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Case number 16-7113, ZB, a minor, by her parents and next friends at L Appellants, versus District of Columbia, a municipal corporation.

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Mr. Ige for the appellants, Mr. Love for the appellee.

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Good morning and may it please the court.

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I am Michael I on behalf of ZB and her parents.

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With honors, we respectfully submit that the district court committed a multitude of errors, both factual and legal, in reaching an incorrect decision in this matter.

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Of greatest significance are the court appointed doubly erroneous standard in holding from the

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for the school system.

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First, of course, it did not employ the standard for determining a free, appropriate public education that the Supreme Court has now announced in the Andrew F. case.

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The question is, what light did Andrew F. shed?

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I mean, it established some language in Rowling

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didn't count.

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But it seems to me there's a certain amorphous quality in the standard set forth, if you could call it a standard, set forth anywhere.

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Because at one place, something sounds pretty

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And then that's kind of cut back and talks about things that are not a reasonable prospect for a child if progress is made.

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He needs progress.

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It's not a reasonable prospect.

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He needs not aim for great level of advancement.

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So one thing that seems very clear is it sets forth a very fact and context specific notion.

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And Judge, if I may, treading water is not enough except in cases where treading water would be enough.

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What the court – what the Chief Justice says in NJUF is that the standard that the court is announcing is, using the Chief Justice's own word, a markedly more demanding standard than the way Raleigh had been interpreted in the 10th Circuit and in the D.C.

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Circuit and in most circuits.

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The standard

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was interpreted here as basically a basic form of opportunity, which a number of circuits have equated and then actually the petition for cert in and who have equated to the more than minimal progress in in in in Andrew F.

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The difference, as it applies to this case, and I believe to many cases, is that what it focuses on is progress.

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What the court says in NJUF is that an IEP is supposed to be engineered, the whole purpose of special education is to make progress.

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That wasn't.

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But the district court here and the hearing officer here did not condemn ZB to zero progress by any means.

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Zero progress is,

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That's the problem with the standard.

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To begin with, what the district... Well, in fact, they sought more than minimal progress.

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Is there any dispute about that?

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that she had made more than minimal progress.

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That they sought to, by writing the IEP.

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She had made more than, I'm sorry.

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They sought, in putting the terms of the IEP in, according to the evaluation, they sought to assure that she would make more than minimal progress.

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They sought to assure it.

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The record is, according to the expert testimony presented by the parents, that she wouldn't have made

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significant progress is the word that they used a number of times, but I am not arguing that, and I've done this for a long time, it's a very rare case where you would argue that a student would make

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would not make minimal progress.

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That's the reason that we needed Andrew F. in order to clarify that that wasn't the right standard.

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And in fact, what the Supreme Court said as far as making minimal progress is it is equivalent to just letting the student be promoted from year to year until they drop out.

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That's the words of the Chief Justice.

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But that doesn't seem to be what's going on here.

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They set up an IEP, and there was no opportunity for Hearst to show

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whether there would or wouldn't have been progress under the IUP.

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And every time, and in fact, the parents did not object to the IUP in June as inadequate, did they?

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There's nothing in the record showing that they objected.

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The parents did not reject it.

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The parents did not reject it this summer.

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No, and in fact, in the summer, they said we're going to private school.

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They didn't say the IUP is inadequate in these various ways, and therefore we're going to private school.

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The parents said that, according to ZV's father, what the parents said is that they had decided that they had to go to the lab school in order for their daughter to get an appropriate education.

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He never said that we specifically reject the IEP because she hasn't made minimal progress.

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He wasn't represented by counsel.

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He wasn't represented by an advocate.

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Well, also there was only four days of the school year in which progress could have been demonstrated.

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So you do have to look at it somewhat more in the abstract.

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And I understand that there are gonna be cases where even the parents don't have to take chances with their child.

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Nonetheless, what we end up with really is a battle of the experts in the abstract, no?

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Because we haven't had a situation in which the school either refused or failed to timely put an IEP in place.

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When asked, they put one in place and they put it in place and the parents objected to no term of that IEP at any time before they withdrew their daughter.

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Is that right?

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That is not... No, Your Honor, they did question... They wanted more service for their daughter.

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They did not reject the IEP.

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No, they didn't identify any defect in the IEP.

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Where in the record do they object after they had the IEP in front?

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They signed the IEP.

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I'm sorry, before the, what I'm referring to is in the summer, I'm sorry.

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What I'm referring to is when Zibi's father went to the school to withdraw his daughter and serve notice, that seems to, that is nowhere in the record because of the.

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Okay, no, but I think, I thought you were saying that they, maybe I misunderstood you, I thought you were saying in response to Judge Pillard that they were presented with the June 2014 IEP, sign it, that they- They didn't reject it, that's correct.

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No, no, no, I don't want to play words here.

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I get that they didn't reject it, but I thought you were saying while they didn't reject it, they still expressed concerns about it.

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Where in the record are those concerns about the IEP after it was presented to them?

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Mr. ZB's father testified about his concerns that he shared.

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There's nowhere in the record, to my recollection right now, that he said those during that IEP meeting.

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Don't have you during the meeting.

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I'm sorry?

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Any time between receipt of the IEP and, I think it was August when they said we're taking her to Glasgow.

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No, there's nothing in the record to that, Judge Miller.

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There's nothing at all objecting to the IEP?

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Nothing.

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There's no communication at all.

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And then in August when they said we're taking her to lab school, were there any specific objections to the IEP then other than in general?

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General, we're withdrawing our daughter because we feel that she has to go to the lab school.

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That's what the parents did.

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The district didn't raise as an issue of notice that they didn't have notice, but it's absolutely correct that the specific issues that we litigated in the hearing were not presented until after that.

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So why isn't that a problem?

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For your theory that you can have your IEP, you can sign off, you know, silence is going to be, these things go back and forth, and silence is going to be interpreted as these parents have been actively advocating for their child as you have to be commended for that.

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One would expect that if they thought they needed more, you had the whole summer now to go, wait, no, we need more.

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Let's get that functional behavioral test.

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Let's get this other thing.

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We think we need this other thing before school starts and have that back and forth, but they didn't.

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I would suggest that the worst consequence to the parents would be that therefore they might be restricted from receiving tuition reimbursement should they be found to have made the appropriate move for that first semester because by January of 2015 when they return for the second IEP meeting they have

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not only have they submitted Dr. Sanders' report from outside, which had been there before, but also the information from lab school as to what the child needed.

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And that IEP still provided for approximately 11 hours a week of special education, some in the mainstream and some self-contained, and that was woefully inadequate.

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So the district responded though, I mean we can't expect them to respond within seconds.

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They responded with the 2015 IEP, which essentially gave everything they were asking for other than full-time education at the lab school.

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Absolutely not, Your Honor.

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The testimony that was either ignored or discounted by the district court was that that IEP lacked appropriate goals.

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When you say that, when you talk about the 2014 or 2015?

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2015, I'm sorry.

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The January 2015 goals in all basic academics, reading, math,

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written language, executive functioning, classroom behavior.

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I'm sorry, it lacked what?

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It lacked goals?

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It lacked appropriate goals, not just service hours, which I'll set aside here, but goals in reading, written language, mathematics, executive functioning, classroom behavior.

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They added in April executive functioning.

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They added everything that she was getting in lab school, and I guess even more, because she wasn't getting occupational therapy at lab school.

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And so... The parents couldn't afford it.

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Sorry?

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The parents could not afford it, is what... I get it now, right?

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Yes.

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But there's testimony from Dr. Sands and from Dr. Durham, who was the division head at the lab school, both that the IEP was missing all of those pieces in January.

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Not just the original.

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And then the school then responded, the district then responded and put those things in.

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Not in January, Your Honor.

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Okay, when did they put them in?

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They didn't put them in for that entire school year.

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Well, they had executive functioning in April and I think they had... April the year, I'm sorry, they didn't have it.

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April the year is over.

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Well, no, no.

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No, I'm sorry.

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Three-quarters of the year is over.

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And Dr. Sands, who had done the psychological report before the year began, said that she had identified executive functioning needs in the report that the school system had.

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Which is why over the summer the parents could have said, wait, Dr. Sands said, in response to the 2014 IEP.

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The school system had the report.

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I mean, the parents weren't... But they had behavioral elements in the June 2014 one.

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And so if you thought those, if the parents thought those were not enough, shouldn't they have said, thanks, but not good enough?

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It would make this argument easier for me right now, but the fact is that we can only...

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expect so much of parents who go outside because of their concern about how their daughter is doing, get this neuropsychological report, submit it to the school system, and then eventually come to a due process hearing where the same evaluator said, yeah, I identified all that stuff as to what she needed in addition to much more special education, and I feel that the IEP needs it.

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That's what the text says.

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So this is not the way you briefed it, but is your argument

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that as of June 2014, the school, under its responsibility unilaterally, not prompted by parents, really had an obligation to hire better evaluators and develop a much more robust IEP than it did.

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Yes, and you're right, we didn't argue it that way, but we argued it from the other way around.

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The difficulty is it can't be that hindsight can impugn the IEP.

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The IEP is written based on the information.

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at the time.

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And so either there's something that was known to the school and the parents that wasn't taken account of.

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And in that view, well, it's a little bit problematic that the parents signed off on it.

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Or, and this seems plausible also, there's an affirmative obligation on the school to really get to the bottom of it on its own initiative

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And it becomes apparent to the parents much later that the school hasn't done that.

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But the fact that without any such obligation, and I haven't seen case law spelling that out, without any such obligation on the part of the school, you really can't say, well, look what happened many months later.

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The school should have anticipated that.

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It's hindsight.

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The way we argued it, Your Honor, I fully agree that there is a child find obligation, of course, in the law, and that requires the school system to identify, they're the professionals, they're the ones we give the benefit of the doubt, usually if there's a dispute.

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The way we argued it is that

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within, after the parents went outside and got the neuropsychological report, which the evaluator says was not reflected in the IEPs that the school system had proposed, what the parents did is made the decision to go to lab school.

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And the IEP was in June, and within

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the school system's IEP, there was all of this information that showed that the school system should have known this.

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It was, no one, of course, what a reason we suggested that ZB

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somehow got all of these needs sometime between June and December of 2014.

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They were there.

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Well, but that's also a difficult question is, I mean, people do, children do manifest needs over time very much.

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I mean, you know that as well as anyone that children are developing quickly, their abilities either shoot forward or fall, you know, fall back relative to their peers and, you know, this is five years into her experience at Hearst and this is identified

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presumably because the needs are becoming.

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Can I take one example from the record?

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That shows that that isn't, of course, children do develop needs as time goes by.

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This is a very short period of time.

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But if I just take reading, which is obviously very important for any student, that was identified both when she got to last school and it was also identified in Dr. Sand's neuropsychological report before.

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On cross-examination,

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Two, Ms.

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Oliveros and the school systems psychologist, Ms.

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Tick, both acknowledged that there were signs on cross-examination that this child was below average for the whole prior year in reading and that they just didn't pick up on him.

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At least the grades show.

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that she was improving.

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She was moving up from the lowest possible level to the next level.

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That's what the great show and then the information that

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The lab school gets, when they put her in their program in September of that year, it shows that her levels had not moved in any significant way in these basic academic areas.

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I'm sorry, had not moved.

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Had not improved the way that her grade, that was the funding.

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I'm sorry, what were the before and after the lab school was using?

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The lab school's IEP has instructional levels for all basic academics.

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IEPs need that kind of information.

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It shows very low levels.

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And I'm sorry, do you know that?

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I mean, that's consistent with the third grade report.

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But it is also consistent with the third grade reports showing progress.

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Well, as I said, you may discredit that.

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I respectfully question it because if indeed her functional levels as measured by the lab school in September, right at the beginning of the next year, are that low, then one does have to question the significance of her progress.

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Was the record just that there was progress between, I could be misremembering here, between the second and third

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quarters, but we didn't yet have the fourth quarter results.

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We did not have the fourth quarter.

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And then did the fourth quarter results show that continued progress, or did it show backwards, or I guess I sort of got the assumption that things didn't go as well.

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In my recollection, I had no order to stay.

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We relied on hearing as to how she was in September and October of the next year, and those levels were consistently low and consistent with how she had been prior year, is the point.

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So I don't know.

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Okay, so the record on reading shows that in the evaluation, she scored in the average range.

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SANS's report doesn't isolate reading as an area of concern.

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It identifies language skills as one of ZB's strengths.

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DCPS staff who are also educational experts and I understand you don't always want to credit when they come out.

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They say that she didn't show need for reading assistance at the time the June 2014 IEP was drafted.

[00:19:01] Speaker 03:
Getting back to your prior question, Your Honor, you said, and it was partially correct with all due respect, that IEPs do have to be judged based upon the information that was known or should have been known is what the courts have said, which makes sense, of course.

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And what's important in this situation is if indeed she was as

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We have two other facts there.

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One, the fact that we have this information from the early fall as to her having significant needs in a number of these academic areas.

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And two, if indeed the school system witnesses during the hearing note that, yes, there were reading problems.

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They did note that.

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They just hadn't picked up on it.

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It's that simple.

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That can happen, of course.

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And that's what they acknowledged.

[00:19:52] Speaker 01:
Reading problems during 2014?

[00:19:55] Speaker 03:
Yes, I'm sorry, yes.

[00:19:56] Speaker 01:
During the 2014.

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And just tell me where you're looking in the record.

[00:20:01] Speaker 03:
if I can, I reserve two minutes, if I can get it to you.

[00:20:04] Speaker 02:
Oh, don't worry, don't worry about the time.

[00:20:05] Speaker 02:
Yeah.

[00:20:06] Speaker 02:
Okay.

[00:20:06] Speaker 02:
Yeah.

[00:20:07] Speaker 03:
No, no, I'm just saying that, to find that in the records, it'd take me a minute.

[00:20:11] Speaker 02:
So here's a, are you trying to find the?

[00:20:13] Speaker 03:
I've defined where Ms.

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Ticken, Ms.

[00:20:15] Speaker 03:
Oliveros, I remember where it's in my brief, but I want to find out, obviously, that's right.

[00:20:20] Speaker 01:
Sure, that's all right.

[00:20:20] Speaker 01:
If it's Ms.

[00:20:20] Speaker 01:
Ticken Oliveros, who you said showed reading lagging, said that there was reading lagging in the 2013 to 14 school years.

[00:20:27] Speaker 01:
Yes.

[00:20:29] Speaker ?:
I'm sorry.

[00:20:30] Speaker 03:
Well, at least in our brief, our original brief at page 32.

[00:20:39] Speaker 03:
We say Ms.

[00:20:40] Speaker 03:
Oliveros, the DCPS special educator, confirmed that DCPS should have understood that Dr. Sands' report showed ZB's needs in reading.

[00:20:48] Speaker 03:
She testified that Dr. Sands recommended special education in language arts, which encompassed reading, and that's a joint opinion.

[00:20:54] Speaker 01:
Should have understood that Dr. Sands' report showed needs, but that's a report that wasn't made until after the end of that school year, right?

[00:21:00] Speaker 03:
Yes, but I'm not finished.

[00:21:02] Speaker 03:
Look, I'm sorry.

[00:21:04] Speaker 03:
That's a 20x373, by the way.

[00:21:06] Speaker 03:
But then she said that ZB performed similar reporting and reading in math.

[00:21:10] Speaker 03:
That's a 375.

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And that ZB special education eligibility was based in part upon her reading and writing deficits.

[00:21:18] Speaker 03:
And that's a JA374.

[00:21:21] Speaker 03:
And I'm looking for, oh, here.

[00:21:25] Speaker 03:
And above that, Ms.

[00:21:26] Speaker 02:
Tech, this is where we reference Ms.

[00:21:28] Speaker 03:
Tech, above that on that page.

[00:21:31] Speaker 02:
I don't have a JA374.

[00:21:32] Speaker 02:
Are we using your baits?

[00:21:35] Speaker 02:
I'm confused.

[00:21:35] Speaker 02:
Is it the bait stamps, or which stamps are we using?

[00:21:38] Speaker 02:
Is it the middle's number, or is it the bait stamp number?

[00:21:40] Speaker 02:
Because it's not working for me.

[00:21:45] Speaker 02:
So it's not the big gold number?

[00:21:52] Speaker 01:
Is it the bait stamp number?

[00:21:54] Speaker 03:
74, not 47.

[00:22:00] Speaker ?:
Sorry.

[00:22:05] Speaker 02:
I've got to work on your numbering systems here.

[00:22:14] Speaker 03:
Judge, we agree to an amended sealed appendix.

[00:22:22] Speaker 03:
I'm looking at the original appendix supplement.

[00:22:27] Speaker 03:
So if I can correct those, which obviously I can't do standing right here.

[00:22:34] Speaker 03:
And I don't know how that happened, obviously.

[00:22:37] Speaker 03:
I apologize.

[00:22:40] Speaker 03:
The pages are going to be there.

[00:22:42] Speaker 03:
I just have to give you different sites, because we didn't change the page.

[00:22:45] Speaker 03:
Obviously, we didn't change the appendix.

[00:22:47] Speaker 02:
Does the record show when they applied to lab school?

[00:22:50] Speaker 02:
I know that they said they were going out in August.

[00:22:53] Speaker 03:
I believe it was in the spring.

[00:22:54] Speaker 02:
It's a hard school to get into.

[00:22:56] Speaker 03:
It is a hard school to get into.

[00:23:00] Speaker 02:
So they were already applying to lab school in the spring before the June IEP came out.

[00:23:04] Speaker 03:
I'm sorry, Judge, and if you could at least, and once again, I'll get the right page, but it's page 32 of our corrected brief that I was referring to before, that has, I just have to get you the joining page.

[00:23:18] Speaker 03:
I do want to point out that Ms.

[00:23:22] Speaker 03:
Tick, as well, and that's the top of page 32, noted that

[00:23:28] Speaker 03:
Ms.

[00:23:29] Speaker 03:
Tick admitted that ZB had performed not well on her third grade report card in there reading, as Judge Williams pointed out.

[00:23:36] Speaker 03:
More specifically, Ms.

[00:23:37] Speaker 03:
Tick admitted that ZB was below grade level in reading during the entire 13, 14 year, just as she was in math.

[00:23:43] Speaker 03:
And joint appendix cites that those joint appendix sites should be right.

[00:23:52] Speaker 03:
What I was referring to from my book are the wrong ones, once again.

[00:23:57] Speaker 03:
I'm sorry.

[00:24:00] Speaker 01:
And so your view is that given that her reading was below average during the 2013 to 2014 school year, that that should have alerted the school, at least in the process of doing an IEP,

[00:24:17] Speaker 01:
triggered by other information about deficits that they should have given her services in that area.

[00:24:23] Speaker 03:
Along with Dr. Sam's report at the end.

[00:24:25] Speaker 01:
Dr. Sam's report comes later and I understand you're acting as if Dr. Sam's report because it either information known or that reasonably should have been known and you're saying well because it reasonably should have been known then we're gonna we're gonna

[00:24:38] Speaker 01:
treated as if it was known.

[00:24:40] Speaker 01:
It wasn't known though.

[00:24:41] Speaker 01:
And the question is we've got to consider a school, I mean half the kids in any class are below average in their reading.

[00:24:50] Speaker 03:
No, actually, the statistics don't support that.

[00:24:53] Speaker 03:
Logic does.

[00:24:54] Speaker 03:
It must be below average.

[00:24:55] Speaker 03:
I understand.

[00:24:56] Speaker 03:
I understand the grading system.

[00:24:59] Speaker 03:
That's what I'm referring to.

[00:25:03] Speaker 03:
Yes, logically, half the kids are above and half the kids are below.

[00:25:07] Speaker 03:
Except for one is right on the note.

[00:25:12] Speaker 02:
What I'm trying to understand is the point that the school

[00:25:18] Speaker 02:
The school shouldn't have waited for you to get the Senate's report.

[00:25:21] Speaker 02:
The school shouldn't have waited for you slash lab school to get all this information.

[00:25:25] Speaker 02:
It should have been doing all of this stuff on its own.

[00:25:29] Speaker 02:
Is that the problem?

[00:25:30] Speaker 03:
Based upon how she was performing, based upon expression of parental concerns, yes.

[00:25:37] Speaker 03:
And I'm sorry, based upon its obligation on the child fund.

[00:25:39] Speaker 02:
It can't be expression of parental concerns because we didn't have that.

[00:25:41] Speaker 03:
No, no, throughout the year, not at the IEP.

[00:25:44] Speaker 03:
I don't have anything specific to point to at the IEP meeting.

[00:25:47] Speaker 03:
That's right.

[00:25:48] Speaker 02:
What is the test?

[00:25:49] Speaker 02:
You say you've been doing this a lot.

[00:25:51] Speaker 02:
So what is our test for?

[00:25:53] Speaker 02:
Because I get the fact that if you had parents who just didn't know, knew their child was having problems but didn't have the knowledge or wherewithal or resources to get their own testing, that the school under IDEA is supposed to take the initiative here.

[00:26:07] Speaker 02:
But what is the legal rule that says responding to the SANS report, putting these things in place, parents seem hunky-dory as far as we can tell with this, and then we're going to revisit it in 30 days is not enough.

[00:26:23] Speaker 02:
What put them on notice that they needed, at least over the summer, maybe they didn't have time, they wanted to respond quickly to the SANS report, but over the summer they should have been getting

[00:26:30] Speaker 02:
more testing, doing the stuff that the lab school did that fall.

[00:26:34] Speaker 02:
Because I think that's what you have to show, is that they should have done in the summer what the lab school did in the fall, so you had an IEP in place for fourth grade.

[00:26:42] Speaker 03:
That gets us back to the first question about Andrew F. Because under Andrew F., what the standard is, is that the school system has to draft

[00:26:54] Speaker 03:
consistent with the unique circumstances of each child, an IEP that should show a level of progress that the IEP team itself is supposed to establish is appropriate.

[00:27:06] Speaker 02:
That's a very general standard, and what I'm asking for you is if we as a court have to, if we write a rule, you know, to rule for you, it has to be something that DC can understand what its obligations are under this statute, or parents can understand what has to be shown before they have a right to go make this decision to go off to private

[00:27:29] Speaker 02:
school, so what more specifically, don't quote me just the under of standard, the loose language, what specifically is the test, the trigger here that says you should have given me in 2014, and we'll give you through the summer of 2014, what lab school did that fall, as opposed to responding to the Sons report, giving us your best views.

[00:27:51] Speaker 02:
That seems to be the fight issue here, right?

[00:27:53] Speaker 02:
Too passive.

[00:27:54] Speaker 03:
all the sons are born into it just in one way.

[00:27:57] Speaker 03:
If there is a lack of progress, and the sections I just cited, just in the area of reading, again, and we haven't talked in all behaviors.

[00:28:06] Speaker 02:
But if there hadn't been a lack of progress, under what?

[00:28:10] Speaker 03:
Well, one of the marking periods in reading, and that her original eligibility was based upon language arts, including reading.

[00:28:22] Speaker 02:
Did you have a diagnosed disability in reading?

[00:28:26] Speaker 03:
I believe... I didn't think Dr. Shantz had done that.

[00:28:32] Speaker 03:
Specifically in reading, no.

[00:28:33] Speaker 03:
Dr. Shantz did not diagnose her.

[00:28:34] Speaker 03:
Isn't that important?

[00:28:36] Speaker 03:
I'm sorry?

[00:28:37] Speaker 02:
Isn't that important?

[00:28:39] Speaker 03:
No, because the label doesn't, the coding, of course, doesn't determine what appropriate programming is.

[00:28:45] Speaker 03:
If we are to believe Dr. Sands, and I know you didn't want me to go back to her, but believe Dr. Sands, what she said is that I identified lots of needs that the IEP shouldn't have addressed that weren't addressed.

[00:28:58] Speaker 03:
I'm paraphrasing, obviously.

[00:28:59] Speaker 01:
But we're going through them and the difficulty I think is back to the question of what's the standard that is supported by the IDEA and we know two things.

[00:29:12] Speaker 01:
We know that it needs to be a free and appropriate public education and under Andrew that requires that the student, I'm gonna misquote it, but make reasonable progress.

[00:29:25] Speaker 01:
But we also know that the IEP need not perfectly account for the students' needs.

[00:29:34] Speaker 01:
It need not do everything conceivable.

[00:29:36] Speaker 01:
And these parents, to their credit,

[00:29:41] Speaker 01:
may not be happy with doing less than everything that could perfectly account for their daughter's needs.

[00:29:49] Speaker 01:
And there may indeed in the real world be a lawfully permissible gap between what a school like the Lab School can provide and what students are entitled to in the DC public schools.

[00:30:02] Speaker 01:
And then the question is,

[00:30:06] Speaker 01:
what measures that and or what makes that gap not permissible under the IDEA because it just isn't.

[00:30:17] Speaker 01:
at the level that the school should be providing.

[00:30:20] Speaker 03:
On this record, Your Honor, what I would point you to is the testimony in the hearing, not just from Dr. Sands, but from Dr. Jennifer Curran at the Lab School, the experts in special education who identified that gap, because it is absolutely true that if the Lab School's the best, and I don't know that it is, but it's one of the best, and if it's the best, that's certainly all,

[00:30:44] Speaker 03:
all students are going to be entitled to getting the best.

[00:30:47] Speaker 03:
We know that from Raleigh, and we don't even know what the best is, I would respectfully submit.

[00:30:50] Speaker 03:
So how could that be the standard?

[00:30:52] Speaker 03:
But what those experts identified at the hearing was that the IP

[00:30:59] Speaker 03:
was missing about two-thirds of the necessary hours of special education.

[00:31:02] Speaker 01:
And now you're talking about the June 2014... Both IEP.

[00:31:06] Speaker 01:
The second... I went through... I mean, you have your big picture legal arguments, but you also do make arguments about these particular educational buckets.

[00:31:15] Speaker 01:
My reading of the record came out a little bit differently from the way you characterize it in terms of things like on the reading goals, maybe the record is disputed, on OT, Sandra Portz recommends that she receive an OT evaluation and then she gets an OT.

[00:31:34] Speaker 01:
evaluation with a short turnaround.

[00:31:38] Speaker 01:
They were willing to do it.

[00:31:40] Speaker 01:
And there wasn't any suggestion from the parents or other IEPT members that OT was warranted right away.

[00:31:49] Speaker 01:
So I don't see that as necessarily a shortfall.

[00:31:53] Speaker 01:
And then there's a functional behavioral assessment, behavioral intervention plan.

[00:31:58] Speaker 01:
There wasn't one.

[00:31:59] Speaker 01:
And

[00:32:02] Speaker 01:
there's a question whether that's a procedural or substantive violation.

[00:32:06] Speaker 01:
So you're sort of referring to as if the record is clear that there was this significant shortfall and I'm not sure it is that clear and or what is your standard?

[00:32:20] Speaker 03:
As far as the two areas that you just focused on, there isn't a substantial shortfall, or at least there's an argument on OT and behavior, because those are the two evaluations that the school system did in the fall.

[00:32:31] Speaker 03:
And we note that in our brief.

[00:32:35] Speaker 03:
We argued that they should have been there before, because she had significant behavioral problems the year before.

[00:32:41] Speaker 02:
Right, but Dr. Sonn said,

[00:32:43] Speaker 02:
recommended and identified the behavioral problems.

[00:32:47] Speaker 02:
And they did have behavioral provisions in the IEP.

[00:32:49] Speaker 02:
It wasn't that they were ignoring it.

[00:32:51] Speaker 02:
And if they've identified the behavioral problems and they've got a proposal for addressing it, they don't have to go get a functional behavior assessment.

[00:32:59] Speaker 03:
No, no.

[00:32:59] Speaker 03:
And once again, I turn to that because I think much, much more significant is the fact that what Dr. Sand says she was recommending is

[00:33:10] Speaker 03:
for all core academic courses, small group special education classes, and for the non, like what they call the specials or the other thing, special education support, but possibly that could have been in what's called a co-taught model she testified to, which is special education support within general education classes.

[00:33:32] Speaker 03:
That's what she recommended, and she said she identified

[00:33:35] Speaker 03:
These areas of need in the IEP, in academics, I've gone through them already, and that's what Dr. Durham from the last school said as well.

[00:33:45] Speaker 03:
They aren't in the IEPs.

[00:33:47] Speaker 03:
They aren't in the new IEP, the January IEP as well.

[00:33:50] Speaker 01:
The small group special education is not?

[00:33:53] Speaker 01:
Is that what you're saying?

[00:33:54] Speaker 03:
Well, it is for about, I think, 11 hours, about a third of her time.

[00:34:00] Speaker 03:
Two-thirds of her time would have been in general education classes with no special education support whatsoever.

[00:34:06] Speaker 02:
How small would the classes be in the public school?

[00:34:10] Speaker 02:
Because there's a lot of emphasis on she needs small classes.

[00:34:12] Speaker 02:
I didn't hear your briefing that that was an issue.

[00:34:14] Speaker 03:
They'd be equivalent to the last school classes, actually, Your Honor.

[00:34:18] Speaker 03:
They would be classes from as few as one instruction.

[00:34:22] Speaker 02:
The public school ones?

[00:34:24] Speaker 02:
I'm not talking about the pull-out.

[00:34:26] Speaker 02:
I'm not talking about the pull-out.

[00:34:29] Speaker 03:
The class itself would be, but the instruction could be a one-to-one.

[00:34:32] Speaker 03:
They would be, generally speaking, 5 to 10.

[00:34:34] Speaker 03:
5 to 10 students with a teacher and sometimes an aide.

[00:34:37] Speaker 01:
In an ordinary class, we're asking.

[00:34:39] Speaker 03:
An ordinary class, 25, 25 to 30, I think.

[00:34:42] Speaker 01:
And how about at lab?

[00:34:43] Speaker 03:
Uh, lab school varies because they have about 12, I think the testimony is 12 or 13 in a class with a teacher of a couple of age, and then they break the class up for academic, so it ends up to be about six, uh, with about three, three or sometimes even four staff.

[00:35:01] Speaker 03:
Very, very, very small intensive classes.

[00:35:04] Speaker 03:
Um, but the point I was trying to make was that

[00:35:08] Speaker 03:
At least by the January IEP, the mid-year IEP with all of that input from lab and the new DCPS reports in OT and the FBA, the school system still proposed something that

[00:35:23] Speaker 03:
the experts testify would be insufficient, would be markedly insufficient to meet the students' needs.

[00:35:31] Speaker 02:
But the only objection you have there, let's add in the April executive functioning, but the only objections you had at least in January were the executive functioning and that it wasn't full-time special education.

[00:35:45] Speaker 02:
Is that correct?

[00:35:46] Speaker 03:
According to the testimony from Dr. Durham.

[00:35:48] Speaker 02:
No, I'm not asking about Dr. Durham.

[00:35:50] Speaker 02:
I'm talking about your objections.

[00:35:52] Speaker 02:
The objections at the IEP meeting?

[00:35:53] Speaker 02:
Not at the meeting.

[00:35:55] Speaker 02:
January 2015.

[00:35:56] Speaker 02:
At the meeting would be great.

[00:35:58] Speaker 02:
But your objections, what you say is deficient about January 2015 is it's not full-time special education.

[00:36:05] Speaker 02:
And it didn't address executive functioning.

[00:36:07] Speaker 02:
Anything else?

[00:36:07] Speaker 03:
Yes.

[00:36:08] Speaker 03:
According to the testimony, the academic goals in math, reading.

[00:36:13] Speaker 02:
Where is that in your briefing?

[00:36:15] Speaker 02:
And where is that in your objections on the district?

[00:36:17] Speaker 02:
All I had gotten was the special education and the executive functioning.

[00:36:21] Speaker 03:
If I may... I'm getting a bucket.

[00:36:26] Speaker 04:
Did you define executive functioning?

[00:36:29] Speaker 03:
I think executive functioning is organization, initiation, the ability to execute that part of the brain that... It's a term for...

[00:36:40] Speaker 03:
All the activities that go to social behavior, right?

[00:36:44] Speaker 03:
No, executive functioning is basically the way I've always described as great athletes like the golfer on Sunday afternoon, maybe not being better, but being able to beat the other people because you can be organized.

[00:37:00] Speaker 03:
understand the task and get it done.

[00:37:01] Speaker 03:
That's what executive functioning is.

[00:37:03] Speaker 03:
In this classroom, it's remembering your assignments, it's being able to shift from one thing to another, it's being able to attend.

[00:37:11] Speaker 03:
Attention deficit is related to something as a part of the executive function.

[00:37:19] Speaker 01:
And so the objections, just looking at your brief, the objections on the writing and math were that they were inappropriate goals.

[00:37:25] Speaker 01:
It wasn't objections to the services as so much as the goals.

[00:37:28] Speaker 03:
Well, the amount of services, because if you're only going to give that amount of hours of special education,

[00:37:35] Speaker 03:
that you're not going to be able to deal with all the academic subjects.

[00:37:40] Speaker 03:
But besides that, it's the nature, the substance of the goals.

[00:37:46] Speaker 02:
So can you give me a concrete example?

[00:37:48] Speaker 02:
So the goal that lab school offered in

[00:37:51] Speaker 02:
One by one multiplication rather than two by one.

[00:37:55] Speaker 03:
According to Dr. Durham, the levels were very inconsistent with the ZB that they received and started working with.

[00:38:14] Speaker 03:
They were too high.

[00:38:16] Speaker 02:
They were too ambitious in their goals.

[00:38:19] Speaker 02:
Too ambitious?

[00:38:20] Speaker 03:
They were too ambitious.

[00:38:20] Speaker 03:
They started at presuming skills that she did not have, is what Dr. Durham described.

[00:38:26] Speaker 02:
In 2015.

[00:38:27] Speaker 02:
The 2015 IEP.

[00:38:29] Speaker 03:
The 2014-15 IEP.

[00:38:31] Speaker 02:
No, I'm talking about January 2015.

[00:38:32] Speaker 02:
Yes.

[00:38:33] Speaker 03:
I'm sorry, 2015 IEP, yes.

[00:38:36] Speaker 02:
The January 2015 IEP started her at too high.

[00:38:41] Speaker 02:
a goal or too high a limit, which areas?

[00:38:45] Speaker 02:
I'm trying to get some specifics from you, because I had not gotten this from the briefing, other than that you want to get full-time special education.

[00:38:53] Speaker 03:
If I may, I will point you to specific.

[00:38:56] Speaker 03:
Thank you very much.

[00:38:57] Speaker 02:
Maybe we should let the other side.

[00:38:59] Speaker 02:
May I get to work on my essay?

[00:39:00] Speaker 03:
Absolutely.

[00:39:02] Speaker 03:
Thank you.

[00:39:10] Speaker 06:
Good morning, may I please record Richard Love for the District of Columbia.

[00:39:14] Speaker 06:
Your Honor, I respectfully disagree with many of the arguments, particularly as to what the record shows about reading and what the record shows about the disagreement with regard to the January 2015 IEP, which I'll start with.

[00:39:36] Speaker 06:
to 402.

[00:39:37] Speaker 06:
Ms.

[00:39:38] Speaker 06:
McClellan who testified, she was responsible for preparing the January 2015 IEP, she testified as to how that came about.

[00:39:55] Speaker 06:
In December, based on the additional evaluations that DCPS obtained, they revised the IEP ZB's

[00:40:10] Speaker 06:
Parents asked if they could reconvene and consider information from the lab school and their attorney, which the school system agreed to do.

[00:40:21] Speaker 06:
And at those pages that I referenced, Ms.

[00:40:25] Speaker 06:
McFarland testifies that

[00:40:28] Speaker 06:
All of that information was included, that there was no disagreement about goals, and that the only disagreement with regard to the 2015 IEP was as to the need for full-time special education.

[00:40:45] Speaker 06:
There was executive... Well, originally, there was as to... There was executive voting goals in the January IEP.

[00:40:51] Speaker 06:
They weren't an express goal.

[00:40:53] Speaker 06:
They were included in a different area.

[00:40:57] Speaker 06:
Where were they included in January?

[00:41:00] Speaker 06:
In January, I think they said they were in the social area, but there clearly were the executive functioning goals with regard to organizational and color-coded material.

[00:41:20] Speaker 06:
What was added in April was a result of a resolution meeting, and there's clear testimony in the record that says that that wasn't brought up earlier.

[00:41:28] Speaker 06:
and that's why they had it in April, but what was provided in January was what had been obtained from the lab school or was designed to address what was obtained from the lab school and ZB's parents and the other data and information to address executive functioning.

[00:41:48] Speaker 06:
And with regard to the

[00:41:51] Speaker 06:
disagreement on special education, whether it was required for full time, there is abundant evidence in the in the record that

[00:42:02] Speaker 06:
explains why the members of the DCPS IEP team disagreed that there was a need for full-time special education.

[00:42:13] Speaker 06:
And the hearing officer and the district court on its independent review credited that, for example.

[00:42:19] Speaker 02:
The district court didn't just credit it, it seemed to give a rule of deference.

[00:42:24] Speaker 02:
Are you defending that rule of deference that the district court did?

[00:42:31] Speaker 02:
Well, explanations are there or not from the district.

[00:42:34] Speaker 02:
You don't get deference.

[00:42:39] Speaker 06:
Well, I think that what the district court said was she gave less deference to the hearing officer's finding than that she

[00:42:47] Speaker 06:
did her own independent review and I think the result of that independent review was basically a basic corroboration of the findings and conclusions that the hearing officer reached.

[00:43:03] Speaker 02:
What I'd like to do is, if you don't mind, is get back to June 2014.

[00:43:06] Speaker 02:
Yes.

[00:43:07] Speaker 02:
OK.

[00:43:09] Speaker 02:
The Dr. Son's report comes in in April.

[00:43:12] Speaker 02:
I mean, it's pretty short order before the June 2014.

[00:43:14] Speaker 06:
It was received on May 19.

[00:43:16] Speaker 02:
May 19.

[00:43:16] Speaker 06:
It's dated May 12.

[00:43:18] Speaker 06:
But I believe it's Ms.

[00:43:19] Speaker 06:
Tick said she received it on May 19.

[00:43:21] Speaker 02:
OK.

[00:43:21] Speaker 02:
So in pretty short order, the district to its credit looked it over and got an IEP within a couple of weeks on that.

[00:43:31] Speaker 02:
But what is?

[00:43:34] Speaker 02:
The district has an obligation on its own to discover, when you identify a child who had needs, and this child had been demonstrating needs for years within the DC public school system.

[00:43:48] Speaker 02:
We already had a 504 plan in place.

[00:43:50] Speaker 02:
This has been going on since pre-K.

[00:43:52] Speaker 02:
So what was the obligation, what's the legal rule that you would offer for why the district itself didn't have an obligation, at least over that summer,

[00:44:02] Speaker 02:
to do more testing and get more information.

[00:44:05] Speaker 02:
So it seems to be very reactive.

[00:44:08] Speaker 02:
It doesn't do this testing.

[00:44:09] Speaker 02:
It waits for them to go get a private test and give it to you and go, oh, OK, that's good.

[00:44:14] Speaker 02:
We'll do this.

[00:44:15] Speaker 02:
And then wait for lab.

[00:44:17] Speaker 02:
You say, don't go to lab school.

[00:44:18] Speaker 02:
But that all the district has done here is react to what the lab school

[00:44:23] Speaker 02:
and what the studies there produced.

[00:44:25] Speaker 02:
Where is the district here meeting its own obligation to exercise initiative?

[00:44:30] Speaker 02:
We can't depend on parents.

[00:44:32] Speaker 02:
Some parents might not have the wherewithal to know themselves what to do.

[00:44:35] Speaker 02:
They're just trying to help their child.

[00:44:37] Speaker 02:
So where is the district being proactive here and getting testing done for a child that seemed to have a lot of real challenges?

[00:44:46] Speaker 06:
Well, I think the evidence in the record does show that since the middle of the second grade at Hearst, ZB was receiving behavioral support.

[00:44:55] Speaker 06:
Behavior was identified as an important consideration.

[00:45:01] Speaker 02:
Behavioral support is not the same thing as an IEP and educational plan.

[00:45:04] Speaker 06:
No, but you know, there was testimony in terms of tiered levels that were provided to, you know, they stepped up their interventions.

[00:45:14] Speaker 02:
No, I get the district has its, has its tiers it wants people to march through, but if you have a child who you can tell early on, again, you'd had her since pre-K, she's got some real issues.

[00:45:24] Speaker 02:
I don't know why you have to march through tiers when you know she's already a tier three or tier four person.

[00:45:29] Speaker 06:
Well, I respectfully disagree.

[00:45:30] Speaker 06:
I mean, even, I mean, based on the record,

[00:45:33] Speaker 06:
The information in the record, I mean, Zibi's own therapist from Children's Hospital recommends a 504 plan, and she says that should be tried first.

[00:45:44] Speaker 02:
And if that doesn't work, then perhaps IEP... But again, so there is the parents going to get the information, right?

[00:45:50] Speaker 02:
The parents seem here to have to keep getting the tests and then delivering them to you.

[00:45:54] Speaker 02:
Not all parents can't afford.

[00:45:56] Speaker 02:
to get these tests done.

[00:45:58] Speaker 02:
You have child find obligations, you have identification obligations, and all the district seems to be doing here is reacting to the tests that they're going and getting and paying for.

[00:46:08] Speaker 02:
And that can't be

[00:46:10] Speaker 02:
Right.

[00:46:11] Speaker 02:
I mean, you argue that they just have to have an IEP that fits the evidence in the record, but if the district isn't going to get any evidence in the record on its own, that seems to be an enormous problem.

[00:46:20] Speaker 02:
That can't be the test anymore.

[00:46:22] Speaker 02:
So tell me what the rule is for what testing and information you have to collect and how it was met here.

[00:46:29] Speaker 06:
Well, I think it was met by the information that the parents did procure.

[00:46:36] Speaker 02:
So is your position that the district had no obligation with this student that it has seen struggling since pre-K to get any information on its own?

[00:46:44] Speaker 02:
It just had to wait for parents to bring?

[00:46:45] Speaker 02:
No, of course not.

[00:46:47] Speaker 02:
OK, so then what was done?

[00:46:48] Speaker 06:
But I'm saying that the record shows that they did.

[00:46:50] Speaker 06:
They provide tiered interventions in second grade, both in behavioral, pull-out, special education.

[00:46:56] Speaker 02:
Well, you said that was in response to the report from their

[00:46:59] Speaker 06:
doctor of children's.

[00:47:01] Speaker 06:
No, if you look at the record at pages, I think it's referenced at pages 55, 254 and 340.

[00:47:11] Speaker 06:
Before there was a 504 plan,

[00:47:13] Speaker 06:
ZB was receiving behavioral support and pull out small group instruction in, I believe, math and I also believe in reading.

[00:47:24] Speaker 06:
Later that year, a 504 plan was initiated and it was initiated in response to the therapist's recommendations.

[00:47:33] Speaker 02:
Excuse me?

[00:47:34] Speaker 02:
Which grade was the 504 plan?

[00:47:35] Speaker 02:
Is that second grade?

[00:47:37] Speaker 06:
It was in the second grade, but it was after the behavioral support and the pullout services were already being provided to ZB.

[00:47:48] Speaker 02:
There were also, I think... So the 504 plan, you do your tier with that, and then the change is prompted by their report from their doctor, and then after that, what did you do?

[00:48:01] Speaker 02:
I'm really trying to understand the legal rules here, because the Supreme Court standard is very amorphous.

[00:48:07] Speaker 02:
And so, if you agree that the district has an obligation on its own to identify problems, to do needed tests, to create an appropriate record for making these judgments, what is the test for that?

[00:48:21] Speaker 02:
How would you articulate the legal rule you'd like to see in an opinion, and how was it met here?

[00:48:26] Speaker 06:
My understanding also, I mean, there are additional things that the DCPS did, I think, before the June 14th IEP.

[00:48:36] Speaker 06:
There's evidence in the record, I believe at 125 and 127, that HRSS was providing

[00:48:42] Speaker 06:
a bullying curriculum, preferential seating, extended testing time, and a multi-sensory learning and repetition during instruction.

[00:48:50] Speaker 06:
But more responsive to your question, I think the idea requires if the parents had requested independent testing, there would be an obligation on the school assistant to do that.

[00:49:01] Speaker 02:
Okay, but what if they don't, what if the parents don't know to request, then you don't have to do anything?

[00:49:04] Speaker 06:
Well, I don't, I think, you know, I'm not aware of any requirement

[00:49:12] Speaker 06:
familiar with.

[00:49:16] Speaker 06:
I am familiar that if the request is there, testing has to be done.

[00:49:21] Speaker 02:
I want to be crystal clear on the district's position here.

[00:49:25] Speaker 02:
Is it that you have only to respond

[00:49:29] Speaker 02:
to parental requests, reports obtained by parents, and you don't have an independent obligation when you see a child struggling, and she was going nowhere in second grade but down.

[00:49:41] Speaker 02:
And so where, you had no obligation to do the testing or collect the information on your own.

[00:49:46] Speaker 02:
I just want to be clear where the district's position is.

[00:49:52] Speaker 06:
district did respond to what they were observing.

[00:49:54] Speaker 02:
Okay, that's not the question I asked.

[00:49:55] Speaker 02:
I'm asking your position.

[00:49:57] Speaker 02:
You guys are the ones that send in a contract to the federal government saying we're going to comply with the IDEA.

[00:50:03] Speaker 02:
We're going to comply with all of its obligations, including child fine obligations.

[00:50:08] Speaker 02:
Do you understand as part of those obligations that you have a duty when you discover a child that's struggling to obtain testing or not?

[00:50:20] Speaker 02:
I'm just asking the question.

[00:50:22] Speaker 06:
But your question asks when is that obligation triggered?

[00:50:25] Speaker 02:
My question right now is do you have an obligation?

[00:50:28] Speaker 02:
No, I have one question at a time.

[00:50:30] Speaker 02:
The question right now is do you have any independent obligation

[00:50:35] Speaker 02:
to undertake testing or consult experts collect information on which to advance the IP.

[00:50:44] Speaker 02:
Okay, you do have that obligation.

[00:50:45] Speaker 06:
I think, you know, that obligation exists.

[00:50:48] Speaker 06:
When it is triggered, I can't answer that specifically.

[00:50:52] Speaker 06:
I think it's fact dependent.

[00:50:54] Speaker 06:
Here you had a school psychologist who identified and provided a behavioral implementation plan as early as second grade before the 504 plan.

[00:51:06] Speaker 02:
Did the school psychologist do that on his or her own, or was it in response to complaints from the parents?

[00:51:11] Speaker 06:
No, as far as I read the record, this was initiated by DCPS, by Ms.

[00:51:15] Speaker 06:
Tick.

[00:51:17] Speaker 06:
She testified later she developed the 504 plan.

[00:51:21] Speaker 06:
So there were some services provided, and I think if you look at ZB's father's testimony, I think he also indicated there were these various tiers.

[00:51:30] Speaker 02:
Beyond 504, which is a different statutory scheme, you have obligations under the IDEA, which involves IEPs.

[00:51:37] Speaker 02:
So why didn't the district believe that it had, at any time,

[00:51:45] Speaker 02:
an obligation to test this child, to get experts to come in, you know, either testing or expert evaluation, to go beyond.

[00:51:55] Speaker 02:
This was a child that needed an IEP under the IDEA.

[00:51:59] Speaker 02:
Was that ever decided by DC?

[00:52:02] Speaker 06:
Well, it was decided after, you know, these other efforts.

[00:52:07] Speaker 06:
Wait, what other efforts?

[00:52:09] Speaker 06:
Well, as I said, there was a behavioral implementation plan that was pulled out in reading and math.

[00:52:15] Speaker 06:
Subsequently, then there was escalated to a 504 plan.

[00:52:20] Speaker 06:
And thereafter, the IEP was developed subsequent to the SAMS report, the June 2014.

[00:52:27] Speaker 02:
So I'm back to my question.

[00:52:30] Speaker 02:
So DC didn't decide that she needed an IEP until the parents went and got a test.

[00:52:37] Speaker 02:
You didn't feel any obligation

[00:52:39] Speaker 02:
to get her tested on your own or to decide on your own that we are now, we now need an IEP governed by the, I'm sorry, by the acronyms, IDEA.

[00:52:49] Speaker 06:
Apparently not.

[00:52:51] Speaker 06:
There's not in the record any indication that IEP testing was conducted or requested prior to the SANS report.

[00:53:08] Speaker 06:
All right, so there also is testimony, at least from Miss Tick.

[00:53:13] Speaker 06:
Miss Tick, and I didn't note the page, but I know it is in the record, that, you know, there was a concern on the part of Zibi's parents about labeling her as special education and that they did want

[00:53:26] Speaker 06:
go through this tiered system while coming to that point.

[00:53:30] Speaker 06:
So there was, as I said, there were services, and the initiating factor was, as you said, in this particular case, the SANS report.

[00:53:41] Speaker 02:
Right, so this is what I'm concerned, I mean, there's important arguments here that you make about, look, when we got the information we did,

[00:53:49] Speaker 02:
We did a very prompt response to the Sons Report.

[00:53:53] Speaker 02:
We had these measures in here that we thought would implement that enough to give her an appropriate education.

[00:54:00] Speaker 02:
The parents didn't seem to object.

[00:54:02] Speaker 02:
We were going to review in 30 days.

[00:54:04] Speaker 02:
And then off they go to lab school.

[00:54:07] Speaker 02:
So I get that sounds like a powerful argument.

[00:54:10] Speaker 02:
But then when you look at the big picture here,

[00:54:13] Speaker 02:
DC's done nothing except react.

[00:54:17] Speaker 02:
You say, don't go to lab school, but it's only because I went to lab school and got the information on the testing that you got the January 2015 IEP.

[00:54:26] Speaker 02:
How would that have ever come into being without them, if they hadn't gone to Dr. Sons, if they hadn't gone to lab school and gotten these testing and reports, how would we have ever gotten to a point where you now say we have what the law requires?

[00:54:45] Speaker 06:
I don't think you can answer that.

[00:54:48] Speaker 06:
I mean, they might have done it without the SAMS report.

[00:54:51] Speaker 06:
They might have done it in the end of the third year.

[00:54:54] Speaker 06:
They may have done it in the beginning of the fourth grade.

[00:54:56] Speaker 02:
They might have.

[00:54:57] Speaker 02:
They might not.

[00:54:57] Speaker 02:
Does DC not have a system in place?

[00:54:58] Speaker 06:
We don't know one way or the other.

[00:55:01] Speaker 02:
Does DC not have a system in place for undertaking testing?

[00:55:05] Speaker 02:
504 Plan wasn't getting where it should be.

[00:55:07] Speaker 06:
Certainly they do.

[00:55:08] Speaker 06:
But what triggers it?

[00:55:10] Speaker 06:
I mean, I think it's very factual dependent.

[00:55:12] Speaker 06:
On this particular instance,

[00:55:14] Speaker 02:
Why wasn't it triggered here before the Sons report in May?

[00:55:20] Speaker 02:
Third grade had not been going great.

[00:55:22] Speaker 02:
Second grade hadn't been going well at all.

[00:55:26] Speaker 06:
Well, services were being provided in second grade and they were following the therapist's recommendation and first implementing the 504 plan before moving to IEP testing.

[00:55:36] Speaker 06:
Why it wasn't done before April, which is when

[00:55:42] Speaker 06:
Dr. Sands conducted her evaluation.

[00:55:45] Speaker 06:
Her report was issued the following month.

[00:55:48] Speaker 06:
I'm not certain.

[00:55:49] Speaker 06:
The record doesn't indicate it, just as it doesn't indicate whether or not it would have been done the following week, month, or the following school year.

[00:55:56] Speaker 06:
So it may never have happened.

[00:55:57] Speaker 02:
But they were.

[00:55:58] Speaker 02:
If they hadn't done it on their own.

[00:56:00] Speaker 06:
I don't think you can conclude that.

[00:56:02] Speaker 02:
We can't conclude either way, is what you're telling me.

[00:56:04] Speaker 06:
That's correct.

[00:56:06] Speaker 02:
That seems problematic, given your obligations under the statute.

[00:56:10] Speaker 02:
It's hard to say, don't go out and exercise your own initiative to find out what your child needs.

[00:56:17] Speaker 02:
You can't do that.

[00:56:19] Speaker 02:
And yet all the school does is react to and incorporate what that initiative produces.

[00:56:26] Speaker 02:
That's just what I'm struggling with in the law.

[00:56:28] Speaker 02:
It seems there needs to be a legal rule about what you have to do, what triggers it, and then we'll be able to know when they have gone too far.

[00:56:37] Speaker 02:
Not too far, but they have made their own independent decision to go another way.

[00:56:40] Speaker 06:
I think the legal rule is the question is whether or not she was provided a fate through the June 2014 IEP and the January 2015 IEP.

[00:56:52] Speaker 06:
Both the hearing officers and the district court concluded that she did.

[00:56:58] Speaker 02:
Do you think the 504 plan itself would satisfy the IDEA standards?

[00:57:04] Speaker 02:
I'm not suggesting that.

[00:57:05] Speaker 02:
I'm just to be clear and so because you want us to only look at that but obviously their decision in June 2014 or spring 2014 to apply a lab and in August 2014 was a product of

[00:57:19] Speaker 02:
all the years that are talked about in the record that led up to that.

[00:57:23] Speaker 02:
All those years of them having to go get the specialists, the children, them having to go find Dr. Sands.

[00:57:31] Speaker 02:
And the things that this district were doing were just not remotely.

[00:57:34] Speaker 02:
Things were getting worse, the bullying was getting worse, she was getting worse in her learning.

[00:57:38] Speaker 02:
As you get older, these impacts become much more consequential.

[00:57:41] Speaker 02:
I understand that.

[00:57:42] Speaker 02:
So we can't just look at June 2014.

[00:57:44] Speaker 02:
We have to look at the whole record in the D.C.

[00:57:46] Speaker 02:
school system.

[00:57:48] Speaker 06:
I agree, and I think the record shows there wasn't total reliance on the SANS report.

[00:57:55] Speaker 06:
There also were the people who were participating in the June IEP meeting included school personnel who have been working with ZB since second grade.

[00:58:06] Speaker 02:
Were there any plans to have a June 2014 IEP had the SANS report not landed in someone's office in May?

[00:58:12] Speaker 02:
Is there any evidence in the record that the school district itself was already formulating an IEP?

[00:58:18] Speaker 02:
It was just carrying forward the 504 plan at that point.

[00:58:24] Speaker 06:
Yes, they were carrying forward the 504 plan.

[00:58:27] Speaker 06:
And as I said, there were as as you know, Dr Sands in a report notes.

[00:58:33] Speaker 06:
ZB, this is from her May 14th report.

[00:58:39] Speaker 06:
She notes, ZB has improved a great deal this semester.

[00:58:43] Speaker 06:
Her fluency and problem-solving skills have come a long way.

[00:58:46] Speaker 06:
ZB's reading improved significantly, and Dr. Sands' testing in her report showed that she had average reading skills.

[00:58:55] Speaker 06:
ZB's third board of record,

[00:58:57] Speaker 02:
But you told me the 504 plan you had in place was not sufficient.

[00:59:02] Speaker 02:
So the fact that she, there's may have been nowhere to go but up at that point for this child.

[00:59:07] Speaker 02:
So I'm not sure.

[00:59:09] Speaker 06:
I'm saying the 504 plan doesn't substitute for IEP testing, but, you know, Dr. Sand's report shows that there were, you know, there were issues, but there also were significant strains.

[00:59:25] Speaker 02:
Is there anything in the record about what DC was doing on its own testing and monitoring to say that this was good enough?

[00:59:32] Speaker 02:
Imagine there was no Sons report.

[00:59:34] Speaker 02:
What's what I'm asking, is there anything in the record to say that there would have been a recognition for all the additional things that showed up in June 2014?

[00:59:42] Speaker 06:
There's nothing that indicates one way or the other whether or not IEP testing was contemplated, but as I said,

[00:59:54] Speaker 06:
personnel from our school were providing services to ZB since the second grade.

[01:00:02] Speaker 06:
Some of those services were escalated over the course of the second grade and the third grade.

[01:00:08] Speaker 06:
So this wasn't a student who was simply shoved off to the side and neglected and overlooked.

[01:00:14] Speaker 06:
There were services

[01:00:15] Speaker 06:
There was a tension.

[01:00:17] Speaker 06:
They were aware of CB's problems.

[01:00:19] Speaker 06:
And yes, the initiating factor was Dr. Sanz's report.

[01:00:23] Speaker 06:
But this is not simply a situation where her school simply overlooked CB.

[01:00:30] Speaker 02:
No, I get that.

[01:00:31] Speaker 02:
So you didn't completely miss the ball on this.

[01:00:34] Speaker 02:
And to be fair, Andrew F. was not on the book.

[01:00:37] Speaker 02:
You all were working in a rowly world.

[01:00:40] Speaker 02:
But what you just described sounds like exactly the sort of de minimis progress standard that was rejected in Andrew F. And so what I'm wondering is, this whole case was litigated pre-Andrew F.

[01:00:55] Speaker 02:
And to be fair to the district, you guys didn't have NDRF on the books, but how do we have a record here to know that the district was independently meeting its obligations consistent with the NDRF standards if no one ever applied it?

[01:01:11] Speaker 06:
I think the standard this court has to judge is whether or not the June 2014

[01:01:17] Speaker 06:
IEP provided DB a free and appropriate public education.

[01:01:24] Speaker 06:
And the fact that it was initiated by Dr. Sands' report doesn't

[01:01:34] Speaker 06:
take away from what the issue before this quarter is.

[01:01:38] Speaker 02:
Well, let me ask you another question about June 2014 IEP, okay?

[01:01:41] Speaker 02:
If you had all the information that you had in January 2015, would the June 2014 IEP

[01:01:53] Speaker 06:
The only difference between the June 2014 IEP and the January 2015 IEP is reading was added as a goal.

[01:02:10] Speaker 06:
IEP was developed.

[01:02:12] Speaker 06:
And there's considerable testimony in the record from Ms.

[01:02:15] Speaker 06:
Taipkin, Ms.

[01:02:15] Speaker 06:
Olive-Arrows, who disagreed that reading was required or necessary.

[01:02:20] Speaker 02:
You have, as I said, Dr. Sanz's... I want to get back to my question, which is, I think, a simpler one.

[01:02:25] Speaker 02:
And that is, if you had the information that you had as of January 2015, if you had that in June 2014, would the June 2014 IEP have been

[01:02:40] Speaker 02:
appropriate under the IDEA?

[01:02:42] Speaker 02:
Would it have met the Andrew F. standard?

[01:02:49] Speaker 02:
If you had that information, I guess you didn't.

[01:02:51] Speaker 02:
But if you had, would it have met the Andrew F. standard?

[01:02:58] Speaker 06:
I mean, I want to answer the question, but I want to make sure I understand it, so I'm answering.

[01:03:03] Speaker 02:
I'm saying if you take all the information, because the IEPs are formulated on the basis of the information in front of you.

[01:03:09] Speaker 02:
So if you take all the information you had in January 2015, when you made the January 2015 IEP, and all you produced instead was the June 2014 IEP, would you have met your obligations under the statute?

[01:03:31] Speaker 06:
Well, I certainly, yes, I think that the only

[01:03:37] Speaker 06:
As I said, the only difference in the January 25th.

[01:03:39] Speaker 02:
The only difference in reading can be all the difference in the world, if that's something she needs to have addressed.

[01:03:44] Speaker 06:
But there was a basis for not including it.

[01:03:46] Speaker 06:
And there's a bundle of testimony.

[01:03:47] Speaker 02:
No, I'm saying you have the information in January.

[01:03:49] Speaker 02:
By January, you had the information about reading problems.

[01:03:52] Speaker 02:
And that's presumably why you put it in your January 2015 IEP.

[01:03:55] Speaker 02:
I think you want to say June was fine, because we didn't have that information.

[01:03:59] Speaker 02:
But I think what I'm getting is that once we had the information we had in January, we responded as we did.

[01:04:06] Speaker 02:
quite responsibly.

[01:04:08] Speaker 02:
And we changed the IEP to reflect this new information.

[01:04:11] Speaker 02:
We had an abundance of information for us.

[01:04:13] Speaker 02:
And we were quick to respond.

[01:04:15] Speaker 02:
This isn't a delay case.

[01:04:16] Speaker 02:
We were quick to respond.

[01:04:18] Speaker 02:
We've essentially given them everything but full-time special education based on the information that we've gotten.

[01:04:26] Speaker 02:
And we didn't have that information in June.

[01:04:28] Speaker 02:
So we didn't have the stuff that we knew we needed by January 2015.

[01:04:33] Speaker 06:
Right.

[01:04:33] Speaker 06:
If we had that information.

[01:04:35] Speaker 06:
But the information

[01:04:37] Speaker 06:
We couldn't have had the information that we had in January because we had six months or several more months of experience inside a classroom setting with

[01:04:52] Speaker 06:
ZB with regard to reading skills.

[01:04:55] Speaker 06:
We also had an occupational therapy evaluation that had not been conducted.

[01:05:01] Speaker 06:
I mean, as you said, we received Dr. Sands' report on May 19th.

[01:05:07] Speaker 06:
The priority was to not wait for an OT eval, but to complete an IEP, and that was done promptly.

[01:05:14] Speaker 02:
You did it promptly, and then you had a whole summer where you did nothing.

[01:05:17] Speaker 02:
No summer education, which can be very important.

[01:05:21] Speaker 06:
She's never been found to need extended school year, either by the lab school.

[01:05:26] Speaker 02:
No testing, none of the stuff.

[01:05:29] Speaker 06:
No, there was no testing, and as you have pointed out,

[01:05:32] Speaker 06:
The parents did agree.

[01:05:35] Speaker 06:
I mean, all of the people working said we would agree with the goals, objectives, the services, and the hours in the June 2014 IEP.

[01:05:45] Speaker 06:
There was an understanding that it would be reviewed in 30 days and could be changed at that point.

[01:05:51] Speaker 06:
So yeah, there was nothing done over the summer.

[01:05:54] Speaker 06:
The understanding was that it would be reviewed in 30 school days and adjusted as needed at that time.

[01:06:02] Speaker 01:
I know, Mr. Love, that we've taken you over this territory in depth.

[01:06:09] Speaker 01:
In terms of the testing in the, I think it's in the functional behavioral assessment by Ms.

[01:06:14] Speaker 01:
Hughes in the record, she's narrating the background and one of the things that she says is that when there was an improvement

[01:06:27] Speaker 01:
The school refused to test Zoe.

[01:06:30] Speaker 01:
As a result, Mr. and Mrs. Brown procured an independent evaluation.

[01:06:33] Speaker 01:
And that's in the appendix at page 129.

[01:06:40] Speaker 01:
Although the big bait stamp printing says 224, but I think the page number that you're using in this corrected appendix is 129.

[01:06:49] Speaker 01:
It's that tiny, tiny writing and this

[01:06:55] Speaker 01:
And it does come across as sort of narrating things from the Brown's perspective, but it's also a DCPS document.

[01:07:02] Speaker 01:
I just wondered what your, if you have any information about that.

[01:07:06] Speaker 06:
My understanding is that that was according to

[01:07:12] Speaker 06:
ZB's parents, there's no testimony or other record evidence that confirms their allegation that testing was refused.

[01:07:24] Speaker 06:
But they have, you know, I think that's reporting what ZB's parents

[01:07:31] Speaker 06:
reported to misuse.

[01:07:34] Speaker 01:
So there's nothing one way or the other other than this?

[01:07:37] Speaker 06:
Other than that the allegation from ZB's parents in this document and I believe there's some reference to that in ZB's father's testimony in the record as well.

[01:07:48] Speaker 06:
There's nothing to corroborate that.

[01:07:50] Speaker 06:
There's nothing in and I think the

[01:07:57] Speaker 06:
I understand the court's point with regard to the district reacting or being in a reactive mode, but they reacted promptly each and every time.

[01:08:09] Speaker 06:
It's not consistent with a refusal.

[01:08:13] Speaker 06:
And I think when information was brought to them, they reacted promptly, responsibly, and appropriately.

[01:08:23] Speaker 06:
And I think the issue with regard to mainstreaming ZB is a very important issue.

[01:08:30] Speaker 06:
And there's considerable evidence, as I said, that supports the conclusion that she didn't require full-time special education.

[01:08:41] Speaker 06:
As a number of her teachers and testifiers says,

[01:08:50] Speaker 06:
ZB could interact and would benefit from interaction with her non-disabled peers, interactions that the lab school can't provide.

[01:09:00] Speaker 06:
ZB shouldn't have been isolated.

[01:09:01] Speaker 06:
She needed to have contact with the students.

[01:09:04] Speaker 06:
Not all of them were bullying her.

[01:09:06] Speaker 06:
A lot were trying to befriend her.

[01:09:08] Speaker 06:
And at DCPS, ZB was getting the dual support system with special ed as well as the general ed classroom.

[01:09:15] Speaker 02:
All right, thank you very much.

[01:09:17] Speaker 02:
I think your time is well over.

[01:09:19] Speaker 02:
Yes.

[01:09:19] Speaker 02:
Thank you.

[01:09:20] Speaker 06:
Thank you.

[01:09:26] Speaker 02:
All right, do we have, I'm sorry, did I agree again?

[01:09:28] Speaker 02:
Sorry, I'm sorry.

[01:09:29] Speaker 02:
We'll give you three minutes.

[01:09:31] Speaker 02:
We'll give you three minutes.

[01:09:32] Speaker 03:
Thank you very much.

[01:09:34] Speaker 03:
I want to pick up on Dr. Sands' report again because in May it was submitted

[01:09:42] Speaker 03:
I absolutely agree that the school system, the team at Hearst turned it around very quickly, but they completely missed the explicit recommendations in the report.

[01:09:54] Speaker 03:
And I believe it's joint appendix 58, but once again, I do ask for permission, if I can, beyond today to fix up my citations for oral argument.

[01:10:06] Speaker 02:
You just want to send a letter and then we'll be fine.

[01:10:08] Speaker 03:
May I?

[01:10:08] Speaker 03:
Thank you very much.

[01:10:12] Speaker 03:
It's page five of her report.

[01:10:16] Speaker 03:
That much I know.

[01:10:18] Speaker 03:
On the top.

[01:10:19] Speaker 03:
And what her recommendation is very clear.

[01:10:21] Speaker 03:
It says, and she testified to this as well, with respect to placement, Zoe should receive specialized small group instruction for course subjects.

[01:10:31] Speaker 02:
Sorry, which paragraph are you in on her page?

[01:10:33] Speaker 03:
Right on the recommendations on the top.

[01:10:35] Speaker 02:
That's not on her page four.

[01:10:37] Speaker 03:
Page five.

[01:10:38] Speaker 03:
I'm sorry.

[01:10:40] Speaker ?:
Okay.

[01:10:40] Speaker 03:
And the recommendations towards the bottom, about five lines from the bottom.

[01:10:44] Speaker 03:
With respect to placement, Zoe should receive specialized small group instruction for core subjects, e.g.

[01:10:50] Speaker 03:
math, language, arts.

[01:10:52] Speaker 03:
For other subjects, Zoe should be placed in a classroom with, say, small teacher to student ratio and increased support for her symptoms of ADHD and to accommodate for the impact of her learning disorders in these settings.

[01:11:05] Speaker 03:
For example, co-taught classes.

[01:11:08] Speaker 03:
That's what Dr. Sands repeated that, of course, in her testimony.

[01:11:12] Speaker 03:
What the school system, what the team at Hearst did in response to that in the June 2014 IEP the next month was it proposed seven and a half hours of special educational week.

[01:11:27] Speaker 03:
or an hour and a half a day.

[01:11:32] Speaker 03:
And it's wholly inconsistent with what she recommended.

[01:11:37] Speaker 03:
Yes, the parents did not say at the IEP meeting what I reviewed, see if he's father's testimony.

[01:11:48] Speaker 03:
And what he said is that we didn't think, I didn't think it was appropriate, but I didn't say it at the meeting.

[01:11:55] Speaker 03:
I went back and talked to my wife.

[01:11:57] Speaker 03:
I talked to Dr. Sands.

[01:12:01] Speaker 03:
That's when they applied to the last school, according to his testimony.

[01:12:05] Speaker 03:
So it was a little bit later than I said.

[01:12:07] Speaker 03:
It was, in fact, because they didn't think that it was consistent with their recommendations, they didn't tell the school system until the end of August, as we well know.

[01:12:16] Speaker 03:
That's exactly what happened.

[01:12:18] Speaker 03:
But that IEP in June of 2014

[01:12:21] Speaker 03:
was wholly inconsistent with what was being recommended, and what the school system didn't do, in addition to not following in the June IEP meeting, is do anything as was just noted over the summer to say, we should have Ms.

[01:12:36] Speaker 03:
Tick evaluate this student, or we should have Ms.

[01:12:38] Speaker 03:
Oliveros evaluate this student, because that recommendation is not what's in our IEP.

[01:12:44] Speaker 03:
It clearly isn't.

[01:12:45] Speaker 03:
So that's one thing I wanted to point out to you.

[01:12:48] Speaker 02:
I think we've gone very, very long and let everyone argue a very, very long time.

[01:12:52] Speaker 03:
Thank you very much, Your Honor.

[01:12:54] Speaker 02:
The case is submitted.

[01:12:55] Speaker 03:
Thank you.