the next case on for argument is j d versus the new york city department of education morning may please the court my name is caroline heller and i represent j d the mother of a p the student issue in this case this is a case about a bright young man who wanted to learn to read this is a case about a mother who gave the did apartment of education nine years to educate her son nine years to teach him to read and a case about the department of education that failed to do so this is also a case about a district court bent over backwards to defend an indefensible statement the officer decision and the reason the state review officer decision was indefensible is because it was not supported by the evidence in the record and  be officer failed to grapple with the evidence in the record that demonstrated the educational program recommended for a p was insufficient to assist him in learning how to read make progress in writing and to receiving or to any faith for this is that's an absolute necessity for this student yes it was because he was capable of learning to read so we weren't dealing with the student for whom that was something that was he was unable to do and indeed the only evaluation in the record the only evaluation the department of education had because they chose not to do their own about how a p had the ability it should what it said what the department of education needed to do and it also said that until he learns to read he will not be able to learn how to write make progress in math or and accomplish any other skills the idea is very clear about what it's designed to accomplish it's designed quote to meet i'm sure in order to provide a free appropriate public education the department of education is obligated to provide a program that quote designed to meet their unique needs and prepare them for further education employment and independent living reasonably  goal is for every child to reach a grade level and that's not some children are unable to do that but the department of education's obligated to at least try to provide a program that can do that and in this case they had a  roadmap of what didn't work for a p and that was self contained classroom a twelve to one classroom which they had tried for three years and a p didn't learn to read and that self contained classroom is twelve special education students and one special education teacher so it's small but it wasn't enough they also knew after six years of failed reading instruction in a method called wilson for thirty minutes two times a week in a group of three to five that extra support didn't work and then after fifth grade they had a roadmap for what what work and evaluation and instead they said a p back to a twelve to one in six grade now that's not the year issue but that's also important because in sixth grade sent back to the same program that wasn't working we started to lose a p a kind bright and do a boy who wanted to learn we were losing him he didn't want to go to school he was scared to go outside he was a twelve year old nonreader in a middle school where probably where in that school this testimony on the record had never address the needs of a nonreader  school that implements the program recommended an evaluation it's a little bit more intense but nevertheless it basically follows the god lines and in four months reimburses for that semester the second semester yes they paid for sterling so then we get up to the two thousand and eleven i e p and at that time they know this kid is now reading he they jump started his reading at stirling using a program akin to the one in the evaluation one that was never offered by the d o a so they know what's working they know what doesn't work and instead of implementing a program designed to meet his unique educational needs what do they do they take it away from him they say we're going to send you back to that self contained classroom what record demonstrates that sets instruction that was added to the twelve to one classroom would be sufficient the department of education's own witness m a sets instructor testified that one period of sets was not enough for this child so even if you let's set aside all of the parents arguments that sets are not the equivalent of the evaluation that apartment of education's own witness said this kid needed more he needed two times and she uses the word need it it wasn't the gold standard she said he needed two times a day so it's the department of education's own witness that at the very least has the i e the so that's the first reason the second reason and by the way this testimonies and rebutted the department of education never brought a whit never criticized her testimony didn't didn't reexamined her on it didn't bring another witness so then let's move to the parents testimony folks who worked with a p testified that it wasn't enough because special education teacher support services is simply one special education teacher and general education students and special ed students for forty five minutes a day it's not the intense specialized long duration instruction that the evaluation said he needed that was working at stirling it's basically saying we're going to put you in a smaller classroom so it's a smaller than the twelve to one but it's still not small enough and it's not with the reading instructor and it's not frequent enough we were talking one time not too exactly and i see my time is almost up the numbers are three minutes thank you yes may it please the court max mccann on behalf of apple yes the impartial hearing officer the state review officer and the district court all agreed that the department offered a free and appropriate public education and thus that the appellant is not entitled to tuition reimbursement and here's why the education program that's department offered included additional services beyond the years for which the appellant is focusing the if the appellant mentioned in our very first sentence that for for nine years the child had not learned to read that's a distraction that's not the issue here the issue here think we're all focus on that last night yes and as we've mentioned that education program included additional reading remediation sets is reading remediation it's clear on page five eighty of the record that that's the reason sets was included sets in this case would not have been eight students as the appellant just mentioned it would have been a small group or one on one that's what miss prall to testify to miss prall to did say that she would have performed more than the one period of sets that was called for in the education program but she did not say that only one period would have been insufficient to meet the obligations under the act we witnessed said that he needed he needed at least four more than one that's correct but needed in order to what maximize the child's potential that's not what's required under the act the act as your honor noted has to be reasonably calculated to provide educational benefits are we permitted as a matter of analysis and i know we i think we have spoken on this and some prior cases one that i may have been involved in the name of which i don't remember but to look at what the provider says would happen under the p c this is what we're going to do this is what we would have added to it i think there's a problem with that is there night i do to your honor i think the education program has to be evaluated on its face on what's what the program is you writing this is what we're going to do right even though some witness comes in and has books but we would have added more to them that's correct yes and we would note miss prall to also testified that the program would help the child retrieving sounds and identifying symbols in words that's concrete evidence of a material educational benefit expert dr thomas this is the outside psychologist who signed off on the psychological evaluation said that she agreed with the recommendations of the education program that's a page three ninety two of the record she said that she would have gone further that she would have liked for it to gone further but again the act is not require every service that a loving parent or a diligent psychologist might want in order to maximize a child's potential the education program was consistent with the evaluation because it called for the same type of instruction multisensory instruction and hands on activities that were called for in the psychological evaluation but the department doesn't have to provide everything that's called for in the evaluation that's clear instead the department has to foot provide quote a basic floor of opportunity that's from this court's decision and  department do you agree with ms heller that in this case that means a provide adequate services so that the child learn to read that's an interesting question i don't think it's clear from the case law but assuming it is  the department has to allow the child to read we satisfy that standard here and the child already had learned to read at the stirling school and so the department can promote can can develop on that progress that the child has already made so to say that this education program wouldn't have allowed the child to learn to read that's that's beyond the point of this case one interesting note about the program that the department offered it's developed by a committee on special education that committee included the appellant it included the principal of the stirling school and it includes another parent of another special needs child it only includes two department witnesses the department witnesses are actually outnumbered on that committee so a committee an objective committee to use the word that the appellant echoes so often an objective committee has determined including the appellant that this is the appropriate education program for the child there's no indication of dissent in the education program which they're free to note that we don't agree with this so it's clear that the department did satisfy it obligations let me ask you about the evidence because what we have here at least as i see it and you can please rearrange my understanding of the evidence if you disagree but we have a special education teacher who had devaluated the child or met with a p and seen him in action juxtaposed with the expert's report who obviously had a hands on relationship with the child before making and giving the system of evaluation is not adequate that's an accurate part of the record but we're looking at the record as a whole which also includes the testimony of miss matthew the school psychologist who had performed at an observation this program and they certainly were from the year with a p and with his progress and even the members who work for milieu or had performance evaluations that were more current then the psychological educate  evaluation on which they could rely in developing this program now everything in the record that you could bring to that indicates that ninety minute sets  another on that point and so whether phase and again much of the testimony for example the evaluation itself might say that the child needs this evaluation doesn't say the child needs this in order to be provided with a minimum floor of educational opportunities so so we have to keep in mind the standard of the act but i mean i'm not aware of specific testimony that says forty five minutes a day in connection with the speech and language therapy that the child was receiving and the one on one counseling sessions on a weekly basis that the child was receiving would not have the testimony is that that probably is most naturally going to be read given what the sets program is set up for to be needs this additional time in order to progress and reading that's absolutely correct that's why sets is provided for this child is for reading remediation but there's no evidence that says forty five minutes enough would not be would not be sufficient to give the child a basic floor of education here at least at least under my reading of the record now that the record is clear that the appellant rejected this education program based on the placement based on the child's performance in the past and that's not the proper consideration here as we discussed we have to look at the education program that's offered and we also can't parse between different programs like wilson versus wharton gillingham that's not proper it's not proper for us to substitute our judgment even though i know agree i see that my time is up so arrest welding and on that point which is not to say because certainly has a point of contention in the matters before us which is not to say that we are bound by those determinations that's correct your honor th level of deference is based on the quality of those determinations as long as they're adequately supported by the record and adequately reasoned they're entitled to deference with you know go ahead what we have here is sort of an extreme case grade level which is the first benchmark on the road to reading and functioning as and as a literate person writes right that's that's correct but it's important that we're not comparing the sterling program to the department's program it's not which one was better it's whether the department's program would have provided educational benefits to the child with the high e p a from two from provide enough reading remediation for the child and that's why the education program at issue in this case is sufficient because it did include that intense reading remediation in a one on one or small group setting on a daily t two thousand and ten i believe so yes yes your honor at the child's attendance for one of the witnesses the child's teacher testified that during that year the child's attendance was so spotty that t that the reading programs that she tried to implement could not be implemented effectively enough so that's another reason why it's an unfair to have rejected this education program in whole just based on the  performance thank you for our reserve three minutes for yes thank you on that last point the department of education had tried a twelve to one program for three years before sixth grade when there was some testimony that a piece education started to become spotty because he was a twelve year old that couldn't read and we were losing him so historically even when he was attending school to twelve two and he wasn't learning to read there a couple of items i'd like to address what historically he also didn't have the various components of the twenty a level as part of what he was experience correct only the sets and it was the department of education's burden that there was evidence at the him at the i e p meeting that he could learn with only forty five minutes of special education teacher attention in a group of up to eight general education and special education students contrary to what the said there's no evidence that the sets on the ip would be insufficient the evidence was out of their own witnesses mouth the evidence was also the evaluation the only evaluation in the room at the c s e meeting that said he needed ninety minutes a day of specialized reading instruction and elo talks about the second circuit's most recent decision on id and talks about you have to perform an evaluation the id requires it and the reason it's required is because the basis to design an appropriate educational plan i heard the appellee talk about the gold standard is first grade reading level for a twelve year old the gold standard it in order to determine what was a fate for this child what confers an educational benefit this court need not look past his own ip the two thousand and eleven i expected him to take state assessments those are the standardized tests that general education students take it also expected him to meet fifty percent of l a standards for sixth grader that is the standard by which we just determine whether or not the ip would have conferred an educational benefit was there evidence in the record that sets a mere forty five times a forty five minutes a day would have gotten him there there's no evidence the record that it would have and the evidence in the record is that it wouldn't have a p gave the department of education nine years to get this right the fact that it made a tweak not supported by the evidence in the record and its own witness doesn't mean all of a sudden it provided the schild of free appropriate public education thank you very