can you hear me thank you for your honour's counseling may please the court for over forty years and with full knowledge and acquiescence of the us department of education the state of connecticut has terminated special education services for not graduating special education students at the end of the school year in which they turned twenty one dollars in granting summary judgment for the plaintiff class the district court erred in several respects st the most significant services to all connecticut residents over the age of twenty one dollars connecticut was compelled under the i d e a to provide non graduating special education students with services until age twenty two rd because the idea was passed pursu congress's spending powers under the arlington central school case and its progeny its a term public education is ambiguous any ambiguity must cut in favor of connecticut th the original plan of t j was granted a regular high school diploma before the case was filed and therefore lack standing to bring this case i'd like st to address the district court's awarding of compensatory education even if the district court was correct that the brought by providing adult education services connecticut was obligated under the idea of bride special education services it was an abuse of discretion order combat's ridge occasion for the plaintiff class this court and others have made clear that under the idea a disabled child does not have a right to demand a public education beyond the age of twenty one this court however allows for compensatory education for a child over twenty one years where there has been a gross violation of the id the district court essentially held that connecticut l itself was a gross violation however a gross violation cannot be based on a court determined definition of the term public education when the federal judiciary itself has significant disagreements as to the idea requirements and whether public education and compass is the provision of adult education so far at least three federal judges including one circuit judge have interpreted the idea a as connecticut advocates in this case also the th and argu should not attach where not only officers of reasonable competence but federal judges could so disagree and for good measure judge bianco is the trial judge who was affirmed in man gio and just as qualified immunity should apply in such a situation it would be approved connecticut's i d e a part b plans and these plans contain a description of when connecticut exits special education and finally in the arlington central school's case cited in our brief the supreme court made clear that in spending cla legislation such as the id the conditions for acceptance of federal funds must be set out unambiguous the supreme court explained that states cannot knowingly accept conditions of which they were unaware or which they are unable to ascertain to the extent disagreement among federal judges in states on this point demonstrates that the undefined term public education is ambiguous as was the case in arlington it would be unfair to subject you know to get to retroactive liability  with state law or practice respecting the provision of public education to children aged eighteen to twenty one the term public education is undefined in the i d e a the district court held that the term public education included the adult education programs offered in connecticut and this was clear as explained in our brief adult education programs in connecticut are effectively high school completion programs far less comprehensive than the programming offered in connecticut and guaranteed by the connecticut constitution the only high school completion program available to all connecticut residents is the ged and that is really just a test preparation program best the i d e a regulations specifically provide th cd does not count as a regular high school diploma additionally the idea itself classifies adult education not as public education but as a post school activity public education in connecticut is as is the case in most states and affirmative state constitutional right implemented by the elected branches of government public education in connecticut is the highly regulated education provided in public schools as we outlined in our brief the education provided in connecticut's public schools usurp the state's traditional role in setting educational policy court is just a sort of miers opinion for the panel though i do you say represents a cooperative federalism and allows some substantive differentiation among the states also this court's analysis in the st johnsbury academy case is instructive there the court analyzed new york's special education age out provision and in doing so did not feel the need to look into whether new york has also provided adult education sir the original plan of t j lacks standing and the complaint could therefore not be amended the district court also erred in permitting the complaint to be amended to substitute in a r d j the original plaintiff alleged in his complaint that he did not have a diploma the record later revealed that he did have a diploma before the complaint was filed d j s transcripts also demonstrate that he earned the requisite credits to graduate in the thirty six deposition of hartford special education director established at harvard only issues one type of diploma a student who has graduated with a diploma is not eligible for further educational services under federal or state law thus e j lacks standing before the case was filed this is significant because under this court's holding in disability advocates case  lacks standing at the time his complaint was filed the complaint could not be amended to allow substitution of a are the supreme court in the clapper case has made clear that the party invoking federal jurisdiction the burden of establishing standing the plaintiff failed to carry this bird forth connecticut could not have known that in providing adult education services it would have been longstanding state law while a member of this court justice sotomayor wrote that news of the idea in yours federal regulatory schemes  of clarity this quote is borne out of the many cases discussed in our brief which show the various courts that have reached different conclusions about the statutory language in this case excuse me what you had admitted as you put a finer point on it if the term public education is given the meaning that the district court found this was news to connecticut which for over forty years has had an earlier terminations under well established supreme court precedent namely the arlington central schools case which itself was an id e a case perspective of the state especial who is engaged in the process of deciding whether connecticut should accept i d e a funds and the obligations that go with that those funds the record here demonstrates that for over forty years connecticut does not believe that its procedure for special education violated the the i d e a as found by the district court accordingly and if this court should reverse the granting of stubborn judgment for a r and grant summary judgment for connecticut alternatively if this court should affirm the granting of summary judgment it should nonetheless reverse the order of compensatory education because connecticut skep statutory scheme in place for over forty years is not a gross violation of the id thank you your honor i believe my eight services until he and dr summers that he had not seen skills commensurate with a typical high school graduate so if he doesn't accept the diploma to three services receive services why didn't you  so because you are under state law in the district was not obligated anymore to provide under state or federal law to provide him with services because he had in fact qualified for a diploma the record shows that he had twenty four credits which is the state law idea is to say i can get the services entitled to the school could just issue the pome and pursue them no standing so my response to that is that there are methods for him under state and federal law to challenge his diploma as he you know sort of sought to do during the discovery it was the st anyone had heard of it and i understand what he's the point he's trying to make what i can say is this st of all states could not do i think what you suggest because there are procedures in place that allow a student to challenge the education that he received he didn't do that in this case keep he he sort of alleged it after getting issue was raised but what do you know from the record and from the testimony of the special education director is that hartford only issues one type of diploma he qualified for that diploma he earned the requisite credits under state law and he was and he was in fact a graduate before the case was state but the key part would be that the objective of the particular program would be to educate the student up to the rubble of academic proficiency associated with the completion of secondary school why shouldn't that be the so i think i think the definition is too broad and i think it encompasses basically anything and i think that that's really really clear what impact if you had for example transition services or  that would be you know for adults that would be different but if the goal of the program is to get them to the level of secondary completion of secondary school that's right in the heartland of the statute  extent possible and what you have in this case connecticut only are the only statewide adult education program is the ged and as the record makes clear that's essentially the only kind of education given by the state or under the state direction is test preparation services it's just not nearly as comprehensive as as public education and your point about allowing or not having a sort of national standard i actually think that as the language i quoted and also the idea itself sets out there are going to be differences among the states and even this provision allows for the differences among states it just says that you can't differentiate special education students from regurgitations jews and i will say that in the th circuit case did tell education programs and in that case were not open to special education students and in connecticut the ged everything else everyone in which it's obviously substantial so a couple things about fact st you know some students may have only lost a couple weeks because under the interpretation the district court you get to age twenty two now as a  you know i think when connecticut asked this in one thousand nine hundred and eighty it was actually thought to be at that time the thinking was that you only had to provide to age twenty one i know that this court in a couple others has now said that twenty one inclusive means twenty two but at the time the one thousand nine hundred and eighty it was thought to be twenty one dollars at the maximum age in connecticut said we don't want to just exit students out on these different dates we're going to give them until the end of the school year in which they turn twenty one and so i think that that is not a gross violation it shows that connecticut has for over forty years taken a very wise approach to the best way to deal with students who have not been able to graduate and are aging out system i will also say that the original plan that d j alleged in the complaint that he was a client of the department of developmental services and i also think a lot of the students that we're talking about that aged out have also had services from the state of connecticut and while they're not services in their local public school they are services and i think that that again should be bought should be considered when determining the nd discussing whether compensatory education was an appropriate remedy and the rd turning to the subject matter jurisdictional issue so you know i started by saying i would appear before the th circuit in eight and involving the state of rhode island these are the only two appellate cases that have addressed this issue and the rule that comes out of both of those cases that applies really here is that where a state provide secondary completion programs to two adults that is those between twenty one and twenty two for purposes of this case that state must also provide special education until the out of bounds of the i d e s age eligibility requirement  which is until the st day that the student turns twenty two there was some confusion in the nd circuit in i think the starting from one to say the eighty's on this point  anyone and as there every court that looked at this degrees the operative language as liabilities is in section fourteen months well and the important language there is you know the state should provide education so then the issue is what does you know connecticut law and practice and that's what section fourteen months to ask sosa look at what does it say about and to the extent connecticut now wants to draw a distinction between for example the ged program and secondary education that's actually completely  suggested or one of the judges suggested in question mr cunningham you know there should be a uniform public standard as to what public education can purpose the idea but even if you did look at state law it's very significant that that state be clear that these ged and other programs are indeed secondary education under connecticut law and that also is consistent with you know plain understanding of what secondary education is has read adult education programs and that the lead to a high school diploma or its equivalent and these are publicly funded they're free by statute they were hired to be free they all lead to a high school diploma and they're turning to the compensatory education point you know there is language in the nd circuit's cases that is different i think and language in other circuits cases referencing you know a gross violation or gro procedural violation of the idea i think that concept looking at the cases appears to be somewhat under theorize as to what exactly that means but i think at a minimum what we can say that it means looking at the exclusion or complete deprivation of special education or without that much regard to the specific circumstances that led to that result or the motivation of the state or local officials you know there's really no discussion are trying to sure it's violations under the ada under the idea the point is that there are a lot resulted in tunes being completely deprived of special education on average you know i think it's doing simple math the average period of deprivation with a one hundred and eighty one dollars days and that is significant that's a little less than an entire year so i don't think any of the precedents in the  circuit invites or certainly doesn't require some investigation into the state of mind of the state i don't think any of those cases have been applied the concepts from  the body of law dealing with qualified immunity as to what the state of the law what the these decisions were made i think it's simply a matter of if the state actors make a decision that results in a deprivation a complete deprivation of special education and that entitles those who are deprived to compensatory education again keeping in mind though that you know that's not necessarily an absolute role as for education is an equitable body  so there might be other factors the district court takes into account in shaping it but in terms of the overall framing of the issue in the nd circuit precedent as we stated in our papers and as the district court agreed i think you look at the fac know what the what the u s department of education thanks about this issue these cases have been going on that are really participated one way or the other but i think it would be a stretch to say that the department of education in action over all these years in the case that they create with the wildlife you know you look at what stage of litigation is that so you know t j was under a summary judgment standard and we believe that both the evidence from the affidavit of his mother and more complicated than the ideal id a shoe and we think the district court you know very properly allowed the amendment and allowed the challenge to subject matter jurisdiction to be admitted so with that i am not happy to take any questions mentioned if i just want to emphasize it is an equitable remedy so even though bad faith may not being required certainly the tent of the state certainly something we could consider under the you know that standard think the district court you know has exercised the discretion and at the end essentially saying that that that compensatory education was an appropriate remedy i don't believe that the state in this appeal you know i think they're making a different they're arguing that it was not an issue of chevron deference but that kinetic deal we approved connecticut's plan for years and if this was a gross substance violation of the idea a you would think that the guess twenty six year olds who would then get some number of weeks or months of compensatory education regarding high school completion age twenty six right that's certainly the case and i reengaging with the state special education system there are certainly resource constraints there's only so many you know eligible i should be cation educators available at any given point in time in connecticut so those kinds of considerations i think the district court you know can take into account you know i don't think that there's an adequate record on those kinds of considerations for this court to provide any specific instruction to the district court in be sure that is a currently an issue of dispute between the state and after this argument i think we're going to go to magistrate judge to figure out what we want to do with that about that i think our view of it is something like or the five hundred and the g and once again the ged we think it it's important that under the regulations for the idea that ged does not count for special education students for regular as a regular diploma and again getting back state of connecticut that haven't graduated are entitled to special education services in connecticut public schools until age twenty two also i'd like to address the standing issue and just just make clear the court how this went has occurred the complaint is originally filed the plaintiffs q j allege that he had not received his high school diploma that that turned out to be false and we learned about that through discovery and that's it's still a substantial number and that's why we explain that we are prejudiced by allowing the complaint to be amended st obviously in the circuit law you can amend a complaint if standing was lacking from the beginning but also it matters to us because it greatly expands the class and if this court were to reverse and require a new complaint the class would only go back two years and continue with compensatory education in addition all the arguments that we make you know if this court were to affirm the declaratory and injunctive relief that would obviously affect students going forward our stay in this case was denied by the district court in this court so students from last year this this decision  was announced right at the end of the school year so those students from last year were allowed to stay until age twenty two so if they depend story education part is is reversed all that it will mean is that the connecticut