[00:00:00] Speaker 05:
All right, our final case of the morning is Step versus Lockhart et al., number 257038.

[00:00:12] Speaker 05:
Counsel, you may proceed.

[00:00:14] Speaker 04:
Good morning.

[00:00:15] Speaker 04:
May it please the court?

[00:00:16] Speaker 04:
My name is Adam Breipol, and I'm present on behalf of all of the appellants other than Kevin McLean.

[00:00:23] Speaker 04:
And I do intend to reserve five minutes, or as close as I can, for counsel for McLean.

[00:00:30] Speaker 04:
So there are a lot of parties and claims in this appeal.

[00:00:35] Speaker 04:
I assume we're probably not going to have time to address each and every one in a lot of detail.

[00:00:40] Speaker 04:
So I'd like to focus on some overriding issues that I believe govern this court's analysis of all claims.

[00:00:48] Speaker 04:
First, I think it bears emphasis how complex and unusual, compared to the average school civil rights case, the fact pattern is that's alleged in this case.

[00:01:01] Speaker 04:
It arises out of a situation where Tallahena Public Schools, for a certain period of time, had a policy in place in which classroom assignments were based on sex, such that there was a boys' classroom and a girls' classroom.

[00:01:16] Speaker 04:
And some of the issues on this appeal relate to the facial lawfulness or unlawfulness of that policy.

[00:01:24] Speaker 04:
In the boys' classroom, there's also allegations that Appellant McLean engaged in inappropriate remarks and yelling and things like that directed towards the minor plaintiff, J.S.

[00:01:35] Speaker 04:
And so some of the claims deal with who, if anyone, is liable for that conduct.

[00:01:41] Speaker 04:
His parents filed a Title IX complaint regarding those issues, and there are issues in this appeal regarding how that appeal was processed.

[00:01:51] Speaker 04:
There are issues related to a change in the way that JS was provided with an education after the complaint was initiated and while it was being processed.

[00:02:02] Speaker 04:
And then finally, there are allegations of post hoc retaliation against the plaintiffs, JS and the Step family.

[00:02:11] Speaker 04:
The important thing is that not every individual defendant in this case is alleged to have been

[00:02:18] Speaker 04:
involved in the same way or to the same degree every step along the way.

[00:02:24] Speaker 04:
And what that means is that it's particularly important that a court evaluating the issue of qualified immunity as to these individuals focus in on the specific conduct and knowledge and role of each individual and not to paint them with the same brush, regardless of what they're actually alleged to have done.

[00:02:47] Speaker 04:
Ever since Twombly and Iqbal were handed down, the appellate courts have made it very clear that it's particularly important that a plaintiff allege specifically who is alleged to have done what to whom in order to serve two purposes, both to give the defendant a fair knowledge of both the factual basis and legal theory for the claim that's asserted against them, and to allow the courts to evaluate whether a plausible claim has actually been alleged.

[00:03:16] Speaker 05:
Counsel, I take your point about personal participation.

[00:03:21] Speaker 05:
I'm not sure we're going to have the time to kind of work through each and every claim with each and every defendant.

[00:03:27] Speaker 05:
I mean, that's something we're going to have to study in terms of the complaint and the arguments you've made.

[00:03:35] Speaker 05:
I don't want to throw you too far off course on your basic points, but I know we're going to have a number of questions about the specific claims.

[00:03:44] Speaker 05:
Are you ready to take those at this point?

[00:03:47] Speaker 04:
Certainly at any whenever your honor would like to jump in on that all right.

[00:03:51] Speaker 05:
I will I'd like to start with the Like as you said there are a lot of claims and you're representing everyone, but but Mr.. McClain correct all right so Tell me on the procedural due process claim Why doesn't the complaint?

[00:04:17] Speaker 05:
adequately allege a deprivation of a property interest in public education based on the segregated classroom policy?

[00:04:28] Speaker 04:
So it's established that there is a property interest in education on behalf of a student.

[00:04:36] Speaker 04:
But the case law doesn't go as far as saying that every aspect of the way that an education is provided

[00:04:44] Speaker 04:
falls within the protected property interest.

[00:04:47] Speaker 04:
For example, we cited the Zamora case, where a student was taken as a result of discipline, was required to go from the normal high school to an alternative high school that didn't offer sports and allegedly wasn't

[00:05:07] Speaker 04:
you know, as preferable of a placement for that student.

[00:05:11] Speaker 04:
But this court explained that he was still being provided an education.

[00:05:16] Speaker 04:
So the specific setting that the education was being provided in didn't raise to the level of a constitutional deprivation.

[00:05:24] Speaker 04:
So in this case, what's alleged is that JS, after his parents made this complaint regarding McLean,

[00:05:36] Speaker 04:
that he was taken out of the classroom and put on a remote out-of-school educational setting.

[00:05:45] Speaker 04:
So that is different than an out-of-school suspension where, as a student, you're out of school.

[00:05:53] Speaker 04:
You're not being provided with an education at all.

[00:05:56] Speaker 01:
So just to make sure that I understand the facts that are relevant to this argument, that the modified plan went on

[00:06:05] Speaker 01:
for six weeks, and JS was given an hour of instruction per day.

[00:06:08] Speaker 01:
Is that correct?

[00:06:10] Speaker 04:
There's actually two different changes that were made based on the allegations of the complaint, of course, since we're at the motion to dismiss stage.

[00:06:19] Speaker 04:
So initially, when the complaint was made, I believe they say the same day that they made the complaint, JS was sent home and put on a remote education.

[00:06:32] Speaker 04:
And they do say he was sent home with work to complete and continue to receive grades.

[00:06:40] Speaker 04:
The amount of time that went on is not specified.

[00:06:44] Speaker 04:
But at a certain point, there was a discussion about how he would be educated going forward.

[00:06:50] Speaker 04:
And they allege they didn't want him to go back into Mr. McLean's class.

[00:06:55] Speaker 04:
And they didn't want him to continue on this remote plan.

[00:07:00] Speaker 04:
And so instead, what they did was kind of a hybrid schedule where he was at school receiving one-on-one instruction.

[00:07:10] Speaker 01:
So it's your position, if I understand it, that a suspension is what would trigger the deprivation, not the facts here?

[00:07:20] Speaker 04:
Yes.

[00:07:20] Speaker 04:
I would look at it as there's levels.

[00:07:24] Speaker 04:
If it is an out-of-school suspension, you are out of school, not receiving an education for more than 10 days under GOSS, you have due process and a full hearing right.

[00:07:34] Speaker 04:
If it's a short-term out-of-school suspension, due process is still triggered, but a lower level of process is required, so that could just be

[00:07:44] Speaker 04:
notice of the charges right to respond to them, then the next level would be if there is, for example, taking a student and putting them in virtual rather than in-person instruction.

[00:07:58] Speaker 04:
I don't believe that the case law establishes that it's clearly established that that implicates a student's property, right?

[00:08:07] Speaker 04:
Think about it.

[00:08:08] Speaker 04:
About six years ago in 2020, a lot of schools were putting people on remote education.

[00:08:15] Speaker 04:
And schools didn't have to provide a due process hearing for each student.

[00:08:20] Speaker 04:
Their parents may have not approved of that.

[00:08:22] Speaker 03:
In the second phase, he got one hour of language arts.

[00:08:25] Speaker 03:
And otherwise, it sounds like he was just kind of parked in the library, is the way I pictured it.

[00:08:29] Speaker 03:
You're saying one-on-one instruction?

[00:08:31] Speaker 03:
Was he instructed all day long in each of the subjects?

[00:08:36] Speaker 04:
This is a tough one, because I'm trying to stay within the allegations of the complaint.

[00:08:40] Speaker 04:
But I think the important thing is that they do allege that there was some instruction provided during the day in person.

[00:08:48] Speaker 04:
And that if you look at the allegations regarding this time frame, they're pretty clear that you can't continue to receive work to do if you're not receiving education.

[00:09:01] Speaker 04:
You can't continue to receive grades if you're not being provided with an education.

[00:09:05] Speaker 03:
But as far as drawing lines, an alternative high school

[00:09:09] Speaker 03:
That's one thing.

[00:09:10] Speaker 03:
You're going to classes, you have math, you have social studies, whatever else.

[00:09:15] Speaker 03:
But here, the way that I read it, it's just he's kind of cast off.

[00:09:22] Speaker 03:
Go to the girls' class or else.

[00:09:26] Speaker 04:
Well, I think it's important to keep in mind that the question here isn't whether it was a action that would implicate due process to put him on that schedule.

[00:09:36] Speaker 04:
It's whether it was clearly established

[00:09:39] Speaker 04:
because that's what would be necessary for it to be a basis to deny qualified immunity to the individuals that were involved in that.

[00:09:46] Speaker 01:
Did the district court reach a ruling on that?

[00:09:49] Speaker 04:
That is kind of the overriding issue that I wanted to get to, is if you look at the district court's order, the issue of clearly established law really is not specifically addressed on most of the claims.

[00:10:02] Speaker 04:
The two prongs of the qualified immunity analysis need to be, they're related.

[00:10:07] Speaker 04:
They don't necessarily have to be addressed in section 3A, 3B, but they both have to be addressed.

[00:10:14] Speaker 04:
And that wasn't done, and we believe it's error.

[00:10:16] Speaker 04:
And I'm happy to field more questions if you have them, but I'd like to reserve the rest of my time for the claims council.

[00:10:23] Speaker 05:
I think we're just getting started, council.

[00:10:26] Speaker 05:
Let me ask you about the equal protection claim.

[00:10:30] Speaker 05:
So the school district, the school,

[00:10:32] Speaker 05:
decide to segregate classes based on sex.

[00:10:39] Speaker 05:
Why isn't that at least the beginning of an equal protection claim?

[00:10:45] Speaker 05:
You've got a protected category.

[00:10:49] Speaker 05:
You're distinguishing on the basis of sex.

[00:10:52] Speaker 05:
Doesn't the school district need to satisfy intermediate scrutiny to justify having done that?

[00:11:02] Speaker 04:
With the procedural posture we're in, the plaintiffs had the burden to prove both or to show that it's clearly established that this policy both is unlawful and that the proffered justification fails intermediate scrutiny.

[00:11:21] Speaker 04:
There's limited information in the record that's before us right here about the reasons for the policy, but it had to do with

[00:11:30] Speaker 04:
being able to address issues related to proper conduct, and then also to have frank conversations that couldn't take place in a school setting.

[00:11:39] Speaker 04:
So I would submit that it would be the plaintiff's burden to show that it's clearly established.

[00:11:46] Speaker 05:
You're jumping to prong two again.

[00:11:48] Speaker 05:
Exactly.

[00:11:49] Speaker 05:
All right.

[00:11:51] Speaker 05:
We could spend a lot of time on each one of these, but I'm going to move on.

[00:11:54] Speaker 01:
Can I ask a follow-up question on my equal protection claim?

[00:11:58] Speaker 01:
Can you help me understand, in your opening brief, in discussing the equal protection claim, you argue that plaintiffs failed to allege conduct that would constitute deliberate indifference.

[00:12:10] Speaker 01:
And I'm not sure I understand how that fits if we're looking at this as a sex separation policy under intermediate scrutiny.

[00:12:18] Speaker 04:
Well, I think there has been some confusion.

[00:12:21] Speaker 04:
If you look at the record about what the theory behind, we're talking about count five, as I read it, as to what the theory is.

[00:12:30] Speaker 04:
And there's been some discussion where it is more of a facial challenge to the policy.

[00:12:37] Speaker 04:
And there's been some other discussions where it's more of a theory of by putting in place this policy, it's said about the

[00:12:46] Speaker 04:
the chain of events in motion that led to JS being sexually harassed allegedly by McLean.

[00:12:54] Speaker 04:
So there's two different theories that are discussed.

[00:13:00] Speaker 05:
OK, I'm going to jump to count seven, which is the conspiracy claim.

[00:13:08] Speaker 05:
If I'm reading the district court opinion correctly, correct me if I'm wrong,

[00:13:13] Speaker 05:
It seemed like the district court didn't rely on qualified immunity to dismiss it.

[00:13:23] Speaker 05:
It didn't rely on qualified immunity to deny your motion.

[00:13:30] Speaker 05:
Why do we have interlocutory jurisdiction to address Count 7 if it's not a qualified immunity ruling?

[00:13:38] Speaker 04:
Well, I think it would be a little bit different than other claims,

[00:13:42] Speaker 04:
my clients raised the qualified immunity defense as to all the Section 1983 claims.

[00:13:48] Speaker 04:
And so I think that puts it on the incumbent on the plaintiffs to overcome the presumption of qualified immunity that attaches once it's raised.

[00:13:57] Speaker 05:
And then also- If the district court didn't rule on qualified immunity grounds, then why are we even talking about it now?

[00:14:06] Speaker 04:
I think our position would be that the district court needed to address that.

[00:14:10] Speaker 04:
in order to keep them in the case going forward, because they're presumed.

[00:14:14] Speaker 05:
Well, that's a different argument.

[00:14:15] Speaker 05:
If you're arguing that they failed to address it, wouldn't we just send it back?

[00:14:22] Speaker 04:
If that is the way that the court chooses to view it, then that could be a way that that could be disposed of.

[00:14:31] Speaker 04:
But I think our position would be that once it's raised,

[00:14:36] Speaker 04:
With regard to several of the claims, qualified immunity is kind of discussed up at the start of the Section 1983 claims.

[00:14:45] Speaker 04:
And then it's kind of only implicitly discussed.

[00:14:49] Speaker 05:
All right.

[00:14:49] Speaker 05:
I mean, let me just preface my next question with, I'm asking you a few of these things to see if we can get our arms around the scope of what we're dealing with on this appeal.

[00:14:58] Speaker 05:
So the next one is more just a matter of asking you.

[00:15:04] Speaker 05:
whether you're challenging the denial of the motion to dismiss Count 9, because I didn't see discussion of that in your brief.

[00:15:11] Speaker 05:
But again, I might have missed something.

[00:15:12] Speaker 05:
So is it there?

[00:15:14] Speaker 04:
Of course, I'm over time.

[00:15:15] Speaker 04:
I'll answer your question.

[00:15:18] Speaker 04:
There's two different retaliation claims.

[00:15:22] Speaker 04:
One of them is Count 6, and one of them is Count 9.

[00:15:25] Speaker 04:
And I think we addressed them in the same proposition.

[00:15:29] Speaker 05:
So what you're saying is that you covered both?

[00:15:33] Speaker 04:
Yeah.

[00:15:33] Speaker 04:
It's the same analysis.

[00:15:34] Speaker 04:
It's just against different defendants.

[00:15:37] Speaker 04:
OK.

[00:15:38] Speaker 05:
All right.

[00:15:40] Speaker 05:
Well, I'm going to hold off for now unless we may want to hear from you again, even though you're over time now.

[00:15:47] Speaker 05:
So don't go anywhere.

[00:15:49] Speaker 05:
All right.

[00:15:49] Speaker 05:
Thank you, Your Honor.

[00:15:52] Speaker 05:
Oh, I'm sorry.

[00:15:53] Speaker 05:
We have Mr. Callaway.

[00:15:55] Speaker 05:
Maybe we ought to hear from you.

[00:15:58] Speaker 05:
He wanted to give you five minutes, and I had a feeling this was going to happen.

[00:16:01] Speaker 05:
Let's give him five minutes.

[00:16:05] Speaker 00:
Thank you.

[00:16:06] Speaker 00:
And may it please the court, my name is Jason Callaway, here on behalf of appellant Kevin McLean, who is asking this court to reverse the lower court's decision to deny qualified immunity on appellee's substantive due process and

[00:16:22] Speaker 00:
equal protection claims.

[00:16:23] Speaker 00:
And I'll turn to the substantive due process claim first, because it's a little bit more straightforward.

[00:16:28] Speaker 00:
On substantive due process, the analysis is always, does this shock the judicial conscience?

[00:16:33] Speaker 00:
This is an incredibly high standard.

[00:16:35] Speaker 00:
It has to be something more than negligent injury.

[00:16:38] Speaker 00:
It has to be something more than reckless injury, misuse of government power.

[00:16:42] Speaker 00:
It has to be something higher than that.

[00:16:45] Speaker 00:
And I think this court back in 1996 essentially decided this question for us.

[00:16:51] Speaker 00:
in the Abeta decision, Abeta versus Chama Valley Independent School District number 19, the court said it is theoretically possible for verbal abuse alone to constitute a deprivation of a student's substance of due process rights.

[00:17:08] Speaker 00:
But first, it would need to be equivalent to forced stomach pumping.

[00:17:13] Speaker 00:
So whatever it would need to be, it would have to be the equivalent of that.

[00:17:16] Speaker 00:
And second, more importantly.

[00:17:18] Speaker 05:
How would you ever get the equivalent of that?

[00:17:20] Speaker 00:
I don't know.

[00:17:22] Speaker 00:
But this court allowed it as a possibility.

[00:17:26] Speaker 00:
Second, and more importantly, the facts of that case did not meet that standard.

[00:17:31] Speaker 00:
And I say that's important because we view the facts of this case as alleged in the second amended complaint as, at minimum, no worse than what was alleged in a beta.

[00:17:40] Speaker 01:
So you're arguing now the clearly established prong.

[00:17:44] Speaker 00:
We're arguing both, that under a beta there was no constitutional violation at all.

[00:17:50] Speaker 00:
if this court were to decide there was a constitutional violation, that Abata was the clearly established law, and that Mr. McClain would not have known at the time on knowing what Abata said, that this court would subsequently decide differently now.

[00:18:06] Speaker 05:
Well, what if there is, hypothetically, a determination that the conduct shocked the conscience?

[00:18:15] Speaker 05:
How does that?

[00:18:17] Speaker 05:
We're used to dealing with the clearly established law in a lot of other contexts.

[00:18:22] Speaker 05:
But this one, I'm curious how courts are supposed to evaluate conscience-shocking conduct under clearly established law.

[00:18:35] Speaker 05:
Because one of the ways to get to clearly established law is when the conduct is obviously

[00:18:42] Speaker 05:
a constitutional violation.

[00:18:44] Speaker 05:
So if something shocks the conscience, why wouldn't it be obvious?

[00:18:50] Speaker 05:
How do the two prongs interact in a substantive due process shock the conscience?

[00:18:57] Speaker 00:
I think in this particular context, the educational context and specifically verbal abuse alone, essentially what courts have said is that

[00:19:05] Speaker 00:
It never shocks the conscience.

[00:19:07] Speaker 00:
Well, that wasn't my question.

[00:19:09] Speaker 05:
I'm asking you to assume it does.

[00:19:12] Speaker 05:
Assume prong one.

[00:19:13] Speaker 05:
A reasonable jury presented with the facts alleged in the complaint would find that Mr. McClain's conduct was egregious, outrageous, and conscious shocking.

[00:19:24] Speaker 05:
All right.

[00:19:24] Speaker 05:
So again, hypothetically.

[00:19:28] Speaker 05:
But let's assume that.

[00:19:31] Speaker 05:
Because what I want to know is, if you've got that in hand,

[00:19:35] Speaker 05:
How can you not have prong two?

[00:19:39] Speaker 00:
Essentially because courts have so frequently said that this is not conscience shocking.

[00:19:45] Speaker 00:
So if there were to be facts at some point in the future that met what this court said in a beta, you know, that there is verbal assault equivalent to forced stomach pumping, if you got those facts, whatever they may be, you could say here, this here is enough.

[00:20:02] Speaker 01:
So if we decide prong one,

[00:20:05] Speaker 01:
in favor of the plaintiffs, but really decide it, and you still win on clearly established, then the next case may solve Judge Matheson's question.

[00:20:15] Speaker 01:
Is that your position?

[00:20:17] Speaker 00:
Yes, Your Honor.

[00:20:18] Speaker 03:
But if you lose on the first prong here, back to Judge Matheson's question and the follow-up, sometimes you don't have to have a case directly on point from the Supreme Court or the Tenth Circuit.

[00:20:30] Speaker 03:
The conduct is just so bad that we say every

[00:20:34] Speaker 03:
person except incompetence or those willfully violating law would know.

[00:20:41] Speaker 03:
And so, and I understand if the bait says what it says and the allegations there are what they are, I don't think they're as bad as they are here.

[00:20:51] Speaker 03:
So if they're worse here and we said that's conscience shocking, good enough, couldn't we just say on prong two, it's clearly established because anybody would know.

[00:21:02] Speaker 03:
that this violates the constitution.

[00:21:06] Speaker 00:
And I think that goes back, and I'm sorry I'm out of time.

[00:21:09] Speaker 00:
I'd like to finish answering if I can.

[00:21:12] Speaker 00:
Please do.

[00:21:12] Speaker 00:
I think that goes to the fact that no one has found conscience-shocking behavior in verbal abuse alone.

[00:21:21] Speaker 00:
If no one has ever found it, then it seems like by definition, if one court finally does, you would have to say, well,

[00:21:29] Speaker 00:
it wasn't clearly established before that that meets the standard, because nothing ever has before now.

[00:21:34] Speaker 03:
Unless it's egregious enough.

[00:21:37] Speaker 00:
If it's egregious enough to be equivalent to forced stomach pumping, then it would, under a beta, already be clearly established, because that's what this Court has said would be what it takes.

[00:21:48] Speaker 00:
Thank you.

[00:21:48] Speaker 00:
Thank you, counsel.

[00:21:50] Speaker 05:
All right.

[00:21:50] Speaker 05:
We'll move to Kelly.

[00:21:53] Speaker 05:
Mr. Johnston.

[00:21:58] Speaker 02:
May it please the Court and good morning, Your Honors.

[00:22:01] Speaker 02:
My name is Blake Johnson.

[00:22:02] Speaker 02:
With me is my co-counsel, Kelsey Schrimer, and we represent the plaintiff Apolize, the Step family.

[00:22:09] Speaker 02:
This Court should affirm the decision below because in 2022, no reasonable state actor would doubt that the Constitution prohibits the segregation of public school classrooms by sex, a teacher's aggressive sexual harassment and gender bullying of an 11-year-old boy, or a campaign of retaliation against parents who filed a Title IX complaint.

[00:22:29] Speaker 02:
In each of these questions, the answer was and is clearly established.

[00:22:35] Speaker 02:
I think as an organizational.

[00:22:37] Speaker 01:
You're asking us to make assumptions about the legal analysis on the face of a district court order that seemed in part, tell me if I should think about it differently, but at least to me seemed in part to conflate the first and second prongs of qualified immunity.

[00:22:55] Speaker 01:
And why isn't that reversible error?

[00:23:00] Speaker 02:
Well, I do see it a bit differently, Your Honor.

[00:23:02] Speaker 02:
I think the correct answer to your question to opposing counsel was that the district court did, in fact, decide that with respect to the procedural due process challenge, there was clearly established law in the question.

[00:23:15] Speaker 02:
The district court's order for in the

[00:23:18] Speaker 02:
McLean appeal at page 12, and then the other appellant's appeal at the order of pages, I believe, 22 to 23 both clearly cite this court's decision in Couture as well as the Supreme Court's decision in Goss as the clearly established law on the procedural due process claim.

[00:23:34] Speaker 02:
And I think that's true in general of the district court's order.

[00:23:36] Speaker 02:
Now, I'll suggest, candidly, that there is fairly threadbare an anemic recital of the qualified immunity assertion

[00:23:46] Speaker 02:
and defendants' own motion to dismiss at the district court stage.

[00:23:50] Speaker 02:
And so the district court's analysis, to the extent that it conflates those questions, probably generates from the fact that in many instances, the defendants, the appellants, in this instance, the appellants' own defense tends to.

[00:24:04] Speaker 05:
Well, but you have the burden.

[00:24:05] Speaker 05:
I mean, they raise it, and then you have the burden.

[00:24:08] Speaker 05:
That's right.

[00:24:09] Speaker 05:
So I take it, in your view, you presented a robust

[00:24:13] Speaker 05:
to analysis on all the claims.

[00:24:16] Speaker 05:
Is that your position?

[00:24:17] Speaker 02:
I couldn't have put it better myself, Judge.

[00:24:19] Speaker 05:
Did you do that in district court?

[00:24:20] Speaker 02:
We did so, absolutely.

[00:24:22] Speaker 05:
And if the district court really didn't pick up on that, what should we do with that?

[00:24:30] Speaker 05:
Do we have to do work that the district court didn't do, or should it go back to the district court?

[00:24:37] Speaker 05:
What should happen?

[00:24:38] Speaker 02:
I guess I'm slightly confounded by the proposition that the district court

[00:24:43] Speaker 02:
in any sort of reversible way, conflated these two prongs.

[00:24:48] Speaker 02:
Obviously, there are arguments advanced.

[00:24:50] Speaker 05:
Well, you said it was anemic.

[00:24:51] Speaker 05:
I mean, we're at least at the anemic point.

[00:24:53] Speaker 02:
Oh, and I'm sorry if I was misunderstood.

[00:24:55] Speaker 02:
I was referring to the assertion of qualified immunity in the appellants' motions to dismiss.

[00:25:01] Speaker 05:
Well, I don't know if they have to do a lot to put the burden on you and then on the district court to address the issue.

[00:25:06] Speaker 05:
So you're saying the district court

[00:25:09] Speaker 05:
Well, it certainly wasn't as robust as your arguments.

[00:25:12] Speaker 05:
Would you at least agree with that?

[00:25:14] Speaker 02:
I would defer to the appellate judge's assessment of the district courts.

[00:25:19] Speaker 01:
Well, let's say we're not grading homework.

[00:25:21] Speaker 01:
We're not saying it should have been better.

[00:25:24] Speaker 01:
In the district court's order, if the court does not mention the clearly established prong for certain claims,

[00:25:32] Speaker 01:
Do you agree that that's reversible?

[00:25:35] Speaker 01:
Reversible may be remandable for the district court to complete the thought.

[00:25:39] Speaker 01:
But if the court does not mention an analysis at all of a second prong, what are we supposed to do with that on appeal?

[00:25:48] Speaker 02:
Well, I think it would probably depend on the particular constitutional challenge that the plaintiffs advance.

[00:25:55] Speaker 02:
I guess probably the most persuasive way that I can answer your honor's question is to assert simply

[00:26:01] Speaker 02:
With respect to each of the plaintiff's claims, and I'd love to address those in their particularity, with respect to each of the plaintiff's claims, we believe that there is clearly established law that would put a reasonable state actor in the defendant's, the appellant's position on notice of the impermissibility of the conduct that we allege.

[00:26:19] Speaker 05:
Can I just ask you, maybe this goes more to the procedural due process claim than the others,

[00:26:25] Speaker 05:
As I read the complaint, it alleges that the school district was responsible for removing JS from the classroom or from the school.

[00:26:38] Speaker 05:
That's the one part of the complaint where I wonder if you did enough on personal participation.

[00:26:46] Speaker 02:
Yeah, so I think in a pre-discovery setting,

[00:26:49] Speaker 02:
We're obviously limited to information and belief.

[00:26:53] Speaker 02:
I think the complaint does allege that the decision to summarily and informally suspend JS, Judge Rossman correctly summarized the sequence of events that occurred subsequent to the stepfamily making its formal Title IX complaint.

[00:27:08] Speaker 02:
He was initially sent home from school altogether with only a sticky pad of instruction and then eventually confined at the library.

[00:27:16] Speaker 05:
I mean, that's my question.

[00:27:17] Speaker 05:
It seems like you're saying the district did that.

[00:27:20] Speaker 05:
But you've got a bunch of defendants on the hook right now.

[00:27:23] Speaker 05:
And why should they be on the hook for this?

[00:27:26] Speaker 02:
So with respect to that particular claim, the procedural due process claim, the Second Amendment complaint.

[00:27:31] Speaker 05:
And the removal from the classroom.

[00:27:32] Speaker 05:
Not the segregation part of it, but the removal.

[00:27:34] Speaker 02:
Absolutely.

[00:27:35] Speaker 02:
Absolutely.

[00:27:36] Speaker 02:
The Second Amendment complaint alleges that

[00:27:38] Speaker 02:
initially, and I might get these dates slightly wrong, but in late August, the Stepp family initially contacted Superintendent Lockhart and Principal Anderson.

[00:27:48] Speaker 02:
They then coordinated a second meeting with those same two administrators, as well as at least defendant Russell.

[00:27:55] Speaker 02:
The Second Amendment complaint alleges, again on information and belief, that the board members, including Superintendent Lockhart and Principal Anderson, made this decision in coordination.

[00:28:05] Speaker 02:
That's consistent with the allegation that it was defendant Russell, who's one of the board members who contacted plaintiffs after.

[00:28:12] Speaker 05:
All right, so you're saying that the complaint says that these individual defendants in concert made the decision to remove JS.

[00:28:24] Speaker 02:
That's absolutely right.

[00:28:25] Speaker 05:
All right, we can study the complaint.

[00:28:28] Speaker 02:
Terrific.

[00:28:29] Speaker 05:
And follow up on that, just to kind of keep the ball rolling.

[00:28:32] Speaker 05:
On your procedural due process claim, do you have a case clearly establishing that the segregation policy, not the removal, but just the policy itself was a due process deprivation?

[00:28:47] Speaker 05:
In other words, I'm not asking about the equal protection claim.

[00:28:51] Speaker 05:
I'm just asking about the procedural due process claim.

[00:28:54] Speaker 05:
Is there a case, Supreme Court or Tenth Circuit, and what is it that would make that out to be a due process deprivation?

[00:29:02] Speaker 02:
And so I think both in the interest of economy and candor, the most fair response is to say that we think our equal protection claim with respect to the segregation policy itself is our strongest argument, and that argument on which the law is most clearly established.

[00:29:20] Speaker 05:
But are you saying that you don't have a procedural due process case?

[00:29:26] Speaker 02:
I think that the most closely the most factually analogous case on with respect again to the policy itself if I understand with respect to the policy itself and on the particular procedural due process question.

[00:29:38] Speaker 02:
I think the most closely factually analogous cases that we can probably point to would be couture and gossip.

[00:29:43] Speaker 02:
I recognize that those.

[00:29:44] Speaker 02:
concern the decision to suspend a student in the absence of process.

[00:29:51] Speaker 02:
But I think that the general constitutional principles espoused there the deprivation of educational opportunity must be occasioned by the minimum guarantees of the due process clause.

[00:30:06] Speaker 02:
And again, I'm quite eager to return to the basic question of the equal protection clause with respect

[00:30:13] Speaker 02:
to the segregation policy for the reason that I think there, the law is conclusively well established.

[00:30:20] Speaker 02:
And I'll certainly take the court's hint, if it would prefer that I discuss those other avowals.

[00:30:28] Speaker 05:
I'll do more than a hint.

[00:30:30] Speaker 05:
So on the equal protection claim, as I understand it, it seems to be based on the segregation policy.

[00:30:40] Speaker 05:
But is it also based on how?

[00:30:43] Speaker 05:
on how Mr. McClain treated?

[00:30:48] Speaker 02:
That's absolutely right.

[00:30:50] Speaker 05:
And I'm not talking about the claim against Mr. McClain.

[00:30:53] Speaker 05:
We can get to that, because you've got a separate equal protection.

[00:30:56] Speaker 05:
I'm talking about whether the treatment of the child in the classroom is relevant to the equal protection claim against school district defendants.

[00:31:05] Speaker 02:
And my answer to that is absolutely yes.

[00:31:07] Speaker 02:
And I understand exactly the distinction that your honor is drawing.

[00:31:11] Speaker 02:
We have with respect to equal protection.

[00:31:13] Speaker 02:
We have a claim that targets basically all of the appellants here without in the absence of a claim that concerns the.

[00:31:21] Speaker 02:
promulgation, implementation, and enforcement of the policy.

[00:31:23] Speaker 02:
We have a second equal protection claim that targets those same defendants in addition to McLean.

[00:31:29] Speaker 02:
And I apologize, point of clarification, I said all of the appellants to the exclusion of McLean.

[00:31:35] Speaker 02:
It's actually with respect to the equal protection claim.

[00:31:38] Speaker 02:
It's to the exclusion of McLean and Blair and Bryant, those being the Title IX defendants.

[00:31:42] Speaker 02:
So our policy-based equal protection claim targets Superintendent Lockhart, Principal Anderson, and the Board defendants.

[00:31:51] Speaker 02:
our harassment-based equal protection claim targets.

[00:31:55] Speaker 02:
Obviously, McLean.

[00:31:57] Speaker 02:
And then, under an admittedly slightly different analysis, specifically with respect to direct or personal involvement versus acquiescence or delivered indifference on a slightly different theoretical basis, we state an equal protection claim against McLean, the board defendants Anderson and Lockhart,

[00:32:19] Speaker 02:
a claim, obviously the factual basis for that equal protection claim.

[00:32:23] Speaker 02:
is the pervasive sexual harassment of JS and gender bullying of JS with respect to the remaining defendants.

[00:32:31] Speaker 02:
The basis of that harassment-based equal protection claim concerns their having received adequate and, indeed, ample notice, both of the invidious effects of the segregation policy itself and the pervasive and severe gender bullying and sexual harassment that McLean was targeting at JS.

[00:32:51] Speaker 02:
and thereafter taking no remedial action, as would be appropriate under the circumstances.

[00:32:57] Speaker 01:
The former- Was the board responsible?

[00:33:01] Speaker 01:
Did you allege that the board is responsible for policy implementation?

[00:33:04] Speaker 02:
We did.

[00:33:05] Speaker 02:
We also allege, again on information and belief, that each of the individual board members personally and directly participated, not just in adopting the policy prior to the outset of the 2022 school year, but additionally in ratifying that policy

[00:33:20] Speaker 02:
after they were provided with notice not just of JS and the Stepfamilies' mistreatment and complaints, but provided notice at the September 6 board meeting by a group of concerned parents who came there both to protest the policy and to particularly shed light and raise concerns about the way that McLean was targeting JS with gender animus.

[00:33:44] Speaker 02:
Does that answer your Honor's question?

[00:33:46] Speaker 01:
I think so.

[00:33:46] Speaker 01:
I mean, as Judge Matheson said, we have to go back and study this very closely.

[00:33:51] Speaker 01:
But I was just trying to make sure I understood whether you were relying on the board members' legal status in your allegations to establish supervisory liability, or you're also doing the personal board members.

[00:34:04] Speaker 02:
Yeah, so it's not a respondeo superior theory.

[00:34:07] Speaker 02:
We allege they personally and directly involve themselves in the adoption, approval, and ratification of the policy itself.

[00:34:15] Speaker 02:
And that they also demonstrated what the case law tends to refer to as deliberate indifference toward complaints and notice of JS's mistreatment by McLean in the classroom.

[00:34:29] Speaker 02:
I think.

[00:34:30] Speaker 05:
Can I ask you?

[00:34:30] Speaker 05:
That's actually a good segue to this question.

[00:34:35] Speaker 05:
The defendants point to paragraph 51 of the amended complaint

[00:34:43] Speaker 05:
And there, the allegation, among other things, says that the JS didn't really understand some of the terminology that Mr. McClain was using.

[00:34:56] Speaker 05:
And so they think that that helps them in their position.

[00:35:01] Speaker 05:
But in response to that, if you could, well, respond to that, but also if we have to,

[00:35:09] Speaker 05:
address that in clearly established law terms, what's your position?

[00:35:17] Speaker 02:
Yeah, so this is obviously a novel argument.

[00:35:20] Speaker 02:
I think it's one that is out of step with equal protection analysis in general.

[00:35:25] Speaker 02:
There's certainly in the Title VII and to the extent that the Section 1983 jurisprudence is borrowed from Title VII, there are elemental requirements for a sexual harassment-based equal protection claim.

[00:35:38] Speaker 02:
Those are, of course, that there is discriminatory harassment.

[00:35:41] Speaker 02:
The second, and I think this is where the appellants are hanging their hat on the issue that Judge Matheson refers to,

[00:35:46] Speaker 02:
is that that conduct is unwelcome, and the third that is that it creates a pervasive and severe environment, hostile to education.

[00:35:52] Speaker 02:
As I understand it, the appellants don't even challenge the first or third of those prongs.

[00:35:57] Speaker 02:
They only challenge whether the conduct was unwelcome, and the basis of that is that JS did not immediately understand the meaning of certain epithets and slurs that McLean used to belittle him in front of his classmates.

[00:36:11] Speaker 02:
I think that it would be a particularly

[00:36:15] Speaker 02:
peculiar interpretation of equal protection under the clearly established prong if the state actor was able to essentially insulate himself by using more syllables than his 11-year-old victim.

[00:36:30] Speaker 02:
And I think the unwelcome analysis in the Title VII context is entirely different.

[00:36:36] Speaker 02:
It's a question of whether or not the victim of sexual harassment is even aware of discriminatory remarks that were made in most instances outside of his or her presence.

[00:36:45] Speaker 02:
Here, there can be no doubt, and I appreciate that amount of time.

[00:36:49] Speaker 02:
I'd love to briefly conclude that remark.

[00:36:51] Speaker 02:
Here, there can be no doubt that the harassment of JS was unwelcome.

[00:36:55] Speaker 02:
He broke down in tears repeatedly in front of his classmates.

[00:36:58] Speaker 02:
He and other parents notified the steps of their concerns.

[00:37:05] Speaker 02:
And just quickly, and I want to be very brief, I appreciate this.

[00:37:09] Speaker 02:
In Doe v. Hutchinson and in so many other cases which clearly establish the basis of plaintiff's claims here, the court recognizes that even facially gender-neutral harassment, especially when combined in the context of other gender-specific harassment, can be the kind of stuff that creates a hostile environment.

[00:37:30] Speaker 02:
So in general,

[00:37:33] Speaker 02:
Qualified immunity doctrine exists to protect errors in judgment by good faith state actors.

[00:37:39] Speaker 02:
What we're alleging here is that these actors did or should have known that segregating classrooms, harassing students is wrong.

[00:37:48] Speaker 02:
It's constitutionally impermissible.

[00:37:50] Speaker 02:
So we'd ask the court.

[00:37:51] Speaker 05:
Let me ask you on the substantive due process claim against Mr. McClain.

[00:37:57] Speaker 05:
How can you rely on the abate decision

[00:38:02] Speaker 05:
for clearly established law when the court in that case ultimately didn't find a constitutional violation.

[00:38:08] Speaker 05:
Isn't our circuit law such that in that circumstance the case can't be relied upon for clearly established law?

[00:38:17] Speaker 02:
And so again, I think the most honest answer to your honor's question is that the debate is probably not sufficient to establish clearly established law on the substantive due process claim.

[00:38:27] Speaker 02:
I think much like Judge Matheson himself sort of intimated earlier, probably the fastest horse on our substantive due process claim is going to be that the conduct which we allege, which in its totality, and noting that almost every single

[00:38:46] Speaker 02:
case that disposes of a substantive due process claim on the basis of qualified immunity does so on the fully developed factual record at the summary judgment posture.

[00:38:58] Speaker 02:
Totality of the allegations on the face of the second amendment complaint involve JS's relative immaturity, his very young age, him being entrusted to the care, supervision, and instruction of an adult male who, on the face of our allegations,

[00:39:16] Speaker 02:
motivated by subjective animus, one might say hate, one might say bigotry, intentionally and deliberately targeted him and bullied him at a period of his life that he himself, as the appellant's defense itself illustrates, at a point in his life that he himself, his sexuality, his gender identity is so nascent and underdeveloped

[00:39:42] Speaker 02:
that he has a difficult time even apprehending why an adult would both assign to him these sorts of epithets and also encourage his classmates to ridicule him along second thoughts.

[00:39:51] Speaker 05:
Well, you've got to account for a substantive due process alleged against the school district and McLean.

[00:40:01] Speaker 05:
And of course, we're not talking about the school district at this point because we're unqualified immunity, correct?

[00:40:08] Speaker 05:
And then count five, you've got substantive due process against the board members, Lockhart and Anderson.

[00:40:15] Speaker 05:
Would you agree that the claim against Lockhart, Anderson, the board members is different, really different in kind from the claim against Mr. McClain?

[00:40:30] Speaker 02:
And do I understand, Your Honor, correctly that we're talking specifically about the substantive due process?

[00:40:35] Speaker 05:
Yes, yes, substantive due process.

[00:40:37] Speaker 02:
Absolutely.

[00:40:38] Speaker 02:
Those are different in nature.

[00:40:40] Speaker 05:
Well, you're talking about fatality of circumstances and so forth, and I'm thinking, well, wait a minute.

[00:40:46] Speaker 02:
That concerns only McLean.

[00:40:47] Speaker 05:
We have to take each defendant on.

[00:40:50] Speaker 02:
Concerns only McLean.

[00:40:51] Speaker 02:
And in fact, and I would hate to misstate the record on this point, I don't believe that the substantive due process claims against the other appellants survived the motion to dismiss the district court.

[00:41:01] Speaker 05:
Oh, OK.

[00:41:01] Speaker 05:
You're right.

[00:41:01] Speaker 05:
You're right.

[00:41:02] Speaker 02:
I believe it is only against Mr. McLean.

[00:41:03] Speaker 05:
So this is the only substantive due process we're dealing with now.

[00:41:06] Speaker 02:
On this appeal, substantive due process concerns only Mr. McClain.

[00:41:12] Speaker 05:
Thank you for correcting me on that.

[00:41:14] Speaker 02:
My pleasure.

[00:41:15] Speaker 02:
And if thus the Court has additional questions, we would just urge that it affirm the decision below.

[00:41:19] Speaker 02:
Thank you, counsel.

[00:41:27] Speaker 05:
I think we're going to call it a day.

[00:41:30] Speaker 05:
We've given both of you a little extra time, and we appreciate the argument.

[00:41:34] Speaker 05:
There's a lot to digest here.

[00:41:37] Speaker 05:
Thank you again.

[00:41:37] Speaker 05:
The case will be submitted.