summary judgment to the department of education miscount bills employer and we believe that the district court aired because it viewed the evidence in the light most favorable to the defendant the state of hawaii as opposed to viewing the light most campbell in this particular case i won't go over the words that were uttered to her you have the briefs on that but they were very racial and very sexual sexist terms students or you're are you focus by the students yes they were made by the students and so the question would be whether the the school had to address those statements is that right absolutely that's the question in this particular case and so they said they had they were went through all of the different steps they took and i think their bottom line was that there's only so much you can do it with respect to students and i understood your brief to say well but remedial action miss campbell had been subject to to these alerts from two thousand and four all the way to two thousand and seven when she took leave without pay that's just way too long for the state department of education to do anything about this now we were doing a lot about it with you know no they weren't for example as i cited in my brief in one case a student was brought to the principal's office and told not to do it again but then when she came back  if you're going to trains students teach students and teach them how to behave when they're adults that includes not uttering racial sexist slurs because of the going to employment mary arena when they grow up they could be fired their employer could be fired if they carried on this type of action students are that the department of education was not doing enough of forty seven complaints come on i could see if it was two or three but forty seven complaints miss campbell complained about and then when she went to a vice principal mr jones he told her to stop bragging on the students now it's important to us to know that the united states equal employment opportunity commission investigated and found reasonable cause to believe that risk campbell was subjected to racial and sexual harassment in a work environment the e e o c finding was presented to the district court judge students what what should they have done that they failed to do well for example the the easiest way is they have either a vice principal or principal attend the class where the students are in the class and say we will not tolerate racial slurs at teachers we will not tolerate sexist slurs the teachers this was not done now if you can't have a vice principal available to do that then you have the principal coming into that class in st look this is not acceptable we erode tolerance of racial and sexual slurs towards our teachers are i think that instead of some of the students got slapped on the handsome we're simply back to the same class i think they should have been suspended much longer than one day  if you know for those that were suspended it was one to two days that's just not enough especially if it keeps repeating itself and kept repeating itself so in a way they were condoning or the the students got the impression that this wasn't a serious matter because they kept doing it and not only that but when they complained while the teacher is mean to us miss campbell was placed under investigation and when she did report it to the vice principal she was told stop doing their stop reading on the students instead of miss campbell we're going to take your complaints very seriously this should not be happening and i personally am going to go down there and talk to the students that did not occur so the easiest way would be for principal or vice principal to go to the class or to even have an adult or him you know in school they have these general auditoriums and just say look you know this is against the law we need you to start do not do this because if you let it keep going it's going to snowball and keep building and in fact miscount produced a witness declaration from a teacher who saw the same students who were wrestling with counsel to be brought back into her class that was the declaration from mr o'connor who was a student at the school and that it didn't keep stop it didn't stop he also mentioned that he observed that some of the other teachers didn't really sympathize with miss council and said negative remarks about her so again you know for going to teach young children in our public schools to be responsible adults you certainly should take proactive and not in this case it would be reactive because it was with campbell who complain you should take action and stop this not only that but in the summary judgment hearing we produced a document from the u s department of education so we had the e e o c finding the groups more cards and we also had a u s department of education investigation on the public schools in hawaii and again similar words were use against a calculation female teacher as was used against this campbell and interesting really enough in two thousand and eight the u s department of education found discrimination and a hostile work environment so the judge easy finding with respect to miss campbell ignored it and the u s department of education finding with respect to another teacher of a different school at about the same period of time and ignored it  have cases where the employer is responsible for other employees and a hazardous hostile work of our own other employees are hostile and we have the same thing at a prison where the employer is the degree of an employer's responsibility for officers who are being harassed by prisoners are there any cases where there's a hostile work environment where the question is whether the extent of the employer's responsibility there has been precedent where high school students have harassed a teacher and in that case in new york it was because the teacher was jewish and they harassed that teacher and the court ruled that i guess the court threw it out on summary judgment and again the circuit court ruled that i'm sorry so new york court ruled yes that students harassing the teacher and the city would the department of education would be liable for that harassment if they didn't do anything if there was no immediate action and it continued and we submit that in this campus case the deal we didn't do enough and that it wasn't enough to stop the harassment and that it continued of too long two thousand and four to two thousand and seven is way too long for this to continue and she we produced actual notes to your honor to show that it was going on  produced she had to go and call the police produced police reports we produced her numerous complaints via e mail or written complaint and it kept going there was no stopping it so if you've been talking treatment claim goes to the fact that she was told that she would take the eve without pay as opposed to leave with pay and we produced to the judge evidence that a couple of male teachers who were involved in heinous acts such as sixteen students were given leave with pay as opposed to leave without paying yet you had west she requested to leave without pay but they granted her request yes but she's under investigation for any of the things that the the male teachers you just referred to were investigated i mean if somebody if a male teacher is concerned the concern about a male teacher is that he sexually harassing students you know understand where the school wants that person out of the building while the investigation goes on or something like that with regard to your client was there no but she contends and we presented her declaration that she felt she there was nothing else she could do to protect herself so she asked the school and they told her she could take leave without pay didn't want her to leave why did they give her a year's vacation it was her choice to leave i don't see how that makes her comparable to the teacher you're trying to compare with well the reason is that she was not granted the same option as the males were gone they weren't given an option now as you described and they weren't given an option there they were told you're out of the building we have to pay you while the investigation goes on and she's not in that situation the school didn't want to run out of the building so how are they comparable well she also was under investigation as a result of her complaining about the student harassment she was placed under investigation and so again but the school didn't ask her to leave didn't know it didn't ask her to leave but when she tried to come back after the two years leave without pay they told her she could only come back if she agreed to teach me media math and that was not her subject area she's a music teacher a band teacher of so the school didn't need a french teacher are they supposed to take an extra french section just because that's what she'd like to teach or is the school trying to find teachers to teach the subjects they need to teach well the question is not so was she she said she did not   medium half so why would you want a teacher that does not know the subject matter to teach students did you ever have a class in high school taught by somebody who was trying to stay one chapter ahead of you i did mean that may have been where they have  good morning your honors me please the court my name is near you and i represent the state of hawaii department of education and we would like to read we'd like to reserve about three minutes for you but  for student on teacher harassment under title seven or title nine that said the district court addressed the issue on the merits and concluded that the pla moment on the hostile work environment claim since that's where opposing counsel spent most of her argument why isn't there a genuine issue of material fact as to whether the school did enough to stop the student harassment the school did what was this the school acted following the complaints it investigated and it meted out discipline where the students were found to have violated committed violations or student misconduct and we believe this daily record is this most of the most of the complaints that are in the record occurred in the year two thousand and six they were addressed by the deal we and that there is a process by which a teacher can complain about student misconduct so the student is written up been a computer generated form a student referral four minutes into the administration the administration acts on it in this case there were two vice principals who investigated misconduct alleged misconduct by students these students were investigated and disciplined accordingly there is a range of discipline provided for in chapter nineteen which is the board of education guide on student discipline there are only two written referrals submitted by in the record by the plaintiffs that indicate students re offended in the year two thousand and those two referrals are two different students there's nothing to indicate that they truancy or other minor student misconduct there's only a handful here and the district court correctly decided that the plaintiffs failed to show that her work environment was sufficiently sufficiently severe or pervasive the court looked at the totality of the circumstances including the severity we're not dealing with we're dealing with offensive words verbal insults cuss word swear words uttered by my students to their teacher but i shouldn't be tolerated by the school district of of course not a school should be should should protect its teachers and the school did the school did a lot did a lot iran of the school investigated these complaints and it took an issue as are any discipline absolutely the more such as there was counseling in morning there was a suspension there was detention ultimately a student is suspended for from school for a certain period of days i understand that the most severe punishment would be expulsion but even then the school has an obligation provide an education to the student this was not just the appellant's working environment this was a school environment and certainly the deal he has an interest in in teaching students to be respectful and to act in a socially acceptable way but we're not dealing with inappropriate sexual conduct on the part of the students again these are offensive utterances we're not dealing with shot pictures underneath a teacher's skirt lee said offensive comments and so does other courts as well that offensive comments are enough to create a hostile work environment so the question is what would be the basis for saying that as a matter of law what the department of education did was enough if that's the basis for that was my understand the basis for the that estrich or that there was an  we would have to say as a matter of law that was enough as a matter of law they investigated they disciplined and the harassment we submit stopped now the n seven by two different students and there is no evidence in the record that after those two different students were disciplined that they re offended so in two thousand and eight there were no well but to be clear your honor by harassment the court has to look at the totality of the circumstances including the social context and again this working environment was also a school environment and so these are not coworkers these are students these are teenagers with less standing and maturity than their teacher these were not supervisors of the school so in consideration of this dual environment the court has to look at the constellation of circumstances and events it sounds to me like you're asking us to answer a hard question that may be necessary or are you seeking  to say that student comment as long as there's no physical contact or the below the skirt pictures and so forth but that student disparaging comments simply don't and can't raise to the level of a hostile work environment  honor i'm not saying that i'm saying that the words uttered must be viewed in the in the totality of circumstances including the social the the the social context and in this case if i mean you have the words on the f ing bitch f you this is a school environment these are teenagers and we by no means mean to minimize the the words that were uttered but we don't have the level of severity when it comes to the alleged unwelcome conduct nor the frequency again the district is not the case here but in that case the court held that the plaintive had not established the element of severe or pervasive and it's also important your honor that the test is both subjective and objective and so in arriving at the decision that as a matter of law plaintive had not established a promise case of hostile work environment she had not shown met the objective test that an object a reasonable person in her position would have been would have believed that this was a hostile work environment teachers this is again a school and teacher is a reasonable a music band teacher should expect that on occasion her students will attempt to undermine her authority that they will get in trouble that they will commit misconduct that they will swear at her delaware it's a two thousand and seven decision your honor and i apologize i did not cite that case but i learned about it afterwards and basically if it did you file a twenty  promise he she case because objectively speaking and when you apply the reasonable person test no reasonable band teacher would have been i would have believed this was a hostile working environment again your honor we're not dealing with  action none of the alleged adverse actions on materially alter the terms and conditions of her employment throughout her tenure throughout her tenure she retained her position until she decided that she was going to resign even when she left for a two year leave of absence the leave of absence was not a resignation there was every indication that she was going to return to school and the school i expected her to return because the school kept open her position it was only upon learning two years later when she wanted to come back to the school that she would have to get her teaching line was not as she hoped it would be included remedial class remedial math that she decided she's going to quit was there's nothing to  but that it was within the principals of forty two assigned classes outside of her certification for the good of the school and in this case that's where the need was these were small classes and she worked in concert with the regular math teacher so we would just throw this and that by that time any alleged hostile work environment was two years in the past still she want to come back now i'm open it was an adverse action the school found in fact that there was misconduct she was alleged to have committed verbal and physical abuse against the students and the school took no action and it kept the investigation open because despite numerous requests by both the investigator and the principal plaintive failed to submit her statement again we believe that there was no adverse action and also there was no similarly situated employees those elements clearly were not met the rest  discrimination and therefore that claim fails as well her deliberate indifference claim your honor was really a hostile work environment claim and the court held that this the court determined that the school at two reasonably upon learning of the complaints had acted reasonably and there was nothing to suggest that it did not so again we come back to this just cation certainly she failed to show objective lee that this was a survey or a more pervasive hostile work environment thank you very much you have some time for thank you the law hostile work environment with regards to the words used against my client have been found to be enough to have a trial and if i recite you the k b versus the police department where similar words were used against the police officer calling her an f ing how a suggestion by pursing counsel is that in the classroom situation teachers should expect that teenagers are going to be hostile at way so looking at the totality of the circumstances is different than if it were coerced ok well in this particular case the it kept going on it didn't stop and i know that she mentioned that well there was a very hot to the plans but if you look at the disciplines what was it talking to none of them were expel is it true that the harassment stopped after two thousand and six no it did not continued two thousand and seven and we submit it documentation to your honor showing at one point one of the students in our class was calling her f ing how the b i sixty eight and through skin also had her which is more than just words it's actual action and no action was taken and when the principal was asked about that the profs said oh i didn't know about that but my client need a referral nothing was done i'm just been told that there were only two complaints about students in the two thousand and seven year i took that to mean repeated complaints or follow up complaints about students is that not what the record shows were different students see the different things to my client but let me focus on what we were told it we were told that had all the rave complaints by ms campbell during her for the two thousand and six year and then of the two thousand and seven year after whatever discipline was imposed on those students the first time there were only two percent of us is that true there were in the record two more complaints against mr campbell i mean by ms campbell about the student about the same student she complained about before but that tells us there only if it mean the state's argument is that means that whatever disciplinary action they took was presumably effective because she didn't complain again about the same students other than these two she did make extra complaints but i would disagree with the argument that that means it must have been effective what was effect of his when she resigned i'm not resigned but when she left because she couldn't take it any well if she's if student jones is harassing her and she complains and the next year you maybe suggesting jones continues to harass but she doesn't tell the administration or doesn't send in one of those reports about that student what is the administration supposed to do about it does and then complain also this well let's go back to it then because the state just told us there were only two students that became the subject of a follow up complaint the following year that there were not follow up complaints of it or miss campbell about any other students is that the state of the record the state of the record is that she did complain in two thousand and seven and the complaints that we have in the record are two more complaints about students using the same words nationally have complained about additional students but there are only so so is it the case that there are only two students the became the it are her we believe it is sexist you have to look at is the reason why women standard and a reasonable woman would not expect to be called these words in a workplace environment and she also indicates in the record that some of these students actually threatened her you see the note with the gun over time as a please ok with the gun and we believe that the school really didn't do anything with respect to the student who wrote i b i see teach die and that's a note and pictures that she presented to the judge i got a gun i'm going to a few pub and one of them even wrote the wording in my d g a to my client w