taken so long for us to schedule oral argument and leave your willingness to participate with us in this and unnatural setting we will have the usual roles or  oral argument but a couple of particular notes please meet your cell phones or any other device of my ring during the during the presentations and also we we 're not allowing video or photos or recordings of this argument just as would be the role in new orleans your your faces both look good i don't need comment about any of that we we are making want to comedy and will give each five minutes uninterrupted at the beginning of your presentation should you choose to avail yourself of it because you know there is some gap in our audio oars and with that will we and finally we appreciate any record citations you may have w maintains that the university could not fire him because it did not call that student as a witness in his as a canary proceeding this case should have been dismissed on the grounds of qualified immunity because the constitution does not clearly impose  prosecution the due process clause in titles an individual facing deprivation of a constitutionally protected interest only to the notice of the grounds of the government's decision and opportunity to respond that is and i'm quoting from matthews here tailored to the decision to be made this court has said that when that decision involves the discipline of a university professor he is entitled to four general rights right to notice the charges against him of the evidence to be considered an opportunity to respond to the evidence and a jury effectively of his academic peers now  also got all of that what he is beyond that in front of the scorpios complaining only about that there are elements that he was able to have a meaningful opportunity to respond to the evidence offered against him he got that too he was able to make opening so that's the end of this case whether but whether walsh is entitled to yet more requires this court to look at the specific additional procedural protections but which that while she is requesting that's in three parts test and that he is not a bit tricky in this case because the protection and walsh is requesting has been something of a moving target in the district court he asked for direct cross examination and confrontation of the complaining student here he is seeking simply a declaration under penalty of perjury regardless he cannot point to a single case before two thousand and fifteen that entitle him to either set remedy and under the th the st case holding anything similar to what each request to be necessary under the due process clause was two years after this disciplinary proceeding and that simply isn't good  instead you look to case you have to fly a three part test in that use which requires you to look at the private interests at stake the public interest in the procedures requested there are certain procedures existing and the likelihood that the are all favor the university while she is attached is a contractual employee or was a contractual employee that is can contract was to expire august he was fired in april so we're talking about four months of salary as a relatively small interests universities interest by contrast extremely large as it has multiple interests including the simple interest of saying it university in a court system but also to protect the outcome of eight as i have a wrongful outcome that's very minimal here too is as i mentioned at the outset while she needed to engaging in inappropriate sexual conduct the only question was the appropriate sanction and he has not brought upon any case to look at the more general question of whether cross examination in this context is likely to be to a west ok you are yeah you're open to questions of what case is the but if any university contacts they went through a great deal of close analysis to determine that without the benefit of a judge for attorneys there is no evidence and no reason to believe that cross examination is likely to lead to a less  what what evidence was there that would corroborate the complainant in this case as well as i understand it and i could be wrong but it sounds like it's basically a credibility battle between the  and want to and consensual conduct in this context between the university between university professor and university students and it was the university's position as explained by dr pesca that consent was not it was not in defense in this great interest of the university but what happened here in no way measured up to the standard of severe objectively offensive on wanted sexual conduct  policies one of them seemed to be more but title nine if i recall correctly and the other one is the one he was fired under which basically said anything that we think isn't a good idea sexual consensual sexual conduct between superior and a student so that's the same policy and he i have mentioned title my probably i'm sorry i was unclear what i was going through was the university's interests as as seen through the process clause and there are several including protecting students from inappropriate conduct from their own superiors as professors there are protecting witnesses there are complying with title nine regulations and there is question about the disputes and the evidence but you you you disregard this was interests as being limited to four months of salary when we all know is true he didn't pleats to google plus and that that doesn't matter it weighs into the calculus of what process is d is based on his terminations from the university yes an alleged the university has done anything to make this to interfere with his additional ability to to to apply to other employment him with every single university he ever applies to and so there is an additional level of that even if it's not single class it is an additional interest in not having his disciplinary record harmed in this way  solicit any information or a statement or any other evidence from basis of this of this lawsuit which is what this act with the due process clause requires is that he was under the wealth he has entitle to an opportunity to respond to that evidence and he was given an opportunity to respond that evidence the briefs it's very difficult to judge credibility the question is whether he was able to persuade the university panel and had she been there and had the photos been introduced they would have been in the proper position to evaluate comparative credibility because they obviously didn't believe his explanations they didn't believe what mr kaiser's said she said your honor he was able to call both keep the witness list indicate he was able to call both other professors that were at the universe that were at the event and so he was able to bring them forward and say this student is not credible and in a civil case actually there is there is generally speaking a presumption of missing witness is incredible and so the university when they did not call this one and ran the rest of the panel would find that she was not credible simply because she was not there no ms kaiser and that my dr walt is evil to attack the credibility as much as he wanted to he was not able to cross examine her there or he had other means of attacking the credibility of this witness which is what wells entitle him to is a significant interest of the courts pay significant attention to you and it really grants more significant due process rights to make sure that protection to that interest is protect  committee chair to refuse to allow any inquiry into the conduct of the student in question should repeatedly said during a hearing the student's conduct was not relevant and it was not under investigation students standing normally standing next to him but leaning into him didn't casually touching him that established far more then then him saving if she was comfortable establish what she looked like right to either cross examine them or have some reasonable substitute for the right to cross examine and were concluded that allowing cross examination of the investigator who only also point to the movies the old bridge their wincing test the test that i also think favors the so much further implementation of a protection against this what they did what the defendants do did it lead to a likely iranian's result and of course if they only they'd never heard from the complaining student they were not able to answer a single question process of well we don't really we do not have a case in this circuit the denies confrontation in a case where personal credibility was the fundamental issue do we  th circuit and i think i thought the hyde act case also proved confrontation uncertain of the six circuit has made very plain for several years a confrontation has whether exactly how much homefront taishan your client required whether it would that right would have been satisfied by putting the alleged victim knew a declaration under perjury or whether she had to hear in person to be examined you take a position on that yes we have always said you have the right to choose to make cross examine i merely offer the let me ask you a question about the photographs in particular as i recall correct me if i'm wrong you sought to introduce the photographs in globo or individually as as  was there any explanation offered westergaard each photograph as to its significance or wasn't just the general proposition that this was a consensual that everybody ok so i guess my and you're answering my question and i also have an up duty to respond but going back to something judge jones mentioned earlier the photographs were never evaluated as to their merit on a time line of the evening other words that some of them might well have been of no consequence whatsoever and others may have been probative or supportive of or or to refute any of the testimony of the and certainly i think that's you know that's another another basis for the process contention is that we did not prove their case the only thing that they use suggesting isn't part of your cause of action that you have to prove that the result of the proceeding would have been different if he had gotten all of these protections no since wells didn't we have some case that involved reduction in sin force and some university i think it came out of the dallas more than district of texas and we had a rather lengthy opinion and it said something about the standards for due process in these circumstances being murky and i'm sorry out of the name right off hand but it seems to me there is such a case well i've certainly case and one way to do that is confrontation the confrontation was not required and that a year earlier in the wet a case which was a sexual harassment case if i'm not mistaken the court specifically found that the constitution  the reasonable substitute it did not include confrontation also your honor my opposing counsel made a number of comments about any number of ways that the panel could have allowed dr credibility i think it's worth noting again that dr walsh didn't actually object to the students absence you knew she wasn't coming and he said nothing if he had the panel might very well have ted one of those particular option  because there were additional students you can't really stop one from one to another and so as now he says that's clearly not persuasive because the other student was male i'm sorry your honor i'm not sure it was a speak to a witness coming to testify but actually would have protected the professors as well because they were they were witnesses but they were called because job because judge professor was asked for it he didn't ask for  disagree with your honor but when i had ak require cross examination there was cross examination in that case that the th circuit did not say it was required and in fact the department of education recently recognized the circuit split between hyde act and s circuit case when it issued new title nine regulations that actually require a number of the protections that judge davis be jested and so as a result we're just in a different world right now that they did recognize that there was a circus but you don't just have to take my word on and then on the photographs judge engelhardt when there was no specific discussion of individual thought of that judge professor walsh was allowed to have