cases are created equal often the force of a prima facie case depends on the nondiscriminatory rationale that's offered by the defendant the supreme court has stated that many cases statistics constitute the only avenue of proof to uncover unlawful discrimination the district courts principle error was failing to recognize the relationship between a plaintiff's prima facie case and defendant's prof when the evidence used to establish a plane as prima facia case also rebut the nondiscriminatory rationale offered by the defense no additional evidence is necessary take a run of the mind tending a the statistical evidence is that your strongest part of your case in terms of the equal protection claim it is absolutely your honor yes are you relying on the mcdonnell douglas theory for the discrimination claim it depends what we mean by the stage which is normally met through the four prongs you can use direct evidence circumstantial evidence which is the four prongs or statistical evidence but the testicle evidence that what you have to have some kind of criteria in your prim disparity in treatment by the defendant relative to african american students here or not african americans today and what case would say that that's all that you need to make a prime  honor i did not find any case that specifically says when you use the statistical method here is the criteria you need to meet we do have cases it's a generally that an order for the statistics to carry the necessary weight there needs to be at least two standard deviations of from the expected outcome but are you saying i'm sorry i'm having trouble with this but i think it's critical to your case are you saying you don't need to show an adverse action you don't need to show causation the way you do normally under the mcdonnell douglas that's correct that's correct all you need to show is the way you phrased it but this did to stick demonstrate a racial disparity in the treatment of the student that's correct that's correct the four pronged are gone are gone that's the case law says that there are three ways to meet a prima facia case direct circumstantial or statistical the four prongs or the let me try that let me try to flip to it if i might i don't know that of the top of my head there are there are frankly quite a few that we cited let me get to the court of the portion of the brief you give me just a moment versus runyan which is from the six circuit one hundred third twelve twenty says to establish a prima facia case of discrimination this is in the title seven context the plaintiff may prove a claim through direct evidence statistical proof or the test established a run of the mill take a gender discrimination case where the plaintiff meets her prima facie case by showing that she's female there's no dispute she's qualified her job there's no dispute and adverse action was taken because she was fired there's no dispute and to meet the fourth prong of her prima facie case she says she shows that she was replaced by a male she's now clearly met her four pronged under traditional mcdonnell douglas analysis the burden shifts to the defense to offer  nondiscriminatory russia now suppose the defense says we fired this woman not because she's a woman because she failed to meet her sales quota last year and a case like that the plaintiff would clearly have to proffer additional evidence because nothing about the evidence and support the prima facia case serves to rebut that nondiscriminatory russia now but if you tweak the example a little bit and the plaintiff meets her fourth prong of the prima facia case by showing that she was treated differently than similarly situated male employees by showing yes i failed to meet my soul sales quotas last year but so did these three male colleagues of mine if the defendant's nondiscriminatory rationale is we didn't fire her because she's female we fired because she failed to meet her sales quota referrals by doctors why were all of the african and over the course of her law employment in your career or of african americans students yes what else did it it well the corollary of course being that there were no white students what else did it i mean is there a discussion of why this could be statistically significant given the fact that it relates to so what this is to six show what the expert report says is the likelihood of a professor who has topped this many hundreds and hundreds and hundreds of white students never accusing any of academic misconduct and has taught only these few dozen african american students and has accused three of misconduct as does the report so have many students the professor taught over that period of time yes we necessarily words that show how many african american student he or we get and we necessarily use estimates for those but the answer is yes you don't know for sure we don't know for sure because we don't have that information hosty can provide it but where did you get the information about how i mean where did you get your that ohio state answered and dr shu i could testify that there are generally thirty students per year in this program so you multiply thirty by the length of time dr streicher to get there to get has been there you have the total number of students  students not that i'm aware of but did you ask that question we didn't ask that question no i but what i would suggest your honor that and barnes versus john corbett i'm going to cut you off of your question go ahead i wanted to expl i'm just i'm just exploring the that pool underpinning of this and it seems to me at least that there's some question about the shakiness of the underpinnings for this opinion that it's leaps forth from the experts he had with certainty i mean if you if you have flaws if he's using flawed data then we don't we have no idea whether make it when you've got an expert that looks at the statistics and there is a basis for the law i mean or it's your burden on the well at some level it become to defend its burden say hold on you're using the wrong numbers they  statistics should not in that be drawn from this they absolutely contend that but they're wrong about that this to to stix this test unless you can show that the numbers that underlie the statistics are off or there is a legitimate selection criteria that would skew the statistics then there's no room for debate about what this a to fix mean it's there is there a case that has used it to sticks with respect to one individual professor or one individual employee or person so so i could see statistics saying that you know general motors in some division has certain statistics that so it does or doesn't discriminate but is it is there a problem with this being just one individual professor schorr so excuse me barnes versus gen corp looks at that a little bit  was a multi plane tiff case but the court addressed each plaintiff individually and said that for certain for sort certain of the individual plaintiffs their case ought to go to trial summary judgment should not have been granted and for others summary judgment was appropriate it didn't rule on any kind of class wide basis but also importantly i think that the principle that comes from the cases that use the statistics is equally applicable i mean in teamster's which is a class case a group wide case the court said that over time you would expect that employers hiring decisions would reflect the racial composition of the applicant pool there is no principal reason that i can discern why that same truth wouldn't apply to over time you would expect dr schweikert accusations of academic misconduct to mirror the morning please the court let me pick up where that line of questioning left off there this is not a teamsters case this is not a pattern or practice case we're dealing with three reports over the course of dr schweiker it's now twenty five years at ohio state university we've cited cases in our brief including the cooper case from the u s supreme court which is a post teamsters case that says even to does not constitute a pattern or practice which cited some other circuit court cases  that pick up on that theory as well saying two or three is not enough to show a pattern or practice this is an individual disparate treatment case and it's an one thousand nine hundred three go protection clase case on top of that which to prove an equal protection claim you have to show that dr schweikert treated similarly situated individuals differently than yours thing are you that your opponents argument that this should be a statistical case and has three groups direct circumstantial statistical you're saying you have to be under the mcdonnell douglas similarly situated as prong for the prime official case you ation that's one of our arguments your honor yes that it should primarily proceed under mcdonnell douglas well it could it could be that the plaintiff could choose to do mcdonnell douglas but why can't the plaintiffs choose as this plaintiff said just moments ago he had chosen to call this a statistical case as opposed to he's not trying at least in oral argument to make it as a mcdonnell douglas case but the cases that he cites are title seven cases and are a little bit different then an equal protection disparate treatment case for one specially since this is an education case and not an employment type case where in those cities those title seven cases you might have been dealing with a workforce reduction or a failure to hire where it's pretty clear that there is an adverse action there and in this case the education context it's not clear that just referring somebody to cohen committee on academic misconduct at o s u is in and of itself an adverse but his whole theory that he was expressing moments ago was that he was not going to go down that path that he was going to say there's difficult evidence that shows that this professor referred only african american students for discipline was you have to show that there was a significant disparity which although we take issue with his expert's report the expert does say there was a significant disparity here but barnes with gen corps also said that that also he also has to eliminate the most common nondiscriminatory reasons for why these reports are these referrals were made and he hasn't done that here he has a contested that there was some  referring any of the three students to the committee on academic misconduct so you're saying you have to show an error and the record to this board i think that's that's one thing that he has to show but we're do you get that statistics mush show a significant disparity and eliminate the most common nondiscriminatory explanations for the disparity in thompson has failed to do that here dr schweikert again presented evidence as to why she referred not only miss thompson but also these other two students to the committee on academic misconduct and again miss thompson doesn't counter that with any evidence whatsoever of the three were found in that to have committed the alleged violations that right that's correct your honor that's correct so it even if we proceed along the barn's we gen corps line we've presented nondiscriminatory reasons the burden shifts back to thompson to show that those reasons were inherently suspect she hasn't done that here or present some other director circumstantial evidence and she hasn't done that either she just says look back at my statistics again but again barnes region core doesn't say you can go it's frequently proved through statistical evidence ron do you know of any case that this pattern or practice is the valuable to challenge the hiring practices of a thing representative of it employer in this kind representative of an educational institution i'm not your honor and we cited the reynolds v barrett case which kind of leaves us on the precipice there and doesn't go that next step and i shepherd eyes that case i did it again this week and couldn't find a case that takes the analysis to that next step so there is some frontrunner territory there but let me go back to a point that you were rais about the statistics and i think this goes back to the lack of discovery that was conducted in this case when we deposed miss thompson she admitted no less than five times that she wasn't aware of any similarly situated individual that was treated differently by dr schweikert she also admitted that she didn't ask to see any of her classmates information systems class papers to see if they had in fact used the same citation style she did so that's there when it came to ms thompson conducting discovery she didn't depose a single classmate of hers from that information systems class she didn't try it out try to track down any of the papers that they wrote she could have done that she may get ledge that they were doing it but you're saying she didn't have any specific that's right your honor didn't have any specific information on that didn't ask for class rosters for this class didn't ask for anything that might show the racial makeup she claims that the university of now have statistics going back that far but she never asked if we had that information she may say that first but wouldn't permit us to turn that over but that's not true there's an exception for  if she could have got a court order of the court order would have allowed the university of turn over that information if it had it so that the lack of discovery here the thin record on this point just goes to show that this use of us to to stick is just some metaphysical doubt that doesn't counter everything else that happened here that the professor schweikert in some way try to assist mr thompson getting into the program and writing letters or  you might want to take some quantitative type courses statistics because we didn't see that your background your advance major as an undergraduate so miss thompson went took those classes reapplied didn't get admitted because there wasn't going to get admitted because he recommendation for her to get fellowships the plaintiff has a different viewpoint as to what was going on there and we this is unfair marie judgment so we look at the plaintiff's  allegations and take them in in the light most favorable to the plaintiff so the plaintiff for instance said that she got the lowest grade in the course and that she believed she was being viewed negatively by the professor and that the recommendation had to be done by the chairman or the lead professor in that area so there are explanations that are less favorable than the ones that you're pointing out but she doesn't take that next step of pointing to some similarly situated individual that was treated differently or why did may or may not matter i mean the the i mean it seems to me that the salient point would be whether there is any evidence of putting aside the statistics for a moment whether there's any evidence other than ms thompson's personal opinion which is we know based on the case law cannot support a title seven klein or not if not title seven klein but if you're important title seven analysis so this is possibly a more appropriate question for your adversary but since it came up alethea i mean there are two other students who said she was they believe she was treated negatively album neither was willing to say that rice had anything to do is there are there other things beyond them for example how do we do we know that he did have the lowest grade in the class we don't know that that's that's not and in the record again there was no request for class rosters or the grades of other students in the class so that to your point again there's there's really not much in the record other than the statistic to to go to her equal protection claim  context i'm not aware of any education related cases that look into whether that's an adverse action so we went to the title seven case law and looked at the cases there and in the analogy might be referring somebody for an investigation and there are cases in the title seven context say that's not enough to make out an adverse action and we've cited those cases and are the ever set him would be the been here but that's correct what the committee on academic misconduct eventually then at the actual hearing she came to bat for miss thompson again saying don't suspend her this will put her behind and she won't be able to graduate on time it doesn't sound like somebody who's a racist to me that sounds like somebody who advocates for their students regardless of race i want to move to the first amendment a retaliation claim for a second because i think there was something that was maybe passed over a little bit in the briefs  and that was on the referral that dr salem being made miss thompson into the office of student conduct and there was some question whether or not that constitutes retaliation and i think it's missed a little bit in the record that at the time dr salem being reported mr thompson violated her suspension of the office of student conduct she didn't have knowledge of this office of human resources complaint the time she made that referral so this is  that's correct that's correct in in our head i think if you look at the record here it doesn't support that miss thompson could have made that suggestion before during the coen hearing which is what she alleges here the audio recording of the cohen hearing is in the record there is no mention there prior to the cohen hearing this thompson met with tim curry who is the director of co m mr curry dr curry said you cannot bring up race discrimination during the cohen here and that's not the focus of the hearing you can't bring it up so couple that with ms thompson's testimony that she went to the office of human resources but said don't tell anybody about my complaint especially don't tell dr schweikert so if we look at those things together just doesn't seem consistent that she would have made this mention of race discrimination at the cohen hearing that's  contradiction here with the inhumanity earlier earlier but i think the the point is the same that she had this direction from dr curry not to bring it up she goes to a char and says don't tell anybody about my only char complain so why she would have brought up before the hearing or even during the hearing just seems inconsistent but does the plaintive state in the sworn statement that she did me this ahead of time and why do we not need to give that credit is it simply the timing of the that it's in an affidavit in the affidavit post dates the deposition is that what it is it is it's that and our argument that it directly up race discrimination and she goes i don't remember i don't recall when did you form the belief that dr schweiker discriminated against you based on race i don't remember i don't recall and then she was asked the question  and the interactions with o h are the office of human resources after that where she says where she told them don't mention this to anybody put it on hold don't tell anybody i think that i have that whole line  of questioning contradicts the fact that she would have brought this up beforehand i think this was a self serving statement after the fact knowing that joe andrew what i'm saying is self serving statement you know virtually every person who is participating in a lawsuit is making self serving statements so i'm sure your clients were making a lot of self serving statements to that but valid points but at the end i'll just ask you to refer back to our brief and  i'd like to have briefly as a topic on first amendment and then get back to equal protection if i could the there is also ms thompson also submit an answer to iraq tories in which she said i don't have a number of front of me but those are in the record her answer in iraq the tories prior to her deposition stated that prior to the cohen hearing in dr soundings presence she complained of racist criminal it was not simply an after the fact something that came up as defends allege what about the question that was is your theory about what is in the record put it who said the statistics for a moment and what is in the record other than your client's personal opinion that cremation but they did say for instance you came down harder on dr schweikert you also mentioned in a question with my colleague about the lowest grade in the class he said that was not in the record that's false it is in the record we asked for that  she received a b there were seventeen students who got an a eleven who got an a minus four who got to be plus five who got a b and tracy was one of the ones are going to be that's in the record we did ask the prior class yes and the first class that she had which by the way is part of the basis for o s u is ultimate determination that she wasn't discriminated against was that prior class and the fact that they said that she received positive grades and then it's a little hard to know what to make of this record because you haven't been you have a plane who's accusing a professor of rice discrimination a professor who went out of her way to help are and did you and you have the professor coming your honor i think that's fair i think that's up to a jury what you just described as competing evidence there is there is evidence not sure there's enough or not when you put aside your statistical proof but fair enough if in fact our system of proof is set aside i think that's a legitimate question this is incredibly powerful statistical proof the we asked for the numbers we asked how many white students how many black students as dr schweiker taught o s u said we don't have any records or keep track of that however we can tell you that based on grants we've applied for that historically we have about twenty percent minority population in this program we simply extrapolated from that how many african american students are taught and because we don't have the precise numbers our expert who is completely under budget by the other side they don't have any statistician any mathematical p h d to come forward and say that there's something wrong with our statistical analysis they can't it's pretty basic  but we run the gamut we say if you taught this many students this many students this many students this many students and we say if this percentage were black if this percentage were black if this percent are black there's only a modest range in which those things could fit if twenty percent of the students are minority you're not going to have more than fifteen percent who are african american and those numbers are really at the margins even if you use the numbers that are most favorable the highest use all of the assumptions contrary to what the summary judgment record requires about how many students dr schweiker taught and how many of them were african american it still is extraordinarily unlikely well beyond multiple standards of deviation that dr schweiker would accuse only african american students and not white students of academic misconduct you could say that without the statistical information that you lose your case absolutely zero so that would mean that the his assuming that twenty years not twenty  that that is incorporate he doesn't address it in some kind of narrative but that's incorporated into this it to success it's precisely what it's to see reflect that means under the numbers that you just gave that dr schweikert has referred three point three three percent of her african american students for academic misconduct out of ninety which is a fairly cynical sample size and zero out of six hundred the chances of that are almost infinite testimony your red light is on bank your our emotions your time thank you both for your argument the case will be submitted with a clear call the next case