mourning may please the court my name is kimberly lao for the appellant jeffrey keppel on august twenty fifth two thousand and fourteen the state of florida through valencia college punished mr kapi for exercising his right to free speech to his college disciplinary hearing the speech issue involved text messages the keppel sent to jane doe and one night after a telephone argument and after her ex husband not a student verbal e threatened to kick couples butt and get him kicked out of school the messages at issue were exchanged between two adults over the summer when no classes were in session in their private homes taking place off campus miles away but that's the troublesome issue in this case and so i'm glad you went right to it but they both were still at that moment really than the christmas break things could be regular anything is that right they were in between semesters and no classes were in session that rat and the tinker standard though requires that there be a material  that this particular out of class conduct was not so disruptive as to impact the educational environment at the school as you point i'm arguing that as well as the fact that their own not been successful for the universities but but do you agree that if the university were allow sexual harassment to be undisciplined and indeed unfettered on a campus that that would adversely affect the educational quality of the university as a general proposition yes yes ok at least to the university couldn't say look we're trying to teach you but you guys and gals you can have whatever sexual aggression and stalking on other people that you want that would that would impact the educational quality so if the university has the ability to govern it then how surely they've they should have a policy that does it and what is it about this policy that you think is improper i know you're saying it's vague and it's it's ambiguous and a bunch of other things but  then devolve down to where they miss and over breath we argue that it's overbroad and vague as well with respect to the policies themselves it's shown that to john policy in the temple case it's very similar to the villain see a policy at issue here as opposed to the one that was analyzed by the district or whatever where the policy was and vague in your opinion where the policy said among other things you can be disciplined if you send e mail messages to  and whether those messages are sent in class or out of class or during spring break or between semesters if the if they give because that other student will be sufficiently impacted by stocking that if we allow that policy the whole educational system will be will be impaired if that was the but if the policy was written that way would you disagree that that the university could have done what it did here the coll the policy that we're dealing with does not have anyone say met in construction so i'm just trying to decide what it is about this policy that you find in adequate i think there's four factors and i think you make a good case that several factors may be overbroad but they're violating a b c and d that that wasn't the numbering but all four of those factors and if we find that one or two of those factors were valid could that be because the university's decision be a firm no your honor because they would still have to go through the analysis in all the elements for each of the four policy separate issue and they did not so if we found one factor overbroad but the other is not and we found that there was evidence on the non broad factors you think we still would have to reverse yes but they're not they are all over broad and vague because they do not include an actual definition as to the lewd policy i'm just trying to say do we have to do we have to agree with you that all four elements four four prongs that were addressed here  know the stalking that the lewd behavior the physical threatening and the other when do we have to find all of those overbroad for you to win or just one of them you need to find that all of them are over broad and vague if we win on the as facially unconstitutional that answers my question let me go back to what judge ebell asked at the beginning just so that i'm clear it is not your position that the college or university cannot regulate off campus conduct to the extent it affects things that happen on campus know where they are doing it wouldn't a text or e mail student be off campus to off campus threatening student be in one way or the other whether sexually physically or otherwise the university have a right to step in in a dress that if there were evidence of that threat yes i'm saying if the student a sends a threat to student  text or e mail threatens to kill threatens to rape or threatens to stalk threatens to harass you would not dispute that the university would have the right to step in assuming that it had an appropriate disciplinary procedure and mechanism correct that's correct i'm not disputing that that's not here though there were no directed threats to jane or the valencia community there is none found in the record or certainly harassment and stalking electronic social media stalking whatever you want to call was are not your honors there's been not been a single college case that has been decided to show that there's been any kind of facts scenario that similar here but you know that wasn't my question there were certainly social media or rassmann and stalking was there not there was no harassment here your honor because they did not go through the elements of their own policies i'm not talking about their procedures i'm talking about the facts all those contacts in the content of the contacts and what she testified without substantial dispute that stalking iran if she did not testify i'm sorry what she put in her complaint and what she told the investigator the fischel the defendant it not and that is harassment is it not i cannot i cannot agree with that position your honor really so somebody can can contact a woman who keeps telling named pleading with him please stop i don't want to hear from you anymore and with the content of these messages and that's not harassment your honor the messages that you just referenced please stop did not happen during the window of time that the alleged messages that were allegedly if offensive well is there any dispute about the texts that were sent i thought everybody agreed the texts were sent the only question is what significance or to be attached to them right you are correct that's not in dispute it's not in dispute among other things that couples center row the following quote the second class was done respect i got a right to feel a little used damn right i'm upset at the moment i and i guess so dress like a hooker and now act like it just sucks i didn't wear you out then skinny legs and so on and so forth them to don't think them tiny who are short you don't think that  that's not harassment your honor the harassment requires that you need to look to both an objective and subjective view which one of we fucking under here there was no subject view that she actually felt fearful threatened or are harassed she didn't there is no evidence she felt harassed i thought she pleaded with your honor's that occurred after the deputy had already talked to him  deputy contacting him and he admitted that he did not ask her whether she was fearful whether she felt threatened none of that was in the wreck what inference would one reasonably draw from the fact that a she filed a one reasonably infer from that at least at the outset to commence an inquiry that she was concerned that threatened to put it any way you want she was sufficiently troubled personally to complain in two wholly different for would not a dean of students infer from that that she was subjectively troubled by what had happened here he could not have if he was given evidence that there were other reasons why she had raised the complaint to begin with to walk into the valencia college office namely because of her ex husband's behest and because the call to the sheriff was not from herself it was by her ex husband which was put into the record as what does she sit down with the sheriff and lay out all this stuff is it the boyfriend who speaks to the sheriff or jane roe it was the boyfriend you know never speaks to the that was not the first call that's not my question will do much better if i just get a simple answer to a simple question did jane roe speak with the sheriff she did indeed at some point later yes ok after the deputy responded to the boyfriend's phone call he went and talked to john and then after that he recommended that your client quit contacting jane and then your client immediately started contacting jane some more and jane told koppel twice stop calling me do not have any contact with me and he persisted that's not harassing your honour's the policy is clear that they did not have your on about policy i'm talking about is that arrest does that invade her rights it doesn't invade a woman's right arm mantle right for that matter for somebody to keep calling him through the night on one occasion in making all these which he admits to contact lewd comments that are sexual in an offensive or read way that doesn't violate or invade her right now your honor because there are two adults and she continued to engage him as well this was not a one sided contrasts are it is that your position no it is not my position i am saying that he she turn off the cell phone but did she not tell him leave me alone don't call me and don't text me anymore is not on the spirit in this record she did that at some later point yes you are correct and did not proceed to speak with her still further after she said leave me alone and stay away from me did he honor that request from her he responded to her so that's a no he responded to her message examination no was there evidence she was not available or simply that the that she wasn't brought in they had already had a complaint and that mr kopel didn't ask to have her come in mr goble never he never made a request for her that was denied duty he had no opportunity to have the request made because he was directly told by the dean of students that she was not going to be attending they did not have any was there a did have an opinion say well i object i w examine or you never said that you did not know that he could in his in his declaration mr kapil says that he did not know that he could actually ask him to do that a corporation in the district court at a stretch but that may have just been a misunderstanding of his of the law then because i think that there's a president out there this is that the due process would have given him a right to confront accusers if he wanted to assert it so me who's who bears the responsibility if he is mrs stake and about his legal rights  mean this is a very important point was it i don't think it's really been addressed in the courts before but but you are asking us to say gay it might be determinative of the outcome if you're right you're asking us to say that the school board has a miranda obligation to advise and accused of his constitutional rights i'm saying that that burning cannot be put on a student who's going through a student discipline process to understand what his constitutional rights are including when there is an r ex parte statements that are being made to the dean of students that are and then going to be unchallenged and remain accepted as true without the opportunity to think and let me ask you the question this way what facts are in dispute here as opposed to what inferences one might reasonably draw from the facts i understand you say that accepting everything they say is true in the text it doesn't fall within the domain of anything that the university can regulate i understand that you say that it's any event it's protected speech i understand that any way that you say that there are rules and regulations violate the first the member with both on the grounds of over breath and vagueness and i understand you to say that it violates both procedural and substantive due process and i understand you did say that it violated title nine as well but i'm asking a different question i'm just asking a pure fact question what if any facts were in dispute as opposed to what inferences or spin one were to put on those facts whether or not jane was actually fearful or felt threatened whether there were any direct threats made there was no dispute that text messages were sent to her or not but whether it's a direct threat or not is a characterization that one would put on but we know what was said because we have the texts themselves so the question is how we construe or interpret and i understand your position to be that those attacks do not yield a fair conclusion even an inference that there was a threat or that she was sub subjectively fearful it's not what i'm asking i'm simply trying to find out whether there were a basic core building blocks of fact in dispute here and it looks to me and maybe i'm wrong about this and i want you to help me with this in the record but it looks to me that the facts are not really in dispute there's no dispute that these texts were sent there's no dispute that some pictures were sent there's no dispute that these conversations ocurred there's no dispute at one point that your client threatened to use a firearm on her boyfriend there's no dispute that she didn't testify but simply filled out an incident report what facts are in dispute other than whether she was that oblique could have felt threatened or fearful from that which seems to me to be an inference to be drawn from rather than what was actually said there's no dispute about what was said here is there dispute is whether the actual definitions of the policy apply whether there was physical abuse here ok then why would it matter whether there was the opportunity to cross examine general or not the question is the spin to be put on it the interpretation to be given whether it constitutes something that merits the discipline or not and the wisdom of the sanction that they imposed the facts are not in the spewed here this is not the kind of case where she says he did this to me and he says i did no such thing or she says he forced himself and he says no it was purely consensual and you have a credibility debate about who do you believe we don't have that problem here what we have is how do we interpret and apply essentially an undisputed factual record am i right about that  respectfully disagree because what one of my missing that's what i'm trying to get you to tell me you say you do respectfully disagree tell me what facts were in dispute other than the assertion that she did or did not subjectively feel threatened by this whether there was actual physical abuse whether there was an intent to injure or harm these are all elements and their their staff their policies that they're applying it when someone's good reputation good name and reputation is at stake they're entitled to due process before their name is impeachment that was deprived here in many ways i thought that there was two two facts that had to be addressed one was did this cause the student to did it affect the student's ability to be a productive student in the university and that is seems to me can be well established by the complaint that she the statements that she made but there has to be a second finding of fact as well and that is that the university's educational environment was impaired as well i thought that could be established by the expertise of the disciplinary committee they were expert about the university environment and that without any other evidence they could make a judgment of whether this fact impacted the university's environment so it seems to me that two facts of of consequences consequence of the victim consequence of the university we have in the record evidence undisputed record evidence on both of those things the thing you keep coming back to is we don't know what his intent was but i'm not sure that as to stocking and so forth that his intent mattered and even if it did matter isn't there more than adequate evidence about how intent could be in stated by the committee on what those findings war with respect to how the text messages that were sent to a college age student that had nothing to do with school that's a different question are you now making a separate argument that there is a constitutional obligation to make more detailed findings then this committee did i mean is that the point you're not trying to argue no your honor i'm arguing that simply there was no evidence in the record to show that the committee itself had determined that this was adversely impacting the college community well don't we know that by the fact that they've they've disciplined i mean that the the the policy itself talks about the need to protect the universities educational environment your honor that policy does derive from a very arbitrary and vague understanding of said these four were violated whether the committee if we found the one or two of those was valid if that would be sufficient to uphold the committee's result and i must say i'm a little unclear on your answer on that i mean i asked it once i guess i could ask it again but although i don't think i'll get the same answer i asked before so i guess and given the fact that we've used all of your time pursue that think you want to use a little bit more of it are you arguing that the result in this case given the historical facts and the result of ali the tanker standard or amendment standard for him speech i'm arguing that the no that the tinkerer standard applies to not be able to have the lance you college actually prescribe this type of behavior that had no material in substantial disruption says not what thinker says conduct by the student in class or out of it which for any reason whether stems from time place at top of behavior materially disrupts class work or involves substantial disorder our invasion of the rights of others or invasion of the rights of others may be punished in class or out if you invade the rights of others think assuming as i gather from my colleagues we all agree that your client invaded the rights of the complainant there is no finding of that your honor in this record i just found no reasonable fact finder could find to the contrary he admitted lewd sexually related comments it's undisputed after the cop recommended to him he stopped doing it he did it all night long and she told him to stop it's also as i understand it undisputed that when she first went to the dane of students he testified and  is testimony that she appeared nervous and concerned and then when she had when he had the lighter informal conference with her before proceeding that she said that she was appeared concerned again and she said what's going to happen i don't want to be in class with me that to me sounds like she did say that it was unwelcome and she didn't want it and it bothered her and it makes a subjective standard is really do with interferes with the academic environment and that it was a  in the academic environment in order to try to address that we were in a different section in that same deposition we also asked whether it's possible that the ex husband's domestic violence toward had actually been a result of that fear and apprehension that she presented with since he walked her into that college and he said i'm not going to talk about non students similarly that is why the gun alleged gun reference inference or significance that's in dispute do i have that right that's right thank you counsel thank you i'd like to well first of all that the briefs raised numerous points certainly we stand in our brief with respect to all of the issues that have not been raised here today but with respect to what's been discussed here today i'd like to begin with with some of the questions that have come from the court first with respect to the facts there are no disputed facts in this case in the sense of what events actually happened what words were spoken who went where or did what to the extent there is a dispute or disagreement i hear the other side contending that things should be seen differently or perceived differently but there is no dispute as to the facts themselves she says one fact that is in dispute specifically is the subjective state of mind of jane ro jane roe never said in words specifically i felt threatened by him that's what she says and therefore that is a fact in dispute that is relevant to the determination your honor i will suggest that we don't need a quote from her about that state of mind for the evidence to be uncontested that she was concerned that she was in fear the police were called she met with the detective the detective stated that she was in fear or troubled the dean had the same observation when the dean met the detective stated that there were grounds to press charges and that that was going to happen and she said we don't need to do that if a legacy it takes care of this and that's what then happened  disciplinary proceeding was brought within the school environment that was handled and that from her point of view took care of it and that's the only reason why charges were not pressed here so i would suggest that there is no alternative way to view this she was distressed she was in fear and that's why she went forward and filed the complaint and that's why the proceeding eventually happened and that's why charges were not actually brought he did her affidavit say i am distressed and in fear i do not believe so and i it was a statement your honor signed but not sworn or right but i mean or i shouldn't have said affidavit but so that's right but her statement didn't say i am inferior apprehensive that's my recollection your hon with regard to my biggest surprise in reading this and the biggest problem i have with your procedures are that they appear to presume that the complainant is telling the truth and if you're going to presume that what's the point of any other process respectfully your honor i would disagree that jean they were calling her jane jane was a student she was known to everyone involved in my deliberation of documents and yes these documents are taken as true that's her statement and a formal complaint there are signed documents i'm not going to be go investigating behind the same when i have a witness statement that has been signed an answer report there's been some made by our security officers then a question counsel can't believe what he's hearing is it your position complaints never lie answer i think that is thank you lighting i can't answer that i can only say that as part of my investigation i took these things to be truthful unless it was proved through the course of my investigation proved otherwise and it wasn't my role to make that determination but the committee would have to take this is true would they not for it to be relevant for their determination since ms rowe was not present yes they assume that they are true so i mean your honor i would i would add additional context to that which is that the dean had met with her and that she had been known to them and she had made these complaints there were many opportunities if there was to be but he hadn't heard from the complaint he had he at that point on the sequence of events i'm not sure if at that point he met with had first and she filed her statement and and then the formal complaint first i thought maybe i missed that maybe i've misapprehended this and i think it's an important point here i thought she filed a complaint with the dean the dean then called mr capital in and spoke to mr capital the dean got the incident report and then the dean lodged the charge with the committee to investigate do i have that right or wrong believe that's correct your honor so before he sent the charge to the committee he heard both from the complainant and from mr kapil had an incident report which he had filled out as well or one that had come from whoever filled out the in the police i guess filled out the incident yesterday but he heard from both sides before he sent it on to the committee and i would add to that yours that right yes but i do want to add to it that he had heard from detective rush who had met with jane and who had spoken with mr kapil right but before he proceeded to institute the disciplinary proceeding before this committee of others he heard from both sides in this case yes or no but he didn't say i heard from both sides and i believed her and not him he said these documents are taken is true i'm not going to go investigating behind the scenes look these things to be truthful was part of my investigation where once you assume that one side story is truthful there's no real point in an investigation in this case mr keppel did not dispute the essential facts that we're talking about here is that i think it's been acknowledged the basic facts of what happened what texts were sent what calls were made what communications were that's not what the dean didn't say these facts on disputed out talk to both sides and that's what they are he said i just assume that these statements by the complainer unless mr koppel proves otherwise i would suggest with more context his statement can be understood to be you understand that if in fact you just assume that the complainant was telling the truth that would be a very serious constitutional problem for you we  acknowledge that if that's not the fact here but had it been we agree if he starts out saying he did it i believe her is that create a problem is that the equivalent of a probable cause determination we'll file a charge before a committee that hears it i don't know i'm just asking i don't think so you're right this is an academic situation i understand as a code of conduct and is trying to enforce its code of conduct on students who've agreed to abide by that code of conduct this is part of their educational experience and here when these complaints from multiple sources were brought to the school the school took action and the dean decided let me ask the question this way i understand that the dean heard from both sides before he lodge the charge with the committee and i also understand what judge carnes is made reference to in the deposition or at least a piece of the deposition taken from is it your position that complainants never lie objective for mansur i think that's speculating i can answer that i can only say that as part of my investigation i took these things to be truthful unless it was proved through the course of my investigation proved otherwise and it was in my role to make that determination what are we to draw from that first i would suggest it's not a legal analysis it is no one he's not a lawyer but what's he in essence saying i think he's saying that when these concerns are brought to the school then the school will take appropriate action and here the appropriate action was to  a committee and to have a proceeding where this would be heard mr kapil was given every opportunity to dispute that any of these facts were not true ok so then it goes to the committee and i want to read further from what he says and judge barnes made reference to this is well talking from the deposition one twelve seventeen page two thirteen so there would be no way for them to test the veracity of the statements in a b object to the form answer each committee member will make a determination by the information they have heard by the responding party and the documents they have in front of them what sanction should be the committee members then engage in a conversation and they reach a consensus on that they had these documents so far suggests the committee was making its own independent determination whether the dean of students started out with a presumption of the truth or not but then the dean goes on to say in the deposition they had these documents they assume they are true what's he telling us there that the documents the texts are true or that the underlying complaint is true i'm just not sure are they starting out with the same presumption that she is to be believed and he is not to be believed unless disproven no your honor i  think the context of what was being said there is that he was not disputing the facts of what happened in this case he was not disputing the text in fact there was an email in the record that he sent to the dean where he asked that all of the text be submitted to the committee and he asked that because he knew that she was not going to be at the hearing they can assume he can assume the facts are true what's in dispute is the inference or spin that you put on them yes your honor what i'm asking you is can we tell from this colloquy and i've read everything he said and we tell whether he's starting out with i believe or not him because she was more credible than he or the underlying facts are not in dispute because he never says the basic facts are not in  and whether they've shown that she had the requisite fear etc but what is the dean telling us and when i looked at the procedures there is no burden of proof in the procedures at all at least the ones that operated here as opposed to the subsequent ones is there a burden of proof that has to be met before they can sanction him the committee utilized the more likely than not standard considering all the evidence that was i don't know  i believe it's in the where i didn't see it where did the committee say in words of substance or where does the procedure say in words or substance where using a preponderance of the evidence more likely than not a greater weight of the evidence or some something like that i believe it's in the dean's declaration in this case that he meaning his lepas ition know he gave a declaration that was utilized in connection with a summary judgment proceeding in the sworn statement that he gave the sworn affidavit that he submitted in support of summary judgment yes your honor and in that affidavit he said we use the preponderance they ended basically yes ok let me ask you this your twenty fifteen policy as well as the one before talks about defining sexual harassment and you got they use someone into john third circuit and i suspect you all are a lot of industries we say they get contractual language by line and i spread around the country i don't understand this unwelcome sexual advance request for sexual favors except one which has the purpose or  purpose or effect of an recently interfering with individual work academic performance and so if somebody makes a sexual advance which has the purpose of interfering but doesn't interfere doesn't have that effect perhaps because it's welcome perhaps not for some other reason but that was its purpose that sexual harassment and of making sense to me purpose are effect it make a sense to you i think it should be read in the in light of there being both an objective in a subjective considerations as your way of saying no it doesn't but you can take care of it with languages that they are i me well that's that's i think the reasonable way to interpret it doesn't matter here i'm sorry does it matter in this case i had no support for purposes of the appeal i believe know why i mean we've got to certainly find one of these paragraphs clearly proper because it's been they're being charged challenges on over breath and they've missed and constitutionally and eviden e do you agree that did they we can sustain the committee's findings if we find just one of them was ok or do you think we need to find all and they have to be ok i think for them to prevail in their case they must demonstrate they're not at ease then none of them are any good tell me why because there were four grounds utilized by the committee to impose this discipline and they found all four yes you many times we've read the parties about that this deals with conduct in or out of class i want to know how far you would carry that what if two students that had known each other since high school days and lived in pittsburgh and come to this school otherwise everything was the same except that the harassment occurred during a summer break when they had both back to pittsburgh for the whole summer to work at mcdonald's and at mcdonald's while they were both working this ship flipping burgers they differ the mail said to the female everything that was said in his e mail and she was said i don't want to hear it would with that be a violation of this conduct that could constitutionally justify an educational impact of a getting fired getting kicked out of school suggest that all of these hypotheticals are are difficult they aren't like that but i am i am to me the most important question in this case is what is meant by in or out of the school and just how far can the school take its jurisdiction camy can to boggle rule the world and i just want to know how far we can go with it certainly it can go far enough then to go this far as the hypothetical i gave you i would suggest we probably need more facts and written to your what fact would you need g s he would say i'm deeply troubled looted should lead to the core and i don't want to be with this guy again when i come back to school next year the guy says though this was not on the school campus  i mean in fact in his not that different from our case in that in both hypothetical and the true facts it was when the school wasn't in term they both were out of their term and the contact the communication was private between one person another not broadcast to the whole school it had no overarching political or religious content to it which justifies some of the other cases so i don't know it's not terribly abstract if she had maintained that she was in fear right classes yes if classes were imminent as they were here and the imminent share classes imminent so you mean as long as they were enrolled in school even though maybe the lyce they were going to take the whole three months off and this happened the first week after the class summer began would you think that three months later going back is imminent and where do you get this word imminent what case law it's as that it's just the facts of this particular case we were in a very small window of time between when the events here happened and when classes were all do do you are we going to ask us to make a ruling that there is long as it's a week it's ok but if it's three months it's not are you going to ask us to say that as long as it's delivered in the same city or see in the miami environs that it's ok but if it's pittsburgh mcdonnell's that it's not ok i mean you know i just don't know how far tinkerer goes in terms of in or out of class but would go in the hypothetical i gave you just doesn't feel like it's very related to the university well and but tinker tells us where the facts have to end in the facts have to end with an invasion of the rights of others with substantial disorder or material disruption well and she so is mike hypothetical she would say boy what that guy did to me or what he said to me not what he did anything but what he said to me and in pittsburgh and then when donald so one nervous me judge that i simply don't feel good going back to school with him and i think you  he sexually assaulted her on a trip and dependent of the school in the dead center of summer and europe in europe and the european authorities as those crazy americans we're not going to bother with it they're already back in the united states so he doesn't get prosecuted and the school says i'm sorry we don't want anybody in school who does that and we make a factual determination have to given your procedural due process rights you did it now why is it such a stretch to think that the school has the authority to do that as it doesn't have to admit anyone to school who has a wealth of a rumor of sexual harassment about them once you get in school you've got more rights but it does not at all shot my conscious to think that if somebody misbehaves outside of school and a student is going to have to be in class with that person the university has the authority the right and i would argue the duty to get him out of school i would agree i take it you don't have to go that far to either answer judge concert judge ebell i would have thought your answer would have been those are not the facts here we have a very different story we have two people that were in a biology class together they were in a study group together and then he started to send her these e mails in which case we would have said that's fine we call it a happy note that a call but with the difference is that yes you busies me the difference is that they were not in school the term had ended they had gotten their grades i think even not mistaken and the e mail didn't involve school facilities so to me i just saying it i don't quite know how far a tanker reaches and whether it reaches this farm is not a hypothetical that we can just ignore because i think the question is does it really is is this sufficiently connected to the university that the university undertaker up can can prosecute can they make consequences for this speech  between semesters yes your honor how much time between the time these were exchanged and the time that new classes were supposed to store just a few weeks your honor we know that the record would reflect the amount of time and how far along were each of these students in their studies there were sophomores freshman juniors do we know less than that your honor thank you in the code of conduct from two thousand and fourteen in the appeals section there is reference to one of the potential grounds for an appeal being that the findings were against the weight of the evidence which is entirely consistent with what the dean explained there after where when i find that what page what number your honor i'll give you the pacer it's document one thirty seven dash one page fourteen it's also page ninety six of one of the volumes of the appendix but i don't have in front of you which well you know that is if you read minutes to address the invasion of the rights of others on colloquy that you know the discussion of that with relation to what was stated in tinker really related to this conduct during the school day p blue mountain lay shock you all were koski you got dovi george mason all of these cases involved off campus conduct sexually explicit nature with profiles that were you know my space profiles facebook profiles things that were viewable by others that actually were not found to be something that the school could prescribe in the first amendment because they were protected because there was no substantial material disruption of class of the caught even when there were students showing up with abject terror when there are students who felt distress orts in those cases fun that they invaded the rights of others but it didn't matter because it happened outside school they didn't use that language because there's different types of there in the circus treat them differently if that's your position i gather right now is yet what you're pressing ok yes your honor the case is the decisions and we'll read them but they don't say that not specifically with that phrase your honor so these cases are instructive however and relevant because they deal with the kind of conduct involving even with respect to dovi george mason those were college age students the n c a college has not cited to a single case involving a college age student who has felt that their rights were were in the invasion of the privacy of their rights had been violated in this scenario because there are different pedagogical goals with respect to high school students versus college students and that's why that wouldn't be relevant here i would just like to also say that you know with respect to how far can you take the jurisdiction the hypothetical that your honor had raised you know the way that the policies are currently consider were constructed in two thousand and fourteen any conduct by somebody who happens to be a student directed at somebody who happens to be a student taken anywhere outside of school could potentially be a violation of the policy that in and of itself is entirely overbroad and it proscribes conduct that is protected by the first amendment and with respect to the weight of the evidence some reference that was mentioned that was with a respect to appeals only that it has no that has no instruction as to was there when i asked your colleague this question was there something in the record where i had made a declaration affidavit on summary judgment to the effect that we use the more likely than that standard you said heat he did make a similar type of reference yes your honor and that is he also said it stated that that's not in the actual policy that way the policy says nothing other than once you get to an appeal correct and i'm just asking is that what he said they used more likely than the standard i believe that the exact phrase was stated differently so