may please the court my name is jason the attorney for the opponent in this case mr patel was a student at texas seven with an undiagnosed learning disabilities who had to study and learn without those those types of disabilities as a result of these his disabilities he developed a unique technique repeatedly really remit tiriel xp to the point of memorization both of  retained eps birds explained in the pine that patel's actions in this case for not and were not plagiarism but he did he he urged that disability to the panel that considered this case  he actually was not even aware of this disability at that time he knew that he had they feel learned in any different way that he had never been diagnosed until dr coyle who was our psychologist in this case did  did the testing he had never had a diagnostic testing performed in the past where it was actually discovered in the course of this litigation that he has the reading comprehension ability of a th grader well and those are those are powerful or interesting compelling facts but if but how would they go to whether texas tech gave him propre a process if he hadn't even discovered that at the time that our inquiry is whether they acted beyond professional norms europe and what we're talking about here is we have and an exam that is red flagged by a professor who says these these answers look someone were to some of the answers and study materials and other materials available online there was never any allegation that someone saw him cheating that someone saw him access an authorized material and when asked by the university how is it that you were able to provide these types of answers compared to study materials his response was you know that he read these things over and over and over again and he he memorized them and the  university simply chose to say no we don't believe that that can't possibly be true here and no one can it memorized that amount of material so therefore it must be cheating it must be plagiarism and what we have provided to the district court was to experts that not only the terrified that that was true that what mr patel was telling the school was actually accurate but when it comes to report weil he provides us with an explanation as to why mr patel studies in the way that he does and the reason i guess i'm my question again is that is an interesting offer but whatever the district court did with those experts it doesn't affect whether he was given appropriate process or rather beyond the pale non appropriate process by texas tech and that isn't that the sole inquiry were focused on not really the standard for this kind of substantive due process claim mere rational relation and we have to find that the university has departed true academic norms completely well not in this case because we're not talking about an academic issue this there's no circuit that has ever overturn a circuit that's ever overturned an academic decision like this again we're not alleging that this was an academic a disciplinary decision this was a disciplinary type of decisions any circuit ever overturned a disciplinary decision like this yes in fact we well when it comes to the issue of subsidies to due process this court has ruled on the issue of how it applies to a university real departure from norms and there i think the president relied on facts that even the dissenter below on the panel had said we're all so at the pet the school level there was a real miscarriage and breakdown is that a fair description whole the whole thing yes but here you have it to my knowledge haven't pointed to a breakdown and a refusal to hear the student or the refusal to hear her i mean his his contention right and this and that and again this is not a procedural due process issue we're not alleging that he did have a hearing and that he did it the way they process in place that that wasn't here to what we're alleging here is that the allegations in a finding of misconduct don't fit there don't shouldn't be accessed why is it comparing that language to discern whether someone is in fact doing something you should be doing why isn't that a perfectly reasonable way for a university go about doing this  basis on which to do that because that material was not necessarily not at the old boy it was not the there has not been any showing that mr patel accessed any information that he was not allowed to access what they're alleging is that he access this information during the course of the exam what mr patel is saying is that he reviewed all the material in the case known as provided by the professor and a lot of these terms and terminology used were in these materials that he was reviewing and there wasn't nothing wrong with him reviewing that it wasn't against a policy or rule for him to use the materials that he was using to study what they're alleging is that he somehow access this information during a closed book exam when he shouldn't have access it when there is absolutely no proof whatsoever that he did that i'm just curious factually this these patel was standing four feet away from the proctor during this entire exam and just the record reflect with were the laptops not disabled and they had to go on the internet i don't know if they had to go on the internet or not but you know the they did take these exams on laptops and there was a number well there was a confusing issue at the time because the professor allowed one class to take the exam open book open no and he didn't allow the others to take an open book open note and nonetheless my client took it as a closed book exam adhered to those rules now in important thing here and the st issue that we raise in our beliefs is is the issue of the district court not considering the expert reports and here is his ruling on the motion for summary judgment and the judge made a clear error on that let me ask about that suppose material fact i believe the court can do that if if if they choose to do so we certainly believe that the court that that error by the district court of a mess apply of all fifty s reports along with all of the other evidence and see is there a genuine issue material fact and then go ahead and review the summary judgment yes you can ok a bottom line is meserve patel has been successful in school based on hard work and and a determination to push through and to be a good student as i understand you theory because of this learning disability mr patel strategy for preparing for exams involves memorizing large chunks of the text right so how does does that account for were as i recall there was a certain test materials perhaps a term used in class it was a term that he had in his notes where the exact stores of that term came from he's not sure as as we discussed in our briefing even a professor memorized these exam questions and will use them as examples in class and this or patel believe that that was a term that he used in class that he simply regurgitated out of memory when it came time to term didn't also show up on the internet test bank answer i'm sorry guy who did that term also show up in the internet on a test bank answers something like that it does yes it does and it is provided all over the internet it's in multiple forums it's you know the bottom line you know to what could be universally say well that's suspicious that's evidence of because they were appropriate activity on the exam because mr patel exam four feet away from the proctor was not observed doing anything unusual he completed the exam in the same amount of time as the other students and what the doctor of parliament says in his report that it's his opinion that if patel was copying and pasting this material he wouldn't have had time to adequately do that and complete the exam at the same time as the other students with that your honor i would reserve  please the court your honors it's apparent that the appellant is trying to use this lawsuit as a collateral attack on the decisions that were made by faculty at the university under the narrow and restrain dismissing appellant substantive due process and equal protection claims against the a pelleas the uncontested summary judgment evidence that was submitted by the a pelleas conclusively negates any issues of material fact as to determining whether there was an infraction whether there is cheating that is correct your honor and counsel for the st time here on appeal just raise the issue of whether this was an academic or disciplinary hearing it doesn't  was academic or disciplinary it doesn't matter under our law or all circuit law under our law is other circuits other seekers circuit seem to be developing that this i believe so but it seems established in this circuit u conscience here there is no evidence of that similarly if they'd refused to consider dr coyle the panel had refused that with that begin to approach that's that has never been before the panel it's not at issue in this case the reports are certainly not at issue and to let me just ask you broadly to distinguish mills that ok with respect to mills as you pointed out that wasn't in an academic context it didn't have to do with a student or group but the test sort of reduces to the same one did they act in an arbitrary and capricious way i think i'm right that the test is roughly similar it is roughly similar ok so so if it's the same test why why would we have reversed there and not here here what we have is i think i'm misunderstanding a question you're running with with respect to the standards here substantive due process equal protection we this is we're not looking at procedural due process and there is no legal precedent here that has established that there are different standards with respect is it a reason for us to reverse here on the you know that is the question i don't believe that there is any reason for us to reverse here there is an abundance of evidence showing fat there is nothing that is remotely close to conduct by the apol that shocks the conscience or is beyond the pale of reason academic decision making if anything all of the evidence in the record shows that at all relevant times each of the a brittany todd the investigator the panel members and dr jeff mercer who handled the appeal all it here too except academic norms with respect to their conduct when they were handling appellants case there has been no evidence in the record submitted that shows that they ever strayed from accepted academic norms and in fact the evidence shows that they were very much following texas tech university policies and procedures with respect to each of their actions  what's the underlying infraction was he plagiarizing or was he each cheated and plagiarized and he was found to have used prohibited materials on his final exam but let's just assume he had seen the bubbly answer online before he was allowed to the final exam would be considered cheating and his use of any answers from it i'm just curious why would that be cheating and plagiarism but why why would it cheat to get ready for an exam to just look on line with where they were they were testings so test banks give you the answers to final exams you shouldn't be studying answers to final exams from test banks when you're prohibited from using outside material over there prevented from referred outside which are all course all course long oh and also admitted on the  and that prior to the beginning of the course he was provided with the syllabus by the professor duane jones which indicated that he was prohibited from using any outside materials on the final exam but with the facts is important distinction i'm just a little confused you say on the final exam yes you can't look at google while you're typing out your answers to get an answer but are you telling me that the syllabus said you can never look at google all semester long the syllabus didn't say that specifically your honor but let's let's think about what's considered to be cheating if you're studying from a test bank for the test that you're about to take and and your copying word for word from that test bank into your final exam may not be relevant to this issue but i guess maybe then i would have thought you could look at anything on google to try to understand if you get lucky and find that the test the teacher actually has borrowed the exact question and the answer that's on google sort of then shame on the teacher correct your honor but i want to back up a little bit more so opposing counsel tried to indicate that there's absolutely no evidence here that he's cheated or plagiarized and they're going to launch a collateral attack on the act on the decision that was made by the hearing panel and upheld by dr jeff mercer and that's simply not the standard that we're looking at here today but we're cordless the appellant actually testified on the witness stand that there was nothing prohibiting him from accessing the internet during the final exam there was nothing prohibiting him from accessing his personal files on his computer during the final exam and there was nothing preventing him from accessing the testing if you wanted to and if you look at the evidence in the record which i can point to citations to back evidence it will show that it appears that not nearly ninety percent of his essay answers are copy pasted word for word out of test pants so i mean looking at the standard and whether or not it was there's a reasoned academic decision that was made here and a rational basis for the decisions that were made there's simply no evidence that this was anything conscien shocking i believe that you know review of the comparisons in and of themselves is is sufficient to me the standard of a rational academic decision with respect to whether this individual cheated plagiarized and used prohibited materials with respect to the allegation that he was in a room in a conference room and the proctor was four feet away and nobody caught him on camera and nobody saw it happen well i mean that may be all well and good but there has been affidavit testimony submitted in this case by a poli twain jones who said that he was at such an angle where he could not view the appellant's computer and he did not specifically have over circuit case that is reverse question please why is it that all the students couldn't do exactly what he did there's nothing saying that they couldn't do exactly what he did  nobody was part of that prevented from accessing the internet during their final exams but it was very much on the conscience of the student not to be cheating in plagiarizing on their final exam or using outside materials that were  used google on their final exam by a peer the peer never known to name those individuals and she never did this she later recanted her story so that there was actually no evidence that they had cheated or plagiarize jones went and looked at the seating arrangement for the final exam to see where those students had been sent sitting looked at their final exams treated their final exams in the same manner that he did the apologists he ran it through the turnitin comparison software and he did not find any evidence of cheating or plagiarism plagiarism or use of prohibited materials on their final exams so at that point he did not have the same rational basis for submitting them to the office of student conduct as he had with the appellant in this case do you agree with me that the testing procedure is it is susceptible to exactly what happened here i am sure your honor and you know you would think that we could hold students to a level of you know conduct that they would not be accessing the tests or the enter net and i know for sure whenever i was in law school we were prohibited we had some sort of blocking mechanism on our computers that restricted i was dismayed both you're young enough and i think just i taught about ten years ago the internet was blocked on the last i but i was i was perplexed at the fact that there was busy no blocking mechanism and i don't know if they i've strongly advised that they do have some used to teach in law school and i didn't you agree with counsel opposite that if if we decided that the court should have considered the expert reports and made an error that we can take those into account in reviewing summary judgment i do not with that agree with that at all i believe that the reports are wholly outside the record st and foremost aside from the fact that they never even you know raise the issue of the court's disregard for the expert reports in the district court which they should have and could of on a motion f but i don't want to misunderstand my question suppose we just say look the court should consider them we look can can we say can we just take them into account in all the evidence and say hypothetically we still see no genuine issue of material f because it doesn't meet the da bear standard so i don't think that they would come in because they're not relevant or reliable and we raise those issues in our motions to strike but if there was error even after that the error is harmless because it is entirely outside the record it has nothing to do with the standards that we have to weigh here the substantive due process and equal protection standards does it shock the conscience is it beyond the pale of reasoned academic decision making there is nothing in those reports that even remotely speaks to that if anything they just offer conclusory baseless allegations and collateral attacks on a good portion of this case and number of depositions that we would like to have taken were not taken as a result of that so that was an issue that that is in the briefs but it is clear from the district court record the you will see that discovery was limited in this case were done inconsistent with texas tack practices do you dispute that i don't dispute that statement and again we're not alleging any type of a procedural due process here that this is strictly from a due process standpoint master's accounting program like texas tech and is generally accepted that he most likely would not be accepted into a reputable summer program he has not got out there and is not applying but the reality ok wonderful but that's the final case for the day so we'll stand in recess until tomorrow at nine am thank you