allegations he was a victim of bullying harassment creating a hostile educational environment we plan a cause of action pursuant to section five zero four the rehabilitation act of one nine hundred seventy three and the stand your review in that case regarding hostile education environment or davis versus munroe in its project we also made allegations separate and apart from the above that the school's action a mission very very similar to the ones we that were part of the first cause of action likewise rise to the level of a gross mismanagement or gross misjudgment of the child's educational plan and in this particular case the facts also give rise to what's called a gross deviation from professional standards of care and then we find the analysis going back all hundred two in a case called young bird versus remailed also monaghan versus nebraska and in this case and this circuit sellers which talk about the gross deviation from professional standards of care third and separate apart from those two section five or four causes of action is one that we brought far forth on behalf of his stepfather t l and this we believe actually is an issue of first impression for this court and i can't promise that but it looks like it is but in any cases of one of great importance and public policy implications for the circuit because it relates to the issue of what are the standards for retaliation for a claim when the person is advocating on behalf of their child and they also are an employee replete throughout the records that show that the school district clearly not only was on notice that he was arguing and advocating on behalf of his son and in fact i would almost say if we go back into the record i don't think the school district has ever alleged he was not advocating on behalf of his son your honor and the respect of all the issues we've got we got a lot of issues here i think the one that the school district has never argued was that he was not advocating on behalf of his son so respectfully i would say as you asked me that do you have anyone have any specific questions they would like me to address before i ok well i will i'm already five minutes and almost six it's a large record there's lots of issues to speak in regard to the first claim is a hostile education environment it relates back to the issues of the child have a disability which seems to be uncontroverted when we believe in harassed because of that disability there's argument that he was not was a school  harassed on account of his disability the further the fair answer to that is yes and no because part of the problem that relates now to the deliberate indifference issue is the duties at school districts have to investigate allegations when children are bullied and say he was bullied and harassed unlike adults in employment section where you know that the adult has to say listen i need a fiver for an accommodation the child's duty of the family's duty is to come forward put the school on notice that he or she will be in bullied harassed and then the school has a duty to investigate those claims and to find out what is causing those issues just so and i just want to be really clear on this because i was confused about it just in the breeze so your position is not that the school district actually knew about bullying based on disability your position is that they knew about bullying and at that point it was their obligation to figure out whether or not it was based on disability actually they did know and they were on notice that he was being bully and harassed because of disability in fact there were two instances that we spoke to where teachers brought up issues in class one was the teacher brought up in front of all the other students in class have you taken your medication today which clearly raises an inference that when kids they're after bullied him they did it because they knew he had a disability another teacher would be back up a little bit one of the other issues that occur is that because he was a special education student he got many accommodations in the classroom he had a scribe that would help him write things out he was able to be given more time to be able to complete some of his assignments he was able to leave class early he had a number of accommodations were observable and obvious to other students so when he was bullied and harassed and he was called special ed and he was called a retard and he was called other names that relate back to his disability i think clearly those things we believe create with the court's permission even the letter brief to say these are specific times that the school district knew the school district did know that he was bullied into rap because of his debil disability without a doubt the question that related question is once they knew that when they deliberately indifferent what did they do and what did they not do first significant period of the time they did nothing the school district failed to keep any records as to whether or not the child was being bullied or harassed the only records they kept were on perpetrators for significant period of time they did nothing and nor do they even say that they did because you have young man was getting harassed at school he was getting beat up outside of school there were reports the police the same kids that were bullying him outside of one of the issues that came up is like a something occurs off campus there is no duty for the school district to do anything to the children for things that occur at occur off campus granted but they were on notice as to the incidents that occurred off campus because the parent told and there were police reports the issue becomes that ties it together whether the same kids are doing it and the answer is yes it was so i think that's the answer there there's no duty necessarily to investigate what happened outside of school but once that comes back into school clearly there to studied incident because you're trying to establish her judge heiresses question you said they need to have actual honest with us and they actually did respond they investigated but it wasn't adequate and then you say there was no investigation this child had been bullied harassed since middle school when he got to high school he was bullied in her continuum you don't get to say he is someone who's just been well ahead of rads what you get as you get an opportunity to identify a work where it was he was bullied or harassed where the school then with knowledge will whatever some act it was some type of indifference upon knowing or having something that they should have known i guess even we take that stand and didn't do it today you don't get to say he was just bullet in rastan he was pushed aside when you talk about the school because they have specific responsibilities they can't be allegations the specific was that you are not a fishing expedition once you make your allegations you then find a use of the civic ledge those correct and those allegations of significant period of time and nothing was done after a period of time the school district did begin to investigate the claims and then there after the argument is that the all they did was really punish people that they didn't follow any of the standards of care set forth by the office of civil rights department of justice their own school board policies professional standards of care and we have an expert report and they have no understanding of policy that will tell me what it is you're seeing the that well when dealing with a child with special education one of the things you're supposed to do is to provide psychological services to that child you're supposed to provide counseling services to the child you're supposed to provide social skills training to the child you're supposed to follow the child and assess how well or how poorly the intervention at the school has provided how effective it is you said their response was an ad that's correct your honor you they should have done more correct your honor but you also say this i do want to be as clear about this is i can you also say that in the record i'm going to find both the allegation and something to substantiate it  in difference and what and the gross deviation from professional standards of care under section five hundred four there is a cause of action based upon hostile education environment that follows a deliberate indifference standard in davis and it's progeny under section five hundred four also there's a gross deviation from professional standards of care that follows young burn versus remail monahan versus nebraska and seller and has been adopted by this court and then last is this other retaliation claim which is section five zero four it's not so hard for courts to make these distinctions your honor we see that in the fourteenth amendment all the time there is a due process claim there's a substantial due process claim there is a base upon scrutiny there may be a reasonable or rational standard or maybe an intermediate standard so section five hundred four has different types of causes of action and each one has a different standard and one of which is deliberate indifference  you just totally lost me but it's probably my fault that i'm not following this so you're saying that when the claim is that this allowed student on student harassment to proceed that's covered by the deliberate indifference diva standard when it creates a court does set forth a bad faith slash gross misjudgement standard but that isn't the denial of a provision of a free appropriate public education or faith context when you look at sellers in every other  harassment and i think that's the clear distinction that has to be made in this case granted it's not been clearly delineated in a published opinion of this court but i think it's clear every court of appeals has considered the issue has held that the davis standard applies to student on student harassment there was no failure to provide a faith in this case we are you below me argue again here that if there was such a claim those claims have to be exhausted administratively under the i d e a and i think the record is absolutely clear that the school system responded to each and every report of alleged harassment or bowling that was brought to its attention is also used to judge biggs point there were at least two incidents off campus that  appellant provided evidence that existed but there is absolutely no allegation or evidence that they were ever brought to the attention of the school system there was an allegation that one of those instances was brought to the attention of the police officer who worked for aberdeen in the city of aberdeen who also was assigned to the school as a school resource officer but the police officer was not a school board employee there was no allegation much less evidence that that police officer reported those incidents off campus to anyone at the school  the courts have held that deliberate indifference doesn't exist even where a singular student harasses another student proper two years in some of the cases cited in our brief getting to the allegation or the argument this morning that the school did dismiss in this case that those incidents were time barred judge mass agreed and he september twenty third tina order granting our motion to dismiss and part and appellant thereafter conceded the point if you look at there and it says this is mentioned in our brief when our parents file their second amanda complaint they listed all these incidents that allegedly happened in elementary school school middle the counsel for the board said why are you bringing this up in light of judge masters ruling they responded saying we don't intend to base our claims on these allegations we're just pleading them for a quote unquote flavor and they agreed to drop a footnote which appears in the record in the second american plane where they basically said that they were alleging these previous incidents not in contradiction to judge m ruling which is documentary thirty five in this case so that essentially counsel has waived that point there is no evidence before the court of any incidents that happened before twenty ten every incident after that it was reported to the school system was investigated students not if there is a respite it was based on his disability absolutely i think the standard clearly is under section five or four that the harassment has to be based soley on the student's disability the statute itself says that the cases draw a distinction between section five or four and his cousin to speak the americans with disabilities act which is a more lenient standard which allows for a mixed motive type of analysis section five or four clearly is requires that the harassment be based soley on the student disability and that's the main reason why this claim fails one of the one of the students five of four claim fails because s b himself in his deposition admitted that the harassment was not based on his disability but in fact it was based on his race primarily he testified that it was difficult being quote unquote a geeky white metal head in the high school that he attended and that other dollar students couldn't see past the color of his skin his therapist testified under oath and her deposition knows all of which is in the record testified that the depression and anxiety that she diagnosed him with was based on a no of things none of which were based on his  harassment based on alleged disability they were based on typical peer to peer relational issues both romantic and otherwise s p s relationship with his father who left the family earlier in his life these were things that contributed to his depression and by the way he didn't start seeing his therapist until six months after this lawsuit was filed i think it's very important to note and his therapist of course as is indicated in the in the brief never prescribe to medic medication or referred him to a psychiatrist for to be prescribed medication he never had suicidal ideation therapy was concluded in six months at the time that s b graduated high school because both parties concluded that it wasn't necessary anymore she never therapist never referred him for hospitalization  again the standard as to whether or not the school system should have done more i think that's the crux of this case as b s parents didn't approve of the way the school system was handling his alleged harassment and that's simply not the standard  court last year and oversight board of education in prince george's county specifically rejected that theory where the appellant's in a title nine claim basically argue that the school system should have done more they should have investigated more they would have found out why this student is being sexually harassed in violation of title nine and this court and rejecting that argument said we cannot accept this theory because we would have to suffer through the negligence standard for the deliberate indifference standard and that's motion on whether or not there was advocacy to judge when the point we focused exclusively on the fact that the stepfather who was also an employee did not suffer an adverse employment action therefore there couldn't have been there could be no causal at at his school site but is under speeded that practically was a component of t l c graduate school program off campus it was not in any way related to his position as a physical education teacher or athletic director at the school  and that in any event he completed the practicum with the athletic director for the entire county which is a position to which he aspires he testified in his deposition and that he received credit by the school system for having completed practicum for having completed the underlying graduate credits he received two raises he still has his job he testified under oath that he learned he participated in things with the county wide director that were essential to that position which is a position that he aspires to a summer position is an extra duty position is not part of his contractual duties that was a position that was assigned each and every year the record is clear that mr the principal that school came on board at aberdeen high school in the twenty eleven twenty twelve school year and he testified that during his first school year as most principals do they don't like to rock the boat too much because not my with the surroundings he had making decisions in making changes with regard to the assignments for that position the following summer however when he was faced with nearly students i believe seventy or eighty students wanting to or signing up for this summer time physical education class he decided that it was necessary since thirty of them were females and that it would be wise to have a female employee which is a bona fide occupational requirement for that position because it would enable them to use locker rooms and the restrooms and i think it's important to note this is not a typical physical education course this is a summer time six hour per day summer education course that was for a piece students and those who didn't wish to take physical education during the traditional school year so they would take it over the summer time over whether there was justification in the whole pretext question but just on the question of whether there was an adverse employment action i mean do you have to have a contractual right to a job for it to be an adverse action to lose it i believe  i wrong about this i thought he got in february saying he's got the position for two thousand and thirteen saying you've got the position for this summer and then he files and files a lawsuit and then twenty days later like no never mind you don't have the job anymore  here i'm asking you i guess a hypothetical does it follow from what you're saying that if you do not have a contractual right to continue working then you can be let go because you engage in protected activity because what's your contractual right to work well i would say i would say that the answer there is no that our position is that he wasn't not awarded that position because of any protected activity and i guess until i have much emphasis do you really want us to put on this idea that he did not have a contract i think is crucial i think it's crucial and i think it's worth noting that if we do get to the pretext issue if you even if he could establish that he would suffer an adverse employment action the board has put forth a legitimate nondiscriminatory not t l had been an employee of the school system longer but he had not been a physical education teacher longer but as i was going to get to the issue even if they were to be able to establish an adverse employment action in light of the board's proffered reason for that i would have to  adverse action not affect the terms and conditions of employment correct but the standard in burlington is whether an average employee or reasonable employee would feel comfortable complaining about the alleged retaliation n t l did complain about not receiving the position but just what will the next employee like obviously the first employee doesn't think he's going to be against but if that's the standard why is the next person going to feel comfortable complaining if they know you might lose your reinstated him on that position but essentially yes as to the issue of whether there was the board was on notice that the harassment was based on disability parents council mentions certain phrases he used the phrase is retard special ed there's no evidence in the record that was ever brought to the school system's attention we have three years of complaints in the record by s p by his mother and how none of them referred to any phrases like that and i'll leave it at that as to under the litter in different standard appellants are required to prove that the harassment was sufficiently severe or pervasive and i would submit that it was not judgments was correct in concluding that it was not and i think it's crucial to keep in mind that the supreme court has acknowledged as is characterized in the davis case the dizzying arrays are the mature behaviors by students that would be utterly inappropriate in the adult context an adult workplace for example and we have to take that into consideration and look at more objective factors as to whether or not the student is suffering from a supposed to be or previous of harassment environment and so we look at dropping grades for example whether the students homebound are hospitalized or the student subjected to physical violence none of that is in the record here as b s grades actually increased over the period time they were looking at he graduated on time with excess credits on the honor roll now he was never home bound he would never hospitalized the l of the allegations of physical violence are largely constrained to those off campus incidents that were never reported to the school systems attention  and getting to the back in a deliberate indifference standard i think it's crucial again to emphasize this corner's acknowledged and other courts the first circuit for example has acknowledged that it's not an effect in a standard the eleventh circuit for example case where the student committed suicide the school system nevertheless consider it concluded that there was no deliberate indifference because the school system had responded to each and every intent and i think it's important to realize that each of these problems has to be isolated incident but at some point if the harassment is still going on it is even under the deliberate indifference probably or standard it is incumbent on the school district to re evaluate its response if it's just not working so we don't we don't have to reject that proposition for you when i would agree and i would also i think the case you're probably referring to is the patterson case upon which they refer have only patterson case had a very vigorous dissent where the judge dissenting judge basically said that the majority is it sounds like you're saying we do have to reject that standard let's put to one side how patterson so fine you think paterson is wrongly decided assume hypothetically i think it's rightly decided can i still come out your way yes and i think i also i think it's important are made that very clear and we block with that in our brief toward the end where they say we have never held that they are to abide by non regulatory guidance can support a claim for damages under spending clause legislation such as and that he's title nine is case you just as long as you're just slapping wrist there's always going to be another kid tell me why this isn't that well because two reasons first judge williams and the dover says prince george's county last year which was thrown by this court basically said to us to you look at the incidents the alleged incidents over a three year span you see that they actually decrease in alleged severity the number of reports that were found to be completely unfounded increases to the point where towards the end up being high school career one example for example one incident for example where he alleges that several african american girls harassed him in a stairwell when the principal immediately investigated that and interviewed best friend and girlfriend who were present both of them rejecting a speech theory of what happened and basically said it didn't happen the way s p said it happened the school system responded every single time regardless of whether the number of unsubstantiated allegations continued which i think demonstrated good good faith in this case and i continued to take the allegations seriously and in fact now towards the end of s career email's the assistant principal who was assigned to deal with s b s disciplinary matters and praises him consistently for his efforts and responding to their concerns that's consistent give  lastly to the extent that appellant's argue that the school board didn't follow its own policies this court rejected that theory in the doe case last year where the board of education in prince george's county didn't follow it sexual harassment policy to the letter and the district court and this court affirmed summary judgment on the theory that that's not the standard just as just as o c r guidance is not the standard  school boards are not held to have to follow their own policies to the letter thank you deviation from professional standards of care and in their analysis at the time the previous circuit had relied upon a stone versus a gamble which was an eighth amendment present case that had adopted the liberal in different standard and the supreme court were male vs female cave younger versions for male specifically rejected deliberate indifference in relation to professional standards of care so as far as i can see that issue settled point one point two they talked about the don't case the don't case turned on lack of knowledge in this case there's no question about notice so to the extent that they want to rely upon oh i don't think it's really applicable in this particular case issue about exhaustion that was plaid early on in a motion to dismiss and it was not granted they it again and in the motion for summary judgment it was not granted we can infer quite easily from what the judge has said that we did not need to exhaust claims in that case but even if this court wanted to revisit that issue one of the reasons you go through exhaustion is to bring claims before hearing officer and developer record here we have a record so there's really no reason to go back and exhaust claims and that's on top of the various issues we briefed in our and we've already brief regarding futility regarding no need to exhaust when you're dealing with that we did at early on asking for various kinds of injunctive in declaratory relief or particularly in relation to t l c claims the issue of reliance upon guidelines whether they be from office or civil rights whether they be from the state of missouri whether they be the school board own standards they are correct and the intervene or the national school boards are correct when they say we should not rely upon those things they did add this or i'm going to add the word solely because if you only rely upon the office of civil rights standards if you only rely upon school board standards or you're only rely upon the standards and they don't follow that one thing then granted that may not rise to the level of a of deliberate indifference but if you add those things on top of each other and they don't follow and they don't follow schoolwork and they don't follow case  law then when you add all those things together and davis uses the term constellation if you look at all those things together that in fact that could in constellation together rise to the level of deliberate indifference while arguably alone they would not and i sends an e mail saying that doesn't get the summer job right that's correct and so are you pointing to the filing of the lawsuit as one instance of protecting activity does that count as protected and that certainly would be and in fact let me only the answer is yes to that is the issue about the adverse employment effect on him which was a question that you brought forward early on while and and it is important i believe the reason that we have a law in place so that people who bring forward advocacy on behalf of the children and school or employees and for adults is protected so then what i'm saying is the weight should go on the fact that they had to schools action on missions intent to chill that right to argue we haven't made a first amendment right but you also have it under the first amendment not to retaliate the ability to go speak to the government and say i've got a complaint and not be retaliated against so i think if you go back and look at this case and look at the record once we believe we have been able to show that that tim did experience adverse employment actions and conditions but more importantly the intent of the school and the records replete with things they said and that after the lawsuit was filed and after he advocated on behalf of his child was to chill his speech so i think the more relevant issue is did what occurred chill his court relied on hearsay evidence but they argued that they didn't actually offer for the truth of the matter asserted even though i was heavily part of their undisputed material facts and lastly there is an issue as to whether the declarations that were submitted the plaintiffs and as well as their witnesses were considered quote unquote sham affidavits and unfortunately with four seconds left i really can't get into that but i did not want it to be lost that those are th