i'd like to identify three issues i think make this case readily dispositive first the district court applied the wrong constitutional standard to our overbred challenge the question in this case is whether ellis use policy would reach a  amount of speech that is protected by the first amendment not whether or not there is no set of circumstances under which the policy can be applied using the wrong constitutional standard is reversible error as the supreme court has identified cases such as the doctor be candid speech was not protected by the first minute all that to is reversible error and third that error flowed from a third mistake and that as the court incorrectly said that there were no facts in the record regarding dark if you are to be the error is on the side of the plaintiff i have a few procedural questions before we get to those merits issues you are addressing why didn't you sue the board as i understand it you know there's all kinds of there's a whole chain of events that rises up the level of the university and then even you know getting to the president but then it's ultimately i mean the terminations from the board why didn't you sue the board i think the argument would have been made that the board as a state entity in the eleventh amendment precludes suit against the board as an entity but not for reinstatement on an ex parte i mean for a not for the injunction you're seeking an injunction to reinstate her among other things right yes among other things and show the the board you will who do you want if you get that remedy who do you want the injunction to issue against i guess the university president who has authority under the university policies p s thirty secs to reinstate dr b can it an injunction and equitable relief would effectively provide that remedy and there are couple of reasons just i think as a practical matter why it wouldn't make sense to sue the board as an entity first because of a lot of them that argument but also because the argument would have been made we should have sued the board members individually and their only action in this case was to follow the recommendations of the officials that we did and in terms of the policy that was applied getting to the merits of the one work procedur does she get her job back in that situation where that her speech was unprotected yet the policy has these spatial flaws i think that where the university proceeds are policy that is fatally flawed that it would be difficult to conclude that she was fired for a constitutional reason so that automatically the as applied challenge would also be effective where the policy itself says absolutely no guidelines for for what speech is protected or how the university should challenge was either improperly made or that you were successful on it does that mean we cannot get to the as applied because the policy being applied is unconstitutional or can we weave around what was unconstitutional and potentially find it amusing just in the issue or do we still you think have an opening to consider the as upon if i understand your question i often don't explain it very well but let's see what you understand  if the court decides that the policy as it is unconstitutional on its face i think it still is necessary or at least would be beneficial to decide the as applied challenge as well if only in part because we're asking for reinstate way and as the record in this case indicates it certainly wasn't well if we were to conclude her speech didn't enjoy first amendment protection then right then the as applied challenge would fail but the it may five but the policy might be defective for the reasons you noted it's possible to reach that result and the six circuit did that in the damn drug case where they found that the policy was unconstitutional but the as applied challenge failed but for reasons that are  vague because an anti harassment policy like this does apply a viewpoint based regulation that is required to meet strict scrutiny this is true on two different levels and the part the policy is invalid on two different pervasive and objectively offensive here the policy of p s seventy three passed ninety five fail to meet that threshold test but second the terms of the policy itself also have to be precisely define the terms of p s t five m p s seventy three fail to provide any kind of discernible standard p s seventy three for example gives examples of the kind of speech that can be regulated that includes quote sexually or in behavior o intimidating or depending demeaning nature vs ninety five is even more lax it applies to suggestive comments offensive language or display of sexually ordered oriented materials or obscene gestures those by no manner of speaking can be defined as precise standards compare this for example if this were an obscenity case where you're trying to determine whether or not a regulation or a law can prohibit speech as being protected as a threshold matter would have to meet that the military and the three part test the supreme court established in one thousand nine hundred three but secondly the terms of the statute itself would also have to be precise so in a case like that you wouldn't be able to simply prohibit men's magazines or sexually oriented material you would have to have purcell yes terms of the statute as well as meeting the threshold test neither p s seventy three a p s ninety five meets those those requirements what would what would be those requirements would what needs to be included or changed in the policy that would be precise and sufficient starting with the threshold that we have to articulate that it meets the standard articulated in davis and that is it would focus on speech that is severe pervasive and objectively offensive here the only mention of that comes in p s seventy three where it talks about meeting a reasonable person standard the third couple problems with that one is it doesn't also require that speech be severe and pervasive and it also talks about how it can regulate any speech to as a purpose or effect of having a discriminatory impact those are precisely the kinds of terms that were invalidated in cases like sacks for state it's negated by p s ninety five that has no such requirement and we see how this was applied by the p s one zero four committee which basically said they had no training in what kind of standard they were supposed to apply they read it as an offensive a standard viewed from the eye of the beholder and so there is absolutely no guidance whatsoever and fail to meet that threshold test but judge cost get to your specific questions what term should apply i think that it's law to meet the constitutional standards to know that it didn't meet the test and here you know is that they brought an expansive terms are precisely the kinds of terms that have been held unconstitutional again and again in the cases that we identified and these two policies fail to meet that test let me ask you on the rule of this court on the facial challenge if we agree even though the district judge i think did set out the entire test in her opinion comes to application of fool application of the test or to something we were manda her to make that initial decision i think because this is to go for a new judge southwick that the court can resolve this matter without having to remand  you can look at the facts in the record and determine that the the policies themselves failed to meet the necessary constitutional test and reach a conclusion that it is unconstitutional and you can look at the as applied challenge and look at the facts of the record and not can we show room you could make a determine based on the facts that affirm the district court but i think that would be a mistake in this case for at least three reasons first i think if you look first amendment and and harassment laws and talked about how you have to have a heightened standard that again articulating what essentially is the same test as in the davis test that it has to be severe p it has to be objective but it also said that in cases like this you don't apply the law as if women are models of victorian reticence and more to the point said for printed derogatory references to an employee at irregular intervals in two and a half years do not event sufficient hostility as a matter of law i think that viewing this the facts of this case through that lens makes clear why if you examine the record it simply isn't the kind of showing that would justify a finding under the proper standards and that's really the second part of that answer that is the district court violated it's own it's the it laid down in looking at that in talking about applying the but even if you're right about all that that it has to be a severe and pervasive requirement if we would also conclude her speech like asking or suppose a speech about asking students about their sex life that that does not enjoy one first amendment protection that's one trouble where would that situation leave us let's try and break that down because if you look at the facts of the record the allegations in the record they really fall into three categories the occasional use of profanity interactions with other school districts which are really formed the main part of the school's findings and then third interactions with students and that gets to the hypothetical or at  least the example from the record that you cite about talking to students that at most was sporadic and as the p s one of four committee found most of that occurred during a period when dr buchanan was going through a difficult divorce what the school did and this is precisely what happens when you apply vague and indefinite standards they aggregated all of those and then they would pick out an example and say well this may cross the line it didn't look at the body of these complaints and determine whether or not they fell even within the parameters that violates the first amendment you have to show that that profanity was protected speech that's right and that's what differentiates this case from a case like martin versus parish where and again this is also a judge jones opinion where it says say i don't there's a policy there they just fire the person and judge jones has opinions as that's not protected speech so you have no first amendment climb well that's right and in that in that case she said he did not even make the argument that was in service of any kind of pedagogical purpose and therefore he has waived that argument and in every other case where a university professor was using the speech in service of a pedagogical ard argument including things going to school just for scoop or hardy versus jefferson county and keith versus tho i was asking a student about her sex life have anything to do with teaching people how to be preschool teachers it will find it again that's one thing if you aggregate the complaints and that reach a generalized conclusion that's one thing but if you pick out a particular example even if speech may have been ill advised or rude during a difficult period doc if you can it's life that by itself doesn't meet the standard that judge jones articulated it's revealing to realize that judge jones wrote both the opinion and martin versus perished and then there's later indiana lists where she said that three or four examples don't meet the standard and that you can't simply treat women in the workplace or in this case the education of firemen as models so even if you can find one or two of you do you think that her gender had anything to do with what she received no i don't and nothing was directed toward any of the students because of their gender  question you're just yes or no you are not are are you saying that because of your comments gender she was held two hours and no no that's that's not our argument we're arguing that if i can just finish my answer we were arguing that under the prevailing standards for how tight a line must be applied that the few examples that were plucked out of the record don't meet that t may please the court cherie morris for their colleagues before get into the argument i just want to know just some of the questions that have been asked this morning and some of the responses that were given opposing counsel wants to say that these  few isolated incidents but that's not what the record shows at all the difference between this case and some of the other cases that have been cited is that this faculty member enjoyed tenure she was appointed by the board of supervisors she was granted tenure and is only the board of supervisors does cost of that can take away that tenure none of my clients who are the defendants in this action have the authority to terminate a ten professor so before the terminations of dr b came in and there was a procedure under policy want to forward which was attached to the complaint p s one zero four is a process that sets forth the procedures for terminating a faculty member for a cause and that process is very similar to the process that's used by the courts to decide not only civil cases but criminal cases and is also used by administrative its actions were evaluated by a jury of her peers if you will five tenured faculty members who listened to twelve hours of testimony  all occurred after an investigation was launched by the university after receiving numerous student complaints in the fall of tw dr currie who was an act was the acting interim associate dean received complaints from two students she met with those students got the details of the complaints and before she could even report that to the dean she received a phone call from a school superintendent at one of the local school districts where student teachers are a song and and he advised dr curry the doctor be can and was banging and from the campus that she could no longer supervise students within that jurisdiction dr curry was kind of new to this position and so she took this information to the dean damon andrew who was also pretty new to his position and they began to research and they found out that there had been numerous instances of dr b cannon being banned from other school districts and student complaints so these were not isolated incidents that happened in the fall of two thousand and thirteen there there were reports show that this behavior spanned a very long period of time within her job duties dr buchanan is required to supervise student teachers and ellis you has agreements with surrounding school districts where they place students who actually teach under the mentorship of a public school teacher and cannon part of her role was to evaluate these teachers at the school sites in order to get give them great it's done to be can i was banned from for school districts making her unable to perform job and place in the program in jeopardy that's not what i go in when it goes up the chain and they fire her based on violations of the sexual harassment policy not on you know destroying this relationship with the school district or whatever else  see the documents that are in evidence on the mission for summary judgment dean andrew details it began first of all after dr curry collected all of this information and dean andrew collected the information they turned it over to human resource management so there was an investigation by human resources where they actually interviewed people and they learned from interviewing faculty members that these complaints of the students were very similar to prior complaints to data that had been gathered during certain student surveys and surveys of the mentor teachers and local school districts and they put all this information together in their report and reynoso the investigator turn that back over to damon injury and then it was at that point that dr david andrew recommended a p s one issue for hearing and that but what was available to the board of supervisors what was available to the president of the university were all these documents that did it or did it not that it did or did not rely on a violation of the harassment policies that they're challenging ye the sexual harassment policies what is the difference i mean i don't mind the five is harassment of students i don't know quickly is seventy three just a general like applying to if you harass faculty or staff is that the difference constant seventy three is the general sexual harassment policy and then ninety five is tailored toward student harassment but you have to read them together on but in this case we're dealing with students that were in dr b cannon's class or there is no doubt that her speech was not protected it was not related to the curriculum dr buchanan's job was to teach teachers teachers who that would then go out with a degree to teach students aged three through eight early elementary education there is no doubt that her comments about condoms personal sexual relationships her son sexual relationship sexual relationships of students has no relation to the curriculum that she was teaching there is no dollar in their dispute that these comments were made by my doctor began in in the course of performing her duties that she was being paid for by the university it occurred in the classroom it also occurred on offsite campuses which were really an extension of the ellis youth campus for the purpose of these clinical courses her demeaning remarks to female students about being pregnant or getting pregnant or having children are wearing certain clothes so they wouldn't look like a dyke none of that has to do with the pedagogy or the curriculum that dr b cannon was hired to teach and so her answer to the torches that were against her was simply that's part of my pedagogy but the dean didn't buy that the dean said that doesn't even make sense and that's why he went forward and requested the p s one for hearing but he requested that p s one of four hearing because he had no authority to terminate dr buchanan the law is clear with respect to the damage claim that all four of the defendants are entitled to qualified immunity they acted reasonably and they did not have up they did not violate any clearly established rights of which a reasonable person should have known law there was case law holding that there can be no liability when someone who is not the final decision maker makes a recommendation that leaves the plaintiff to being harmed then that claim had to have been dismissed this case is very similar to congress sent all of the individuals who are represent made findings or recommendations none of them took the ultimate action to germany dr b cannon because they were without authority to do so would about president president alexander had no authority to terminate dr b cannon because she was tenured and so his recommendation was made to the easiest a poor university supervisors and so it was the board of supervisors that terminated canon on j nine hundred twenty fifteen and to come to that conclusion you need to look no further than the complaint paragraph forty one of the complaint states on june nineteenth twenty fifteen the board of supervisors dismissed buchanan that's their allegation the defendants admitted in the answer that the allegations of paragraph forty one are admitted it also in support of that on the motion for summary judgment we file the affidavit of a g monica which attested to the fact that none of the four defendants had ever served on the board of supervisors so they were not the answer that counsel opposite gave to judge costumers question about the house apply as opposed to face what do we have if we agree with everything you say but if she applies the wrong standard can we d very precise this is a nice answer his question first and then you can deal with the merits of the issue but if we agree that wrong there was applied can you answer judge wieners question if the wrong standard applied to determine that the policy was spatially valid i believe that's it that's a legal issue that this court can determine that was not a factual issue is a legal issue and i believe that this court and if we did that it took me under that the wrong standard was applied but that has applied here as opposed to facial there the court which correct what do we do about the facial impropriety that's an interesting question if there is no  damage claiming there is new as applied and the remedy the remedy with respect to the facial challenge is to declare it unconstitutional so it becomes unenfor that would not impact the plaintiff in this case because she is new longer on the back of the eligible to be on that but they would have real and i think it's it's it is a difficult question but they would have they were law it in that scenario they would have relied on both so how do we know that the policy that in this hypothetical world we're talking about is unconstitutional and wasn't what drove it how do we know that but it doesn't matter what type of specific policy you had her behavior was so egregious it wouldn't pass any standard it's not related to her curriculum it's totally offensive numerous student complaints over a period of years being banned from four school districts how could she perform her just her her duties if she can't even go to the school does and if you're you have a big clearly in the criminal context for example there are supreme court cases that say is civil i guess it's different but i'm wondering if it's not this the similar here where she was they cited this policy if it turns out to be unconstitutional what's the remedy is in your criminal example if they were convicted of multiple charges and one of them was unconstitutional they would still have to face the other charges it would eliminate all the charges and here the penalty for a violation of federal is it's difficult to separate all these issues because they're all intertwined but i think we can't ignore the fact that there was a neutral arbitrator in this process that found by clear and convincing evidence and these faculty members were bayonne by the terms of the same policies and so this thing under that they applied was you offensive to a reasonable person and and they understood what that meant the faculty committee could have certainly come back and said we don't understand this or this is not clear they did find the faculty that it found that there was not enough evidence on the a t m violation but that's a determination that f king alexander made that there was enough evidence on the eighty a violation f king alexander relied upon the faculty committee and the faculty committee was not selected as a defendant either so  the plaintive went through the process there were numerous people involved in this process but handpicked four defendants and these defendants are simply not the ones that had the authority to terminate sad about another alternative if we find that these defendants are entitled to qualified immunity because of the lack of clearly established  can we disregard everything else unfortunately no in the complaint dr buchanan six three forms of relief one is compensatory damages under forty two u s c nine hundred eighty three she seeks declaratory relief she wants both policies seventy three and ninety five declared unconstitutional and then she seeks an injunction she wants reinstatement to her tenured position and so the sovereign immunity eliminates the damage claims but it what doesn't necessarily eliminate the other challenges that she's brought forward however there are problems with other challenges the injunction is not out against an individual that has the authority to reinstate dr began and she was terminated by the board of supervisors none of these individuals have the right to override the decision of the board of supervisors they provisions that create the board of supervisors and give them supervisory jurisdiction aber the university and their officials that all cited in the very early two minutes left i wish you'd addressed the facial challenge you apparently pushed back on the concept of judge dick did not do the full analysis do you disagree that that part of the necessary analysis on the challenges is whether a substantial number of its applications are unconstitutional judge in relationship to the legitimate reach of the statute is not that you agree or disagree that that's part of the necessary analysis or even just report properly analysis constitutional policy is whether a substantial number of its applications are unconstitutional in relation to its legitimate reach just dig actually said that in her opinion but then never actually applied it to the facts are you saying it's a necessary part of the analysis but there's no evidence in the record to say that it's been applied in any other situation other than this one there's there's nothing in the record that was produced by the plaintiffs to substantiate that in my remaining time i'd like to address just a couple of quick points first as a factual matter the allegation was made two or three times during the last few minutes that dr buchanan had been found that she had violated the americans with the disabilities act overview of the record as well you'll find in the deposition of karen donnelly or she says that the student said something about eighty eight was herself constantly talking about the reason for her accommodations and class so it wasn't anything that had anything to do with cap and so i thought important that we focus on what the case is really about and those of the sexual harassment policies this case is a prime example of where if the only tool you have is a hammer everything in the world begins to look like a nail and so we're told that there are various reasons again why dr buchanan was terminated with ms morris focusing a lot on her relationships with other school districts and this is a primary example of how these policies can be police to keep her out of the school district now this got trans more refined into a sexual harassment complaint because part of what he said is she used the word if you excuse me pushy three times and never in a sexual context never t of us do anything to harass students but because that word can be used as slang in a sexual sense that understanding got transmitted through the process to the point where it was the only one that  doctor alexander could remember when he made his recommendation to the board and so when you have a vegan an amorphous process like this which can aggregate all kinds of complaints that have nothing to do with sexual harassment then you have this snowballing effect in this telephony effect where you would then rely on those aggregate conclusions to to reach the wrong result in this case the director of the h r m office directory and also set those relationships with other schools had nothing to do with his findings and had nothing to do with sexual harassment yet nevertheless because you had these aggregate complaints simply listed in his report those were then taken as findings and facts to be