alleging first amendment retaliation from his school district and as well as several teachers and and coaches and other staff and he much of the whether someone who was a minor at the time can recover for a first member retaliation when the retaliation was largely for the speech of his mother which was made on  problem with that is affected the facts he deemed admitted were not identified in his opinion before getting into the argument these two main arguments i would like to draw the court's attention to a real twenty eight day letter that i wrote last night and filed versus burns and in this case why this is important in this case is because the vandyke case applied this court's decision in british versus gilbert which abrogated the public concern test for first amendment retaliation claims the vandyke court of played the bridges case to a foster former foster mother who claimed that her foster child with was taken from her fs because of in retaliation for her making a line reports and found in court actions against the natural father of the job and in this case in the briefing the the briefing went back and forth largely on whether mr friend speech or his speech made by his mother on his behalf wasn't an issue of public concern and so i i write that letter to say that that that's the inappropriate test and that even though bridges apply to a prisoner context the the vandyke court applied it also outside of the prison context of the main point being that that if it's not a public employee suing a government employer for first intimate retaliation the public concern just doesn't apply because there's different interests that government entities have in that have to be balanced against the free speech rights of public employees and the public concern test distinguishes between a speech that an employee makes as a as an employee versus speech that the employee makes as a citizen that stiction does not exist outside of the public employee context because and so as a result then even speech on private matters can support a claim for first number tell you should and so even if we contend also that the speech that friend and his mother made wasn't where on matters of public concern but even if even if this court finds that they're not she still can maintain an action for first minute retaliation i'd like to get into the the novel question that i alluded to in the beginning which was that whether or not he can recover for retaliation when this a lot of the speech was made by his mother and i'd like to point out when when his mother had  had engaged in the speech and petition that we claim mr friend was retaliated against for mr friend was a minor and his mother was going to bat for him against the what she deemed to be wrongful actions taken by the school district and harassment and so forth and most most prominently removal from the basketball team when he was a  star player and head was seeking skull festival scholarships and so forth and so the district court really was dismissive on this it simply said the speech was his mother's not his  out there wasn't case law really that addressed why he couldn't recover when his mother speeches from his mother on his behalf converse lead i believe that this court's line of cases can have a claim first member of television when the speech was made by by a parent on his behalf in the cases i cited in my brief were hedges versus what kind of school district which is a case involving a student who wished to distribute religious literature written by nine students to her classmates and there was a rule of the school district saying that students couldn't couldn't be materials by  district in that case the case felt similarly that students distributing materials prepared by others was a form of the student's own speech and expression and we would there's not a case on point with respect to whether a parent complaining about how her child was treated can be a source of recovery for for the for the student excuse me i did cite a case called mostly of which is where the mother was actually retaliated against for speaking out on behalf of her son but it is a novel question that i believe should not have been dismissed as it was by the district judge and i feared another the mother was the mother file  he wasn't a minor when he brought the suit but he was a minor when his mother spoke out on his behalf and he was a minor when he suffered the retaliation so that we believe these facts to present a question decided that the rule fifty six that the key fairly certain key facts in this rule fifty six statement were were in adequately supported to begin the district doesn't tell us which facts are admitted which of the plaintiff's additional factor which is the claims denials of the defendant's facts were to be deemed that made it so we have to only guess at which ones which ones if he's referring to just a brief glance at the record which show you that in actuality the facts that relate to the critical questions which is whether such as the issue of his removal from the basketball team which present an issue of disputed facts that being an act of retaliation we allege as well as the issues with what we believe to be harassing investigations of his residency but those that those facts radically supported the denials to leave school districts facts did have citations to depositions and page numbers of the depositions and in denials sixteen thirty five thirty eight fifty nine and sixty eight and sixty nine in the ample citations to depositions in the record and to page numbers are supporting that the fact statements made in in numbers two three four seven twelve sixteen seventeen eighteen to twenty three twenty six th seven thirty nine and forty and again the use these were the statements that raised the disputed fact issues regarding b of the key elements of the case court details the paragraphs in the fifty six point one statement where there were problems which paragraphs were deemed admitted as a result of which types of problems where there were a number of different issues with regard to the fifty six point one statement those are addressed in detail in the court's opinion i don't think it's any secret which paragraphs were deemed admitted the court specified the paragraphs on page three of the appendix you can find that that information a plaintiff largely failed to comply with fifty six point one in any material respect and that's why the district court properly exercised its discretion to deem those facts admitted they were supported by the defendants and to strike those facts that plaintiff submitted that weren't supported by proper record citations again and this is important standard that decision by the district court is judged on an abuse of discretion standard and the court exercise the first amendment claim that the council spent some time i'm in the new case that was cited this morning i don't think it makes a difference to the outcome of this case whether or not the speech is on a matter of public concern because this council acknowledges none of the speech that's really the crux of this case was engaged in by the plaintiff himself in all of the cases he cites don't help they actually heard plaintive the mostly cases the court pointed out the mother in that case was the plaintiff not the child  in the miller case which did involve conduct by a student that student a fourth grader actually engaged in speech and conduct that student himself mothers trying to speak to their children a regular basis they threw they do but children may not always like that or like to have their screeching treated to the numbers from our mothers yes you're right and i will agree with that but in in miller the child himself attempted to pass out or get permission from the school to pass out some religious literature in hedges same thing the child herself passed out something from her church a document called issues in the answers of the children in those cases were actually engaging in some activity some expressive activity not only was plain to passages in this case not engaging in any activity himself now there was his mother in terms of any protected first amendment expressive affectively again we think it's a failure of proof case with the record as it stands for the summary judgment material submitted by prayer there is no evidence and no facts to support the claims that the plaintiff devon hodges engaged in any protected activity and that the school district acted in retaliation here yes we have come for i just say who has not reserved a couple of minutes a week just again and with nothing a reaction about the district's behavior in this case no facts to support any finding of rational or abusive or certainly no discriminatory behavior and not every case needs to be a constitutional case when something doesn't go the way a person wants  local rule twenty eight j s will be done after oral argument and after the briefing has been filed i would point out that the plaintiffs did not file a reply brief despite having been given numerous extensions to do so in various extensions in addition it's limited to three hundred fifty not live with the custodial parent when we were given that information we ruled him out we agree with that statement he was eligible other than for a brief ten day period when we did not have the correct information that the that his parents that he had been living with had never been married then that in fact his mother was his because apparently after that he was eligible and there was nothing more that we could do for him all the allegations about complaints and first amendment speech the conspiracy that we supposedly engaged in that happened after he was eligible and our powers are limited to eligibility or not we don't have as to what happens  so i would submit that the under the sole claim against us conspiracy there are simply no facts there's no facts alleged there is no facts supported it's just not there as for the immunity argument which i'm sorry  also there that is not included in the brief and has been waived muster any questions thank  just to point out a couple of them a couple of points that were just that were made by counsel's the dischord opinion did not see it some specify which paragraphs it was steaming admitted what the district court did was it gave the numbers of the paragraphs to which the defendants objected and then made a general statement about about there being terror certain paragraphs that were  you know we took a guess at it in our brief by pointing out that there were numerous paragraphs with so i think it's the positions and page numbers i'd also like to address the the comment about there not being documents filed and that's because the the to the record were to documents that the defendants had already filed in their most for summary judgment so we simply cited to the same documents and there's no i don't there's nothing that the court would gain by having two copies of the same document simply cited to the documents already in the record as far as on the issues of speech and the as we pointed out our brief some of the speech was by mr friend himself however th the larger question is of the larger issue is that he did adopt the speech of his mother and he can adopt that speech as his own and therefore have a claim for first minute retaliation for adopting that