kit that case has not stood the test of time and should be reconsidered the only thing in judge reamers opinion that i would disagree with is that subsequent disabilities one characteristic of those disabilities is that he will have the kitchen act in a manner that is disruptive to his class in response to his disability for bend ice t agreed to enter into a behavioral intervention plan that governed what the teachers were supposed to do when ever he overcame disruptive january st of two thousand and seventeen cio was by decided to intervene mr abbott's intervention culminated in her throwing tear go to the ground and choking him for several minutes while the behavioral evidence in the record that miss abbott was not acting for pedagogical purpose she was heard after the fact bragging that she taking care of that and that he had picked on the wrong one this reflects more of a motivation of vengeance than a desire to do anything pedagogical we would also contend that the for several minutes would fit into that same category as well however whether whether or not one should we consider what factors kind of  the surrounding circumstances what should we consider when we're determining whether mr abbott's conduct had a disciplinary purpose was to go into that determination but well typically this court has has simply looked at whether or not the incident occurred in a helicopter call setting of the school which clear clearly is that was the case here and also whether there was disruption however here is it as i  school employee who committed the act to was committed to violence was acting in compliance with the school's policy whether that person had with him other than that she happened to be passing by in the hall additionally as as we say in our brief teoh's if hero had to be disciplined that discipline was governed by the behavioral intervention plan which set up the school's policy for how tear was to be treated spike knowing this angela abbott just not it even if the court considers this the corporal discipline we believe that the this panel should overturn the versus h and we believe that under subsequent supreme court case law the versus her and him can no longer be considered good law if weight if we were able to overturn the how would that get you past qualified immunity given that the law establishing liability needs to be clear at the time of the conduct ok well  circumstances there were so egregious that the jailers in that case would have been on notice that putting a prisoner in a the jail cell covered feces violated his rights under the them and here we have similar readers come conduct of a teacher choking a student no reasonable teacher would would be under any apprehension that it is appropriate or legal to choke a student for several minutes as was done here any reasonable teacher would know that choking a student for a long period of time till it foams at the mouth while behavior is a discrete mean for you to stop would likely violate that student's rights that as in  the taylor case that the circumstances here are sufficiently extreme that angela other would be on notice that her behavior likely violated the law that he has to pursue those rights in a different form so fees over ruled the only thing that would change is that the form where the right to pursue would change does not change in the in what t o s substantive rights under the substantive due process clause are in we've cited some clear precedent in you know our brief where in the those cases even though they're not in the context of the school would have given angela some notice that this behavior by awa their primary supreme court case that we rely on here is as bringing about a change of law is is the nick case nick was not a school case it wasn't the plaintiff can develop in federal court they would be barred from challenging the findings of state court effectively that meant that a takings could never be challenged in federal court in the supreme court held that there was the th amendment in federal court nine hundred and eighty three dollars allows the plaintiff to pursue any substantive remedies in federal court irrespective of whether there may be similar remedies that the constitutional rights that were violated goes beyond what can be pursued through a simple court action there is an some basis if it's inclined to do so to revisit the fee case in the fish case should clearly be revisited  the th circuit as is judge wiener has noted is alone in the hole in the central holding a fee that the visit of the veil ability of state created remedies well hours bringing suit under the substantive due process clause here every other every other circuit has found that there is some that and that the only question there is what standard applies here we believe that the kingsley case which was a pretrial detainee case sense out the appropriate standard we would also urge the court to adopt very briefly on the da claims we think that the school districts brushing this matter under the rug withholding crucial facts from their investigative  and angela abbott in this matter this is a student discipline case i can't stress that enough because many of the cases that the appellant's have cited both in their brief in their argument are cases that not only are not student discipline cases they don't involve the public schools at all and for good or for bad the courts have routinely created legal doctrines that are different when public schools are involved and as an example that's not directly relevant to this case but it still proves the point we know that probable cause is required for searches in the adult world but the supreme court in new jersey vs t o l o held that in schools you only require reasonable suspicion and the reason for that is because of the increasing difficulty that schools have for maintaining order and discipline in the school setting which the supreme court held in england versus right is a prerequisite and necessary prerequisite for education to actually occur here we're dealing with what i'll call the fee versus herndon doctrine although  it frankly goes back much further if you cunningham versus beaver back to all the way back to this court in the supreme court's decisions in england versus right and i want to to cite a passage or quote a passage from fee because i think  answers most of the questions that came up in this case in fee this court said our precedents dictate that injuries sustained incidentally to corporal punishment irrespective of the severity of these injuries or the sensitivity of the student do not implicate the due process clause if the foreign state affords adequate post punishments civil or criminal remedies for the student to vindicate legal transgressions the rationale for this rule quite simply is that such states have provided all the process that is constitutionally do specifically states that affirmatively prescribe and remedy mistreatment of students by educators do not by do the mission act arbitrarily a necessary predicate for substantive due process relie mr gilbert let me walk me through what is the process in texas if a student a student's parent thinks a teacher has engaged in excessive unofficial what's the process well there are a number of things that a parent could do i mean obviously they can file a grievance within the school district or something like that but as as this court found repeatedly in cunningham and more and fee state law provides the same that the the common law privilege provided which is that teachers can act can use reasonable force but they can't use excessive force so under texas education code twenty two point  five one one a teacher isn't titled to immunity but not if it's excessive only that's reasonable for same thing with texas penal code nine dollars which is that the criminal side of it an educator can use reasonable force but they can't use excessive force so there would be an avenue for remedy at the state court level and that's what a lot of these cases are looking at when you look at all these cases and you kind of look at the theme behind them what they're saying is that we should not constitutional eyes torts and what should be state court actions and so you know even this court in dover says covington which is a very different kind of case but the whole idea there was we don't constitutional what should be state court actions so there is a remedy in this case at state law as this court has repeatedly found in texas it's just at the state court level and that's the point defeat and more a many of those cases brought in state court i know you represent district i'm just curious to those cases brought up that they do get brought to be honest i don't know why people seem to prefer federal court so we seem to be in federal court more often than not but yes they do get brought in state court did anything just within i don't mean there was a state lawsuit here but was there anything within the school system that happened to miss abbott for this choking she was investigated and she was required to undergo training  there's a physical restraint training that the law requires for special education but only required for special education teachers she is not a special ed teacher but what the law says is if there is an incident that occurs you then have a certain number of days and i don't remember it's thirty or sixty or something maybe ninety something like that for those people to undergo training and she in the behavior aid and actually the principal of the school underwent that training now this case has been framed somewhat both here and below as a qualified immunity case and that's correct but i think it's important to note that this is not a case where the defendant said leapfrog the question of whether the challenge behavior actually violates the constitution to move on to the easier question or the simpler question of whether there's any factual analogous precedent in this case as this court stated in more versus will assayas be under our precedent the conduct of which they complain is not a constitutional violation and the magistrate judge below said because plaintiffs amended complaint alleges excessive corporal punishment or unlawful seizures and because texas provide adequate punishment or criminal remedies for the student to vindicate legal transactions plaintiff claims are subject to dismissal under binding precedent so this is one of those rare qualified immunity cases where the court actually did look at and resolve it on the st pong whether the defendant committed a constitutional violation and not on the nd prong of whether it was clearly established now we have throughout the briefs argued that it was clearly established but the point there was to really point out exactly what's already been discussed in this case which is that even if this court were inclined to revisit feet at this point that shouldn't change the outcome from is abot the substantive due process claim was only asserted against her it was not asserted against the school start and so even if you changed it the law was obviously very clear at the time and has been for a long time and therefore her qualified immunity should not be lost even if the court were to change the verses herndon and while there have been calls at times for this court to really look at fee including in more versus willis i is the more was twenty years ago now and we have continued to have cases using this doctrine in applying it even though you know there have been calls for it to be reevaluated unprovoked attack so i think it's important in this case to look at the sum total of what was going on you had a student who is mr so removed from the classroom because you've been misbehaving in some form or fashion under his discipline plan that was what it to try to help me handle the situation but she initially actually passably in part of the door to try to keep the student out of the classroom which again is what the behavior intervention plans all for and the student who was still misbehaving for that length of time ever be reasonable and i get if there is really an altercation of the student grabbing their hands to you know back something like that i mean choking for that same amount of time as is reasonable well then again that's the bats that were  rehabilitation hospital for months in campbell versus dallas there you had an allegation that the police officer in that case removed a five year old from a classroom my slamming into the floor and dragging him along the ground in the allegation was that the teacher the coaches had the liberally used exercised to inflict pain on the student which ended up in his hospitalization and in marquez versus garnett you had a student who was messing around with a teacher disciplinary i think it's very much in line with everything that's happened in all of those cases now the appellants have argued that he can be implicitly overruled or  case the takings clause says nor private property be taken for public use without just compensation and the mc court said it doesn't say nor shall private property be taken for public use without an available procedure that will result in compensation but that is what the due process clause says it says nor shall any state deprive any person of life liberty or property without due process of law and that the language of that being looked at and terminating that plaintiff repeat receive the full benefits of the school program now in this case the district court determined that there were no facts that showed that disability played any role in anything that was being done in particular we know that was out in the hallway because of his behavior intervention the plan specifically called for him to be taken out in the hallway to calm down fellow teacher who she perceived rightly or wrongly who she perceived to be having trouble with a difficult student alcohol so she went down to help them like i said she initially positioned herself in front of the door to keep the student out of the room the student started hitting her and that's when obviously things started but there's no allegation i think there's even any acts that would show that this was because of his disability they plead that she did this to earlier case that he created in exigent circumstance that's an exception for police officers that said that they didn't need to inquire into the status of the disability if that would create a potentially life threatening when we wait that long and we both know gone through in our brief them pointed out that most of what they wanted to ask they say that they learned about things of depositions that were taken in january two thousand and twenty there were three depositions but most of what they wanted to add was not stuff they found during the deposition it was things they knew about well before including an entire section about how they believe that when the child started school a year and a half before this incident they should have been for substantive due process purposes you look at whether the whites can be vindicated through state law no other court has bella dated that position no other circuit is billeted the position in the supreme court in center zentner i'm sorry stated that the cause of action under substantive due process is can be filed in court as soon as it's the action is completed in that state will remain these are completely irrelevant to whether substantive due process rights have been by this court has his recognized the right to compliance with the eighty however the behavioral intervention plan is completely meaningless unless the school district in force is it here they've allowed a teacher to completely disregard plan by tricking a student for several minutes and they've taken no but apparently by the room admission they can no just quinary action response it's unclear  why they think that is consistent with the here we're with the intention of the law behind the behavioral intervention plan this this case is easy to i think clearly demonstrates the problem with fi it's easy to imagine this case going much most more wrong than it did it's easy to imagine that choking a student in st grade for several minutes could result in permanent injury in even death but according to the logic put forward by the defendants he even in that case had died from this incident he would still prohibit him from pursuing the substantive process clean in this court that just simply cannot be they also don't constitutional rights under the force of the th amendment even if this had happened in prison he wouldn't be barred from pursuing a claim under the under v a the m absolutely shuts the door in his face and prohibits him from pursuing obvious violations of his substantive due process rights as as i said no teacher could think that it was reasonable to tackle a st grade student a th her size from to the ground and lino is not for several minutes  there needs to be some point that which constitutional protections hit again irrespective of whether there may be ways to to get some relief th state court and we would contend that this is a case that goes over whatever the line is whether the test is that the the one articulated in v that the actions