in april of two thousand sustained after being essentially forced from office by some board members and his assistant superintendent not as an associate but discrimination cases been laid out and proud of facial form is is an issue that brings us here today i had intended to start this session by asking the court for  after secondly i'm not going to ask you to do that because i think your time is far more valuable and i think that there is a sufficient amount of of information here for you to determine that this is a case where where frankly the issues of of for replacement replacement might not even come come to the fore i'm reminded of a case that was handed down by the chief justice and the court own june the th of this past year and that is the department of homeland security vs the or regions of california in that case mr chief justice roberts reminded us that that it's very important for governmental entities when they have rules to follow the rules and if they don't follow their rules that tell us why they don't follow their rules or to do a new either is arbitrary so i think that that we're going to find here and hopefully you will have se excuse the supplemental record that where the policies of the district say that these are the proof or the standard of proof that the board level will be the proponents of the evidence that do is follow d substantial evidence rule guidelines find some evidence some scintilla of the wouldn't someone point and then they could justify the their action and go home short she was replaced four times the st time was a was d not oh james a black male she selected mr james of it was up awarded as predicted probably by a former chief justice of jefferson that the endorsee of that they were needed the school district was going to go to school on that and a so they quickly took not to james out of there because he was younger and a and a male she was then replaced by another temporary and that's deborah grady and every grady didn't want to go in because she had a position that wasn't central office and instruction and  curriculum she resisted going in and they only way that busy they could get her into the nation through the end of the school year telling her that was all busy the necessary would be if if she would  they if she would accept the fact that they were going to remove some negative information from her file if and let her return to her or her position as the instructional curriculum director and that and afterwards should she be happy again well that's exactly what she called her for union the union so that sounds like a good deal that she did it all that's in her af secondary experience all elementary experience she had a troublesome past that are owned owned school where she was principal and she was brought in because d of her or rice  that's clearly the the i think the facts we know that we that that there were there is independent evidence of that because  d a the director of case and who was office or suite mate with the elder vera and girl by the time that this happened at the end of the summer of of  or white replacement the fact of qualifications she was not qualified and and although the district court referred to or as dr about race you had no doctorate degree at the interns superintendent interns at the time that she was not renewed so i think that the quote qualifications issue she was not qualified and how do we know that because at the end of the the three years and the judge pointed out  judge pointed out that it took three years to figure it out i think it took three years because we were in this process right here at the end of the three years she took a school that had been  recognized by the state of texas no small feat where it had trance modified itself by under the guidance of ms moves a ross from a low performing school when she went there to recognize school removing her so then we go after at the end of the school year night kane and this is on the record but this is public record is something that can be for good and you could take judicial notice of if you were asked to on the record i guess i'm asking you to you can look at the the records of the texas education agency the schools that wrote it certified and educators are assigned to the state of texas and i believe that this week they will still show you that the raise out of the education that after she left after she was told in nineteen from the metzer school she of i was reassigned demoted d to assistant principal ship another elementary school are at an added elementary school and then she resigned as a basis so that leaves the last the last replacement the last replacement i think is a true replacement but i don't think you have to get there and here's why i don't think you have to get there says that that the board must consider while the magistrate judge saying says that that that they think the evidence shows that that the board review that's not what the evidence shows what the evidence shows is that in part of the transcript during the testimony of ms ross she was asked by by mr conway if he  must consider of the most recent material evaluation the most recent material evaluation was june th two thousand and fifteen judge all right here's the point that i want to make on this if you look at what happened this the quality and this is probably not the right case i think for you to determine whether or not the the rule of oral an issue be broken and and some some missed information about that in the mind of the writer of the of the opinion middle school she was placed there and she was there for about eight years by the st and last  is an assistant superintendent they went when he put her there it was a low performing school by the way everything that said negative about her everything i've said negative about did anything dishonest never lied and cared about everybody in her life i thought those pretty dramatic the superintendent the replaced mackey and i will go back to mack in just a minute but the superintendent replaced mackie in april  so afraid to give her a positive recommendation because she was a good principal he was so afraid of his job at the superintendent and keeping in mind that the record shows he has two daughters that fall fairs well if the family risk a suspect that he was so frayed that he didn't give ross the recommendation she should have he also says in his record in his testimony one last point for get back where i was judge on rod he also says in his testimony  that it was clearly linked and i put this in the motion to dismiss when i dismissed the case against individual damages against mr dr montoya he said the reason twenty one term contract under the texas education code and that's an important distinction to make because for some point an action that was taken against her pursuant to texas law had to be taken by the board of trustees and that's exactly what that you when you get the information it says that she's they didn't know she personally by laid out these policies and had to get that information from others who may have had discriminatory an and the board voted after that hear e so i do feel like there's a complete failure in the record to show that that nd piece of the catspaw theory of liability that is assistant superintendent somehow  employee even those cases if you look at them especially the believe it's the same cloud case the permanent replacement in that case was only in his position party year in this case we had in position st three or middle of the school year but in november of twenty eight dollars seeing and talked to our i remained in her position until the end of that school yard according to the plaintiff's own allegations and her brief doctors already was moved from that position after on her race or on her around her age discriminated against by any of the statements we want to replace with a different race person or that sort of thing while i do believe that she has brought forth the argument in her brief on appeal i don't believe that it's in her life pleading or in her response to the district's motion for summary judgment if there was a live claim that members who took the adverse action that there is be a direct evidence of discrimination attributable to any of those board members and i don't think that there's any evidence of the record that would support a finding on the theory of liability password in or something some of these things seem a little bit someone could say that maybe they were building a record looking for ticky tack violations i'm not saying that's what happened here but would you be able to address the record holistically from the idea that you know it's a whole bunch of little being not a not something that is  you know it's not related to some kind of x stand or something that we see in some other cases could you address that the mr on or at and i think the answer to that goes back to the distinction that texas law makes when we're talking about may contract terminations for a good cause as opposed to non renewal a contract at the end of the contract in chapter twenty one of the education it really makes clear that if you go like you said sort of a stand all or maybe something horrific happens during a contract then the district it's immune from entire contract terminations it has a good cause stander it has to be done in front of an end hearing examiner more along the lines of issues that maybe like you said kind of add up to the totality of the situation where we don't want to renew this person's employment for the following year and it is the instances  i would say that comes into play in this case in regards to the fund activity issues the accounting issues the failure to properly account for and countersigned shaq's and so i would say that that sort of the failures remedia on the other hand i think there are some some issues in this case that if it had to have been met contractor munition that kind of went themselves and one of those issues is a lack of truthfulness in the investigation and the commissioner of education has been honey and it does in time is expected quite a bit to examine exhibit the type of leadership that we want our students to emulate when you start an investigation on someone like that and you're interviewing people like their assistant principal who their just throw those as she was away especially in a situation like this in which we knew we found out during the process that the one of the witnesses were to be financial issues she was an at will employee she resigned we can't investigation if you have a witness available who's going to testify to it and the standard that you bear is is demonstrated by a preponderance of the evidence that there was a policy violation you're probably going to go ahead and put it out there wides said that these people and her principal level would be treated like teachers for due process that is that that principals are treated differently and they don't actually have the same due process rights and they have contracts and so as opposed to like a property was my property interest no your honor that would be different that would be different in texas correct the principle in teachers have the same type of chapter twenty one contract isn't it beyond confusing it with but it's one of our states that that's ok thank you absolutely and just just syria to rate the texas state law is very clear that there process complaint feels pretty clear in the st instance because she does not have a property rights issue in this case because it was a non removable on appeal and she has raised several complaints about the process she was given  complaints that mr oz's raises in regards to the process that was given her i think it has to do with the fact that it was an open hearing and so are you just going or i or two that hearing she actually requested in that we've argued that the factual findings of the commissioner of education should have recluse of a and that she should be collaterally is stopped from attacking them in the district court judge sort of stuck to th argument a little bit and i'm not sure that he was wrong to do so because i think in this case there is such a complete dearth of evidence as far as pretext as maybe just maybe he's where that issue has to be affirmative jurisdiction as well with respect to discrimination claims in the district court as we know granted summary judgment in your favor on the discrimination claims and my question is simply was that was that a technically correct disposition or instead should that if your court have dismissed those claims on jurisdictional grounds of my understanding is that a court is supposed to make  determination that it does have jurisdiction st so i think technically that probably would have been the correct order seatings the district court didn't know i think in a note that if there was that based on the supreme court's basically treat it like a motion for summary judgment i don't think so he determined that it would also fail on the merits i don't think that's problematic but as a technical point i would agree that the court probably should have initially found that there was me and judson it means that that that they will weigh and that they will they will analyze i think just as mr chief justice roberts points out to it's a reasoned analysis that goes back to the old johnson the branch case out of the  he wouldn't do it instead what he did was after her he had her her attitude towards ross examen what he did was he demoted bera he took her out of charge of the secondary principals put her in charge  primary principals elementary principals and he put the ms next year robinson his associate superintendent in charge of the secondary staff also in terms of race on the board absolutely bear says that the reason that she got so offended with mackey was because he preferred blacks over brown's that he treated her he treated ross more favorably than he this isn't her deposition he treated ross more favorably then he treated  next to her father melinda and are all still in his father and daughter daughter and father were the ones that made the decisions made the motions in the secondary motions a nd motions to non renewal mollett so gross i would say it's all over the if they could call it it could have been an independent hearing examiner they could have had the rules of evidence of they could have had compulsory evidence but they didn't and the reason they didn't want to do that is because they were stacking the deck when did by the way she was going to make that she learned that my client was going to be not renewed she says in her testimony in her deposition and that the she learned that the same day that that there was a principals meeting on february the rd that's the day before my client was suspended that's the st day of the ms hopkins was was interviewed and why did hawkins not show up why did hawkins decide to read retire because and then starting in the fall now keep in mind too that all of this how do you know race has anything to do with this is what's you need to wrap it up it's you time has expired last month left statement look at the evidence in the that we presented to you in the