who made an application for rob went in the university of north dakota last school nationally in july th two thousand and fifteen he then supplemented that was several letters of recommendation that he had from individuals and one of those letters referred to medical problems that he had in the past and one of the issues in the case was a lease for the school was that he had been law school at the people at the admissions committee had rejected his core his request and had off so notified him on july th what's what's what's alleged and what's criteria points out that in that process it was manipulated to focus on a covered disability well i mean i think that the circumstances are clear of that and in this particular case when evidence and that you have to look at out the evidence and the whole record in order to make a determination concerning why do you have to look at other people that weren't admitted when you have to look at the whole record your honor that's what the case law says in order to  sustain a motion for summary judgment we can't write an opinion saying that the district court is reversed because it didn't look at the whole record well you can certainly indicate that the that the district court should have looked at the whole record making a determination as to whether or not this individual had been discriminated against against because of his disability let me ask you something that bothers me about this case is it is there if you got a case where it missions to a college  many in many different contexts that that are if anything including imply some employment case so it seems to me that's very difficult for you for you for us to to say that because the this decision academic decision was subjectively made and might have been made differently had one taken a different view of the applicant pool or one of the relevant competitors help you with that leap i don't why not my position is not that big a stretch but i know i don't preach i preach hate it but what i think what i'm trying to indicate that you understand that the subjective approach you put that label on academic decisionmaking as a as a pejorative so to speak that's that's a huge step for the judiciary take when you know that what they said was that he was not a good with the student body is not a good fit for the academic credentials he's not a good pick because says that's their business not ours well that's the problem you our position our position is they decided he was not a good fit because he had a history of mental d and bipolar disorder as if that's the crux of the case is what is the evidence that that was the reason well i think that we what we're trying to do here is really say it's discriminatory if they because they didn't consider it i'm saying no because what what the data said and in support of the allegation well they've they even said in their depositions they didn't consider oh i jury as opposed to on a motion for summary judgment and what we have to do is demonstrate is that there are genuine genuine issues of fact and then with the subjectivity one of the problems is that there's no way for state sovereign immunity defense and this court and the district court there by conceding the defense has merit nd even if the court disregards the waiver and considers the merits of the sovereign immunity defen congress does not have authority to abrogate sovereign immunity absent the violation of a fundamental right and the fourteen that's not about what's been argued i mean the district the district court said yeah that i don't have to go there so i'm not going to go  mr my point is that mr power did not have that same that's that same privilege of disregarding that counsel let me ask a question about that if you were in the law does have  skipping over that step as what was permitted in lawrence v dean and the supreme court's decision in the still company versus the united  step i don't know that the court needs to address that tension in this case because i think the court can simply hope that mr power by not responding to our sovereign immunity defense in both the district court and this court as well as as waived as he's conceded it has merit by not contesting it claim under the eighty eight into a constitutional right of access to the court's claim by his own failure to address the facts and that's that's the only argument that mr power has made with respect to our sovereign immunity defense and that certainly cannot be the law that party you know we started this case with a statutory eighty eight dollars claim dealing with the right of education and by not contesting sovereign immunity defense mr power can convert his claim into a constitutional right of access to the courts claim by not contesting the defense and that's the argument that was we believe the district court erred with respect to this the facts are undisputed that the admissions committee made the initial decision to deny power admission before he disclosed the alleged disability and that's the cause ation element a pri record is clear that the truth sickler and miers were the only members of the admissions committee and if you look at appellate page appendix page eighty six refers to miers deposition page eighteen lines nine lines thirteen through twenty one it it there's no other evidence dan rand was not a decision maker the testimony they only testimony in the record is that  the were the were the decision makers the only time dean rand became involved is when those two had a conflict and they called on dean rand as a tie breaker and professor meyers testified that that hadn't happened in over two years and didn't happen in this case that's the other thing where the district court erred is by holding that there was confusion or some discrepancy between miers testimony and syquest testimony about when or rather one or two decisions was made that's just wrong but isn't there ambiguity as to whether the decision was reconsidered after the medical condition information was you would take and that the only evidence they offer is the knowledge of the disability and that can't be enough and i think that's the point the judgments with with was trying to get out earlier but didn't the what final rejection actually take place after the mental let's go to the fact that there was a reconsideration after right but that i guess the point i would like to make is that if if simply disclosure of an alleged disability after an initial decision has already been made without knowledge as you pointed out in your decision and boss cannot be you know you can't have a private facia case if the decision is made before knowledge of the disability if you have an initial decision and the only evidence that's offer after that initial decision is made is disclosure of the disability then you have the perverse situation where plaintiffs could a stablish a private face a case soley by disclosing disability disability that can't be the law that can't be the lawyer honest and then the rd reason is if we get to what the district court or the th reason excuse me not contested by mr power and where the case turned is whether power failed the marshal sufficient evidence to show those stated reasons were protection will that what i'd like to do is point out  admitted or denied and even if we separate out all the other factors that you had he considered like the dated application letters the three prior withdrawals from law school his low g p a the fact that was twenty one removed years removed from his undergraduate course of study the the nature of the letters of the application the very short personal statement that gave you any an opportunity to really assess his writing and analytic abilities if we separate all that out and we just focus on the objective factors the combination of they all sat score an undergraduate deep g p a out of that mr pollack and shows that he fell within the range of candidates that were both admitted and denied is it necessary to prove that you are  students didn't have three withdrawals from law school i think you would have had to show adults factors not just single out the objective ones but even singling out the objective ones if you look at the again them with respect to the file applicants that were also denied so that's different people that basically fall within the range of candidates under tartarus and that were also denied admission and that does not show that he was to students who were denied with a much higher well one with a much higher the line thirty six on page thirty three and line page thirty four that had a better objective and scores than than mr palmer even separating out all those other factors so there are as i said four independent grounds and judge cross if you have concerns about skipping over the step i think you can avoid that in this case just by saying that the defense was never contested are sovereign immunity defense was never contested and it becomes a simple decision to say that that's that's where the  for us to prove today that he would when it is only necessary that there's a genuine issue of fact that should be resolved and as judge logan pointed out there is a situation where there's some ambiguity as to whether there was r present in this case and there's a reason why a jury or a fact finder should make a determination as to whether there's discrimination and that should not be left up to the district court in a summary judgment proceed in where it's clear from  e case law as well as the rule that the burden is not an onerous one and all there has to be is a genuine issue of material fact which we believe that that has been established what do you disagree with about similar vein as tennessee versus lane and us versus georgia that those cases talk about access to the court he is asking for the opportunity to have and present just case to the court or to the jury and so we're argu that to make a constitutional argument in that when we do there was a constitutional argument as to whether or not there was a deprivation of due process in the fact that he is not going to be they could not be allowed in court if there is no abrogation of the rule however commandment that would require the dismissal this particular lawsuit and the question of filing within the range to meet that is a jury question that is a question as to whether or not he is a qualified under the standard to make an argument a pretext that is an issue for a jury to determine after reviewing now well are we to think that we have presented a from actually determining and looking in a value weight in the examination examine those standards and how they compared to what he did because they do not disclose that information and in fact during the course of depositions they ation was based on his bipolar disorder or some other inappropriate factor and we believe that the merits of the claim are not necessarily a part of the address but simply the fact that this summary judgment