you know the court has a lot to read but the case is does raise an important issue of law and i wanted to have oral argument to address that issue of the in reviewing the motion to dismiss the transcript of the argument  for i saw that we reminisced about our own experience with getting better grades in school and just go for it said that he would never consider a lawsuit about that but counsel let me just cut to the chase it seems to me that there are some potentially crucial allegations that are missing for example i didn't see an allegation concerning what plaintiffs a viewpoint is and really there is no viewpoint expressed by the teacher either other than surprise which could be either pro or anti the president there is no allegation that the currency of the social was it was something that was not applied equally to other students i didn't see an allegation that the quality of the final paper was good they had a number of mistakes that he made  aware the it was a complaint that was filed and that complaint was dismissed and i filed them in a complaint i'm talking about the manicure right and this is a for and i asked for an opportunity for leave to amend the comments and the decision that were the basis of this concerns that were raised for example the political position of the paper certainly the position of the teacher as being anti president trump there's nothing in the first amendment complaint that suggests that she she made a comment about how she was had was on a t v show i realize i realize we're in hollywood but i think that could be construed as a negative comment about the president and again the the the allegation that in context it wasn't a good of a comment about the president and council in paragraph eleven of your amended complaint your client was told but his topic was too broad to recent and too biased yes ken does the does the teacher have the right to limit the topics so for example could it could a teacher say i don't want any topics that are overtly political because as a prophylactic measure because i do not wish to be put in the position of grading your politics and i also for that matter don't wish to hear any topics that relate to religion because i don't wish to be put into in some sort of a compromising position so you may take any other positions but nothing on either politics or religion and the teacher lament that well your complaint also alleges really like an answer to a straightforward answer to the question does the teacher have control over the classroom such that she may say there are certain topics that are not qualified topics for this assignment including topics relating to religion or politics yes did the teacher do that here no not when she told him that is topic was too broad to recent and too biased well we don't know whether that was a reaction is particular topic was resent changed or whether that was a policy if that were the policy it was applied across the board of course a teacher could do it but we know for example from the requirements of the odyssey that different standards wait why did you did you allege any place that anybody else did a political topic had other evidence of other papers that i would present in an amendment that is before the court what the content of those other papers is there's not every may i ask you a question about falling on judge by these questions how do you distinguish your case from the six circuits case and settle versus the well in county and settle the student had approved topic and on our own without asking permission from the evidence of discrimination other than the fact that the topic that was eventually chosen by the student in that case was controversial but there wasn't any other evidence in that case to show either  he would receive a failing grade as the topic itself was not acceptable so having alleged that where's the bias where's the where's the first amendment problem she told him this was not  conforming topic from the outset and he persisted he would receive a failing grade but the question is what was the basis for that combination why do why do why do we have to get into the basis of that if she was told that if you told me from the outset that she can disqualify for example political or religious topics well but we don't know that that's what we don't know what we don't know that and how do we have a complaint because we have evidence that the basis for rejecting the student that his topic was to broaden to reasoned and so forth that her other reasons given for the failing grade were pretext yes we have  we have pretext or reason which actual reasons i gave an example of a professional reason which was that according to the instructions that were given they believe are really are if we were supposed to include a poem or a what's an adequate complaint and obviously if i didn't allege any conduct other than a recites the elements of the various claims that the court would have grounds under ashcroft and so on to re about discrimination when you have to raise a tribal issue this is pacific shores properties worse a city of newport beach and a plaintiff had provide very little such evidence to raise a genuine issue of fact any indication of discriminatory motive may suffice to raise a question that could only be resolved by a fact finder or the pleading stage we're not even to the summary judgment stage and obviously there would have to be a lot more shown to get through summary judgment or some other  city in this case but i'm told that the paragraph sixteen that refers to the other student who successfully submit the paper on a social topic but we have no idea what that social topic yes well again if if the  don't i think i should have an opportunity this is my first crack at it if i were if we were to get their issues raised in the initial motion to dismiss that i address and i a new issues were raised in order that very high and i think there certainly seems to be a rational basis for a teacher to say i'll take a topic something on the related to the environment of the environmental future is quite controversial first of all the secondly the point is that paper sailed by even though it when you were proposing to the district court and amended complaint you did not attach a proposed amended complaint so that it could actually be seen what the yes that the court will and upgrading these papers you've also got about an equal protection claim right and it certainly other students could bring an equal protection client and even if it wasn't if there wasn't an allegation based on race or sex or gender or something else this court would still have to review that paper to see whether there was satisfied minimal rationality wouldn't it that would require so that might require us to grade the entire the entire set of papers over again it might  focus your butt on the sense of well what limiting principle is there then in our constitution our law between the court having to teach every class in america great all the essay papers if i could get out of grading essay papers and law school i'd be delighted to shove it off on a court especially i could sense stick with my colleagues and i have to do it myself well i understand your honor but i think i i think that the equal protection argument is a much more difficult argument i don't think the i don't think that the the review of the papers for the purpose of the censorship complaint is more about the circumstantial factors that weigh in favor of there being censorship i don't think it's a question  yes i am we appreciate that thank you well i hear from the happily and mr brown your at the outset your honors did ask mr most whether teachers have a right to limit or dictate what topics or any other needs of the paper to comply with their directions this plaintiff this appellant violated several of the rubrics instructions not just one and the one that he's focusing on which is this political bias as the court indicated there was just one fleeting comment at some unknown time where many people were shocked about president trump a t v star becoming a president that in and of itself  enough to allege political bias and the reason why this paper failed so you know that there is some cabin ing time period right november to january correct and so are you that that time period is too long to support and inference of a nexus or do you not make that contention well it wouldn't just have been from november to january your honor it could have likely occurred during the semester while the paper was still being graded the paper itself was the final result there were several other instructions and minor league rated paper parts of the paper that were graded for instance  introduction of the topic that's when the teacher said this topic is too broad maybe think of something else and that was going to early on correct and then there was also several outlines that needed to be submitted of what the paper was going to address and again the teacher at that point this was all actually addressed in the original complaint when the paper and attachments to the paper were included as an exhibit so this was actually considered during the original complaints motion to dismiss but nevertheless the teacher did pull appellant aside several times to say look let's work together you're going to fail this paper not because of any political bias but certainly out of a concern that he was not following the directions of the room i have a couple of procedural questions and the first is you you for alluded to the original complaint but it has passed out of the picture so do you agree that all we can look at now is the first amendment compliant yes your honor and i was only bringing that in as context however ultimately in the ruling on the first amended complaint the district court judge did indicate in his written ruling that opponents counsel indicated that there were other topics that may be able to be introduced if he was granted another leave to mend that was actually my second question that seems to me to be the most  mr most counts counsel currently was brought in on the case he indicated the motion to dismiss of the original complaint that he knew of several facts and wanted to include these into a first amended complaint at that point school was already about to end so all of the facts that were necessary for counsel to plead in on and on behalf of the plaintiff would have already been known therefore that's why the court granted him leave to amend what he said he had the question and those should have been included in the first amended complaint and they weren't fully and actually you know non conclusive really included in this complaint he made speculative include clues re arguments and allegations in the first amended complaint when he should have maybe just added more factual allegations to allow the original underlying core and now this court to and why they're alleging political bias so not do what he did what the district court did do is say that that the facts in the amended complaint make it equally plausible that the plaintiff's failing grade was the result of plaintiff's refusal to follow directions and not because of defendant's alleged also making it a plausibility not a proof standard if the court thought it was equally plausible why does that not satisfy even though the court clearly was inclined to think that this was not a case that would eventually end up successful yes so i think that portion of the complaint was dealing with the differential treatment that was given to the student when alleging that another student's bibliography maybe might have given more credence than his or if another topic was just his was more scrutinized but ultimately the political bias comment the allegations to try and support that which is really the crux of whether or not a first amendment violation did occur he didn't plead that he didn't the court found that they were equally plausible under twamley and what should the court have properly done then there might be an argument for leave to amend at that point however i just think as taken as a whole that wasn't just the only thing that was being focused on that sure there is differential treatment and maybe there is a potential that one person's paper and another person's paper might have been given different treatment for a number of reasons but that leads back to your honor by these comments regarding well then this one jacks the court improperly into grading and reviewing papers basically for an entire tenth grade honors english class and that might student paper that a student could be punished for his or her viewpoint expression or viewpoint oh no not at all i think though at some level i mean at some level of a number of more specific or at least sufficient allegations to actually bring to light a first amendment violation and that did not occur here even if he were granted leave to amend the appellant's opening didn't even include specific facts to tailor what would occur if an amended complaint was a chance to amend was provided he simply states that will allege more facts to show a lopsided you know  the reason equally plausible is that while it doesn't sound if you take the comment of the teacher and you construe it as neutral it couldn't work if you take the comment of the teacher as demonstrating an anti president trump bias then the grounds that she used to fail him while not failing others similarly situated could be construed as pretext now i said that the way we would do the analysis that maybe the way that the analysis may be it may be done however again there are other allegations in the complaint that essentially plead him out of his case and that was actually address like what again that he brings up these differential treatments of other students but then doesn't shed light on what occurred with those students papers other than to simply allege one person was a lot of bibliography he didn't allege what that paper social topic was he didn't allege other reasons why that paper might have passed while his failed he simply just focuses on allegations that are conclusory and based on or will create a speculative and inferential leap that is not required at the pleading scenes or should not occur at the pleading seems is that not the stuff of summary judgment it is however again at the pleading stage there still should be enough facts that aren't speculative in conclusory especially against a public entity like the district the public entities are required to read complaints or are plaintiffs who sue districts are supposed to plead with more specificity so that we as a or a public entity know exactly what we did wrong to try and remedy that before it got to this pleading stage or now at an appellate stage so wondered humbly in a baldly pleading acquirements or higher as to a public entity defendant i believe when read along with the rights of the public and any under state law that there should be some treatment allowed or some requirements that a district be given more information than just conclusory allegations that are just are leaning towards what the plaintiff wants the court to believe rather than what actually occurred thank you counsel mr most are used to your time to amend should be should have been granted and then the complaint judged on the full scope of the facts that the plight of could present it's unfair and contrary to the rules to knock him out of court entirely based only on a pleading that he i had a chance to do it once but i learned a lot from that process i want to go back and fix it and i think i can and i think the plaintiff should have the opportunity to do that thank you