which is the compliance complaint that was filed by christopher s mother when the first notice came down at a meeting with parents and administrators for the program in which it was reported that they would be getting a minimum day every tuesday and the district administrator in that compliance complaint she she knew rates the reasons that were given by the administrators of the program during that meeting the the district essentially to ask parents to support this because saying that the students in this program had a shorter days in the students outside the program is not part correct i believe that he was he was under the erroneous understanding that  he was going to have to look at the goals and objectives and determine if those could be carried out during lunch and recess and that i think is the air we weren't asking him to look at the goldstone objectives and find out when and when this the most appropriate time during the day that those goals and objectives were being carried out we were just asking him to look for a certain way but it isn't what you are asking him to do it's what he has to do to resolve the case and i'm and let the defendants were saying is that if if the i e p is either sad or imply that appropriate instruction could take place during the lunch and recess periods then the assertion that your client was making would not went out because it would not be the case of the day had been shortened as compared to the students outside the protest that's the problem with the case you can't imply it by the by the contents of the goals and objectives it has to be specifically stated on the i e p there is no mention of that in his decision and that's true education comes forty six three hundred and requires for instruction in at the county for it to be a certificate a teacher and endeavor grounds declaration she talks about one of the aides been designated a teacher during those periods of and making it impossible them for then for them to get training other than on the children's time and this is what they do and that's the sacrifice that they were going to have to make as opposed to non disabled children and have financed decoration letter that she ha for autistic children they have a program is actually an hour a day longer than for other children and for undeniably budgetary reasons they eliminate that so that they don't have the extra hour any more want to to go your premises the day has been shortened but just shortening the day isn't a violation just told me that because if the autistic children had more time to begin with and they reduced it for budgetary reasons for the same time you don't have a discrimination class right well i don't think the stool district is arguing that affirmative part of the i e p is to reduce the day i think what they're saying is under the i e e e piece the activities that take place during lunch and recess are appropriate and if they are appropriate then there is no discrimination because the autistic children and an honesty children at the same level i'm not saying i agree with that but i think you have to address in some fashion the possible need to examine the e p used to deal with the recess time which conceitedly you can't for the gnostic children but if they say instructional activities take place during that time for the autistic children then the artistic children are not getting a day that shorter than the other children and with no individualized determination that each of placement issues identification evaluation as you have to do any of the things that are due process judgment do that's why the compliance complaint was the appropriate remedy here and in terms of giving notice to the district of their error and to have an opportunity be something that could better be determined perhaps by due process hearing administrative proceedings what what is the what is the remedy you seek in that situation simply having it  was county office of education first of all there's been a contention here that you must the sceptically state in the eye e p if you going to happen shorten date and if you take a look at that there's and all schools have a certain number of minimum days and if the students are attending that entire school date then that's fine but if they're going to withstand for a shortened part of that day maybe half of that minimum day or half of a full school day where they go the entire day then that part has to be specified in the i e pete specifically and so i think that's where it's not that requirement that they have to say in individual plans or needs it was the county had to save money someplace for the school district had to save money and this is one of the places they made the cut believing they could do so lawfully but it was time is that as a group yes there was a change in school docked in the instructional minutes but what you have to do is compare the and the number of total instructional time that these artistic kids are now getting compared to what their home schools get and  depends on how close that teacher is there are times when it all comes out of the room i think then i think then the factual issue in this case is the extent to which the teachers were available when the aides are there and the age are there each and every day i don't know exactly where these teachers work there's an allegation that they were that hasn't been looked into in detail the a were there close by the kids as they are all the time now whether or not the teachers are close enough to the lunchroom to deal with the situation and that complies i still think that's a factual issue i think it's a factual issue that needs to be dealt with the due process hearing as it is all these other issues of whether or not the goals and objectives set forth in these i e fees are being carried out during the lunch mean and then something else that happened after that right there was no understanding during that process that luncheon recess time was being counted and it was all along i wasn't there well certainly i don't know about that and i don't know what the misunderstanding from the office of education's position from day one now when i could have the stations of the two individuals involved in the investigation of the c r p unit they didn't remember that and they said they didn't have an understanding that lu were being counted and it was never an issue that was ever really impressed by that unit not think judge cole made that clear in his opinion that it wasn't an issue that was decided by that particular u those things are applied during the lunch recess time and i think judge cole had a problem with that as well that how can i figure out what is going on during the lunch recess time and whether or not the goals and objectives are being carried out during lunch recess time because i  don't have the information the record to deal with that that's not the kind of stuff that will be developed in a due process hearing and the full record for the court to review and make a decision at least without to start with and we don't have that here and i think that's why it's so appropriate that this particular case should first go to the due process hearing procedure first can't go in this form or does it have to go in the form of once having the individual hearing is we got to a point when they did them in and days that you add up the number of instructional minutes per year if you count lunch and recess time they've got plenty of time compared to non disabled peers if you don't count that you don't have enough time so that's the result we ended up with at that particular point in the process what you've got to look at is each individual e p because they set how much of the school day is going to be done yet there was with respect to deborah brown the autistic specialist that dealt with these kids dealt with her i e piece knew about their goals and objectives and that they were included during lunch time as instruction so you can count that in regards to these particular kids what occurred here was there was a change with the school district so to say as to how they were going to operate their school days and the ended up with a few more  s days than they had before still as you can see in these declarations here when you look at the number of minutes per year of these three different school districts that these three plaintiffs came from their school days postal vary significantly as as much as six percent difference between these three different school districts because they have the right to set their school days and set them in days and some do more some do less here we've got an office of education factual scenario where they had a lot of the all days and they did and they said they cut it back a little bit more but not so much more that it was going to impact the number of school days that they should have compared with the non disabled peers so i'm saying t education did what you've got to do is you've got to look at each individual i e each child to see whether or not when you add to their particular school instructional hours per year whether those add up to at least as much as their non disabled broad policy change applying to several children at the same time and man plenty of argues with some merit that as a more efficient and sensible way to deal with that in a group why should we go through the due process hearings which are going to take some not being provided fair propre of public education because they're not getting enough instructional minutes compared to their non disabled peers the plaintiffs are asserting injuries that can be redressed by the i d e s administrative procedures and remedies and that's why exhaustion is required what they're asking for is lost educational benefits in part in their claim of damages and that can be provided as a remedy under i d e a where they simply will provide make up instruction for lost time and i think with the raw case which is i think the most fairly recent case with this court i think it was very clear that so long as any of the remedies can be redressed by the i d e a then it must go through the due process hearing person and  course have pointed out the the rationale behind that in my brief just to a great extent i think is through the reasons why we have to do that and i think this court along with judge cornell is struggling with what in the world went on in the class wh it makes it very clear that the boston requires two process and in fourteen fifteen it also talks about the c r p process there's other remedies or other administrative process available to be agreed parties if they so choose to go to those but it's calls get some information make a determination and then issue a noncompliance ford or it's a document stand and say they were in compliance and didn't even address this particular issue that the court has now asked to be to be addressed and i think  there is to have had the opportunity to fix the problem and the difficulty is that they did not like the result or outcome of the first process and  here and i don't know why to this day that they just didn't submit to the due process a long time ago and get this resolved then and not to be here now it's it's set forth in my in my brief and i think i pointed out how different that process is and you can't compare it to this with the amount of fact finding and this is you making you've got administrative law i guess essentially that is is well versed in the area you're allowed to bring consultancy and to testify and consult with the parties and have representation there's evidence here and discovery procedures and that you process hearing none of that is in this t r p process and i would like to make a point that in the porter case which is a ninth circuit case here back in two thousand and two it did touch on the fact that there may be situations in which the c r p would be  sufficient for purposes of exhaustion where they did not do the due process but in that case it pointed out that the situation would be one where all of the issues were resolved in the c r p unit process and here is clearly it was not just point that out in his opinion also it said three things even the issues have been resolved in the c r p process or meat department of education has been shown to be biased on the issue or they pre determined the issues and none of those  situations are present in this case they haven't predetermine this issue they haven't even got with it and if they're biased in any respect they're biased from the part of the plaintiffs because they came to the conclusion that under no circumstances can you include lunch and recess time is a special time to address the issues carefully look at all the sides making a good decision on the record and then at that point we go to the courts and ask court's to say from one part of the other that no the judge was wrong and that due process hearing then you've got something to work with here you don't and i would think that it's instructive that there is no case that i know of in any court through process opinion we have no court case at all out there that anyone knows about that addresses this issue and if you could come to court in this situation i would think that you would have lots of cases we could look at that would have decided that since you before my contention is that he says he's probably have been decided at one of those three administrative processes i think they went to the office of civil rights and got it resolved at that level as those cases indicate a lot of times the district sort of just submit  to and get it resolved without going any further or it may have been resolved at the complaint resolution process in a particular case or it may have been resolved to due process hearing but we just don't have any that have gone out to the courts and if this was the kind of case that that was one for that i think you would see you would see the cases out there somewhere special education has been going on for a long time every time a student  every time you allege a student's not getting enough instructional time compared to the non disabled peers you can say that's discrimination because you're discriminating against a dog a stable child as against disabled child as against the non disabled child and just to say that you know did follow that they did they did go ahead and add some minutes but yet not enough they'd still did not and i'm not a full they still did not give a full day and they continued you have a minimum day every single tuesday for purposes of training their staff taken away from the children's time it was only when the motion for poem unary injunction was filed that we heard this whole issue on lunch and recess minutes and i think that's what really kind of just clouded this whole case because clearly what we have is a general policy that came down on the kids not that they were counting lunch and recess and that that they were getting programming during lunch really since this is a johnny come lately the stance essentially to happen now anybody that courts don't operate and the appellate court doesn't operate on that kind of schedules and i was a year later you finally get to us and the best you can do must go back to the district court why not go ahead with the administrative process that would take as three four and five you know make a day longer than they've got to have the staff there to make the day longer so and i don't know that you really need it if you're if you're married position is correct then you're going to win every single case and they're going to figure that out and have to children i mean she could have done that for her own child actually there is one parent that did not go to due process but because jean knew somebody within the district she was able to get an extra hour at her home school so i mean we could we could girl versus curtis paradise valley unified school district number sixty nine although we have a cross appeal and morning your hon