educational institutions the supreme court has acknowledged that the recipients deliberate in different digit deliberate indifference to one student's sexual harassment of another constitutes intentional discrimination on the basis of sex prohibited by title nine traditionally an educational institution is liable under title nine where it has actual knowledge of sexual misconduct and acts with deliberate indifference in response however the supreme court has also outlined an avenue for liability under title nine when an educational institution maintains a policy of indifference or intentionally violates the statute though that's the last issue yes your honor issues you want to take up st i'm happy to discuss whatever this court wants i'll start with the post assault conduct and in that in that context title nine liability flows from a educational this court can we are you suggesting in this particular matter that there are or act differences yes your honor i think appellants have raised the question of fact as to whether this educational institutions or anybody disputing the fact i'm sorry and it doesn't seem to me anybody's disputing the facts all we're doing is trying to determine whether those undisputed facts because the universities really never even suggested there are other facts that are made in the future but they haven't dear they don't meet the standard is not what they've done that's what the district court held was that these facts don't rise to the level of deliberate and very distinguishable from the instant matter in odin the victim reported her assault by a professor she was immediately provided accommodations she was providing i believe a caseworker to help her through the process in oden the victim sued claiming deliberate indifference based on a nine and a half month delay in resolving her report however she contributed to that delay she informed the  the educational institution that she was seeking legal representation research post to be looking at the plaintiff's conduct are the victims in this situation should we always look at their conduct and in this  sabotage the complaint or the orderly resolution right and i believe this was a deliberate or at least there's a question of fact as to whether it was a deliberate attempt to delay the orders of the prejudiced that resulted in  delay she was forced to endure it's actually a hostile environment on campus by virtue of the fact that her assailant was on campus was going to the cal democrats club that she avoided because the school was taking its time in resolving this complaint the school didn't didn't put any interim measures to protect miss caressa khan campus while they were delaying and resolving her but there was no failure to take any action whatsoever for weeks or months or years like it was there was your honor they had actual knowledge of crass six let's say were doing stuff about it they were just using if you will a different resolution process and you want to be used well i would i would push back on the fact that they would act they were doing something about it they received actual knowledge in february of two thousand and twelve and did nothing until  april or until april of two thousand and twelve and in the meantime in the meantime miss crassus assailant sexually assaulted two more female students while they were doing nothing so i don't think it's fair to say that they were you know engaged in some sort of process they just happened to wait they didn't do anything for several months actually for one month isn't it the case that after one month they met with him and he accepted  miss she never informed miss cross it that she needed to provide a written formal complaint in order to initiate a formal investigation miss caress like did that on her own thinking probably a good idea to get this in writing so nd september of two thousand and twelve is when they st met with her assailant but what is the standard as a relate to deliberate indifference because it seems to me that what you're suggesting is that what they did was deliberately and different and yet when i look at deliberate indifference as it relates for instance in a prison context and where the doctors are suggesting one thing is the result of the problem that happened in the prison and it's just a matter of if you will a disagreement as to what medical procedure ought to be used there is no deliberate indifference and one is thrown out on summary judgment and i guess again i keep bringing up what kind of things make it deliberately different so your several courts have discussed what makes a response to liberally indifferent what chords that i should follow have to scott well earned correct there are none that have specifically discussed the contours of deliber indifference that is that are binding on this court right however we're only just citing whether deliberate indifference is proven under davis they have us would be the only real if you will known circumstance in light of the known circumstances correct your honor and if this court looks to how other courts have interpreted what is a clearly and well done don't move forward just explain to me then what are the facts from this case that were known th so in with respect in this caressing she reported her they received actual knowledge of her sexual assault her and two other women sexual assaults in february of two thousand and twelve they did nothing for several months guzman met with t h a month after the formal report right which would have been ok action against th while in school unlike in williams and all the met with th again at the beginning of the next semester and the response was in the context of ongoing communication with the club members and your client never saw th except across campus and  democrat club events but your honor the if the facts of the case i think rises level deliberate indifference because for one that whole process that you described took a half months well i understand but then i look at what happened in nine and that was nine months because of the victim's own contribution to the delay it wasn't the school it wasn't the educational institution that caused the delay it a slippery slope when you're imputing responsibilities to the victim to how their investigation is supposed to go i think i'm sorry i'm not following the question you're well are we going to be ensuring let's just say that  a victim of sexual assault decides that she thought too traumatized by the events that she decides while making the initial disclosure not wanting to talk to these folks for some time should and should that then on the time reference on the on the school i think it's school's responsibility is to respond in a manner that's not clearly and reasonable and if that if they're going to do something that's going to harm the victim harm them psychologically by moving forward then i think it's reasonable for them to delay but that's not the case here here we have victims that wanted procedures to go forward the school correct but they do have similar themes throughout for example there was a thirteen month delay in common and case from report to resolution now they've the university tries to justify that by saying they stayed the investigation pending the criminal process however the court in the th circuit addressed that argument said it's not appropriate to stay in school investigation for the pendency of other criminal investigation as well as the department of education has issued guidelines guidance documents that have similarly said it's not ok to stay the investigation pending a criminal investigation i hope that you get the department of education regulations because it seems to me that that's the big part of your complaint if you put together the department of education regulations put together your own regulations from the school the defamer to comply with those should be deliberate indifference that seems to be your major and yet you haven't got there til now yes your honor i guess i'm trying to figure out if that's really your argument why does gerber at two hundred and ninety one to ninety two say failure to in other words there was no actual knowledge of this of a report of sexual misconduct and deliberate indifference in that case the plaintiff was trying to argue that the failure to provide notice of their policy was  wrong when i say i'm deciding this under davis deliberate indifference the d o we even the california universities guidelines can your honor i think that's correct we're not arguing that the department of education guidelines that a departure from the depart department of education guidelines is dispositive of the deliberate indifference or inquiry however just like in marriage or savings bank versus vinson where the u s supreme court looked to see guidance documents similar in nature to the dear colleague letter and title nine guidance documents the court looked to those guidance documents as a as a body of experience and informed judgment to which courts and litigants may properly resort for guidance i'm saying we can do the same thing here in this court should do the same thing here because the department of  education is a does constituted body of experience and knowledge with respect to title nine but they're not mandatory that they're not mandatory dischord is not mandated to look at those guns documents i just think it's prudent you want to make one principle of simpson where there was no actual knowledge and deliberate indifference in that case what happened was the school was aware of sexual misconduct at football recruiting parties and turned a blind eye to it that principle there's no reason why that principle can't be expanded to school wide when an educational institution generally turns a blind eye to sexual misconduct covers it up as we've alleged here it please the court hyland chan i'm behalf of the regions of the university of california none of the undisputed facts here support a plausible inference that the university's response in each of these three cases shouldn't well st there are no cases no binding precedent that holds and simpson doesn't hold this either that general knowledge of a general problem of sexual harassment on campus and the need for some improvement in policies that that's enough to establish actual knowledge and deliberate indifference if that were the rule that would run squarely into conflict with the supreme court's guidance in davis which is that the deliberate indifference standard does not mean that schools can avoid liability only by purging their schools of actionable peer on peer harassment and in simpson simpson is completely distinguishable there the school had knowledge of a serious risk in a specific context football recruiting involving a particular group of people folks and gauged in that recruiting and football players and it was a program that the school funded and sponsored and facilitated and even went so far as to choose the hosts to show these football recruits a good time but is this aren't you really saying judges even if you say they're such cause of action well those cases involved in official policy in action of the universe very don't really do that because they say i mean if you look at us the americal county it says and i'm quoting the good judge in addition to liability for deliberate indifference to known acts an entity can also be held liable for acts of discrimination that result from it's own official policy which says to me we've got one thing that will go one way which is a policy will concern but it goes another that if their actions so show that forever then they've got a policy that goes different worryin they'll be liable for i don't  maricopa the official policy at issue resulted in the discrimination and harassment that was severe pervasive and so objective leigh offensive as to deprive the plaintiffs of educational opportunities well that's the difference here it was an official the policy of the school that resulted in that harassment what they said a legit violation a prerequisite to recovery or if in every sexual harassment case but proof of actual notice is only required when the alleged violation consists of a deliberate indifference acts that do not involve the official policy of the recipient and of the evidence exactly would the action he wants to bring and those cases however involved harassment by a rd party as does this case here that's the difference and sir ian that was a gender equity and athletics case where the school's official policy and practices resulted in gender discrimination affecting women on the athletic teams that was a direct action of the university there was no question about whether the university would be liable for the actions of others here that's the question presented with the court and here the supreme court has held and this court has held that the standard that applies is deliberate indifference and actual knowledge now if i could address nother issue that appellant's raise and that is violation of the provisions of the department of education guidance not only has gaps are held that him implied private right of action under title nine does not allow for money damages for violation of administrative enforcement guidelines the dear colleague letter itself expressly states on page four dollars that its requirements concern the standard for administrative enforcement and not the standard in private lawsuits for monetary damages and the language of the guidance in the dear colleague letter is broader than the deliberate indifference standard the dear colleague letter requires action when a school knows or should have known about harassment whereas actual knowledge and deliberate indifference requires just that actual knowledge now to address a point that appellant's raised regarding the response to ms caress its report of assault appellants raise the allegation that she encountered th across campus and also at club activities but there is no allegation anywhere that she informed the university of these events she never informed the university she saw him she never asked for a no contact order and the university cannot be expected to take preventive measures under binding case law to eliminate a hostile environment when it doesn't even know one exists well but then they make a recommendation that they shouldn't from a club that happened early on before she even reported it that happened in february two thousand and twelve before she reported it by the time she came forward in april two thousand and twelve t h had already left the club had stepped down from his position and taken as a whole all together the university's response does not support a plausible inference that what they did amounted to an official decision not to remedy the situation williams which  appellant site to is distinguishable there there was no corrective action taken whatsoever for eleven months and they waited four months after the criminal proceedings to start an investigation and in that regard williams is also different from what happened in common with respect to miss commons the university acted promptly within two weeks of her assault they implemented an interim suspension completely excluding the respondent from campus and he was excluded from campus and subject to significant restrictions continuously for four years after that they investigated him and they disciplined him can you go oh can you go back to carol sick for a nd because counsel talked about how old and was very distinguishable that in that case that individual had left the state in fact and gone elsewhere and that would explain the delay and then that we should be looking at to a certain extent that that factor in explaining that delay that it's agree just in this case because this was a policy as he would argue that resulted in this extreme delay in their view in odin the court did not turn it decision on the fact that plaintiff was in part responsible for part of the delay that was not the reason why the court held that the university's response was not clearly and reasonable rather the court looked at the overall respon a whole the fact that the university took action upon learning of the assault removing the complainant from her instructor's class helping her get some academic accommodation setting her up with a counselor as a whole taken together that response despite the delay did not amount to deliberate indifference so it's not a matter of you know this court did not hold in that case for a delay to be excusable it has to somehow have been caused by the complain mean as long as we're on k the one part of the argument which is the most worrisome for the university is the argument that the substance of the universit response was an equitable i mean th participates in school functions negotiate its own sanctions and k has no university certainly acknowledges that it could have done more to keep ms caressa conform to the status of the investigation and given her opportunities to participate and the university has made great strides since two thousand and twelve to improve its policies and practices in that regard but those issues at most give rise to mere negligence or carelessness that is not enough to meet the exacting standard of deliberate indifference and there is no case l that holds that not providing another opportunity that complainant wishes she could have had to participate in itself gives rise to deliberate indifference if i were to suggest that there is a cause of action to be brought here what do i do what do you mean your honor what is my remedy what if i say there is a cause of action here is there evidence here enough to hold the university liable or what is my response that i should do as a court well i suppose it would be to send it back to the district court and say to the  board there is such a not cause of action which can be brought is that the best i can do i believe so with respect to ms caressa can miss comments those matters were decided on a twelve v six motion to dismiss on the pleadings and so it would be plead to pre assault title nine claim what is the remedy i believe that the court would have to in effect implement a new rule that has never been implemented before in this court or in any binding or in any cases that bind this court which is that knowledge of a general problem a sexual assault on campus coupled with knowledge that policies and practices could be improved is enough to state a cause of action we submit that is not they have not allege that that generalized knowledge caused sexual harassment that was so severe pervasive and objectively offensive as to give as to deprive plaintiffs of educational opportunities there isn't there enough to to for someone to plead that the policy itself is is problematic no there isn't your honor not under the actual knowledge and deliberate indifference standard and not even under the test that is set forth in simpson there's simply not enough the two thousand and fourteen report came out two years after the assault alleged in these cases this is not a case like the one in tubs which appellant cites to where the office of civil rights did an investigation implemented a voluntary agreement that the school that where the school agreed to take corrective action and then failed to do so and then an assault occurred that's not what happened here none of those generalized deficiencies that are raised rise to the level of actual knowledge of harassment and deliberate indifference in the face of it be a policy of deliberate indifference to providing adequate training or that it is absolutely necessary for the implementation of a specific program policy right right and if in fact then hul does not have adequate training or guidance for him posing as policy could be brought that's not your honor because there is nothing tying this lack of adequate training or policies to the harassment that is alleged there is nothing saying that because the university did not have adequate policies or trainings at the time that that caused the assaults but isn't that just proof i'm just trying to think about the tour or the cause of action itself because of action it seems is that the university has a policy of not providing adequate training or guidance in the implementation of their program and then the proof is there after that they did or they did but that that is the if you will cause of action that they and they can allege in count four but if that were the cause of action if that were the rule that would run squarely into davis statement that the deliberate indifference to enter does not mean schools can avoid liability only by purging their schools of actionable peer harassment if that were the rule every college and university in america  and counsel argued that only rises to negligence standard perhaps and i think we've been talking about this policy of indifference and we've alleged all these failings she said it just goes to negligence as there are cases dead on that says it's got to be more than that right and i want i'm getting at is you can't divorce these particular circumstances from their context and that is when you look at these general policy failings these are the way in which the university responded to these particular instances squares with their general failings these were this was a deliberate choice this wasn't simply isolated instances of negligence this is the way they did things and your honor with respect to i see your briefing you've both done well in your argument we really appreciate that and we appreciate your help today because as i said when i came out to dr you before good lawyers help us make good decisions thank you very much