same record as was before the state review officer which is a factor that militates in favor of deference he was also considering the court was an issue which is substantive rather than procedural under rally and the supreme court's march twenty second decision and and this was an issue where we had asked the court to defer to the state review officer which generally speaking unless that decision is not sufficiently reasoned is what under the teaching of this court is the decision which is district court acknowledged to all these that knowledge that with an issue of class size which is how the district court described the dero issue boiling down to that this is an issue of educational policy on which deference again would be it appears the i h o did is he made a fundamental misreading of the rip point that he was relying upon to draw his conclusion about an appropriate less size he started out by saying that the prototype according to dr dorn his report in this is at pages for three to four say was and what he really hinged as the session on was that he read dr daughters report as requiring one to one instruction in the core academic subjects throughout the school day and this is on pages for  all five that's actually frankly a misreading of dr daughter's report what dr daughter actually said was that with regard to small instruction he said at the discrete academic intervention level and it's clear from his report for all four for all five that he's talking about small group instruction ideally no more than three students only for reading fluency and reading to coding and not for the core academic subjects throughout the required in all the core academic subjects throughout the school day and that rather than for reading fluency and reading to coding which is what the i show is speaking to and that misinterpretation was then adopted by the district court who said that  the the special education teacher in the district proposed twelve to one to class could not provide that one to one instruction in the core academic subjects throughout the school day does look like the like  numbers you might as well have twenty four to four ratio that only you have you have a big classroom and and the child it's easily distracted because of deficits you would just be a  learn nothing that was not the only thing judge jacobs that he has had a lot basically focus he also said he said you know six of one half a dozen of the other and he also said  that they were following the rally but they were not changing it they said really only involved a narrow issue that was decided there have been two hundred before as the standard has some educational benefit or merely more than de minimu s and that was the tenth circuit and we're close to that and i think your case is of also talk that's changed yes what the the thing that they that it is said that it has to be calculated to provide some educational benefit appropriate in light of the student circumstances and it's cracked and the other language they use is meaningful yes i mean people and also a chance to meet challenging objectives and if i may speak to that at the oral argument in the entry with case back in january judge well how do we measure progress for a student who is not going to make progress grade to grade which is acknowledged in this case the students what's called an alternate assessment student which means by definition he will never be able to track grade level goals so he's never going to match up with the other students but you do you do look at any any kind of trend sort of like the stock market way up and down but hopefully the trend moves right and the trend is measured though not through state tests but through the goals and objectives they're called goals and short term objectives rule to that assessment student this actually came up in the oral argument andrew f that this is the criteria that the idea is suggest that you can't look at the state test for such a student but for the progress on the goals and objectives and in this is the the standard was accepted as the as this is the law of the circuit but now we have a different standard should this case be remanded for for reconsideration and in the event that you were to even prevail concentrated on the child's circumstances and this as our viewers have said this child has an immensely complicated picture judge cameras focused on one issue attention which was not even the most significant anywhere near the most significant oral motor a proxy which means he couldn't process speaking a language processing disorder and looking at the totality of the circumstances and not just the tension in isolation the s r o it seems to me is the person  think or the the district court i think i would argue that it's implicit it's always been a place that you have to look at progress in light of the child circumstances here the goals and objectives were student who has that wasn't the upper edge of the spectrum she was doing better than most kids and certainly age appropriate girls and grade level standards were procrit for her this is a student who's an alternate assessment student that's like the one or two percent at the lower end who by definition can't get a reduced diploma can't achieve a grade level and we respect our perspective it's it's dangerous business from the start trying to distinguish supreme court cases that said standards on the basis of their facts but sometimes we do it i don't know appropriate and there are goals here there are twenty five goals that change from year to year one year there is thirty six when he was to forty seven the years issue there were twenty five and they had to do with decoding reading fluency attention the student may progress attending to task in prior years had to do with increased stamina and ability to attend and no one is disputing on the past year that this comes to this court that these goals and objectives were appropriate that being the case i think it's impossible to say that in supreme court standard that it but that this was an appropriate progress in light of the circumstances see if you go back to the narrow issue of the placement you received a couple minutes rebuttal i did hear you think a judge one of the issues that came up in oral argument was the goals and counsel for the district made a he said that the goals were different from year to year  in this case that the goals changed in earlier years but in the ip at issue the goals did not change and were held over and so i think that if the parents did not prevail i think they would prevail on both the substituted issue that there was proper deference to the i h o and also they would prove prevailing procedural issue of pre determination but if the parents did not i think that there would need to be a remained on the issue of whether under  it's appropriate for a school district to ever repeat the goals for student and because and drafted focus on the goals i think in in rally you had a student that was on the upper end of the spectrum and then in andrew f you had a student who's autistic was on the lower under end of the spectrum and here you have another student who is also functioning at a fairly low level another student who like andrew after was in the district program for four years the parents after four years feeling that the progress was not adequate left the question i think here you have a difference because the standard used by the show was not in this case and barely more than trivial i think that the i h o in the court and that this court has not used the tenth interesting factor here is that it appears that this child in the public system was proceeding from greed to greed and why i understand unquestionably would be adapted but twelve students and they were just calling him the following year i mean you know i don't think that you can say he was progressing from grade to grade it's you know he was in the twelve student class in kindergarten then he was in the twelve student class in first grade and second i think one of the things that parents in the district agrees that this is a student who is in alternate assessment and so the question of moving from second to third grade isn't did he meet the second grade standards and move the question is you know and whether you call it you know the opportunity the way that that it works is that there's something called both cs and i forget whether it's an acronym and it's an it's an intra district program where the districts who like the this district has a twelve was something that parents asked the district to consider and then the district refused to consider that and that is part of the pre determination claim that the district on the on the i failed to consider anything they offer the same twelve student class nine times in seven years and then there is the letter sorry the e mail by  grapple with the great evidence about the distractibility and the students inability to attend i mean that there is  lot of evidence and some of the district argument kind of contradicts because the district says oh well he was able to attend in this but then he had trouble in one to one and him in the you know the attention it's on and you have evidence on  the particularly the the most critical evidence then the s r o is not entitle to deference and in this case the i h o directly went at that evidence and the s r o did not door to i mean dr doherty looked at the child when he was in the district program and found that due to the distractibility he was not making what would be adequate progress and needed a smaller class and needed one to one intervention the district tries to kind of separate out eight one one and or one to three intervention but that i mean it was a package and the district doesn't address the fact well there is no one to one intervention in the i e p and so the i mean the district as it will look it's a what one is it one for there was a mistake but except that the the one to one intervention that was critical to the student's ability to read and as as you noted that  fully supported by the data with regard to the student's cognitive and behavioral only it's so in one sense he was indorsing what the district is no it's actually described not again it's his first and his foremost conclusion the second thing is that it was only d i know that's the opinion in your opinion and in the ari against new york city case from two thousand and twelve but there are other cases that specifically say that that applies for both sides that the district will only be charged with knowledge that exists as of the time when when the  that's introspective evidence and again the s r o pointed out that both dr daughters and dr starr's recommendations were somewhat and tell you waited in time at the time the c s e was making its recommendations on june fourteenth two thousand and twelve two a half years then and on may thirty first twenty thirteen over three years old at that point i think that's an appropriate decision for the s r o to make to to give her educational deference as this court pointed out in harness and twenty four team deference to an expert laws not only giving the expert the freedom to decide whether conclusions whether conclusions are supported by facts but also how much evidence is necessary for the expert to reach that conclusion and i submit that this is a case of exactly that there's certainly sufficient discussion in the record there's objective evidence within the meaning of frank g in the second circuit's other cases to support this finding by the s r o which we believe is supportable we see no