Legal Case Summary

Mr. Extrand, whenever you get settled, do not rush. Good morning. Good morning, Judge Duncan. Just the ass. Judge A.G. My name is Bob Extrand. I am counsel for the plaintiffs and appellants in this matter. I would like to reserve five minutes of rebuttal time. You had to have the clock. The clock is set there. Your honors. This case involves two primary issues, the first of which is a threshold procedural issue. That is whether or not the plaintiffs, the appellants, E.L. and her parents, exhausted all administrative remedies that were available to her under the individuals with disabilities and education act. We have briefed this issue secondarily, but in reviewing the briefings and reviewing the post-rev of this case, I think it is important to address it up front

. The conclusion that I think this court has to reach is that the plaintiffs did exhaust all of the administrative remedies available to them under the IDEA. There is no question, of course, that plaintiffs file a due process petition under the IDEA. They conducted a full-blown hearing. It was administered by this state's Office of Administrative Hearings. The question is whether or not under those factual circumstances, does the IDEA require the plaintiffs to, if they are aggrieved, before they go and file a complaint in state or federal court, do they have to go through what's called a second tier state level administrative review? That is an appeal. What if you had done this question wouldn't be before us now? Well, your honor. The exhaustion issue wouldn't be before us. I believe if we had filed a notice of appeal, that would be the only thing we didn't do with respect to the appeal to the state review officer. But yes. You say that's the only thing, but that's a necessary thing. In some states, it is your honor, but that's the point of this case. In this case, under IDEA, under the plain meaning of its appeal provision, the plaintiffs had no right to appeal to an SRO, a state review officer. The crux of your argument is that North Carolina doesn't have a teacher system. North Carolina, it does not have... Because that first level, the administrative law judge level, is in fact a state level because it's centralized and organized by the Office of Administrative Hearings, which is a state entity

. That's exactly right. The hearing is conducted by the State Educational Agency through a contract with the Office of Administrative Hearings, also a state agency. But the contract took over in order to bring some level of a consistency to the local individual, local governments. Isn't that correct? Well, you're on a... I'm not sure that that's clear at all. That's what the State Review Officer said in his opinion. But the fact of the matter is, the IDEA gives states two choices, essentially. Either the due process hearing can be conducted by the local educational agency or the State Educational Agency. What I'm trying to do is hone in on your argument. Your argument is that there was no local educational entity hearing because what took place was in fact run by the State by contract with local governments. Correct. And that's exactly right. And your reason for arguing that this local government could not delegate or contract with the State to conduct those first line hearings is one exact. I'm not arguing that the local educational agency couldn't have conducted the hearing. Theoretically, North Carolina could choose to do that

. And under subsection G, 1415, if a local educational agency conducts that hearing, then there's a right to appeal to the SRO. The statute's perfectly clear. But the local educational agency did not conduct this hearing. It contracted with the State to do it. And what I'm trying to get to is why you see that as a problem. Because the statutory, because the language of the statute compels the conclusion that you only have a right to or an opportunity to review at by a State Review Officer, if a local educational agency as opposed to a State Educational Agency conducts the hearing. The statute, the Federal statute had a definitional barrier for you and that it defines this last tier, whether it's the first one or the second one, depending on the State, as the hearing conducted by the State Education Agency, which it defines as the State Board of Education or a last. The State Board of Education did not conduct the first tier hearing here. That that's the problem. You've just touched on the whole analytical problem with the district courts order, the SRO's decision. And but not the A L J's decision. The point is, IDEA, the specific language says, if a local educational agency conducts the due-pros hearing, a party agreed can appeal to an SRO. And so, administered by the State Board, by exclusion, there is no right of appeal to the SRO for the State Board of Education. If it's not conducted, the due process hearing is not conducted by the local educational agency. And you're on the office of administrative hearings, part of the North Carolina Board of Education. No, sir. I think the- I did not create a definitional problem

. No, sir. In fact, the Department of Education, and the Appendix to Array, Plybreef in 2003, the Department of Education issued a letter ruling, consisted with its regulations that says, a State Educational Agency that contracts with its Office of Administrative Hearings. In that case, it was Florida. And like many other states do, the Department ruled that if a State contracts with its Office of Administrative Hearings to conduct the hearing, it's still conducted by the State Educational Agency. Because that's the entity that's ultimately responsible for making sure that all the due process safeguards in the statute are met, for example, the 45-day rule and others. But in no event does a State Educational Agency actually adjudicate a hearing? They always have to hire an independent hearing officer who's not employed. Same thing if a- If a local educational agency does it, there's a requirement that that presiding judicial official not be an employee or otherwise affiliated with either the local educational agency. But I thought- With the State. The certain- The Florida case that you mentioned, the State Entity delegated to the Office of Administrative Hearing Authority. I mean, there- Right. It was factually distinguishable because it appeared that the entity- The relationship between the two was such that there was a delegation of authority to the State, which doesn't appear- Which doesn't appear to be the case here. Or we have no record- Or I don't see anything in the record that suggests that that is the case. Well, there- There's a finding by the Administrative Law Judge who adjudicated the case. He may be expressed finding that the hearing was conducted by the State Educational Agency in the sense that the IDEA uses the term. Are you a factual finding or a- I think it is. And I think it's something that you could take judicial notice of because it's in the statutes. It's also something he's well aware of

. And it's undisputed. But the point is, you don't have to get there, your honor. You don't have to worry as much about whether the State Educational is contracting with another entity. Whether that creates a distinction because IDEA is very simple. It says, if the hearing is conducted by the local Educational Agency, that's the board. To defend it. The appellee in this case. If they conduct the hearing, then you can have a State Level Review. Never write to it. That's 1415G. And if you go down to F1A, it says, if you don't have a right to that State Level Review, which means if the hearing wasn't conducted by the local Educational Agency, you have a right to direct appeal to the State or Federal Court. How does that stat you bar an additional level of review within the State Agency, even if you're right? Four canons of construction. The plain meaning of it, I've just discussed. But you didn't say anything about requiring or prohibiting additional layers of review. As the simply says, the review lies within the State Agency. There's nothing in that statute that I see that bars an additional level of review within the State Agency. But Your Honor, I would suggest to you that the first cannon of statutory construction, we talk about which is, I'll butcher this, Inclusio Unis S

. Exclusio Alterius, which basically is, as you know, the inclusion of one thing means the exclusion of others. So the inclusion of a right to appeal to an SRO, if the State, I'm sorry, if the local Educational Agency conducts the hearing, that excludes the circumstance we're in, where the State, or actually more specifically, the local Educational Agency, did not conduct the hearing. So we move to F1A, which says, it would appear that that cannon would apply if the rights were mutually exclusive. But there's nothing mutually exclusive about granting a petitioner an additional level of review within the State Agency. How is that a problem? Well, it becomes a problem if, like us, we asked the ALJ to tell us, was this hearing conducted by the local Educational Agency under subject? Well, that's not fair. Well, you suggested the result of what respect to the ALJ's contribution. Sure. You proposed that fine. The finding that the local Educational Agency didn't conduct the hearing. I don't think there's a dispute about that. But you also proposed the finding that this was the only layer of review and the next level of review would be a loss. Well, we're reviewing, yes, sir, a review in State or Federal Court, because that's tracks the statute. That track tracks IDEA. And I wanted to know what our repeal disorder is. Does the IDEA prohibit any, does the IDEA prohibit a local entity from contracting the performance of the services? No, it has to. It's got, because it's got to be independent of the local Educational. The judge has to be independent

. It just can't be as you conceive of it, a state entity. Well, it could be, but it has to be separate then the local Educational Agency. So yes, if your question is, could a local Educational Agency contract with the Office of Administrative Hearings? Which has to be separate. It has to be independent of what? Of the local entity? Both. And the state? Both. And you say it. You have said that the Office of Administrative Hearings is independent of the State Board of Education. Yes. So what is the problem with the relationship with the local Educational entity? The only problem, the only issue is that the local Educational Agency did not conduct this hearing. And under subsection G of 1415. Well, you just told me it had to be independent of. Well, that's, that, I think you're getting hung up on the word conducted in that, that's I think a term of art as it's used in the statute. The, the LEA and S.E.A. don't adjudicate the hearing that always have to find an independent hearing officer. Some states do have the local Board of Education hiring hearing officers from a list

. I've identified the eight states that are left that do that. But if the state law under IDEA, the statute spells it out. If state law gives the responsibility for making sure that the due process hearing is conducted according to the procedural safeguards of the statute, then the S, then the S.E.A. is conducting the hearing. The local, You have, have filed a protective notice of appeal here with the state review officer, whoever the second level is, and then made this argument there. You would have preserved everything. I wish I had to be honest. But I, what I tried to do was make that clear for everyone by asking the judge in an explicit issue to tell the parties what the, what their responsibilities vis-a-vis appeal were. And, and the other part of this is that there is, You were asking the state review officer or the U.S. District Judge. No, that, but I was asking the ALJ, the hearing officer in the first level. And the hearing officer, he made findings. He said that I'm operating pursuant to a contract with the state board of education. This hearing was not conducted by the local educational agency or overseen by the local educational agency

. And therefore, there's no right of appeal. Not the state board of education. He was, he was acting pursuant to a contract with the state board of education. That, that was his finding. And that, that's the state educational agency. And so, your orders, I would just emphasize that the plain meaning of the statute, also the Canada of Construction, Exclusio, Inclusio Unis, as well as Congress's acquiescence in the clear statement of policy by the Department of Education. That's been existing for 10 years, over 10 years, that we've included in the appendix to our reply brief, which says clearly that where the state educational agency is made responsible for the hearing under state law, and they contract to their office of administrative hearings, they did in Florida. That does not create a two-tier system. That's a one-tier system. There is no right to review by the state educational agency. And so, you have to proceed to directly to federal court or state court for review. Thank you, good friend. You have some time for a Bob. Thank you. May I please the court, I'm Kenneth Sue for the Chapel Hill of Carburet, City Schools, the appellant. I'm sorry, yes, the appellee in this case. The IDEA authorizes the state of North Carolina to assign responsibility for the local hearings to the Office of Administrative Hearings, which your honors have pointed out, is not the state educational agency

. When you talk about the provisions that we've been discussing in 1415, the only specifics are what are the local school board here, the Chapel Hill School Board, decided it wanted to conduct this first level hearing. Did have the legal authority under North Carolina law to do that? North Carolina school boards are subdivisions of the state. Their authority is granted to them by the state and in North Carolina, not the state educational agency, but the General Assembly of North Carolina has said that the local hearings will be conducted by the Office of Administrative Hearings. In the county or school district where the student attend school or is entitled attend school. In this case, it happened in, not in that county, as the statute allows the parties to agree to have it elsewhere and the parties did so in this case. The local school board could not have conducted the hearing itself. Well, so that is an interesting question. The local school board did not have the ability to do anything other than host a hearing where administrative law judge for the Office of Administrative Hearings conducted it according to the rules of evidence. And on the timelines established by the Office of Administrative Hearings. To go back to what the statute says, there is no contract between the local school board and this Office of Administrative Hearings. There is no contract between the school board, the state educational authority, the state board and the Office of Administrative Hearings. The statute says the state board will enter into a memorandum of understanding that ensures that the OAH hearings will be conducted in compliance with IDEA and state special education law. The statute says the impartial due process hearing shall be conducted by the state educational authority or the local educational authority as determined by state law. And you could just say, well, that means as determined which do we pick. But if you want to have a view that allows states to adapt to their unique circumstances that as determined creates flexibility. And interestingly, the 2003 letter that's attached to the appellance amended reply brief supports our position. What the education department says is IDEA in a state that is a one tier state does not preclude the SEA from assigning the state educational authority from assigning responsibility to conduct hearings to an entity other than the SEA. And that is despite the language that we've just discussed that says that the impartial due process hearing shall be conducted by the state educational authority or the LEA. And the only way to read that consistently is to say that there is discretion to assign the only specifics about these hearings are not what kind of contract. So let's say North Carolina law said local educational authorities are directed to enter into a contract with the office for administrative hearings to conduct these hearings. Would that, I mean, semantically that might be more comfortable, but it would be a distinction without a difference. So Mr. Sue, are you saying that North Carolina is a one tier state? In fact, it's consistent with the Florida provision. I don't think I explained my position on the Florida statement very well. North Carolina is clearly a two tier state. What the Department of Education said in that opinion letter is there is flexibility in figuring out who holds the state level hearing in a one tier state and by analogy by the same token in a two tier state. There is flexibility to determine how the local hearing is conducted. Well, but the flexibility that you described in the Florida statute and the letter, the flexibility to delegate the authority to a local OAH or equivalent in Florida. How is that any different from what's happening in North Carolina? Well, it's different in the sense that North Carolina has a two tier system that has a purpose. You have a first tier that is conducted and going back to the real, the specific requirements in IDEA. What are they? They don't say what it means for a hearing to be conducted by one or the other. They say you have to have somebody who is able to conduct a hearing according to appropriate legal standards. Someone who has knowledge of special education law. Someone who is able to issue written and decide a case according to appropriate legal standards

. And that is despite the language that we've just discussed that says that the impartial due process hearing shall be conducted by the state educational authority or the LEA. And the only way to read that consistently is to say that there is discretion to assign the only specifics about these hearings are not what kind of contract. So let's say North Carolina law said local educational authorities are directed to enter into a contract with the office for administrative hearings to conduct these hearings. Would that, I mean, semantically that might be more comfortable, but it would be a distinction without a difference. So Mr. Sue, are you saying that North Carolina is a one tier state? In fact, it's consistent with the Florida provision. I don't think I explained my position on the Florida statement very well. North Carolina is clearly a two tier state. What the Department of Education said in that opinion letter is there is flexibility in figuring out who holds the state level hearing in a one tier state and by analogy by the same token in a two tier state. There is flexibility to determine how the local hearing is conducted. Well, but the flexibility that you described in the Florida statute and the letter, the flexibility to delegate the authority to a local OAH or equivalent in Florida. How is that any different from what's happening in North Carolina? Well, it's different in the sense that North Carolina has a two tier system that has a purpose. You have a first tier that is conducted and going back to the real, the specific requirements in IDEA. What are they? They don't say what it means for a hearing to be conducted by one or the other. They say you have to have somebody who is able to conduct a hearing according to appropriate legal standards. Someone who has knowledge of special education law. Someone who is able to issue written and decide a case according to appropriate legal standards. This is my question. It really is no role that the local education agency plays in North Carolina system. They generally host or often host the hearing. Well, they're in an hysteria role, but not a substantive role. So what does, I mean, what does contract mean? For example, if you take the position that the state educational authority in Florida actually has to conduct that hearing called the witnesses in and everything else, then you're going to apply the same language to say as that Department of Education letter says, all these states that contract out that level of hearing are not in compliance with the law. Well, the law says there supposed to be. Not necessarily because I think my view of this case is that even if North Carolina could be characterized as a one tier system, there is nothing to bar the state from implementing an additional level of review within the state agency. And it may be that to some degree we're talking about semantics and we agree. I mean, because the bottom line is you have a system in North Carolina where we have a professionally run by an administrative law judge hearing and then you have a state level review. And you notice in this case, it's a quick review. It took one month from the time of our appeal to the state review officer issuing a decision. That person has to be a special educator or someone specially qualified. Those two things serve different purposes. That's the system we've adopted. And it meets every procedural requirement that IDEA has for people who are conducting these hearings with special knowledge of appropriate legal procedures for people who have knowledge of special education law. And there are many procedures in North Carolina that go beyond what the IDEA guarantees. The ALJ hearing offers a discovery process and conduct according to the rules of evidence, North Carolina rules of evidence

. This is my question. It really is no role that the local education agency plays in North Carolina system. They generally host or often host the hearing. Well, they're in an hysteria role, but not a substantive role. So what does, I mean, what does contract mean? For example, if you take the position that the state educational authority in Florida actually has to conduct that hearing called the witnesses in and everything else, then you're going to apply the same language to say as that Department of Education letter says, all these states that contract out that level of hearing are not in compliance with the law. Well, the law says there supposed to be. Not necessarily because I think my view of this case is that even if North Carolina could be characterized as a one tier system, there is nothing to bar the state from implementing an additional level of review within the state agency. And it may be that to some degree we're talking about semantics and we agree. I mean, because the bottom line is you have a system in North Carolina where we have a professionally run by an administrative law judge hearing and then you have a state level review. And you notice in this case, it's a quick review. It took one month from the time of our appeal to the state review officer issuing a decision. That person has to be a special educator or someone specially qualified. Those two things serve different purposes. That's the system we've adopted. And it meets every procedural requirement that IDEA has for people who are conducting these hearings with special knowledge of appropriate legal procedures for people who have knowledge of special education law. And there are many procedures in North Carolina that go beyond what the IDEA guarantees. The ALJ hearing offers a discovery process and conduct according to the rules of evidence, North Carolina rules of evidence. And in all ways meets or exceeds any specific requirement. I think the point is that regardless of that, it's not a, the argument is that it's not a local educational agency for purposes of triggering mandatory review to the state entity. Well, we have review. Those are the rules everybody understands them. I mean, my, my argument and I think I may be in a disagreement position that judge Diaz has stated is that when the statute says, shall be conducted by the S.E.A. or L.E.A. as determined by state law, it gives flexibility. I mean, if, again, if state law said, local boards of education, you have to contract with the office of administrative hearings. And if you start interfering with how these things are done in all different states by saying, oh, no, no, it says it must be by the S.E.A. It has been Florida. They're for Florida

. And in all ways meets or exceeds any specific requirement. I think the point is that regardless of that, it's not a, the argument is that it's not a local educational agency for purposes of triggering mandatory review to the state entity. Well, we have review. Those are the rules everybody understands them. I mean, my, my argument and I think I may be in a disagreement position that judge Diaz has stated is that when the statute says, shall be conducted by the S.E.A. or L.E.A. as determined by state law, it gives flexibility. I mean, if, again, if state law said, local boards of education, you have to contract with the office of administrative hearings. And if you start interfering with how these things are done in all different states by saying, oh, no, no, it says it must be by the S.E.A. It has been Florida. They're for Florida. You don't have a system. The Department of Ed said it's not, there's nothing in IDEA that prevents one level of hearing or the other. That's my application from having the a different designated hearing officer, particularly when it's here as in the interest here of impartiality. So when we go back to what does it mean for the local board of education to conduct the hearing, they certainly can't conduct the hearing. They can't call witnesses. The statute specifically says you have to have somebody who's not an employee of the local board of education, not an employee of the state board of education, who does not have any other professional or personal conflict. How else are you going to do that with somebody like administrative law judge? And as I as I emphasize before, I think if there is no specific requirement that there was any violation of due process, any lack of procedure, the hearing went on for the better part of three business weeks. And it was very plain to all sides when we appeal that we were operating under North Carolina law. And in this case, the petitioners plaintiffs' supellants chose not chose not to appeal. There is of course the substantive issue. And we believe that the issue before the court in terms of substance services offered to this disabled student, was the administrative law judge correct or was the state review officer and judge Schroeder correct when they said that that student received sufficient speech language services, one component of a program. As a general background, the sort of in an analogous vein, IDEA puts the responsibility on the local educational authority to provide educational services. In this case, the Chapel Hill Carbure schools contracted with Frank Porter Graham Child Development Center, which is an internationally recognized center that does a research based program that has embedded therapy and embedded services where they put disabled children in classrooms with their children. And they are typically developing peers. And the theory there, and it was spelled out on the IEP, as Judge Schroeder notes, that the parent signed in this case, that therapy would be administered throughout the school day in an embedded fashion. And what that means is the therapists are there much of the day when they see opportunities when disabled children are interacting with other children, disabled or typical, that's when they apply therapy. They use real life situation

. You don't have a system. The Department of Ed said it's not, there's nothing in IDEA that prevents one level of hearing or the other. That's my application from having the a different designated hearing officer, particularly when it's here as in the interest here of impartiality. So when we go back to what does it mean for the local board of education to conduct the hearing, they certainly can't conduct the hearing. They can't call witnesses. The statute specifically says you have to have somebody who's not an employee of the local board of education, not an employee of the state board of education, who does not have any other professional or personal conflict. How else are you going to do that with somebody like administrative law judge? And as I as I emphasize before, I think if there is no specific requirement that there was any violation of due process, any lack of procedure, the hearing went on for the better part of three business weeks. And it was very plain to all sides when we appeal that we were operating under North Carolina law. And in this case, the petitioners plaintiffs' supellants chose not chose not to appeal. There is of course the substantive issue. And we believe that the issue before the court in terms of substance services offered to this disabled student, was the administrative law judge correct or was the state review officer and judge Schroeder correct when they said that that student received sufficient speech language services, one component of a program. As a general background, the sort of in an analogous vein, IDEA puts the responsibility on the local educational authority to provide educational services. In this case, the Chapel Hill Carbure schools contracted with Frank Porter Graham Child Development Center, which is an internationally recognized center that does a research based program that has embedded therapy and embedded services where they put disabled children in classrooms with their children. And they are typically developing peers. And the theory there, and it was spelled out on the IEP, as Judge Schroeder notes, that the parent signed in this case, that therapy would be administered throughout the school day in an embedded fashion. And what that means is the therapists are there much of the day when they see opportunities when disabled children are interacting with other children, disabled or typical, that's when they apply therapy. They use real life situation. And part that is based on the notion that as opposed to a more strictly conditioning approach, approach that would be more purely like the theories of BF Skinner, kids are going to be better prepared if they learn how to operate in the kinds of environments they're going to face in the world. And so there is this fundamental distinction about or difference about methodology. The administrative law judge said the IEP, including the IEP that said, these services, including speech language, will be offered in an embedded fashion throughout the school day, was appropriate for the student. And every decision maker all the way up has said that she made progress. There are one example that of a deficiency or an alleged deficiency that the appellants have put forth. There's this chart that suggests that the student that EL did not get all the sessions that she was required to get. That is once again about methodology. She might not have gotten one-on-one sit-down sessions where she received operant conditioning from a therapist without anybody else present, but she was receiving this therapy throughout the school day. And there is an issue about the one of the speech language therapists whose notes were destroyed because they have many students' names and she was concerned about confidentiality. There's been no finding by any decision maker that the speech language therapists did not provide the full range and beyond the full range. The testimony was we met and exceeded those minimums. We might not have written it down every time because of the methodology that we use. Wasn't there a concern that some of the therapy had been provided by interns as opposed to properly licensed therapists? Well, that is a concern that the pounce raise. I mean, these are master's degree level students who are operating under the supervision of a licensed therapist. And it was that testimony that that was adequate. Those were that is what the decision makers have found all the way up. Does the IAP say anything about who is to provide the therapy? There is no specific better requirement about what state licensing requirements must be

. And part that is based on the notion that as opposed to a more strictly conditioning approach, approach that would be more purely like the theories of BF Skinner, kids are going to be better prepared if they learn how to operate in the kinds of environments they're going to face in the world. And so there is this fundamental distinction about or difference about methodology. The administrative law judge said the IEP, including the IEP that said, these services, including speech language, will be offered in an embedded fashion throughout the school day, was appropriate for the student. And every decision maker all the way up has said that she made progress. There are one example that of a deficiency or an alleged deficiency that the appellants have put forth. There's this chart that suggests that the student that EL did not get all the sessions that she was required to get. That is once again about methodology. She might not have gotten one-on-one sit-down sessions where she received operant conditioning from a therapist without anybody else present, but she was receiving this therapy throughout the school day. And there is an issue about the one of the speech language therapists whose notes were destroyed because they have many students' names and she was concerned about confidentiality. There's been no finding by any decision maker that the speech language therapists did not provide the full range and beyond the full range. The testimony was we met and exceeded those minimums. We might not have written it down every time because of the methodology that we use. Wasn't there a concern that some of the therapy had been provided by interns as opposed to properly licensed therapists? Well, that is a concern that the pounce raise. I mean, these are master's degree level students who are operating under the supervision of a licensed therapist. And it was that testimony that that was adequate. Those were that is what the decision makers have found all the way up. Does the IAP say anything about who is to provide the therapy? There is no specific better requirement about what state licensing requirements must be. These are students who as part of their programs are required to administer clinical services. There would be no way for the profession to advance otherwise. And there isn't any, there is no specific showing that they were unqualified, did not have the background to do so, that the clinical programs were somehow deficient, were not preceded by sufficient classroom training and so on. And that is part of the institution. It is a teaching institution as well as an institution that provides services. So without, I mean, just applying the label, well, these interns is about as far as the complaint has gone. There is nothing more substantial than that about the quality of what was provided. In summary, your honors, all the decision makers in this case have found that the IAPs were appropriate. All the decision makers have found that the student made progress. There was almost a three week hearing. There is a boatload of evidence about how specific that progress was. The last speech language therapist described an incident in which the child was sitting with her, interacting with the typically developing peers, her friends who are around her. We think that it was an outstanding program at a world class center and that the real difference in this case is about methodology. The parents and they have the right to want a specific methodology, wanted a one-on-one conditioning approach for the child. All the evidence is that the approach that we used, a holistic approach where the child was educated with master's degree and doctoral degree level staff in a classroom that specifically designed for this purpose was more than adequate for her and generated a lot of growth. We ask that you uphold a judge's rotor on all points in this decision, including, as we noted, there is a lot in appellants brief about the more general issues that were not appealed. We ask that it be confined as judge's rotor found that you find that in the speech language area we provided services and that plenty of appellants in this case failed exhaust their administrative remedies

. These are students who as part of their programs are required to administer clinical services. There would be no way for the profession to advance otherwise. And there isn't any, there is no specific showing that they were unqualified, did not have the background to do so, that the clinical programs were somehow deficient, were not preceded by sufficient classroom training and so on. And that is part of the institution. It is a teaching institution as well as an institution that provides services. So without, I mean, just applying the label, well, these interns is about as far as the complaint has gone. There is nothing more substantial than that about the quality of what was provided. In summary, your honors, all the decision makers in this case have found that the IAPs were appropriate. All the decision makers have found that the student made progress. There was almost a three week hearing. There is a boatload of evidence about how specific that progress was. The last speech language therapist described an incident in which the child was sitting with her, interacting with the typically developing peers, her friends who are around her. We think that it was an outstanding program at a world class center and that the real difference in this case is about methodology. The parents and they have the right to want a specific methodology, wanted a one-on-one conditioning approach for the child. All the evidence is that the approach that we used, a holistic approach where the child was educated with master's degree and doctoral degree level staff in a classroom that specifically designed for this purpose was more than adequate for her and generated a lot of growth. We ask that you uphold a judge's rotor on all points in this decision, including, as we noted, there is a lot in appellants brief about the more general issues that were not appealed. We ask that it be confined as judge's rotor found that you find that in the speech language area we provided services and that plenty of appellants in this case failed exhaust their administrative remedies. Unless there are any further questions, I will sit down. Thank you. Mr. Chair. Thank you, Judge Duncan. If I might and I want to emphasize that I think some of the substantive issues are difficult for this court to address most of the substantive issues, frankly, are difficult for this court to address because the district court did not reach four and a half out of five of our theories of fake deprivation in this case. But what he did reach was the question of whether or not Ella was given the speech language pathology services that her IEP prescribed. And with respect to that, I want to address two points one in each IEP year. In the first IEP year, the ALJ found that she was not given the speech language pathology services she required because they were not administered by the speech language pathologist's own admission. They were not administered by her, although she signed various progress notes along with one of her interns. It was never disclosed until her testimony in the hearing when she was asked, does that mean you supervised the therapy? She said no. It just means I supervised the notes, meaning she read them. So why is that a disqualifying factor? Because under the standard is that disabled children must be given education according to the state's standards at a minimum. North Carolina's standard with respect to speech language pathology services is that they must be delivered by a licensed certified speech language pathologist. None of those interns were trained, certified or licensed. In fact, the SLP testified that she really didn't train them for Ella in particular. And what she found was, of course, as a result, all of the goals that they were working on that year, no progress

. Unless there are any further questions, I will sit down. Thank you. Mr. Chair. Thank you, Judge Duncan. If I might and I want to emphasize that I think some of the substantive issues are difficult for this court to address most of the substantive issues, frankly, are difficult for this court to address because the district court did not reach four and a half out of five of our theories of fake deprivation in this case. But what he did reach was the question of whether or not Ella was given the speech language pathology services that her IEP prescribed. And with respect to that, I want to address two points one in each IEP year. In the first IEP year, the ALJ found that she was not given the speech language pathology services she required because they were not administered by the speech language pathologist's own admission. They were not administered by her, although she signed various progress notes along with one of her interns. It was never disclosed until her testimony in the hearing when she was asked, does that mean you supervised the therapy? She said no. It just means I supervised the notes, meaning she read them. So why is that a disqualifying factor? Because under the standard is that disabled children must be given education according to the state's standards at a minimum. North Carolina's standard with respect to speech language pathology services is that they must be delivered by a licensed certified speech language pathologist. None of those interns were trained, certified or licensed. In fact, the SLP testified that she really didn't train them for Ella in particular. And what she found was, of course, as a result, all of the goals that they were working on that year, no progress. You don't have to look at the testimony. You can look at the IEPs. They did not change. They carried over year of year. I think that that's been confused. And I think the LJs factual findings are based on credibility determinations that the district court should not have upset, but the SRO did as well under this court's holdings. But most importantly, the confusion, I think, is that from halfway through Ella's first year, her parents, because she could not make functional speech sounds. She could not deliberately make a functional speech sound. They took her to private therapy where they specifically worked on those constants, vowels, the the particles that make up this functional speech. That's where she progressed. And the only evidence in the records from the school was an intern's realization halfway through the spring that somehow Ella seems to be making speech sounds. I don't know how it happened, but it happened with the private therapy. Excuse me. I thought that the review officer determined that the board delivered the services specified at the IEP that EL did receive the speech language therapy. And the IP did not direct, did not require direct one-on-one therapy. And the district court agreed, but none of the bases appear to be credibility driven. Well, I think that the ALJs findings were, the ALJs findings were based on, in the second year, his expressed credibility determination that Melissa Felicelli, the SLP who actually administered her second years, IEP, until she quit, because she wasn't allowed to administer Ella's IEP

. You don't have to look at the testimony. You can look at the IEPs. They did not change. They carried over year of year. I think that that's been confused. And I think the LJs factual findings are based on credibility determinations that the district court should not have upset, but the SRO did as well under this court's holdings. But most importantly, the confusion, I think, is that from halfway through Ella's first year, her parents, because she could not make functional speech sounds. She could not deliberately make a functional speech sound. They took her to private therapy where they specifically worked on those constants, vowels, the the particles that make up this functional speech. That's where she progressed. And the only evidence in the records from the school was an intern's realization halfway through the spring that somehow Ella seems to be making speech sounds. I don't know how it happened, but it happened with the private therapy. Excuse me. I thought that the review officer determined that the board delivered the services specified at the IEP that EL did receive the speech language therapy. And the IP did not direct, did not require direct one-on-one therapy. And the district court agreed, but none of the bases appear to be credibility driven. Well, I think that the ALJs findings were, the ALJs findings were based on, in the second year, his expressed credibility determination that Melissa Felicelli, the SLP who actually administered her second years, IEP, until she quit, because she wasn't allowed to administer Ella's IEP. He gave her, he credited her testimony in the second year, and in the first year, he credited the SLP Kathy Davis's own testimony and evaluated her testimony in which she finally conceded that no she didn't deliver the services that Ella's IEP required. But your honors, that's just one fifth of the faith deprivation theories that we advanced. I think the most important one, frankly, and the easiest one, that nobody's addressed at the SRL level, or the district court level, and I fear the ALJ didn't touch it either, is that Ella was mainstream beyond her capacity. In other words, she had no ability to derive benefit from a classroom of 15 other students with one teacher, without one to one supplementary aids and services. In other words, an adult that's facilitating her participation, and that is not what, that is something the IEP that the defendant proposed all three years did not provide. That was theory number two, but we think that the substance of those arguments are properly before the court, because the district court didn't address that. We'd ask for a man on that basis. Thank you very much, Mr. Extrand.

Mr. Extrand, whenever you get settled, do not rush. Good morning. Good morning, Judge Duncan. Just the ass. Judge A.G. My name is Bob Extrand. I am counsel for the plaintiffs and appellants in this matter. I would like to reserve five minutes of rebuttal time. You had to have the clock. The clock is set there. Your honors. This case involves two primary issues, the first of which is a threshold procedural issue. That is whether or not the plaintiffs, the appellants, E.L. and her parents, exhausted all administrative remedies that were available to her under the individuals with disabilities and education act. We have briefed this issue secondarily, but in reviewing the briefings and reviewing the post-rev of this case, I think it is important to address it up front. The conclusion that I think this court has to reach is that the plaintiffs did exhaust all of the administrative remedies available to them under the IDEA. There is no question, of course, that plaintiffs file a due process petition under the IDEA. They conducted a full-blown hearing. It was administered by this state's Office of Administrative Hearings. The question is whether or not under those factual circumstances, does the IDEA require the plaintiffs to, if they are aggrieved, before they go and file a complaint in state or federal court, do they have to go through what's called a second tier state level administrative review? That is an appeal. What if you had done this question wouldn't be before us now? Well, your honor. The exhaustion issue wouldn't be before us. I believe if we had filed a notice of appeal, that would be the only thing we didn't do with respect to the appeal to the state review officer. But yes. You say that's the only thing, but that's a necessary thing. In some states, it is your honor, but that's the point of this case. In this case, under IDEA, under the plain meaning of its appeal provision, the plaintiffs had no right to appeal to an SRO, a state review officer. The crux of your argument is that North Carolina doesn't have a teacher system. North Carolina, it does not have... Because that first level, the administrative law judge level, is in fact a state level because it's centralized and organized by the Office of Administrative Hearings, which is a state entity. That's exactly right. The hearing is conducted by the State Educational Agency through a contract with the Office of Administrative Hearings, also a state agency. But the contract took over in order to bring some level of a consistency to the local individual, local governments. Isn't that correct? Well, you're on a... I'm not sure that that's clear at all. That's what the State Review Officer said in his opinion. But the fact of the matter is, the IDEA gives states two choices, essentially. Either the due process hearing can be conducted by the local educational agency or the State Educational Agency. What I'm trying to do is hone in on your argument. Your argument is that there was no local educational entity hearing because what took place was in fact run by the State by contract with local governments. Correct. And that's exactly right. And your reason for arguing that this local government could not delegate or contract with the State to conduct those first line hearings is one exact. I'm not arguing that the local educational agency couldn't have conducted the hearing. Theoretically, North Carolina could choose to do that. And under subsection G, 1415, if a local educational agency conducts that hearing, then there's a right to appeal to the SRO. The statute's perfectly clear. But the local educational agency did not conduct this hearing. It contracted with the State to do it. And what I'm trying to get to is why you see that as a problem. Because the statutory, because the language of the statute compels the conclusion that you only have a right to or an opportunity to review at by a State Review Officer, if a local educational agency as opposed to a State Educational Agency conducts the hearing. The statute, the Federal statute had a definitional barrier for you and that it defines this last tier, whether it's the first one or the second one, depending on the State, as the hearing conducted by the State Education Agency, which it defines as the State Board of Education or a last. The State Board of Education did not conduct the first tier hearing here. That that's the problem. You've just touched on the whole analytical problem with the district courts order, the SRO's decision. And but not the A L J's decision. The point is, IDEA, the specific language says, if a local educational agency conducts the due-pros hearing, a party agreed can appeal to an SRO. And so, administered by the State Board, by exclusion, there is no right of appeal to the SRO for the State Board of Education. If it's not conducted, the due process hearing is not conducted by the local educational agency. And you're on the office of administrative hearings, part of the North Carolina Board of Education. No, sir. I think the- I did not create a definitional problem. No, sir. In fact, the Department of Education, and the Appendix to Array, Plybreef in 2003, the Department of Education issued a letter ruling, consisted with its regulations that says, a State Educational Agency that contracts with its Office of Administrative Hearings. In that case, it was Florida. And like many other states do, the Department ruled that if a State contracts with its Office of Administrative Hearings to conduct the hearing, it's still conducted by the State Educational Agency. Because that's the entity that's ultimately responsible for making sure that all the due process safeguards in the statute are met, for example, the 45-day rule and others. But in no event does a State Educational Agency actually adjudicate a hearing? They always have to hire an independent hearing officer who's not employed. Same thing if a- If a local educational agency does it, there's a requirement that that presiding judicial official not be an employee or otherwise affiliated with either the local educational agency. But I thought- With the State. The certain- The Florida case that you mentioned, the State Entity delegated to the Office of Administrative Hearing Authority. I mean, there- Right. It was factually distinguishable because it appeared that the entity- The relationship between the two was such that there was a delegation of authority to the State, which doesn't appear- Which doesn't appear to be the case here. Or we have no record- Or I don't see anything in the record that suggests that that is the case. Well, there- There's a finding by the Administrative Law Judge who adjudicated the case. He may be expressed finding that the hearing was conducted by the State Educational Agency in the sense that the IDEA uses the term. Are you a factual finding or a- I think it is. And I think it's something that you could take judicial notice of because it's in the statutes. It's also something he's well aware of. And it's undisputed. But the point is, you don't have to get there, your honor. You don't have to worry as much about whether the State Educational is contracting with another entity. Whether that creates a distinction because IDEA is very simple. It says, if the hearing is conducted by the local Educational Agency, that's the board. To defend it. The appellee in this case. If they conduct the hearing, then you can have a State Level Review. Never write to it. That's 1415G. And if you go down to F1A, it says, if you don't have a right to that State Level Review, which means if the hearing wasn't conducted by the local Educational Agency, you have a right to direct appeal to the State or Federal Court. How does that stat you bar an additional level of review within the State Agency, even if you're right? Four canons of construction. The plain meaning of it, I've just discussed. But you didn't say anything about requiring or prohibiting additional layers of review. As the simply says, the review lies within the State Agency. There's nothing in that statute that I see that bars an additional level of review within the State Agency. But Your Honor, I would suggest to you that the first cannon of statutory construction, we talk about which is, I'll butcher this, Inclusio Unis S. Exclusio Alterius, which basically is, as you know, the inclusion of one thing means the exclusion of others. So the inclusion of a right to appeal to an SRO, if the State, I'm sorry, if the local Educational Agency conducts the hearing, that excludes the circumstance we're in, where the State, or actually more specifically, the local Educational Agency, did not conduct the hearing. So we move to F1A, which says, it would appear that that cannon would apply if the rights were mutually exclusive. But there's nothing mutually exclusive about granting a petitioner an additional level of review within the State Agency. How is that a problem? Well, it becomes a problem if, like us, we asked the ALJ to tell us, was this hearing conducted by the local Educational Agency under subject? Well, that's not fair. Well, you suggested the result of what respect to the ALJ's contribution. Sure. You proposed that fine. The finding that the local Educational Agency didn't conduct the hearing. I don't think there's a dispute about that. But you also proposed the finding that this was the only layer of review and the next level of review would be a loss. Well, we're reviewing, yes, sir, a review in State or Federal Court, because that's tracks the statute. That track tracks IDEA. And I wanted to know what our repeal disorder is. Does the IDEA prohibit any, does the IDEA prohibit a local entity from contracting the performance of the services? No, it has to. It's got, because it's got to be independent of the local Educational. The judge has to be independent. It just can't be as you conceive of it, a state entity. Well, it could be, but it has to be separate then the local Educational Agency. So yes, if your question is, could a local Educational Agency contract with the Office of Administrative Hearings? Which has to be separate. It has to be independent of what? Of the local entity? Both. And the state? Both. And you say it. You have said that the Office of Administrative Hearings is independent of the State Board of Education. Yes. So what is the problem with the relationship with the local Educational entity? The only problem, the only issue is that the local Educational Agency did not conduct this hearing. And under subsection G of 1415. Well, you just told me it had to be independent of. Well, that's, that, I think you're getting hung up on the word conducted in that, that's I think a term of art as it's used in the statute. The, the LEA and S.E.A. don't adjudicate the hearing that always have to find an independent hearing officer. Some states do have the local Board of Education hiring hearing officers from a list. I've identified the eight states that are left that do that. But if the state law under IDEA, the statute spells it out. If state law gives the responsibility for making sure that the due process hearing is conducted according to the procedural safeguards of the statute, then the S, then the S.E.A. is conducting the hearing. The local, You have, have filed a protective notice of appeal here with the state review officer, whoever the second level is, and then made this argument there. You would have preserved everything. I wish I had to be honest. But I, what I tried to do was make that clear for everyone by asking the judge in an explicit issue to tell the parties what the, what their responsibilities vis-a-vis appeal were. And, and the other part of this is that there is, You were asking the state review officer or the U.S. District Judge. No, that, but I was asking the ALJ, the hearing officer in the first level. And the hearing officer, he made findings. He said that I'm operating pursuant to a contract with the state board of education. This hearing was not conducted by the local educational agency or overseen by the local educational agency. And therefore, there's no right of appeal. Not the state board of education. He was, he was acting pursuant to a contract with the state board of education. That, that was his finding. And that, that's the state educational agency. And so, your orders, I would just emphasize that the plain meaning of the statute, also the Canada of Construction, Exclusio, Inclusio Unis, as well as Congress's acquiescence in the clear statement of policy by the Department of Education. That's been existing for 10 years, over 10 years, that we've included in the appendix to our reply brief, which says clearly that where the state educational agency is made responsible for the hearing under state law, and they contract to their office of administrative hearings, they did in Florida. That does not create a two-tier system. That's a one-tier system. There is no right to review by the state educational agency. And so, you have to proceed to directly to federal court or state court for review. Thank you, good friend. You have some time for a Bob. Thank you. May I please the court, I'm Kenneth Sue for the Chapel Hill of Carburet, City Schools, the appellant. I'm sorry, yes, the appellee in this case. The IDEA authorizes the state of North Carolina to assign responsibility for the local hearings to the Office of Administrative Hearings, which your honors have pointed out, is not the state educational agency. When you talk about the provisions that we've been discussing in 1415, the only specifics are what are the local school board here, the Chapel Hill School Board, decided it wanted to conduct this first level hearing. Did have the legal authority under North Carolina law to do that? North Carolina school boards are subdivisions of the state. Their authority is granted to them by the state and in North Carolina, not the state educational agency, but the General Assembly of North Carolina has said that the local hearings will be conducted by the Office of Administrative Hearings. In the county or school district where the student attend school or is entitled attend school. In this case, it happened in, not in that county, as the statute allows the parties to agree to have it elsewhere and the parties did so in this case. The local school board could not have conducted the hearing itself. Well, so that is an interesting question. The local school board did not have the ability to do anything other than host a hearing where administrative law judge for the Office of Administrative Hearings conducted it according to the rules of evidence. And on the timelines established by the Office of Administrative Hearings. To go back to what the statute says, there is no contract between the local school board and this Office of Administrative Hearings. There is no contract between the school board, the state educational authority, the state board and the Office of Administrative Hearings. The statute says the state board will enter into a memorandum of understanding that ensures that the OAH hearings will be conducted in compliance with IDEA and state special education law. The statute says the impartial due process hearing shall be conducted by the state educational authority or the local educational authority as determined by state law. And you could just say, well, that means as determined which do we pick. But if you want to have a view that allows states to adapt to their unique circumstances that as determined creates flexibility. And interestingly, the 2003 letter that's attached to the appellance amended reply brief supports our position. What the education department says is IDEA in a state that is a one tier state does not preclude the SEA from assigning the state educational authority from assigning responsibility to conduct hearings to an entity other than the SEA. And that is despite the language that we've just discussed that says that the impartial due process hearing shall be conducted by the state educational authority or the LEA. And the only way to read that consistently is to say that there is discretion to assign the only specifics about these hearings are not what kind of contract. So let's say North Carolina law said local educational authorities are directed to enter into a contract with the office for administrative hearings to conduct these hearings. Would that, I mean, semantically that might be more comfortable, but it would be a distinction without a difference. So Mr. Sue, are you saying that North Carolina is a one tier state? In fact, it's consistent with the Florida provision. I don't think I explained my position on the Florida statement very well. North Carolina is clearly a two tier state. What the Department of Education said in that opinion letter is there is flexibility in figuring out who holds the state level hearing in a one tier state and by analogy by the same token in a two tier state. There is flexibility to determine how the local hearing is conducted. Well, but the flexibility that you described in the Florida statute and the letter, the flexibility to delegate the authority to a local OAH or equivalent in Florida. How is that any different from what's happening in North Carolina? Well, it's different in the sense that North Carolina has a two tier system that has a purpose. You have a first tier that is conducted and going back to the real, the specific requirements in IDEA. What are they? They don't say what it means for a hearing to be conducted by one or the other. They say you have to have somebody who is able to conduct a hearing according to appropriate legal standards. Someone who has knowledge of special education law. Someone who is able to issue written and decide a case according to appropriate legal standards. This is my question. It really is no role that the local education agency plays in North Carolina system. They generally host or often host the hearing. Well, they're in an hysteria role, but not a substantive role. So what does, I mean, what does contract mean? For example, if you take the position that the state educational authority in Florida actually has to conduct that hearing called the witnesses in and everything else, then you're going to apply the same language to say as that Department of Education letter says, all these states that contract out that level of hearing are not in compliance with the law. Well, the law says there supposed to be. Not necessarily because I think my view of this case is that even if North Carolina could be characterized as a one tier system, there is nothing to bar the state from implementing an additional level of review within the state agency. And it may be that to some degree we're talking about semantics and we agree. I mean, because the bottom line is you have a system in North Carolina where we have a professionally run by an administrative law judge hearing and then you have a state level review. And you notice in this case, it's a quick review. It took one month from the time of our appeal to the state review officer issuing a decision. That person has to be a special educator or someone specially qualified. Those two things serve different purposes. That's the system we've adopted. And it meets every procedural requirement that IDEA has for people who are conducting these hearings with special knowledge of appropriate legal procedures for people who have knowledge of special education law. And there are many procedures in North Carolina that go beyond what the IDEA guarantees. The ALJ hearing offers a discovery process and conduct according to the rules of evidence, North Carolina rules of evidence. And in all ways meets or exceeds any specific requirement. I think the point is that regardless of that, it's not a, the argument is that it's not a local educational agency for purposes of triggering mandatory review to the state entity. Well, we have review. Those are the rules everybody understands them. I mean, my, my argument and I think I may be in a disagreement position that judge Diaz has stated is that when the statute says, shall be conducted by the S.E.A. or L.E.A. as determined by state law, it gives flexibility. I mean, if, again, if state law said, local boards of education, you have to contract with the office of administrative hearings. And if you start interfering with how these things are done in all different states by saying, oh, no, no, it says it must be by the S.E.A. It has been Florida. They're for Florida. You don't have a system. The Department of Ed said it's not, there's nothing in IDEA that prevents one level of hearing or the other. That's my application from having the a different designated hearing officer, particularly when it's here as in the interest here of impartiality. So when we go back to what does it mean for the local board of education to conduct the hearing, they certainly can't conduct the hearing. They can't call witnesses. The statute specifically says you have to have somebody who's not an employee of the local board of education, not an employee of the state board of education, who does not have any other professional or personal conflict. How else are you going to do that with somebody like administrative law judge? And as I as I emphasize before, I think if there is no specific requirement that there was any violation of due process, any lack of procedure, the hearing went on for the better part of three business weeks. And it was very plain to all sides when we appeal that we were operating under North Carolina law. And in this case, the petitioners plaintiffs' supellants chose not chose not to appeal. There is of course the substantive issue. And we believe that the issue before the court in terms of substance services offered to this disabled student, was the administrative law judge correct or was the state review officer and judge Schroeder correct when they said that that student received sufficient speech language services, one component of a program. As a general background, the sort of in an analogous vein, IDEA puts the responsibility on the local educational authority to provide educational services. In this case, the Chapel Hill Carbure schools contracted with Frank Porter Graham Child Development Center, which is an internationally recognized center that does a research based program that has embedded therapy and embedded services where they put disabled children in classrooms with their children. And they are typically developing peers. And the theory there, and it was spelled out on the IEP, as Judge Schroeder notes, that the parent signed in this case, that therapy would be administered throughout the school day in an embedded fashion. And what that means is the therapists are there much of the day when they see opportunities when disabled children are interacting with other children, disabled or typical, that's when they apply therapy. They use real life situation. And part that is based on the notion that as opposed to a more strictly conditioning approach, approach that would be more purely like the theories of BF Skinner, kids are going to be better prepared if they learn how to operate in the kinds of environments they're going to face in the world. And so there is this fundamental distinction about or difference about methodology. The administrative law judge said the IEP, including the IEP that said, these services, including speech language, will be offered in an embedded fashion throughout the school day, was appropriate for the student. And every decision maker all the way up has said that she made progress. There are one example that of a deficiency or an alleged deficiency that the appellants have put forth. There's this chart that suggests that the student that EL did not get all the sessions that she was required to get. That is once again about methodology. She might not have gotten one-on-one sit-down sessions where she received operant conditioning from a therapist without anybody else present, but she was receiving this therapy throughout the school day. And there is an issue about the one of the speech language therapists whose notes were destroyed because they have many students' names and she was concerned about confidentiality. There's been no finding by any decision maker that the speech language therapists did not provide the full range and beyond the full range. The testimony was we met and exceeded those minimums. We might not have written it down every time because of the methodology that we use. Wasn't there a concern that some of the therapy had been provided by interns as opposed to properly licensed therapists? Well, that is a concern that the pounce raise. I mean, these are master's degree level students who are operating under the supervision of a licensed therapist. And it was that testimony that that was adequate. Those were that is what the decision makers have found all the way up. Does the IAP say anything about who is to provide the therapy? There is no specific better requirement about what state licensing requirements must be. These are students who as part of their programs are required to administer clinical services. There would be no way for the profession to advance otherwise. And there isn't any, there is no specific showing that they were unqualified, did not have the background to do so, that the clinical programs were somehow deficient, were not preceded by sufficient classroom training and so on. And that is part of the institution. It is a teaching institution as well as an institution that provides services. So without, I mean, just applying the label, well, these interns is about as far as the complaint has gone. There is nothing more substantial than that about the quality of what was provided. In summary, your honors, all the decision makers in this case have found that the IAPs were appropriate. All the decision makers have found that the student made progress. There was almost a three week hearing. There is a boatload of evidence about how specific that progress was. The last speech language therapist described an incident in which the child was sitting with her, interacting with the typically developing peers, her friends who are around her. We think that it was an outstanding program at a world class center and that the real difference in this case is about methodology. The parents and they have the right to want a specific methodology, wanted a one-on-one conditioning approach for the child. All the evidence is that the approach that we used, a holistic approach where the child was educated with master's degree and doctoral degree level staff in a classroom that specifically designed for this purpose was more than adequate for her and generated a lot of growth. We ask that you uphold a judge's rotor on all points in this decision, including, as we noted, there is a lot in appellants brief about the more general issues that were not appealed. We ask that it be confined as judge's rotor found that you find that in the speech language area we provided services and that plenty of appellants in this case failed exhaust their administrative remedies. Unless there are any further questions, I will sit down. Thank you. Mr. Chair. Thank you, Judge Duncan. If I might and I want to emphasize that I think some of the substantive issues are difficult for this court to address most of the substantive issues, frankly, are difficult for this court to address because the district court did not reach four and a half out of five of our theories of fake deprivation in this case. But what he did reach was the question of whether or not Ella was given the speech language pathology services that her IEP prescribed. And with respect to that, I want to address two points one in each IEP year. In the first IEP year, the ALJ found that she was not given the speech language pathology services she required because they were not administered by the speech language pathologist's own admission. They were not administered by her, although she signed various progress notes along with one of her interns. It was never disclosed until her testimony in the hearing when she was asked, does that mean you supervised the therapy? She said no. It just means I supervised the notes, meaning she read them. So why is that a disqualifying factor? Because under the standard is that disabled children must be given education according to the state's standards at a minimum. North Carolina's standard with respect to speech language pathology services is that they must be delivered by a licensed certified speech language pathologist. None of those interns were trained, certified or licensed. In fact, the SLP testified that she really didn't train them for Ella in particular. And what she found was, of course, as a result, all of the goals that they were working on that year, no progress. You don't have to look at the testimony. You can look at the IEPs. They did not change. They carried over year of year. I think that that's been confused. And I think the LJs factual findings are based on credibility determinations that the district court should not have upset, but the SRO did as well under this court's holdings. But most importantly, the confusion, I think, is that from halfway through Ella's first year, her parents, because she could not make functional speech sounds. She could not deliberately make a functional speech sound. They took her to private therapy where they specifically worked on those constants, vowels, the the particles that make up this functional speech. That's where she progressed. And the only evidence in the records from the school was an intern's realization halfway through the spring that somehow Ella seems to be making speech sounds. I don't know how it happened, but it happened with the private therapy. Excuse me. I thought that the review officer determined that the board delivered the services specified at the IEP that EL did receive the speech language therapy. And the IP did not direct, did not require direct one-on-one therapy. And the district court agreed, but none of the bases appear to be credibility driven. Well, I think that the ALJs findings were, the ALJs findings were based on, in the second year, his expressed credibility determination that Melissa Felicelli, the SLP who actually administered her second years, IEP, until she quit, because she wasn't allowed to administer Ella's IEP. He gave her, he credited her testimony in the second year, and in the first year, he credited the SLP Kathy Davis's own testimony and evaluated her testimony in which she finally conceded that no she didn't deliver the services that Ella's IEP required. But your honors, that's just one fifth of the faith deprivation theories that we advanced. I think the most important one, frankly, and the easiest one, that nobody's addressed at the SRL level, or the district court level, and I fear the ALJ didn't touch it either, is that Ella was mainstream beyond her capacity. In other words, she had no ability to derive benefit from a classroom of 15 other students with one teacher, without one to one supplementary aids and services. In other words, an adult that's facilitating her participation, and that is not what, that is something the IEP that the defendant proposed all three years did not provide. That was theory number two, but we think that the substance of those arguments are properly before the court, because the district court didn't address that. We'd ask for a man on that basis. Thank you very much, Mr. Extrand