please the court counsel cody elliott representing portland public schools and the individual defendants roberta cooper and picture callan i'd like to reserve five minutes of my time for rebuttal if i may this case presents th question whether to public school employees can be held personally liable for violating the equal protection rights of an intern when there is no precedent that clearly establishes the contours of an intern equal protection rights such that employees would have notice that their actions could amount to a constitutional violation the trial court here determined that ms cooper in this callen could be held personally liable for violating ms vale as equal protection rights but in doing so it ignored this court's and the united states supreme court decisions on qualified immunity and those decisions tell us a few things first the decisions tell us that courts and parties cannot frame constitutional rights in terms of broad constitutional principles cason a very high level of generality those rights must be framed in reference to specific facts of the particular case those precedents also tell us the public employees are entitled to qualified immunity if none of the court's existing precedence squarely governs the facts such that only somebody plainly incompetent or who knowingly violates the law could act as they did so in this case the trial court improperly framed ms videos rights in terms of broad constitutional rights cast a very high level of generality essentially that you can't and that an internship on the basis of the internes race national origin or religion let me let me ask you this so there are two steps to the qualified immunity analysis the first step we ask taking all these facts is true a reasonable finder of fact could conclude that the plaintiff's constitutional rights were violated right whether that the plaintiffs equal protection rights were violated by these two defendants correct one of the first step we asked that ok and if you answer the question is yes then you ask is the right clearly established and then as you say we're supposed to not define that right it's that you're broad level but look at the contours of the claim let me ask you this if you take all the facts is true here you know resolv  really almost three stages whether there's a constitutional right whether that right was clearly established beyond debate and whether that right was in fact violated again constrain facts most favorably to the claimant and those those case is over the case should have been qualified we should have been granted a summary judgment should have been granted on the constitutional violation i ask you agreed is there a violation here and there is not because when you step back from that broad high level of generality you get the gist why isn't there a constitutional violation because when you look at what the right is you have to frame it in the context of the case and here the right would be something like whether a public employee violates a christian russian and turns equal protection rights by ending her internship after the in turn ask questions like she says i was terminated because they they based their decision on the fact that i was russian and a christian an orthodox christian right and that but that's not what the objective facts of this case demonstrate the object i know that's what i'm getting because that is that i evidence relating to this is that the internship was ended after ms cooper made a statement about how russians or the russian government was being judge mental correct so there's no statement so there's no evidence that for  example that we have to end this internship because you're christian views don't fit here or we have to end this internship because we just can't have russian interns here if those were the objective facts of the case then we would say think that the case law and its cases are right in front of me i do believe title seven jurisprudence factors into equal protection claims to some degree you're absolutely correct that this is and it's important to recognize that because we are talking about section one thousand nine hundred three claim versus a title seven claim title seven claim there's no qualified immunity implicated we're talking a constitutional violation and whether these public employees can be held individually is there any other evidence russia no not in the record your honor and that's the thing to you again important to recognize this qualified immunity analysis and why context matters because if you had for example a situation where i can imagine a public employee who's like an electrician or plumber having a discussion about russia and the russian olympics that may seem strange but in the context of a counseling internship where at and as the evidence reflects the testimony of roberta cooper part of the job of a mentor is to explore the role of bias and implicit b and where people are coming from as it relates to students and so whereas a conversation about whether the russian government is judge mental with respect to its decision about banning gay athletes from the olympics may be out of context or strange in certain contexts not strange at all in this context and so as to your point your honor i don't know that i mean certainly a reasonable fact finder mum may determine that but then that gets you to that next step which is the case let me just judge represented their comment about russia but there the other basis for her claim is that she was a christian correct or orthodox christian right now is there any evidence in the record that these two individuals in any way raise the issue of her religion  believe and i during during my time on councils up here i'll look and the record i believe that ms vega had made a comment to another counselor or something to the extent of i'm christian and i have christian values where does my identity fit in here  obviously that's a disputed fact whether she said that or not but again you have to assume again assuming that that's true we always get back to work ok where's the case where's the case that says when an intern says i'm christian and i have christian september and there were a few weeks that were actually missed by ms vale due to illness etc so it's a very brief amount of time when all of these concerns came to the forefront and they were addressed so i'm going to save the remaining time for a bottle thank material fact in the court has already referenced those and i would urge that the questions before the well we just when you're up here though we ask we are dealing with qualified immunity and for our purposes it's a legal issue so we assume that all the facts are true that the lads you know and they must be viewed in the in like a video most favorable and then we ask as i said we asked does that establish would obviously know that they can't discriminate on the basis of religion or national origin and said you know get qualified immunity but my question though is even if you assume the facts as we just to follow up on this discussion that we had with the district council or the defendant's counsel even if you seem all the facts are true what are the facts that show that her religion or national origin was the cause or was the bas background in the fact that she had a lot of experience tutoring students during the early course of her internship she was told repeatedly she was doing a good job but that's what's reported to the supervisors in the graduate program so until these questions came up where she started asking questions about her christian values and her christian identity and how do those fit in that's when the wheels started to come off the wagon and the record reflects that all of that happened in a fairly compressed period of time after she had generally been told that she was doing a great job so it was only when she began to raise those questions that then what came back to her were questions that we argue a subjective in terms of talking about competencies which are ill defined and so the district did not come right out and say neither did the two individuals were tossing you out of this in turn the ship because of your christian faith or because of your russian heritage they've found other subjective ill defined standards for doing thirty well the oyama case you know yama versus city of versus state of hawaii or university of hawaii kind of reciting the history of all of the cases so even though that decision came along later particular were on the books but nothing in the ninth circuit not not anything in the ninth circuit but in addition to what the law says we have a variety the record contains a lot of references to the fact that the portland public schools had lots of policies prohibiting discrimination that standards ethical standards of the american school counseling association i had to pull visions on discrimination the contract between the portland public schools and lewis and clark had a nondiscrimination provisions and those those those are well and good but where your claim is based on the fourteenth amendment and that's the standard that we apply but i'm not sure what the court is asking me so well you know in follow up and follow up in following up your answers to judge mchugh and yeah you just are citing two of these policy statements as another indication that a reasonable player would know that they can't discriminate well that i just said those policies are fine and good but we are bound by constitutional principles well i understand that but again my understanding of the law is that there doesn't have to be a specific case on point that says that this is wrong but i think it's pretty clear from the cases that i have referred let me ask you this i want to go back to just for a moment  what in your view were the red flags that suggest that at the cooper and the principal terminated mr vaile because of her religion or ethnic origin well the conversation that's the hum that's been referred to about the russians judging whether that included the government there is some conflict in the evidence about whether religion was discussed at that point but the record in our brief recites that ms valle was received was asking questions of her supervisor because she was in an environment that was surrounded by rainbow flags and a lot of things overtly are promoting  question well that's what i think led to the discussion about the russians judging i think that was all part of the same conversation so and i the excerpt of record page thirty eight which is part of the opinion in order to recites the fact that p p s defendants made a unilateral decision to terminate the good in turn ship without ever warning point if that possibility was on the table and actually the the oh yeah i believe it's the oyama case points that out but what the court here goes on to say is a public school cannot make a decision to terminat graduate student's internships based on imagine worst case scenario resting on cultural and religious stereotypes little bit in terms of constitutional rights and she has a contract for unilateral question whether legitimate pedagogical concerns based on the fine professional standards govern or whether there's no expressions of personal disapproval or disagreement with mr vaile and the if if you look at the  from the tenth circuit there summary judgment was denied on that precise point the warrant case had there had been an summary judgment rendered against ms ward in that case and she was a counseling student  very similar facts here and summary judgment was reversed again based on that that precise dichotomy so the what what is eminently clear is that first of all there is  is that the law the authorities are required to find some sort of define professional standards so someone knows what those things are and in this particular situation what ms fail was confronted with was that she lacked cultural competency and social justice competency and the record reflects that during the discovery phase of this leading up to summary judgment eleven different witnesses were asked what those terms mean and they all gave eleven different answers so there are what we have is subjectivity that is injected here by ms failed up by the school district and they rely on things that really are standard less for all intents and purposes and that's used as a smokescreen for engaging in the individual is that that's that would be correct in there on the record before you write and often in an equal protection case that we would look for that kind of right yes i mean that you might say well look they they never fired anybody ever before on the stand really spaces that might be a fact but we don't have anything like that that's if this point yes again what's what's interesting i think in the in the between the what's in the districts brief and what was presented to you this morning as the questions that were put to you in the brief are totally different from the ones that were presented this morning and again i would urge that the questions are really properly the ones that are the elements pertaining to qualified immunity and that the arguments that court and the the other thing is that i believe even though it's we understand that there is no prior ninth circuit precedent the directly controls here there certainly is authority from around the country and that together with the other policies take this from the broad level of generality that counsel referred to and boil it down to something where it's very clear everybody knows what the standard is that is expected of them so if you take all of that evidence it's eminently clear that the action that was taken was contrary to very pretty well known and defined standard the explicit evidence to the effect that the those rights were violated or at least to the point where there was a reasonable question that could be presented to a jury on that point attempt to have five points we'll see if i get all five the first is with respect to counsel statement that there's disputes of fact here i think correctly the court recognizes that summary judgment is not the standard here it's not whether there's a dispute of fact  if that were the case there would rarely be qualified it would never be qualified immunity granted in any case counsel's acknowledge that there is no ninth circuit precedent that governs the facts here we've heard a tenth circuit case the sixth circuit case and an eleventh circuit case and then the oyama case which was decided in two thousand and fifteen which is two years after his videos internship was ended none of those preceden framing the right but it does have to be a case that squarely governs the facts and so i think as we're gathering this morning there is no such case if there were i think based on your old point that he's an intern and not an employee and that's one of the points absolutely because and as the lower court addressed in it's a matter not before the court here but the district got summary judgment on the first amendment first amendment claims because she's she she's not an employee she's an intern and she had state law discrimination claims that were also dismissed because she's not an employee she's an intern so absolutely the fact that an internship is involved is  critical so there would have to be almost a threshold case that says hey for purposes of equal protection in turns are like employees and we're going to treat them as such so that kind of gets you into the door but then there would also have to be that case based on counsel's yeah i just think that there still has to be that case that governs the fact squarely governs the facts that would give the roadmap to these public employees that what they're doing could be a constitutional violation as opposed to a violation of title seven or something else  the final point you know we're talking about how qualified immunity immunity can't be at this broad level i just want to make clear here that we have two individual defendants both of whom had different involvement in this matter miss callan did not have any personal want to make sure that the court treats ms cal and ms cooper individually because the facts there would have to be facts that squarely govern those each of their involvement in this case for qualified immunity to be denied and i