as awful as it packs are of this hazing incident they do not excuse the fact that the defendants failed to provide any notice of a hearing concerning additional penalties or punishment or discipline after december eighth of two thousand and ten counsel could you do me a favor we have a number of visitors students visiting today and can you just very briefly describe the hazing incident and why we're here so they can follow the plaintiff and other students on on the fun of wrestling team who are on a their first away trip to southern nevada in two thousand and ten on december third two thousand and ten and apparently there was a long running tradition amongst the wrestling team members that the freshman teammates would be hazed during the first away trip of the year and in fact that is what took place in this particular situation hazing involved physical abuse involved being duct taped to a coffee table involved being urinated on involved being thrown shampoo on him yes it did involve those facts are just like a criminal who you know is convicted without due process we have a situation here where we have a student who was these these issues were self reported by this student on december fourth the day hear about it as rumors started circulating around the school under similar sixth my client again went to the head coach along with the other students and then the head coach allowed them to say exactly what happened they didn't leave any details out and on understand were seventh the head coach went to the athletic director made a full report to him on december eighth that let the director goes to the principal makes a full report to him in the principal consults with his vice principals reviews the student handbook and determines that the punishment is kicked off the wrestling team for two weeks to thirty detentions and barred from overnight wrestling trips so your time is ticking so and thank you for indulging me with that background my understanding is your client as judge children said is the one who was accused of this hazing found to have and i think that self confessed essentially and was given a punishment and i'll say served his time he served his he couldn't go on a couple of away trips and he served his detentions and then when this became known to the broader public there was a more serious punishment imposed and that's what he's doing right he was ended for a semester but allowed to graduate on time is that he was however that suspension is reflected in his record and unfortunately mr boer back like many of the people in this small town in the that are from a military family and his father just retired after twenty five years as a military officer in the navy you know his his dreams of following his in his footsteps are is that does that right he can't get into the military now i know that representation is his that's a problem that's that's his testimony and that's his father's testimony that you know that this you know it's one of the questions i had was there any testimony earlier in this case from anyone other than the plaintiff that he wouldn't be allowed to go into the military because he was suspended from high school for one term i think one of one of the complaints that he makes arguments that he makes that he's upset with the school district one board member in particular for making a statement to the effect and i'm paraphrasing so something about you know what will i say to the people who vote for me if i don't take action here and your client views that as a public official balloting to public pressure or perhaps putting his own interests and being reelected above he sort of at the expense of your client but he was putting those first but it seems to me i found that a very curious argument because i don't know why wouldn't look at that and think that what he's essentially saying is i need to be accountable and this is a pretty serious hazing incident and so we need to take action why should i look at it in the light that you're suggesting because this is a student disciplinary medal protected under federal law that prohibits school officials discussing any type of sort of student disciplinary issues and what this official is saying is that he intends to go out as part of his reelection campaign and talk about this private confidential information well did he say that i thought it a problem i took the statement to mean that he was saying the public is going to be upset if this didn't is merely slapped on the wrist and told that he that he has to serve a couple of saturday suspensions the public has no right to know what happens to that student or federal law well ok at the time that the statement was made hadn't this already become part of that there's a newspaper article actually the media had reported this right most of the media attention was a television station in reno ok so what is the board member do about that the public knows about this takes high school hazing very seriously some students have been hurt in this country some students have been killed because of hazing incidents what's the school board member to do about that he's not supposed to say anything about th same as a doctor under hipaa if there is someone in a public figure that has a health condition that is reported in the media that doesn't give the doctor the you know the approval to violate confidentiality and share that information with the public ok but your client's claim i intentional infliction of emotional distress that is one of the claims yes ok so in order to rule for your client we would have to find that the trial court dismissed this claim did so erroneous they would have to find that this discipline that he received is outside all possible bounds of decency and utterly intolerable in a civilized community right that is correct ok so why would i why would i agree with you about that well and also one of the other standards that we started to was a substantial departure from from our academic and said here's what you're accused of doing do you agree that you did this is understood that at some point he had actual hearing in front of school officials or school board officials yes that was after the ten day that was after the ten day suspension in your brief and of course that you're not really making a double jeopardy or it doesn't apply but you know i was born a sense of a procedural due process issue and i said the school board knew that he had to head to head to head this ten day suspension as touch hawkins was indicating that there was a hearing and he was allowed to be heard so sent that there's no indication they didn't take the first ten day suspension into account is there and i'm sorry there's no indication i don't think that they didn't take the first ten day suspension into account when they decided to impose additional punishment is th issue a ten day suspension without first having a hearing an argument as the hearing happened after the ten day suspension not before so all of his prior discipline had been completed he'd they're brought down to the principal's office one more time on the summer twenty first which by the way was all the same facts that the plaintiff shared with the principal as well there were no new facts here nothing had changed other than the fact that this was now in the media attention so the procedural due process argument is that there was no hearing given before the ten day suspension of first suspension the only other of that ten day suspension that led up to the half half semester suspension yes it is difficult because it seems to me that he was told that this was his punishment so to speak and he that he accepted it and served it and your and your brief argues that that he agreed with that and agreed to serve it and that was going to be the end of it yes if that was the so now you're arguing that he should have been suspended for ten days you're referring to the the the two sorry detentions the no overnight trips on the wrestling team that's what you're referring to he agreed to that and that's why he served that was on december eighth on december twenty first is when there will not be brought down to the principal's office again yes or a second time that's when the ten day suspension was issued after you already served his discipline ok i will reserve the remainder of my time i actually have a couple of questions for before you do sit down i'm looking at your client's  other testimony we've just been his deposition testimony and i'm looking at his deposition testimony and in it he describes the emotional distress that he incurred as a result of these events good morning judge the other man may it please the court and alexander representing churchill county school district superintendent ross and school principal kevin martz i want to correct a couple of  misrepresentations i believe about the facts one to be very clear nicholas board back testified under oath that he was never told by principal kevin lord's in the meeting on december eighth never told that this was the end of it when when his in his reply brief he says back was told this is the end of it if you look at those references those are references to what his father says the principal told him so nick was never told this is the end of it but his father makes that representation is the father makes that representation but i suppose if the father and the son talked about it i'm not sure why nick we didn't say dad i don't know that's not what he told us and for other adults who were present in the room on december eighth provided affidavits testifying that the principal most definitely said we're going to continue our investigation and if anything further comes to light as particularly with regard to what it is you boys have represented to us about photographs then there will be more it is odd though there was  pungent was sort of dribbled out in ages and that's concerning and it's at least atypical i put it that way and i believe these were a typical circumstances and i do not disagree with you that punishment was dribbled out but it's also untrue to represent that the boys told the complete truth the whole truth all along the way they in fact the law i'd that they had kept photographs and that those photographs were texted  other kids and eventually shown to other when you did that become apparent it became apparent to the school principal on december fifteenth when another student made that report a student who was not part of this made a report that one of the boys had now shown a photograph and in it borrow vacs testimony he admitted that he had come to know that kids kept photographs and that they had not told the truth about that when they said they didn't and yet he did not come forward and say lord's i think we told you something that wasn't true so those are two factual clarifications that i want to make when i did the first media exposure of this whether the decision to increase the punishment from the earlier suspensions to the semester long suspension occurred before or after the first media reports i can't tell you precisely what i can say you know that's what they say i understand that and you're not prepared to respond to what i'm prepared to respond is that they never introduced any evidence on the record of any media coverage of what the tenor and tone of that media coverage was whether or not that media coverage included anyone extolling the school district to  take to take some sort of decisive disciplinary action there is no evidence that they've introduced on the record about anything contained in any media coverage it's not unusual though for obscure board member to say anything about any particular disciplinary case publicly typically it's one thing to say you know we take you seriously but it's certainly unusual isn't it for a school board member to make any public comment about an individual disciplinary case it would be extraordinary for a board member to make a public comment about a discipline case the comment to which mr beauregard refers is a comment made in a closed disciplinary hearing it was not open to the public he also has no evidence that any school board member or any administrator of the superintendent the principal ever spoke about these matters to anyone publicly to the press to anyone in the communities right in to that point i think you're going right to what i was intending to get to but the but to that point judge i think it was the talk and asked about the public hearing that he was given i shouldn't say public hearing that he was given a hearing  much later in the masses at december twenty one when there was the hearing what's the date of his first panel discipline hearing where the panel heard the matter in order to decide whether to recommend suspension or expulsion was held on january twenty fourth though was where the comments made there and was that open open door meeting that some trying to get at was a closed meeting the comments to which mr barak aquifers were made by board members and the board does not have public meetings to discuss to say so how is it that they know about it if that meeting was a closed door meeting and it pertained to a different student because the student in that instance obtained a recording of it and provided it to the bar of that family thank you specifically defective because and i'll go through the allegations that are in the in the complaint that the decision was based on an unsupported rumor and yet they never spoke provide a single fact say that the panel's conclusion was contrary to constitutional rights contrary to every since contrary to legal conclude legal and contractual requirements that's conclusory i thought i was talking these are the allegations that are made in the emotional distress claim ok they state that the school board decision was based on the member's own desire for political and personal gain even if true an improper motive is not beyond all bounds of human decency a member needed to be able to explain when he runs for reelection again using his own judgment  and his experience judgeships said school board members concerned about their constituents is not beyond all bounds of human decency there are then two allegations about what they speculate and surmise that the defendants intended to do that they intended to use this information publicly that they in order to support their own reelection zor to somehow place themselves in a better light and yet by the time this complaint was written they couldn't provide even a single example of such being the case and of course when we look at the complaint at the time it's filed and i'm again a little concerned that if we  assume what he says is true then we have to evaluate whether the complaint gets us to the next stage you say he didn't come forward with evidence but it's not that's not the place you come up with evidence i do believe then in his complaint to the extent also that you may affirm based on any evidence that exists now in the record i have also provided you with all of nicholas more of x testimony that he provided in the record that he actually had no evidence and no examples of any of those  that was provided a more procedural due process than the constitution requires structural county school district allows for a board rehearing of a panel decision not required by the constitution he most definitely was given notice and an opportunity to tell his side of the story in detail before his ten day suspension was imposed and he did that in his individual meeting with the principal on december twenty first that happened before the additional ten days was imposed his argument as you know is that he at that point thought he'd already again this goes back to dribbling out the punishment that he when he met with the principal he didn't have notice that there was a possibility that more discipline might be imposed because of the he had already served his punishment i understand that they have not cited to a single case that would require that he be given that additional notice would also just remind the court that if discipline was dribbling out over time it's also true that the facts were dribbling out over time that these boys had not told anyone truthfully that they not only had taken pictures they had kept pictures and that they had disseminated photographs and it is the the intersection i think of technology and in the true id that sometimes causes what is a particularly heinous act committed on this boy he was once he was taped to that table and his pants were down around his knees he was placed outside on in in an open public breeze away for others to walk by and see while his mouth is taped and he cannot get how this is an extraordinarily dangerous and serious act it's not just it isn't to my interactive hazing and to a to the extent that those details then become very public for that child that is a significant fact that came before the school principal in that the school district says that or back was never told him that that would be the end of it in fact the board was a minor at that point his father was told and testified that he was informed by the principal that that that that was me and that's my reading of the record too i think the dad testified  quite clearly that effects so what's wrong with that her response is the facts came dribbling out in the punishment follow and we disagree with that we believe that all the facts were there on december sixth when they met with the head coach and that and those facts were passed on to the the very first self report included indication of the photo yes and in fact if you look at the record the there is testimony that he was informed of the photos at that meeting what list of course the first meeting the first indication coach said i don't want to hear about come a point later on where there were allegations i'm not sure if they were ever proven that one of the students not my client another student had photos still on his phone that he had not deleted but of course my my client's you know  on december sixth had no knowledge about the media coverage there is evidence in the record of the media coverage we asked principal lords in his deposition if he became aware at some point that there  was media coverage and he said yes we asked him when he became aware of that he said that he wasn't sure it's our understanding that and a day or two prior to demean on december twenty first either the first media report aired or the school was contacted for comment by the media and that's how this will became aware of the media attention that this is your assumption there's not an affidavit in the record that says the media broadcast was on december  whatever there's not what's but because back to my very first question what's wrong with that with school board members needing to take action because the public is very concerned about this incident there's nothing wrong the school board member taking action  because it's needed what with the inferences here is that this is going to be an issue that he's going to have to address and re election well that's one inference and they have the other inferences that the punishment punishment the initial discipline wasn't sufficient given all the facts that have come out well i mean there's nothing wrong with school remember feeling that they need to do is just and what is right but to reference your people action campaign in the process of doing that there would never be an ability for them to address our charges to know that i actually had that very question we don't have in this record anything that indicates the way this was perpetrated to the media or where one of the other side you know or ease was in the in the television report was something to the effect that the punishment was a just a slap on the wrist i believe it came out the media attention came out as a result of the victim's father my understanding from another case is that the victim's father went to the media and actually sought the media attention himself well we don't have this in the record right it's not the record of this case and just to be clear the notice requirement that we're talking about deals with the ten days yeah that's it yes that's it thank