it's number seven two or four five eighteen one seven one by emily colorado at all vs michigan state university board of trustees at all or argument not to exceed fifteen minutes per side please the court michael bachman from pepper hamilton on behalf of the appellant's in the case i'd like to reserve three minutes for rebuttal title nine does not contain an express cause of action for damages notwithstanding the supreme court has implied a private right about action for damages but only in very narrow circumstances and specifically only where the recipient of federal funds engages in intentional gender discrimination and that needs to be narrowly interpreted because this is spending clause litigation and the supreme court in this court have repeatedly said that in spending clause cases we have to make clear that the recipient of federal funds understood what it was that they were being held liable for so in the davis v monterey county case the supreme court implied a very narrow cause of action for peer on peer harassment and that cause of action where intentional gender discrimination is found is only where the school has actual knowledge kno is deliberately indifferent to the harassment and that deliberate indifference then subjects the student to harassment that is so severe pervasive and objectively offensive that it denies them an education benefit so when davis there was ongoing harassment over a period of many months the school had notice of the harassment but it took no meaningful action to stop the harassment and in that case the supreme court said ok that might be the equivalent of intentional gender discrimination where there's ongoing discrimination you know about it and you don't take reasonable measures to stop it and in fact in every case that this prim court that this court has it seems to me i understand the logic of your argument from the law itself it seems to me in davis the supreme court in the tenth circuit took that recent yesterday i guess or two days ago and that did the davis court expanded it  what you're talking about so even if you're right is purely a matter of law we have an obligation to follow the supreme court and the davis court in defining subject to discrimination broaden it beyond what you're arguing about to vulnerable to or liable to or whatever is the language they used so why are we bound by that and if we're bound by that isn't it broader right in your honor i think the tenth circuit misinterpreted davis and by the way i mean the facts of our case by the way are different than the tenth circuit the time because it's we did something here and what we did after we did something there was no further harassment but let's talk about the language that they rely upon from dave's ok the court was giving meaning to what the term subjects means right before that it was talking about well you have to have control over the harasser and the environment in which the rassmann occurs why do you have to have that control so you can stop it right when the court was defining subjects all it did was look to dictionary definitions and it quoted i think was random house as one nine hundred sixty six dictionary definition and when you look at the dictionary definition what does it contain and it contains synonyms so what it was doing is just giving different meanings to the term subjects and when it wrapped up its discussion of that all of those definitions included the word expose and ultimately the court said these factors combined to limit the damage and liability to circumstances where in the recipient exercise and substantial control over both the harasser and the contexts in which the known harassment occurs only then can the recipient be said to expose students to harassment and cause them to undergo it under the program so what this court was talking about is actually exposing them to harassment that a curse that's your parents argument is that you were deliberately indifferent to their complaints and as a result you exposed them to continued harassment that didn't occur your honor that never they are now but what they say is well for we can discuss gross because i think there's an argument maybe that it did occur piece of the gross in other words you were deliberately indifferent to previous all claim and in those circumstances the the defendant has to have knowledge that it's almost certain that the assault is going to occur and there's a whole different line of cases on that and bruce doesn't meet that no she didn't appeal that issue but she doesn't need it because we took action against the the respondent ms coulter's case and they plead that we didn't find that he was responsible for sexual assault so there was they haven't pled facts efficient to show th it was almost certain that that assault was going to occur so i think what they're really complaining about me i have to say it's almost certain but i still struggle i understand your argument about davis but the davis court says pacifically this uses this language why isn't that binding on us whether we agree with it or not or make them liable we're vulnerable because it is what that means your honor and in the noble court the district court took explained exactly what we're what i'm saying which is that it didn't mean recipient does not mean gauge and harassment directly it may not be liable for damages on last it's deliberate indifference subjects students to harassment and that is so what they mean by subjects too is that it must at a minimum because that seems like what you're arguing about you're saying it's limited because and what your friend is saying is mineral there's also one or well and the or broadens it i'm sorry go ahead it's synonyms your ideas two ways of describing the same thing which is subjects so someone and even if they had slightly different definitions one can call something meaning directly doing it yourself and one can also make someone more liable or vulnerable to something that happens by and i also submit your honor that the interpretation that they're asking for would basically mean that we have no choice but to expel students it's one thing to be able to if if the obligation is to stop ongoing harassment we know when that occurs right we can measure it we can say did the harassment continue or not what they're arguing instead is that we have an obligation to take away the effects of someone else's harassment to make them feel more comfortable on campus wait a minute they're saying you have an obligation to promptly investigate and hold a hearing and determine if it occurred and then take appropriate action but the but and they're saying you didn't do that that's not gender discrimination your honor davis was limited to know that i agree with that but that goes to the deliberate indifference but that's the whole point you're i mean if it's not gender discrimination that is not actionable under title mind you know it could be if you're treating if their argument i'm so there there are human is basically you're not doing anything against these men because of my gender that's not what they left at all your honor they haven't alleged that they have there's no allegation that the action that we took was because of their gender their asking the court to infer that under a deliberate but but this is hold on i'm sorry but this is a motion to dismiss state and i so they because we why don't we have to accept it is true if they allege sufficient facts underlying the legal claim they don't allege intentional gender discrimination then the form of we took action because of their gender so in the opposite types of these cases the reverse title nine cases you're out of your decision in the bomb case to plead a title and in those cases erroneous outcome claim you have to not only to show that the outcome was erroneous you have to show is motivated by gender and it's one thing as we say on average it's one thing to infer intentional gender discrimination where students are engaging in gender discrimination harassment which equals gender discrimination and you let it happen it's an entirely different thing to say that failing to remedy the effects of that is the equivalent of gender discrimination that's not what the davis court said and i think what the what the players are asking the court to do here is create an obligation and remember this is this is the only question before the court is whether there's a damage remedy the department of education can enforce this more broadly that's what gets or said there might be other causes of action the only question is whether there's a damage remedy but the question before us at least i thought is what exactly the plaintive has to lea in order to survive the motion to dismiss and that boils down to does the plaintiffs have to plead some specific act of gender discrimination after the university or whatever institution was put on notice of the prior acts of discrimination and the answer to that is yes it does because otherwise the school is not subjecting them to discrimination the school is failing to us is that the deliberate indifference caused the continuing gender discrimination however that has to be pled and so one of the things never go any farther than that in that in davis to say and here's what that means but if you look at deliberate indifference in some of those other contexts it's a memory context for example prison types  things you know you get into the objectivity the subjective components and how those operate together and there's never any discussion of what deliberate indifference really would mean in a context like the title my own case and so i'm struggling with well what are we looking at deliberate indifference to determine whether you have pled that that is what caused whatever it is that you're now complaining about and i think the answer is that the clearly and reasonable response has to cause you to be subjected to harassment because it's not a clearly unreasonable response to remedy past instances of harassment and i do think davis was a very close case and i think in this case in particular you need to read both the dissent and the majority because they were talking to each other and the dissent kept saying you're creating this very broad cause of action you're creating a cause of action to remedy gender discrimination you're going to make people have to impose particular remedial demands and the majority kept saying no we're not no we're not no we're not and i think you need to take them at their word because they're clearly here trying to create a cause of action which is very different than davis and very different in every case that this court has every case that i'm aware of at least this court is considered where you have ongoing harassment good morning your honors me please the court alexander is all going on behalf of the plaintiffs in this matter your honour's if you had told me i'd like to read just the sentence in davis that we're talking about here because it really supports my argument and that is quote the deliberate indifference must at a minimum cost and sunder go resident or make them vile liable or vulnerable to it a plain reading of this sentence resolves this issue and this is exactly what the court in farmer in the tenth circuit just came out with a couple days ago that you're her referenced this is what the corn farmer seized with the corn farmer said was quote the supreme court and davis has already answered the legal question davis thing clearly indicates the plaintiffs can say to a viable title nine claim by alleging alternatively either the kids use deliberate indifference or there are reports of rape caused pointis to undergo harassment or made them liable or vulnerable to it and his justification for that dear friend argues that those are synonyms any points to the next paragraph where he said it that only then can a recipient be said to expose its students or cause them to undergo and so what he's saying is you have to it can't be just being a liability to are vulnerable to it's you have to be exposed to continued harassment so with the court i think was concern within that next paragraph one is talking about the context of the harassment and in control over the harasser was i think actually a hypothetical would probably illuminate the help to answer that question and that is let's say you have a stranger that comes onto campus a third party stranger who comes on the campus and rapes a student and that stranger has no connection to the school has no reason to be on campus anymore and the student reports that to the school and school doesn't do anything because it can't do anything in that case there's no control over the harasser and therefore there's no additional there's no vulnerability to additional harassment so if i can get back to the former decision as justification for their holding they say we must give effect to each part of that sentence that sentence that i read earlier we much give if we must give effect to each part of that sentence and your honors did that make sense and has the district court in talk live versus regents of the university of delaware your argument is you can subject someone i'm sorry to interrupt you by the way to discrimination in three ways and that is you can basically cause them to continue to undergo discrimination you can make them liable to discrimination or you can make them vulnerable to it which liable vonna rable probably mean the same i would argue th viable and vulnerable are synonyms so what are the minimum amount of tax which you must plead in order to make someone because i think your argument hangs on vulnerable to let's use vulnerabilities here to understand makes them vulnerable to harassment is it enough to say they're still on campus and i see them every day i think that i think that would be enough if that is so then how can we say we're giving effect to the very specific statement in davis we stress that our conclusion here that recipients may be liable for their deliver deliberate indifference to known acts of peer sexual harassment does not mean that recipients can avoid liability only by purging that's not just expelling the perpetrator or the the alleged you just said seeing them as an off so you are an ass and to judge batchelder is question asking for a particular discipline as a result of simply the allegation itself well i should remember even assuming an investigation there has to be a time period in which they investigate it and i should and then my answer to say seeing them is enough if the school has not taken any measures to protect the victim's safety on campus and there are ways of doing that but aren't you saying that the victim because of her vulnerability gets to decide what those measures have to be not necessarily or she's not going to be relieved not necessarily your honor there are there are ways that schools have handled these situations for example no contact orders where a perpetrator is told you're not allowed to contact the victim so if they put it if upon an allegation they put a non no contact in while they investigate you can see there wouldn't be deliberate indifference to deliberate indifference question i think this goes more towards the vulnerability to additional no i agree but i mean it ultimately right goes to whether they're being indifferent to the vulnerability and so i agree with you that they're separate but my question is the ultimate question yeah i think it's  really a factual question as to what measures were appropriate for that particular incidence we're going to have juries deciding in each case what fact measures or what measures each university takes are appropriate i think that the deliberate indifference inquiry is a factual question you know i agree but what's the minimum standard that you have to plead you have to prepare you to vulnerability to additional arrest that's the minimum that the victim was vulnerable to additional harassment by virtue of the fact that an institution didn't take reasonable or fecht of measures to prevent ongoing harassment but date davis specifically says that there's no reason to think that the question of whether or not the measures are reasonable wouldn't be a question of law what david says is that it could be a question of law and certain circumstances that are so clear it could be decided as a matter of law it doesn't say that it's always a matter of law and i think there's authority that suggests that it's actually a question of the deliberate indifference inquiry is a question of fact that i have i share the concern that that's all right thank you for expressing which is that if these words are interpreted the way you're suggesting you're always going to get passed a motion to dismiss if you don't like what the what the punitive measures were you can say i left campus because the because what he called the stay away order wasn't strong enough for it took you too long to answer the stay away order or or the punishment wasn't strong enough or you didn't expel him or i can say i stayed on campus and i was subjected to that because i was worried about that all the time and so those are all factual issues so so facto if not technically you're always going to be able to challenge the punishment that a person is issued because you're going to say it because you can always i'm asking can't you always turn that into a question of room continuing vulnerability you either leave campus in which case that was the harm you felt you had to leave or you're on campus and you have an argument at least which has to go past stating a claim to challenge whatever whatever the response was that's a concern so that through a broad interpretation of this vulnerable language you turn the title nine cause of action into a review of the punishment that the person that the alleged person was engaged so i disagree with you on that last part of your question in that is you're not reviewing the punishment that they alleged perpetrator receives for example after there's been an investigation in a disciplinary hearing and then you have punishment i agree with you that if it's and can't come into court and say you know what that punishment was inappropriate davis clearly prohibits that yes but in this language my question is assuming it prohibits that how do you square that prohibition with an argument that is in every conceivable case going to admit of an allegation to that effect that withstands motion to dismiss well i don't think the size one because i can imagine you could always say you didn't come back hard enough and i feel and i'm you know i get hives because of that which maybe they do but that would mean that you could always come in the alleged but when i think the question is focused on is is the the institution conduct in preventing a vulnerability to additional harassment so if for example with how much you restrict the perpetrator i'm sorry q if you don't this are equating that question of how much the perpetrator is or the measures that are put in place to prevent vulnerability i mention for example a no contact order it could be moving people housing situation so they're not in the same dorm it could be changing academic schedule so they don't you know have the sort of classes what if that doesn't sway the feelings of vulnerability well i think this court actually in vance discussed advance talked about this school has an obligation to prevent ongoing harassment and not only that if it learns that it's measures to prevent ongoing harassment were inadequate it needs to take a new they're subject to a lawsuit no matter what what right well i think a victim has a right to bring the bring no i understand that but i'm saying that will withstand a motion to dismiss so they take certain measures they put in place certain things and then no contact and they she is walking on campus and every day because they're going to classes they cross she could soon would stand a motion to dismiss because she feels and i know it's not your language so i'm not vulnerable to harassment is that fair or unfair i think that is fair to the extent that the school has taken measures to prevent to to prevent additional harassment to limit that vulnerability if the school hasn't taken any measures to limit that vulnerability then it hasn't fulfilled his obligation in this case to take it to this case in col richie would argue because they didn't do anything about the door they didn't do anything and then subsequent stalking occurred that she was vulnerable to harassment as a result of their deliberate indifference and i know i'm flipping  yeah that's ok i would argue that she suffered actual subsequent harassment ok fair fair but for example if you take general ones case in general once case she she reported it to the university  university did nothing for several months and in the meantime they put no nothing in place to prevent her from not only seeing her harasser her rapist on campus but nothing to prevent her rapist from doing from harassing her again but here's the thing if they take steps let's just talk in generic terms if the university take steps to ensure no contact says that yes in certain circumstances when it's clear that a school did not act with deliberate indifference you can decide that case as a matter of law i think is similar to to with this what your honour's asking yes if a school for example issues a no contact order moves the perpetrator provides a police escort to the victim to make sure that the perpetrator doesn't harass her and does all these things and the victim still at that point still feels vulnerable i think yeah in a limited circumstance a court could say as a matter of law that that vulnerability was unfounded and in dismiss it out it will be six stage but as long as they take some action th because the worry about vulnerability of the judge batchelder is bringing up is that right you can always feel vulnerable to no matter what they do short of a expulsion and that is clearly contrary to davis because now we're saying to the university look during the pendency of the investigation even if you happen to expel which of course is contrary to due process but that's not what i'm arguing arguing is that a school take steps to prevent the harassment that limits the vulnerability counsel can i ask you about that because at that last point your friend makes it seems to me fair which is what he's saying is look when they complain they have to take steps to prevent ongoing harassment and if they don't then it's enough to withstand a motion to dismiss if subsequent harassment or vulnerability to harassment occur then you're to what is vulnerability and oh i get that obvious point that could be anything away i get that but that's the supreme court's language right now i get they've also limited it as judge batchelder said but it's still the language so subject to ongoing harassment so what about the point about koehler it to bring it to this case she was subject to stalking by but complaint as a result of the university not doing any i don't i don't think that's accurate or out of the way it's pleaded is what it's there is a sequence of events she alleges that she was assaulted several months later she reported it right then she alleges that she encountered him she doesn't let you ever told the university that there was a problem or an issue this the university took action well well wait she'll ledges she was assaulted yes your honor she complains and we launch an investigation we do something yes or you launch an investigation but then she stalked after the after the first investigation is completed and when this court is analyzed deliberate indifference claims like in styles just because subsequent harassment occurs again doesn't mean that the response was clearly unreasonable we put in place a no contact order we took action i thought an official at michigan state the action that they took even was a mistake it least they allege that the prior attitude of not separating them your honor but that again that goes to the encounter issue and that the allegations they were told that after the fact we have to accept her allegations is true and she alleges that she was stalked after and then she reported it and the school took action and i'm sorry she reports in her mind school does not think she's then star doesn't believe that we did nothing she please when we launched an investigation and we didn't find in her favor launched an investigation we did take action and she had a p p l so it's two separate instances and in each case there was action taken and there was no further harassment and i just dr drew i think you hit the nail on the head that this is if it's one thing to be able we can measure if the test is whether we've taken reasonable action to stop harassment we can measure whether that's occurred if the test is taking recent election to make you feel less vulnerable there's but one solution your honor and that's to expel the student and your honor in the empty case  that's not sufficient and again what they're asking for is that we take specific remedial steps we issue no contact order what they really want is that the person is expelled and davis said there is no obligation to do that and again i think in front of us is whether subsequent harassment is required i think what's really in front of you is whether the district court properly denied our motion to dismiss because when really we took  think i can but if this does if this court of appeals is going to make me do it i might as well not go through all of this right but if we think well yeah it's not that easy an answer you're going to have to look at this and you're going to have to look at you can do anything you want your honor i would suggest that at least in the two cases where the only allegation is the mere presence on campus that can easily be decided by this  counsel thank you very much for your thoughtful arguments the case will be submitted please call the next case