apple e's is our belief that he weighed the evidence and made inference incorrect inferences in favor of the university medical school which is the incorrect standard to use in a rule twelve b six motion to dismiss i'll be more fully described here in in here after we pray that this court grants or appeal to me and the case back to the dish record accordingly while the under under like factual resume somewhat lengthy and provides a very good historical resume for what occurred what i'll call the reader's digest version of this rather simple mr shake with accepted into the in a medical school's magna cum laude or after completing his bachelor of level program at a and m during the first years of the school he was very successful he began to have significant what appeared to be mental health problems mental health problems were noticeable to everybody in fact the staff at the school referred him to a therapist at the health center and then the therapist at the health center referred him to psychiatry as who also worked for the better course school for the school at large at the health center so everybody was really on notice that what was going on with this guy he failed a third party licensing exam after he actually completed his three years there very successfully he agreed to a one year leave of absence based upon what was considered a mental condition and then he saw it read mission and this is where as we say the plot thickens he talks to one of the admission counselors one of the mission deans actually in the dean says to him he was not an acceptable applicant and that he was a liability for psychiatric reasons but he wasn't acceptable because he hadn't passed  that is one of the issues that i want to speak about maybe kind of hit the course i'm going to leapfrog what i was going to say and address that more and more specifically so what i want to talk about today i think most importantly it's a section five hundred four case one of the requirements in the section five  four case you know that the gentlemen have to be have a person would have to be a person with disability house in fact major life functions he has to be otherwise qualified which is part of the issue there and by the way during the factual resume the case he speaks to a number of deans in many many different times and they say please apply for readmission we think you're a good candidate we think you're going to get there we think we're really happy to have you come back and so we think fifth circuit case for thirty one f thirty four forty eight two thousand and five the court went through a lengthy analysis about when the soli mean so only when does it not make a difference and at the end of the day in a footnote the court mentioned well that particular case it didn't make a difference because they were dealing with an access issue actually access based upon physical barriers and of course we believe this case is also an access issue because he wasn't given access to to the medical school when he replied but the important footnote is that they said that the causation issue is relevant bennett it wasn't but the footnote a said if it is relevant which the state has already said that causation issue is relevant they do it in their response at page twenty two then that's a fact that's an issue that has to go through further discovery so it's our proposition for today that it's almost impossible to deal with the slowly issue as a motion to dismiss in fact there's a brennan versus  stewart case that also talks about five o four and eighty eight and it to makes an important distinction that certain issues in that case would qualify it whether a person is qualified or not certain issues have to go through discovery and i think that's the lesson that is most relevant from the line of cases that flow from the bad it nelson case and that's the issue before the court today i mean there's law all over the place that says there's always other reasons they're always going to find a reason facts some of those reasons are stereotypical here the reason is well he failed the test right but if you fail the test because he was too disabled to pass the test is that if that become another reason or is that in twined with the so be part of so i think once again that this kind of a case and this kind of an issue particularly under a section five zero four standard which i believe is our strongest the tumor are you claiming that he is being perceived now as someone with a disability and that that is at least in part of the reason given for denying his readmission or is it but i mean are the the the heart of the case is a read mission issue but the fact of the case also was that he didn't get accommodations along the way that arguably one of prevented or reverted the issue to begin with so that if you have been accommodated he never would have been required to withdraw they would have accommodated him along the way and once the tumor the effects of that were negated he would have still been assisted which is another side issue because we found out later it wasn't a mental health problem that he had he had a brain tumor and once again unlike a previous attack accommodations speaking at that time well at that time he didn't seek any which i think which the case law of course says that normally in most situations he has a if it's well known to everybody and he and everyone knows he has a disability then they have to do to accommodate in fact clearly here the a and m staff knew he had a disability in fact they referred him to a therapist and they referred him to a pleading purposes and once again we're dealing with a motion to dismiss not a motion for summary judgment have we raised enough facts to show one that is a person with a disability two that he should have been accommodated and three that he was because he psychiatrically they said that i mean that's that's their statement i mean many of my question was is that your stronger argument as between two and yes it is a stronger argument when i call the access for the remission part of the case are you still seeking admission i aspect so we have some significant loans out there so i thought so once again i've got a few minutes left so i'll start talking about the other cases but i do want to say the heart of the case i believe case that we have to win on really because the the a part of the case under current case was a little bit weak and we know constitutional claims are even weaker so so once again if there's any questions related to this five zero four issue in the soli language i'd like to help flesh that out even further because once again under current fifth circuit case law when causation is an issue and that's what it says in the bennett case that the only difference between five and four and the a d a s causation and even once again counsel in his brief admitted that it's a causation issue well if it's a causation issue then it has to go back to the dish or court for discovery which also talk about the bad case and then the opportunity for a motion for summary judgment to deal with  statute the educational concerns are considered part of what that waiver includes under lane and there's it's never good language in laying that deal with in a footnote that deals with education absolutely being considered as part of the a part of the waiver the other thing that that that the georgia case talks about is you would have to show that there is a constitutional violation but if we go back to lame the other case that was aside in lame had to do with a court reporter who was a paraplegic and she too needed accommodations to get into the court house and at the same time the supreme court really dealt with both cases even though the link cases the more famous one so the question becomes if the court reporter had a right under the age of eighty eight pursuant to the lame decision why shouldn't shake she she did not have any particular fundamental right unless we look to her property right to work at the at the court and if that property right is what the court based it on i didn't say we don't know then surely shape to have significant amount of money and time also put into school had a similar property right so we would argue that the a d f a of both upon the plain language of it and the case law based upon laying like what you're saying the short answer is we are arguing that there would be such a property right based upon the previous failures of the a in a medical school but i mean that the court admitted he had a property right and in fact the exact language that the judge  he has a property interest in ever kid education if he meets the school standards once again a fact if then if you make the school standards well everybody he certainly up into the time he was left the school he was wasn't whether he had to pass at first to be readmitted or that was just another condition meaning that would be an accommodation you want have to pass it and then you come back and you take it again later so the answer that i know i really don't know that nothing in the record that i know that reflects that maybe i was being counseled yes your honor ok but the property right gets you the constitutional violation right right right and so what is the possibility that you could have a claim  mr hudson davis at five o seven fed appendix three fifty nine to twenty thirteen case here are the circuit but what i would say is that they're not even asserting that they have a property right in the education the factual record that was created the pleading which is really what we're focused on here indicates that mr shake voluntarily withdrew from the university at that point once he voluntarily withdrew from the university he no longer had a property interest he abandoned it so to the extent that he has any property interest at all it would be a property interest in readmission to the universe of our briefing site several cases that indicate that a an interest in remission is not a property right unless it is a bilateral interest there is nothing in the pleadings that plaintiff file the district court that indicates there was any kind of mutual understanding that mr shape would be readmitted to the university upon any any intervening event well  you talk about a mutual understanding but doesn't he indicated that he was given an option you either would draw or you're going to be you going to be kicked out anyway and if you would draw on then that makes it understand the pleadings is that his voluntary or involuntary withdraw and maybe maybe i'm not understand the question voluntary withdraw resulted from his belief that he would not be able to be readmitted under any circumstance if he did not withdraw so yes it is the case that he did it for that benefit but he did it for that benefit meaning he understood that he was leaving university with only a promise that he could reapply not a promise that he would be rea the pleadings don't represent any kind of mutual understanding between mr shake and the university that upon some sort of intervening event he would necessarily be readmitted to the university as a result there's no mutual understanding between him a property interest in this case sufficient to find the fourteenth amendment violation so it it but it is a fact or you can tell me that he was going to be he was going to kick down if he didn't drop that's the allegation  is when you don't pass the united states medical licensing exam you are not permitted to go forward in the medical school program and what happens at an end universe of color in any medical school at a medical school in the united states that requires that exam and so he was at a point in the program as i understand it from my client that he would like to be permitted to proceed which is why he was given a leave of absence again it's not the record and i understand the universe understands that it's bound to the pleadings but the fact of the matter is is that he deciding that he wasn't going to be set for the university anymore obviously there's a limited number of seats and so holding on for somebody that can't pass the exam just doesn't make any sense in any of that we don't believe that he has a property interest that would trigger a fundamental right or because that wasn't developed below aside from reliance on cases that are already binding on this panel and the briefing doesn't really address the issues that the court would have to address which is whether there is some sort of congressional finding supporting  violation keeping in mind that abrogation in this case is really not properly analyzed on the briefing that's before the court as to the rehabilitation act claim obviously the issue before this court is whether the pleadings support a rehabilitation act claim now it's our position that the soley solely because of standard the causation standard is what was at issue in the district court it's not clear from the briefing here before this court whether it was an accommodation claim or whether it was a discrimination claim i believe judge graves you had a question about which it is in this case other brief and below and all the discussion below indicated that the claim was based on discrimination wasn't really until the briefing got going that we realized that there might be some sort of accommodation issue there are a couple points for this court to consider on that score the first of which is under the rehab act it is a soley a sole cause standard and in this case the pleadings indicate two reasons that mr shape was given for the  was that he was a poor applicant and the second was that he was a liability for psychiatric reasons so taking those as true those are two separate distinct reasons this isn't a case where we have a claim of pretext this is a case where we have a claim of two separate clauses putting him outside the the ambit of the rehabilitation act i would also point out for the court that it's not clear whether mr shake ever saw any regarded as claim under section forty two u s c section twelve two zero one eight public institutions state agencies like texas a and university college of medicine are excluded from having to provide  accommodations in cases where a disability claim is predicated soley on it regarded as theory and so in this case even if this court wanted to send something back down for dish no briefing or additional discovery  wouldn't be right for that largely because as i understand mr sukie his argument this is only regarded as claim for purposes of the accommodation with that in mind there's really nothing to send this court back to send back down to the district court i would also push i don't see anything in the case law and i don't see anything in the briefing that supports the proposition that by pleading a case that triggers a discrimination claim under eighty eight or rehabilitation act that is causation is it is necessarily have to go to discovery in this case we don't believe that there was any discrimination that was alleged under the rehabilitation act that would trigger discovery again because of the soul the soul causation standard shape was given the offer to withdraw from the rule was really voluntary you really have the middle state at that time based upon of mental illness for it to be considered voluntary was you under duress was a coerced but some of it based upon the mental state that he had at the time which frankly was caused in part by the misdiagnosis and the mistreatment by the texas a and m doctor an important fact it's important fact and just as a matter for pleading purposes we did not only plead regarded as kind of element and for both of us it wasn't really brief below that much for the most part we stand by our document we stand by our pleadings we stand by our briefing i just did want to reiterate that as far as i can see there's an admission that he was kept out because of his mental disability and there's a fair fact question about whether it's soley or not and in fact let me read the exact statement that counsel put together and in his reply brief he was talking about the interplay between the a t m five zero four and he says on page twenty three and twenty two for twenty three he said shakes a d a claim does not involve an album commutation puts causation at issue so right there squarely he talks about causation being an issue when we read that and back to what the five zero four section is which it falls under so we know there's a causation issue so all these it's only deals with causation that's under the bed in case you can't get to an issue of causation until you do discovery and i think for