with what i think fundamentally both the hearing officer and the district court got wrong in this case where they focus their attention was that the moment of crisis when these children are avid control throwing a tantrum kicking and screaming of course at that time it may be necessary to restrain that child it may be necessary to put him someplace where he can calm down but that that's the wrong time to focus on the time to focus on is where in that first act of defiance the failure to comply not following directives it is at that moment where if the school district had done with the idea a required of it if they had prepared a functional behavior assessment if they had developed an appropriate behavior improvement plan based on that functional behavior assessment and then if they properly implemented that plan we would never get to the situation where we have a child kicking and screaming the no tell me tell me if i follow you some children or is going to kick and scream i was hyperactive so so so so help me i don't follow the in logic of that ok well something happened before you started kicking screaming aren't in in your case it may be that you were being defiant and disrespectful and it may be that the authority figure in that case appropriately expected you to comply because you are not a person with a  disability and that's where these children are different these children have a disability that they cannot simply comply because you are an authority figure you have to develop a relationship with these children based on respect respect for them and their disability and their needs and not a do it because i said added to it now i have kids and i have told them many times to do something just because i told them education so you know that's the case for trying to come over i think these cases are facts specific and i think something that's important in this case that we did is in each of these four cases we had a  doctoral level board certified behavior analyst dr jason travers who prepared this prayer report and i think i'd eat if i beg you to take the time to read those reports this is somebody else this is at the in the due process case we there was also an expert this was dr jason travers as i said a board certified behavior analyst these are the people who are supposed to be able to know how to conduct a functional behavior assessment know how to develop a behavior and government but we don't we aren't the initial decision maker we don't review these cases s court of appeals being the fourth or fifth tribunals to review a massive record well we don't go down in micro analyze what some experts said at just a it was a just a a plan he did the parents didn't agree with and were overruled or it didn't work as a matter of hindsight well it did not work which is which is proof of what we are saying and what you cannot prove if you develop a if you do a functional behavior assessment develop an appropriate behavior improvement plan you will not get misbehavior you can these can't they fail to comply with accepted professional practice it's not bad intentions bad intentions change change the landscape entirely what what testimony by by bill school district official should i read to to  understand that there were bad intentions bad motives here what they did not admit that they had a bad motive you can look at it by their judging by their actions so if you fail over and over and over and over and you don't change that is bad faith sounds like congress and the budget process you can you can not say i acted in good faith if i've failed make no change fail make no change every day that these kids throw a fit and have a tantrum that it was forty eight days the period we're talking about least one of them well that was one school year where forty eight days into the third grade we had a whole second grade year where he misbehaved through tantrums they hid it from the parents didn't produce any report those are you know if you want to you know the balance of my time thank you differently and laws appellant claims because they failed to exhaust administrative remedies judge holmes conducted an independent review of the expansive as you described it judge logan hearing records for the parish and craig point out that the standard of review as as referenced earlier is denote but the factual findings of the district court only can be disregarded if they are clearly erroneous standard really is clear error for and the factual findings in the district court address all of the factual findings that the hearing officer had in less detail than the hearing officers but there is support in the expansive record for each of those decisions one of them is clearly erroneous and for that reason we ask that those decisions be affirmed i ask you what's the closest case i think part of the problem here is that there are four very different cases crammed into one and i'm i would say  had reversed the administrative panel that had decided it and the district court didn't set forth the appropriate standard of review and didn't analyze the didn't analyze the decision or the factors that went into the administrative panel's decision and that was the reason that this court reversed may have found that the hearing that ministry of body had gotten it right and then in and then this court affirm the district court's decision that the student had been provided a faith i think both of those are similar because they both had dealt with that will now show because it's carved out with a child with autism and it's actually administrative officer who made the findings at the hearing level because judges are not trained as educators in their fourth deference should be given to the findings of the professionals now that's how i understand the standard of review to be i right on that yes they are all right and so the judge had to give appropriate deference to the original finder of fact the trial judge and then we review his factual determinations if he did that for pla substituted his own notions for what the original hearing officer found then we could say that those are clearly erroneous right but short of that we look at what the judge found the district judge found or we look at whether or judge did go through the district court judge did go through and many pages i think like that seventy pages of analysis for at these claims and there was to my memory there resident one major issue that he disagreed with that minister and i'm hearing officer on beyond that he that opinion lays out the facts and the law and concluded that it did the decision below was correct and one issue that he di that was not the classroom that his ip provided for on the day before the student was withdrawn and the hearing officer after the huge they hearing the final decision in order that the hearing officer entered kind of glossed over that and didn't address whether that was placement without parents parental input and so the district court judge analyzed that found that it was placement without impairing parental input but that it did not deny the child a free appropriate public education because it was one day before the child was withdrawn and there was a meeting and i p meeting the subsequent day you know mr fenley never really got to the question about whether or not it was appropriate to strike now if you look at his opinion where he struck it the question that i've got really is fairly narrow even though it's take me a long time a lead in to it is this is that when you look at striking the expert's opinion and it actually deprives the party of its major claim that's a fairly harsh remedy and given the fact that there was still three months i believe until the trial date was to arrive oh  asked it was not an abuse of discretion and if you combine the border excluding dr knot with the rules sixty order of the first post judgement an order and that the district court entered it was not to be the discretion for two reasons that word or lays out that a different solution a lesser sanction was considered and he found it to be inappropriate and that is reviewed for an abuse of discretion and  set forth the factual findings that supported that and the other reason is that if you carefully review the summary judgment order there is perhaps one claim that was there was not a substantial departure from accepted professional practices because restraint seclusion and they label it or the use of a cool down room and removing the child from the situation as the district sees that and was permitted in not  p as the both appellant equal protection claim there is no compared or and there was no argument that staff and student safety is not a legitimate governmental interest and to the five of  addresses why that doesn't by the facts don't meet that standard there did dr no it's report meet the requirements of rule twenty six in your opinion as far as the disclosures in the old pinions  as i read the report of dr no off there seems to be a statement of will pinions but rule twenty six requires more than just a mere statement of the o p s requires you to state the factual basis reach of the o pinions held my question is do you think that the district defendants may renew their motion so the expectation was they were going to renew their motion to compel that was never done so to say then that we failed to produce him when they never moved to require us to produce