first case on calendars johnson versus three well you know number of very important public policy principles and to begin i just want to go over those briefly the first i think is to recognize that schools are different and part of that is because who's in those schools children the second important public policy principle is that officials in those schools should have the ability to have discretion in an effort to maintain stability tranquility and safety in those schools the last piece that i think is an important public policy principle is that courts should be mindful that they shouldn't be involved with daily issues and conflicts in schools not really concerned with the merits on the c p u or are we concerned with the denial of summary judgment based on a qualified immunity yes your honor maybe should get and so the issue is whether in fact the constitutional rights of the plaintiff were violated or whether it was clearly established that there was a violation of those constitutional rights so are dealing with first amendment and process before we get there we have to do with as an issue fact that that allows us to reach those questions and so the question is do you well your honor i think at this juncture i would have to accept the facts would i would and the first amendment issue is with respect to first amendment assembly rights and so th the problem and the concern that i have is that plaintiff is claiming that he was banned from attending school events on school property and that this implicated his first amendment right to assemble essence he's claiming as part of that assembly right included is a right to attend school events and that's where you know your argument i t and so that is the first level we need to get over and through so he can drive him of the ability to do that as retaliation for the public speech of calling  is has to be your position i take it well the retaliation piece it's not clear to me that that is the claim the claim seems to be that in and of itself the ban implicated an ability to go on to school property to attend school events and that implicated a first amendment right but the ban was imposed very shortly after they had this conversation which first your client called his daughter a lawyer and then plaintive called your client a lawyer for saying that and if it is if there is a retaliation claim being made then i think the only thing that the plaintiff is putting forth is a temporal proximity to words being said assuming they were protected expression and speech and an action being taken there after by the principal but it it's not clear to me that that's even what the plaintiff is claiming based on the complaints based on his allegations  the facts wrong little different that is what if the apparent here we just looked at the principal funny in a funny way or in slightly threatening way or in a way that the principal viewed as slightly threatening and on that basis of no pounding of hands no other aggressive statement and so on on that basis would the principle as a matter of our through the established law be promoted to prohibit that parent from school grounds i think that it's not clearly established that he would not be able to do that when you look at the watch that exists as far as the discretion that is given to public officials be that's clear that's clear policy and law that exist also think that there would have to be some establishment that the parent was engaging in is some sort of protected expression or speech and again that that's where i think we're missing here that's the piece that's no it's an unfettered right up principles and i understand that there's a due process issue but there's an unfettered right is a matter of the first amendment issue of principles to block parents from accessing school grounds under the first amendment yes that's any i think under the first amendment it at the end of the day you know there i'm not suggesting that this is the case but whether an official acted in a way that was inappropriate or he should have done things differently doesn't equate to the official violating someone's first amendment constitutional right to assemble they're different they're different questions the due process issue and in particular the procedural issues so the coeur essentially in this case brought back the due process count so there's two pieces  the liberty interest piece and then i believe the court is also saying that if there was a good implication of a first amendment right then there would have to be some process that is due to the plaintiff before that right can be taken away so as far as the liberty interest piece i think it is very clear that there's no liberty interest implicated in a parent's ability to just school property to attend school events is there any difference between the liberty interest of a parent to come on to school property see what's going on and that of any other citizen or non citizen for th well i think a parent certainly has an interest in directing managing controlling the education of his or her child but at the end of the day when you're saying that does not even imply a constitutional right to be present on school property yes that does not imply any type of liberty interest to be on school property w barred from the movie and sun casino arena there was which is not school property there was one of vent that was held off school property a basketball game held at the qualified immunity defense with respect to the due process claim because you could have after the claim was revived you could have moved to reconsider you could have moved for any number of different things and you didn't do that so what happened here was the due process count had been out for a very long time and that the wanted to control done something once it was revived they could have but i don't think i was replier to i don't think that i was required to ask the court to clarify in any way the qualified immunity was about please the court i'm john williams on behalf of the epically i think that the truly salient fact about this appeal is that even if the appellant prevails here on every claim he makes there still will be a trial with the exact same evidence the exact same witnesses on the state law claim as to which summary judgment was also denied which makes me inclined to feel that there's something almost frivolous about taking in a lucky tour appeal in this particular instance since it cannot have any practical effect on whether or not the defendant has to stand trial which was i same in connecticut so there's a there's an overlap there that having been said it does seem clear that the facts on which the appellate relies in his appeal had a tape recording a recording that his daughter had made of the very confrontation she'd had beef with that mr perry in front of someone as and it's not recording in the record it's acknowledged in the recording had been provided to her asked him if this was indeed the recording that his daughter had made he said yes it was and it was produced to the to produce a creature of discovery so they had are there any cases that hold as you would have the court room with respect to this kind of fact situation we repair and has been on school property and been banned from school property because of some disagreement well i think the school authorities i'm not aware of a case that is factually exactly on all fours with this ok how close can you get well we can get close enough that there's there's and i'm not talking about the first amendment issue there's plenty of case law that retaliation using public power to retaliate a public point of view it would give you a religious expression during non school hours but here again as as as you pointed out your honor more is involved here than access to school property because one of the things that was done mr johnson was that he was physically removed from a public venue the mohican sun arena at the instruction of mr perry by armed guards in front of his family and friends and retaliation for what he had done and certainly there's plenty of authority that that's that's kind of tell you tory behavior that you set aside the due process issue for a second again are you asking are you right subject to those limitations reasonable limitations as most first amendment rights are subject to reasonable limitations happens that what limitation is reasonable in the case of a parent accessing school property there's a lot more control that's that's given to the school administrators and that's that's very clear but i don't believe any case any case ever has held that there is an unfettered power of the administrators to exclude they happen there are some limits and in this particular case there's no rational basis and that is not looking at it through the wrong end of the telescope the question is whether whether your client had a clearly established statutory or constitutional right and there's no statutory right but constitutional right to be on school property if for what ever reason a teacher or principal decides that parents from school property but there is no case that i am aware of that has ever held that they have an unfettered right that there is there has to be some legitimate articulable basis for doing so and there is none whatsoever in this disruptive parents until such time as this there's a jury trial in each instance and i correct i'm not sure i at least and your question well if the principal can't can't keep somebody out that the principal deems to be obstreperous and disruptive then and then you can have obstruct obstreperous and disrupt the parents flowing around the schools but but i'm not asking for that i'm not asking for that well i'm not saying that the principal doesn't have the power to exclude it obscene or not but what you are saying is that is that if you mean the the obvious thing is that anyone who's disruptive in a stripper is would be seen things that are that are annoying to on to the school hierarchy and hum and will be able to plead as you were pleading retaliation and we'll have an issue of fact each time and the parents will be able to be there and each time i'd have a jury trial but no actually that's a very good example because suppose a parent goes to the board of education and complains about the quality of education being provided in this particular school complains about the competence of the pats on that basis when the principal bar the parent from the school at that and that's we don't even have anything that extreme in this case if you look at the facts from my client perspective my client attended a meeting at which the principal volunteered your daughter is a liar and a manipulator and might might say or use said to him are you saying that you did not say any  says question and can you just point me to one case that a friend's this in the context of a parent's right constitutional right as a matter of the first amendment public assembly within the school perhaps a little closer but then of course we still have the the the liberty interest of the parent which certainly didn't tell the due process protection which wasn't provided so again as i said at the opening anyway a look at this was qualified immunity defense raised in the to the due process claim raised in the answer and well the answer wasn't filed until after after the claim had been dismissed so it was not it was not right it was never addressed in the answer with regard to this could have been knowledge is but it wasn't and therefore i submit they've waited for just the case goes back they can always ask the district court for leave to mend the answer to assert a defense to a claim that had been dismissed before their original answer was the day his plaintiff's claim is that the facts are what they are and you know whether it's in state court federal court or it's going to be it would be tried and the facts are what they are you know qualified immunity protects an official from suit so official if he is entitled to that defense should not even have to stand trial so that is the basis here for bringing wouldn't you think that the plaintiff here would have right to attend a basketball game in which his daughter is he's playing in a venue other than school property well again i mean i'm not sure anybody would want to but you know you you you have a right to i don't think you have a first amendment right to and i don't think it's as part of that ability to go implicated is a liberty interest because you have some right to direct and control the education of your child and i'm kind of wondering what on earth right your client had to send people to escort him out of a public venue i mean anybody could gotten a ticket to go to this thing they could have he was basing his decision on the ban that was imposed and he was executing his ability and his discretion in having that ban to remove him from the property everybody's got a book on that it seems to me that most school officials would understand the campaign and someone from non school property has nothing to say well there are some cases that suggest that that's not the case that they would hold broadly school events not in the circuit admittedly but there are cases that say that and again i think we have to go back to whether the conduct of the plaintiff was protected under the first amendment or due process right and that i just don't  defense as to the entire count but at the time that the complaint was filed there were four counts filed a motion to dismiss to get rid of all of the counts the due process that count was gone so i really by way of the answer didn't have an opportunity to raise that defense because the count was gone at the time that the answer was filed so it's