[00:00:08] Speaker 02:
We'll now take our third case this morning, number 23-2064, Demas v. Pecos, Independent School District.

[00:00:31] Speaker 02:
Mr. Garcia?

[00:00:33] Speaker 04:
May it please the court.

[00:00:36] Speaker 04:
Good morning, Your Honors.

[00:00:36] Speaker 04:
My name is Derek Garcia.

[00:00:38] Speaker 04:
I'm a staff attorney with New Mexico Legal Aid's Safe to View Project.

[00:00:42] Speaker 04:
My pronouns are he, him, and his.

[00:00:44] Speaker 04:
I'm joined by my colleague, Michelle Garcia.

[00:00:47] Speaker 04:
And we proudly represent your appellant this morning, DeAnza Angel Dimas, a former high school student and basketball player.

[00:00:56] Speaker 04:
Imagine a world in which state officials were free to question you about the most fundamental and intimate details of your private lives,

[00:01:06] Speaker 04:
including whom you choose to love or show romantic interest in.

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Imagine a world in which those same officials were able to premise your equal participation in school, the workplace, even participation serving on this honorable court or similar courts upon you successfully answering their questions.

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And you would have no way of ever knowing if you pleased them with your answers.

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You might be surprised to learn that for lesbian, gay, bisexual, transgender, intersex,

[00:01:36] Speaker 04:
The LGBTQ plus community doesn't require any imagination.

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It's the world in which we live every day.

[00:01:43] Speaker 04:
First, if the court will permit me, before I stand open for questions on this case, some brief historic perspective on why the right to privacy in sexual orientation matters.

[00:01:58] Speaker 04:
Nothing less than the right to privacy in one's sexual orientation is at stake in the case before you today.

[00:02:06] Speaker 04:
In October 1998, in a town not too far north of here, named Laramie, Wyoming, and part of this distinguished tent circuit, a young man named Matthew Shepard was strung up on a fence and left to die alone, overlooking the blue lights of Laramie after his right to privacy was so thoroughly invaded by his kidnappers.

[00:02:29] Speaker 04:
Flash forward to 2003, five years later,

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when the last vestiges of criminal laws prohibiting same-sex intimacy were abolished in Lawrence v. Texas, cited in the briefs.

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It took until 2009, 11 years after Matthew Shepard's death, for the Matthew Shepard and James Berg Hate Crimes Act to finally become law.

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And another reason why cases such as these before you today affecting minority rights

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must find protection under the Constitution and must remain apolitical and more sacred than near politics as usual.

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In the year 2015, the Supreme Court recognized for the first time in history same-sex marriage and the right to build a life in dignity and equality with one's same-gender romantic partner.

[00:03:21] Speaker ?:
In the year 2020, the Supreme Court said for the first time in history that LGBTQ citizens

[00:03:27] Speaker 04:
Americans have a right to participate in the workplace equally and on equal terms under the Civil Rights Act of 1964 in the Bostock Line of Cases cited in the breach.

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But they stopped short of saying that LGBTQ Americans have a substantive due process right to privacy in disclosing their sexual orientations under the 14th Amendment, which brings us to the case today.

[00:03:51] Speaker 01:
So let me, I mean are you, I'm afraid you're going to use all your time on that and I've

[00:03:57] Speaker 01:
Two questions, one of which is I've got a concern about whether we have jurisdiction at all because the district court never ruled on count two as to PISC.

[00:04:10] Speaker 01:
And so we've got an outstanding claim.

[00:04:12] Speaker 01:
And my second question is all this stuff on the right of privacy, the district court denied your motion to amend that count and you amended it anyway and the district court

[00:04:25] Speaker 01:
dismissed it under Rule 15.

[00:04:28] Speaker 01:
Why isn't that correct?

[00:04:31] Speaker 04:
I'll take the first question or the second question first.

[00:04:35] Speaker 04:
As we mentioned in our reply, we filed our first amended complaint at a time that was expected.

[00:04:42] Speaker 04:
We amended and consolidated our common law tort claim for invasion of privacy in the New Mexico law into one under

[00:04:52] Speaker 04:
a 14th amendment claim, you know, violation of the right to privacy.

[00:04:55] Speaker 01:
But you didn't have leave to amend and you were beyond the point where you could amend without leave.

[00:05:01] Speaker 04:
I would suggest that the court is silent in its particular language on whether or not we are granted leave to amend.

[00:05:09] Speaker 02:
No, he said you can amend that claim.

[00:05:12] Speaker 02:
He dismissed the particular claim without prejudice.

[00:05:18] Speaker 02:
It seems to me that's pretty clear.

[00:05:19] Speaker 02:
You could amend that particular claim.

[00:05:21] Speaker 02:
It wasn't open season to make any new claims you wanted.

[00:05:25] Speaker 04:
We believe that the invasion of privacy as a common law tort claim that didn't withstand the sovereign immunity test is substantively similar to a 14th Amendment claim invasion of rights of privacy under the 14th Amendment.

[00:05:41] Speaker 04:
Well, if you think so, why don't you ask permission?

[00:05:45] Speaker 04:
to do so would require that at a time that we were, in our opinion, granted leave to amend the initial complaint on that claim.

[00:05:55] Speaker 02:
Federal courts are not like New Mexico state courts where it's open season to do what you want, just so you are prepared when you come to federal court again.

[00:06:07] Speaker 04:
Yes, I would agree with that, Your Honor, wholeheartedly.

[00:06:12] Speaker 04:
Rule 15 motion specifically allowing us to, after our invasion of privacy tort claim had been dismissed, clarifying that we were allowed to amend and make a direct constitutional claim in addition to our 42 USC 1983 claim, you know, claiming the denial of equal protection, as well as our direct statute on point under Title IX,

[00:06:34] Speaker 04:
you know, which is well-established law, Title IX of the federal amendments in 1972, that basically allows us to withstand this qualified immunity challenge to our, to our, you know, the civil law in this case, so.

[00:06:51] Speaker 02:
What about the jurisdictional issue raised by Judge McHugh?

[00:06:55] Speaker 01:
Yeah, and let me refresh your recollection.

[00:06:58] Speaker 01:
It's count two.

[00:07:00] Speaker 01:
And the court never ruled, as far as I can tell, on the claim, the defendant PISD with respect to count two.

[00:07:11] Speaker 01:
So we've got an outstanding claim that was never ruled on in the district court, which means we don't have a final judgment.

[00:07:21] Speaker 04:
I believe we do have a final judgment for the purposes of dismissal of, and I'm not recalling it,

[00:07:27] Speaker 04:
appendices precisely on count two if it's the first amendment complaint or because of the multiple memorandum opinions dismissing our claims.

[00:07:36] Speaker 04:
I believe as to the entity itself, whether or not the claims were dismissed against them and also based upon the district court's entering of a final judgment document appearing in the appendices, I believe this court does have jurisdiction, but I would have to

[00:07:55] Speaker 04:
to precisely answer your question, Your Honor, but it's a very good question.

[00:08:02] Speaker 04:
We urge this Court not only to declare that the law is well established under Title IX federal statute directly on point, but also to clarify that under the 14th Amendment and the Lawrence Bostock Eisenstadt ALA line of cases, that these are all sufficiently analogous

[00:08:19] Speaker 04:
to clarify that Americans have a well-established substantive due process right to privacy, intersexual orientations, and their true gender identities.

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And that is no business of the state, school officials, or anybody else, especially without parental consent in this case.

[00:08:34] Speaker 03:
Well, Counselor, how do you respond on the merits to the argument that the unwritten school policy here applied equally to everyone and had the same impact upon everyone, regardless of

[00:08:47] Speaker 03:
gender or sexuality, no one, if they were a couple, was allowed to sit together.

[00:08:51] Speaker 03:
So how do you respond to that argument?

[00:08:54] Speaker 04:
We respond to that saying that's precisely why we needed to receive some amount of discovery in this case.

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We were denied all discovery requests.

[00:09:02] Speaker 04:
We served interrogatories, request for production, asking the school district to demonstrate that this policy, which they claim is spatially neutral, had been applied ever before to a non-LGBTQ couple.

[00:09:14] Speaker 04:
Presumably, if that evidence existed, it would have been attached under numerous motions for summary judgment in the case.

[00:09:21] Speaker 01:
Well, that's your burden, isn't it?

[00:09:23] Speaker 01:
I mean, you seem to be reversing the burden here.

[00:09:25] Speaker 01:
I mean, if you're making this claim, you're the one who has to show a disparate impact.

[00:09:31] Speaker 04:
It is our burden at summary judgment stage.

[00:09:34] Speaker 04:
That is correct, Your Honor.

[00:09:36] Speaker 04:
But at the same time, based on the denial of our three Rule 56D

[00:09:42] Speaker 04:
motions for additional discovery in order to comprehensively show and conclusively show disparate impact.

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I think it is a denial of fundamental process, procedural process not to be afforded that information.

[00:09:56] Speaker 03:
So you can see it at this point, you don't have evidence of disparate impact or discriminatory intent.

[00:10:03] Speaker 04:
Other than our plaintiff's own experience in this case and that of her same sex girlfriend,

[00:10:11] Speaker 04:
We were never, we never received, there's nothing in the record showing conclusively that this policy has ever been applied to anyone else besides LGBTQ couples.

[00:10:24] Speaker 04:
But we don't have anything conclusively demonstrating that idea.

[00:10:27] Speaker 01:
Well, you don't even have evidence that it's other gay or lesbian couples, you have one incident, your clients.

[00:10:38] Speaker 04:
That's correct, Your Honor.

[00:10:40] Speaker 04:
One of the facts of this case is our clients and her same-sex girlfriend that were invidiously discriminated against.

[00:10:49] Speaker 04:
There's nothing in the record establishing that this case, excuse me, this policy, this unwritten policy has ever been applied to a non-LGBTQ couple in any way.

[00:10:59] Speaker 04:
And when we served in her auditory request for production, directly asking the school district to demonstrate that it had been ever applied prior to

[00:11:08] Speaker 04:
Our plan is being targeted prior to them being monitored for six months and 11 days after this policy was enforced, seemingly for the first time.

[00:11:20] Speaker 04:
We would deny all our discovery requests.

[00:11:22] Speaker 01:
Turning again to Title IX, what activities was your client prevented from participating in?

[00:11:30] Speaker 04:
First, in response to that, the statute on Title IX includes the word, or discrimination does not necessarily require discrimination in fact.

[00:11:43] Speaker 01:
But we were... So are you conceding that she was not denied access to any government funded program?

[00:11:52] Speaker 04:
We are not conceding that she was denied access because we

[00:11:57] Speaker 04:
I think it's safe at the judgment stage, especially with the facts construed in the plaintiff's favor, to assume that this policy would have prohibited her from attending the basketball tournament if she didn't concede and find a different seat.

[00:12:14] Speaker 04:
I think it's required under the sovereign judgment standard to construe those facts in our favor as non-movies.

[00:12:23] Speaker 01:
reasonable inferences from the facts alleged, but we can't make up facts.

[00:12:29] Speaker 04:
Right.

[00:12:30] Speaker 04:
I agree with that, Your Honor.

[00:12:33] Speaker 04:
We served an interrogatory directly to Coach Flores asking whether or not he would allow DeAnza Dinas to attend the basketball tournament if she didn't find a different seat than her same-sex girlfriend.

[00:12:50] Speaker 04:
But the court ordered that he should not respond to that question.

[00:12:55] Speaker 03:
Under oath.

[00:12:57] Speaker 03:
Can you also please clarify what claims you're appealing?

[00:13:00] Speaker 03:
Because your remedy is essentially reverse all district court decisions and remand it back.

[00:13:06] Speaker 03:
But several of the counts, particularly those in the original complaint, you don't address at all in your opening brief.

[00:13:13] Speaker 03:
So why aren't those waived?

[00:13:16] Speaker 04:
We're asking for a reversal of the dismissal on our Title IX claim.

[00:13:21] Speaker 04:
We're asking for a dismissal on our 42 USC 1983 claim, generally equal protection.

[00:13:26] Speaker 04:
We're asking for a dismissal of our substantive due process claim that was denied on the right to privacy, essentially.

[00:13:35] Speaker 04:
And we're asking for a reversal of the decision not to grant us any discovery prior to dismissing our complaint and denial of our two formal

[00:13:44] Speaker 04:
Rule 56D motions, as well as the original motion which was, excuse me, a response which was made as part of that response.

[00:13:55] Speaker 04:
And I'd like to reserve for rebuttal time to go to some persuasive authority after that.

[00:14:03] Speaker 02:
You'll be allowed to rebut what the opposing council says.

[00:14:06] Speaker 02:
If you have arguments you need to make, you need to do that in your opening so you don't sandbag the appellee.

[00:14:15] Speaker 02:
So if you say you have persuasive authority on this, I think you should address it now rather than.

[00:14:20] Speaker 02:
Thank you, Your Honor.

[00:14:23] Speaker 04:
I'd like to just touch briefly on the Sterling v. Burrow and Minersville case that appears at 232 F3B 190.

[00:14:32] Speaker 04:
It's addressed by the district court in the district court's opinion at the appendix at 625.

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It's a case from the year 2000.

[00:14:41] Speaker 04:
It's a Third Circuit case in which the court held that there is a clear substantive due process right to privacy and sexual orientation.

[00:14:49] Speaker 04:
The case involved an 18-year-old male caught drinking underage with a 17-year-old male in a car, and the arresting officer's mere threat to tell the 18-year-old's families about his true sexual orientation was enough to cause him to end his own life.

[00:15:02] Speaker 04:
The state agent's mere threat to disclose sexual orientation resulted in markedly sweetened suicide.

[00:15:08] Speaker 04:
The Third Circuit declined to extend qualified immunity to the arresting officer since it had no issue concluding that the well-established right to privacy includes compelled disclosure of sexual orientation, as it does here.

[00:15:19] Speaker 01:
There's a big difference.

[00:15:22] Speaker 01:
One is a state officer saying, I'm going to disclose.

[00:15:28] Speaker 01:
What your client's complaining about is I have to, she has to disclose.

[00:15:33] Speaker 01:
Do you see that as a difference in terms of state action?

[00:15:37] Speaker 04:
I think the disclosure was made by the state officer in the Sterling case.

[00:15:42] Speaker 04:
It's the same as it was here, and Coach Lewis took our client, and I see my time is up if I may be permitted in answering, took our client to the gymnasium, required several other witnesses to be there, other student witnesses presumably, required these people to be present while he recorded

[00:16:03] Speaker 04:
and his interrogation in violation of the parents' right to be informed consent before questioning on these highly personal matters.

[00:16:14] Speaker 04:
So I think the two disclosures were completely outside of the control of both Marcus Wehman in the Sterling case, as well as DeAnza Demas in this case.

[00:16:28] Speaker 04:
Thank you, Counselor.

[00:16:29] Speaker 04:
You're taking six-parts.

[00:16:30] Speaker 02:
Oh, yeah, yeah, sure.

[00:16:32] Speaker 01:
I have one more question.

[00:16:33] Speaker 01:
In ruling on your privacy claims, the district court ruled that your client had not established the existence of a policy practice or custom of invasive inquiries into students' relationship statuses, sexual orientation, or gender identities.

[00:16:54] Speaker 01:
And you did not respond to that basis for the court ruling against you on that claim in your briefs.

[00:17:04] Speaker 01:
Doesn't that mean we have to affirm?

[00:17:07] Speaker 04:
I don't think it does, Your Honor, because I think we absolutely needed discovery in order to subsequently respond to those.

[00:17:14] Speaker 04:
It's a simple matter of arguing without any kind of evidence or ability to scrutinize exactly how to respond to those claims, but our hands were tied.

[00:17:25] Speaker 04:
We weren't granted any discovery prior to the qualified immunity dismissal.

[00:17:31] Speaker 01:
Thank you.

[00:17:47] Speaker 00:
Good morning, honorable judges Hartz, McHugh, and Federico.

[00:17:52] Speaker 00:
My name is Carlos Quiñones.

[00:17:53] Speaker 00:
I represent the defendants in this matter, Michael Flores, Fred Trujillo, and the Board of Education for Banco's Independent School District.

[00:18:02] Speaker 00:
I'd like to begin with the district court's rulings on 56D.

[00:18:06] Speaker 00:
Plaintiff was denied discovery because plaintiff failed to comply with the rule.

[00:18:11] Speaker 00:
She made three separate requests.

[00:18:13] Speaker 00:
The first one was within.

[00:18:14] Speaker 00:
a response to a dispositive motion that district court correctly ruled.

[00:18:19] Speaker 00:
Well, Rule 56D is an alternative to filing a response, and you await that when you file a response motion.

[00:18:26] Speaker 01:
One of the things that opposing counsel just said was that they had no opportunity to conduct any discovery before the court ruled on summary judgment.

[00:18:40] Speaker 01:
Is that accurate?

[00:18:41] Speaker 00:
Yes, Judge, and that's why we have Rule 56D.

[00:18:44] Speaker 00:
It's a method where a party can submit an affidavit by council asking what discovery is needed specifically to rebut the summary judgment motion.

[00:18:56] Speaker 00:
And 56D, I think, for practicing attorneys, there's three rules.

[00:19:00] Speaker 00:
Be very specific on what you ask for in your affidavit.

[00:19:04] Speaker 00:
Second, link what you see to what you need to contest summary judgment.

[00:19:09] Speaker 00:
And I think the most important rule, don't ask for too much.

[00:19:12] Speaker 00:
I mean, yeah, this is exactly what plaintiff and her legal counsel did.

[00:19:16] Speaker 00:
They asked for defendant's notice and written discovery.

[00:19:20] Speaker 00:
Some of this is noted in the record, his work history for 10 years, past litigation history, personal beliefs on bus separation, personal beliefs on students with LGBTQ, his sexual orientation, his interactions with LGBTQ students, and also

[00:19:39] Speaker 00:
asked for request for productions, social media, text messages, transcriptions, recordings, and then that wasn't all.

[00:19:48] Speaker 00:
Asked defendant PSD for rationale for the policy, how Florida's became aware of their policy, and all of this.

[00:19:57] Speaker 01:
Well, those last ones seem relevant.

[00:20:00] Speaker 00:
It may be, Judge, but again, Rule 56D and the case law on it in this circuit says you have to

[00:20:06] Speaker 00:
be specific, you have to link, you have to follow rule 50, 60, and I'll give you an example.

[00:20:12] Speaker 01:
Well, I mean, a lot of what's happened here is that

[00:20:16] Speaker 01:
They were not able to come forward with evidence to support their claims, and their claims got thrown out on motion for summary judgment.

[00:20:24] Speaker 01:
But they don't control the evidence.

[00:20:27] Speaker 01:
For example, on the question about Title IX, would he have refused to let her participate in the basketball game if she had refused to change seats?

[00:20:38] Speaker 01:
I mean, apparently that interrogatory was propounded but not permitted.

[00:20:44] Speaker 00:
And Judge, I think the district court said it was a plethora of discovery requests and that was the problem with plaintiff's rule 50-60 affidavit.

[00:20:52] Speaker 02:
The other thing I want to point out, very important... So, I'm understanding your position.

[00:20:59] Speaker 02:
If your 50-60 motion requests a lot of stuff, some of which might be relevant.

[00:21:07] Speaker 02:
to respond to the summary judgment motion.

[00:21:10] Speaker 02:
But if it's swamped by a lot of other stuff, then the judge can deny all discovery?

[00:21:16] Speaker 00:
I think so, Judge.

[00:21:16] Speaker 00:
And again, it's not the district court's job.

[00:21:18] Speaker 02:
Is there authority for that?

[00:21:19] Speaker 00:
I agree with that, Judge.

[00:21:21] Speaker 00:
It's not the district court's job to sift through all of these expansive, all-incumbency discovery questions and say, OK, I'm going to give you one, two, and three.

[00:21:30] Speaker 00:
That's counsel's job.

[00:21:31] Speaker 00:
And again, one point.

[00:21:32] Speaker 01:
Actually, I think it's the timing.

[00:21:34] Speaker 01:
When you have people doing a,

[00:21:36] Speaker 01:
you get in a discovery dispute with your opponent in a litigation matter, that's exactly what happens.

[00:21:44] Speaker 01:
They do a motion to compel, and you engage, and either the magistrate or the district court judge has to go request by request and say, yep, no, yep, no.

[00:21:57] Speaker 01:
I mean, that's my experience in 22 years of practice.

[00:22:01] Speaker 00:
Yes, and the motion to compel, which was never brought in this case,

[00:22:05] Speaker 00:
We would say it's distinctive from a Rule 56D request for discovery.

[00:22:11] Speaker 00:
Again, a summary judgment motion had been filed.

[00:22:14] Speaker 00:
So the remedy is go under Rule 56D.

[00:22:16] Speaker 00:
And here you have qualified immunity lurking in the shadows for defendants Flores and Trujillo.

[00:22:23] Speaker 00:
As we all know, qualified immunity is going to protect public officials and their discretionary

[00:22:28] Speaker 00:
official actions and also lift and ease some of the burdens associated with litigation, including discovery.

[00:22:38] Speaker 02:
I want to get back to the sifting, because it does seem like there's sifting here.

[00:22:43] Speaker 02:
I didn't see in the briefs any authority that the judge doesn't have to allow discovery on something that is relevant.

[00:22:55] Speaker 02:
How did the district court respond here?

[00:22:57] Speaker 02:
Did the district court say, this isn't relevant, this isn't relevant, this might be relevant, but it doesn't help with qualified immunity, so you're going to lose anyway?

[00:23:08] Speaker 02:
Did the judges say denied?

[00:23:11] Speaker 02:
Or did the judge just rule on the summary judge for motion without responding to the Rule 56?

[00:23:18] Speaker 00:
The judge analyzed it, Judge Hartz, very well.

[00:23:21] Speaker 00:
And again, she said, here are the

[00:23:23] Speaker 00:
the guidelines or the guidepost for Rule 56D, link what you're seeking specifically to what you're going to put in your response brief, and then the judge would allow it.

[00:23:36] Speaker 00:
And again, an example of this.

[00:23:37] Speaker 00:
I'm going to give you an example.

[00:23:38] Speaker 00:
What if a plaintiff had said, Judge, we wanted to oppose Mr. Fraude's very limited deposition.

[00:23:44] Speaker 00:
Here's three or four subject areas we don't want to inquire about, and we'll even limit it to four hours or less.

[00:23:51] Speaker 00:
Now, if the district court had been posed with that kind of Rule 56D affidavit, would it have been granted?

[00:23:57] Speaker 00:
I don't know.

[00:23:58] Speaker 00:
In Rule 56D, the standard is it's in the discretion of the district court on whether or not to grant it.

[00:24:05] Speaker 00:
So again, we don't think there was any abuse of discretion for this court on review in that respect.

[00:24:12] Speaker 02:
Did the district court say anything about you need to revise your motion, and then I'll consider it you didn't

[00:24:20] Speaker 02:
Do these things that are required?

[00:24:22] Speaker 02:
If you want, if you think you need some discovery before you can respond, you're going to have to do a much better job of pointing out to me why you need this.

[00:24:31] Speaker 00:
And be mindful, Judge Hartz, this Rule 5060 discovery was denied on three occasions.

[00:24:37] Speaker 00:
So maybe after the first time, why didn't plaintiffs counsel do narrowly tailored discovery requests and affidavit?

[00:24:45] Speaker 02:
What do you mean by you say it was denied on three occasions?

[00:24:47] Speaker 02:
Were there three separate Rule 5060s?

[00:24:50] Speaker 00:
The first motion was encompassed within a response brief to the motion for judgment on the pleadings under Rule 12-6, the first dispositive motion, so to speak.

[00:25:01] Speaker 00:
And the other two were made separately in lieu of responding to the two subsequent dispositive motions.

[00:25:07] Speaker 02:
So plaintiff... Dispositive motions on summary judgment or on the pleadings?

[00:25:11] Speaker 00:
The first one was on the pleadings, dispositive motions 2 and 3 were under Rule 56, summary judgment.

[00:25:20] Speaker 02:
There was one that was, so the second one was denied, and then a third was filed, and that was denied also.

[00:25:29] Speaker 00:
So plaintiff had another bond of the apple.

[00:25:31] Speaker 00:
Is my point, Judge, they had an opportunity to go back and say, OK, Judge, you're right.

[00:25:37] Speaker 00:
We just want to narrow the interior to these three or four or five themes, and that's it.

[00:25:41] Speaker 02:
So plaintiff had been given an opportunity to do it right.

[00:25:45] Speaker 00:
We believe so, Judge.

[00:25:47] Speaker 00:
And again,

[00:25:48] Speaker 00:
You have to also show in Rule 50-60 why you couldn't get what you need on your own, so to speak.

[00:25:55] Speaker 00:
Why wasn't plaintiff submit an affidavit by plaintiff on the summary judgment stage?

[00:26:01] Speaker 00:
Why not an affidavit from her mother who attended one of these meetings with school officials?

[00:26:05] Speaker 00:
Why not an affidavit from other students at Bequos High School saying, hey, we were treated differently?

[00:26:11] Speaker 00:
Why not an affidavit from some of these coaches, the softball coach and the assistant girls basketball coach?

[00:26:18] Speaker 00:
I mean, there's just a complete absence of competent evidence on the part of plaintiff in contesting the dispositive motions.

[00:26:25] Speaker 00:
Let me turn to the merits of the dispositive motions, starting with the Title IX claim.

[00:26:29] Speaker 00:
Two of the four necessary elements for Title IX are the harassment has to be severe and pervasive.

[00:26:37] Speaker 00:
Plaintiff did not meet that threshold.

[00:26:39] Speaker 00:
And also, as Judge McHugh noted, they have to show they were deprived of educational benefits or opportunities provided by the school.

[00:26:48] Speaker 00:
Now again, there's certain undisputed facts that plaintiff cannot escape, and the genuine material facts in this case were largely undisputed.

[00:26:57] Speaker 00:
First, this was a one-time incident, January 4th, 2019, and that was it.

[00:27:04] Speaker 00:
So that undercuts any, the element of being severe, severe and pervasive.

[00:27:09] Speaker 00:
And so there was only one instance where plaintiff was separated from her same-sex partner on the bus before an athletic trip.

[00:27:17] Speaker 00:
The other undisputed facts is, there's no evidence plaintiff was denied any educational benefits or opportunities.

[00:27:24] Speaker 00:
She finished a girl's basketball season.

[00:27:26] Speaker 00:
She was an 18 year old senior, participated in softball and graduated from Pankos High School in May of 2019.

[00:27:32] Speaker 00:
And then again, in her brief, and again, we're at summary judgment as this court's aware

[00:27:39] Speaker 00:
You can't rely on your general allegations for the pleadings.

[00:27:42] Speaker 00:
You have to present competent evidence of some sort.

[00:27:46] Speaker 00:
And plaintiff did not do so.

[00:27:48] Speaker 00:
So again, Title IX was, we think, undercut by not meeting these essential elements.

[00:27:55] Speaker 00:
And in the judgment of the pleadings, the individual defendants were dismissed from Title IX as is appropriate.

[00:28:01] Speaker 00:
You cannot bring a Title IX claim against individuals.

[00:28:05] Speaker 00:
The other thing is, in your question, Judge McHugh, on that jurisdiction.

[00:28:10] Speaker 00:
And maybe he could have been worded a little better in some of these memorandum opinions and orders.

[00:28:17] Speaker 00:
But I believe the district court did address, count two, the substantive due process claim, the equal protection claims.

[00:28:25] Speaker 00:
And then I was just looking at the final judgment.

[00:28:28] Speaker 01:
But not as to the institutional defendant, the school district.

[00:28:35] Speaker 00:
Yes, and then we're faced with the actual judgment that was filed a year ago today, March 20th, where the judge dismissed all claims that were brought by plaintiffs.

[00:28:45] Speaker 00:
So again, it's our view that all of the claims were disposed of by the district court and that this honorable court has jurisdiction over all the claims.

[00:28:55] Speaker 01:
The other thing I want to point out is that we just implicitly decide that the court must have intended

[00:29:04] Speaker 01:
Because the basis that it decides the claim as to the individual defendants isn't available to the school district.

[00:29:18] Speaker 01:
So we can't assume that it meant to include it in its decision on that claim.

[00:29:24] Speaker 00:
Can we?

[00:29:26] Speaker 00:
Well, I think we can.

[00:29:27] Speaker 00:
And you're right, Judge.

[00:29:29] Speaker 00:
Qualified immunity was the basis for dismissing defendants Flautus and Trujillo.

[00:29:33] Speaker 01:
So you can't, qualified immunity cannot be the basis to dismiss the school district, and the court never engaged beyond the qualified immunity analysis on that claim.

[00:29:48] Speaker 00:
Yeah, we agree, Judge.

[00:29:49] Speaker 00:
Qualified immunity doesn't apply to government agencies, but we do believe the judge did

[00:29:54] Speaker 00:
go into substantive due process and count two.

[00:29:58] Speaker 00:
She found it was denied because there was no deprivation of a protected interest and nothing that shocks the conscience.

[00:30:06] Speaker 00:
And again, there's been no evidence presented that would meet this very high standard of outrageous content.

[00:30:13] Speaker 02:
But the district court has disposed of all the claims, so you're mentioning some.

[00:30:18] Speaker 02:
Let me ask you, what should we do if there's an outstanding claim that we don't feel was addressed by the district court?

[00:30:24] Speaker 02:
What would you want to do?

[00:30:27] Speaker 00:
Again, we're hoping you don't make that determination.

[00:30:29] Speaker 00:
But if you do, I would suppose the only remaining claim would be count to against only the Board of Education.

[00:30:38] Speaker 01:
Well, we can't rule on anything if we don't have jurisdiction.

[00:30:42] Speaker 01:
Temporary limited remand to rule?

[00:30:45] Speaker 02:
We've done that before.

[00:30:48] Speaker 02:
This isn't the first case like this we've encountered.

[00:30:51] Speaker 00:
Yeah, well, we're hoping this court decides it does have jurisdiction over the entire claim.

[00:30:57] Speaker 00:
And again, we think it does, and the judgment besieged all claims as well.

[00:31:01] Speaker 02:
Well, if we disagree with you on that, is there anything we need to worry about in abating the appeal and remanding for a determination on that issue?

[00:31:14] Speaker 02:
Does that cause any problems?

[00:31:16] Speaker 02:
the practical problems that we should know about?

[00:31:20] Speaker 00:
Well, from a practical standpoint, perhaps not.

[00:31:24] Speaker 00:
And Judge Riggs would have to undertake that inquiry and perhaps address it.

[00:31:29] Speaker 00:
And we think we fully briefed it, come to as far as the claims against the school district.

[00:31:37] Speaker 00:
So we believe it certainly was fully briefed.

[00:31:39] Speaker 01:
I mean, that's not the issue.

[00:31:41] Speaker 01:
The issue is whether we have any power to decide this case at all.

[00:31:45] Speaker 01:
which we only have power to review final judgments, which requires a decision on all claims in the district court.

[00:31:54] Speaker 01:
So it's technical, but it ties our hands.

[00:31:57] Speaker 00:
No, I understand the technicality, Judge, and appreciate it.

[00:32:01] Speaker 00:
Again, I think all of us saw the judgment dismissing all claims with prejudice dated March 20th of last year.

[00:32:08] Speaker 00:
And we maybe should not have assumed

[00:32:14] Speaker 00:
All claims were decided.

[00:32:16] Speaker 00:
We think it was, again, the judge.

[00:32:20] Speaker 02:
The oversight, though, is not an uncommon one.

[00:32:23] Speaker 02:
Normally, if you dispose of the claims against the individual officials and employees, then the municipality is dismissed also.

[00:32:32] Speaker 02:
But it's often overlooked that a qualified immunity judgment in favor of the individuals does not free the municipality of liability.

[00:32:44] Speaker 02:
That's one reason why we might think that this really wasn't addressed yet by the district court.

[00:32:51] Speaker 00:
All right.

[00:32:51] Speaker 00:
Am I saying my time is up?

[00:32:52] Speaker 00:
We certainly hope this court decides otherwise.

[00:32:57] Speaker 00:
We'd like to conclude by respectfully requesting the court affirm the district court in all respects.

[00:33:03] Speaker 00:
Thank you.

[00:33:03] Speaker 00:
Thank you.

[00:33:10] Speaker 02:
No, Mr. Garcia used up all his time, but I'm going to give you a minute if you want to respond to anything.

[00:33:22] Speaker 04:
Thank you, Your Honor.

[00:33:23] Speaker 04:
Just briefly to address that we have Neonza Angel, Neonza's personal private medical records available for the court, appearing in our seal pleading at DOC 382.

[00:33:39] Speaker 04:
if I may approach when my time is expired to provide copies of these along with the Sterling case mentioned before.

[00:33:46] Speaker 01:
Are they in the record?

[00:33:48] Speaker 04:
Yes, they are.

[00:33:48] Speaker 04:
They were filed as sealed pleadings.

[00:33:51] Speaker 02:
Then we don't need to.

[00:33:52] Speaker 02:
We don't need copies.

[00:33:52] Speaker 02:
We've got it.

[00:33:53] Speaker 02:
They're not sealed from our view.

[00:33:56] Speaker 02:
Understood, Your Honor.

[00:33:58] Speaker 01:
And I assume you want to maintain the seal on those documents on appeal because they have personal

[00:34:05] Speaker 04:
Yes, by all means, Your Honor, is why we did not include them in our appendices.

[00:34:13] Speaker 02:
We would just say that... They're sealed in the district court record.

[00:34:18] Speaker 02:
They're not part of the appellate record.

[00:34:20] Speaker 02:
That's correct.

[00:34:21] Speaker 02:
They're sealed in the district court records, but not appearing in the appendices, which is why I had them imprisoned in Brooklyn today.

[00:34:28] Speaker 02:
Well, you can request that if you want.

[00:34:32] Speaker 02:
You've got a steep hill to climb to get us to

[00:34:36] Speaker 02:
you to supplement the record at this stage of the proceedings.

[00:34:39] Speaker 02:
If you're going to rely on them in your briefing or at this time, you need to let the opposing party know that that's an issue.

[00:34:47] Speaker 02:
So while your time is expired, if you want us to consider that, you should file an appropriate pleading.

[00:34:55] Speaker 02:
But don't count on our granting.

[00:35:00] Speaker 02:
Thank you.

[00:35:03] Speaker 02:
While we take a short break,

[00:35:05] Speaker 02:
Ten minutes should probably be enough.

[00:35:11] Speaker 02:
Thank you.

[00:35:11] Speaker 02:
Oh, this case is submitted.

[00:35:13] Speaker 02:
Counselor, excuse me.