interesting lead is dr king who says in the back there dr king is the person who actually recommended and found a teaching position for mr o yama in may of two thousand and eleven and you see the e mail from him about that in the record i can give you the page citation if you'd like i came here prepared to sporting to cite at these three additional cases and i asked the clerk for the gum sheets which we used to get them out of date because apparently i was supposed to submit those online but i would ask for the court's permission to argue and point out those cases to you and then submit to them spit them to you after the argument if that's ok of course you may and i think we should have this  ok go ahead all right with that in mind first of all let me suggest to you that this matter first arose on july eighth two thousand and eleven when dr jeffrey mooney's wrote a letter to my client telling him that he was not going to be allowed to student teach prior to the time my client was expecting to student teach and as the record shows he had no indication whatsoever that that action was impending or that there was a basis for not allowing him to continue and finish the program so he could qualify for a teacher's certificate and teach the subject matters that he wanted to teach in the public schools if you read that letter which is a page five zero nine of the of the record you will see that only in detail does it refer to the content of mr yama speech in classes classes which he passed so this is not a question of him failing any classes it's simply a question and was always a question of his expressing views and opinions in classroom discussions which the teachers found offensive so you will also see as a basis for that letter that there was a whole build up first of all mr mooney's wrote an initial draft it was rejected by the dean's office the dean's office was involved in fixing that letter so they thought it would provide an adequate basis for the action that they had already decided to take and you see the drafts of those letters and the correspondence back and forth about how they had to strengthen that letter but nonetheless when the final draft of the letter came out it still only referred to the content of mr oyama speech which was the basis for the action that they took teaching nothing occurred in conjunction with his classroom behavior when he was either observing or in a practical in only occurred in classroom discussions in the college of education i did have having to do with his actual performance in class then he never should have been allowed to continue or he should have been counseled or he should have been warned that there are certain things that you're saying that's all true but henderson interact with aren't job things he actually did in the classroom but they should have done it they should have counsel him they should have had a letter and so on but if that's not a first amendment problem well that's right but basically what i'm suggesting to you is first of all i'm suggesting to you that as judge reiner it said in the brown case there are issues of fact here as to the motivations this is not just simply a matter of do we take an action based upon the outward aspects of the speech there are factual issues about what transpired here and most importantly why it transpired and therefore in our view summary judgment somewhat hypothetical question i'm sorry well there were fact genuine issues of material fact your and the judge should not have disposed of this case what was the role of his supposed want to ask you this supposed thing and not said any of the stuff about things you said in class room and any of the letters and instead it said you just did a lousy job of this practicum and that's the most important thing for a student teaching and you just can't to me a student teacher suppose that's all that said if that had all been that had been the sum and substance of it then that would not raise a first amendment issue and it would basically be an academic evaluation and determination which says that you're not doing well in this program and you're subject to whatever sanctions flow from that argument sort of amount healthy argument that that they would that there was enough evidence that they at least partly relied on speech that they burned would shift and they would have to show they would have done it anyway is that what we should be doing basically i think that's what the trier of fact should do the trier of fact should say that given the overriding first amendment aspects of this case it is a determination that still needs to be made about what was the real basis for not allowing him to student teach and i think that it's unclear from this record in his approach is sort of and it's not basically i think we all assumed and i think the record substantiate that the problematic aspects of this case were mysterio yama as substantive remarks to which they took offense and therefore that every every thing flowed from them all you would have to demonstrate is at least as it was partly based on that yes that's correct that's right and or they would have to demonstrate that if in fact first amendment speech protected speech was involved here that it did not impact this decision  my understanding is asked that their argument the university's argument is that the things he said in class demonstrated that he was the a bad teacher yes and let me let me let me address that and if in fact those things said that he would be the a bad teacher that he couldn't qualify for a teaching certificate that he would never be licensed then there is an argument that perhaps that is what we call curricular speech that is an academic evaluation and therefore they are justified in making that determination but the most important thing this absent in this case is first of all everything that mr oh yum a said was in response to questions or statements or issues that were placed on the agenda in the class if you don't want controversial responses don't ask the questions because academician when i teach constitutional law which i teach at the university here and i ask questions and i get answers that i don't like from my students i can't grade them down or fail them for the content of their answers i might argue with them and then i might get into the reasoning process by which they reach some of those decisions but i can't fail them for govern teachers and with their students i could see held against him well because they didn't ask a follow up question in the follow up question was and they never made the determination that even though you hold those views can you confirm conform your conduct as a teacher to what's required of you under the law so do they have to answer that question i guess i'm wondering because their job they have to do this program has to certify to th current teaching can we say we can't make that certification well let me talk about a couple these cases that i want to cite to you first of all hennessy versus city of melrose which is the one nine hundred ninety nine first  circuit court decision in that case the individual was in a teaching practicum was qualifying for a teaching position and made some comments in class that were somewhat controversial about abortions about homosexuality and about diversity in what class and this was in the practicum preparing for licensure classroom that yes exactly like the situation here is great not at all it's not great because you just tell me it was while he was in the classroom teaching you don't know it's a cost to learning and i think you misunderstood because the head of the case was in the same situation and the hennessey case the individual was in a teaching practicum where that person was being trained teaching students he expressed views in classroom discussions led by college teachers he never missed he never acted out or committed any misconduct in the presence of students who he would be expected to teach as a student teacher or ultimately as a teacher so i can understand your position in this case if i understand what you're saying if it's never five children this was he was hoping to have the opportunity to move on to be a student teacher to teach in front of children  so let's say hype and hypothetical there's one flaw and there are two applicants they're identical in all respects save one during the interview for their for this position one of them where has she shared that as columbine that is my position because i think basically and if you let me again talk about some of these other cases where individual expresses views that may be controversial or even outrageous the question really becomes does the expression or holding those views is it of such a nature that that individual cannot perform his or her responsibilities as a teacher in conformity with the standards of teaching that apply and you have to ask that question and go beyond that in this case his mentor dr king felt as of two months before him dr mooney's wrote his letter felt that my a was capable of teaching found him an actual position described him as a diamond in the rough and somebody who basically expressed views perhaps off the top of his head for the purposes of creating controversy in discussions at the col education but there was no evidence anywhere in this record that marco yama ever acted out or did anything or threaten to do anything that would violate his obligations or the standards by which he would be held to teach there's no evidence of that now and again you see even more about this in this case you see that when dr needs was about to deliver his letter to mr oyama he contacted the director of security for the university of hawaii and he said we're afraid of this kid we think he poses a threat we need security when we give him this because we think something's going to happen that was the frame of mind of the administration at the college of education and why they refused to allow him to go forward it had nothing to do with anything other than comments which were in response to questions opposed to him and to his college education classmates and they didn't like the answers now again i ask you to look at all of these cases because in all of the cases and the most important cases is the brown case which was decided by this court in an opinion written by judge graber and in that case basically the question arises is this particular speech there was no controlling opinion that that at that point yes but judge graver basically went through very carefully and found that the only thing in that case the university did was th refused to allow the man's thesis to be placed in the library in other words they refused to put the university's imprimatur on what he put into his thesis the guy actually got his master's degree then i actually graduated but they would not publish his thesis by placing it in the library because it contained inflammatory information in there which was in violation of the university's policies and practices counselors that there's a difference at least i looked at her case called the school district it's one thing to disagree with the school policy and i agree the dissertation and to disagree with the policy it's another word teachers advocating a position that could lead to the harm of children in the classroom i think that is a problem and therefore what you have to do is make a determination of whether or not the advocacy of ideas has any impact on the qualifications or actual work that that teacher will be called upon to do for the school districts for specter then you would say they just need to wait and see but if they go up and then we'll see what happens so i don't suggest you wait and see i think you subject the person to some sort of counseling process to determine whether or not these were just simply ideas that were advanced for the purposes of creating controversy and discussion or whether these are ideas which are of such a nature that will prevent the person from teaching and there is a case out of michigan which is one of the case i want to cite you where a person in a counseling program refused to counsel homosexuals and in that case the court held that you can't just simply dismiss that person because you have to determine whether or not that would interfere with a person's ability to perform her job if she is a licensed as a counselor and that's in my view what they failed to do here if the store for the proposition which they dispute that this was protected speech in the first place and i think they're flatly wrong about that but once you find that it's protected speech then they have to go farther and then in my view the case the hard questions i mean for example there was a dispute in these matters i understand about some program in the disability class where they're supposed to refer to people  now that presumably was i understand that was part of what they were teaching people to do and he didn't like so far as he just said i don't like it that's one thing and so far as  he said i'm not joe and i assume that his jewish they can grade him down but he never said i'm not going to do it he never said that nor did he say with regard to the whole inclusion issue and i specialize in special education cases i know lots of education eight educators who disagree with the concept of inclusion for the same reasons that mr oyama did but that doesn't mean they violate that requirement they would might speak out and say it's much more difficult for me to teach a group of students who have different levels of of ability but mark was never asked he just simply said i don't like the inclusion requirement in my physics and math classes but he never said that i wouldn't teach them i wouldn't be able to teach them or i wouldn't even welcome that opportunity he just said he thinks the requirement he ever is wrong when the one time it appeared they asked him was on this thing about the age of consent and they pointed out and that this was all illegal and he said no then of course i had to report that report as i understand it was that the only instance in which anybody ever said pointed out to him that he was saying things that violated official policy that's the only time in the record where i can see whether he was asked whether his views if they are him permissible to that degree are views that would affect his performance and on that occasion he said as you quote then obviously i would conform my behavior to what the law requires me and there's more than that discussion because the context of that was not about relationships between teachers and children the world the context in which that arose was a discussion about government intrusion by tapping into person's private computers to check whether they were receiving child pornography or not and then it rose in that context and of course that's been a very controversial issue even in this court so the context of these discussions was also somewhat problematic and then they took them and ran with them and made a decision which i think was entirely inappropriate and as i think the cause this is not a case about free speech restrictions i know because this is about a student and it's what's significant to note that it's a post baccalaureate certificate program at the university it's for individuals who are applying to obtain a certificate to be able to teach specifically in the public secondary schools great well so what it is is that you go through the classroom setting at some point you go through the field practice of the practicum and the program is  designed to prepare students to be candidates to teach in the in the secondary schools teaching minors in the classroom setting and also whether or not they're ready to be able to do that that's what this program was so mr oyama started the program as opposing counsel mentioned on july eighth two thousand and eleven which is twenty ten which which is the summer prior to when he received the notification during the course of the the classroom discussions just like you would take any credit courses over the span of a year or multiple faculty members raised concerns about statements he made and it's apparent that you've all of you have read the record and  have made references to those particular statements but they are they were statements about child creation age of consent for sexual relations whether or not it was he felt it was appropriate for a teacher to have sexual relations with minors  he mentioned to one particular faculty that he would bring arms to campus and then when he was in the course about teaching dissipates only one way to bring arms to ca believe well i notice of texas just passed a statute allowing i mean if i think it's crazy but allowing people to carry concealed carry on campus is that illegal in a way i believe it is i understand that if i tell you that i'm i'm sorry wh i believe yes that professor was dr walton so the point is over the course of a year a different profile he said he would bring the guns even though they were illegal he mentioned it i don't know exactly the dialogue i think it was raised that you cannot do that and that and to keep in he then the way she described it in her e mails and the report that is in the record she described it as him backpedaling and then he said yes i would report that just as opposing counsel backpedal you can call and recognizing the difference between something you believe in something you'll do correct well and that was her assessment i think the key is that within those classes and you also mentioned about the disability class and what the acronym was it's the p s i'll say that i have read all of the whole  mails and to the extent that you're saying that perhaps he was overreacting it might be possible i was not in the classroom but based on what he observed that's the last of us reading written statements i understand but that was that he was instructor for that course and i think what he was advocating was that for disability children with disability the trend is to call it people first language p s l which is to address them as individuals as opposed to labeling them as people with disabilities so i was reading something different ok so there were all there was a discourse with e mails and you're correct though instructor siegel jason segel did have those email exchanges with mr or yama i think at the end of that is when he was concerned because what he saw as the instructor was that there was really and that he was sending them every basically every piece of paper that mr yammer on and to munich those as he wrote them as i understand it  he was kept saying oh here's another one that as he sent it seemed to be concurrent with him being sent so it wasn't at the end he seemed to think i don't know he was he was maybe i'm too used to law school classes but this story i'm a was in this program to be able to teach in the public schools the concerns raised by various faculty as well as there was one semester where he was placed as part of the program this is before he applied for his student teaching particular faculty member or duly supervisor who had the location to view him on a daily basis interacting with children when he rated him on the dispositions he waited mystery on as unacceptable and  it did not but what it did was it took guidance from the hazelwood case which was as follows what one of three opinions did correct correct that is that that's the published opinion that we were relying upon in terms of the brown versus lee case i'm sorry but cases were properly applied because it does give guidance as to what curricular speech versus extracurriculars speech or speech in the public forum i think what i want to clarify is opposing counsel mention that there  speech in the classroom the curricular speech cases talk about things in the public school which was the hazelwood speech in the public school contacts not in universities but what's odd about this case is that he was not as i understand it marked out or at least he wasn't fails in the classes because of these changes correct and weren't considered unacceptable in the context of the classes racked he did not get ahead something was a surmise from the stream and about his ability to do to do things in the classroom correct all right so that seems to highly different because it's not really the curricular speech in the sense that he was taught the expectation the class was that he learned certain things and he didn't learn them or didn't express some properly read in alamosa probably or anything like that right wrecked there's no dispute that he did not get failing grades that he did not pass those classes that he took but i think what's important to keep in mind is this program again we're going back to what the program is intended for the goals and objectives to get people through the program to be ready to teach in the classroom setting in so i  first amendment issue but i want to dovetail a bit into the procedural issue before we get to that there's one thing that we haven't talked about that was a really brief that all is qualified immunity as i understand the district court held in favor in the school district on the basis qualified immunity correct that's correct for the two individual defendants and so there was the university which is the defendant and we had to individual defendants both of them were the decision makers at different levels he had three appeals  that both the individuals had qualified immunity because there were no constitutional violations so they did go to that but what's the the stop right there for a second now again i read where there's a court order it's decide on qualified immunity grounds i didn't see that brief at all in any of the briefs the opening brief answer brief or the reply brief here now normally in a case like this if it's a side wins a qualified immunity they're waving the qualified immunity flag to some of the anger  our colleagues on this court but the fact is that that didn't happen here are you at this stage not arguing qualified immunity i am not arguing qualified immunity specific to the issue presented because the university's response was in response to what the plaintiff appellant had raises issues presented and to address those particular questions and so the issues before the court at least i understood from the brief was that this the district court eroni asli determine that there were that that's not for me to say for i may well i could for you to say because obviously when they say huge difference as to whether there is a in the qualified immunity one apply to that claim so is that in the case or not my understanding is that what was not raised at one point my understanding was when he was going to the appeals process he was requesting he requested a variety of things injunctive relief was what about in his court case he raised it but i don't believe it was  ok so for the purposes of our decision making we should not consider qualified immunity is that would tell us today that's what my position is that wasn't something that was raised and it was for you to or it's for you to raise i mean it's a it's your defense is not for them to raise it it seems like the whole issue of qualified immunity based on the fact that there's no clearly established right is probably the critical question in the case that that's possible ye official capacity so that issue definitely raises the first women issue head on right yes it does and so the way we approach it was addressing the actual substantive constitutional rights that were raised and showing that there was no violation of either the first amendment or the fourteenth amendment so in this case for the first amendment you know we've gone through all the cases which the curriculum speech i mean those were in the context i think what's important to know for the procedur process issue also or this up to the core question is could the let's let's put aside the practicum for a moment because it was at best a small part of the reasons that were given so maybe would you know if there were a trial lawyer for one forward you would you would have a mt healthy sort of a defense that you would have done in any way but you certainly relied in large part on things that he wrote in the classroom or say in the classroom right i respectfully disagree i don't think that the per practicum was a small portion i think it's a continuum and i think that was why change in one or two sentences and it was later determined that it really shouldn't have been of which there is that saying that maybe but it's not what that what that what the university decided i'm but anyway it doesn't matter because in large part the decision was based on things that went on the classroom right correct between the class he was just trying to extend his opinion where does he have health care he did say that in in the in the hearings and in the appeals and so on yes so when he responded to the director on that level when he there was a start that committee of three different faculty members they interviewed him they interviewed other faculty he had an option to raise it then and the final level of decision review have reggie that he did and where they say they said that even though they agreed that he was not given the  evaluation at that and that semester they felt he was still on acceptable as a student teacher and the program and he also at the end of the decision with the with the dean had the option to go through counseling to figure out what next steps might be what other opportunities might be available for him he did not take that up he asked the school for tuition refund and then when the offer there was a refund he declined the refund and chose to pass through so there was no other discourse beyond that third level of appeal for him to for the universe to work with him to figure out what he could do he could tell by the way what was just position no days in the term is used a lot i don't know what it meant there are fifteen categories for this particular program it's in the hand k it's the list and it's the same thing that dr king rated him on and council had mentioned that dr king is in in the courtroom while he was his mentor initially i think dr king also rated him as unacceptable in seven of the fifteen categories so the dispositions or things like ability interact with students ability to obtain feedback a professional draft because again these are candidates who are going to be in the classroom teaching minors so the dispositions there are fifteen of them i just want to address the qualified immunity issues first of all if you look at the complaint it does ask for temporary preliminary and permanent injunction and declaratory judgment so certainly qualified immunity is irrelevant with regard to those claims secondly judge gilmore ruled on the first prong of the qualified immunity test namely that there was no federal protective right here so she never really got into the other portions of that test and that's why in our brief we basically confined our arguments to the fact there is a federally protected right here of free speech and that she was respectfully wrong and that determination and that really is why we didn't go beyond that to discuss whether or not qualif immunity was appropriate here because it all hinged on that initial finding that there was no protected speech that's correct and let's say we agreed with you on the first point we would then need to send this back i presume to the district court to make that to finish up a qualified immunity absolutely that's my belief because we never got the point we never really argued anything more than whether or not this was a free speech case and finding that me so i mean i i really hope i agree with the sentiments of the were expressed this is not a hazelwood case our client was never active asking the university in any manner whatsoever to adopt any of the views that he expressed he basically was just throwing those views out again you look at the context here and look at what the finder of fact might have decided marco yama went to california tech university and got a degree in mathematics he then went on and got a master's in physics he's not your typical social sciences or art student he had a very narrow kind of exposure in his education and then he said in a forum in the in the college of education that he raises all kinds of things which are controversial but he doesn't raise them for the purpose of threatening anybody racism for the purpose of discussion and that's what was intended by the professors who asked the questions in the first place and finally let me say with regard to the questions about jason segel jason segel was on a campaign and i think all of his communications in the record indicate that but he was asked for those