conduct engaged in by the defendant who was his teacher in class although my client has an arabic name the teacher referred to him as bill the date was october t a defendant was a certified public school teacher who walked into a th grade class with children ages twelve or thirteen in a kindergarten through th grade campus that circulated his regular which he had created the night before what he created was in part from a website which is an anti muslim pro christian website called billions bottles dot or that listed out a number of twenty three actually items which were part of his curriculum that he created a council we we've all read the briefs are we know what your to the issues that were created by the court in edwards which talk about in focus the sickly on elementary school students there is no case that a teacher walked talks about the focus of elementary school and let me let me tell you one of the problems that i hear the case and that you cite are for the most part from district courts which talks about a high school teacher and it's talks about what a high school teacher and cannot do because they are they can't come in and be a loose cannon and that a circuit recently in three will call it address the issue of the process that the saved part of education and the department of her california department of education go through to create a curriculum and the advice in directives they get they get information from the public they get information from lawyers they hear information from everybody before they create curriculum it now i counsel and i think the district court views those cases as dissimilar because they don't come from the perspective of the student but the reality yes those entities exist and they have laws they have rules they have education go to twenty education fifty one thousand five hundred which are designed to say to all have haters including be defendant in this case this is what you constitutional law like you of course are are making an allegation here that they're asserting qualified immunity and i know are not the standard very well as to what you have to do to overcome that so what i'm looking for is something that does not necessarily mean that a constitutional violation has occurred from the perspective of the student so what is your best case or cases that help you over town a qualified immunity posit a difference in what we often see which is a th amendment scenario involving police officers where things are very fact facts pacific and chases are you know clogging the courts daily there in front of you where people can develop what it what can and cannot happen in this particular case for example the court obviously has the information it's a cheap if you walk in only the london pass and then says well you don't have a case that clearly says what the california department of education found to be you file ation of california two different california statutes the directives that they have sent forth all educators limits are because what happens is we hear the court says or we go to the district court in the district court says there is no case just like this there will statement it's made by the defendant in the middle of a class this is planned curriculum that he created and presented to the ayers student body and then was indorsed in ratified by the district when they said this is circuit thousands for the school district based on qualified immunity not not exactly the same as this case i agree with you but there are some similarities what is the case since that time that would have put the teacher here says that in this particular situation with a statement we are not going to find a constitutional violation that is not curriculum let me let me follow up on the question and the had a case where a teacher walked in created an anti islamic curriculum certainly we would give it to you no matter where it's from we try to satisfy the court  in certain situations you're just not going to have the the amount of cases mean if we look at the cases in this establishing area before the th circuit we've basically have perhaps and so it is because there are so now i understand that the courts do not have to say the state law is sufficient and it is certainly not the focus of the constitutional inquiry but i think we do ourselves a disservice when we say that the california department of corrections did not spend time trying to make sure that the rules that they set out work constitutional which is what correlates and sat when they go through that entire process and bade give direction it is not something that we should not consider question beyond debate and squarely address the specific context of the case in other words it has to be such that every reasonable official would understand that its conduct is unconstitutional and that's why the supreme court has said that and when the test is properly applied it protects all that the plane the incompetent or those who knowingly violate the law and when you apply that test here becomes very obvious that a coke is entitled to qualified immunity because when it comes to the establishment cause there's nothing clear about it the supreme court hasn't been able to decide on a governing standard and even among establishment cause cases what amounts to unconstitutional disapproval of religion in the classroom is particularly on settled and i think the closest case out there which the court has already alluded to as c f r says capistrano unified school district and in that case the court says that at some point what a teacher says in the classroom a crossed the line and may amount to unconstitutional disapproval of religion but the teacher in that case got qualified immunity because there is no precedent that defines where that line ends and that's still true today and that's why like the teacher in c f to coke is entitled to qualified immunity we think the trial court correctly decided this case and would ask this court to affirm so kelso me ask you a hypothetical because i agree with you that c f is a problematic case for the plaintiffs here still be swept up and qualified immunity so i mean i think there's a difference between saying something it's obvious that something is just outrageous and morally around versus saying that it's obvious obviously unconstitutional those facts are much more extreme and i think that a court in those cases in that circumstance can say that clearly crosses the line and that is unconstitutional although the case law is so unclear that i think even there you would have to exercise some sort  of have to draw lines and explain where that line is and so even with that that would be the st case and if that teacher race qualified immunity because there is no prior case law i still think he would get qualified immunity but the court could  going forward that if other teachers do that that crosses the line of that break that violates the constitution and you do not get qualified immunity but there is a line of cases called the hope line of cases from the supreme court  are our court is hot sided hope i think three times this year and publish decision saying that sometimes there are situations where things are just so obviously wrong that you don't need a particular decision from a article three court to say so and so so help me out with that why doesn't that doctrine apply in this case though that's true so hopes that there is a subset of cases where a constitutional violation is so obvious that doesn't have to be wars but the supreme court has since said that that is a very narrow exception and i think the d c vs was b case talks about the narrowness of that exception and this court also has said that that is a very narrow exception and the fact that something is obviously wrong doesn't necessarily i think that jeff that he's talked about that even if a police officer stealing money is obviously wrong that doesn't mean it's obviously unconstitutional maybe a teacher obvious violation what's your response to that so i don't think that's right i'm qualified immunity is a question of whether it's obvious or it's a question of federal statutory law and constitutional law so whether there's a state law violation or a violation of internal procedures doesn't speak to qualified immunity and this court has already addressed that i think in that case versus kits that county sheriff's department decision it's to forty nine after one hundred and twenty one looking at the curriculum as a whole so what happens you know one day in class is different than you know looking at the curriculum as a whole but here i really think the constitutional there's there's two different congress the analysis is whether it's unconstitutional and whether there is controlling precedent that clearly establishes the law and here even if you assume that dico crossed the line there's no clearly established law and so he is entitled to immunity unless it's obvious  law that that defines that and it's really not an easy question because the government is entitled to criticize religion and the fact that someone takes offense at what at that criticism  i mean in terms of that obviousness cases in the th circuit i know that there's that eighty decision where there was a police officer who killed someone without any legitimate law enforcement objective whatsoever and that was considered to be so reach that level of obviousness so where exactly the obvious line is too is a little bit unclear but i think with the establishment clause there is nothing obvious about it it's one of the murkiest areas a lot out there in the supreme court decision year after year they can even decide a standard so the plaintiff can't have much hope and hope i don't think so and i think there are other district court's decisions that have sort of struggled with this issue where there's an establishment clause claim where something seems maybe somewhat obvious like the tear pot case where there was a municipality that put a sign up and said you know this church welcomes you and a picture of a bible so it's pretty clear that you know maybe not the best thing to do but it's down because it's such a confusing area of law that the court said that qualified immunity was appropriate and there are several courts that have come to that conclusion because that area of law so confused let me ask you this assume for a moment that there is no steps because violation or at least there is qualified immunity to do so i would assume that there are methods where parents if they're concerned about what a teacher is  doing congreve that in a sense through this whatever the school district which teachers are under state law some pride i think that's right and i think that's a really important point this isn't a question of like qualified immunity or you know nothing can be done in this case the teacher was disciplined for his conduct the principal last was terminated the teacher was later terminated the student went through the sort of various channels and saw in the strait of relief from the california department of education and was he was disciplined as a result as a direct result of this event right other appoints and now i mean i don't have and i think you have other questions for me i obvious without any case at all someone should know that this violates the constitution and that a teacher who is certified and has been given the b understands the law as  exists since the seventy's and eighty's there is fair warning there was fair warning that things had to be mutual things couldn't be denigrate it's not like he said here's well things that are good about i edwards the talk about neutrality he says that from the united states supreme court and this court have said you cannot have things that penetrate you cannot religion over the other i thought how do  how does that impact your analysis in this well when i as a former prosecutor when i read and said how do we get there and then when i read it i understood the difference between in that particular situation what is a crime and what is morally wrong is not necessarily a constitutional violation by the officers who have taken items on behalf of the fort through a search warrant and i understood the case our case is very straightforward and simple the law is not confusing you cannot denigrate you have to be neutral you should follow the california department of education which this court