forced removal from the board of trustees following his complaint that drake had committed numerous violations of title nine and eighty a when investigating and adjudicating a complaint made against his son  be deemed true an inference is resolved in my client's favor the case presents three primary issues initially the district court found that membership on the board of trustees did not constitute an educational activity origin and did not confer an educational benefit and therefore mr rossley did not have standing to bring a title nine retaliation claim the district court further found that rossley had not sufficiently raised an issue related to pretext to support his eighty a retaliation claim and had not sufficiently demonstrated the existence of a contract between the parties to support his breach of contract claim we submit that the findings in the holdings of the lower court were erroneous and this case should be and they should be overturned in this case remanded i shall now take did the court make findings because obviously you can't make also determines that the correspondence at issue meaning the correspondence containing the complaint that mr rossley made were not correspondence containing complaints but were simply communications advocating for the for a tangent the outcome of his son's disciplinary proceedings it order to do that the court the only conceivable way the court could do that would be to dismiss record evidence deposition testimony from board and drake leadership members but they knew and acknowledge and understood that those communications were not solely communications to change the outcome of mr rossley case they were communications raising violations of federal law the court would either have to you disregard the contradicting evidence well or consider the contradicting evidence and determine what the whether it was relevant or credible which is not for the court to do  record is supported by his conclusion i would argue your honor that it's not because that would not have been the only reasonable inference to draw right so what you're saying is that that these are these are issues that were t relied upon the determination by drake business justification proffered by drake at mr rossley had an incurable conflict of interest and that some background as i believe it is relevant here that conflict of interest was seemingly that mr rossley son had contemplated a notified rick of potential litigation and mr rossley would have been placed in a position where he would kind of see each side's hand as an acting member of the board he would  be privy to conversations with drake regarding the litigation presumably and as his father as his son's father he would be privy to litigation strategy for his son the court found that mr awfully did not raise a question of we respectfully submit that the record does show that there was the potential for pretext that is it is necessary to note that mr rossi's burden was not to disprove the alleged justification for his removal from the board it was only to raise a question as to whether his complaints were a likely motivation for the board's act of removing him and that standard comes from lawyers v dean out of the th circuit  have found that mr ross with complaints were unlikely factor likely motivating factor in his removal mr awfully was removed from the board in july of two thousand and sixteen the alleged exact conflict of interest was possible he was told it was not important it was not of interest so that at that time it only became a problem in april of two thousand and sixteen when mr astley sent the in e mail complaining that trai through its process had violated title nine and violated that at that point and only at that point did drake step in to take immediate action not to resolve a potential conflict of interest but to tell mr rossley and to tell but amongst the board leadership and the university leadership meaning the president of the university so we would submit that that timeline the fact that it only became an issue after he complained that issue of standing found by the court the lower court found that the membership on the board of trustees was not something that conferred any educational benefit and was not an education program or activity it must mean tain or hold itself out as educational and be for the purpose of facilitating the earning of a degree or diploma here the record is clear that a put the board of trustees solely to operate maintain and regulate drake university and uncontested educational institution in doing so it is responsible for the employment of trick staff for the admissions of strake students for the trustees themselves determine at the end of each academic year what students are graduating if they've met the criteria and they actually hand and confer diplomas to the students themselves this is just as a volunteer  i would argue not your honor though he is a volunteer as found by the court previously he still has obligations as a volunteer which goes i believe to our breach of contract claim  volunteered and he has entered to serve as a board of trustees he still has to abide by the bylaws abide by his responsibilities as set out in the bylaws abide by every single drake policy including including the not retaliation policy adric which specifically states on its face that it applies to trustees so to say that because he is a volunteer he just does not have standing it doesn't negate the fact that he is a member of the regulating body of a university to find as the district court would be to essentially limit i don't know in retaliation protections to just students and employees who are actively engaged in the educational programs on a personal level which has been rejected by at least one court the middle district court of pennsylvania as being contrary to the purpose and clear language of title nine and also allow universit controlling members of their entity for doing essentially blowing the whistle when the university's engaged in unlawful conduct and which would set a very very dangerous precedent may please the court i'm francis haas and i am counsel for drake university and its board of trustees and i will start where this eventually started with the eighty eight dollars retaliation claim  my client believe that the district court's decision was correct and should be affirmed one important item to note in regard to questions about  issues and the findings of fact is that mr rossley conceded that his advocacy for his his son was indeed a conflict there's no question there was a conflict here and the testimony from  the board members was that this conflict was a problem and he was removed because of that conflict i think the question the question that the district court addressed was whether mr  generated an issue of act about whether there was retaliation by the retaliation motivated his removal from the board as opposed to his advocacy for his son and  evidence of pretext it's a bit confusing one argument is that drake university should have acted sooner and didn't or that drake university acted too quickly in response to his son's advocacy the question of temporal proximity which is what that issue raises isn't enough on its own to generate evidence of retaliatory pre s there needs to be more and the plaintiffs have simply did not come forward with that in this case  the other evidence that the plaintiff had marshaled in support of the argument that retaliation existed that fails for for similar reasons  suggestion was that the board could have taken different steps to address the conflict which is certainly true however the board simply exercised its business judgment it tried to work things out with m and those efforts didn't pan out and the board took steps to remove him at once it became clear that mr rossley was unwilling to leave on his own and whether the board could have moved faster really isn't relevant because it's a business judgment that the board exercise  the board being a separate entity from from drake university which is that an important point because the board itself does not receive federal funding the board itself is exempt  and so that's important because mr rossley contends that he was denied the benefit of being on the board being a member of the board that is not an education program or activity and it's clear the statute is clear to have a remedy under title nine you must be deprived from or excluded from participation in or subject to discrimination under any education program or activity receiving federal financial assistance the board goes right into educational institutions as it does i think a one way to this legislative intent was quoted in the bell case before the supreme court the sponsor of the bill testified that the legislation the title nine legislation address quote three basically different types of discrimination here we are dealing with discrimination in admission to an institution discrimination of available services or studies within an institution one students are  and discrimination in employment within an institution as a faculty member or otherwise and mr rossley wasn't admitted as a student he was not an employee he was not seeking access to educational studies not seeking access to educational programs in light of that statutory intent and the regulations that were promulgated after that which provide not an exhaustive but about a pretty clear set of examples of what educational activity is mr rossley simply haven't pled that he participated or was denied the benefit of an education program or activity the art certainly engaged in education excuse me engaged in programs or activities but they were not education programs or activities as well and by the statute is that really true i mean if you look at it they president of the board of peers on the diploma which seems to be kind of intimately tied with the sort of educational aspect of drake university although there is a separate legal entity that's receiving funds and and they're arguing that that distinction still receives funds is not significant for the board members that the that the board members much more can being an employee of the university than they are being an independent actor for a separate agency so that's the argument why they're wrong well they're wrong because the statute requires that the education program or activity i circuit you know i discussed and education program that was available to a prison and determined that part of what the prison was doing the vocational program wasn't an education program but the a separate program and i don't remember the name of it but had educational components to it was and we would argue that that is helpful for understanding why the board's decisions about setting policy wasn't isn't the same thing as mr rossley participating or attempting to participate in an education program or activity another another way to think about it is what is the injury under a title nine claim in the title nine context in injury is the deprivation of access to the educational opportunities or benefits provided by the school mr rossley has not played that he was denied educational opportunities or benefits had he applied and been rejected from school or you know asked to leave a class that he wasn't rolled in and made those allegations in the complaint we would not be able to make the argument that we're making his membership on the board simply doesn't doesn't meet the statutory criteria and unless the court has other questions i will see the rest of my time and we would ask the court to affirm the district court's rulings with no further questions thank you very much  you have about three minutes may please the court i just want to respond to some points raised by mr haas and her opposition with respect to the standing issue and going back to your honor's question about the board and drake being two separate entities i do believe that it is important to note that the lower court had already found and this part of the decision is not up for appeal by either party that drake university could be held liable removal of mr ross lee as a board member on the board of trustees but a jury could find that drinks through its president and its president's actions could be held liable together with the board in to what to the actions that were taken against mr rossley with respect to the temporal proximity argument that mr haas raised the issue wasn't necessarily that we're arguing action should have been taken should have been taken later it goes to what a jury can find the motivation for the action would be if the actual motivation was and the only motivation was to remove mr rossley from the board because a conflict of interest that conflict was there from february of two thousand and sixteen for five months before he was actually removed the only impetus for them to take any action to alleviate this conflict happened that day within hours of him raising a complaint that drake had violated title nine and the a b a within hours the board leadership and the drake president conferred amongst each other center responsive emailed to all the recipients of that complaint saying not to discuss the issues that had been raised days later mr rossley was confronted in person to stop discussing issues that he raised in hi correspondence that is the impetus for the board's action the argument advanced is that tempo proximity is not enough oh and you know we've kind of said but we've kind of not  actually plus right correct your honor is not merely that he made a complaint and then three months later he was removed from the board in between that time and again only after he raised his complaints he was physically  confronted he was confronted in emails he was made an offer as miss ha's termed it to work it out with the board that offer was one which was apologized around as my time is out may to continue to work on the board and when pressed for a reason why more options weren't weren't explored the testimony was well there was no other ability to do any other options under the bylaws despite the fact that their option was not under the bylaws this is more than just he made a complaint and then he was removed there were a series of steps which are outlined in detail in our briefing between that time which makes us more than just an