in january of this year the supreme court provided another reminder to lower courts and admonition if you will about the need to be careful in scrutinizing questions of whether public official is entitle to qualified immunity and supreme court held in white versus fawley and i quote in the last five years this court has issued a number of opinions reversed in federal courts and qualified immunity cases today it is again necessary to re that's exactly what the lower court did not do correctly here in white versus pauline the supreme court went on to say in this case reversing a court of appeals the panel majority misunderstood the clearly established above lay out the excessive force principles that only a general level i submit your honors that's exactly what happened here neither the district court nor mr lyons has identified any takers or a is beyond debate that will suit me in the absence of that president it could not be beyond debate that may deem vaught or mr bosler could have understood that after ten months ten months of complaining about the student athlete who is appealing the grade the mr alliance and given had suddenly reversed course and was complaining about something other than that student when he recounted allegedly what happened in the meeting with the and in the context of the particularized facts of this case we take into account the fifty paragraphs that were in the first amendment complaint that lines of minute from the second amended complaint and marry that to paragraph eighteen of the second a minute complaint in which mr lyons alleges and i quote alliances cause of action against a friend it stems from the preferential academic treatment afforded student athletes on your own case use campus one of which challenge degreed received in lines classes and you look at that and marry it to the facts of it in context of the particular facts of this case there can be no reasonable debate that the defendants should have clearly known that mr wyness and gauging and alleging protected the chancellor said supposedly that his role was simply as a fund raising position that's not accurate his job is to oversee and manage the administration including the dean in the and director bossa he was within the chain of command so to speak i mean it is it is it analogous to a university president it is well is there a chance or over the entire system or does each individual university campus each of them have a chancellor that report up to a president of the of the system as i understand i mean i'm very familiar that i was system where you have each each university aversive iowa iowa the top level administrator at the university of missouri in two thousand and a kansas city in two thousand and eleven and when we look at the at the context of this case and and i don't think it's lost on the court but i think it's worthy of emphasizing when we look at the paragraphs that were in the newly alleged paragraph second a minute complaint we're now blames goes back to the boss and by and is now complaining supposedly of this broad systemic preferential treatment giving students what's reasonably understood in november of two thousand and eleven that when mr lyons was supposedly complaining about preferential treatment he was doing so in anything other than the context of his job well if if if your argument today is that that the chance or is in the chain of command so to speak and that this is just a continuation of the complaints that were made to lower level officials why it that as i understand it you can see to it that this protect contact because we don't need to get into that debate frankly i think it's a hill we don't need to climb and get over because we you know we have the two prong analysis on to determine qualified immunity i think it's worthy of debate as to whether it's protected speech we could have a robust discussion about that effectively the fact that we're debating in the second prong this stablish is that it was not a question beyond debate so i don't need to win the first it's element in the second hour and that's why we went ahead and for purposes of our only conceded that it could be protected speech because we still are left with and i'm still asking waiting for lines as counsel to cite to us those cases whether in the eighth circuit or elsewhere where we can look at a teacher complaining in the context of grading to his school administration but that is first amendment protected conduct and because there isn't any such authority and certainly wasn't any as of two thousand and eleven that merits and it's not protected but that because the chance or as it is at a different level and there are different positions and coupled with the fact that they brought some community leaders with them that ha down i think best there i think that is what they're alleging but that still doesn't answer the question which is what chase i'm going to cite back to the supreme court where do they a dental find a case and i'm going to paraphrase now where a school administrator acting under similar circumstances as dean wagner mr boss was held to have violated the first amendment that's a page five fifty two of white versus paul that body of case law which there is not analogous to this situation qualified in any attaches and i'm going to do something remarkable now and ask the court to with six minutes left of my time to hold once again as it did previously that defense are entitled to qualified immunity but in this circumstance your honors i'm going to ask the court in addition to doing that issue a mandate in the mandate should be that the district court dismissed this action clearly established under the law that what appellant have done is retaliated against our clients and speaking to a matter of public concern outside his normal  job duties and as long as that outweighs the government's interest in rendering efficient services it's protected appellants have mentioned that they believe the law has changed and that there's a distinction that you need to have a case that's more analogous than what we have cited they all deal in the fourth amendment context and even mullen ex of the supreme court level signs last year said that when they talk about the context of the ca especially in the context of the fourth amendment is where it's required to be more particularized we have said at least i have said for a ban that the voice that the nine ball fight in the would be example i know i know i know how you distinguish plain and and  think that even applies in the first amendment to have an overgeneralized but every case that we have in the eighth circuit where qualified immunity was found in a first amendment context that we understand is that it was at the generalized level that we not generalized but it's just that it's always been clearly established that an employee has the right to speak on matters of public concern as long as it's not part and parcel of pursuant to his duties and i think that it's getting to particularly lies if we set a precedent today that you have to have a case in the academic arena in which a supervisor or an administrator talk to fire someone a challenge to get someone based on their way all of the appeals all of the appeals that you now concede were not to the search that were quote outside his duties outside his classroom duties outside his grading duties he was griping because he to other people and talking about this that's when he became aware through discussions with other people that you other professors that it's a widespread issue and that when it became protected speech when it was more jet his discussion was more generalized and that that's what he brought the community leaders and he went to the very top of the chain of command because this is a widespread issue and the university could have been sanctioned where this could have been investigated for this and so that's when it becomes definition a whistleblower is his or any such protections there are protections but we don't believe that the political in this case because even though appellant contended that even within the chain of command mr lyons never had to report directly to to the chancellor he went outside the chain of command is our contention and that's still that's a factual issue that we have not gotten to yet as far as what exactly the role of the chancellor is in the chain of command at this point because we're at the most interesting dismissed stage we haven't had  contended that you know grading in the certain context and other other cases in the eastern district of pennsylvania isn't he doesn't you talk about great employ action academic fraud and there's a distinction between doing something that process that's very distinct from the issue that day and here we're talking about grade inflation and academic fraud and the widespread issue not pertaining to one student within your classroom but pertaining to the university  it only applies to the law in this context at this point in the process with a motion to dismiss or not a summary judgment stage and we contend that yes there's a public policy reason why these fourth amendment cases have said that you have to have such a particular life detail we don't have any first of many cases yet that they have to have that detail and thus the law was clearly established in two thousand and eleven and two thousand and twelve as far as the first amendment goes the other point to which you can use contacts and it's appropriate determining whether it's of public concern we've already conceded that the speech is protected that is inappropriate at this stage under bell to dismiss or analyzed on this issue and we also the plaintiffs inability to point to a robust body of a consensus of cases involving a teacher complaining about a grading is the first amendment that's actually a character ization in favor of the plaintiff because if we really wanted to be counsel just said overly particularized we'd be framing the question is can they point to any cases where a teacher complained to administrators about academic preferential treatment of student  sole example dreamin of his own student could constitute protected activity for which the defendants obviously should have known that they were treading on his rights in the absence of that respect to request that senator actually title to qualified immunity and we put this case to an end and ask that you reverse the district court when instructions just missed the section thank you thank you counsel