good morning everyone it is a little unusual to have you here virtually as opposed to in person but we managed to do this quite successfully yesterday i want to assure all the lawyers that if there does happen to be a technological problem we will solve it and that will not count against your argument time but i think everything should go quite smoothly and you are here today with myself chief judge diane wo this point in this litigation is mr city interested in serving as a member of the interim ford of trustees is that correct certainly one of the important issues in this case but in this instance we're dealing with the relationship between the university administrators and people who are at least interested as mr city was in serving the various student governance organizations as it happens in this somewhat unusual time the board of trustees but don't we need some clearly established law about what degree of authority the university bureaucracy had the university officials had over that thing and that was where the district judge thought that at that level of specificity that there really wasn't as much guidances i believe you are doing there was and i do agree with you by the way that we need to accept the facts as mr city presents them so i think we do need to accept that mr stockton was not consistent in his application of the in roman criterion at least for present purposes so i think the district judge did that too and so i want to know a university official wouldn't have known that the way he was evaluating eligibility was automatically a violation of the st amendment public employment analogy and yet if we follow that path it seems that we wind up following it into doctrines that you then want to dis disavow you don't want to get into the clinic pickering balancing test you describe the role of the student trustees so important that in any other governmental setting it would clearly be so i'm wondering how in essence how you can take advantage d of public employment analogies in this claim of the more bitter doctrines that would  but you do concede that there are some reasons that they could have taken his name out of the basket me suppose they said you know we were not going to let people with a grade point average below two to serve in student government as part of our educational mission would that be ok well i know what it was in this case but i'm asking you you know looking at this wisconsin statute which you correctly say is not the measure of the st amendment but still somewhere in the background there are powers that the board has over the student government process for example  has responsibility final confirmation for the way they want to dispose of fees so i'm just wondering whether your position is a very firm one that there's absolutely no say that the university board and its it organs might have over the student government participants or whether there are some things but just this one was wrong well i do know i was actually thinking about that this morning and frequently actually and of any practical circumstances and he actually provision in the statute that applied to actually do that as far as i can see this really is an absolute i don't see anything in the statute that i can think perfectly fine for him to work to get mr stockton fired for his position defunded but it violates the constitution for stockton to fight back when he's seeking a position any student government interpretation of the facts so you say many times over in your briefs that the reason mr city was not in the pool of candidates for the board of trustees is because he was not at that moment and rolled and didn't become unrolled until august when he paid his fees and there was some evidence in the record to suggest that at least one other student was in a similar position disputed to be sure but other evidence did seem to exist so i think we need to proceed as though mr stockton deliberately pulled mr city name out of the pool and didn't allow him to go forward for this position and i ask whether that kind of action retaliating against objections to mr city x speech is permissible and so i wonder for example whether you would think it was permissible if mr stockton had said you know mr sidique has urged that you know the state of wisconsin secede from the union or some such thing is some very unpopular political point of even defendants who violate constitutional rights enjoy to qualify committee to protect them from liability for damages and must it is further demonstrated their conduct was unreasonable under the standard where i think mr fatigue briefs in arguing on that lie is attending to  over the six years since the underlying event so could i possibly wronged you or is your position i'm sorry for the interrupting this little bit hard is it your position then that the that the lack of  clarity for that nd part of qualified immunity comes about because of the relationship between university administrators and students and the fact that there are many iterations of that relationship that could exist so mr stockton i'm just asking whether this is your argument that mr stockton wouldn't have known that he couldn't exercise this much control over who's in the pool that is that is correct but it's not clearly establish right but beyond that that is just the state law elements of the analysis and again the u s supreme court and davis made very clear going directly from the decision official libertarians are going to be denied access to university housing that does seem plain yes that would be pretty clear rank and i guess what i want to focus on is the the difference between what i will just call ordinary life as a student and the ordinary  that would contribute to whatever constitutional fog or uncertainty would support the qualified immunity  important here and i just think additionally that the reliance on labor alone to not engage in any st amendment law addressing the relationship you just described murphy what if there had been a long line of cases from the supreme court of wisconsin construe i know there hasn't been a long time but what if there were a long line construing thirty six point zero nine five and particularly the last sentence of of that statutory provision and they all said students have an absolutely unqualified right to select their representatives to participate in institutional governance they can allow former students they can allow students with terrible grade point averages they can allow troublemakers they can anybody they want  and mr stockton just flouted that because he didn't like what mr city speech and positions had been i mean cities trying to get rid of his job right so they're different aspects of this  i'm trying to explore to what extent the content of state law helps inform our understanding of the clearly established st amendment the arguments that you need is that the police department did not follow the state law procedures for terminating and from employment and the us supreme court found that state law violation to be not sufficient to the what of the what of to consequences of the state laws violation are the sort of thing that would cause a person of ordinary firmness to refrain from exercising his or  her st amendment right that's the st amendment test message mr greste was talking about and he was saying that this measure that stockton took to pull city name out of the pool of people for the board of trustees was in fact something that person and that that would be that would be relevant for a st amendment merits and else but i still think that to overcome qualified immunity there would still have to need to be some connection between clearly sabbaths right and the additional conduct it's a little hard to answer that in the abstract but i think it is your your question goes to something that would be highly relevan a st amendment analysis it would not on its own overcome qualified immunity ok and i'm more than happy to continue that and where of it and i don't know as a matter of student court procedure how that would be resolved  is not about it's not about anything at the chancellor did or not in recognition of the prior student government or the independent outside review which panel or not defendant the student court decision to create a board of trustees or the new government student court ordered the creation of the of the board of trustees one requirement was enrollment city quit not enroll and stuck it did exactly what his job required in fact in the words  mr city applying the criteria in the same way that a computer algorithm could i interrupt you mr murphy and say that you're in your last minute  st really start could i ask you though i'm concerned about who's really still in this case and your brief doesn't say anything in particular about thomas and i'm wondering whether you have anything other than effectively responding superior or going to have to we're going to leave it there but we've course have your briefs and we thank both of you and mr murphy for participating in these arguments by audio it's very helpful to society the court etc so the case will be taken under advise