well the next case for argument this morning c g by and through her friend keith and linda g versus waller independent school district he thank you your honor may please the court plaintiffs who is currently nine years old she's a disabled child with autism who receives special education services from the age of three to the age of five at waller independent school district in may of two thousand and eleven walmer an independent school district evaluators performed a full individual evaluation witness plaintive finding full sentences and showing significant versatility with signing in fact at that time plaintiff had commanded at success plaintiffs ordered committee at waller ice t place a b a in plaintiff's individualized education program or her i e p as required strategy for use of planning for the upcoming two thousand and twelve to two thousand and thirteen school year a b a is a research based methodology which requires careful data gathering to determine individual's current status with respect to adopt a desired behavior skill incremental step by step movement towards the goal reinforcement of each positive behavior and if each incremental success towards achieving a skill and then continued data gathering to determine if educators should just be approached at all along the way planets i actual two thousand and twelve to two thousand and thirteen school year the instructional staff working with plaintiff had no where to supplant its i e p at the beginning it all and effectively nor did it once they did have such awareness far from using a a principles they reinforced negative behaviors instead of positive ones either collected no data or they collect the data in such an unreliable manner that it proved useless to anyone including themselves they did not encourage either verbal of the shin or signing from playing in fact they placed her in a highly restricted zone classroom which limited space to move around limited interactions with other children limited any theatre or other forms of communication despite the fact that everybody recognized that this was a child this individual child was somebody who needed immersion speech and needed at the ip itself said encouragement of speech and finding in fact in this highly restricted period were were designed to limit the space in the classroom that any individual child have and to limit any exposure to interactions with any other children in the classroom when you're in that zone you're in there by yourself now you may really be in there by yourself because you may be doing so it can be a song it's salty with respect to other children they might have a teacher in they're doing work with you but you're not in there with some other classmate that you're not getting group instruction or you're having any opportunity interact with with other children their warres be placed all of its disabled students receiving special education services in the zone classrooms all of them all the way up from the from the the elementary school to the senior high school so the room was full of these sort of cubicle zone areas but it was all disabled students there were no non disabled students in this classroom exam best exactly right you're exactly  right in fact not only were there were there no non disabled or typically developing peers in the film classrooms or in any given phone classroom but the system was designed to restrict any interaction with such typically developing you have the need to have these meetings you have an i p i have all of these kind of stylized ways of approaching things and i think so that school districts will have some framework to address this which i appreciate so within this framework it's not really enough to just say well this one teacher was incompetent or this other person didn't know about the i year this person didn't use the right technique we have to relate that to a framework so first of all was that i e p deficient and if so in what way the mate who fell for twelve i p itself probably deficient there's some there's some evidence that the goals were not particularly measurable and this sort of thing but that's not really the the claim that we're making of it that is fine but that there's problems with implementation of it then what is the right procedure for you to follow to address that because i'm feeling like this seems very big the same as it you're making and this process is very step by step the school gets to get it right because we have we're dealing with school districts that are dealing with thousands of children oftentimes maybe not this particular mine many of whom do not have these needs some of whom do and everybody needs kind of a fair chance so we have this system tell me specifically now we have an ip so in arguing too it's decent it's not being followed by teacher and what are you all as your clients be use of a b a principals and methodology they were supposed to be gathering data that was supposed to be behavioral charting they were supposed to be immersion and encouragement in with didn't even know ok so now the parents realize this at some point then what what if they do and what did the school district you know do or fail to do well i don't think the point his parents ever they're not experts or the fifth they are so i am don't misunderstand me to try to blame the parents what i'm trying to get to look i understand is appearance what you would want is the very best for your kid you would want to just perfection you would want everything under the sun and you would do everything in your power to give your kid everything and i don't doubt these parents fall in that carry this is a negative to them but the idea that id is a understands that school districts are not going to be avenues  and it's setting up a standard and setting up a process because if the if the id isn't being followed then something has to bring that to attention of the school district so they can solve that that's where i'm trying to go i'm not trying to blame the parents because i have seen cases where i completely understood what the parents did but they acted precipitously under the law and were unable to do anything on their behalf because the lot in allow that that's where i'm trying to go w statutory framework puts the burden on the school district to follow its own program that's that's what that's what they are for you've got a program you're working with parents to develop but if you if you so much of the fine don't follow the law then you're not  don't think that that by itself necessarily allows parents to say even for example we're starting in september of two thousand and twelve the instructional staff wasn't following it if the if the parents had come to the october two thousand and twelve or and they said how you got it you didn't do x y and z in the p we're yanking the child out you know you have committed a procedural fallacy we' plaintiff lack of benefit and that prevented her from receiving a free and appropriate public education that's standard if i just sit up here and say well that involve ip i think he and i leave it at that then now i'm gone because that's what i'm trying to understand trying to get more understanding of the facts here and how they relate to this framework sure she were asked she regressed because of these failures in the ivy in other words we call it just the school get a chance to try to fix this or do you get to say look you didn't follow the ip my child regressed i'm outta here and you're paying for it that's maybe i'm just not being clear example like i'm getting the answer to this very core thing that i'm trying to understand ok then let me try to attack in a different way you t see the data that you're supposed to be collecting under that you see in the district you know we you know she's she's doing all right we're you know we don't have data to show this we can't give you anything but as far as we're concerned she's doing fine still problems november two thousand and twelve parents call another or me she's regressing further she can't do anything she says she's losing her verbal place and she's regressing in terms of behavior the parents are again thing look here's your real tell us what's going on what you know what is being done to march child forward based on the program that we're supposedly working on together well we you know we don't have any they don't get done until february of two thousand and thirteen the parents don't get it in april two thousand and thirteen almost at the end of the year and even when the school instructional staff becomes aware of it and becomes aware that three hundred she had before she's regressed her behavior is to a point where she's grunting and screaming and carrying on she's not communicating at all why because behavior is the only form of communication  and that's all she's got what's her current situation her current situation right because she's been in private placement she has you once she got a was in two thousand and thirteen she went to people who actually evaluated her it was only after she got out of well arrived at the end with people who were actually willing to work with her individual characteristics that she began to show that explosion of activity there was nothing about her particular state in that year that was responsible for the catastrophic decline rather it was what she was feeling with walleyes were even remotely close to what my opposing counsel depicted for you i would probably agree with you that we have failed under the test developed by this court  over twenty years ago which has served as a as an excellent guide to school districts in terms of determining what their obligations are under the michael laffer society fair case i would agree with you the facts are not even closely to that let me give you want to example the council says that the child had regressed in her sign language ability towards the end of the relevant school year and the relevance to your hon because of our one year statute of limitations in texas is two thousand and twelve to two thousand and thirteen beginning in august of twelve the father a pardon me forty seven ninety two forty seven lines forty seven ninety and that record slate forty seven ninety one states unequivocally that the child had three hundred signs in may of two thousand and thirteen now i will be the first to state that the school staff never saw the child using three hundred  spontaneously but there is nothing in the record whatsoever to indicate that the child ever had this spontaneous and generalized ability to sign in that fashion council stated to this that overpaid over fifty page opinion very detailed opinion dealing with the facts generated in the record generated in a  long trial determined that the for two thousand and twelve was appropriate it was designed in accordance with the evaluation information that the school district had access to and in fact provided a benefit to the child but it was it fall and it was followed your honor but really all these people didn't even know about happened they follow something now known at records so i forty eight fifty six and pardon me first time before this court must be must be beginners beginners nervousness at for every record cited forty eight fifty six karen when the teacher states unequivocally in without challenge that she was aware of the child's eye had been child's i e p prior to the beginning of the school year what counts so is and i'm assuming this i don't that she the principal doesn't know where the i p is because the principal at that school always had a duplicate copy apparently of the ip but the implementors of the ip miss mccabe miss when mr mc this is that speech there best have the i e p in fact we're providing the program the only record in this is in the the only citation in the record that indicates the program wasn't being provided was the first week of the school time period when the speech there best believed inadvertently that she did not need to provide services during that first week time period that was corrected by ms oat as the special education director and compensatory time was was provided if i can address just briefly the statement regarding the zone plans for so i think that's an area that has been also mischaracterized that testimony from laura rosen was found to have been particularly persuasive to the hearing officer in the case below mr rosen was a a trained individual working with autistic students for over forty five years she was brought in by the special education director early in the year by september twenty fifth she was providing over  she was in the classroom for six hours each week beginning at that time restructuring and for the individual needs of the student herself and the student in this zone classroom was not isolated as was depicted by opposing counsel but there are numerous records citations from this rosen's testimony and from to the student in question so this zoning was designed to minimize the student's ability or inability to focus her attention and many of the same students in the same classroom and just to also turn some attention in the classroom itself is a preschool program for children with disabilities that it is a program designed for children with disabilities in the state of texas incorporates the p p c v program to provide services for students who are younger than the compulsory age of attendance there are no students of the exact same age in school in any school in the state of texas unless they are in a pre k program and the pre k standards are deal dealing mainly with poverty and we have english as a second language neither of which this student qualified for and was not able to be they said there was no one to mainstream her with no not not at all your honor she was mainstreamed we have students of similar age and then towards the end of the year she was that age she turned five in october so she wasn't eligible for kindergarten that year two thousand and twelve but she did turn five so she was able shortly after entering the school to be integrated in numerous ways at lunch time in the hallways at recess in fact there are pictures of the students in the record enjoying recess scuse me and she also under the testimony of karen w enjoyed on over our long program with it was a graduation ceremony for kindergarten students she attended along with other students in the p v c eat class room and miss when testified in a what i considered to be in a particularly dramatic fashion how proud she was of her student because she was able to sit to enjoy to pay attention and to not disrupt there was talk about disruptive behavior primarily the disruptive behavior be the aggressive behavior that was referred to occurred either during the previous school year or early in the school year it didn't minish to the point where when the when the school district said ok we'll provide we will provide a functional behavioral assessment we'll look at doing the best the teacher and dr goldstein both have to sort of scratch their head saying what are we going to address they finally came up with addressing whining as he's supposed to assess and we weren't there how are we supposed to assess what sound like very contradictory stories of the same year you're telling this story where this child is doing fine integrated with other students getting all this specialized help you know signing speaking sit through graduation your opponent is talking about someone who starts years pretty good and up by the end you're grinding and screaming and kicking and highly  the established case law under in this jurisdiction and and in most jurisdictions and that is that a finding by the hearing officer who has had the opportunity to sit through testimony to observe witnesses to read through the documentation in great detail and in this particular case being having been physically present myself along with my opposing counsel i can assure you it was a the record before you which is so the luminous but that is just simply the amount of testimony we had eight days of testimony and along with corresponding record sides in the the due process hearing decision issued by hearing officer carmichael the the details are provided for each of these issues where the facts do not bear out what has been presented  in the briefing frankly and the district did not have an opportunity to provide a rebuttal to the apply but there are several statements there which trying to be generous here are either misstatements or mischaracterizations or misunderstandings of what transpired starting with for instance right with my first example of the i e e e p being provided to the staff the more the documentation itself doesn't prove that they were six week progress reports there was a detail on plus minus checklist developed for each of the objectives for the child which is when prepared and testified were guardians testified to were during the course of the hearing these six week progress reports were provided to the parents every six weeks detailing the level of achievement for the student the disagreement came in when the parents said we want it presented in the same format as our private there is but they never told the school district what that format was and that the court will see documentation from the school district where the school district provided samples of charging to the parents saying would you like it in this format would you like it in that format in fact it became a a discussion point at the may two thousand and thirteen a r d meeting  that became an issue of contention as to how the data was to be tracked but there is no standard there is no requirement that data be kept in any particular format and that is a finding that this hearing officer found in the informants with current case law be possible roebling this case out of california talks about da being presented to that chord in the format of statements simple statements about how the child was performing so i think that the the answer long winded as it is to your question is the findings of fact were guarding educational benefit as provided by the district court as provided in great detail by the due process hearing officer are to be reviewed by this court under clear air standards and only have to review of the entire record if there was some feeling that there would be a manifest  injustice that is my understanding of what clear air would this court be in a position to stir those findings there was discussion at the hearing great amount of discussion about the extended school year services there were two opportunities for extended school year the first occurred in a one to one setting  where the child was with her then current teacher during the summer of two thousand and twelve that teacher met the parent each and every day presented the parent with the information this same teacher was described by the mother as someone who should be running for president she felt so wonderful about that that particular individual we provided that program for approximately fifty four hours during the school year the next offer of extended year during or so year during the summer excuse me during the summer i apologize it was just during the summer time but it was designed specifically for the child such that it didn't allow any large gaps of time to occur between sessions with the with the teacher and the next  increase that amount the next time extended your services was offered at the may arden meeting it was six it was offered with an increase of forty percent for approximately seventy five hours the parents late and to kids who attended the meeting stated that she thought it should be for a much longer time period but gave absolutely no substantiation in terms of evidence to why that should be the case the the parent grew frustrated with the school district because in october the school district was being asked what are you going to provide for extended year for the summer of two thousand and thirteen the standards for extended your services in texas under texas law require evidence of a regression problem and they were problems that same teacher that provided the instruction during the summer program looked at the data collected by miss williams the teacher during the first six weeks and testified under oath that she felt the child had not regressed and in fact if you look in the eye e p itself which is that respondents for exhibit four in the record you will see that the document itself contains a fresh old or a baseline of performance it has the students miss smith who did testify was in a particularly good position to testify regarding regression there had not been documentation of regression just like there had not been the year before but the school district decided they were going to go ahead and provide an extended program in fact the school who provided an extended day for their child this child again was a preschool and child most children who are in p p c programs pardon me most students who are in p p c programs in the state of texas are there for half a day this child was there for the entire school day we experienced some difficulties at the end of the school day around two o'clock during the october time period and the school district at the october meeting in conjunction not against the wishes but in total agreement with the p reduced by sixty minutes that extended school day with the idea that we want school to be a happy place for this child a productive place and to minimize the students own  growing exacerbated at the end of the school day so the if the child was eventually going back to a full day in beginning a full day  in the latter part of december and then finally by january had achieved four bakit back to four times status work or your time as  key evidence in the face which is for example that the the that did the district reinforce the negative behaviors that the district constantly was using high level reinforce  or something to to prevent certain kinds of behavior why were they doing that if there was no behavior being given it doesn't make any sense in this case i think you you've got witnesses from  the from the school district there obviously have an incentive to to save things from going well you've got witnesses on the other side so how do you look at it we have to look at it to a certain degree with just the logic of the situation why was the id piece developed in the way it was happens if you reinforce naked behaviors and there's absolutely no testimony there's no evidence in the record at all the fact that the plaintiff's account of that is is wrong everybody says all of this school districts witnesses themselves even the director of special education say that they were reinforcing these negative behaviors or what happens if you do that if you reinforce positive indeed yours you get positive behaviors back if you reinforce negative behaviors you get negative behaviors back so what's the logical thing that would happen if you were actually eating an educational program that way well you can get negative behaviors and so when plaintiff's witnesses players ever say that there were negative behaviors and the school districts point the evidence that it doesn't work that way finds doesn't work that way and in fact the evidence in the case indicates that it didn't work that way here either because it's not only planes witnesses that talk about her having run thing in screaming and pro from wine now calming down because she was having a tantrum calming down because she was sick of the haters it the plaintiffs account of the behavioral issue only makes sense is the only count that makes sense with respect to the speech and language issue if you're going to put a child in a environment in which she speech and language immersion what do you  silence struction that and you prevent her from access to speech and light and language version and nobody around knows signing then if she really going to be having the same level of ability at the end mill and the only thing that the defendant points to is a statement from her father the so she had three hundred signs in may of two thousand and thirteen or of course what he's referring to is that she had three hundred s on they were there somewhere they were late but by the time he got to may of two thousand and thirteen they were only too late she couldn't use them until she got out of our eyes they backed into a private program and they were able to draw them back out yeah they were there she ha she couldn't use them anymore back her private speech therapist testifies that she only had twelve and even if you look at the data of the speech therapist from all arise the she's got goals that say ok well she's supposed to have twenty five signs she's supposed to show twenty five signs in the course of the year she's supposed to have you know twelve verbalizations which she can only list them one by one and she lists them according to her testimony any time she hears them