remarks this morning with a review of what i think should be this court's standard of review in looking at this case and i think that standard should be de novo i think this is a classic case calling for d novo review to give examples the question of whether an i e pete constitutes a fate for a child is classically in this circuit review de novo as it makes question of fact in law and which the questions of fact are not predominate amanda j stands for that gregory case to answer that shapiro says that that same rule applies with questions with respect to place to questions of placement of a child at a particular school county of san diego versus the california state education hearing office with that proposition the general rule in federal court of course as this court well knows is the court of appeals applies de novo review with respect to questions requiring the application of a statute and here we have a federal statute to state the facts the facts in this case there's a lot of debate there's a lot of argument about what they may mean there's a lot of that page eight hundred lines nine and ten of the record from counsel's brief the facts set forth in the administrative record were largely undisputed could seize the school district except to the extent that there was considerable dispute about the nature  severity of students emotional problems that dispute i maintain is not factual it's interpretive what does it mean what's it all about what are the consequences of these undisputed  eligible for emotional disturbance and then secondly whether the i e p team complied with the law as of the key date i think now in the first one the eligibility are you speaking to that one now point for us all right all right a corollary of what i'm say is that reviewing this record de novo this court then itself may determine how much deference it will give to the administrative decision ohai stands for that for fed third forty seventy three gregory kate at eleven fed second at thirty four k so we have de novo review we have this court determining how much deference to give the cropped we went through this in a brief in some detail and i could go into it but this hearing officer your honor this administrative decision the hearing officer makes up rules as she goes along rules i mean of evidence rules of psychology for example for example judy dr solomon did not go observe this child in school and therefore dr solomon is testimony that this child would be suffering from a severe emotional disturbance is a title to no wait because she didn't see the child in school yet she's a clinical psychologist she works with children with a similar background to this child she knows reactive attachment disorder she knows post traumatic stress syndrome she knows what happens to children who are born with fetal alcohol syndrome and as a result of maternal drug abuse and she testified to the trajectory this child would be on i mean magine if if one of our sons came back from iraq or afghanistan with post traumatic stress disorder and it somehow was an issue in some proceeding and a psychologist was testifying well here is the pattern x percent of the leaders who come back from iraq come back with post traumatic stress syndrome and here's how it would manifest itself on the job in the workplace well doctor if you've got in the workplace have you seen this this former soldier in in his office in a factory some things don't that's just a frankly a copout for easy decision if i may say it could matter the facts again are undisputed dr solomon's opinions about what the child has are relevant there her her opinions about how she got to be where she is are relevant the record the general education teacher of the child there was a special education teacher in the teen corral i don't believe so ya know there was a former general education teacher on the team and that was  the former principal who had taught this child in kindergarten now now we're in the sixth grade but there was not a special education teacher of the team as i recall the facts certainly not one of the child the child at the time was at inter intermountain as a special education school by definition she was receiving special education it's certified to to to do such it was obvious it was doing so just from a review of the record when one looks at this is the facts are remarkably like those of the shapiro case they're remarkably like those in  competing opinions the judge who winds up holding all the cards is the one who concurs with the result on the narrowest possible ground and there was a citation to a right cited to a case of the ni judge and he adopts to an analysis of harmless error and i think that's what the law of the case has to be and remember that the law is that if a procedural violation of the substantive enough to affect a right of the child or deprive the child of an educational opportunity in this circuit that is sudden death for a school district go no further that's what the circuit has commande education teacher of the child yes on the team that is substantive requirement obviously is procedural but is that a killer in other words if if if the teen does not include that particular found a breach of this magnitude one that drives a stake through the heart of the the court stops but the hearing officer heard testimony from all of these individuals including a special education teacher dismayed say here you know not a doctor who was there is too much of that who wasn't there but i mean but  there's a statement in the district court decision that the hearing officer know that the district said in its brief to the hearing officer all but  told the i d p team white ms branch thought the record refutes that if you look at the ip documents you see very little discussion of what was going on at inner mountain and you see a lot of discussion was a procedural or was it substantive procedure become substance at some point they didn't have the right people there they didn't have the right documents there there's nothing in the record to show that this school district reviewed any of the intermountain records do something else well i would hope your honor that we're going to get to the ultimate question of is this child eligible for special education as a child with emotional disturbance a very emotional disturbance the child did not have a legal or a proper i e p meeting if the court i suppose that if the court were not going to go on to the substance the court would have to  considering whether the procedural error resulted in a loss of educational opportunity or significantly restricted parental participation in the i e p formation it's certainly resulted in a loss of include cases involving a mistake in how the i e p team was can constitute i would suppose analytically that would have to be true if it didn't matter but he's not talking there when they say deprive the child of an educational opportunity he is not talking about  reason i think you have the sense that's where he drew the line judge clifton and so there was a deprivation of educational opportunity a straight up on be honest if i may use that i'm prepared to address and respond to questions regarding issue of the standard of review and that eligibility determination for special education and we've allotted fifteen minutes for that between michael counsel and i and my co counsel is prepared to address the issues of the procedural questions that you were just addressing in the i d p given that we believe that the pivotal issue is the eligibility question and we intend to go first however if you'd like to continue on the line of discussion or and amended on may eleventh two thousand and seven which we provided to the court and to appellant attorneys as supplemental authority this court has determined that it uses the clear air standard to review the district court's finding of fact when they are based on a written record of a special education administrative hearing appellant is attempting to make it a do novo review complete a novel review and under gregory kane that is an appropriate they say it's the court said questions are primarily factual the issue in this case involves the question of a mixed question of law in fact as to whether the student was legally l eligible to receive special education as a student with an emotional disturbance the administrative record demonstrates primarily a factual question and thus this court must review the district court's findings of fact for clear error in that regard the district court did what it was supposed to do under the idea it received and independently reviewed and volume administrative record there was no additional evidence submitted to the district court as allowed by the i d e a so it had the identical record to review as was presented by the hearing officer and it reasonable concluded on the  and citing the board of education versus rowley the supreme court's determination that for students already identified is eligible it is the benefit standard term and whether they're receiving a free and proper public education the district court also determined that the hearing officer sixteen page decision based on six plus days of hearing was careful according to its prior precedent in union school district versus smith this court must  intensive nature of a special education eligibility to terminations coupled with the considerations of judicial economy render a more deferential approach appropriate back to the  made much of the different facts of the this court has before it the same record that the district court had no additional evidence was provided and what they seem to be doing is wanting herself which evidence to give more weight to in coming to her conclusions such as giving more weight to for example the school district psychologist assessment of while she was at the iran school in zero two  school setting and i think that goes to the the whole eligibility question and how much the hearing officer in the district court considered the evidence always findings of fact  applying to the law of the eligibility criteria in federal law which is done to know about once the district court review the findings of fact and gave them deference then he could apply the the court could apply is legally entitled to a publicly funded special education in a private residential setting as a student with emotional disturbance the hearing officer and district court below found that rb did not exhibit any of the five characteristics in federal one or any of the five characteristics of the disability as defined by law that disability because of that disability if any did not require specialized instruction or  services or educational needs were could be met through the regular education program with modifications and emotional or behavioral disability that she may have had which the district does not she had behavioral problems she had emotional problems but they did not adverse affect her educational performance and rb was receiving educational benefits in the regular program as this court said in hood quoting again the board of education versus rowley supreme court decision is appropriate for courts to determine if a child classified as non disabled is receiving adequate accommodations in the general classroom and thus is not entitled to special education services using the benefit standard the same benefits standard that the court the supreme court used to determine if they'd already eligible disabled child was receiving an appropriate education in light of their progress toward achievement in the or benefit in the general education curriculum or are you saying that even though one of the characteristics may have been present that in the long run it did not affect this child's ability or affect the child's education performance because the child was able to get very well above average grades and score above average on tests is that correct absolutely that is what we believe is the crux of the issue is most eligibility eligibility criteria in federal law are grounded in whether or not the child needs specialized instruction in order to achieve in the general education curriculum a level according to the supreme court and the board of board of education versus rowley the benefit standard is that the student is receiving some benefit they go on to say that it's not a all they're required to provide is a serviceable chevrolet of an education and the general education curriculum if a student is able to progress evidence by such things as good grades progress from grade to grade the special education hearing officers and making eligibility determinations is progress in the general education curriculum as evidenced by academic standards such as grades and progress from great to gr the i t team first of all are we argue that the ip team was properly constituted and if the court were to find a procedural error that the proper review at that point would be judged gould's harmless error standard which judge all ican footnote nine of the m l a case like knowledge to was the standard adopted by the panel in that case and under the harmless error standard and this is consistent with the target case and with your peril as well there needs to be a showing of some loss of educational opportunity and in this case there was no showing of lost opportunity the student remained at the intermountain private school number one and number two the hearing officer and the lower court both noted that the talent had not offered any evidence that there was a lost educational opportunity in terms of the two factual errors in appellants opening statement first of all if the id at the due process hearing both the intermountain teacher and the counselor this would be mr brand and mr morrison did testify at any weight to their testimony i don't believe in the sixteen page or so the decision that that was referenced i think you're correct in that the other factual misstatement was that  there was no special education teacher at the eye on january thirty first he just tricked had just miller who is the district administrator for special education and who also is a special education teacher and that's in the record the teacher i mean the district also had the elementary school principal who we guessed was the elementary it was a kindergarten teacher fo for the student and who had and this again is in the record had had continuing contact with the student keeping in mind that the student should have been in middle school at that point in time and so therefore there was no current regular education teacher that could be brought in and also at the ivy team meeting there were two psychologists mr of and who actually had made a site visit in december to enter a mountain and brought back required explicitly required the current regular education teacher of the student to be included in the i p but the revision of the idea in one thousand nine hundred seven broaden the  scope of who could be included in terms of a regular or special education teacher and also provided for some discretion to include other other people who would have knowledge that would be helpful in determining i'd be happy dance respond to any questions of down my house what do you think we should do if we should find that it was a procedural violation and that they failed to include  education teacher and then what well first of all i don't think it's clear in the record why somebody from intermountain was not at the i e p so it's all it's a speculation and i would i would argue that if you do find that the absence of the eye of the intermountain staff member at the i t t in january two thousand and three was  procedural error and i would suggest that you turn to the harmless error standard employed by judge clifton and judge gould in the m l case and that you consider in your analysis both the hearing officer and judge zimmerman's conclusions that no evidence had been introduced no specific evidence had been introduced showing any demonstrated la educational opportunity and that that nexus to a lost educational opportunity i believe is required by the ninth circuit a series of cases from  shapiro to mel and and so on anything further on that issue i personally not thank you for anything further from your side you have about three minutes left but you don't have to use them but i think the course you do is the following i think there's a clear procedural violation and i think that that deprives the child of a fate and of itself if the court is not and to decide whether they're going to reimburse this family for in her mountain for judicial economy sake and i'm the apostle of the sudden death real estate here banging the podium but i wonder how much sense that would make if the court were also inclined to believe that on the merits substantively speaking this was a deprivation of educational benefit and child was eligible i want to address that in the few seconds i have  are education is not merely grades it also includes going to school it includes being there this child was sent away from school kept at home from four for four to six weeks  she would mr so very testified that you know she really didn't like to read much to enjoying the silent reading time so he'd send her off to tutor other kids third graders she wasn't there for it was a constant problem and to say that well she was getting good grades all along therefore there was no problem here's the education in any meaningful sense it includes of in each pupil of the necessity of rules in obedience there to this understanding is no less important than learning to read or write just as powell in got the locus for one thousand us five sixty five a five ninety two ninety three in bethel school district versus fraser for seventy eight us at six hundred five public school education must prepare students for citizenship in a republican must include kate they have habits and manners of civility this child's education was most of flicked it most weakened by her disability which are horrific and everybody would agree that when you read about them i mean how can but  it was an episodic situation where she wasn't having problems where does this come from that a kid who was in trouble from the time she was increase cool was thrown out of preschools who was hauled away by the consistent problem throughout her educational life and in the record are the notes from intermountain that really go into that thank you counsel your time has expired the case just argued will be submitted for decision and the last case for the day will be united states versus create