Legal Case Summary

We'll hear argument this this morning in case 15 827 and drew F versus Douglas County school district. Mr. Fisher. Mr. Chief Justice, I may at please the court. The IDEA does not permit a school district to provide a child with a disability, a barely more than to minimise educational benefit. Rather, what the act requires is for the school to provide instruction and related services to the child that are reasonably calculated to provide substantially equal educational opportunities. The school district's primary response to our argument is that the standard I just described to you does not appear anywhere in the operative text of the IDEA. So let me get right to- Also didn't appear anywhere in the original petition, did it? I'm looking at footnote 8 on your opening brief where you note that substantial educational benefit was the standard that was discussed in the petition and then a significantly different one in your opening brief. Well, Mr. Chief Justice, we don't intend it to be significantly different. What we do intend is we describe in that footnote is to give more detail as to how the standard works. So when we- The standard you're asking us to adopt substantially equal opportunity. That does appear someplace. It appears in Justice Blackwood's concurring opinion in rally. And the court itself did not adopt that formulation, did not adopt substantially equal opportunity. So you asked us to adopt a standard that the majority already had before it and didn't adopt. Justice Ginsburg, yes, Justice Blackwood proposed the standard similar to the one that we offered the court today. But that was 1982. In Congress has amended the IDEA twice in 1997 and in 2004. And in the findings and purposes, it now describes the way the act works with exactly the words I'm giving you. Eucalyptional opportunity. That raises a concern under the spending clause. I mean, the spending clause operations are pretty clear. The Federal Government proposes a deal to the states. If the state wants the money, they have to agree to these provisions. And now you're saying that the content of those provisions, though, is changed by new legislation. And I just wonder whether that puts some strain on the idea that the states have agreed to these provisions. But when they accepted the offer under the spending clause. No, I don't think it does. I think it's critical to get to the text. Would you act for the reason you say Mr. Chief Justice? We know from rally that there's a substantive guarantee in the IDEA. And we know from rally, even in 1982, the way the act was put together, that that substantive guarantee must track the way that the IEP provisions, the individual educational program provisions work

. That's a page 203 and 204 of rally. So to get to the text and exactly what the state agrees to, you start with the fake definition, the definition for free appropriate public education. We all agree on that. Sub-D of that definition says that the school has to provide an education quote in conformity with the IEP plan. Then to understand what that means, again, this is straight out of rally and straight out of the text. You turn to what the IEP provisions provide. And those are laid out at pages 52A and 53A of the government's appendix. And in a nutshell, what they say over and over again is that standards generally speaking for children with disabilities should be aimed at the general educational curriculum. So what you do is you start with the general educational curriculum that applies to all kids. Then you identify the child's disability and how it impacts that child's ability to participate and progress in that general educational curriculum. How does that work? I'm sorry, how does that work with students whose disabilities generally wouldn't allow them in their own potential to follow the general educational curriculum? I understand how it worked in rally where you were dealing someone with this particular disability, but one that was rather readily and easily addressed. Here you have a very different context. I mean, you would not say that the goal here, would you, was to progress consistent with the general educational curriculum? Most likely not all the way up to grade level in this case, Mr. Chief Justice. But that question, just as you asked me earlier, is expressly answered in the statute. So on page 52A, on the bottom of 52A in sub CC, what the IEP provisions say is that for children with disabilities who take alternate assessments aligned to alternate achievement standards, a description of benchmarks or short term objectives are appropriate. And then the rest of the IEP provisions describe how you set those goals to meet those alternate achievement standards. Now what the Congress is referring to, and let me just emphasize as I go through these statutory provisions, these are all from 2004, much post-ating rally. What Congress is referring to with respect to alternate achievement standards are laid out at page 79A of the government's appendix. These are the amendments to the ESEA that Congress enacted and the No Child Left Behind Act, and that have been aligned with the IDEA. So if you look at page 79A, there are five subdivisions that describe what you do for the child, Mr. Chief Justice, that you are asking about. And perhaps the most important is our sub three and sub four. So if you'll permit, because the text is so important, I'll read them to you. Sub three says that the standards in this situation must, quote, reflect professional judgment as to the highest possible standards achievable by such students. And then what sub four does to complete the circle and make absolutely clear to the states and everybody else that this is required, it says, those standards must, quote, be designated in the individualized education program developed under the IDEA. So the question you asked is expressly answered in the text. It is expressly answered in the IDEA. And so to bring me back to our standard, substantial educational opportunity are the words Congress used in the findings and purposes to encapsulate what is required by the IDEA. I suppose it's implicit in your standard, and some of the provisions you read that what we're talking about is the word reasonable that we see throughout the law. Do you see any function for that word and in addition, as part of what reasonable is, is there any place to discuss the cost that would be incurred for say severely disabled students? So let me answer both reasonable as first and cost second. So reasonable is yes, is a central feature of the act. And in Rowley itself, the court said that the plan that the IEP team puts together needs to be reasonably calculated to achieve the level of educational benefit that should be guaranteed

. So if you go into court, or actually here you don't start in court, you start with a hearing officer. And if there's going to be a dispute, what a parent has to show is that the plan the school adopted was one that no reasonable educator would have adopted. And so a reasonableness is an important part of the way a court would look at it, a hearing officer and indeed the IEP teams. Now, with specific reference to cost, let me say three things about cost justice Kennedy. First of all, the vast, vast majority of IEPs and programs put together into the statute don't cost much at all. They involve things like providing braille textbooks, providing an iPad, providing some specialized instruction by a staff member who's already on staff. There are going to be some extreme cases. And the court saw once every years ago in the air def case, which involved a situation where a child with a ventilator needed full-time nursing services. And the court quite clearly said that even there, where the school just was saying that was going to cost 30 to 40 thousand dollars, the act does not permit cost to trump but the act otherwise requires. And the reason why Justice Kennedy is, because Congress expressly thought about this. All the way back to the 1975 act, what Congress said is it's yes it costs money and that's why it's spending clause legislation and that's why we're giving money to the states. But it is cheaper to provide services to somebody while they're being educated that it is to pay out of the public fisc for the rest of that person's life to make up for the deficit than a bad education. Mr. Fisher, the tab here is $70,000 tuition. Well, Justice Ginsburg, at the time this case was litigated, it was more like $40,000 in the private school. Currently it is closer to the number you described. But the tab to put the child in private school, remember the school district had an opportunity to come forward with a proper IEP plan to provide drew with a fake. In your position, what should have been done for this student? The first and most important thing that should have been done is it's known as a behavioral assessment should have taken place to figure out why drew's behaviors were so dramatically interfering with this education. That's something that every reasonable educator would have done, all the peer reviewed research say it's vital. It's the very first thing that the private school did in this situation. And if you look at the plans that are laid out in the supplemental joint appendix, that was never done. And what's particularly striking, Justice Kennedy, is that even after drew was really in an emergency situation in the spring of his fourth grade year put into private school, the parents came back to the school district again six months later in November and said now that we see he's progressing, now that they've done a behavioral analysis, what will you do because we would actually like to have him educated in the public schools. And it's amazing that all they did was offer and this is a page is 182 and 183, the exact same failed behavioral plan that they had been using in the fourth grade. Where are they going to what the conference that the parents didn't attend? It's scheduled a conference and I thought a behavioral expert was part of that conference. So there were two conferences, Justice Ginsburg. There was a first one in April of drew's fourth grade year that the same old plan was presented with no experts. They then offered to have another conference a month later in May and what the parents decided at that point is things had reached such a critical and emergency stage that drew was falling so far behind they had to put him in a private school so they did not attend that meeting but Justice Ginsburg what my friend on the other side leaves out of his brief is what I just described which is the parents did return in the fall once drew had been stabilized and did offer to meet with the school district. The school just brought no autism expert to that meeting and the plan that they proposed to deal with his behavior is verbatim the same plan that they had offered back in the fourth grade. At that point the parents had no choice reasonably but to leave drew in private school and to seek remedies under the act and there are going to be and I think this returns me to Justice Kennedy's question about cost. We recognize and Congress recognized in this court recognized in Burlington that there are going to be rare extreme circumstances where children are going to be put into a private school or otherwise need significant resources. Why didn't the statement but that an IEP, what it has to do is it has to based on peer-reviewed research when practicable, will be a provided for the child to advance appropriately towards attaining the annual goals to make progress in the general education curriculum and so forth. So you just described if the situation is that, wouldn't that have been violated? Or if they wrote the IEP that way, wouldn't you be able to go to court and say, look, there is their IEP and they didn't live up to it? So you already have two arguments under the statute and the problem that's working in my mind is that we suddenly adopt a new standard all over the country. We'll have judges and lawyers and people interpreting it differently

. And so why isn't the present situation sufficient? Besides having nine people who don't know, I mean, at least speaking for myself, don't know that much about it. Creating a new standard out of legal materials which are at a distance from the people, the children, and the parents who need help. So I think the critical reason why the court in Rally itself jestered towards needing the need for a overall standard that encapsulates the act. And the reason why we ask for it here today is that you will find in every brief in this case, our brief, the red brief, their amicus briefs, everyone agrees that school districts, I believe, this is a page 29 and 47 of my friends brief, they agree that the IEP provisions have to be followed. Everybody agrees that. The difficulty is that it just doesn't happen. Well, I'm sorry if it doesn't happen, what are we supposed to do to make it happen? I mean, you have a statute that certainly seems to say that. And you have a system for enforcement. And how does us suddenly using this word equal? The word equal has history from a lot of different areas of law. And what do you do with a wide range of disabilities, a huge range, and individual students. And do you see what I foresee? I foresee taking the money that ought to go to the children and spending it on lawsuits and lawyers and all kinds of things as to our extraneous. That is what's actually bothering. Right, so let me address a word more about why we need a standard, and then I'll say something about the lawsuit's question that you raised. So first, we need a standard because the act, it's best to encapsulate what the IEP provisions are required. If you don't like the word equal, I'm seeing the giving you the word that Congress used when it amended the act. And that very much, this court just said that very much the same thing in Rally when it said in the general situation, a child's plan should be tailored to allow her to advance from grade to grade. Now, if you don't want to use the word equal, here's what we would suggest, just a sprior. You can say as a general rule, the IEP provisions and therefore the fake requirement of the act, demands a level of educational services to design, to allow the child to progress from grade to grade in the general curriculum. And when that is not- Well, suppose we have a child who is a handicapped child, there's a range of people, and they can't do much for them. But they can do something for them. And if they can do something for them, do it. But if you say measure that in terms of their ability to progress from grade to grade, maybe some will, some won't. And how does that- It seems to be the word appropriate, tried to recognize that. And do you want to recognize that? I mean, you can't ask for more than is reasonable for them to do. So what words do we use? At bottom, we agree that there's flexibility in the act to accommodate each child's individual potential in needs. But if I could just give a full answer to your question, we think that it would be fine if the court just said, the IEP should be tailored to achieve in the general educational curriculum at grade level for most kids. And when that is not possible, Justice Breyer, and this goes back to Mr. Chief Justice's question, you alluded to the alternate achievement standards according to the language I described to at page 79a. And that is all straight out of the text of the act. It's more complicated way of putting it. And it makes a big difference whether you take the word equal out, though. What you've just said takes the word equal out of the standard. Well, in my, in my view, Justice Alito, I'm describing what it means to provide an equal educational opportunity

. If you don't think that I'm actually- Well, I understand what an equal outcome would be. But I don't understand what an equal opportunity means when an equal outcome is not practical. What it means is that you give the- So when you're dealing with a child who cannot get to grade level, I think that's what you're asking. What it means, and this is in a 2005 guidance document by the Department of Education, what it means is you're giving children with disabilities equally challenging curriculum. On the academic side and in terms of their functional and general functional and developmental goals. But for those of- The standard, I would just say the standard is highest possible standards achievable directly in the text of the statute. But for those of us who have some feeling that the word equality is a poor fit for this statute and its focus on individuation, what would you say to those of us? How would you describe what you think is required without focusing on equality? I would say just what the court said in Rally for the typical child with a disability who can achieve at grade level, which is the standard that the school district has to try to meet is progress in the general educational curriculum at grade level. And then dealing with a child who's not going to get there equally challenging, or Justice Kagan, I would say alternate achievement benchmarks to use exactly the words in the standard that are the highest possible achievable by the student. Those are the exact words at page 79a of the statute. If I can reserve the remainder of my time, please. Thank you, council. Mr. Goinsney. Mr. Chief Justice, and may it please the Court. The requirement of a free appropriate public education is not satisfied by the program that aims at barely more than to minimize progress. What it requires instead is a program that is aimed at significant educational progress in light of the child's circumstances. What that differ, how does your formulation differ from the one we would just offer by Mr. Fisher? So I think we would take the same position with respect to Amy and similar students. It's grade level competence for students who are in the regular classroom or in the general. We're talking about somebody for whom I think you'd agree that that standard doesn't apply. Right. And so that is where we have a slight area of disagreement. We would say significant progress towards grade level standards, not as close as possible to grade level standards. How about meaningful, instead of significant? So we are not committed to any one particular terminology. We think that significant is synonymous with meaningful, it's synonymous with progress that's reasonably can be expected. Meaningful was a word used in rally? Yes, it was used in rally. And the only reason I would discour, of all the terms, and I would give you one more, which is appropriate in light of the child's circumstances, progress that's appropriate. The only one I would urge you away from actually is meaningful. And the reason is that it has baggage in various courts of appeals. It means different things to different courts. And it has been applied in different ways by different courts. So I would urge you to pick, although we think that capters, we should come up with our own that can then be applied in different ways and different points

. Well, I think the most important thing for you to say is that this is not a barely more than the minimum standard, and it's not a maximization standard. What it is is, and I would leave it to you to choose any of those adjectives that- The problem is, you say leave it to us. You represent the Department of Education here. They at least have experience with it. And we have far less. And so obviously I am relying and must rely upon people who have connection with expertise. And I don't want to do something that uses words that has effects that I have no idea. So I go back to look to two words that IEP is filled with the word progress. There are several. So the word progress seems like something that should be there. Yes. And then the other word that goes, you see a lot is appropriate. Now you've taken that word appropriate and spelled it out in light of the student's particular needs and abilities. I think that's what you're doing with appropriate. And if we stick appropriate in that sentence somewhere, so it's significant and appropriate, does that matter? That happened. Then we are happy with that. One of the formulations- You're looking to this and you don't see anything wrong with sticking in the word appropriate. And we do not. Okay. Now, now the other thing I looked at in yours is you say the school just required a wire school district to provide. Now when I see required school districts to provide, I begin to think everybody's going to start suing about whether they did provide. No, no. So I'm thinking, well, maybe it should be something like they're reasonably calculated to provide. That's absolutely we agree with that. That is what Raleigh said and that is what the standard of that's what it means to require. It's a program that is reasonably calculated to make significant education progress in light of the child's circumstances. For all of us who might be a little slow. Now tell me what the new standard you're proposing is. And I don't mean to be buying into your adversary's position. I do think the act provides enough to set a clear standard. But the words are what we're trying to come to that would be less confusing to everyone. So one formulation that I think that would be consistent with what we are saying is reasonably calculated to make progress that is appropriate in light of the child's circumstances. So how does that actually work in practice? I mean, I understand the Raleigh standard

. You're dealing with someone who has a disability that is readily addressed so that they can keep track with grade progress. But if you're out of that realm where that is not a realistic goal in light of the child's potential, how do you decide what it is? You're sitting down at the meeting and how do you decide? All right, so the IP provisions tell you where to start. You look at where the child currently is in terms of academic performance. What are their present levels of achievement? Then you examine the disability and you ask to what extent has this impeding progress in the general curriculum? And then what you do is you basically make an estimate. Is there somebody at that meeting? I mean, you have experts. You have educational experts who will say make an estimate of how much progress towards grade level standards that child can make in light of where they are now and the nature of disability. It's still time. The grade level standards. I would think in many situations those would largely be irrelevant. So here's what we mean by that, Mr. Chief Justice. You start with the grade level standards, but then you see the building blocks that are missing underneath those grade level standards and you set those out. So if you can't multiply and you can't add and multiplication as the standard, maybe you need to learn how to add first. So you set forth what are the building blocks that the child is missing? Everybody, I assume everybody needs to learn how to add before they learn how to multiply. And the basis of my concern is that it seems to me that even though you have a lot of, maybe because you have a lot of different adjectives to describe the standard, that there's really nothing concrete there. And when you're asking the courts to undertake judicial review, it's not clear to me exactly what they're supposed to do. So again, it's appropriate in light of the circumstances and we think that this is just what most school boards are already doing. And I agree that the concern is with court enforcement of the standard and the risk of court over involvement in educational decisions. But the response to that is not to adopt a barely more than to minimum standard that nobody purports to apply. But it's to say that the court's role is limited to ensuring that the state's program for progress or appropriate progress is based on reasonable educational judge. Which, do you agree with Mr. Fisher that cost has no place in this calculation? No matter how expensive it would be and no matter what the impact in, let's say, a poor school district would be on the general student population. Costs can't be considered and do you think in the real world school boards are disregarding costs entirely? So they're definitely not disregarding costs entirely because there could be two different programs, both of which are reasonable and they would take into account costs surely in deciding which of those reasonable programs to adopt. But more generally, I would say the answer is no in the usual case and from Cedar Rapids, that's what the court said is, you can consider costs in deciding what the standard should be in the first place. But costs can't define what the standards are. And that makes sense to me in light of the way you look at the statute. Congress obviously knew when it passed this law that there were going to be some significant expenses associated with some kids. And that's why it gave money and made it an opt-in program. So at the very least, it seems to me, Cedar Rapids and the structure of the statute tell you that in the usual case, it can't be cost. But do you know what percentage of the funds that are spent by school districts for this program are paid by the federal government? I think it's a relatively, I think it's like 15% or something like that. Federal government pays 15%. I think it's something like that. I could be corrected and maybe my, my, but the point of it is they realized that they were going to give money and they made it an open-ended choice for the school district

. So if the school, do you think that costs should be measured against the possible results to be achieved? So not in the usual case. I think Congress took costs off the table in the usual case. I think in the extreme case, you would do exactly what you're talking about. You would say for a very little game, for extreme cost. No. Not appropriate is that? Not appropriate, yes. So. Is that the case in this case? No. The school district in this case hasn't raised a cost, defense. And so more importantly, the cost gave significant progress. The cost did give, I'm sorry, the cost of the private education resulted in. It did result in significant progress. Now, I'm not sure you would, the benchmark is what is to be achieved in a private school. I think as long as the school districts plan, make significant progress or appropriate progress towards grade level in light of the child's circumstances, that's all we have to do. Well, here, even by the 10th Circuit admission, this was barely to minimumist progress. So I think what the Court of Appeals said is, the only thing it said is, there was a free appropriate of public education because Drew had made minimum progress on some of his goals in the prior years. And that's clearly not enough to meet the standard that we're talking about. If the Court has no further questions. Thank you, Council. Mr. Cottele. Thank you, Mr. Chief Justice, and may please the Court, to prevail, my friends have to overcome three different things. First, they must overcome the spending clause, which requires that any standard be imposed unambiguously. Second, they must overcome Rowley, which found far from a clear statement, but the statute was noticeably absent on a substantive standard for the level of education, including any standard based on equality. And third, they must overcome the fact that with each amendment to the IDEA, Congress has reaffirmed its faith in the procedural protections and systemic requirements without touching the statute's substantive standard. They have to run. I think the Court did you look at what we were told by Mr. Fisher. I think he was referring to 79 A. The government's appendix. So he has two different arguments, Justice Ginsburg, about the changes to the amendments. We think neither of them is going to come close

. First of all, nothing is unambiguous as the spending clause requires. These are changes to the procedural protections in 1414D and an additional goal found in 1400. None of that comes close to this. And I think the best parameter of this is that it's taken until Mr. Fisher's creativity, for any court, really, to even entertain the notion that the 97 or 2004 amendments change the standard. He has not a single case to site that supports this idea. But the procedural standards certainly are the measure by which a court can determine whether or not the procedures were adequate. Absolutely, Justice Kennedy. We agree. Then why doesn't that automatically make these part of the standards? We do think it makes them part of the standards. It just makes them part of the procedural standards. That is to say, we agree with them that in 1997 and 2004, Congress really changed the IDEA in a significant way. The procedures have to meet these standards. Absolutely. Absolutely. And so, to the extent the procedures aren't meant to the extent that this- Then I don't understand your disagreement with Mr. Fisher. It's very large that is we think that these are procedural checklists. And it's a detailed and exhaustive one to be sure Justice Kennedy after- But are not the procedures subject to judicial review to see that the procedures were followed? Absolutely, Justice Kennedy. We agree with that. That's actually the way that's what Congress had in mind. The idea that you've got to go through the checklist. You can look at the checklist here. It's very detailed and extensive. The supplemental appendix pages 131 to 142. Until long as the court has considered those things- Excuse me, so long as the IEP process has considered those things- But the procedures as I'm sure you'll agree is geared towards something. It's geared towards the provision of a free appropriate public education. Then the act what it does is it sets up. This is why I guess I can't readily agree with you or understand of its oil procedures and we just have to make sure the procedures are followed. Because what the act does is it sets up an administrative process. And it says when you have disagreements about the provision of a of a fake, you go to this administrative process. And what does the hearing officer do? I'm going to just read you subject to another exception. A decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education

. So that's what the dispute is ultimately going to be about. It might be about some procedures along the way and maybe it will be solved just by saying follow the right procedures. But often not, often what the hearing officer is told to do, shall do, is to decide on substantive grounds whether a child has received a free appropriate public education. Just Kagan, we don't disagree with a lot of what you said. That is to say that we do think that and Rowley is very clear on this, that there is a substantive standard in the IDEA. It's just a some benefit standard. Not, and there's nine different standards now that we've heard just in the last half hour, which I'll walk you through in a minute, but that the petitioner and the government are saying. So it's some benefit. We do think there's substantive review. That's what that provisions about. And by the way, that provision also says there can be procedural review on a harmless standard. It is so low, is so easy to meet. And then you justify that and you say don't worry about it because it's all in the process. But this provision, the idea of what a hearing officer is supposed to do and then what a court is supposed to do, says it's not all in the process. There is a question of whether a student is receiving a fap. So we disagree in two different respects. Number one, the experience for 34 years since Rowley almost every circuit, both the government and petitioner agree whether it's eight or ten circuits, have been applying the some benefit standard and that it's had by. Indeed, their own reply brief at page 19 admits and says, look, actually schools are doing fine. So to the extent that you're concerned about some really low standard in the courts, that's actually not what's materializing. And you look at case after case on this, the ASA brief at page 24. So it's three cases using the some benefit standard just from this year. Judge Collatin's opinion in CB. There's case after case saying, this is not some totally minor standard. It is the standard that Rowley says. It says some benefit, but you're reading it as saying some benefit and the other side's reading is saying some benefit. And you don't. And it makes a difference. And I one reason I think that it's problematic for you is because Rowley just doesn't say some benefit. It tells you what it is. And it's enough benefit to keep track with grade progress. And if that's what the standard is, that's certainly more than, you know, slightly more than day minimums. And now obviously, you can't take that actual substantive standard and apply it in a case such as this, but it does seem to indicate that there is a substantive standard and it's not just some benefit. Our position as Rowley doesn't say that it's got to be grade level progress

. Rather, it says that you've got the word appropriate. This is footnote 21. It's a reflection. It's a reflection, it's recognition that some settings simply are not suitable environments for the participation of some handicap children. Not as a term of art, which can precisely express as a standard found by the lower court's equality standard. That is to say, I think, there are lots of different ways of trying to understand what the statute means. But Rowley said the way for the court to understand it is spending clause legislation. That is, the State entered into a contract and they need to know the terms of the deal. And to the extent there's any ambiguity, I think Rowley was very clear in saying, it is just some benefit. And that is a natural thing. It follows from the kind of presumption against the minimum standard. I don't think some benefit is ambiguous. Well, I think that there's a little bit of ambiguity in that, but I think it's a lot easier to administer that question. Because the question, you know, Justice Ginsburg, let's just say, this is a way ordinary English works. If I have a duty to benefit you, Justice Ginsburg, if I give you no benefit, I think courts can easily review that. I've given you no benefit. I've fallen down on my duty. Now, if I've given you some benefit, I've met my duty to benefit you. But I don't think that's an only say is more than a mirrorless. Exactly. But that can't be just to finish that thought. It can't be that the standard is, if I benefit you significantly, that's the standard. Or if I benefit you equally with your colleagues or something like that, that's all adding words to the statute. Where is it going there? As I see, one way of looking at what we're doing. Two things have occurred. One, Rally itself is somewhat ambiguous. It doesn't, it deliberately doesn't say how much. And that's why you get the ambiguity. The second thing that happens is the statute is amended. So what we're doing is going back and looking at those somewhat ambiguous words in Rally in light of a statute that was amended. Now, when you look at the statute that was amended in the IEP, you do see, in at least two, and maybe more places, that that IEP is designed to be a statement that will produce, meet the child's needs to enable the child to be involved in and make progress in the general education. And then further advance appropriately towards annual goals to make progress in the general education. So now what the SG has done is go back, take those words, make progress, and put them in a phrase, which in fact, I think with not much modification, says, look, let's read what Rally said. In light of these additional words, make progress which are statutory words while taking account of great differences by using words like appropriately in light of students, particularly needs and abilities, and those all come from the statute. So it suggests by three things. Number one is we don't agree that Rally itself is ambiguous as it's been interpreted for 34 years. Indeed, they can't cite any cases showing that there's any problem. Indeed, the reply brief admits at page 19, things are working just fine. So the idea that there's like some need for this Court to get involved and clarify Rally, I think, you know, there's no case law or anything to support that. Second, the idea that the amendments somehow change the game, I think, is not nearly enough to be the clear statement that Penn Hurst requires. I mean, this isn't just elephants being hid in the mousules. This is elephants being hidden in Romanette mousules. I mean, this is, you know, listen to the things that he had to point to with subsection D4, Romanette 2, and things like that none of which. The Court should say that the formulation more than a day minimus sets the level to low, and that's the formula that was used below here. In Justice Ginsburg, we disagree with that. We think more than to minimus, which is what almost every circuit is using right now, has worked, and it follows naturally from the some benefit language in Rally. Now you might disagree. So you're appointing some benefit to more than a day. More than to minimus. We think it means the same thing, and we think there's a long history of experience with this showing that it's working, and to return Justice Breyer to a point that you had made before, it's to the extent there's some concern about the standard. That's really got to be up to Congress. If this Court were to change the standard, you know, it would invite all sorts of litigation. And just look at what Mr. Fisher said, as the Chief Justice started, he first has petitioned with a substantial equal opportunity standard. Then it became, and as Maritz brief, an equal opportunity standard. Then in the beginning of his oral argument, it was, quote, tailored to achieve at grade level what Mr. Dahl says. Let's say that during the school year, the school district sends someone to work with the particular student in this case, and they send her there for two weeks. You know, she goes around. And that's it. And that's all they do. That's some benefit, better to have the person there for two weeks than not at all. But you wouldn't say that satisfies the statute. It does not, as our brief explains, there's two different provisions in the statute. 1414 BR and C5A, which explain that the benefit from special education must be, quote, continuous, and Cedar Rapids actually said that. Okay, so you just changed the hypothetical

. In light of these additional words, make progress which are statutory words while taking account of great differences by using words like appropriately in light of students, particularly needs and abilities, and those all come from the statute. So it suggests by three things. Number one is we don't agree that Rally itself is ambiguous as it's been interpreted for 34 years. Indeed, they can't cite any cases showing that there's any problem. Indeed, the reply brief admits at page 19, things are working just fine. So the idea that there's like some need for this Court to get involved and clarify Rally, I think, you know, there's no case law or anything to support that. Second, the idea that the amendments somehow change the game, I think, is not nearly enough to be the clear statement that Penn Hurst requires. I mean, this isn't just elephants being hid in the mousules. This is elephants being hidden in Romanette mousules. I mean, this is, you know, listen to the things that he had to point to with subsection D4, Romanette 2, and things like that none of which. The Court should say that the formulation more than a day minimus sets the level to low, and that's the formula that was used below here. In Justice Ginsburg, we disagree with that. We think more than to minimus, which is what almost every circuit is using right now, has worked, and it follows naturally from the some benefit language in Rally. Now you might disagree. So you're appointing some benefit to more than a day. More than to minimus. We think it means the same thing, and we think there's a long history of experience with this showing that it's working, and to return Justice Breyer to a point that you had made before, it's to the extent there's some concern about the standard. That's really got to be up to Congress. If this Court were to change the standard, you know, it would invite all sorts of litigation. And just look at what Mr. Fisher said, as the Chief Justice started, he first has petitioned with a substantial equal opportunity standard. Then it became, and as Maritz brief, an equal opportunity standard. Then in the beginning of his oral argument, it was, quote, tailored to achieve at grade level what Mr. Dahl says. Let's say that during the school year, the school district sends someone to work with the particular student in this case, and they send her there for two weeks. You know, she goes around. And that's it. And that's all they do. That's some benefit, better to have the person there for two weeks than not at all. But you wouldn't say that satisfies the statute. It does not, as our brief explains, there's two different provisions in the statute. 1414 BR and C5A, which explain that the benefit from special education must be, quote, continuous, and Cedar Rapids actually said that. Okay, so you just changed the hypothetical. She's there five minutes a day. Five minutes a day, I think, wouldn't meet the de minimis standard. That is, that itself is not a significant, that is not a significant. Well, I guess it depends on somebody who can tell us at some point whether it's beneficial. And yet, I think most people would agree that it, well, I mean, are you saying that the judicial review is supposed to be whether that's day minimis or more than day minimis, and however is good, that's not day minimis, but that's all you have to do. Mr. Chuchas, I'm saying two different things. One is, yes, ultimately, if we got there, that it would flunk substantive, de minimis review. But you wouldn't get there. Congress's whole judgment here was to put the emphasis on procedural protections in the act, and they bolstered them in 97 in 2004. And it as long as they could shine a light by creating an IEP team process where they trusted teachers and they trusted parents who are highly incentivized to come together. But you're putting a lot, you're assuming that the procedural process will yield significant results. What if they do the whole thing? Yet we have the hearing, everybody comes in, we bring the expert in, and the expert says, well, you need to have somebody there, six hours of the day to help the child learn. And they say, okay, that's the procedure we listen to you. In fact, we're only going to have somebody there a half hour. I am assuming that it is in general going to work, which is what Rowley itself said at the page 206 of its opinion, that that was Congress's judgment. Now, I agree, you can give me a hypothetical, which says that in some case, the procedures aren't going to work, and there's going to be a bad result. No system is perfect, not even a judicial system as the error correction rules of this court. Recognize, I think the question for the court is, should you kind of rejigger the statute and impose a new standard, particularly the current executive. You have to excuse me, I'm not sure I understood your answer to the chief justice. He had a hypothetical, what you have the hearing, and the hearing makes a recommendation. Recommendation not followed, what result? If the recommend, and I thought I heard you say, well, the procedure will follow, that's good enough. If I might have been misunderstood, I thought it was a five minutes of services thing. If it's not followed, everyone agrees, there's judicial review of that. The IEP is essentially a contract, our brief sites the provision, which says that you can come in and enforce the IEP. I don't think there's any disagreement about that. I understood the hypothetical to be about some really low level of benefit. And our point is, Rowley says there is some benefit standard. That has been interpreted in court after court to actually have bite. The ASA brief sites, three cases just in the last year alone about that. The question is, in spending clause context, do you want to actually impose something new? I mean, Mr. Gornstein gave you three different new standards, starting with his cert petition, and then his merits brief taking a different view. So we get some benefit from it? I get it from Rowley itself at page 200, which says

. She's there five minutes a day. Five minutes a day, I think, wouldn't meet the de minimis standard. That is, that itself is not a significant, that is not a significant. Well, I guess it depends on somebody who can tell us at some point whether it's beneficial. And yet, I think most people would agree that it, well, I mean, are you saying that the judicial review is supposed to be whether that's day minimis or more than day minimis, and however is good, that's not day minimis, but that's all you have to do. Mr. Chuchas, I'm saying two different things. One is, yes, ultimately, if we got there, that it would flunk substantive, de minimis review. But you wouldn't get there. Congress's whole judgment here was to put the emphasis on procedural protections in the act, and they bolstered them in 97 in 2004. And it as long as they could shine a light by creating an IEP team process where they trusted teachers and they trusted parents who are highly incentivized to come together. But you're putting a lot, you're assuming that the procedural process will yield significant results. What if they do the whole thing? Yet we have the hearing, everybody comes in, we bring the expert in, and the expert says, well, you need to have somebody there, six hours of the day to help the child learn. And they say, okay, that's the procedure we listen to you. In fact, we're only going to have somebody there a half hour. I am assuming that it is in general going to work, which is what Rowley itself said at the page 206 of its opinion, that that was Congress's judgment. Now, I agree, you can give me a hypothetical, which says that in some case, the procedures aren't going to work, and there's going to be a bad result. No system is perfect, not even a judicial system as the error correction rules of this court. Recognize, I think the question for the court is, should you kind of rejigger the statute and impose a new standard, particularly the current executive. You have to excuse me, I'm not sure I understood your answer to the chief justice. He had a hypothetical, what you have the hearing, and the hearing makes a recommendation. Recommendation not followed, what result? If the recommend, and I thought I heard you say, well, the procedure will follow, that's good enough. If I might have been misunderstood, I thought it was a five minutes of services thing. If it's not followed, everyone agrees, there's judicial review of that. The IEP is essentially a contract, our brief sites the provision, which says that you can come in and enforce the IEP. I don't think there's any disagreement about that. I understood the hypothetical to be about some really low level of benefit. And our point is, Rowley says there is some benefit standard. That has been interpreted in court after court to actually have bite. The ASA brief sites, three cases just in the last year alone about that. The question is, in spending clause context, do you want to actually impose something new? I mean, Mr. Gornstein gave you three different new standards, starting with his cert petition, and then his merits brief taking a different view. So we get some benefit from it? I get it from Rowley itself at page 200, which says. So what do you do with meaningful? So meaningful is not actually in Rowley. The Court there just mentioned meaningful ones, only to say that it can't be more than meaningful. It didn't adopt that as a standard. There is some baggage as Mr. Gornstein says, but the really important baggage is actually what this Court said in Cedar Rapids, which is that meaningful access doesn't require a particular level of education. So we have now, we have the words you've mentioned, they are in old cases. As was just pointed out, those words, some, what is it? Some, some benefit, you could say some benefit, or you could say some benefit. All right, now that's an ambiguity. And as you point out, most courts have interpreted what I think is the correct thing. They've said benefit, okay, and you say there's really no problem. Okay, there's really no problem, but there still is a problem with the language in a handful of courts. And now we have an IEP statute, which again and again and again looks to progress. So why is it making something up out of whole cloth simply to take that word from the IEP, which is enforceable anyway, and say, look at these two words of ambiguity. And we think we should interpret them in light of the IEP requirements, which are pretty close to what the SGS suggests. But Justice Breyer, I don't think that there is some problem in the lower courts. They're not citing cases that show that there's some parade of horribles akin to the hypotheticals that we've heard. And Congress's judgment was that the procedural protections will do a lot at the front end to avoid that problem. There might be some situation at the back end, but that's where the systemic requirements of the IDEA, no child left behind are so important. Because what they say is that the Department of Education can cut off funds, can redirect funds, can require annual reports, all sorts of things happening. And indeed, annual reports have been required since 2004 to Congress. Congress has never changed the statute in the way they want. It's not a substantive standard change. And again, their own reply brief of page 19 in the SGS brief admits the standards generally working. Teachers are teaching to the top. What is frustrating about this case and about this statute is that we have a blizzard of words. And if you read them literally, it's not clear to me that they mean anything different. Now progress benefit. I don't see how you can have a benefit unless you're making some progress. Significant, meaningful, that there's synonyms. If something is significant or meaningful, it's more than de minimis. And if it's more than de minimis, you could say it's significant. It's something that you note. So it's really, I mean, what everybody seems to be looking for is the word that has just the right nuance to express this thought

. So what do you do with meaningful? So meaningful is not actually in Rowley. The Court there just mentioned meaningful ones, only to say that it can't be more than meaningful. It didn't adopt that as a standard. There is some baggage as Mr. Gornstein says, but the really important baggage is actually what this Court said in Cedar Rapids, which is that meaningful access doesn't require a particular level of education. So we have now, we have the words you've mentioned, they are in old cases. As was just pointed out, those words, some, what is it? Some, some benefit, you could say some benefit, or you could say some benefit. All right, now that's an ambiguity. And as you point out, most courts have interpreted what I think is the correct thing. They've said benefit, okay, and you say there's really no problem. Okay, there's really no problem, but there still is a problem with the language in a handful of courts. And now we have an IEP statute, which again and again and again looks to progress. So why is it making something up out of whole cloth simply to take that word from the IEP, which is enforceable anyway, and say, look at these two words of ambiguity. And we think we should interpret them in light of the IEP requirements, which are pretty close to what the SGS suggests. But Justice Breyer, I don't think that there is some problem in the lower courts. They're not citing cases that show that there's some parade of horribles akin to the hypotheticals that we've heard. And Congress's judgment was that the procedural protections will do a lot at the front end to avoid that problem. There might be some situation at the back end, but that's where the systemic requirements of the IDEA, no child left behind are so important. Because what they say is that the Department of Education can cut off funds, can redirect funds, can require annual reports, all sorts of things happening. And indeed, annual reports have been required since 2004 to Congress. Congress has never changed the statute in the way they want. It's not a substantive standard change. And again, their own reply brief of page 19 in the SGS brief admits the standards generally working. Teachers are teaching to the top. What is frustrating about this case and about this statute is that we have a blizzard of words. And if you read them literally, it's not clear to me that they mean anything different. Now progress benefit. I don't see how you can have a benefit unless you're making some progress. Significant, meaningful, that there's synonyms. If something is significant or meaningful, it's more than de minimis. And if it's more than de minimis, you could say it's significant. It's something that you note. So it's really, I mean, what everybody seems to be looking for is the word that has just the right nuance to express this thought. Well, we think that you should look to what Rowley's did here, which is to say the word is some benefit. And that actually follows from the text of the statute itself. There's a long presumption just as Alito against de minimis starting with Wrigley, which is quite set applies to all statutes. So we think our standard comes from the text, but there is no canon about significance or quality for anything. What is the difference between some benefit and significance? I think it's quite large. That is, you know, I think it's straightforward. So, you know, basically, I think, you know, if the court is to ask whether there is some benefit, as I was saying to Justice Ginsburg and my hypothetical, you know, that's a pretty easy question, is have I benefited? Has the school district benefited? But once we start getting beyond that to significant, the court has to ask both, was there some benefit, and then was that benefit significant? And I can imagine a variety of views about what is just a some benefit. It said that that benefit would normally allow the student with the disability to keep up with his peers in a different grade. Now, as soon as they say that, you appreciate that you're dealing with more than just some benefit. I mean, that's a significant benefit. Significant. Significant, meaningful, whatever. It's more than simply de minimis. It suggests that you can't just look at something and say, aha, here, that was helpful. That was helpful. Because it's the whole package has got to be helpful enough to allow the student to keep up with his peers. Mr. Chief Justice, I don't think that's what Rally said when it used grade to grade. I think that all the grade to grade was just to say procedurally they've got to consider that and make sure that, for example, a high school kid isn't put in first grade. But I don't think that's part of the test. And several times Rally rejected this idea that there's any sort of level of evasion. Well, how does your position, Mr. Katjell, you have a passage in your brief on page 47, which says an IEP must have the goal of advancing a child in the general education curriculum, and to the extent possible, enable her to be educated in the school's regular classes. And to me, that sounds exactly like what the Chief Justice just said. That an IEP has to be reasonably calculated to do those things. And if it's not, then. So I think again, it's just a procedural guarantee that they have to think about and consider grade level progress. So not being sort of substantive standard. Yes, the IDEA has lots of procedures in it, but they're all geared towards a particular substantive result. And it's that substantive result that's the focus of both the administrative process and then judicial review of what comes out of the administrative process. But I don't think so, just Kagan. I think all that those standards say is what an IEP must address, not how an IEP must deal with them. And so if you look, I think the second circuit recently, in a case called L-Lover's New York City, just a couple months ago, decided it basically went through this and said, the 14, 14 standards like that are checklist

. Well, we think that you should look to what Rowley's did here, which is to say the word is some benefit. And that actually follows from the text of the statute itself. There's a long presumption just as Alito against de minimis starting with Wrigley, which is quite set applies to all statutes. So we think our standard comes from the text, but there is no canon about significance or quality for anything. What is the difference between some benefit and significance? I think it's quite large. That is, you know, I think it's straightforward. So, you know, basically, I think, you know, if the court is to ask whether there is some benefit, as I was saying to Justice Ginsburg and my hypothetical, you know, that's a pretty easy question, is have I benefited? Has the school district benefited? But once we start getting beyond that to significant, the court has to ask both, was there some benefit, and then was that benefit significant? And I can imagine a variety of views about what is just a some benefit. It said that that benefit would normally allow the student with the disability to keep up with his peers in a different grade. Now, as soon as they say that, you appreciate that you're dealing with more than just some benefit. I mean, that's a significant benefit. Significant. Significant, meaningful, whatever. It's more than simply de minimis. It suggests that you can't just look at something and say, aha, here, that was helpful. That was helpful. Because it's the whole package has got to be helpful enough to allow the student to keep up with his peers. Mr. Chief Justice, I don't think that's what Rally said when it used grade to grade. I think that all the grade to grade was just to say procedurally they've got to consider that and make sure that, for example, a high school kid isn't put in first grade. But I don't think that's part of the test. And several times Rally rejected this idea that there's any sort of level of evasion. Well, how does your position, Mr. Katjell, you have a passage in your brief on page 47, which says an IEP must have the goal of advancing a child in the general education curriculum, and to the extent possible, enable her to be educated in the school's regular classes. And to me, that sounds exactly like what the Chief Justice just said. That an IEP has to be reasonably calculated to do those things. And if it's not, then. So I think again, it's just a procedural guarantee that they have to think about and consider grade level progress. So not being sort of substantive standard. Yes, the IDEA has lots of procedures in it, but they're all geared towards a particular substantive result. And it's that substantive result that's the focus of both the administrative process and then judicial review of what comes out of the administrative process. But I don't think so, just Kagan. I think all that those standards say is what an IEP must address, not how an IEP must deal with them. And so if you look, I think the second circuit recently, in a case called L-Lover's New York City, just a couple months ago, decided it basically went through this and said, the 14, 14 standards like that are checklist. You got to consider grade level progress and things like that. But if we consider all of them and we do none of them, that's just fine. That's, well, but Congress's judgment was the process. And this is something that happens in NEPA. So your answer to Justice Kagan is yes. If you consider everything, but do nothing, that's okay. No, because if you do nothing, then you haven't provided any benefit. And so there's still some substantive bite in the standard of rally itself. What we're saying is, in the context of spending clause legislation, you can't do more than that and require something significant. And the reason Justice Kennedy is, once you start going into significance, as Yameekie Brace point out, education is the most one of the more contested areas in our society. Parents have been known to disagree. There's more acronyms about lawsuits about this new fangled theory or that new fangled theory, or 30 hours versus 35 hours being significant. And you'd get into a huge morass. What Rowley said, citing San Antonio versus Rodriguez, is that that kind of thing in the educational context is not where federal generalist courts should be. Now, I suppose you could say, maybe that's not the right policy. Maybe this is something that should happen, courts should get involved in this. That's really got to be a judgment for Congress to make, and it's got to be something they say clearly in the context of spending clause legislation. Rowley expressly said, the Pennhurst Principle applies to this provision of the statute. This is core legislation, core requirement of the statute, and they are imposing any number of different standards. And so I understand that there's some policy concerns among the court, even if they're not shared by my friends on the other side, because they disclaimed them. But to the extent there are those policy concerns, that's really got to be something that Congress deals with. One aspect of you have a position is you say, yes, there is a substance to standard. Some benefit. And then, of course, of your argument said, some, as interpreted by most courts, has bite. But then you say, they minimize is enough. More than they minimize is enough. So some with bite and more than they minimize don't sound like equivalents to me. I think they are. And I think that's what the circuit after circuit has said, which is that some educational benefit, the language of page 200, means more than de minimis. And so, you know, I think there's a whole variety of cases that have interpreted this. And Justice Ginsburg, even this court has actually had one of them. In Florence versus Carter, that came from a circuit which had a more than merely de minimis standard. The court there found that the IEP substantively didn't meet the protections of the some benefit or merely more than de minimis standard

. You got to consider grade level progress and things like that. But if we consider all of them and we do none of them, that's just fine. That's, well, but Congress's judgment was the process. And this is something that happens in NEPA. So your answer to Justice Kagan is yes. If you consider everything, but do nothing, that's okay. No, because if you do nothing, then you haven't provided any benefit. And so there's still some substantive bite in the standard of rally itself. What we're saying is, in the context of spending clause legislation, you can't do more than that and require something significant. And the reason Justice Kennedy is, once you start going into significance, as Yameekie Brace point out, education is the most one of the more contested areas in our society. Parents have been known to disagree. There's more acronyms about lawsuits about this new fangled theory or that new fangled theory, or 30 hours versus 35 hours being significant. And you'd get into a huge morass. What Rowley said, citing San Antonio versus Rodriguez, is that that kind of thing in the educational context is not where federal generalist courts should be. Now, I suppose you could say, maybe that's not the right policy. Maybe this is something that should happen, courts should get involved in this. That's really got to be a judgment for Congress to make, and it's got to be something they say clearly in the context of spending clause legislation. Rowley expressly said, the Pennhurst Principle applies to this provision of the statute. This is core legislation, core requirement of the statute, and they are imposing any number of different standards. And so I understand that there's some policy concerns among the court, even if they're not shared by my friends on the other side, because they disclaimed them. But to the extent there are those policy concerns, that's really got to be something that Congress deals with. One aspect of you have a position is you say, yes, there is a substance to standard. Some benefit. And then, of course, of your argument said, some, as interpreted by most courts, has bite. But then you say, they minimize is enough. More than they minimize is enough. So some with bite and more than they minimize don't sound like equivalents to me. I think they are. And I think that's what the circuit after circuit has said, which is that some educational benefit, the language of page 200, means more than de minimis. And so, you know, I think there's a whole variety of cases that have interpreted this. And Justice Ginsburg, even this court has actually had one of them. In Florence versus Carter, that came from a circuit which had a more than merely de minimis standard. The court there found that the IEP substantively didn't meet the protections of the some benefit or merely more than de minimis standard. I mean, how does this actually work? I thought there is a statute in 1414 before that. It says you have to school district, write an IEP. Then it says what an IEP is. And one of the things it says in IEP is, it is a statement of the services, et cetera, based on peer review stuff, that will be provided for the child to advance appropriately and to make progress in the general education curriculum. Now, suppose a school district writes a statement called an IEP, but it does not show that the child is likely to advance. Can't they go to the administrative thing and then go to court and say to the judge, and look, they didn't write what they were required to write. Oh, absolutely. So there's a statement. So they have to write something that will be calcant. Now, let's suppose they write. But they don't do it. Now, doesn't there something say you have to follow the IEP? And so again, they go to court? Correct. But what they're saying they didn't follow the IEP? Correct, Justice Breyer. But what there is not is something in 1414, which says that they've got to provide a significant benefit or they have to have a benefit. No, but they do have to provide something that makes progress in the general education curriculum. And they have to follow the checklist that is a statement. Yes, there must be a statement. Yes. But I think everyone agrees you don't look at outcomes or anything like that. So it's just a procedural requirement. It's just the same as Rally. Rally, you know, we're not saying anything different than what Rally said. Well, I don't know. I would say if you take Rally as a meaning, whatever those two words were, but beneficial. What's the one before benefit? Some benefits. Some education. Some educational benefits. Some, yeah, this is inconsistent with Rally. Well, I don't think so. I think it's got to be some educational benefit designed to get the general education curriculum. Mr. Kitell. Mr

. I mean, how does this actually work? I thought there is a statute in 1414 before that. It says you have to school district, write an IEP. Then it says what an IEP is. And one of the things it says in IEP is, it is a statement of the services, et cetera, based on peer review stuff, that will be provided for the child to advance appropriately and to make progress in the general education curriculum. Now, suppose a school district writes a statement called an IEP, but it does not show that the child is likely to advance. Can't they go to the administrative thing and then go to court and say to the judge, and look, they didn't write what they were required to write. Oh, absolutely. So there's a statement. So they have to write something that will be calcant. Now, let's suppose they write. But they don't do it. Now, doesn't there something say you have to follow the IEP? And so again, they go to court? Correct. But what they're saying they didn't follow the IEP? Correct, Justice Breyer. But what there is not is something in 1414, which says that they've got to provide a significant benefit or they have to have a benefit. No, but they do have to provide something that makes progress in the general education curriculum. And they have to follow the checklist that is a statement. Yes, there must be a statement. Yes. But I think everyone agrees you don't look at outcomes or anything like that. So it's just a procedural requirement. It's just the same as Rally. Rally, you know, we're not saying anything different than what Rally said. Well, I don't know. I would say if you take Rally as a meaning, whatever those two words were, but beneficial. What's the one before benefit? Some benefits. Some education. Some educational benefits. Some, yeah, this is inconsistent with Rally. Well, I don't think so. I think it's got to be some educational benefit designed to get the general education curriculum. Mr. Kitell. Mr. Kitell. Are there in the wake of the many years this act has been enforced and these many individual meetings? Have there been documented areas of consensus as to certain standards, certain methodologies, certain systems that work and certain that don't end of the courts in reviewing these proceedings ever refer to those? Yes. So I think that's where the Amiki briefs are so important because they say that education isn't really one of those areas. I mean, you know, people disagree about the most simple things about education of loss. So we've gone nowhere. So we've gone nowhere. Well, I don't know, we've gone nowhere, but I think that worry is to have thrust courts into the business of deciding which philosophy is appropriate and take firefight purposes. So you say that there is generally no consensus as to appropriate methodologies for say a hearing impaired student, an autistic student, no agreement on methamphetamine. I don't mean to say that there's no agreement. I do mean to say that the Amiki briefs and the case law recognizes that there is a lot of disagreement. And Rally itself says this, picking up on San Antonio versus Rodriguez, that the Congress's judgment was not to thrust courts into these really highly, very difficult considerations. And if I could just give you one example talking about just as to Mayor your invocation of firefly. So it's absolutely right that, you know, once Drew went to firefly, there was progress that was made, but there was also a lot that was given up. I mean, one of the core purposes of the IDEA is mainstreaming. And of course, firefly is not a mainstream school. So yes, there were some behavioral problems that were addressed by the private placement. But can I go back to Justice Ginsburg's question that I'm a bit confused about for the same reason. But you said something like, well, this standard is being applied with bite. So I'm just going, do you favor a standard with bite? We favor the standard that Rally said which lower courts have done for 34 years, which does have. You favor a standard with bite? It does have some bite. It does, we're not saying that. That be some bite or some bite. It is some educational benefit. That's a language of Rally. And if you disagree with it, Congress should- Well, again, and somebody said to you, right a statute with, right a standard with bite, I doubt you would come up with the words more than merely de minimis. Well, but again, I think, Justice Kagan, Congress's bite, the substantive bite, is only at the back end. It's a small feature in a much bigger statute. Congress's judgment was shining what this case is all about. We are at the back end. But Justice Kagan, don't take the policy concerns about the hypotheticals and other things to try and rejigger the back end. Congress's handy work was to say it's the procedural protections, shining a light, the IEP process with highly incentivized teachers and students and parents that's generally going to yield the right result. That's what Rally itself said. It pays 206

. Kitell. Are there in the wake of the many years this act has been enforced and these many individual meetings? Have there been documented areas of consensus as to certain standards, certain methodologies, certain systems that work and certain that don't end of the courts in reviewing these proceedings ever refer to those? Yes. So I think that's where the Amiki briefs are so important because they say that education isn't really one of those areas. I mean, you know, people disagree about the most simple things about education of loss. So we've gone nowhere. So we've gone nowhere. Well, I don't know, we've gone nowhere, but I think that worry is to have thrust courts into the business of deciding which philosophy is appropriate and take firefight purposes. So you say that there is generally no consensus as to appropriate methodologies for say a hearing impaired student, an autistic student, no agreement on methamphetamine. I don't mean to say that there's no agreement. I do mean to say that the Amiki briefs and the case law recognizes that there is a lot of disagreement. And Rally itself says this, picking up on San Antonio versus Rodriguez, that the Congress's judgment was not to thrust courts into these really highly, very difficult considerations. And if I could just give you one example talking about just as to Mayor your invocation of firefly. So it's absolutely right that, you know, once Drew went to firefly, there was progress that was made, but there was also a lot that was given up. I mean, one of the core purposes of the IDEA is mainstreaming. And of course, firefly is not a mainstream school. So yes, there were some behavioral problems that were addressed by the private placement. But can I go back to Justice Ginsburg's question that I'm a bit confused about for the same reason. But you said something like, well, this standard is being applied with bite. So I'm just going, do you favor a standard with bite? We favor the standard that Rally said which lower courts have done for 34 years, which does have. You favor a standard with bite? It does have some bite. It does, we're not saying that. That be some bite or some bite. It is some educational benefit. That's a language of Rally. And if you disagree with it, Congress should- Well, again, and somebody said to you, right a statute with, right a standard with bite, I doubt you would come up with the words more than merely de minimis. Well, but again, I think, Justice Kagan, Congress's bite, the substantive bite, is only at the back end. It's a small feature in a much bigger statute. Congress's judgment was shining what this case is all about. We are at the back end. But Justice Kagan, don't take the policy concerns about the hypotheticals and other things to try and rejigger the back end. Congress's handy work was to say it's the procedural protections, shining a light, the IEP process with highly incentivized teachers and students and parents that's generally going to yield the right result. That's what Rally itself said. It pays 206. I mean, we're going to have to use musical notation to- And not just words to express the idea that seems to be emerging. Would you say I'll ask the same thing, Mr. Fisher, if he has a chance to address it. If we were to look at what the lower courts have been doing, we don't see very many of these cases. The lower courts see a lot of them. If we looked at what they have been doing in general, would you say that they are doing- that they are applying the statute appropriately and consistent with correct interpretation? I would. Ten circuits are applying them more than to Minimists standard. It's working. Sometimes it has some bite. But to change it, as Justice Breyer was indicating to my friend, with 8 million potential IEPs is to invite- But it sounds very harsh. What's the origin of this phrase more than to Minimists? Who thought this up? Well, it goes back to Latin. And so again, we- I know we're to Minimists. No, no, no. The presumption against trifles. You know, it's, you know, it's Justice Scalia invokes it in the Riggly case ago. It's an old formulation. But who decided to apply it here in this context? Well, I think the Court in Rally then Justice Renquist's opinion invoked that by talking about some benefit. And Riggly says that is a presumption that applies to all statutes. And look. You know- Who put the term more than merely Minimists? That's the formula that you are espousing. Yes, we do. And that- And that- And Minimists is not enough, you know, it's merely Minimists. And it's not in Rally. So where does it- Who invented it? Well, I think that it came directly from the circuits right after Rally. But all we're saying is some benefit means the more than Minimists test. That's the way Court after Court is interpreted. It's worked well. This Court should be triggered by that. Thank you, Council. A two minutes, Mr. Fisher. Sorry. Three points, Your Honors

. I mean, we're going to have to use musical notation to- And not just words to express the idea that seems to be emerging. Would you say I'll ask the same thing, Mr. Fisher, if he has a chance to address it. If we were to look at what the lower courts have been doing, we don't see very many of these cases. The lower courts see a lot of them. If we looked at what they have been doing in general, would you say that they are doing- that they are applying the statute appropriately and consistent with correct interpretation? I would. Ten circuits are applying them more than to Minimists standard. It's working. Sometimes it has some bite. But to change it, as Justice Breyer was indicating to my friend, with 8 million potential IEPs is to invite- But it sounds very harsh. What's the origin of this phrase more than to Minimists? Who thought this up? Well, it goes back to Latin. And so again, we- I know we're to Minimists. No, no, no. The presumption against trifles. You know, it's, you know, it's Justice Scalia invokes it in the Riggly case ago. It's an old formulation. But who decided to apply it here in this context? Well, I think the Court in Rally then Justice Renquist's opinion invoked that by talking about some benefit. And Riggly says that is a presumption that applies to all statutes. And look. You know- Who put the term more than merely Minimists? That's the formula that you are espousing. Yes, we do. And that- And that- And Minimists is not enough, you know, it's merely Minimists. And it's not in Rally. So where does it- Who invented it? Well, I think that it came directly from the circuits right after Rally. But all we're saying is some benefit means the more than Minimists test. That's the way Court after Court is interpreted. It's worked well. This Court should be triggered by that. Thank you, Council. A two minutes, Mr. Fisher. Sorry. Three points, Your Honors. Two about the statute and one about the practicalities. First, as to the statute, the word procedural has been used by my friend to describe the IEP provisions. But whenever pressed, even he admits that the IEP provisions are enforceable in the way Justice Breyer described, which is that the plan has to meet the requirements of 14-14D. And if the service is on the ground, don't meet the requirements of the plan, they're enforceable. That's a page 47A of his brief and throughout the other. And here's Justice Alito's question. What's the practice today? Pardon me? What's the practice today? Do most courts use the more than Minimists standard? Yes, that is the formula in most of the circuits. That brings me to an important question on the ground. And if I'll circle back to my other statutory point. On the ground. Just put it, putting aside, and I don't want to take 10 seconds. Putting aside the words, are the outcomes appropriate? Or do you think the lower courts need a kick? I think they need a kick. I think the outcomes are quite scattered. And I think the only reason why you get some favorable outcomes is because even the courts themselves don't believe barely more than to Minimists. But I think you have a disjoint and my friend keeps pointing to the Amicus briefs. I think educators are by and large following the standard we proposed and sister general imposes. The note child left behind Act 2004 was a very important revolutionary bipartisan policy change. And so educators on the ground are aiming high as they put it. The city's brief says we're aiming to maximize the benefit for our students. And so you have a disjoint between what educators are doing and the courts. And the reason they need a kick is because the very, very, very, very, very rare case that makes it into the court system is not being properly reviewed. And that leaves the last point I want to respond to, which is the fact that Congress left this alone after Rally. But the court has said in Rally and in Honeg and in other cases is the IEP rules are quote, the center piece of the act, that the center piece for how the education delivery services are put forward. If you look at page 182 of Rally, the IEP provisions were quite hollow. They didn't have any benchmarks at all. That has dramatically changed. They now have the general educational curriculum benchmarks, just as Bryer has been referring to and we repeatedly refer to in our brief. And I think Mr. Chief Justice, you agree, cannot be met under their standard. And then that leaves the last little piece of the puzzle here, which is this child who cannot get up to grade level standards. We give you an answer to that question that is directly in the text of the act just as my friend demands. Alternative achievement benchmarks at the bottom of 52a is what is required. And that takes you to 79a, which gives you the exact statutory formula

. So if you want to use that formula, combined with general educational curriculum at grade level, we think that would be a proper answer to the question presented in this case. Thank you, Council. The case is submitted