[00:00:00] Speaker 00: Morning is Wilson versus Stoltenberg, docket 25-31-39. [00:00:05] Speaker 04: Counsel, please proceed when you're ready. [00:00:08] Speaker 04: Good afternoon, your honors, and may it please the court. [00:00:10] Speaker 04: My name is Alex Gilmore. [00:00:12] Speaker 04: I represent the defendants in this appeal. [00:00:14] Speaker 04: This is an interlocutory appeal of the district court's denial on a motion to dismiss of defendant's entitlement to qualified immunity on plaintiff's equal protection claim. [00:00:25] Speaker 04: The first amended complaint with the facts at issue of this case, or not at issue, but the facts of the case are plaintiff alleges that the individual defendants were deliberately indifferent to student on student racial harassment or bullying at a school. [00:00:40] Speaker 04: The district court held that this circuit has clearly established that deliberate indifference to student on student racial harassment violates the Constitution. [00:00:51] Speaker 04: It has not. [00:00:52] Speaker 04: This is a qualified immunity case. [00:00:54] Speaker 04: I know you've heard several of those this morning, but I think it's important to kind of put it in context, right? [00:00:59] Speaker 04: So there's kind of two prongs to the qualified immunity analysis. [00:01:03] Speaker 04: And did the plaintiff plausibly allege a constitutional violation? [00:01:08] Speaker 04: And if so, was the right clearly established? [00:01:11] Speaker 04: This appeal focuses on the second prong. [00:01:14] Speaker 03: So why focusing on the second prong? [00:01:18] Speaker 03: Do you think a reasonable official [00:01:21] Speaker 03: Could read Ryan and morale together the cases that the district court relied on and conclude they could stand by while a student is being racially harassed by their peers mean we're talking about clearly established laws about notice sure so help me understand how with those precedents. [00:01:40] Speaker 03: there would be a question about whether the law is clearly established. [00:01:43] Speaker 04: Sure. [00:01:43] Speaker 04: I think the primary case at issue is Morrell. [00:01:47] Speaker 04: Ryan just stands for the general proposition that racial slurs can constitute racial discrimination under the Equal Protection Clause. [00:01:57] Speaker 04: It's not a nuanced question, right? [00:01:59] Speaker 04: That's a clearly established principle. [00:02:01] Speaker 04: The question here is whether or not Morrell [00:02:03] Speaker 04: which is a sex-based case, can extend to other protected classes. [00:02:06] Speaker 04: And it is defendant's position that it cannot. [00:02:09] Speaker 04: And if we look at Morrell, I think there's a reason why. [00:02:12] Speaker 02: Well, if you look at Morrell, the holding is not limited to sexual harassment. [00:02:18] Speaker 02: I found that quite interesting. [00:02:20] Speaker 02: The holding is supervisory municipal employees may be held liable under the 14th Amendment for deliberate indifference to the discriminatory conduct of third [00:02:32] Speaker 02: parties. [00:02:33] Speaker 02: It doesn't limit it to sexual harassment. [00:02:36] Speaker 02: And we know, as Judge Rossman has just pointed out, we know that that discriminatory conduct under the 14th Amendment includes racial harassment. [00:02:48] Speaker 02: Why isn't that enough? [00:02:49] Speaker 04: Sure. [00:02:50] Speaker 04: I quibble a little bit on whether or not that's the holding of Morrell. [00:02:53] Speaker 02: I think if you look in the paragraph directly above it... They certainly didn't limit, they did not limit their holding to [00:03:00] Speaker 02: This only applies to sexual harassment. [00:03:02] Speaker 04: They make very broad statements about... Your Honor, if I may, they make one broad statement in an entire opinion. [00:03:09] Speaker 04: The paragraph directly above that, the quote is, it's been clearly established since 1992 that superior's knowing acquiescence in sexual harassment violates the Constitution. [00:03:22] Speaker 04: In response to the appellate's argument that this is a different case, clearly established wasn't here because there wasn't factual symmetry. [00:03:32] Speaker 04: So the court's responding to an argument made that we've never applied this in a student on student superior context. [00:03:41] Speaker 04: And the court says, no, no, no. [00:03:43] Speaker 04: It's been clearly established. [00:03:44] Speaker 04: And that's the quote that you're reading. [00:03:46] Speaker 04: And then you read the next sentence. [00:03:47] Speaker 04: which dictates what that case is actually about, and it's about the sexual assault and harassment of students in that case. [00:03:55] Speaker 04: All the cases cited in Morrell are sex-based cases. [00:03:58] Speaker 04: There's not a single discussion in Morrell about any other protected class, right? [00:04:04] Speaker 02: And if we look at- Going back to Judge Rossman's question, do you really think if a school authority is aware of severe [00:04:14] Speaker 02: racial harassment of a, in this case, a grade school child for part of it, do you think that they do not have notice that they cannot stand by and let that continue? [00:04:28] Speaker 04: I think the question is narrow. [00:04:30] Speaker 04: I think the question for qualified immunity purposes is whether morale extends to the conduct alleged. [00:04:35] Speaker 02: The question for immunity purposes is whether every reasonable person in this position would know that they can't stand by. [00:04:45] Speaker 04: I don't think there's a 10th Circuit or Supreme Court case that says that. [00:04:48] Speaker 03: But what I'm struggling with is essentially accepting your argument. [00:04:53] Speaker 03: You're telling us that it's clearly established that your employees would know it's unlawful to acquiesce to sexual harassment, but not racial harassment. [00:05:03] Speaker 03: And that just doesn't make any logical sense to me. [00:05:05] Speaker 03: And that's why when I asked you about reading Morrell and Ryan together, you agree. [00:05:09] Speaker 03: Ryan says what it says, the 14th Amendment. [00:05:11] Speaker 03: says what it says in this context of sex. [00:05:15] Speaker 03: And so reading these together and emphasizing the language that Judge McHugh pointed out, I just don't understand how you can have both be true, that you can ignore one but not the other. [00:05:24] Speaker 04: I think the case law is just developed differently in this case, in this circuit right, wrong, or indifferent. [00:05:29] Speaker 04: Racial cases have always inconsistently required intentional disparate treatment by a state actor. [00:05:35] Speaker 04: That's what the law has been since the 70s or 60s. [00:05:37] Speaker 04: That law has never been developed further beyond that point, whereas sex harassment in the circuit has. [00:05:43] Speaker 04: Since 1992, it's been clearly established that sexual harassment [00:05:47] Speaker 04: is treated differently. [00:05:48] Speaker 04: There's a different legal theory available for that protected class. [00:05:52] Speaker 04: Now, I'm not here to tell you why the 10th Circuit hasn't expanded that to other protected classes. [00:05:57] Speaker 04: There's just no cases. [00:05:58] Speaker 04: If you look at both parties' briefings, there's not a single case of racial harassment in this circuit or otherwise that has found deliberate indifference in the context that we're talking about. [00:06:09] Speaker 03: Hasn't every circuit that's considered this issue held in favor of the appellee here in terms of the [00:06:18] Speaker 03: recognized precisely this kind of a claim. [00:06:21] Speaker 04: I'll concede that the Second Circuit and the Fourth Circuit have recognized that. [00:06:24] Speaker 04: I think the Sixth Circuit has said that it can be evident, right, and the same with the Seventh Circuit and Ninth Circuit. [00:06:31] Speaker 04: I don't disagree. [00:06:32] Speaker 04: I just would point out that there's not a robust consensus amongst the other circuits that would put us on notice. [00:06:38] Speaker 03: What constitutes a robust consensus? [00:06:40] Speaker 04: More than two circuits out of 11 would be a robust consensus. [00:06:45] Speaker 03: But are we looking at circuits that have passed on the question? [00:06:48] Speaker 03: We're not just looking at it abstractly, right? [00:06:49] Speaker 03: We're looking at circuits that have passed on the question. [00:06:51] Speaker 03: Do they agree? [00:06:52] Speaker 04: Sure, I think that's a fair point, and I understand where you're going with it, right? [00:06:56] Speaker 04: But I think if we look at what the cases are actually saying is that they do it a little bit differently. [00:07:02] Speaker 04: I think the second circuit says this can be used as evidence of intent, whereas the fourth circuit says it's motivation-based. [00:07:09] Speaker 04: The sixth and seventh circuits say, well, this could be circumstantial evidence. [00:07:13] Speaker 04: There's no robust consensus on this clear legal theory, right? [00:07:16] Speaker 04: The circuit's treated differently. [00:07:17] Speaker 04: And I think that's what distinguishes a robust consensus of the cases that have analyzed it versus every single case that has faced this question has answered it the same way and they have it. [00:07:28] Speaker 00: Face this question meaning our setting where you have a precedent with the sexual harassment but not the racial and said one way or the other whether it's clearly established for racial as well. [00:07:39] Speaker 00: Can you repeat your question? [00:07:40] Speaker 00: I think I missed it. [00:07:41] Speaker 00: Well, when you say in this context, our context is we have an existing precedent for the sexual harassment. [00:07:49] Speaker 00: And now we're wondering, does that encompass the racial as well? [00:07:54] Speaker 00: And the Fourth Circuit, is it the Fourth Circuit that was in exactly the same position and answered that question? [00:08:00] Speaker 00: Yes. [00:08:01] Speaker 00: The Fourth Circuit has, yes. [00:08:02] Speaker 00: And so? [00:08:03] Speaker 04: Well, to back up, I don't believe the Fourth Circuit has been faced with a sexual harassment and then applied it to a racial. [00:08:09] Speaker 04: The Fourth Circuit has recognized a racial peer harassment deliberate indifference claim under the Fourteenth Amendment. [00:08:16] Speaker 00: But in our setting, was the same argument made in the Fourth Circuit that you're making now and the Fourth Circuit went ahead and said no? [00:08:24] Speaker 00: The sexual harassment case is broad enough to capture the racialism. [00:08:28] Speaker 04: I'm not aware of that, Your Honor. [00:08:30] Speaker 04: I could be misreading the Fourth Circuit's case, but I don't think the argument's the same here. [00:08:34] Speaker 04: I think we're looking at a single case in Morrell that was decided in the late 90s. [00:08:38] Speaker 04: There's been no development of Morrell in this case. [00:08:40] Speaker 04: And getting back to Judge McHugh's question is, [00:08:45] Speaker 04: wasn't clearly established or not, and it wasn't limited, but it hasn't been expanded either. [00:08:49] Speaker 04: So to me, that leaves the door open. [00:08:52] Speaker 04: That is a question. [00:08:53] Speaker 02: Do you realistically think that a school official could be aware of sexual harassment and understand they need to intervene and be aware of racial harassment and say, well, I don't have to intervene here? [00:09:08] Speaker 02: I mean that seems ridiculous. [00:09:10] Speaker 04: Sure, and I'm not taking a ridiculous position, Your Honor. [00:09:12] Speaker 04: I think for qualified immunity purposes, the question is whether or not it was clearly established. [00:09:17] Speaker 04: We're looking at a general principle in one case on one specific issue and trying to apply it to a completely different context. [00:09:23] Speaker 04: a different protected class. [00:09:25] Speaker 04: And I don't think qualified immunity permits us to do that. [00:09:28] Speaker 04: I'm not saying that this circuit can't adopt that theory. [00:09:31] Speaker 04: We just can't retroactively impose liability on the defendants for something that hasn't been clearly established. [00:09:37] Speaker 04: I think it's a very limited question before the court. [00:09:41] Speaker 02: Before you run out of time, I'd like to look at you make an argument that the complaint doesn't sufficiently allege individual participation of the school board members. [00:09:52] Speaker 02: And I'm trying to understand your argument. [00:09:55] Speaker 02: Is your argument that they had to say, you know, school board member Smith got noticed and didn't do anything, school board member Jones got, and go through each one? [00:10:07] Speaker 02: or instead of saying all the school board members got notice and did nothing. [00:10:12] Speaker 02: Is that your argument? [00:10:13] Speaker 04: No, I think the argument is what notice did they get of? [00:10:17] Speaker 04: If you look at the complaint itself, there's one paragraph in the entire complaint about the school board members. [00:10:24] Speaker 04: It's that plaintiff sent an email to the entire district of a complaint. [00:10:29] Speaker 04: It doesn't provide any instances of conduct, what occurred, who was involved, whether or not it was motivated by racial animus. [00:10:35] Speaker 02: Isn't that a summary judgment issue? [00:10:37] Speaker 02: I mean, here we're looking at a 12b6, and they have alleged that they gave notice of the harassment, and don't we take all reasonable inferences in front of the plaintiff at this level? [00:10:51] Speaker 04: It's a plausibility standard under Twombly Iqbal. [00:10:54] Speaker 04: And saying that plaintiff made a complaint, it doesn't say what the complaint was. [00:10:58] Speaker 04: Well, it says, and you're looking at one paragraph, but... Because that's the only paragraph alleged against these defendants. [00:11:03] Speaker 02: Well, they say district employees. [00:11:06] Speaker 02: And in the beginning when they identified the board members, they say they are district employees, right? [00:11:13] Speaker 02: So isn't it fair to read any allegations about the district employees as including board members? [00:11:23] Speaker 04: I haven't read that particular portion of the mini complaint, your honor, but no, I don't think it's fair. [00:11:27] Speaker 04: I think this court has cautioned plaintiffs of collective allegations against defendants. [00:11:33] Speaker 04: I think I've stated some cases in our brief that you have to say what defendants did to whom when that's absent for with respect to the board members. [00:11:42] Speaker 02: But you don't have to. [00:11:43] Speaker 02: I don't think our case law says that if everybody did the same thing, you can't say we sent notice to these five people. [00:11:52] Speaker 02: and they did nothing, that that's somehow infirm because you didn't say we sent it to number one and he did nothing, we sent it to number two and she did nothing, we sent it to number three. [00:12:02] Speaker 02: I don't think that's, I think you're reading our cases differently than what they say. [00:12:06] Speaker 04: I think you're maybe misinterpreting the argument, Your Honor. [00:12:09] Speaker 04: I haven't seen any allegations against the school district, the school board members other than receipt of one complaint. [00:12:15] Speaker 04: Whereas all the other allegations are focused on the other individual defendants, where they got repeated notice and they failed to respond. [00:12:23] Speaker 04: There's nothing like that with respect to the individual school board members. [00:12:27] Speaker 02: So let me just clarify. [00:12:28] Speaker 02: So is your argument that they didn't get multiple notice, which would have been required, or that the notice that they got was not detailed enough? [00:12:37] Speaker 04: Or both? [00:12:38] Speaker 04: Both. [00:12:38] Speaker 04: Yeah. [00:12:38] Speaker 04: Under a plausibility standard, I don't think you can say that these defendants were deliberately indifferent. [00:12:43] Speaker 04: Because what were they deliberately indifferent to? [00:12:45] Speaker 04: It's an open question because the first amended complaint doesn't make that allegation. [00:12:49] Speaker 04: Any other questions? [00:12:51] Speaker 04: I'll reserve the remaining two minutes for rebuttal. [00:12:53] Speaker 04: Thank you. [00:12:57] Speaker 01: Good afternoon, Your Honors, and may it please the Court. [00:12:59] Speaker 01: My name is Connor Mitchell, along with my co-counsel, Ted Lichtaig. [00:13:02] Speaker 01: We represent the plaintiff's appellee in this case, Dorlea Wilson. [00:13:07] Speaker 01: We've been over the facts of the case a bit, but just to reiterate, Miss Wilson, the district court found on at least nine occasions reported to the individual defendants in this case that her son, who was black, was being severely and pervasively racially bullied by his peers. [00:13:24] Speaker 01: They did nothing. [00:13:25] Speaker 02: Let me point me to the paragraphs in the complaint where you allege that board members received notice of the harassment and did nothing. [00:13:36] Speaker 01: Your Honor, I don't have the amended complaint in front of me for paragraph numbers. [00:13:40] Speaker 01: I would be happy to send a letter to the court, though, with the specifics. [00:13:44] Speaker 02: Well, I would find that helpful if the chair would. [00:13:49] Speaker 00: For sure. [00:13:49] Speaker 00: Yes, please. [00:13:50] Speaker 02: Because, I mean, it is a fairly bare-bones complaint [00:13:56] Speaker 01: And I think part of that is because due to the procedural posture of the case, we have not been able to conduct discovery yet. [00:14:02] Speaker 02: Well, you've been able to talk to your client. [00:14:04] Speaker 01: Right. [00:14:05] Speaker 01: And we pled what our client knew, that she had emailed all of the school board members, a handful responded, and then did nothing from there. [00:14:13] Speaker 02: Well, I see paragraph 22, which says that she made a documented complaint in an email sent to all members of the district, the Ottawa School District, [00:14:26] Speaker 02: and to the superintendent, it will be very helpful for you to identify the actual notice to the defendant's school board members. [00:14:37] Speaker 01: Well, Your Honor, I think it would be that paragraph if that's the number. [00:14:41] Speaker 02: That's it? [00:14:43] Speaker 02: Okay. [00:14:44] Speaker 00: Does it have to say school board members? [00:14:45] Speaker 00: Are we supposed to just assume that district means school board members? [00:14:50] Speaker 00: It's not that hard. [00:14:51] Speaker 01: I would agree, Your Honor, and the complaint itself details that the defendants are school board members. [00:14:58] Speaker 01: And by saying that we notified the district, that should imply the school board members. [00:15:04] Speaker 01: And the superintendent is part of the school board as well. [00:15:07] Speaker 00: How about things like the complaint that is referenced in the complaint that your client sent to various people? [00:15:13] Speaker 00: No details. [00:15:17] Speaker 00: That's in your control. [00:15:21] Speaker 00: Well, do you know what I'm talking about? [00:15:23] Speaker 00: Some of the allegations here are that the mother had sent a complaint. [00:15:27] Speaker 00: He mailed a complaint. [00:15:30] Speaker 00: And I'm not talking about a litigation complaint. [00:15:32] Speaker 00: I'm talking about a, I'm upset because, and you better do something about it, Noel. [00:15:37] Speaker 00: But there's nothing in there about what was in the complaint. [00:15:41] Speaker 00: It just says a complaint. [00:15:43] Speaker 00: Is that too bare-boned? [00:15:45] Speaker 00: Don't we need everything you can give us before we make a major step like this? [00:15:53] Speaker 00: Is there more you could give us, in other words, or did it have to be this bare bone? [00:15:59] Speaker 01: I think it partially had to be this bare bones. [00:16:02] Speaker 01: I mean, we perhaps could have delineated more that she complained specifically about the racial harassment that her son was facing. [00:16:10] Speaker 01: But, I mean, she was stuck with no one doing anything for years and years. [00:16:16] Speaker 02: But she knows what she told them. [00:16:18] Speaker 02: I mean, I don't see how [00:16:20] Speaker 02: You would be forced to have a bare-bones complaint about what your client reported about the harassment. [00:16:31] Speaker 01: I mean, Your Honor, I think we could certainly amend the complaint at some point. [00:16:35] Speaker 02: However, I... Have you requested to amend the complaint? [00:16:38] Speaker 01: Not since the first one. [00:16:39] Speaker 01: I would still posit that this meets the standards of notice pleading. [00:16:48] Speaker 03: Is there any reason why we shouldn't, if we have to make all reasonable inferences in your favor, right? [00:16:57] Speaker 03: Is there any reason we shouldn't be reading paragraph 22, which is the paragraph that Judge McHugh just read, that says members of the Ottawa School District to mean something other than board members? [00:17:09] Speaker 03: What's missing there is the word board. [00:17:11] Speaker 03: But when you say members, is the reasonable inference that it's board members? [00:17:15] Speaker 01: Yes. [00:17:23] Speaker 00: Well, it's not the only place. [00:17:25] Speaker 00: Paragraph 35 and December 22, plaintiff made her most recent complaint of racial bullying to the district. [00:17:33] Speaker 00: And I feel like I'm hanging. [00:17:36] Speaker 00: Number one, I don't know what the complaint was and matters. [00:17:40] Speaker 00: And number two, to the district. [00:17:44] Speaker 00: That could be anyone and everyone. [00:17:47] Speaker 01: And I think the reasonable inference there, Your Honor, is that it was to those who control the district, which would be the school board and the superintendent. [00:17:54] Speaker 00: Okay. [00:17:55] Speaker 00: But we typically don't do reasonable inferences just to sustain a claim, especially when it's very easy to simply say it. [00:18:08] Speaker 02: Turning to the question of clearly established. [00:18:12] Speaker 02: I mean, they are correct that we do not have any law that has imposed an obligation to intervene in the racial harassment context. [00:18:30] Speaker 02: Is that required in this case for us to meet the clearly established prong required to [00:18:40] Speaker 02: defeat a claim of qualified immunity. [00:18:43] Speaker 01: I don't think so, Your Honor, and I agreed as I was sitting there listening with a lot of the questions that you asked my opposing counsel. [00:18:50] Speaker 02: But we do that. [00:18:55] Speaker 02: Now I'm asking you. [00:18:58] Speaker 02: We don't have any law that says this, and the Supreme Court says we got to have law. [00:19:05] Speaker 02: Our case law says Supreme Court or 10th Circuit law. [00:19:09] Speaker 01: Right, and I think morale is all you need to get there. [00:19:12] Speaker 01: Because it holds that supervisory municipal employees could be held liable for deliberate indifference just to discriminatory conduct of third parties. [00:19:20] Speaker 01: That's not limited to sex or to race. [00:19:23] Speaker 01: It can be both. [00:19:25] Speaker 00: So what is the limit? [00:19:27] Speaker 00: Race, sex, and what else? [00:19:30] Speaker 00: I think it would be protected classes. [00:19:36] Speaker 03: So you're not arguing that you need Ryan? [00:19:40] Speaker 01: Ryan certainly helps for the proposition that the district court cited it for, that racial slurs are an equal protection violation. [00:19:48] Speaker 01: It's almost like Morrell is the roadmap and Ryan is the specifics. [00:19:52] Speaker 01: And those two together mean... Well, exactly. [00:19:54] Speaker 03: I'm sorry to interrupt you, but I think that's what I was looking for that I could not find, and maybe you can point us to it, which is how to find clearly established law based on this kind of [00:20:06] Speaker 03: synthesis, right, where we're not looking at consensus, we're looking at synthesis. [00:20:10] Speaker 03: If we take Morrell and add to that Ryan, that equals clearly established. [00:20:15] Speaker 03: Do you have a case where anywhere that either explains, authorizes, endorses that kind of synthesis in finding the law clearly established? [00:20:27] Speaker 01: Well, I can take that a couple different ways, Your Honor. [00:20:29] Speaker 01: First, what I would say is that the second court in Gantt, which is one of the cases that the district court cited, [00:20:36] Speaker 01: as recognizing this concept of deliberate indifference, they explicitly cite tumor L as its basis for accepting deliberate indifference. [00:20:47] Speaker 01: And they did not afford qualified immunity to the individual defendants in Gantt, even though it was the first time that they had considered it. [00:20:58] Speaker 01: So that's one case. [00:21:00] Speaker 01: And then in terms of cases which, [00:21:04] Speaker 01: note the similarities between race and sex and how closely courts view those two. [00:21:11] Speaker 01: Cannon v. University of Chicago and Bryant v. Independent School District of Garvin County, Oklahoma in this court in 2003. [00:21:20] Speaker 01: It's not precisely on point because it's focused on Title VI and Title IX, but it shows that [00:21:27] Speaker 01: You know, at worst, courts view race and sex parallel, and at best, they're inextricably intertwined. [00:21:36] Speaker 00: Has the clearly established requirement tightened substantially since 1999? [00:21:43] Speaker 00: And Merle, we're now talking about all but the plainly incompetent or lawbreakers, and every reasonable person would have to understand. [00:21:58] Speaker 00: Would every reasonable person understand that a sex discrimination student on student covers a racial one, even if we think it does? [00:22:12] Speaker 01: Perhaps not, Your Honor, but honestly, that's a problem with qualified immunity. [00:22:16] Speaker 01: As a whole. [00:22:19] Speaker 02: Well, we can't really fix that. [00:22:22] Speaker 01: Sure. [00:22:26] Speaker 01: To answer your question, Judge Phillips, I think in the Fourth Amendment context, it certainly has gotten tighter. [00:22:32] Speaker 01: But this is not a Fourth Amendment case. [00:22:35] Speaker 01: And every case that my opponents cite for the preposition that this law was not clearly established with particularity is a Fourth Amendment case. [00:22:46] Speaker 01: And this court has held as recently as 2020 that specificity of your prior law with particularized facts is the most salient in Fourth Amendment cases. [00:22:59] Speaker 00: So is there a case that says Mullen X doesn't apply outside the Fourth Amendment, the qualified immunity standard? [00:23:08] Speaker 00: Not that I'm aware of. [00:23:27] Speaker 01: Unless the court has any other questions, I will rest on the briefs. [00:23:32] Speaker 01: Very well, thank you. [00:23:33] Speaker 01: Thank you. [00:23:38] Speaker 00: Council, can I just ask you a question? [00:23:39] Speaker 00: Sure. [00:23:40] Speaker 00: If all of this, the same conduct, had been on the bus at the basketball games, so forth, so on, air pulling, the slurs, but the slurs had been to a little girl instead, and so we're talking gender, not race, would you agree that that would be covered? [00:23:58] Speaker 04: Under Morrell, yes, I would. [00:23:59] Speaker 04: OK. [00:23:59] Speaker 04: Right. [00:24:00] Speaker 04: So I think the court is questioning whether or not Morrell applies. [00:24:04] Speaker 04: And I think that's what the briefs are all about. [00:24:06] Speaker 04: Right. [00:24:07] Speaker 04: I've had some discussions with Judge McHugh on whether or not the holding is the quoted paragraph in Morrell. [00:24:14] Speaker 04: But I think Morrell, what's important to underscore is that that's also a qualified immunity case. [00:24:19] Speaker 04: Morrell was tasked with knowing whether or not the law was clearly established at the time of the alleged conduct. [00:24:24] Speaker 04: And what did they do? [00:24:25] Speaker 04: They looked to existing precedent. [00:24:27] Speaker 04: And what precedent did they have? [00:24:29] Speaker 04: Woodward. [00:24:29] Speaker 04: Woodward was another sexual harassment assault case. [00:24:32] Speaker 02: But they looked at employment cases. [00:24:35] Speaker 02: And they extrapolated from an entirely different area and said it's clearly established. [00:24:40] Speaker 04: Because the underlying rule that was clearly established was that a superior's knowing acquiescence in sexual harassment violates equal protection. [00:24:48] Speaker 04: That was based on Woodward, which was an employment setting, and they applied it to a different superior type setting, which was a student on student with a teacher and principal. [00:24:56] Speaker 03: So the protected class there is fixed, but the statutory or constitutional was the difference, right? [00:25:03] Speaker 04: Can you say that one more time? [00:25:04] Speaker 03: The protected class there, it was the same, but one was a statutory context and one was a constitutional context, right? [00:25:13] Speaker 03: That the cases that they were drawing from in Morrell. [00:25:15] Speaker 04: Yeah, there were employment cases and student on student with a teacher case. [00:25:18] Speaker 04: They were still government officials over a superior, right? [00:25:22] Speaker 04: But the sex base was fixed, and that's what all the cases on Morrell talk about. [00:25:27] Speaker 04: And now what plaintiff's position is, is that Morrell applies to all protected classes, and therefore qualified immunity applies to no one, based on what? [00:25:36] Speaker 04: On one sentence and an entire opinion that is clearly about the development of sexual harassment in the 10th Circuit. [00:25:44] Speaker 03: Could you speak to the question I asked your opposing counsel about synthesizing, so taking Morrell plus Ryan? [00:25:50] Speaker 03: I mean, are you aware of anything in how [00:25:53] Speaker 03: either the Supreme Court or our circuit understands how to actually work the clearly established law prong. [00:26:00] Speaker 03: that would suggest that's an inappropriate way to proceed through the analysis? [00:26:03] Speaker 04: I can't point you to a particular case, but what I can tell you is that if the rule is recognized, it can be applied in different factual settings, which is exactly what Morrell did. [00:26:15] Speaker 04: They synthesized the existing precedent and applied it to a new factual setting. [00:26:19] Speaker 04: To me, this is a different situation because it's a different protected class with different legal development. [00:26:25] Speaker 04: I see that I'm out of time, so thank you for your time. [00:26:28] Speaker 00: Thank you, Council. [00:26:29] Speaker 00: Thank you for your arguments. [00:26:30] Speaker 00: The case submitted, and Council are excused.