case number seventeen dash five nine eight nine in case eighteen dash five zero eight six l h at all versus hamilton county department of education at all argument not to exceed fifteen minutes per side mr bennett you may proceed kids considered in the past thirty five years because here you have the opportunity to consider two issues that are of overriding importance not only to students but also to special educators must consider the standard that governs a decision of an educator to move a child from the general education setting to a more specialized setting where the educators can pursue a meaningful educational benefit with appropriately ambitious goals as envisioned by andrew f secondly this court has the opportunity to affirm its long standing decision in kimball versus sterling board of education in which this court held that an educator who acting in good faith if he or she makes an error in judgment regarding a placement decision that educator does not thereby violate title to them because the disabilities act or section five of four unless there's a showing of intentional discrimination with the course permission like to take a look first at that issue dealing with placement so the longstanding pretty present here in the six circuit has been the rocker decision and the rocker decision rests upon the supreme court's earlier decision and rally which under the unique facts of that case requires school districts to provide an education program for students that pursues some educational benefit is so based upon that holding the sixth circuit held that when a child is being considered for it to be moved to a more restrictive placement that move would be inappropriate if the child was receiving some educational benefit now we respectfully suggest that the fundamental nature of that principle changed markedly in two thousand and four when this court then decided the case of deal because in deal the court had the chance to take a look at this rally standard and ask does the i d e a the individuals with disabilities education act really envision just some benefit for these children or is it something more and in fact this court decided that really to serve the purpose behind the i d e a a school district need to provide a meaningful educational bit by which this court determined that you look at the abilities of the child and petition ellen is the child and you craft something that really reached beyond some simple benefit isn't this all off the actual determination of what's meaningful or what's as as  long as we've determined the district court has applied the law or recognize the law and deal iraq or why are we just to defer to the findings here district court that this was and fact in so not only do does this court have to determine what the standard is but more to the point this court has to determine whether the district court correctly applied the correct standard but reaching beyond that  it very clear that it into a force is the supreme court's recent decision in this issue makes it very clear that courts need to defer to the educational expertise of teachers because teachers understand the pedagogy they understand the child and they in their professional judgment understand what is meaningful under the circumstances and in this particular case the district court did actually find that there was some benefit that l h was receiving  journalistic ation setting well the two problems with that first is the wrong standard under deal andrew f that's that benefit actually has to be meaningful to that child and second district court here your actually emphasize the word meaningful and the quote was of the district court apply the deal standard actually going or no and in fact the district court makes that it does cite to deal but it doesn't analyze deal under the of whether the educational benefit is meaningful and that's actually clear on page twenty three of the district court's opinion the district court makes clear that there are essentially two standards that are at issue there's the the rocker standard that there is this tension between these two standards and we suggest that the district court should have reconciled that tension and revise rocker to consider that the benefit issue has to be meaningful with respect to that what's the difference between s advanced by the by the school system in deal and the school and the district court or that was where the court of appeals said no the name is more than just some that issue was was explicitly considered as well and the finding was that some isn't sufficient the mark here is we have to have appropriately ambitious goals worked into the i b i u p that are calculated to pursue academic in functional advancement in with regard to that deference has got to be to get into the educators because the educators understand whether one particular skill is a skill or whether it's really meaningful because lays the foundation for further advancement and that's really the core here the district court recognized that there was some advancement but the teacher said yet the progress the l h made in his second grade year wasn't meaningful because he wasn't acquiring the skills necessary to move forward educationally and functionally as a for instance he did not while he could  fairly high he could not demonstrate one to one number corresponds with objects so he could call the number but he couldn't translate that number two to account of abject and as a matter of fact well the child was at the minus three school whereas l h had been able to demonstrate one to one number corresponds to the number fifteen at the money story school after two years he was still unable to get past sixteen and so the educators based upon their judgment concluded that the minimal progress he made was not meaningful it didn't lay a foundation for advancement in terms of education or functionality and as that is a determination for educators to make another reason that we have to defer to these educators your honor is because fundamentally there are some clearly erroneous findings by this district co first of all the district court completely misunderstood the context of the teacher's testimony of due process because the plaintiff's claims shifted on appeal to the district court and from the face of the of the the due process record that's obvious the second clearly erroneous finding your honour's is that the district court made the assumption that this child gets into the typical learning profile of every other student who has down's syndrome and that simply isn't the case there is no such thing as a typical child with down's syndrome there is a learning pattern that these students have but the undisputed evidence from speech and language pathologist was that this child did not fit within that profile and so the expert aware that what might have worked for other students don't syndrome didn't work with this child and that's a critically important point your honor evidence of any other down syndrome children in the in the school not not in this record it again when you when you look at when you look at the i d e a we look at individuals and so what a particular child is capable of doing is a unique inquiry deal says this has to be fact specific  student in the c d c that he would be placed into i know your honor but that's actually not true that the record actually demonstrates that there were many other students in c d c who function more independently than this child that that 's very clear in the record it is true that he had some splinter skills that were better than many other students but in terms of independent work he actually was very low functioning and actually you can see that in the video submitted as part of the record where he's at the monastery school in the crux of that that move was intended to be to pursue a more inclusive education and in fact what you see is the child is unable to function even with the preschool video without heavy support heavy intervention and heavy redirection by his eight in there when he's in the classroom what you see is more of the same he's dependent on his aide to stay on task  and truthfully when you're thinking about it she even functional advancement that's the core of the problem the child did not have the work skills to be able to pursue that in the idea of th outrageous in this case and so my question based on that that is if the whole situation is kind of an equilibrium and i know you will argue that it isn't but if it isn't there kind of a also very clear that we mainstream to the maximum extent appropriate in the appropriateness is a function of where can a child achieve a meaningful educational benefit and what we have right now is we have a tension between the deal standard in the ranker standard and its attention to this court it simply has to result because we have blind subset of standard under under developing the e p what is meaningful and we have another standard under placement respectfully that is a decision educators simply have to make because they understand what a child needs in order to advance and i would also suggest your honor that whether the benefits of a more restrictive placement can be imported into a journalistic asian student or also requires courts to defer to educators because as in this case they know what they had already get tried so is there any place for the parents or for the experts who disagree with the educators of course your honor but in this case have a minute remaining in this case your honor that the experts were unfamiliar with this child they assumed that this child that was in a profile to which he did not day before the hearing she said it did make sense to work and that's probably because she didn't see the other six hundred pages of data and so yes there's absolutely room for parents and their experts to disagree but they have got to know about the child and in this case that simply didn't happen in the time remaining if i may i'd like to sum up we're asking this court to affirm this report on the issue of reimbursement reimbursement which fortunately we briefed heavily damaged chance to present that point here this morning we're asking the district this court to reverse the district court on the other remaining issues and to find that the rocker standard must be revised to factor in the meaningful educational bit  educational policy decisions fairly owners were asking this court to affirm its decision in campbell which holds that a good faith mistake and placement does not rise to the level of intentional discrimination  morning your art justin gilbert i'm from chattanooga and i represent an extraordinary young man named l h i'd like to talk to you this morning about what it meant for him to make progress first at a public school and then the slightly different argument about what it means to make progress in the private school where he was unilaterally placed in the public school i think you can read or you can tell from reading judge colliers opinion that an extraordinary amount of care was taken in crafting that decision it is detailed it is thorough and for purposes of this court it cannot possibly be clearly erroneous in fact it's clearly right the evidence in the record that h made progress in the public school in the mainstream classroom come from the teachers that is the special education teacher miss hope it comes from the case manager miss higgs it comes from the progress reports that came home it comes from the report cards so there's no way judge colliers decision that he can make progress in the mainstream environment could be incorrect as to my friend's arguments about the standard whether it's substantial meaningful or whether that's wordplay in judge colliers opinion itself he found that substantial progress that's in the record at page six two one seven he found that the child made appreciable progress he found that it was abundantly clear quote that the child made progress and if that were not enough the school district took another stab at trying to show l h did not make another enough progress after the injury if case came out specifically they filed a motion to reconsider under indra f and judge collier came right back again and said my decision is unchanged for good reason the injury f case may have changed the standard in the tenth circuit where was i think only de minimus but that's never been the standard here meaningful has been the standard here and judge collier correctly found it on the first go round and he affirmed it on the second go around but i would like to spend some of my time talking to you about which is particularly important to the parents see is what do parents of a child with special needs do when the public school says it will not give the supports in a mainstream class and they are forced to find a place that will what i mean by that is there's no dispute that the mainstream classroom normal park would not give him the very basic supports of over learning and reteaching and preaching that is kind of giving hip a preview of what is to come teaching him and then giving him a review so what do you do if you're the parents in that situation you have to look at what your community offers and under the case law you have to try to find the supports that are available in your community that will help your child these parents did it sure ordinarily well but their child the monitor story school offered the child and i want to go through these a structured environment if you're familiar with montessori classroom teachers who are not familiar who come from the public school may think it's just lucy goosey unstructured stuff but it's actually not it is tailored to specific grade levels it is tailored to the common core in tennessee even though it doesn't have to be under the florence county case it is and in l h is class there were only eighteen kids but three staff persons that included the teacher it included an aide assigned to all eighteen kids and at the parents expense of fifteen thousand dollars a year which they paid themselves included a paraprofessional so within this environment h can be guided to the appropriate levels for his individual meet will he ask you is there anything in the record of any other alternatives besides montessori that are out there that the county is saying that the parents should have considered judge bush there's nothing in the record about what the county said they should have considered there isn't the record the testimony of the mother deborah who talked about how she did canvass all the options in the county she visited schools and she interviewed the monastery teachers specifically the director a lady named bobby spink who's been the director of the monastery school in chattanooga for forty years and she actually has a special education degree so the mother gave testimony about why this was the appropriate place but there's there's no i have no other evidence of any other alternatives i mean if if i t's true that that the child should have been mainstreamed at the public school if that's the case then and the school's not allowing this child to be mainstreamed then the parents have to have an alternative and so modest sorious the one they chose why because i'm saying is there anything else out there where someone saying there is a better school than montessori that you really should have put your child and to get this mainstream other than the public school but no  there's not and for good reason there wouldn't be i mean this is this school has the small classroom and has three people in there it's tied to common core it meets his needs very well but dance your question up there is no testimony in the record that here's a better mainstream and i mean this this point that you're now talking about what's at issue is whether the parents should  have gotten reimbursed for the montessori intuition and so forth now my question though in that regard that's clear but the court's ruling on this particular issue deprive them of anything ruling said an important standard for when when and if the child comes back to public school he will be judged by the correct standard that is he would have to meet but that's that's that's standing isn't it yes yes so this whole issue in your in your cross appeal really involves the dollars involved in reimbursement it involved the relief well thank you yes it does you on and what happened i think is that the public school people who have an interest in the case came into the modest ory school and you know gave a negative opinion of it these were not independent experts these were these were the school this is the public school people who are involved in a litigation pursuant to the idea when when the parents when the parents said we can't allow this child to be segregated at the c d c he needs to be mainstreamed and the school said no he's not i mean and correct me if i'm wrong but the school is saying no we're not going to keep him mainstream their normal park what what other what were the options that the parents had at that point if they didn't put him in the montessori school was it solely the c d c that would have been this is what the school demanded there is a provision in the idea called the stay put which in some cases allows the parents to demand that the child stay where he is pending a due process here that's not appropriate in every case and it wouldn't work here because had the child stayed put the public school made made it clear that they were not going to provide him reteaching preaching and overlearning i think the basic supports that he needed and so in order to get those supports the parents did have to privately place and they have that right they don't have to exercise stay put but that right is at their own financial risk it is so just so i'm clear about how this whole thing would have tracked so if he had if that exercise stay put it wouldn't have been with what he needed in a mainstream classroom but they said sure your position the other option was to allow the school to put him in the c d c where he would not have received the benefits of mainstreaming or find some third alternative which they then did right ok and the point i would like to emphasize with that judge about children is that the parents found a place that he would be mainstream this burger case b r g yar out there that made the point of mainstreaming can't save an otherwise inappropriate product placement that that's not what we've got here the parents put him in a school where he could be mainstream he receives the powerful immersive benefit of mainstream and if there's any question about whether the mainstreaming at the monastery school work the proof is in the pudding there is another question and as i read this record as i understand it it's the school's position that the evidence of progress that he was making at the montessori school is simply not true it's not not reliable that is the school's position but the public school teachers barnstorm into the montessori school and they've given these tests he doesn't have is a he doesn't have any support he's confronted with these tests for the first time it would be like it would be like someone coming to me and make me take off my glasses and say take a test i would do poorly because i don't have the mitigating measure or the support i need he needs a preview he needs and aid and he needs repetition and that is what he was getting at the montessori school the better evidence of his progress is dr with brad's findings that he was almost to grade level by the time she examined him and she he went all the way to connecticut and dr whitbread specifically works with children with down syndrome she is the most knowledgeable person in the united states because the i thought the school said that that she didn't have any hands on or in depth information about him but i don't think they said that he she i think they questioned whether she understood that he was somehow not a typical child down syndrome but he flew to connecticut and she tested him he went through the clinic and all of that and then she testified that he was by the time she examined him merely on grade level by the time that he was in the montessori classroom and so it is indeed an important decision because parents of children with special needs who must find a school are not going to be able to recreate the public the perfect school nor they going to be able to recreate the public school i'm wondering is the standard for the effectiveness of the alternative school should it really be determined at the end of the schooling or at the beginning of the schooling because the parent of the parent has to make a decision of where to send the kid and they're not going to know what the results are going to be at the end of the school lane when they place the kid they're going to have to make their best judgment at the time of where to put the kid so why i'm just wondering as a matter of law why why is our standard if it is indeed the standard why are we looking at the end of the alternative schooling for the results as opposed to looking at the focal point being when the a parent makes the decision to put the kid in the school it's a great point and i and i think maybe just collier was looking at that temporal point because well i was merely arguing to prove there isn't a put and i understand that but but that makes your whole the whole argument irrelevant quite frankly because really it should be what what information does the parent have when they make the decision to put the child in the alternative school not the end of the school and what happened but the parents didn't willingly do  remember they they did this at the montessori school the child did take time you know sampling it out they do have a forty year director with a special ed degree in there is an eighteen to one with three staff persons in the classroom so those were things known on the front end and it was a deliberate choice made on the front end that this is just a curiosity question but what's happening to the young man while all of this is going on he remained in the mosque or school in fact he's there today he will begin eighth grade coming up and once eighth grade is finished that's forced them on a short school goes so the parents will confront where he goes next possibly returning to public school with the correct standard last two points i'd like to make very very quickly is that under the florence county case even if montessori is not perfect partial reimbursement is frequently given and the parents paid for this purpose of themselves fifteen thousand dollars one year i think nine thousand another year that could be a remedy given to these parents it's not an all or nothing and game last thing your honors in my thirty seconds remaining he is there is an adage in special education circles special education is not a place and what that means relevant to this case is that service works to the child the child should not have to be taken out to go to those ports and in this case the most basic simple supporters o overlearning preaching and reteaching can in fact be given in a mainstream environment just as judge collier found so for those reasons we would ask the court affirmed judge colliers findings that mainstream was not delivered respectfully reversed the findings that the montessori school was not appropriate given the overall circumstances and if you prevailed on your cross appeal it would  include the school district continuing to pay for them out of three i think it possibly would i'd to be honest i've not really researched that yana because the mosques or school only goes through eighth grade ok so it's close to the right right yes but well but that raises another question which is that if the district court were upheld with regard to the mainstreaming issue then if the child were returned to the public school he would be mainstreamed yes and that would have to be in a way that was beneficial to the child not is you indicated if they'd exercised the stay put he would not have had what he needed in the mainstream classroom you are correct it would be in a way beneficial to the child he would not have to keep up with non disabled peers and he would receive the support he needs in the mainstream environment thank you thank you very briefly i'd like to make him four points first with regard to the issue of whether the judge used the correct standard i think the judge himself was very clear of page twenty three that he did not use the meaningful educational benefit studer he notices the tension between the two and then he goes on to analyze the social benefits of inclusion and that's important because n g o s doesn't even speak to social benefits as a matter of fact this child didn't even have social goals in his i u p d because he's so well socialized so we have to understand at the outset that the judge himself recognizes he's not using the deal standard to decide a placement decision second we need to understand it was because back to a question that judge guy asked during my  argument what do we do with with inclusion and we need to understand that the that the purpose here the aim of the school district was not to put the child in c v see the entire day the goal here was to put the child in only as much as was necessary to deliver core instruction grossi my time has expired if i may have a moment to sum up that's kind of interesting because you thought you wanted sixty seconds i did say that nobody's ever in education in so we don't presume that the child gets into a profile because of a diagnosis we don't imagine he is benefiting from inclusion because it is in the same geographical area and we don't pretend he's making meaningful educational that's the supreme court decision we would have to assume that your premise is correct which is that andrew f it's actually so undermines rancor that it doesn't stand well your honor i think that i think th think the injury left takes the position that the standard used in rally some benefit was never intended to establish a substantive basis for effect and that is actually what is being done when you apply the  a conflict that this panel by itself couldn't fix but injury forces the issue and that's what makes things different thank you you're out of the case will be submitted recall the next case