we have a couple of back that claim arises out of the fourteenth amendment in the in the appeal on the basis of a violation of substantive due process and your honor i know that your honors i know there's been a variety of case law cited both district court cases and circuit court cases addressing this demonstrates is something that i think unfortunately wasn't in acted by the district court in this case and perhaps in some of the other district court opinion cited by the defendants on appeal which is that you have to look when you're looking at a particular use of force to look at what the justification for the force is what the rationale behind the use of force is and then figure out whether or not the potential purpose of the defendant using that force was malicious in nature or was intended to harm  in this instance i think that the evidence overwhelmingly shows that there wasn't a pedagogical intention behind the use of force in this case at least one viewing the evidence in the white most favorable to the plaintiff there's been some discussion that when mr b ack grabbed my client's head and yanked his head backwards as she was doing so in response to some act of his in which he potentially threw a toy you know we're talking again about a three year old developmentally disabled child who potentially true the best evidence that we have in terms of what happened not coming from mr b x mouth is the report from a slobodan who was the witness to this event who did not see the throwing of the toy she saw the yanking of the head classroom is a common enough theme that our teachers shouldn't have constitutional protections to yank their heads in response to simply not listening and that when you aggravate the situation by adding in the factors that we're dealing with three year old children who are non verbal who are in many instances non mobile who can't communicate what's happening in these classrooms to other adults to their parents we have to be particularly protective task focusing is a large part of what you're trying to do and as i read it ms goal is that how you pronounce that yes his goal say is afterwards he was paying more attention he was more focused that was really good and i'm not saying that that's the right way to do it but that was one of the problems involved but so what would my response your honor would be that the issue of whether or not there's a pedagogical or disciplinary purpose isn't a discrete issue of law which i think is evidence by web or factors it is and but even even that factor can be deemed a question of fact by this court because despite the fact that it wasn't in a classroom setting and it was on a class trip setting the court didn't say it's clear that there was no disciplinary purpose here what the court said is a reasonable finder of fact could conclude that the  in nature was not disciplinary in intent and so i mean i don't know it seems like you that that's the reason there are many factors here i mean surely you can physically grab someone and raise your voice in terms of the concept of redirecting that's pedagogical and the problem here is that you did more of that the needed to the churkin of that but that that's accounted for by that we do the next factor another factor so i'm just puzzled by your you know putting all your eggs in the is there a pedagogical purpose i mean what really there's a pedagogical purpose for a teacher with disabled children or not to sit there and get someone's attention and raising voice and grabbing someone does that the problem here is jerk in the head which gets to the other factor so it i guess i'm puzzled by what your theory of the cases know your honor and i understand and i'm not saying that our entire argument rests on whether or not there is a purely pedagogical purpose or not i do think that  that is a question of fact but i also think one of our areas of disagreement which is that a question of fact whether raising your voice and physically grabbing someone constitutes redirecting and getting their attention i think it is your honor because i think that when you look at what miss lota stated to miss moore in her letter unlike the way it was characterized by mr b at her intent mrs lowder seems to clearly look at this as i know we lose patience with our students but i think it's appropriate to be able to respond to them in an appropriate manner and so it doesn't appear to me that another educational professional who saw these events viewed this as oh this is just a disagreement about how you should proceed in a classroom when trying to educate students and i think one of the things that's important in i guess it would depend on the degree of how that's my point there's nothing upsetting about it except that you know you physically grab and raise your voice she would say there's no pedagogical purpose there were to it would depend on what and what that was in response to your honor nature of the injury it's a single event and it's the nature of the injury where how does that weigh in this all of this so the nature of the injury or i believe comes down to a question of fact as well we have the mother stating that as a result of these events i know that judge box is reference that he he may listen better but what the mother said is that his behavior has dramatically fallen off as a result of these events in his presence in this classroom that he now mimics the behavior that he suffered at the hands of his teacher by that is that referring to page eight thirty there that because i've read that that deposition and there are a couple of things there one is the part that i was starting to quoted eight forty one and then she says and after summer after we removed him it completely changed and so then eight thirty says it all stems from the back thing where he told me ms sharon it now is that the only reference to miss sharon a hit or a she referring to an earlier paid that i didn't i think that's the only reference your honor to mr sharon and so there's no indication whether you know that yet that that that told me was you know a year later or a month later a day late at your own and yet you know that fair that yeah i think that's fair your honor unfortunately when this is one of the sad realities of this case is by virtue of the types of disabilities that these students suffer from as well as their tender ages it's not something where we can rely on these students so that in the main go getter to things domingo was the dissent and if you compare this to domingo in terms of the might say their obvious innes of trauma so on and you make an argument that this is worse than being balanced and gagged well what i would say your honor is that the fact that we have and i know the district court disagreed with us on this point but the fact that you have exposure over the course of a school year to not only physical what i would characterize as physical abuse but also emotional abuse and emotional trauma that's a good point do you have any case that says in an excessive force case there's and here we're talking excessive force you can a head psychological verbal whatever abuse over exam period not specifically of the child i don't have a six circuit court case but the case that we cite to in our briefing that we argued to the district court was a district court case out of florida i believe it's called g v verse seminole county it's a florida district court case so in that case it was a similar instance where you were dealing with special needs students and there was emotional abuse happening throughout the course of the school year and the court reference that emotional abuse when making a determination about whether this was conscience shocking behavior so just on the eve of not based on excessive force or was it simply the whole situation was conscious that the same the same claim that we have your honour's a substantive due process violation stand that but i just meant in the j v case was there was there a specific physical incident as well or was it based on a course of motional a condo i believe it was very similar to this case in that there was treated more harshly and less well then better functioning children in that they suffered more physical and emotional abuse were yelled at more  doesn't necessarily depend on those factors those factors were discussed more in regard to our more discrimination based claim so our discriminant are equal protection claim and are eighty eight claims and the purpose of discussing that evidence was to demonstrate discriminatory discriminatory intent on behalf of mr b ack in terms of the reason why she targeted the students she did was because she was frustrated by their disability meaning had they not been disabled they would not have suffered the same fate that they did in her classroom so i don't think we need to necessarily reference that evidence although i think it is important evidence to understand again the classroom environment that we're dealing with here i don't think that our fourteenth amendment excessive force claim saying it was excessive force what was going on from october forward of two thousand and twelve and even though that other force was not directed at absolutely i am i'm saying that it part of the reason you're doing that if that helps you with the injury because the injury the psychological injury stuff is not exclusively tied to march fifth well i'd agree with that i'll just help me out yeah i mean your theory of the case so so your honor i first of all i want to clarify and i know the district court's opinion when you read it the district court certainly could characterize it as a single incident as does defense but that's what i'm thinking but you're so yeah i am i think that there's a reasonable inference to be drawn from this record when you look at when the complaints first get taken to shelley moore who's the principal of the school in october mr b ack after being confronted by miss moore goes and has a conversation with her coworkers and one of the statements he makes to her coworkers is i'm not going to place my hands on jade and gold anymore she names my client my name there were complaints taken to miss more about a variety of students and when mr b x finds out about that she specifically references my client i think that that creates an i i'm glad you said that they come to help me figure this out so that's so excessive force usually means physical force right and so that's your way of what you just said is your way of saying this wasn't the first time she put her hands on i'd agree with at the point you're trying to make but but the statement you just gave doesn't tell you anything about excessive ness no if you don't put their hands on a three year old well alderman they're teaching them all the time disabled or not you're right your honor but what we have here is a situation where you have not just one coworker disagreeing with another coworker you have a variety of coworkers all approaching shelley moore and all of them in concert saying we're concerned with the way she's treating her students if this was one employee disagreeing with another employee i could see the court well you know what sometimes there's a disagreement there's a difference of opinion this is a variety of individuals who are all trying to work with special needs students who are all saying the way you're treating your students is not appropriate and that's bull physically and emotionally and so i understand here's your side are you going to divide your time morning rose jumped the raven on behalf of defendant sharon to react we are splitting up the time of the defendant so that i have six minutes for the argument to that mr desmond addressed the sasha tell has six minutes for argument one and mr chemical as three minutes for the remainder may proceed as judge sutton alluded to i think the most applicable case to the situation is lillard versus shelby county board of education in one thousand nine hundred six to sit in from this court in that situation a male teacher held the chin of a female student and slapped her across the face harder than he  meant there was no apparent purpose at all no disciplinary or pedagogical purpose at all to the slap in this court said that it was quote simply inconceivable that a single slap could shock the conscience now it may not be appropriate it may not be the best method for teaching or or earn gaging in a padded pursuit but it is not an unconstitutional one and the court further said we don't conclude that a single slap even for no purpose could shock the conscience  and in this instance j g the minor plaintiff was not slapped at all but it was a single alleged jerking of the head and he had thrown a toy immediately beforehand ms turby act immediately afterwards according to miss lotus testimony and statement said you need to listen to me it's a disciplinary thing she grabbed him by the chin and put her hand behind his head for the purpose of protecting him so that when he was that you need to listen to me when she jerked his head back aggressively but then what's the part about grasping the face it's on it's undisputed from mr b x testimony that she grabbed him by the chin and put one hand behind his head to protect him as well no she does not she denies that she jerked his head in fact our purposes we have to accept that you have to accept that yes we have all the elders yes it's undisputed about the back of the hand on the back of the head well if miss i think inferences can be drawn about that but i think the the we have record proof that jaden was prone to thrust his head and did it quite regularly we a testimony from his mom we have documents that we submitted in the course of our briefs and and testimony from the physical therapist that he was jerking and thrusting his head in response to anything in this case ms to react so that it was done in response to reprimand i don't know what conclusions the court can ultimately reach but there's no question that she was grabbing his chin for the purpose of redirection and the statement even the slow to makes that he she said you need to listen to me is disciplinary in nature and if there's any dispute that what about the fact that these four domingo factors are pretty fat intensive and pedagogical purposes you're from the other side of saying all sounds like the stuff of a jury trial well this court reached the same conclusion with really all three plaintiffs in domingo and affirmed summary judgment of those cases one of the students was strapped to a toilet another student was kept on a toilet for as much a quarter of the day and the third student was as you noted bound and gagged with a band down around his mouth and tied to a gurney and summary judgment was upheld in that case so and when you walk through the factors and domingo you have a pedagogical purpose which i just described we have a we have testimony and evidence that there was no apparent injury to j g after the incident in fact afterwards miss responding testified that when mr b a directed him to pick up the toys he was laughing and giggling so that's the injury piece we've talked about the it's not just march fifth going on throughout the fact that she directs this that everybody obviously includes j g well it's you know it's psychological ok well first of all there were no complaints or concerns raised at all between october and this march incident so we have october november december january february where nothing happened at all so there's really no way with respect to this child virgin any child in that classroom or the to the october incidence as judge goldsmith found in plaintiff doesn't dispute on appeal none of those were directed at j g and there is no evidence that j g witnessed any of them in fact many of them most of them occurred in the afternoon classroom or not in that school year at all so i think so so there's no force directed in any capacity at j g other than that march fifth incident and that's i physical force there has been for i mean you think with children it wouldn't have to be physical like imagine a bowling teacher doing as much damage is that what they're saying is what they're doing with their hands well i wouldn't rule that out but i would say this that this court has never said that bullying constitutes excessive for fourteenth amendment so that's relevant for my qualified immunity purposes yes when i switch which was my next argument if i can go there we have authority that i can cite for the court obviously the court knows that it can affirm on grounds different than those  district court relied upon but i have authority if you want it that the court can affirm specifically in qualified immunity grounds if even if there was an arguable constitutional violation but the in this instance this with her well first of all there's been no evidence that j g was exposed to them but i can walk through each and every one of those if you'd like to explain how either j g wasn't in that classroom or how those incidents were explained by testimony where there's going to be two sides but of if there's a pattern of doing this that would be a pertinent factual contested matter and to be looked at in connection with of the circumstances don't you think well i don't think so because if the court has traditionally looked at the incident at issue to demonstrate to determine whether there was malice or sadism if that's what you're referring to and with complaint well that's one of the elements of domingo and that's what i was referring to when i brought up the yeah but the main go may not apply your because there was no indication in the mean go that there was dealing with the redirect purpose to the slap in the court said that you can't imagine a situation where that doesn't shock the conscience all right thank you thank you directly address them but i have some points i'd like to make in response to plaintiff's reply brief and in and out of here one of the issues in this case has been plaintiff's counsels sort of global consideration of what was going on in this classroom as a means to establish prima facia elements of j g s eight in our a violations and i think in in considering whether that's appropriate it's useful to look back at the pre eight in that case the court explained in the context of because they shouldn piece of the prime fish a test that the plaintiff must show that the discrimination was intentionally directed toward him or her in particular and when you look at an educational deprivation or exclusion prime official test which is what has been alleged in this case we see some sort of similar language in that the plaintiff must prove that he or she was deprived of an educational benefit by reason of his or her disability now in this case judge goldsmith applied that premonition tast and examines the evidence that seemed to put forward and exclusion and determined that the expert reports which were the primary piece of evidence that plaintiff had put forward did not meet the summary judgment standard of raising a triable issue i'm a genuine issue with me to that something  just seems a little strange to me about all of this mcdonnell douglas is a way to deal with the absence of direct evidence ok right that's the whole point because it's often hard to find but the test is very strange  applied to a sick classroom or something where the whole protected group in the classroom is only people in the protected group and it's you have this problem of comparison it seems and frankly seems unfair to the plaintiff in this case right it just seems like a bit of a game and so what i would i would say is the mcdonnell douglas or i what i would wonder is whether mcdonnell douglas even applies in this kind of a setting but what i would say instead that doesn't mean is what it means is that when it comes to the direct evidence side you have to be mindful of the fact that you can establish proof of discriminatory in town because of causation  circumstantially that's ok there's nothing wrong with that and that can be enough to get you to a jury so that strikes me as a better way to think about it i don't think it makes a huge debt when it comes to the evidence i think your plane it still has the same issue showing that there was a denial of about fifteen it was a because of data because of discrimination but how do you react to that framework i mean i agree that circle circumstantial evidence should be permitted and we've never taken the position that circumstantial evidence should not be permitted and i don't think that was the basis for judge goldsmiths decision either i think what happened in the district court was that plaintiff presented no evidence circumstantial or direct evidence that mr b act was motivated by the student's disability in the actions she took well i mean the circumstantial evidence of mapping judge clay were references surlier you do have some statements there not about situations with j g but you do have statements which suggest that she had more trouble the more disabled the child was so that might be circumstantial evidence of animist towards disabled right but i think the prime official test would still require g and that's the piece i think is missing in this case judge goldsmith assume that plaintiff had put forward evidence or just assumed that that he had established discriminatory animus as to mr  p havior towards some of these lower functioning students these other students in the classroom but the the analytical piece the adventure piece that was missing was how did that translate into discriminatory animus with regard to change on march fifth two thousand and twelve the evidence we have decision to allegedly head back and that's that's the causation require one of the question embarrassed i don't know the answer to put isolate the cases if it worked this way so it's a hypothetical counterfactual so nothing would happen before march  have the march fifth incident and you have to be accepting at the time you know i don't like disabled kids and the ones i like the least are the ones that are most to say it was you have clear because of but she said no problems  before the incidents investigated she's fired that day what happens in terms of a lawsuit against the school district under say the a da is the answer well she said agent for the school district so intense attributed to the school district you're out of luck or is the answer now since a school district heard about it at fire with how does that case work well it's interesting you say that because originally all of the individual defendants i know i know i made it and they did appeal those but right just tell me the answer to my hypothetical well i don't think there's any authority to say that in that instance lavani public schools can take the position that mr beck was not an agent at the time the alleged discriminatory action so it's responsible even though  administrators didn't know about it and soon as they knew about it they acted that's correct there is a type of claim where it ministry or knowledge comes into play and that would be in a p the morning may please the court my name is robert kaminak i represent defendants cynthia to me and i'll be addressing your argument number three is to court knows that is the protection kline judge goldsmith properly granted summ plaintiff's brief main brief pages thirty eight to forty four by the way plaintiff's reply brief does not address the circuit at all so the sum and substance of the argument is found at those pages there is some factual argument with respect and trivia but the factual argument is as follows since there was an absence of evidence that there was that she abused now and disabled students therefore she did not abuse nine disabled students and a either is disparate treatment with respect to this particular bob plaintiff who is disabled i mean i think the state the proposition is to effectively refuted it's circular reasoning there are no facts given for that and it just it just doesn't work the only other argument made is that she i supposedly did not like or detested supposedly this particular student and somehow they had equates with disparate treatment there's no case law cited for their and logically it makes no sense but from there what i'd like to stress to the court is that with respect to any other defendant there are no factual arguments made on appeal there are no factual arguments made with respect to disparate treatment there is no showing of any and of how any treatment was done with respect to now and disabled students so the argument is waived on appeal you've got a brief it can't leave it to the  rs because there weren't complaints the forthcoming necessarily about about the non disabled who these are if if if the even if the disabled disabled and non disabled children and saying well them i'm not disabled there aren't any there out in the wide world another class or the other would be the more disabled versus the less disabled within the same classroom are you saying they don't make that argument either or are you saying that's a bad argument i don't i don't see that argument made again i would refer the court to the exact pages of the plainest brief pitches thirty eight to forty four ok and insofar as it's made i just wan make the evidence of the cases a j g was not one of the lower functions students that is all that is in the brief i know my time is expired and so i'd ask the court to affirm you right you have your three minute think your hon mann and then march when the incident with my client occurs on march fifth what the evidence actually shows is that after october after mr b ack is spoken to she begins locking the doors to her classroom and physically covering the windows to her classroom so she's actively attempting to conceal to outsiders what's happening inside of her classroom beyond that we have a statement this is also cited to in our brief with record citation beth santer told candy sokol in march that there are weekly complaints against sharon turby act and that if we took all of them to the administration it would look like we had an agenda against her i'm sorry who says this sobel that's santer told candy sokol answer tell the individual who initially went to shelly moore and was the one that all the employees were approaching with their complaints she sort of compiled the complaints and initially took them to show you more but she claims in march that there are weekly complaints and that they're not taking those to the administration because it will look like they have an agenda against sharon so i think that when you look at what's actually occurring here it's not so clear you're still talking supports that i am and i want to transition judge sutton into some of the points that you were making regarding the discrimination  pretty hard to find like how does she treat people in other classrooms it's just seems very strange to me so you don't i'm one and you don't get what is supposedly an easier task mcdonnell douglas but i think very hard for you in this setting so i think in some sense that makes your burden easier but so what are you asked as you just ask is there circumstantial or direct evidence sufficient for a jury to conclude that that it was because of disability so how does that sound to you so well it's a mark i had i had i i agree with the framework and i agree with your your idea of there being evidentiary difficulties based on the setting you can be in i had a lengthy discussion with the district court judge and i believe it was in the very first summary judgment argument in this case which was mr demands argument where he started to ask me if she's not interacting with any students who aren't disabled how do you prove disparate treatment and my response was imagine you're in a classroom where all of the students are african american there are no white students in there and the teacher has openly opined that he or she is hostile to african americans because they're african americans well the fact that that teacher doesn't have the opportunity to treat white students differently then african americans doesn't mean that he or she is still not acting with discriminatory intent and the case law that i cited to in the brief regarding this do you agree with me i do in the case law that i started to in my brief i believe it was the johnson case and then an opinion that you i don't believe you authored but you said on the panel it was davis verse prison health systems you took the position in that case that there are certain instances where plaintiff is not going to be required to show disparate treatment where you have direct evidence of discriminatory intent and i think here with the evidence that judge clay was referencing where we have complaints from coworkers talking about how she's frustrated with ha that i know that evidence but what's your best evidence as to about j t or it's about in terms of because well the statements where she indicated that or the statements where her coworkers said she's frustrated with disability with disabled students and the level of disability in students those weren't targeted to students other then j g they didn't say and i don't even have any other initials of other students but just to make up initials they didn't say well she's frustrated with a ss level of disability and that's why she abuses and yes what these coworkers said is she's frustrated with the disabled students and with their level of disability and she herself said i'm frustrated with the level of disability in my students and so when you also look in this was a argument that was more fleshed out in the lower court record particularly at the summary judgment hearings when you look at the acts of abuse that she was perpetrating those acts of abuse were generally tailored towards the type of disability her students had the students who were not very mobile those were the students that she was allowing to fall onto the ground and then laughing at the students who had auditory sensitivities those were the students that she was screaming in their faces and then laughing as they cried the students who had auditory disabilities one of them was the student who she put pringle cans over their elbows so she couldn't cover her arms to cover her ears as she was being screamed at with j g one of his disabilities was the fact that he had a shunt in planted in his brain and it was j g the she chose to grab by the hair and yank his head backwards so what we have argued is that when you put that evidence and her types of behaviors in the context of her coworkers statements it appears that not only