right our next case for this morning is lp against marian catholic high school the scre court my name is mary green i represent the appellant's in this case keeping our schools and our communities safe and drug free has long been the province of the government but in this case catholic high school undertook keeping itself safe and drug free accepting the federal government grant to do exactly what we're challenging here catholic high school has a mandatory drug testing program that is run with money from the federal government the administrator essentially of the program is a friend and director a guidance counselor at marion catholic high school the program began from what we can tell in two thousand and eight with the application for a grant from the department of education in the complaint to have sta this case so i'm surprised that you're pushing on state action so much first of all because simply taking federal money isn't generally considered enough to make you a state actor but secondly it seems to me the relevance of the state money is to your title six case you your recipient of federal funds are various requirements including not discriminating on the basis of race on all recipients of federal  just says the same thing with title nine for sex discrimination and as to the title six claim they just require science that there just isn't enough to show  discrimination well two responses to that first as far as federal funding not creating state action that's absolutely through courts upheld this court the supreme court upheld that funding itself does not create state action however i don't know why this is different they're getting money for this drug program they may get money for their science program too for all i know but it's not the same they're getting money for the schools getting money for the drug program to carry out the wishes that the government has to keep the school drug free and safe using this money to implement this testing this case challenges the drug testing program itself the exact reason that the federal funding is given to the school this is not occasional in your view would disciplinary decisions be subject to constitutional due process standards absolutely that's the same reason for the studies has it ever been true for private schools i have not found a case where state action has been held to apply to private schools however there are cases where private entities have been found to be state actors so we know that and depending on the functions but the distinction between private and public schools has always been pretty well established this would be a pretty remarkable development if we were to hold that a private school under these circumstances became a state actor and it would be a remarkable development but it would be consistent with the jurisprudence on state action at least at the pleading stage where there is enough but here's where i want to me just sort of jump to the core of this  this this isn't the pleading stage but first of all your group of defendant i'm sorry your group of plaintiffs themselves included one person who's not african american mr rack of it and it seems that the school was getting positive results back from omega for a variety of students including mr rat convention including the six african americans and so that bothers me and the other thing that bothers me is i don't see anything in this complaint to suggest why drug test performed by omega would be somehow systematically biased against african americans that there's nothing about hair or absorption or anything i just don't see any science in this and at worst it seems to me maybe omega isn't as careful a drug test or as the advocates system or as quest diagnostics or as some of the others it does require a change of inference as i agree that omega is discriminating on the basis of race we're not bringing a disparate impact claim we don't make it doesn't know who's hair it's testing that's correct there's no allegation that omega knows the race of the person whose whose hair it's testing and we know th kicked out for positive results just as well as these other people do we know what the racial makeup of the school is it's not in the complaint but it's but it's roughly fifty fifty and there's nothing in the complaint about how many negatives there are for african american students how many positives there are for caucasian students and where were those one come up with disparate impact as a foundation for where you need to go with within this retreat we don't have that information as far as negatives and positives for african americans and how can you say that this is a that this is having a disparate impact we don't say this is a disparate impact i'm sorry i was unclear we're bringing intentional racial discrimination claims articulate it correctly that the theory is that the tests are wrong they don't make us running the tests affect black students there is going to community there is a systematic bias correct in the retest results that's that's the coin right that not exactly th best you had but i thought you told me a minute ago that you agreed that omega has no idea who's who's best women's it's testing whether it's hair or anything else and so that makes it awfully hard for me to imagine a claim of intentional discrimination on a legacy bar which would take us to where judge chappell to discard like is there even a claim that the kinds of test omega is using have a racially just proportionate impact and you're saying no not that either so so i don't know what your complaint that the school is testing only the african american students and not the caucasian students they do retest when they get a positive result but that doesn't  something that would point to racial discrimination especially when they seem to retest if if it's either caucasian or african american as to the school the racial discrimination comes to play in the way the students the six african american plaintiffs have been disciplined as a result of these tests there's an allegation in the complaint that white students were allowed to test differently for example using hair come from other parts of their body not their head white students were not compelled to go to why would that make a difference i'm confused this is where i'm longing for some sort of science behind this because i don't know why hair from your arm would test differently from hair from the top of your head i think we can only infer that the school and the omega have some communication about why that might be different why why would white students be allowed to take hair from there are more their leg and not their head is there any indication that hair products would lead to a false you have cocaine of course there are many of our environmental factors that could possibly affect the results and create a false positive some of those specific to african americans or specifically african american hair is not african american h and swearing that they do not take cocaine or use cocaine that the test must be wrong there's director herself making comments about the students students here types of hair styles which are specifically african american hair types and hairstyles and that's still the white plaintiffs situation as an inference to be drawn against the african american players or just a record which could have filed a separate lawsuit or could have not found any lawsuit at all and it would not have been proper at the p trying to show discrimination on the basis of race and so if what you have in fact shown is equal treatment between members of different races you haven't shown discrimination you plead yourself out of court at lea manka and as far as for the school if they're all subjected to these random school ordered drug tests then i mean maybe  schools being overzealous but the worst that we seem to be hearing is that the tests are inaccurate but attack here it's not discriminatory the tests are an accurate test we believe are in our accurate and racially discriminatory way but more importantly with respect to the school and the claims against mr record the tests the discipline resulting from the test is unfair unconstitutional on the if you can you be more specific what's the worst thing you've  to two of the students that they must have drugs at home or the family must be selling drugs we believe is preying on racial stereotypes about the families there's no evidence that there's any sort of drug selling there's no reason them struggle to make these types of comments about the students  in response to plaintiff's arguments join a dragger is not alleged so that your parents must be selling drugs at home as an allegation the only thing as alleged against join a dragger with respect the comments is that after a student tests positive two of the students were asked if there were drugs at home and that is just the kind of scales was an inquiry as to whether or not how deep the problem is that they're dealing with with a person tests positive for cocaine in their system cocaine its main heavily all of the plaintiffs tested positive for cocaine this may have known what is being alleged here who's that married catholic you cited nine years ago to put into its adolescence its teenagers and its high school the mandatory drug test and all the students knew this when they came to the high school now i take it this was optional the federal funds are available if you want to do this but marian catholic didn't have to do it if they didn't is tested for drugs and these seven plate that's all tested positive and when you look at what's the greatest harm that occurred to any of the students three of them is alleged were asked to leave the white star athlete was expelled from the school after testing positive twice for having cocaine and it's made but have a white in his system according to the test results in the two african american students that were asked one tested positive five times the other tested positive for times and that's when this report looked at these allegations and said it's not plausible to infer intentional discrimination based on the well pled to allegations contained in the first minute complaint so when you refer to multiple tests i thought one of the assertions i picked up was that the white students had more opportunities after a bad test to rehabilitate them as that's where when you look at the specific allegations contained in the complaint roger you'll see that four of the african american students were immediately retested two of them specifically as and when you look at the allegations for the specific african american students four of them were immediately retested two of them at the request and the other two is no allegation that there has to be retested so let's go on as you know it's a the thing that i find most challenging on on for your position here is the fact that we're on a twelve b six dismissal and we've got paragraph thirty four in the first amended complaint that talks about this in general about the differential approach to students then we have the series of individual allegations and i guess i'm wondering so if should the plaintiffs have just left out those individual allegations unless stuck with the general allegation of paragraph thirty four issues because they do not plead a cause of action of attentional discrimination against join a dragger and against the school and we are seeking punitive damages well because at the general the general allegations in paragraph thirty four  about differential racially differential discipline of students that's the kind of thing that will support a claim right yes and we ordinarily allow intent to be played generally that's clear from the rules facts go completely contradictory to the elements of their case because that they essentially create three things one that students who were not members of protected class were allowed to be retested as and i said that's not true we look at the specific allegations second they say that you're allowed to tape here from other parts of the body they don't say it as discriminatory but they said a curse one of the plaintiff alleges that here was taken from his leg right times an african american student says that in the complain and the third is that the discipline was different and the actual location show that that's not true that the discipline was the same that's what it was the drug counseling that the there's an allegation that the african americans are immediately directed to drug counseling and the caucasians are not yet and that's not true either on the drug counseling three of the african american students do not alleged that they took truck counseling j b c c make no allegations of having to go through drug counseling i j said she was told she had to go through counselling she doesn't plead that she did so the four students that went through drug counseling one tested positive four times one tested positive five times and the other one was the white star football player who alleges that he had to go through drug counseling so the housing program is part of the program that's a not discriminatory program everybody has to go through it and then the evidence and with it the factual allegations show th all of the african american students even went through the drug counseling program so that's why i think it's important to look at the factual allegations to say should they be allowed to go forward with in the district court said there is no plausible inference of discrimination that's the key here the mere possibility does not entitle these plaintiffs to go forward to conduct discovery and on this these serious allegations that the make applies refashion when you look at the well played factual allegations contained complaints it's called well jim you represent omega i q your honor there was cold war you both really are with the city of boston litigation going on i am your honor where police officers in jones against boston have pursued this theory of disparate impact in the here testing right and that's the fire recall correctly summary judgment was reversed a few weeks ago right it was so we don't you know we haven't had any discovery any development of the science here we've got our colleagues in the first circuit looking at a record and saying there's at least a genuine issue of fact i think about statistically significant differences in reliability in tests of caucasian versus african american hair samples suggests there's at least some room for scientific debate and i would be welcome your comments on that in your thoughts about whether the existence of the debate might have an impact here well the boston case is really over police officers who handle drugs on a regular basis so it's a very different sort of argument there is no dispute and they had a much higher cutoff and actually the scientific studies show that to the extent there  a bias as far as concentration levels that would in fact be only at higher concentration we of those at the hundred cut off all the studies have said there there is no bias whatsoever but it's not that cocaine magically appears from a darker hair but rather the level and whether you go over under cutoffs is the science you were there is a debate over the over the studies there's also a debate over over a lot of good and epidemiological studies that show but that is going on at that level and  for science would not be a section one thousand nine hundred one that is not an intentional conduct and of course we're not here about negligence or whether and most of the possibly through part it's going to go it's really over what discipline should be imposed how should it be interpreted rather than the scientific what is what is the concentration of it in an individual parents rather how that should be huge by other people is that when the boston police department action is going over for those public employees  really frankly don't go to a make and there are none there are no they were given the opportunity replete and they have not done so it's very clear that section one thousand nine hundred one claim requires intentional conduct disparate i don't see any other questions thank you very much itself for students went through drug counseling as counsel pointed out in two thousand and fourteen two thousand and fifteen it seems it's a fair inference that when more students started to complain about the program or african american students and when the lawsuit itself was filed that's when th how do you go from there to intentionally racially discriminatory action well it'll make it knows that there is a disparate impact and omega continues to use these tests anyway even in the face of african american students complaining that the tests are not accurate saying that they don't use cocaine