that record we have a finding from a hearing officer and then subsequent review by the state reviewing officer so you do have an independent party taking a look at these facts and i think excuse me i think with judge mckeown is asking you and she can certainly correct me if i'm wrong but it's certainly something i would like to know your view on are we bound by the administrative officers findings or do we look at this new noble in other words you have argued to us well this is what really happened as a result of the ministry of the hearings officers findings but their complaint says something quite different don't we have to rely on their complaint and not the administrative officer spines are we a you're suggesting we're bound by the administrative offices i think it's i think you you you are bound by those factual findings on these allegations this is a unique  violation and i will i will confess to you there is no case on point that has addressed this issue in in in this context and the problem you have is they come out of the i d e a they took a shot at these allegations in the process they lost they then appealed that ideate decision and then they tacked on a nine hundred eighty three claim in if you're looking at this under traditional in a traditional analysis you would have to take what they those people i don't think there's any question that they should all like to be here and the basis for that the basis for their claim against the administrators as best i can tell from this two hundred some odd you know paragraph complaint is confusing and contorted at that is that these administrators somehow should be held liable because they didn't comply with a state law reporting statute dealing with aversive intervention i think th attorneys fees and affectively overruling smith versus robinson but also would allow substantive recovery under an one thousand nine hundred three now there's a controversy in the circuits it hasn't been decided by is fine if there's a line of cases that says comprehensive remedy yes but and that is is really counteracted by the franklin presumption basically that that that the federal courts have a power to  adequately provide remedies as well so there are countering arguments on both sides and so you really have to go beyond the legislative history and that's why the circuits have been been split get qualified immunity you know you're not really getting immunity from damages for a claim in which you know we there's there would be a constitutional violation but a reasonable officer or individual statutes that you don't do negative reinforcements that you don't in in effect however you want to characterize this there's no that's the best that you get imported into a federal claim now and i'm not even reaching versus skill and the college of dartmouth case that the idea defines faith as as meeting both the federal procedural standards under the idea but also incorporates by referenced state standards and those state standards in this case fit hand in glove with the federal standards so it's are you meant that in passing a higher state standard that's the holding of those cases that the federal courts have the power to enforce those higher claim the idea of contact i think you do because if in fact the standards in the end it's just sort of a no brainer that you do now use negative interventions on autistic disabled children that is the state of the art that was the founding the even the finding of a procedural violation in this case of the failure to have a positive behavioral plan for this child nobody's appealed that we won on that issue so you get to the idea in the very core of the idea is this that parents should be notified of what is happening to their children as participatory in the idea process of knowing and in fact of that sort of thing and whether it's been that you've had administrative hearing you've had your complaints with the district so you want to basically get damages because you think they're not complying  and fourteenth amendment violations the court only also found the idea was a clearly established and that it was reasonable to believe that everyone involved the individual defendants involved in this case knew that it was wrong this violation occurred but i'm late i'm sorry namely negative negative reinforcements and that's the best case scenario i can certainly understand i don't know whether i agree with i can certainly understand where you're going with your nine hundred eighty three claim with respect to seeking damages for slapping the child and doing those kinds of things those are traditional one nine hundred eighty three types of damages in the appropriate case but you're seeking prostitution all damages for their failure to notify the statute and that's that that's a constitutional violation no i believe the cases that have incorporated the idea have held that it is a it is statutorily a remedial violation that is read into three claim is based on a federal statutory violation your view correct on stand and the fourth and fourteenth amendment as well and merely incorporating by reference but it's quite clear from the decision that was made and the briefs which we put in the supplemental points that these were issues squarely before judge john look i'm of another specific question in these these are difficult case because you know they involve children you know in this case a child with some very significant issues that you know are not this result in the courts as you know because that's not her expertise or experts in hundred three but i do look at some of the allegations for example judges were mentioned slapping and slamming those are two they're fairly tangible but the fact that a child might have bruising if it's not so bruising or you could get slapped and you could get a bruise it could come in different ways but how just alleging bruising with that claim fall within a constitutional violation and that's a very good question because let me put it this way we're dealing with nonverbal and i said judge gunn noted very vulnerable children who cannot express their hurt or even defend themselves especially a so that leads to my next point we have alleged and directly alleged although it's not in judge hans order but it's clearly within the complaint that there was extreme emotional upset and at page allegation number one zero eight that there was a sudden dramatic change in this child becoming kicking biting scratching of violence and a proclivity to violence that that remains today and we allege that those emotional injuries those behavioral changes are classroom so the allegations of what the school or to observe were happening to preschool or one and even to third parties as we a question which calls for a yes or no answer in this case going through the ninth circuit mediation program yes it did thank you thank you for your arguments both counsel it is a difficult both know and complicated as you've both acknowledged the case a preschooler versus davis has submitted the next case for argument this morning is united states versus canada