good morning ma'am pleased to court steven bernstein for the plaintiff appellant the district court improperly granted summary judgments i will focus on the hostile work environment claim the evidence shows that plaintiffs coworkers routinely harassed him on the basis of his national origin and religion and that defendants failed to properly investigate his complaints or to take them seriously even though plaintiff had repeatedly complained about his work environment let me start with the severe or pervasive element of the hostile work environment claim plaintiffs in a form a sworn testimony is e e o c charges affidavit we have a flurry of offensive comments based on plain as religion national origin i'm not going to repeat them here but it sounds severe to me that his coworkers were targeting him because he was a coptic christian from egypt the question is then whether the harassment was pervasive and even the district court said that plaintiffs testimony  suggests pervasive discrimination which is obviously a finding an inference that we endorse although the district court moved away from that and said that he still can't win because there are  for other reasons that it didn't alter the conditions of his workplace that's not quite the analysis under harris versus forklift i think the plaintiffs testimony that this went on and on and on that's a quote that a coworker would use complained about his coworkers improper financial shenanigans in the workplace after that meeting his coworker never called me by my name after that and he used to refer to me by these offensive comments relating to his national origin so i think we satisfy the standard for severe or pervasive we also have to show that the hostile work environment is imputed to the employer and a jury can find that it is the point of complain repeatedly to his employer about the hostile work environment he states under oath after he complained the harassment continued if anything it escalated that testimony alone suggests that management's response to the harassment was ineffective this court said so and would be versus garza reli we also have plaintiff sworn testimony in a c e o c charge that when he complained about the environment doherty the h r representative verbal abuse me threatened to terminate me under false pretenses this sort of evidence is throughout the record he complained to different managers that you didn't get back to him or one of them down in baltimore who was director of operations or investigations said look that's not my concern take it up with somebody else i did and she didn't do anything well that's not my concern so this is precisely the sort of negligence that the plaintiff has to show in order to impute a hostile work environment to management so for these reasons  r told the plaintiff that if you keep complaining will fabricate charges against you and you'll be fired that's evidence of discriminatory or retaliatory intent that alone gets you a trial you don't have to show pretext when you have direct evidence of retaliatory discriminatory got reinstated arbitration but why isn't that well good for many a trial and that means the co worker can sue for wrongful discharge mclane of said he didn't do it and he was innocent of fighting intentionally with his coworker the plaintiff evidence that he didn't do it he says would have been recorded on tape no one looked at the tape plaintiff swears that there was a camera in the hallway where this happened no one looks at the camera so when we consider the threat from downward even if you keep complaining about the hostile environment will fabricate charges against you and then he's terminated on the concert conditions the plaintiff said could have exonerated him but nobody tried to corroborate his his innocence that's evidence of et al that copy discovery was there when you explore whether or not  arguably present right ok thank you thank you has been given from time to see if you word maybe you could begin by telling us how this case initially was brought to your attention v e r c tries to look at all of the cases coming out of district courts involving statutes that we enforce so that's how it came to our that certainly where we appear here fairly frequently i personally have appeared here fairly frequently the district court made three primary errors in its hostile work environment analysis st the court refused to consider relevant evidence it said that comments or conduct that was not expressly discriminatory was irrelevant to the hostile work environment analysis however what the court did not consider is that much of this conduct and many of these comments were by the very same individuals who also engaged in expressly discriminatory harassment this court has said over and over is is circumstantial evidence that the entire course of conduct was discriminatory the court also refused to consider comments that randomly overheard because they were not directed at him and called them just general and i think my opponent here calls them just general anti religion statements in fact these statements are not just general anti religion statements they were highly offensive statements such as the idea of god is garbage child molesters priests are alcoholics religion is for stupid people egyptians are inferior to greeks even though these comments were not directed at rense me they are part of the totality of circumstances they're relevant because he was aware of these comments indeed he testified that of straw theo always made sure that he heard them that wasn't j three hundred and eighty one so even though these comments were not directed at him the fact that he was aware of them matters and this court has said that in torrance cruz would be petrus ino contrary to what the district court said as strafford also also directly and soft address me based on his religion he called him a pretentious christian he called him an effing christian the indirect comments that rants me over heard could very well have amplified the effect of the direct comments that were made to him as this court recognized in cruise the nd primary error just your court made is it said the conditions of employment were not altered even though a jury could find pervasive discrimination in this case the court acknowledged that this pervasive discrimination consisted of what it called offensive and degrading comments not just childish name calling comments that were sufficiently offensive here to satisfy the objective test he make the same complaints about this hostile working and it's intolerable i can't stand it anymore yes he does and what stage does he do that because i thought it was about wage theft and one of the things that the judge below said that  raise my eyebrows was well i think that it's probably the wage theft he gave rise to all these negative comments because these people had worked together for years and that seemed to be a little bit speculative but  wouldn't you know that he had gone and complained about the racial you know and religious comments but that was on the record but interesting lee a hostile work environment does not have to be the sole motive for discrimination as this court recognized in rivera by saying that the harassers of war in the court's opinion motivated quote more by personal animus than my discrimination the court is implicitly acknowledging that chose to harass and using these comments that referred to his national origin that referred to his religion they didn't have to do that so where there are multiple motives for harassment and there may have been here and may have been the whistleblowing as well as his national origin and religion where there are multiple motives it's just impossible to disentangle how much was it was causing a hostile work environment that is an issue for the jury thank you thank you thank your honour's mary i respectfully submit judge nathan was correct in all respects when she dismissed mr resumes discrimination retaliation and hostile work environment claims because plaintiff does not appeal to dismissal of discrimination claim and the where my opposing counsel has stated as parts of the record judge nathan was right in dismissing the retaliation claim because he could not and he still cannot dispute that his employment just like that of his coworker mr panka was terminated due to their verbal and physical altercation at the essex house hotel marriott has a zero tolerance policy for workplace aggression and violence which is perhaps the strongest legitimate not just going to tory nonmetallic tory business reason for discharge and all of employing a lot like one of he made two points on that the st point was that there was direct evidence of retaliation by the comic keep your mouth shut about anything happening at the hotel or you know those comments took place we years prior so that the idea that the your owner got it correct in terms of the intervening proximate cause you're talking about more than a year and a half between his last complaint of the discriminatory comments in the summer of two thousand and fourteen is theory is i did nothing wrong in this fight it was all the other guy's fault but because they were looking for a way to fire me for years this gave them the opportunity to do it they didn't investigate it they just fire both he was responsible so he deserved to be far i understand what your response your honor the record is very clear that there was an investigation every witness that was interviewed that was available to who saw the altercation was interviewed  nasty and rude and obnoxious mr raz me was towards mr pond panga the idea that they're arguing this belief that there are surveillance cameras in the in the corridor where the fight broke out is simply wrong they asked during the discovery period to see the tapes we responded that there are no tapes because there are no cameras they could have easily asked for a site inspection had they done that they would have seen what i saw with my own eyes when i walk down the corridor there are no cameras in the car so the idea insulting allegedly insulting statements that the investigation that was done by marriott vetted those issues now i understand i have no doubt the marriott but it is complete good faith in that you you have acted of the hostile work environment claim or the retaliation claim that the comments that were made cannot be looked at in a vacuum we can't ignore reality and judge nathan bent over backwards to give plaintiff every possible inference in his favor when she came to her decision isn't it that the district as they know it said it was pervade suv it was evidence of pervasive discrimination right i understand that we have to take the plaintiff's version which is that he was circumstances she did observe didn't the name calling was not because of his national origin or is religion white that's the fundamental question well if you're not why we get the question there forgive me why isn't that a jury issue she made a determination that because he had no problems for years that this was all that unusual to his wage theft allegation i think why can't a jury that as i as i noted that not only did they want to tell you him because of that but they were going to retaliate in a way that used ethnicity and religion to harass and i think that i think the judge's opinion gives him that benefit of that doubt because she does assume that the name calling happened just like plaintiff described and she a tributes it to the wage there and not to any type of ethnicity or religion even though they were overtly tied to that but she did go beyond it and she did give him the benefit of that doubt by also recognizing that whatever happened to assuming the plaintiffs say that it happened exactly the way he said it did not alter the conditions of his workplace because the plaintiff offered nothing to suggest that the alleged namecalling caused him any issues at work why would why did he complain three different times in november two thousand and thirteen may of two thousand and fourteen january two thousand and sixteen if there isn't that evidence that was bothering him whether it was bothering him or not doesn't change the standard the standard is only one factor you don't have a person who is being harassed impact to him in the workplace fine gold as the case of the eels sites in there in that case plaintiff prove the hostility resulted in something physical and tangible a denial of proper training feedback instruction in rivera the comments in question was correct in our view that not every petty class slight an insult that makes somebody uncomfortable or unhappy is unlawful and it's not like he was called a muslim extremist or we was involved in nine hundred and eleven or called a member of the taliban if there was is no physical contact there was no disruption at all in his workplace there's no evidence in the record that he missed a nd of work that any part of his job performance declined because of his coworkers so called hostility and that brings me to my last point which is that the strongest support for summary judgment and arguably the one that judge nathan if she made a mistake she made a mistake by not focusing on the fact that there's no burden there was no analysis of imputing coworker the record is clear that the individual defendants were a union member bank waiters just like plaintiff they had no supervisory authority or can roll and in that case under fine gold the court this court's standard is that the plaintiff must show property and above the hotel property the fact that their investigation could corroborate nothing of mr rasmus allegations doesn't mean that they and he certainly had an avenue of complaint and as the court understands he complained quite a bit and plaintiff cannot meet the nd element of the standard because marriott took reasonable corrective measures despite the repeated investigations and the absence of any evidence that any of these coworkers did or said anything wrong or improper and then he told me a done that he said i don't know it's not my department it's not a jury issue whether or not that was an adequate response your honor complaining to the wrong person and having him say talk to the right person is not an ad it is  not nothing because what we're talking about in the standard according to find gold is that we knew of the illegal acts and did absolutely nothing and the record is clear that we tried as as well as we could under the limited virtually nonexistent evidence that mr raz me completely passing or do that when it when he never complained in this hasn't or the record is clear on that you know the response or depends on the gravity of the harm and the response that harm what the the what the marriott do when  complain every time he complained to marianne marianne investigated they talked to everyone and even though they found no evidence of any wrongdoing despite the fact that these allegations took place in rooms full of people they counseled everyone not to you know to not do these name callings name calling is not to be tolerated so even though there were these were petty slights according to him that than n word was never raise or anything close to it there was no physical violence there was no threatening conduct there was no job interfered there were no witnesses to the alleged namecalling that supported his claims and the cues coworkers came up with numerous witnesses corroborating that they were innocent and despite all of that marriott still warned the individual appendix and page four of four of his deposition he complained to five or six different people and the pattern was that you never got back to me they told me it's not my job or keep your mouth shut that was dorothy i want to emphasize the context of the keep your mouth shut comment  and sixty seven of the appendix deposition pages three hundred and seven thousand three hundred and nine makes clear that was in the context of plaintiff's complaints about a hostile work environment as opposed to his complaints about wage theft by the employees you know telling an employee to keep your mouth shut when he's complaining about the hostile environment is probably the last thing you say to somebody who's complaining about a hostile work environment we heard that the comments are not alter the conditions of the workplace harris vs forklifts says you don't need a tangible consequence in order to have a hostile work environment claimed so long as the work environment is abusive most hostile work environment claims in this circuit involve repeated name calling as opposed to physical attacks or people getting fired and they still have issues for the jury as far as the client of the comments were not serious the comments was so vulgar that i couldn't even i wouldn't feel comfortable repeating them in this court half of them involve the f word and the others involved ethnic slurs that would offend anyone department and cetera and millennium pipeline company and forty two b three makes it clear that a state permit that would authorize a discharge of pollutants into the waters before ruling on such an application of the state must ensure an opportunity for a hearing that's what this case is about that opportunity was not provided here the explanation for why that opportunity was not provided was because this involved a general permit there is nothing while certainly the states in the federal government are able to utilize general permits there's nothing in the clean water act that exempts general permits large from the obligations of providing an opportunity for public participation it may be that there are some general permits where because of the nature of of the activity and the nature of the submittals where the court can balance and say that the opportunity for hearing has been consumed within the agency's decision general permits are created equal and there are some general permits for which to obtain coverage you need to submit details and that's exactly the kind of permit read seem we have here the storm water pollution prevention plan the s w p p p that's at issue here required extensive details this was a four hundred dollars page submission about not the  not the ultimate effluent limitations those are set out in the general permit it so but they contain details about the how about how is this applicant how are they proposing to go about this extensive activity we're talking about over one hundred and fifty dollars acres and it's that detail about the how that makes this case similar and to different factual setting then what was considered in the waterkeeper case and what was considered  in the e d c case out of the th circuit but what is similar and it's those details in what's submitted to the agency that makes this an application that isn't that allows people to be entitled to public  comes after the submittal impacts whether the the detail nature of what you have to submit makes an application you're requesting coverage that's the that's the language of the general perm regime that request for coverage to say involved and there was that's the texas case i believe your honour's referring to the court's analysis there was not as detailed as it was in in the waterkeeper case from this circuit or in the d c case from the th circuit that address this question about the public participation under general permit regimes and whether the submittal of an application and i don't want to put the rabbit in the hat in the words that i'm using but whether the middle of the documents for coverage the site is part of what this is all about it's not simply the activity as the construction is going on but it's also about the plans that you submitted sufficient to allow the state to be restored so that going forward in time there isn't an unlevel an unlawful level of discharge and pollutants into the waters of united states and so it's because of that ongoing and going nature of the activity because of  submit comments that the agency would actually have to consider over the adequacy of the restoration activity and then to do so that if as a result of those comments to consider those comments and if as a result of those comments it agrees that the restoration activities that are part of the plan are inadequate to require revisions to that restoration activity that involve it would it would involve the middle of expert reports and it would it would involve the opportunity for a hearing so to the i want to go beyond he elements we wish to achieve the ability for the agency to hear the concerns about restoration and we wished the opportunity i'm sorry or the rest we want to improve the ability of this restoration activity to protect the workers of the united states how so the when one looks at the you know want to have a hearing and an infant i know that's not where you were numerous best management practices was a term of art there were numerous best management practices that were chosen numerous best management practices that were chosen we could see from the from the record that the best matching practices that were chosen resulted in problems we want the opportunity for the agency to say you need to do these other best management practices going it please the court granting ginsburg for the new york state department of environmental conservation this case is moot there is no further relief that petitioner could obtain in the present perceiving petitioners demand for relief in his brief was to rescind or remand millenniums construction coverage under the permit as the letters that we in millennium have submitted recently indicate with the notice is the term nation that coverage is gone that has been relinquished the coverage that they want millennium to no longer have millennium has forsworn any sort of remain and or re middle for notice and comment on these restoration measures would be purely an advisory opinion because there's no more construction that has to take place the issue with respect to the ongoing operation of these restoration measures is an issue of the operation of the elements of the e s u of the millennium e s u project not an issue with respect to construction the permit in this case involves only construction and to the extent my friend on the other side pains that is some sort of a collateral consequence this court has never found such a consequence to keep the case that is otherwise  moot to keep such a case alive outside of the criminal or the immigration enforcement context i do want to move quickly though to the merits in this case this court does address them again we think you don't need to the case is moot we also have threshold jurisdictional and timeliness arguments but something my friend on the other side led with was the fact that not all general permits are created equal exactly that's why we win on the merits of this case the general permit he  notices of intent under the general permit here did not delegate so much discretion to the owners and operators that they became the functional equivalent of permit applications under the clean water act unlike the permit at issue in the waterkeeper case that he refers to this court's earlier decision waterkeeper some of the other circuit cases and the like the general permit here incorporates specific and quantitative restrictions on construction standards that the general permit incorporates by reference the st is the new york standards and specifications for erosion and sediment control that's referenced that j a fifty six and the nd is the new york storm water management design manual at j a fifty nine dollars these manuals prescribe a tightly constrained menu from which the means of satisfying the permits effluent limitations may be achieved and as to each such menu option they impose detailed granular and in many cases numerical constraints as to how that option must be implemented and with time i have i'll just give one example that i think really illustrates the point and how constraining this general permit is how it does not delegate the discretion so one example that's corporator by reference from these manuals the owner operator must minimize sediment discharges that's one of the effluent limitations set out in the  manuals require that he has to achieve this effluent limitation in one of a handful of prescribed ways one of which is planting grass for the purpose of catching or slowing the speed of storm water runoff and to give you an idea of just how constraining and how little this leaves to owner operator discretion the manual set forth a detail table the linear aging what type of grass must be used under which circumstances when you can use can tukey fescue grass versus kentucky bluegrass versus ryegrass and what the maximum allowable velocity of water through the grass can be measured down to the half of a foot per nd so my friends characterization that the permit here in the notice is of intent that must be submitted under the permit here leave so much to owner operator discretion that they fall into the water keeper  realm is simply fanciful this is the opposite of that broad delegation so to the extent this court is inclined to reach the merits which again we think there's about three threshold reasons why you shouldn't but to the extent this court  should reach the merits we think that also provides an avenue for dismissal and to require the sort of hearing that my friend on the other side wants with respect to these individual no this is the intent it would completely in vista ra the administrative efficiency that motivated d e c to provide the general permit scheme in the st place there have been about a one thousand notices of intent per year submitted under this permit and you can imagine i heard my friend talk about expert reports and the like to involve that sort of hearing that sort of public commentary on each individual notice of intent in addition to the public comment that was provided at the at the promulgated stage of the general  the court sean marotta for millennium pipeline company l l c again all associate myself with the department's comments that this case is really quite meant the hook the thing that they would like remanded or vacated is the extension of coverage under the general permit but as the notices of terminations that we filed and updated yesterday there is no more coverage under the general permit there's nothing left for the court to vacate or medium and the coverage does not exist anymore so there's really nothing left for this and it doesn't in january and i think it's quite interesting your honor in that general permit and there is a new general permit that has been put out for comment to replace the current general permit and i'm informed by my friend from the attorney general's office who's informed by his client that one delaware river keeper has not commented on that general permit which is what they really want is the sort of notice and comment situation that's excellent avenue to do it and nd no one in common ending on that general permit movie be able to achieve the sort of things that mister tsang earlier under this with respect to the next round under the new general permit my understanding is it's a repeat of the current one in the sense there is no offer of public participation but if delaware river keeper thinks that is unlawful they should comment on the new general permit and then challenge the new general permit judicious judicially when it is finally finalized but you can't do it in this case where again there is no more coverage of the general permit to even remand or vacate and i think there's an additional problem with mutinous because you know delaware river keepers council cannot really explain what revisions to the plan would be made if there was a remainder of a kit or he says well we want to give comments and then when you press and say what will those comments say they didn't really have an answer finally at the end you were told there were certain best management practices that could be implemented but there is no suggestion that those best management practices that they want to used have anything to do with anything that's left that millennium can do because remember comes down to restoration and that really what they're arguing when restoration is complete and there is no suggestion that the best management practices they want implemented have anything to do with restoration in other words that one of the best management parts is they would want implemented which again they have talked about very generally has anything to do with restoration or something about millenniums restoration that was an adequate and the m restoration i don't like it they know why they don't like it as we sit here today and they should know what they don't like they should but i don't know if they do know why they don't like it i mean that there was pressing to say what do you want them to do differently on the facts right now and you didn't really get an answer it was best management practices well best management practices set in many different ways some that relates i think to the construction but nothing at least that i'm aware of that has been either sent from the podium or set in the papers that relates to the restoration so one there's nothing left for the score dovekie to remain and nd even if there were it's not clear what they want millennium to do and a bahr procedural right is not sufficient i want to touch on the timeliness issue that has been brought up to this point because it's quite shocking that delaware river keeper thinks that either there is no time limit for them to bring their challenge or it's a four year time limitation for them to bring their challenge which is really quite shocking for a statute that was meant to speed up challenges to extensions of coverage or any sort of challenge as to refer to a station a facility like this one as we point out in our brief sections seven hundred and seventeen ardea of the natural gas act does not create a cause of action and therefore does not fall within any civil action that is the quintessential language for a statute that does not create a cause of action rather it simply tells you where you bring your preexisting cause of action the cause of action in this case is created under new york state law and it's new york state law because the clean it water act requires there to be a cause of action under new york state law if they're going to engage in state level permitting so the notion that delaware river keeper today says well it's four years when it would not be four years of this were brought under state law and would not be four years of or even brought under federal law is simply incorrect and the court to the extent does not dismiss on threshold witness grounds should make clear that it's not for your stash limitations it's and it's completely inconsistent with the purpose of section seven hundred and seventeen d which was to speed up at least these types of decisions finally turning briefly to the merits i think in addition to everything that my friend from the department said i want to emphasize one way in which this case is different than the water waterkeeper alliance case from this circuit and the environmental dissent defense in her case from the th circuit which is simply that in those cases you were challenging either a regulation that authorized general permanent or a general permanent self but here on page twelve of their opening brief delaware river keeper says we are not attacking the general permit because of course they're not because that would be on timely say we're not attacking the general permit we're just attacking the extension of coverage under the general permit and that actually places this case much more like the natural resource defense council case from the new york court of appeals where the new york court of appeals says you know what we're going to take the lay of the land as we find it we're going to accept the regulations and what we're going to say is under those e p a regulations is this general permit in that case and here even the extension of coverage consistent with it and the answer is yes and it would be quite i think in congress for this court to disagree on the merits because what you would then have is that for for jurisdictional facilities in new york there would have to be notice and comment want to go back to your honor's question on this because the other two elements are the duration the challenge activity and whether there's a reasonable expectation of plaintiff will be subject to challenge action again this is a case where my predecessor this is not just a clean water action case it's also a case of the natural gas act and one can't think about hear the arguments and without saying not only don't we get an opportunity to be heard when the eight when the coverage is granted because in addition to the automatic coverage that operates by operation of law there's also then a completion statement that's issued by the department to say we consider it to be complete we've looked at the details of the of the b m p's and consider them to be adequate  but you don't even get into court and we were two years i mean what makes you think that you were not the general permit granted and your client objected to that you could bring in other filed in late fall of twenty of two thousand and seventeen so i don't know that it's as long as eight months there's no question that it's beyond the thirty days while my colleagues find it shocking that there's a that we're arguing that this is timely the rd circuit and the th circuit have both looked at this parallel situation the th circuit in the sierra club case the rd circuit in the twenty seven thousand dollars riverkeeper network case both looked at these the rd circuit one is and fifty eight dollars a applies and noted that congress specifically enacted that section to alleviate uncertainty inherent in the practice of borrowing state statute of limitations the other thing to keep in mind is because this is an energy natural gas a case this is a record review case so we didn't have the ability under the natural gas act under the ministry to procedures act to bring to you those those details on the substance this court is limited thank you your reserve education this case is about new york city's effort to inject racial considerations into the admissions policy at its renowned specialized high schools one of the many virtues of schools like stuyvesant bronx science and brooklyn tech is their objective admissions policy these schools care about your s h s if you score they don't care about your race or who your parents are about half the schools students at these schools come from low income families and even more of those are asian american however the mare and the chancellor are unhappy with the racial balance of the specialized high schools and seek to make the schools demographics mirror those of the city of the city as a whole that means an ultimate goal of fewer asian american students even though most of those students like those at christa mcauliffe intermediate school come from low income families and many are the children of immigrants the mayor and the chancellor sought to change the admissions record exam requirement but since that is a shrine in state law they use their power over the city schools to alter the eligibility requirements for the discovery program discovery is designed to give a nd chance for admission for low income students who scored just below the cutoff but in recent years before this current expansion it was quite small and schools with high cut off such as stuyvesant and bronx science did not produce paid at all as a means to accomplish these racial goals the  man the chancellor required each specialized pool to set aside twenty percent of their seats for incoming class for discovery students well then it wasn't just racial or wasn't it also geographic so one of the concerns was you know people from these locations were going to those schools there was a in adequate representation of the holes the whole city in the schools itself and geographic basis certainly  has expressed concern that that that the city as a whole is not being represented however under oath in heights so long as racial motivation is a motivating factor and here the record is clear that the mayor and the chancellor considered race predominantly or at least or or it was at least one of their major considerations or is he this i mean this new protein new discovery program doesn't race is not quite serious for the program you can see that right yes or no factor of race in terms of the students themselves price around here all right so the question is on this most of the likelihood of success on the merits is there any supreme court case case from this court or we can broaden it to any circuit court where the program did not have race as a factor that has strict scrutiny as applied what supreme court case and what circuit case where race was not a factor in the parish school district itself had used racial modeling to determine the outcome and the and the panel are that the likely outcome of its plan and the panel in that case thought that that was probative of let me ask about the rd circuit cases that there was any intent that a particular race be despite this really impacted in that case it was simply a case where the the city of philadelphia was redrawing under oath in hades is the distance the decision makers intends to adversely affect a particular group is not adversely affect a particular group to increase diversity you're saying that's an impermissible intent you can't have the intent to increase diversity in the schools or some other area is that your position not for slightly your honor our position is that in a situation such as this where the effect of the program is to take seats away from certain students out and how do we know that it seems like the data from the st year shows that there has not been what your clients were concerned about this enormous impact on asian locked out of twenty percent of the seats at the specialized high schools for and the city's purpose for that according to the mayor and the chancellor of the press releases and the department of education's presentation was to change the racial balance to the detriment of asian american students so the fact that the data in twenty one thousand might not have accomplished what the city expected it to or spit out the the numbers the city expected doesn't necessarily mean that the students at the ineligible middle schools such as christa mcauliffe which is more than two thirds asian american aren't being excluded from those seats on the basis of racial considerations under  heights and you can you address in the jan iraq case the supreme court we said to equate desire to eliminate the discriminatory impact on some disadvantaged groups with an intent to discriminate against all groups could seriously stifle attempts to remedy discrimination so what's your response to that your honor of a broader reading of that that quotation from jan iraq which essentially it viscerally this rate arlington heights it would it would it would permit  jurisdictions to discriminate using facial unusual means against over represented races in order to create a racial balance that they desire even though the disparate impact was not  by city or district policy so that the proper reading i think of those quotations from hayden and and john iraq is essentially that and of course in the remedial cont may be permitted to be enacted however it can't be extended to the point that that you would that concerns me is i'm not sure i see where the line is then if you're saying a race neutral policy that is designed to achieve greater diversity if it's going to have a disparate impact on some group that it's it's isn't that we're saying i think the distinction your honor is between whether the policy is designed to assume improve opportunity for certain groups versus to change the outcomes so if the supreme court in ricci explained that that of course that the city of new haven in that case could have taken steps to provide greater opportunity for the and the minority test takers to succeed however when they when they scrap the exam and  so that the same exam yes yes he would spit out different results that they hoped would be more amenable to them ever graphically let me ask you threshold question  months after the northeast of florida decision in the supreme court this court decided when stabilization association of vs dinkins where it just cussed at length the effect of northeastern florida and simply distinguished it because the plaintiffs in that case were well so i think there's a conflict within panels in this court and this panel could go one way or the other however i also believe that the in the institutions i just want to say quickly that the institutions has to aim to sue in their own right as the district court  rights of their members now plaintiffs say we just ignore that law because there are other cases but don't specifically speak to that issue that could maybe come in tension with it or that there may there's an apparent tension but with supreme court precedent none of that supreme court precedent to the extent that there is tension i want to point out that those decisions did not specifically address the question that i most they assumed it that none of those supreme court decisions post date this last spring where the court recently reiterated the exact same rule it's fallen a their alternative argument is that even under the by expanding resources that they themselves have standing under and i pronounce in them the other cases that i've said for an organization has to expend resources to in this case oppose a prosecutor and that was that therefore the ongoing expenditures of resources was a speculative right where the specular particularly because the organizations themselves didn't face the risk of prosecution that any in any future expenses that they in  incurred would be on behalf of their members which is not that kind of stand in that the plaintiffs here you know who are there can and to expend resources to keep opposing this indefinitely they say that in their reply brief but they did not say that in their complain threshold issue which is a reparable harm if the only harm that the organizational plan and it will only harm the organizational plaintiffs have the ability to assert is there an expenditure of time money and resources that's been raised in that we should even consider argument below and that's the argument we're making now and it plays out somewhat different than explain why that is in the district court the irreparable harm argument was only did it would have gotten this very far that the organizational plaintiffs can't show reparable harm because mr these reply brief she's aged now but because she's already been placed in into the into a special into into a high school that's one of the famous problems of all of these cases because for the friends point of view you can you can wait out any individual plaintiff will have graduated moved out of the relevant group by the time or this is made right yes that i wanted to point in response that the st is that  there's the possible if that in damages and so to the extent that that's the harm that you can allege past damages for past action you don't have to get into prospective relief and nd if that ultimately speaks to the the standard to proceed with the case at all it doesn't speak to the irreparable me try contra factual question for you if you were on their side how would you cure this problem what should the other is what should they have done to pursue this case to at least achieve standing to see so had they alleged in their complaint both past expenditures and in the willingness ability inclination to continue doing s is necessary in any circumstance if i understand your position they can simply seek to amend their complaint by making precisely that you're in the middle of discovery or whatever it is it's going on in this record it's not merely a final judgment why can't they do that now and i think they could but i mean they can also include a number of individual planters who are young enough to perhaps a good many delays right that i couldn't they do that then i guess a little trickier because if we're talking about you know rd grade students they're not imminently likely to be applying for specialized high schools but i take the point on the other hand by the time you're through with them you know they'll be in graduate school i take the  point and to step back just a little bit none of this helps on this appeal none of us helps plaintiffs on this appeal why is there still unable to show irreparable harm they're still not able to show as organisations that their constitutional rights are going to suffer any any harm  serious question of serious questions in the balance of hardships some of the things that the detroit court relied upon wouldn't apply right now right because part of that had to do with the offers were about to go out and go into printing there wasn't time to redo the changed i think though that ultimate isn't the circumstance haven't changed that much just because of the time it's taken to let me get this case where we're now approaching the time and i appreciate the opportunity to make this point to some i must say less is that in order for the department of education to be able to issue orders not orders apologize and offers on a timely basis the part of education's informing me that they would need a decision from the court ideally by the end of the month which you know i'm not going to presume to set deadlines for the court but that's the timeline that we're looking at the extension by january it could be done with delays with the on that if one is what is it that could be done in  isn't it to achieve racial demographics in the schools that most more closely mirror the city is not the purpose of this new discovery program i don't know if i fully agree with that that the purpose of the program  is to increase racial socio economic engine graphic diversity through the specialized high schools and that consideration then so certainly race is it considering that comes into that but that the mere fact that race is considered is not itself grounds to trigger strict scrutiny i want to point out that the the best case that the plaintiffs offer for this that in their argument was the littlest one decision from the th circuit they omit the fact that all the court  ss one decided was that we needed that the court needed a little more facts to decide on lewis to win the case returned the th circuit charmin that race was the primary reason for this plan altering the racial demographics is the primary reason schools that's advantage desired and i have written down the point disagree that the speed to create an adverse effect that's not the goal here finally you also have to show even if there were intent which i thought i made clear i i  addition to showing intent plaintiffs have to be able to show effect in order to get to strict scrutiny and on that point their claim completely fails i mean most dramatically the bigger the largest beneficiary the larger of the new discovery program criteria h americans their numbers increased overall and specifically within the discovery program was not primarily race and was just to help disadvantaged students the amica spree points out there are a lot of different ways this could have been framed to do that they give the example i want you i'm curious what your response to this is you have an asian american child who's in a homeless shelter on welfare if they go to a certain school this program is not available to them does that make sense why would if race is not the primary reason and you're just trying to reach disadvantaged kids ways this could be done just based upon economics as opposed to the way it's currently frame well that the program as it's currently structured is based on economics and it's based on on two separate economic correct because the dealing in this if we're talking about what economic considerations often in place are looking at rational basis review and the district that department education has the ability to say that not only is individual poverty important but the poverty of the neighborhood the poverty of the school in general matters that a student who is themselves poor and could be direly and in dire straits who is nonetheless attending a more affluent school it is not an unreasonable determination is that that student is not as disadvantage as someone who is also individually poor and also attends a school where the majority where the large majority of students are also facing similar problems similar poverty that is a consideration of the department of education is able to make and did make and that explains that the criteria here  other simply no other remedy because this is a continuing program that will be continuing violation and you heard our colloquy before about how you can cure this is some seasonal standing issue if you did indeed an issue any particular animas towards a particular racial group in order to find that race was the was a moody motivating factor on arlington heights feeney clearly states that all that's necessary is that the decision maker decided to do what it did because it would have an effect on a particular racial group and that's all that we have here thank you thank you very much reserve the solution and we