a state rule and a state after for the high standard constitutional liability to attach to private parties appellants requests that this court refer summary judgment that was granted in favor of ms for out because as a matter of law there was no state rule in this case the joint employment between mr ritter and lose for university as a matter of law is insufficient to meet the lucar second prong of state actor and gu richard's conduct is bearly attributable to the state and we back to it the first test of there being a state rule in american manufacturers mutual insurance company versus sullivan there th from court health that there was a state rule the state rule was a pennsylvania worker's compensation sachin that made it very clear i'm not your honor suggesting that the only rule would be that that is a statute but it is that kind of same high standard in edmonson we see preemptory challenges being held to constitute state action but in that case there was rules of civil procedure that were governing what was happening in the court the district court here where eared is it how that because bloomberg university allowed guys or medical center which have a private policy that apply to all of its nurses and that that private policy was not the program but in the green it they need clear that basinger shall have sole authority and control over all aspects of the clinical provided to the student right which which raises the question of if that's true why didn't your client richard just send a letter on geyser letterhead saying we hear it guys in your require from time to time drug tests you failed to take one in just like the other four people we fired you're fired let us know if that's not what happened you are the reason that it was on me it was on joint stationery he was the program director but what does this court has taught defender who was solely a state employee suddenly becomes is a doctor this court has is kind of consistently done a very careful factual analysis about the what how the person is wearing court has not john lines there are no by bias in this area it is very messy and it's very fact intensive and that's what the court has repeated is that you have to look at how the person is acting to the district court agree with your paradigm no your honor the district so that analysis never occurred then about what had he was were correct your honor it was just a status he's a joint employees look at the letter state actor yes your honor that was exactly what was concluded and greenberg was where i had two hats as well he was a blockade in university i mean in having as the program director he was also hired a private entity of which he was the presidency yeah and so in that case the point that we have to look at why he's acting what he's doing what's his mate motivation and what's his authority and he has this court has this is italy how that there is a very high standard for attaching hostages so liability we have to look at the facts and where the authority is coming from and here the testimony was undisputed at summary judgment in favor of basing a medical doctor effect that said basically her hands were tied because the issue was one that was happening within the clinical training program where under the contract they had to follow the contract and allow guys in for medical center to make the decision has in the contract it said that he had the authority to exclude the registered nurses from being able to treat patients let me ask you this question in the system that we find that there there is state action here and you've also posited the defense of qualified immunity as a private was a private actor ok and so that was what we had argued at summary judgment and then the court had a pint that instead of that he would defer ruling on the issue of qualified immunity which was also clad in our amended answer on the allow one rebuttal but since you're only off for a minute but give it to our viewers i'll be happy to answer questions about any of the issues in it all these appeals but my intention is to focus all of the due process issue that is whether law and in a case like this it is up to the point of to establish exactly where in state law this is certain property interest is rooted it's been recognized as it not mr nor that graduate students have a right to continue a program they have some right i'm sorry i didn't i didn't hear they graduate students have a right to continue in their program no there's no right no they don't have a contractual right where does this come from is our where you paid you paid tens of thousands of dollars to university and they can just throw you out and you have no rights i would say they have no right they may have a breach of contract action that's why they have it yet they want the tuition bite you're saying they have a contractual right but not a property right that's correct ok that's correct for a can crack group for a contractual right to rise to the level of a protect the property interest this court has said repeatedly there has to be an explicit for cause provision in the contract and that's never been pointed out that does that doesn't exist in this case there's music row has pointed to a lot more regulation you know then judge the pseudo find various district court decisions that found that there was a property right yes they did that was that's what the district court walked on he relied on the old ross case in the one nine hundred seventy s and the cases that follow it they follow it by the way with no analysis whatsoever no discussion it's a dr ross is there any pennsylvania case on the question not to my knowledge your honor there is not is it sufficient that a that there were district court cases there interpret in pennsylvania law or seemingly interpret in pennsylvania law on the existence of property rights in our view the ross case is both outdated and distinguishable from it's not entirely clear what his records analysis was based on across there there seem to be kind of two streams one is well there's a well fine we have it at least an implied contract here as well but where's the for cause provision in our contract and then this record said well we're relying on statements of policy from the university in that case it was penn state fine we have statements of policy here as well and now that not only do they not have a for cause provision they seem to point explicitly in the other direction that at least as regards to guy singer his real head on the status of an employee that will so we're in state and there was girls dismissal academic yes it was how can you say that when we just heard mr tutti our view that this was a private hospital that has its own rules and regulations n test i don't maybe i'm i have to cramp the view of academic but well if if she was no longer able to work and i think her hospital where she academically qualified he continue in th involves a clinical program like this or or say student teaching ophelia that they have to demonstrate an ability to to comprehend and to follow not just the book learning and not just their technical skills but the workplace rules and the professional norms are govern their profession and when they feel to do that either because the amount off to a supervisor or they have an acceptable personal hygiene the courts have uniformly treated that as an academic matter she's just on wanted it guys inger and she would have to recover from this and start a new another locale well that's exactly correct and i suppose in theory if we had had arrangements with more than one employer more than one health essentially held that because richer was a joint employee he didn't necessarily follow that there was state action but i think that that was one of very many factors all right and do you agree assume you don't put do you agree with mr tutti that we need to evaluate which how mr richer was wearing at the time that he decided that your client could not participate in the guy but he didn't did he dismiss her from the program or did he fire her from guys or the program he dismissed her from the program yes if you're saying the program is a state program i'm saying yes it is and it is a state program so yes he was a joint employee but he didn't fire her because she violated any bloomsburg rules he fired or for the same reason the other four guys are nurses who work part of this program were fired correct yes so that lot like a private hospital deploying its private discipline policy for its nurses incidentally he applied it incorrectly but you are correct of course those other four nurses were not entitled to d process because they were not part of any collaborative program there was no acting in concert with the state actor all that they were also all of them were nurses practicing in a hospital where the danger of having a nurse or an employee frying to operate under the influence of drugs clothes or an ability to immediately terminate that employee and isn't  serious concern but the difference is this is not about whether she was or wasn't using drugs on and that is really truly another story this is about whether she was or wasn't intitled to due process in order to determine if she was using drugs the hospital had the right and it's in the joint program acknowledging that they're following the hospital policy to test her for drugs now when you're testing someone for  you don't want to wait till the next day or the next week you need to do it right now if someone says well i will not be tested that is certainly an indication that reason he doesn't want to be tested is to get a positive yes well it might be in this particular case on in fact under all of the facts in the light most favorable to guys in your she actually had not violated the drug and alcohol policy on and she had not violated the prohibitions of the policy nor the drug testing aspects of the policy because of what remains of the actual policy which none of the defendant actually did it prohibits use or being under the influence of drugs at work and the the only information that guys in here had which was false but they had information that assume that you know her friend said rob the hospital still has a right to ask its nurses even if eroni is to take a drug test that's the policy right well it's actually not the policy it's what the policy should have rated but it's not what the policy did read the policy does not allow them to request or require drug testing it allows them to require drug testing  in order to shore compliance with the prohibitions and the prohibitions are defined very specifically about using or being in possession of drugs at work right but if they if they were being that were being under the influence yes or being into the night and could and her appearance given in the belief that based on past information that she would you then using drugs and could perhaps be under the influence yes and that's true except that when they said the only we noticed three months earlier one day she came in looking tired and her nails were chipped or nail polish was chipped they said we didn't they did nothing about her periods nothing about her demeanor ever made us think she shouldn't be in with patients administering anesthesia and in fact on the day jury they requested the drug test she was in an operating room  administering anesthesia they had received this report the friday before and then on monday when they asked for the past they asked for the test around eleven am she had been in an operating room since six am it ministering a all of the witnesses said we never would have allowed her to go in and administer anesthesia if we thought she were at all under the influence they also said incidentally we would not let her drive home after this if we thought you were under a state actor that's that's correct so like we're just ratified here so i'm you're saying it's not the conduct it's the status that's that's what i'm really wrestling with in this case was if if it's the status you're a clear winner because richer was defined in a admit that he was a joint employee but if it's if it's the conduct if it's that that the hat he was wearing then you might have a problem right because he had a right to implement the hospital's sanction for those who refused to take drug test well if we talk about the status he defines it as director  which is a pretty clear about acting in concert but he did not invoke the bloomsburg handbook or anything like that he invoked geysers own private policy which is the same policy that got the other four nurses that weren't part of this program fired yes he well he invoked it in saying he should have taken that drug test they also included in the terminations letter the pages from the bloomsburg university department of nursing student handbook which have to process procedures they included that in the terminations letter of embroil was an employee of the hospital before she entered the program yes so one of the challenging i think  parts of your argument is that you're asking us to ratify a decision of a district court that inhibits the ability of a hospital to punish one of  employees if that employee later in roles in a curricular course well you know her status changed she had been an employee now she's a student in this drug program so students can't be drug tested at the hospital it seems a little upside down doesn't it someone who works for guys inger for thirty years as a nurse can be drug tested but somebody who works there for a couple years then becomes a student can't be trouble she was drug test he she said i will pick the drug test if you test everybody but she knew that even when she takes the drug test and it's negative that will be on her record and that was pretty i don't understand that that was pretty bo what it looks like is there was some suspicion about you and so future employers are going to say ok you came out negative but someone suspected something about you there there must be something there and i don't find that did it's it could be viewed either way depending upon who's looking at the right but she said test everybody test me and everybody else well i'm not sure she has a right to dictate that to the hospital royal that's a little bit  insubordinate one might say or what i don't know i guess the other way to say to she's crying out for equal treatment in fairness and she thinks maybe some of the other people are on drugs and they're not testing them i guess i think that i'm being singled out for some reason i know they're whining but i don't know why and that's what happened but there's so much more about the acting in concert well there were other joint employees even during the time when there were the clinical aspect guys and go oh the students are paying tuition to the university on all of that is is clearly in your favor but then the question becomes do we do we separate out the decision to fire and i guess your answer to that is even you don't want us to do that but even if we did you're still making the point look at the letter he self identifying at the time of firing as someone who is wearing both hats that's right he's wear both hats why disfigure signed the letter why should you know of that joint guys and girls bloomsburg university program mr diller if you would would you address the argument that mr nor made a reagan whether or not there is  equivalent of a municipality which would never be entitled to qualified immunity just like there's no carious liability on that's why but bloomsburg is a state entity is it not it is so if your first argument is that guys inger is liable here because it's a joint state actor how can you extricate it as something else when it comes time to evaluate qualified immunity because it is just you know just like there's a pallet in his act through their employees guys and girls an organization acts through its employees it is in and if i wanted to prove a me ask you a little more straightforwardly are you saying that richer is a state actor for purposes of liability but he's not a state actor for purposes of qualified i qualified immunity for richard was waived while it was played in the answer it was not pursued until subsequent to summary judgment being granted in his against him on wall normally  immunity could be a trial issue depending on how the facts go the jury can never decide if the law was clearly established but once liability is established it's too late so whether he was or wasn't decision in tran that says that a student at a public university does not have a contract right  no because property rights i mean the u s supreme court like in perry versus sentiment they said is based on expectations including of on previous events so just as judge hartman said earlier if you pay your tuition you do your work you know what god has been expected in the past that is an expectation which results in a property right under state law and on all of the cases i disagree with mr nor that ross is an old case so it doesn't count and that the other the several other district court cases don't count on they count and i don't believe that that trend has any effect on that incidentally the bloomsburg university handbook with the due process procedures says that the procedure is applied to clinical agency rules as well and geyser was considered a clinical agency well but they they didn't fire her for violating the handbook they fired her for violating guys inger's drug and alcohol policy that's that's true but ob all of these writings provide an expectation to the graduate student including the university writings and diller's best argument is he self identified as director of the ne he in the letter firing borro yes your honor he did he did sign the letter as the program director have mere contracting with the state even with the air the school that was providing education to the maladjusted used visit ninety nine percent of its funding from the state in some areas ninety percent others it was not see that's true about and just look at how he identifies of so he's telling us that he's wearing his joint employee had not his guys or no your honor by being in the program director under the collaboration agreement he is necessarily still an and there would be no need for dr fay i didn't sign that agreement so there's a conflation going on here other somehow being joint action just because he happens to be a state employee and that here the policy the gates the function the role the policy or the authority that was vested in him by guys in her medical center one point only and that is that because the case did not squarely resolve the property interest issue in gabi the court didn't even find it necessary to resolve whether it was a public or private institution in the end like a supreme court  like so many other of these cases they just said well we don't really have to resolve any of that because the procedures that get follow through that case would be sufficient to satisfy any demands of due process and so while they mention the property interest issue and they mention ross