the next case on the calendar is the walker being new york city department of education morning stephen burke steen for the plaintiff appellant the plaintiff's lesson on the central park five was protected speech under the first amendment even though it was delivered in the course of classroom instruction there's a threshold issue for this appeal which is what cases do we rely on in resolving this dispute what law governs this case this is not a guard case this is a case to be governed under this circus precedent in solano versus sag harbor which itself draws from supreme court authority hazlewood if we accept that this is a salon a case then we have to accept that this case has to be resolved under a multi factor balancing test which cannot be resolved under rule twelve at least not on these facts because defendants concede that plaintiff was allowed to teach this subject area to his students so she didn't deviate from the curriculum and do something she shouldn't be doing if we accept that and we read the complaint at the complaint does not concede that plaintiff did anything wrong in instructing  resolved on the papers because the teacher does something completely inappropriate but that's not this case so we don't concede in the complaint that lea walker did anything wrong and the ones who did something wrong with the supervisors when they did the evaluation and said well this is not balanced the kids might riot based on factors or things they don't even understand under solano that's that's a political objection to her classroom instruction is not appropriate and this is why rule twelve relief was inappropriate why isn't i guess it's an open question in the circuit but why isn't this speech comes falls within our setting i mean it would be one thing hard to say if she'd spoken about the central park five case at a community board meeting or police community function or the city council hearing that's one thing but when she's standing in front of her class and teaching ninth graders that's what she's paid to do well you mentioned it's an open question in the circuit i think the better way of saying it is that salon has never been overturned in car said he doesn't wipe away all employees speech cases that came before it and there is a tendency to t reat public employees speech cases that way but they are said he said when addressing academic classroom speech so if the defendants are correct that this is a guard case then probably ninety nine percent of everything a teacher says in the classroom has no constitutional protection that can't be the law you know this is not a case where somebody works for the town or the county and they speak up this is not literally not a garcia he case this is not the speech that was at issue in our city in most of the other employee speech cases and the supreme court in lane vs frank said that the speech in that case was far afield from the speech in our city so garcetti has been cabined somewhat by the supreme court and lame but more importantly this this circuit has never repudiated the reasoning it's a lot open for for defendants to prevail in this case this court would would probably have to say salon it was no longer good law now as a matter of policy i know we don't often get into issues of policy but when we're confronted with a choice like this bear in mind that teachers are not teaching simply reading writing and arithmetic that talking to the students they do it every day they did it when i was a kid and they're doing it now and they do have a relationship with students about the world and what's going on in the election and things that are happening you can't allow vice principals to stick their head in and say i don't like what you said because it disagrees with my political views you know fires that's not what was said according to the complaint here but what was said he was even worse what he said was yours your students might riot based on what you're telling them about officials is we want to we want you to provide some balance that's ultimately what what was recommended that's not correct that's what he said but we don't concede that she was not teaching a balanced if we agree that that's the appropriate analysis to determine whether that was reasonably believed it's a legitimate pedagogical concerns whether there's really no other way to view the exchange insofar as we're talking true and we don't know that yet because the complaint doesn't concede that now on in discovery we would be given we had sworn testimony on what she said and what how the vice principal perceived it and what the lesson plan said and what her materials look like but we're not there yet you know it's conceivable that a vice principal would be within his bounds to to to object on that basis in some factual context that's not before us today but what's before us today is that she didn't do anything wrong and the complaint says that and the vice principal is the one who did something wrong by making a political objection that seems out of bounds under any balancing test that we might follow under the first amendment interpretation you said at the start of your argument that ceylon it doesn't mean that there are not cases where you can decided on a twelve b six motion this is just not one of them i understand your argument about that but when it a lot of cases you cannot resolve at the pleading stage so whenever there is a dispute between and a teacher and an assistant principal about the contents of a class unless as you say it's egregious conduct on its face you're going to have to go into cases the teacher loses under rule twelve a summary judgment because they do something that's completely inappropriate and that's not the case before us thank you good morning your honor sir may please the court i want to to open with qualified immunity because that wasn't discussed and in some ways it's sort of the most obvious issue here and that it's not  disputed that the applicability of our city to classroom instruction was an open question at the time of the instruction given here in november of two thousand and thirteen would qualified immunity deal with all of the issues before all of the police it would your honor because it would it would take the individual defendants out and the only basis for liability against the department of education has to be direct recommendations made by the individual defendants that they have another point in their proposed amended complaint where they said that dio a has a policy in practice of adopting the terminations recommendations made by high ranking educational authorities in each school building in other words the principals can terminate somebody that's classic responding at superiority they're not talking about a policy customer or procedure here there's nothing on cause and also deal with your view it's the form of education correct so that that would that would resolve the case for that reason and again you know it's and i think just a touch on the merits of qualified immunity little bit further it wasn't only an open question in the second circuit at the time in november two thousand and thirteen the only circuits that had definitively decided whether gaar said he applies in the classroom instruction in a secondary or primary school setting had all come out and said that it does that the seventh circuit the sixth circuit the ninth circuit there is no circuit that i go on the other way i mean so clearly this was a reasonable school official going to believe that they were absolute within their rights in believing that they had the authority to dictate how a particular lesson was taught and to discipline somebody if they did not teach it in that manner and especially bearing in mind here that it wasn't even a situation by by miss walker own allegations that they were saying teach it this way they're saying you have to teach both sides of it that's all that is alleged in the complaint respect that to turn to the salon zero issue i think that the district court was clearly correct when it said that her failure to concede that she did something wrong does not you know defeat a motion to dismiss you know there's an allegation they she only alleges that you know that they were she was asked to teach at a more balanced manner that they were concerned about potential reactions and about the age appropriateness of certain other material and there's there's no genuine dispute that those are legitimate pedagog concerns or the fact that she says oh i don't agree with them it's not relevant there and as i think is is your honor pointed out there's a there's a risk that you know if you take that you're going to constitutionalized every time there is a dispute between a supervisor a teacher about how to teach a class or you know are you reading the complaint i'm not sure you're reading the complaint in the light most favorable to the plaintiffs and in a searing it can be resolved in the twelve b six stage under salonen i mean she she says that her lesson was balanced and she's told it has to be way more balanced and you can't rile up students with a lesson like this and she's saying she was giving a balanced presentation of the case how can you resolve  just a brief word qualified immunity i know other circuits have said different things but our circuit is the only circuit that matters for qualified immunity purposes and we know what case governance  this issue you know there was an analysis and lane v franks on qualified immunity that was very interesting just to sort of my door said the only reason it was qualified immunity was because the law was all over the place in the eleventh circuit but that if the law wasn't all over the place in the eleventh circuit the plaintiff would not have a qualified immunity objection that's sort of what we have here we have preexisting precedent it's not all over the place and so the defendants don't have a qualified immunity argument in the salon of the law and we don't have conflicting decisions president of the citizens in the second circuit on this issue unlike what was happening in lean v franks thank you do you agree with me that if we disagree with you the then that would resolve the entire well that opens up as another lot of questioning i'm certainly a much firmer ground if this court says solano is still the law of the land in the second circuit without solano we have hazlewo then we can go after the individuals then there is the issue of the equitable relief that we sought when we moved to amend the complaint which defendants didn't oppose that was that exchange it's in this supplemental appendix  so they sort of conceded that we could sort of claim for reinstatement in front pay matters which are not affected by qualified immunity so your view is that that would not resolve the entire case correct thank you