morning my name is david gerard i represent the appellant c r in this matter i'm going to say four minutes for rebuttal the issue before the court today is what process is due to student a public school student in the state of washington when they are emerge expelled in long term suspended and one of the unusual things about this case is that the state of washington has an unusual sleep scheme that governs this area very specifically and in very mandatory terms the scheme is different and has different standards due process standards than the usual federal fourteenth amendment scheme that would be applied to due process in school discipline cases as in unseating gospelly versus lopez in it so it would seem then counselor that there is a constitutionally protected property interest in attending school i think that's kind of something we generally understand it seems to me that the big issue in this case is is there a constitutionally protected property interest in having those procedures which were set forth in washington law and regulation you agree i agree that  that is an issue in the case under the wedges and i just analysis i also am not sure the court even needs to reach the wedges and ledges analysis i think the court and the district court should have simply ruled on what washington has set forth in very explicit terms the due process rights for students in these discipline cases when they don't i had the privilege of sitting on a case similar to this once before and we came to this particular issue and it was a totally different case in this particular issue i guess i'm trying to figure out from the record the record as i understand that nobody below really ever requested the opportunity to confront witnesses today no but nobody ever really requested is that no they didn't or no they did not  that's what i thought and no body ever requested any or even fahed about the credibility of the witnesses the owner of witness who appeared was a school administrator none of the well i was of the upper hearing but i mean in the lower hearing nobody even question the credibility of the witnesses i believe the father who's not an attorney actually did complain about the witnesses whether the identification was proper whether the student was intoxicated whether the student was credible whether the student had been coerced into giving a statement so that was brought up numerous times and i would like to add just briefly on the specific issue witnesses to be present at the due process here and we sent back was to find out really whether these procedures were any constitutional protection at all because in that particular case there were two witnesses which was all hearsay nobody ever got a chance to even credit i mean the calendars the credibility of the witnesses they were all hearsay and the if you will their language of their testimony may have made a difference so we said we don't think there's any constitutional protected interest here but we're going to let the district court go through and think about it and decide that and we never got it back well so what i tried to do in this case is i tried to compare the two it didn't seem to me that anybody only thing that the father has ever contested and therefore against the child is the length they didn't contest the evidence they didn't contest what happened at the hearing they just said that somehow that was longer than it was needed they didn't even challenge the fact that it was ten days just when it went to eleven days it was a problem and they continued it was more than eleven once now it's back to eleven so i guess i'm trying to figure out whether really this is the same kind as  cases it's very much the same kind of case here and i respectfully disagree with your analysis of the facts in t t and here here the father did make those kinds of arguments the father maybe you could show me in the record where that is well it's throughout both hearings and i mean i realize that there was a there's a if you will statement by a principle at the  which whether it was taken into consideration or not of some kinds some question i really got no idea in the underlying hearings that there was any challenge of the testimony that was presented in writing there was and it's addressed in the briefs and i don't have the x or the exact citations for you but i can provide them the only difference between the parents role in this case versus t t was the parent  t t actually said where are the witnesses why aren't the witnesses there the parent in t t was a paralegal knew enough to read the regulations before the hearing to ask that when this case was remanded to the district court judge joan said the burden of proof was on those t t there and t t the parent asked when it was remanded judge jones following your guidance in the mandated n t t said address those that factual determination that us the district court to make which was did the parent ask judge jones concluded as a matter of law that the school district had the burden of proof that the student had a mandatory and almost absolute right to question and confront the witnesses against him and the parent had no obligation whatsoever to ask that the parent that the witnesses be present the parent had no obligation to tell the school district how to prosecute their case against the child the school district had the burden and to present contrary to what judge jones said my problem is that i don't see the same kind of facts in this case the facts in this case are totally different than the facts i read in t t and knew about indeed how do you compare and i don't even see the middle age similar well here the parent alone the students did not participate in either in both cases the pin i understand ok in both parents but the parent in this case merely questioned the length if you will of the discipline not what happened to do the discipline not what the situation was for the discipline marry the length of the discipline i would have to disagree with all due respect t complete reading of the record will show that the parent contested virtually everything about the discipline that was implodes imposed on this day and if i can just finish a bunch of similar on the grounds is this was a long tradition everybody been peddling freshman for a long time and it's a good old tradition we had to keep it not exposed because of this was not a story that was one of the arguments the made and if as a lay person with no legal training or school training making that argument was not a great idea i'd be the first to admit i was not involved in the case this is a lay parent going on but i really think it's important because there seems to be a misunderstanding between what t t was and what this case is in t t and in this case the student the parent was given written statements with the names redacted from anonymous students and were in t t employees at an off campus dentist office they were never identified by the school district the school district never explained why in both cases why they did not present the witnesses in both cases the school district and not explain why if there was any fear of retaliation on the part of the student who was involved and end and him but in both cases the only witness was a school district administrator who will agree with you not that in general the procedures that are appropriate in these proceedings are not constitutional constitutionally mandated that we apply these on a case by case basis i would not in general we have a lot of cases which say they're not constitutional at all i would not agree and here's why the washington constitution gives the paramount duty an apparent right of students to attend public school washington when it adopted its constitution nine hundred eighty nine was very specific about that then the board of education hundred seventy seven issued these regulations which are extremely specific and say that they will only have only these regulations and whacked three nine hundred to four hundred govern student disciplinary proceedings in the state of washington and they set forth the minimum due process standards on the to the state and federal constitution washington is unique in having defined those regulations so our argument is that these regulations are the state of washington statement of due process that students get in student disciplinary proceedings we do not agree there is certainly a federal standard that may be applied in states under gossipers lopez that don't have this kind of specific statutory constitutional or regulatory right where you're looking at the at of at a property interest in the due process calculus that's based on a truancy statute or statute that requires mandatory attendance that's what god is based on that's what stone was based on here the right in washington is the paramount duty under the state constitution property interest that drives how much process is due and the state of washington taking the reserve clause of the temperament very seriously did this and their stake us student and then said here are the regulations that govern this is the law in the state of  washington you've gone past your time we'll give you another minute but i would still be able to answer this question did you bring is not an intersection one nine hundred eighty three that was one of the causes that was brought it was brought in the state is only for federal constitutional rights correct correct good morning your honour's charles lynn of behalf of the seattle school district or salle public schools this morning let me just build off the arguments that were being made at the seattle school district position is exactly what was being asked by the court i e that there is not a counsel hasn't made any argument as to why there would be a state protected constitutional interest or state law constitutional interest in the procedures themselves it is a wages analysis and i think that your honor is correct judge smith and your likening this to the t t case i was fundamentally different than the t t case the t t case from bellevue school district which i believe your honor sat on that panel and i believe that mr girard was also the attorney  that matter involved in this is getting ready for a second because and i understood you say that you also take the blue shoes mostly protected interest but if there was would we have jurisdiction to do kids in i would argue that is why we're here before the court today is to address these issues what judge silly found judge silly looked at this through the lens of the federal due process claims that were being presented and found that on balance the hearing had been fair that the the student had been afforded a constitutionally sufficient hearing with due process afforded one of the ironies and perhaps the strict just legal quandary i don't think i've ever been in a case where someone is a confrontation right where in fact there have been two hearings both a lower hearing and an appeal hearing neither of which involve the student a student didn't volunteer really did not attend either hearing and now is  asserting a confrontation a violation that he was not allowed to confront witnesses at hearings at which he never appeared and i find that strange a little bit of a legal quandary that that a defendant or a bit of plaintiffs rather excuse me would be allowed to make such an argument the fact is that this was a case involving a large scale hazing or initiation type process as the court pointed out the record shows that had gone on for years and when the father of the student came to the hearing the father made several arguments none of which were about the witnesses none of which were about whether there was credibility of the witnesses except insofar as the father did ask where they coerced into making the statement however the administrator who took the statements was there at the hearing and was able to address that issue but the real issues that the father addressed were whether or not this act even constituted hazing under the district policies that was the that was the thrust of the of the argument in fact rather than denying as n t t that that the student had even in gauged in the be a viewer the father even admitted on the record i know that the student  contests whether that was actually did mission but judge till he found that it was an admission in fact the even the administrator at the hearing said that he was glad to hear the father at least concede that his his son had been involved the  in such way that the suspension will not appear so that when he applies for college it must be a black mark and the future there is a process the student can certainly engage with the with the district and requested that be done at some point the district was unwilling to do it remember there were almost a dozen students charged in this incident that the district was unwilling to do it from ones to and student to not do it for all however there is a process by which the student can come back to the district after period of time an asset that be removed and more importantly the family educational rights and privacy act actually allows a process for parents and students to come in and challenge their educational records and have things removed that they believe should not be there whether or  not that it should be removed and whether or not there would be an equitably treat some students versus other students who were also charged in the same type of incident with school discipline that would be a decision that would have to be addressed and that that type  forum i think on the whole record reflects that the defendant did not be the student in this case did not have a constitutionally protected property interest insta every procedure agree that it is a wages analysis and that what we're really looking at is whether the the hearing on balance provided constitutionally protected  sued me constitution protected due process for the student and judged really found that that exactly he pointed out that yes there were some procedures that were not followed strictly but on  and on balance he found that the hearing that was afforded the student remember he the students had two opportunities for hearing that the student was aware of the allegations the student was notified of the allegations and the student was given an opportunity to be h and when the student was heard it was really the students father the father simply asked that the that the punishment be reduced that the sanction be reduced and that it be changed in its nature it's a very nice day outside i don't have language does that then become a constitutionally protected activity it's just not just my opinion it was the opinion of the district court following remained in following the guidance of this court in t t where the where the district court concluded following this court's guidance that in fact the regulation about whether or not a school district was excused from providing witnesses at the school disciplinary hearing was severely restricted by the apical rock regulations that is the school district had a mandatory duty to protect allow the student to confront question witnesses except in to defer to exclusions one where the student had a genuine fear of retaliation or two that school district tried to get the student to come and when i was was unable to do so here the district provided absolutely no proof of that that would that the district court in t t found that that was a wedge and ledges violation it's not it's it's but the district court found that totally on its own based on that particular circumstance right because there's nothing in my opinion me being one of three which suggested that that ought to be their finding no it said to go back and do further fact finding on that specific issue because due process is a flexible concept calls for procedural protections to manage by the particular factual situation correct under a federal analysis well that's the analysis we gave isn't it not i was reading from t t well you also gave an analysis under under the state scheme that said no we did not we said you got some state scheme you've got it there in the in the record they are in front of you and you've got some facts and because marcy versus brewer suggests what i just said you've got to make a decision taking more evidence and having a hearing right we gave no absolutely no instruction to the district judge other than they i had something to do with what it said well as i understood it and as judge jones interpreted it you were you were instructing him to do fact finding to find out certain things and to apply the state law if if in fact the facts supported that application but before i give i get thrown off the podium i just want to just judge smith if you look at page fourteen and fifteen of our reply brief you'll find the numerous citations to the father challenging the veracity of the students involved  and it's all of all the citations to the supplemental experts provided by the school district are set forth there so there is where was a ton of information the father didn't just go in and say we want reduced to ten days that was not what happened i  the school district has pointed out i just want to quick points the school district has pointed out in the briefing that was so unusual so odd that the student didn't appear at the hearing and that the student didn't expect her size his or her right to confront students the regulations that have been on the books in washington for forty years whacks three ninety two four hundred two seventy and three fifteen say the student and his parent or guardian have the right to confront and cross examine the witnesses against the students so why the district thinks this is so unusual after forty years i don't know the last point i want to make is that the district you will find in the districts briefing before this court that they only rely on a federal analysis after they remove the case to this court from state court  in there in the property interest involved in the fourteenth analysis a due process analysis but in the district court they said that the property interest that the student had was both under article nine section one of the washington constitution the paramount duty and under the state's truancy law so here they have scrupulously avoided noting the greater property interest of the student thank you thank you very much the case of c r versus the seattle public schools will be submitted we thank council for their argument