good morning your honors that's may please the court stephen c a totally representing the appellant from the law firm of catoosa and see a totally for us a tough act to follow your honors but i will proceed to the district court and i granting this motion for judgment on the pleadings found primarily on the issue of collateral a stop also i'm going to address that issue first we take exception and find error with the district court decision i collateral stoppel in some respects we think it's just too broad and too far reaching with regard to how the court applied collateral stoppel basically the way i look at it what the district court is doing is really giving a a free pass or a blank check to the hearing officer in this student's disciplinary hearing by saying whatever decision they made at any point in the process that decision can't be challenged in federal court under any type of procedural due process claim because they made the decision and now we're collaterally a stopped from challenging it becomes like a closed loop your honour's we can never  quite break into that closed loop based on that circular logic that's not due process it's a no win situation for the complaining pardon for the student it's a lose lose for the student it just goes too far to say that and any of these quasi judicial proceeding such as we have here and there's many different varieties these quasi judicial proceedings and not exactly sure if i would elevate a school disciplinary hearing to that level but leaving that aside for a moment no matter what this hearing officer decided the court is saying you can't we argue it you can't revisit it they've decided you're collaterally a stopped it's too broad it's too general what specifically was not addressed  give you another example we also have the bus video which is you know exculpatory evidence but that was presented in the second hearing in the second hearing which by that point my client already lost on the first hearing i think at that point the process was already  tainted but let me give you i think an even better example one of our allegations is these ex parte communications between they hearing officer and the school administrators and then with the board of education expert to communications a judge in a criminal proceeding having meetings with the prosecutor and excluding defense counsel really it's kind of a rough equivalent now that wasn't necessarily decided or fully litigated in the superintendent's hearing issues were  i was present for at the second hearing when the hearing officer actually was in the conference room and this is just at the school it's nothing fancy your honor was actually in the conference room with the superintendent and several administrators and were in there for some period of time i have no record of what was just notes they were talking about well good question and isn't that a part of the issue listen i don't have a record of what they discussed i'll assume it was more than just whether the weather was nice that day and you think he's go as today you know i think it raises lots of question i don't have notes from that herring from that communication i don't know what they were discussing but not only did they do it that one time but then when you have to do this appeal to the board of education which is you're really only appeal right there again we're sitting outside where the board is and the herring officer is in there they should have been present the hearing officer it's an appeal of that decision and the hearing officer is in there telling the board of education what's going to take place again i'm not in the room with what she said to ok i know she's in the room i know they're in there for some extended period of time i don't have a record of what they're saying there would be no record there's no process or procedure for getting that record but it does raise some suspicion some concern so what's the point of them bringing a lawsuit on that i'm entitled to discovery i'm entitled to take depositions i would take the deposition of miss wesley and say when you went to that conference room what did you discuss and maybe what she'll say to be able to do that in article seventy eight proceedings i don't believe so your honor let me let me address the article seventy eight proceedings and article seventy eight is a procedure to challenge what the municipality the school district is doing ok we're here we're suing the hearing officer she's a private individual we're suing the hearing officer  could it you could have brought action against the district and the superintendent couldn't you what we did bring that action your honor and that was dismissed by the court and i've always thought that the claimant gets the hearing officer was the better claim so dismissal of the parties correct your honor i think the better claim is against the hearing outs of course she's the one who made all these decisions she's the one who really drove this train she's the one who excluded and with how the evidence she's the one who denied the discovery in article seven it is only against the school district it only and by the way the only remedy we would get as the just a court said would be expungement of the record i'm not quite sure how much of a remedy that is the students graduated at that point it's  moot i think it's just getting crumbs off the table quite frankly what we're suing here for money damages and attorneys fees and this is the only process and procedure that we can seek that we can't get that through an article seventy eight against the school district we can't get that through an appeal to the commissioner of education which is also against the school district this is our only remedy this is our only way to try to remain just so i'm understanding so the remedies are different and you could not obtain money damages you could a declaration of procedural due process deficiencies and expungement of the suspension as to the school district only i would agree with that your honor asked of the school district only but i think this is a slightly different thing we're seeking here it's against this individual who made these  we should take a moment take a step back and actually consider what exactly she was in and her function underneath the education law new york state she is a super intendant designee here appointed there's a powers that were generally would be a fall under the superintendent specifically but they're designated for a hearing officer for a variety of reasons and as i'm sure mr tolly would tell you as well this is very common with the school districts in new york he also used the words of her decision many times now it's very very clear by the new york state education law that what she does is she yes conducts a hearing and in this case two hearings after there was some some concern from the student and his parents that additional  attorneys that they know or maybe other professionals in the educational her fear field with this experience or very often the school districts i work with used the labor relations specialists from both cs to step in for whatever reason the superintendent's busy or whatever particular reason this is a hearing the superintendent could have conducted absolutely and absolutely and it's very clear and i just want to make sure that you know i point out the language of section thirty two fourteen of the education law this is an advisory opinion that the superintendent may accept all in part or not at all so the decisions that miss westling made the decisions were actually recommendations that are adopted by the by the superintendent and the therefore by the district and as we have already discussed the district and the board of education who also ended up listening to an appeal they also considered this information as well and again they made these decisions specifically not at the hearing officer i think that's a very very important distinction in turning actually back to a question that judge attorney ray specifically about what the evidence specifically was not addressed i think it's important to there was two hearings in the second day of hearing he was there you know he offered witnesses he was allowed to offer testimony on behalf of myself and they're allowed to present additional evidence and evidence was considered  after the decision was was made by the superintendent and an appeal was made to the board of education there was additional information back in february of two thousand and fifteen i believe from account from counsel's letter to the board of education pointing out very specifically that they were concerned about procedural deficiencies at the hearing as well as concerns and requests that certain what they claimed was exculpatory evidence be reconsidered the board by all  means conducted their hearing and that's a conducting the hearing because the proceedings here specifically are there done in executive session there are no presentations specifically by attorneys on behalf of the district or on behalf of the student who is appealing this as well there after there was a stay that was requested when excuse me once the board specifically adopted the prior decision by the superintendent there was an appeal to the state commissioner a stay was requested it was denied but it was still ongoing and there are specific state commissioners decisions that have specifically cited an address with this certain instance when you're dealing with the senior and disciplinary proceedings that once a senior graduates it is not in fact moot just because that person has not been able to perhaps enjoy going to maybe their prom or enjoy the privileges of attending a senior trip or the like like that they were still able to receive their education again mr and mr wharton has graduated and he graduated on time from high school and in fact he did have that remedy to be able to continue on with his appeal to the state commissioner on his own volition it was withdrawn sitting in his opinion frankly it was moot again the state commissioner was so just in terms of the facts didn't didn't he miss most of much of his senior year i actually did miss some of the senior but there errors was actually opportunities and offers that if he attended specific counseling including i believe anger management and the like that he would actually be able to come back but again that it should be noted that all procedures were followed as far as providing him education that is required for when students are out of school for various reasons disciplinary health or otherwise he was provided adequate education and that has not been part of the case or that it would ever counterweight the additional evidence against the student that he was in fact part of this pretty heinous attack of another student if you bring it to the attention of the other decision makers even if she herself was not you now that that's an excellent question thank you and my apology i don't mean to interrupt so how it actually works in dealing with school boards and i have been myself in this position is a hearing officer prepares a record specifically and it's all things that are admitted on there can be you know transcripts of the proceedings it is whatever it documentary evidence or videotape evidence or whatever evidence may be that is entered in is then therefore transferred to the board of education there is no opinion beyond the written recommendation that was offered to the superintendent that is the only piece of information that was not specific discussions about you know there are any questions about what you know why she thought a certain way or why she might have perceived the evidence in in a certain light beyond what was an  discuss she was only poll only thing that was presented was the actual report that was it and the record within itself there was no other discussions about the merits of the superintendent get the video yes it was made available to superdome yes yes absolutely the video was actually a bus video that was district you know is that district property so that's for that's where it came from specifically so if i'm if i may continue specifically about the article eight the availability of a bell ability of an article seventy as a proper remedy i noted in a paper specifically that he is seeking money damages against my client i think it's very clear  be this case be dismissed for proceed excuse me i'm collateral stoppel but also because of the merits going specifically to the procedural and subsequent due process here if there's any other questions at this time i'm happy to answer them otherwise i'll my time thank you thank you let me reply your honour's to just a couple of points first the issue that the hearing officer was only making a recommendation and that the superintendent made the final decision i think to a certain extent that's exactly our point adventure issues she was the decision maker she's the one who withheld the bus video she's the one who made the decisions on whether the bulling report of the folder would be admitted she's the one who had the ex part communications to get she's the one driving the train on this with you in the first hearing yes in that first hearing my clients were not represented by counsel would people aware of the bus video that yes let me add a little context your honor and that's why there's so many factual issues here these other boys who were involved in this incident which my client has categorically stated he was not a part of these other boys are also brought in for superintendents hearing and suspend they actually use the bus video in those other hearings because what's happening in that bus video the boys are admitting it that they did it now in the bus video the boy very clearly uses what does it say the one line we keep going to in the bus video is when they say skyler skyler you missed it so the bus video is these boys on the bus leaving both these to go back to their school talking about what they just did and then skyler walks on the bus why does he walk on late because he's out back cleaning some equipment from his he's class he walks on the bus and they go skyler skylight you missed it to us that's exculpatory evidence that should have been heard they had that video they didn't use it for the first hearing my client heard about it from because also there was a criminal piece to this and heard it from like the dea assistant d a somebody from the state police saying you know there's a bus video on this really they didn't know it they requested it they got it they retained counsel we had the second hearing  lly even the second hearing was tainted they kind of shifted the burden of proof over to schuyler it's their burden to prove but they conducted that second hearing like somehow he had to prove his innocence ok you want to show the bus video they showed the bus video she completely disregarded it so that's just one piece of it that's also when they had the expert to communications with the superintendent which we found to be improper and those are facts which have to be accepted as true for this process and we'd like to conduct discovery on it  you're right he missed his entire senior year at this happening around october you only get your senior year once you're on or it's a once in a lifetime chance he missed it he don't walk across the stage to get his diploma no senior class trip nothing it's gone forever it's lost forever for something he never did for something they really just railroaded him through and we've been trying to hold back that train ever since and really this is our last stop our last chance thank you your honors