seidel and i represent your talents in this case i'd like to reserve two minutes this is a first amendment case involving student speech there are three principal issues in the appeal first whether the student speech involving a petition requesting that a basketball coach resign is entitle to constitutional protection at all second if it isn't part of the constitutional protection undisputed evidence in this record just to find a suspension of those of the basketball players because of that speech due to actual or have a rational basis to believe that there was destruction motivated by a desire to punish for retaliate against the students for their exercise of their free speech rights the latter issue that is substantial motivation was not addressed by the district court in its opinion but it was raised right now not come back to the issues in your order that i presented them but i'm happy to address these many order that you'd like because i think you've hit upon a very important issue and i want to i want to address that specifically on the issue of whether or not there is indisputable evidence relying upon the decision by the students to accept an option given to them by the principle of not playing in the game that night and ignore the actual speech in question which is the petition any argument that is made which i think is insufficient to meet the standard has to do with the impact of not playing in the game that night if there is frankly no argument even made  demand that the put that the basketball coach to resign it was not even five petition delivered to the district administrators it was delivered to the basketball coach only it contained a request and other demand and it was done that way because as the evidence indicates in the record the basketball coach earlier promised that if the students  told him they wanted him to resign he would and that's the genesis of the petition now with respect to the issue of the substantial disruption alleged as a result of not playing a basketball game let me first point out that the just really substitutes rhetoric for evidence there are three words which frankly i'm very of hearing about demand ultimatum and student strike that rhetoric is used to attempt to elevate this into something i can't along order activities and activities might be broader than the classroom so at least in my mind subject to the argument and the views expressed by my colleagues what i'm trying to understand is whether work or interference with the rights of other students other cases do phrase the cast somewhat differently but i believe at the bottom of it is the cost of talking interfering or disrupting the mission school to educate students and whether that's in a classroom or in an extracurricular activity i don't think makes a difference did the key the key point here however is that if we focus just on the decision not to play in the game that night that was not that that was an option given to the players it wasn't a decision made by the players as some type of of by the strike which is the word depositions agreed that it was an option given to the students the option was you don't have to get on the bus and played and it was not said anything goes nothing will happen you stayed on the team was your well  emphasis on that because when we talk about whether that's destruction it's actually if that's destruction i mean it's in this disruption that was invited by the district because it was going to option given to the students in response to their patricia is focusing on the actual decision not to play in the game as tried to be indicated there's no evidence that along with that action there was any consequence communicated to the players that is to say the i think you are the answer to that is in judging whether or not the students were doing something to disrupt the school activities they had no knowledge base they believed it was permission it was give was an option but i think that the testimony was that they believed that they were being given the option they chose that option they did not have any understanding as dependents were not involved in the meeting they were not notified of this they simply were told you if you do not board the bus tonight you're not to play tonight and so they chose that option as a means of demonstrating the sincerity of their original petition that that that they wanted the district to take hold of this issue and the other option given to them of going through a mediation process they chose not to exercise because they believed based on that these statements being made in the meeting by the press of all that it was not going to be an impartial exercise now whether or not you agree or disagree but the motherboard of the bus is very problematic you know for many schools organized sports are extremely important activity and they relate they affect their long over there if it weren't if it weren't for the the offer you don't have to get on the bus for me at least as one judge it would be a relatively easy call this they students who them as an options and judge or an option without without saying you will be sanctioned or you won't can sanction it so i need to think further but there you are can i come to another point here and that is that what you would want to you know that the kind of thing if you look at there is a case of our island tree school district versus pico which is a supreme court decision are in which the it was a book banning case in which the supreme court remande with their team parents and then a fight with the team they want the team to win and normally the junior varsity a lot of the you know they're very game and sporting people and they're doing the best they can they're not going to win as often a so i mean wouldn't it be disruptive of students on the varsity team to say we're not going to play and let the junior varsity play here i'm sorry i like sports as much as anybody i'm not sure however that winning and losing i would be the first to agree that if this petition were the sole basis for punishment in this case we wouldn't be here but we believe this record shows that the reason for the punishment which was the suspension  city for a school district like this that involves the hiring of referees involves my father school district in this case for the oregon which was the away game which has its own students involved their schedule involved there are other people meted out here there is no credible evidence in this record other than what was true and that's part of the overall four hundred twenty one pages which i don't want to spend a lot of time on this today but we do have a motion to strike given to mediate whatever the disputes were with the coach the next day but the expectation clearly a step forward in these of the day after davis was the game will go on and you are expected to board the bu engagement valving participation for this team of our city athletes and they didn't need to express they say that the decision was made by the students who've if you will know at the bottom of their petition stated we will not be approached administrator and said we want to discuss this as a team and they did the administrators came back and the team said we are not going to play and that was a decision made that resulted he had a significant disruption that evening a said about the importance of maintaining the schedule the relationships with another school district in this case right here and we do have evidence certainly that from their standpoint this was a significant gain this was part of  overall athletic program and after all and i i believe there's evidence of this affidavit as well as plain sports in the first place is a privilege it's not part of the regular school curriculum and none of the students of course  suspended from school and so the punishment here is the elimination of the privilege of playing on this basketball team which they forfeited by not getting on the plane significant game so what happened after the s why would they understand it because they would understand that by the circumstances under which they signed up to be varsity athletes in the first place there's evidence in this record about the requirement that they force the bus to play away games that's in the record that's correct your honor and i'm reminded also of in a cart decision that the court found in that case that the conduct itself was protected and carrying signs in a closet and it just strictly regarding the renewal of the give the teacher that that was protected condom that the court pointed out if the just prepared disciplined those students were going to their cars to get the signs just demonstrating with that would have been justifiable discipline what we have here are series of rules there order we believe the significant differentiating factor or feature of this case for many of the student speech cases is that they involve preemptive decisions by ministry in years to restrain whether to restrain that speech under fear that something might happen that something might just rub the educational program and that case of course this court found that the district good restraint and speech because of the nature of the graphic violence of that pole but here the destruction had already occurred by the time the discipline happened this was not preemptive the school district did not suspend these athletes for presenting this petition we agree that had that occurred had discipline of taken place by the mere perception of this petition we would be in a different shapes the question in my mind is whether they have their warning from the code of understand your honor and i guess i would respond and say that these are not elementary students they're not even middle school students these are seventeen and eighteen year olds and we may not be an iconic thing buyers implying the setting i realize different standards apply but these are not children either so from the four corners approach of this record i would suggest to you that of all messages that did not need to be delivered to the students setting the message that there will be consequences for not boarding that bus did not there are numerous inferences that are reasonably raise by the evidence concerning what motivated the administrators to suspend we haven't touched on the evidence fast after the basketball coach checked himself out because he was grieving over this he went and called the assistant coach that morning said he had talked to the administrator said he had been given a choice he could either resign or they could make the kids you know or the bus where they couldn't play that night and what he told me that assistant coach that morning that morning the morning of the petition is that i want to corner the s o b s and i use the acronym out of respect for the court i want to find out who my don't explain there's any consequence for it you present it as something they can voluntarily do they take that option not knowing the coach wasn't going to coach that night and the evidence is if they simply been told by the principal that fama checked himself  stress the students were not told by the administrator when making this choice that oh by the way if you play tonight you're not going to be coached by bachmann so if your concern is being coached by b you want to know that you could play tonight and not be coached by bosman my point of this is it was in fact cornering them the next day when the parents are first alerted in come to talk to the administrators the suspension isn't up for discussion now either the keiser case which judge gould you participated in there's three are potential areas of evidence that are sufficient to create a fact question on whether or not if not me