sample thank you for being here today and entertaining this argument during this difficult time i know it's not easy for everyone but may i please the court i am ray napoli on behalf of the plan federal department of education office of civil rights recently if you guidelines conflicting with their analysis of tort liability under title nine the guidelines advocated of the adoption of the title seven where a teacher has aided in carrying out the sexual harassment of students by his or her position of authority with the institution ever suspected whether the school district officials had any knowledge of the harassment in general the we have explained recipients of title nine funds are balanced by their greenman with the federal government the government can add strings to the title nine funds as they disperse them but they cannot modif past agreements with recipients are unilaterally issuing guidelines through the department of education as far as this case is concerned the proposed guidelines do not apply we make no comment on modify the past agreements between the federal government and those school districts for its acceptance of federal funds however in our case as would independent school district if title nine funds and continued to accept adult funds long after the enactment of one thousand nine hundred and ninety six guidelines which added strength with regard to the school districts liability based on their acceptance of title nine federal funds fact the standards for liability for a fabulous road are our roads h and get gas or should not apply but rather the civil rights guidelines which apply title seven positions of employment where they can be in close proximity to children we know that sexual predators are in our schools and unless you're a village vigilant our children will be abused actual knowledge and deliberate indifferen standard of guest star and wrote it all vote satisfied here has encouraged said exactly what the dissent and gets directs recognized school official sticking their heads in the sand allowing continue abuse of our most vulnerable student citizens our students to avoid liability the office of civil rights guideline states the purpose of the got guidance is to inform educational institutions that receipt that to the federal finance minister is vince regarding the standards that the o c r follows and that the institution should follow when investigating allegations of title nine have been violated because of sexual harassment of a student by an employee consistent with the supreme court's decision in franklin holding that a student may sue district court for damages based on sexual harassment by a teacher o c r has applied title nine to prohibit sexual harassment of students by school employees the standards and the guidance reflect o c r as long as the nationwide practice reflect well established legal principles developed under hold the title mine was modeled after title sex of the civil rights act of nine hundred and sixty four which prohibited race discrimination in programs receiving federal funds both statutes condition federal funds on the recipients promise not to discriminate in what amounts essentially to a contract between the government and the rest of the recipient title nine contractual nature has implications for the  available remedies when congress condition the award or federal funds under its spending power the court closely examines the priority of private actions holding recipients liable in damages for the l violating those conditions are central to concern in regards to in this regard is with ensuring that the receiving entity of the federal funds has notice that it will be would be liable for abuse of power both by rivera and officer representatives it would also be liable for what they should have known early on and their failure to take immediate remedial action court can entertain the entertain the argument in the end in their discretion and interest it justice even if the guidelines did not apply and and they should the school districts are responsible in damages for sexual harassment or jane doe under that discrimination was intentional on behalf of the district to be awarded damages for the school's breach of agreement with the federal government as district can only act by its employees a case of the cases have held that damage remedies will not lie under title ny unless an official who had at a minimum had the authority to act and address the alleged discrimination and to institute corrective merits of measures on the recipients the half and had actual knowledge of the discrimination in the recipients program and response with the liberal indifference which makes it intentional merely being able to report discrimination to another higher up in the chain is not enough to be an appropriate person to receive the information they must have the authority to stop it officer hernandez so be held as an appropriate person under title nine abuse because he was invested by the school boards with the duty to supervise rivera and the power to take action that would ended the abuse and he failed to do s powers privileges or immunities of peace officers of a should not become involved in matters concerning minor student discipline whenever possible arrest without a warrant of persons who committed a felony rose it states we do not which to restrict that's like ability of our analysis by keying liability to certain job titles within the school system different school districts may have signed different duties to the if position or even reject traditional hierarch restructures all together we hold that the school district can be liable for teacher student sexual harassment under title nice only if the school of satchels who had circumscribe those school employees in the chain of command whom the school board had appointed to monitor the conduct of the other employees and as such distinguished from reporting to others remedy the wrongdoing themselves at the same time to locate the acts of the subordinates to the board at a point where the board liability and practical controls are sufficiently close to reflected to the test intentional discrimination  that i asked the officer is are taught that they are acting on behalf of the board of trustees similarly prince principal rodriguez face for the following in his deposition and we asked the school district to admit that edward police department a special officer hand and then does have the authority and or a mandate to enter instances of sexual abuse between teacher and student should he have become aware of it and i believe earlier you told you agreed with me that in fact absolutely had the authority to end a sexual abuse if he observed it on the job right answer yes here the board has made a deliberate decision for officer couldn't and has to have the official power to act on behalf of the fords and such discrimination or abuse if he became aware of a sow's are does not apply here that case was with regard to actually aware of it and responded was deliberate indifference the ross and joy joy and other cases relied on by the defendants in the low court are distinguishable as they refer to  was not simply a peer a rebel us with a mere duty to report officers in turn and as lol at e e i as he was more attentive institutional and or criminal oversight any statement to the and an analysis and acted with celebrity and deference to it as they conducted no investigation and hired him contrary to the court's holding below the board itself hired and investigation was conducted are concluded has disappeared other than a written statement by a boy that was most likely generated by the school principal to put the matter to bed reinstated rebel or to continue in hiring hernandez required no investigation into his arrest for sexual assault of a minor as such monocle also has the head of human resources followed us directors and did not investigate with regard to his official oppression arrest if the school had a different callous use that requires such an event that's a geisha in to rest of sexual abuse of a minor she would have known he was found guilty by the board of police officers and fire value was not convicted he would not have been fired the school's policy only required investigation into convictions of what's there were not on the policy that all required investigation into convictions rather than arrest was the driving force behind the an adequate screening policy and improper our hiring by the board which monica lopez testified all hires were ultimately done by the board themselves constitutional rights it is the obvious consequences that a sexual predator who seek employment in the schools will be hired and sexually abuse students when the school's policy only requires instance and that the geishas convictions but not  sexual assault arrests mr lopez found the guy followed miss lopez follow the guidelines and policies in their herat hiring with hernandez set up by the board which caused her to recommend the hiring to the board who ultimately hire him creates st of all i want to thank the panel for the opportunity to be here present argument on behalf of the edgewood independent school district as the panel is aware the this court has have the opportunity in many instances to look at situations that are very egregious and that none of us would wish to see happen but in the context of a title nine case the court has been quite diligent in making sure that the funding  punished unless there are instances of intentional discrimination title nine of course is spinning cause legislation the right to the private right of action under title nine circumstances but if the court looks at this case and looks at the president decided in brief the numerous cases dealing with todd on line violations that have been heard by the th circuit you recognize that there are not instances where the conning recipient has been intentionally discriminate discriminatory with respect to its handling of anything the st thing to take note of with respect to this him solace arcade's a which echoes the reasoning indicating that when we perform the title nine of malice of this we do not look to the knowledge of the wrong  clearly we would not have expected principal alka seltzer in the salazar case to record his wrongdoing likewise we would not have expected for officer hernando's to report the and only continued that after mr after he allegedly learned the misconduct himself the court has been careful to analyze particularly in the rose h case what exactly constitutes an appropriate person under todd on line for purposes of reporting the court has been diligent in making sure that it does not and in analyzing the case and rose age does a fine job of setting that out it suggests that the person who could constitute an appropriate person is a person who has the authority to end the abuse on behalf of the school district and it makes reference to such factors as does the person have the authority to hire fire to conduct evaluations clearly if one were to look at the chain of command in this particular instance officer hernando's had no employment authority over mr rubio whatsoever that authority belonged to the principal principals radius only responsibility to make a report when he observes this type of behavior but every other school district employee practically that would observe the same behavior is similarly required to do so under the really to choice no differently than those other people if we can change the analysis on the title mind to making funding recipient responsible anytime that a person who has a responsibility to make a report fails to do so we greatly expand and trying quickly practically create strict liability with respect to issues of online the court has previously recognized that the vast majority of employees of the school district will be excluded from appropriate persons with respect to todd on line reporting and accordingly we appropriate person the court decides there in two rows and analyzes it under those factors and i believe that the court got that correct the next thing i'd like to address is the issue e rest should serve as a basis for pot on the line liability that argument is clearly way it is very obvious within coyness pleading that the hiring of nonetheless i would like to address the arrest st of all the course of where there was this was an approximately thirty year old arrest that would have been reflected by the background of criminal background check that was conducted by edgewood independent school district plaintiff has suggested to you that there was basically a lackadaisical screening of the candidates for application but the stringent requirements of those of that application are set forth and brief including the fact that the officer or not and as was required to  t his fingerprints and also content to a criminal background check the criminal background check would have reflected an arrest for a class a misdemeanor charge  again with a thirty year old arrest not likely to raise the suspicions of core and require much further entry with respect to that particular entry b the record reflects at this point that unlike what is quoted in plainest brief plaintiff indicates that officer hernando's had been convicted of rape that is far from the truth that this would have constituted sexual contact with a child younger than seventeen and officer hung and as was acquitted of that conduct it hardly one of those that a thirty year old arrest from incarnate word was interviewed about his performance it gave him glowing reviews about his well of knowledge and experience and made no reference to any type of problems the problems that are  student who was found in mr were was a homosexual student would refer to the court that there is no record no appearance in the record that the student and look at the record clearly that was st time i heard that this morning but i've looked at the record clearly and no indication that this or homosexual that is an interesting argument under title nine because the aged and inappropriate behavior towards a homosexual male student and also engaged in this behavior toward a male student in this situation which presumably could raise look at that investigation bureau is that there was absolutely nothing indicative and the two thousand and fourteen investigation with respect to these males be on monday  january th two thousand and fourteen he was mr obeah was placed on leave so that they could conduct an investigation he was directed to stay away from school cooperate and not to communicate with the personnel about the investigation except for responding to of the head allowed a student at his residence and he secured a witness statement from the male student in question i'll refer the court to record on appeal thirty six minute five the male kids had suffered have suffered from bipolar disorder that threatened to hurt him to the point that he had previously had to plow the record against her it provided her with emails that he received from her and there was an indication you'll see in the students statement that nothing in appropriate had occurred he was returned to duty accordingly what the court must conclude is that there was no actual knowledge of sexual abuse in this situation with mr of the there the only actual knowledge of the occurred was after anonymous tip was made to was immediately likewise suspended also referred and both of them of course were incarcerated we asked the court to look at its standing precedent in the battled nine has been interpreted as a contract between the government and the receiving districts and based on that since it's silent as to damages if they breach their agreement to not discriminate the court has imposed a liability only if they find the discrimination an intentional however that changes if that there has been clear as training is attached to that that you might should argue that you might do that argument you just did you make this argument in the district court i did not make this our demand in the district course of the district court but implicitly it was there because implicitly rely heavily on rows h and birds are which talk about liability and and specifically this case that it's a contract so they have to find intentional acts but our case is different so you can entertain the argument based on that you can also entertain the argument on and on to interest  in your discretion some of the other points that have to do is just not true it's just not true that this police officer mr hernandez was not an appropriate person although they talk about and or mandate to it and instances of sexual abuse between the teacher and the students mr hernandez to himself that he was taught that he was acting on behalf of