claims of a violent sexual assault that she sustained by a fellow student this court should reverse the district court summary judgment because a reasonable juror could have concluded that it was clearly and reasonable for the school district to violate well established federal regulations requiring immediate investigation into student sexual assaults but notwithstanding those regulations the and this court's precedent requiring or noting that deliberate indifference is a fact laden subject the district court concluded that as a matter of law a three month delay in that three month delay of the investigation was reasonable or not clearly an reason of so let me ask you first there's some question in the record about when the investigation by the school district started in fact what we can start with maybe the friday october twelfth there's seems to be an e mail in the record that ms fletcher parent of the plaintiff e mailed ms denson whitehead asking her not to speak with the with her daughter about bullying on that day is that not correct i believe that there is an e mail from mrs fletcher to ms white ok let's go further down then on on there to relevant dates it seems november eighth of two thousand and twelve is the date i believe that you're arguing at the latest an investigation should have commenced is that correct the november eighth or dover second one of the two ok ok that's fine and then the district judge and i believe the school district rely upon a december date  like mid december of two thousand and twelve which of course implicates the delay based their argument based on the holidays what record evidence are you relying on for that november eighth of that november second date for commencement there is an e mail that was sent from rebecca mcdonald who is the assessed essentially the assistant superintendent to the title nine coordinator kevin rogers that e mail was dated november second and it specifically said two days ago the school started the police department has cleared us to begin our investigation now there's some dispute in the record as to whether that's a full investigation or whether it was only an investigation into the extra curricular code of conduct which would basically mean the assailants of the alleged assailants ability to play football but regardless and i think this is the point that i'd like to drive home here what the lewisville police department believe is the appropriate date for dr rogers to start his investigation is entirely irrelevant here dr rogers is governed by title nine not the into the whole thing it notes that while the police are gathering evidence you shouldn't disrupt their inquiry also knows that you really generally take no more than three to ten days but that there's a difference between investigating bullying investigating the treatment that a student is receiving and investigating the material witnesses and the such sexual assault cases here it's undisputed that the person in charge of the investigation did not even interview my client until january of two thousand and thirteen so was there anything that suggested in any communication in the record wherein the mother of the plaintiff contrary to her october twelfth e mail said we expect you to go forward and my daughter is permission but the school doesn't need mrs which permission they're obligated under federal law to do an investigation now there's certainly no evidence of the record ok but you just said they didn't interview my client until so they can't you're right they can investigate without interviewing the plaintiff in this case but you just said that they didn't interview her until such and such wraps it would have been more to do with for me to say that the school did not begin its investigation until january of two elk and and that that is essentially the point here your honor is that judge the trial judge basically stated that as a matter of law no reasonable juror could have concluded that it was clearly unreasonable for dr rogers to listen to the lewisville independent school or lewis the department of education and there frankly there are no cases on point ok where there's a three month delay there's cases in new york in georgia that are eight months in a year they said those are jury issues and there's plenty of cases from this court which which both i  did as well in which there was an immediate response so there's a media response we say ok there's no deliberate indifference as a matter of law eight months in a year no it's a jury she let's see if it's reasonable so here we have three months we have three months and it's predicated on listening to a police chief or police department as opposed to a department of education that you have a mandate now is it a good thing or a bad thing that we don't have cases like that i suggest it's a good thing the fact is that there's not a lot of title nine chord members out there that have no idea what their responsibilities are or most school districts don't wait three months to begin their investigation but to conclude that as a matter of law this is reasonable or not clearly unreasonable to me to borrow a phrase that's essentially what just waiting for the bench that's taking the argument or taking the reasoning out of the community standards and basically imposing by judicial feel what reasonable is you know in the eastern district of texas and for a bunch of policy reasons that simply doesn't make sense first from a practical perspective for this court if district courts essentially take all the deliberate indifference inquiry out of the hands of a jury and determine it as a matter of law it means every title nine case that comes to this court will be reviewed in over regardless of whether summary judgment was granted or denied you could have a full jury trial but a deliberate indifference is determined as a matter of law it doesn't matter what the jury it's always up to it's always up to a panel of appellate judges who review a cold record it's we're talking about the timing i guess to put a  er point on it we're talking about three as i understood from the briefing three different instances one was the off campus party or what have you to get together in i think at the beginning of the school year in september and then after that of these things in rapid fire succession it seems like there's some telescoping on a timeline between the in school bullying that's alleged and then there's some some things on the internet social media type bullying and those are three different acts is that throughout there were you know there is a twitter post that is in evidence that was dated i believe in december but i don't think there's anything the record to suggest that somehow my client was left alone between september twenty eighth and the data that twitter post in fact it conclusively establishes the opposite we know that the date of the incident was november twenty eighth that's undisputed we know that on october first was when the most egregious activity had when the alleging rapist stood up on the cafeteria table wearing the clothes th raped her in and bragged to the school about it we there is at least evidence in the record suggesting that it been a stranger's and football coaches knew about it now granted that evidence comes from my client who says i don't know who was in the room that's her belief now they deny that but again that's another fact issue and then we know that mrs fletcher finally reported the rape to the school and on october fifteenth two thousand has come page two you just mentioned about the coaches and page two i believe of your brief you say particularly that any faculty or coach witnessed it happen to footnote reference to the record under that particular sentence points to any fletcher's deposition testimony forgive me for saying you know if the first my client's deposition testimony in which she says these are the people that were around when this was happening to me now the my opposing counsel says well you have no evidence no admission from us that we knew we knew that but again that's a fact issue for the jury and it like to if i could point out a case  directly on point to resume the ninety three context but i think is appropriate here earlier january two thousand and eighteen this court decided a case called darden versus city of fort worth and it was a qualified immunity summary judgment that came up here in this court reversed qualified immunity now qualified immunity is an issue that's usually decided as a matter of law which a lot of deliberate indifference cases are as well but in that particular case there was strong conflicting testimony between the police officers who  teased a man to death and all of the other people that were in the room that witnessed it happening and what this court ultimately concluded is if there is a general misunderstanding or lack of understanding lack of conclusive evidence as to what actually happened in summary judgment can't be appropriate because we don't really know what happened who heard what who said what to whom and when that how could you possibly say that as a matter of law something is reasonable or unreasonable doing so would require this court to give more credence to the evidence provided by the movement as opposed to the nod so if there's a disagreement there summary judgment can't be appropriate so here we all have fact issues regarding you know who or what members of the faculty were aware of this particular incident macaffer tyria and other bullying requests with this november second e mail actually referred to it what was its scope and what investigation was allowed to commence and we have disagreements in general as to whether miss fletcher encouraged them or discourage them from pursuing the investigation now at the end of the day if the jury is allowed to hear testimony from dr rogers and from ms wendy and the other folks that were in charge of this investigation and can but you know contraband controvert that against the testimony of my clients you know that's what juries are fo also involves lewisville in the school district is a case called lance versus s t and in that case this court concluded that summary judgment was appropriate on a deliberate indifference claim because it was undisputed that the district investigated the incidents immediately and punished all the students involved and concluded that essentially that the parents in that case were complaining about the treatment that the perpetrators received not about the fact that the school did nothing at all but the district has something in response to harassment it is satisfied the standard but if this court were to accept that argument a school district could satisfy its obligation where a student had been raped by merely investigating and absolutely nothing more such minimalist response is not unreasonable we did something we looked into the matter we talked to students we ultimately came to the conclusion that you know nobody could actually remember what went on we weren't certain whether there was assaults actually ever occurred we looked into this and i realize that the parents are disappointed with the punishment or are disappointed with the outcome but we did something but that's a red herring certainly we're disappointed with the outcome of the investigation but the question is should that investigation have taken place earlier and i  a fool's errand to guess what would have happened if it had been done differently but at the same time the fact that all of the testimony of the record regarding the investigation that took place in january involves contradictory statements or people that can't recall specific details respectfully submit that that's why the department of education requires an immediate response now certainly there has to be a tight rope here i understand that that's the policy interest that's in it that's in play and the supreme court has acknowledged that in the gaps or case on one side we don't want every single instance of boys teasing girls or any sexual greatly related innuendo or conversation in high schools in junior high schools to turn into a federal lawsuit that's obviously wanted to be extreme but on the other side congress  a title nine to to prevent student on student harassment or gender based discrimination and if no one is encouraged to bring these suits when extraordinarily egregious conduct like we have here happens because as a matter of law the school always wins well then you've essentially got it a federal statute and obviously it's a take a tight rope and at the bottom of which is you know the ostensible you know abyss at the bottom of the slippery slope and so on are you running out of time so i don't and i'm sorry to interrupt you but to to you mentioned  letter earlier in your argument to what could you clarify for me to what extent are you relying on the dear colleague letter to what extent do you think it doesn't matter you still have a jury question here i always think is a jury question so in asking this court to hold that as a matter of law it was unreasonable here to say that as a matter of law we survive the summary judgment right round i'm standing so that your colleague writer i believe sets forth the department of education's guidelines for investigations of student on student sexual over the timeline was october tenth miss fletcher comes to counselors and makes a vegan complaint about bullying and the only thing she says no names no details but she says it might be the with tents i have is not in school she's going to school up to over eleven the first time that she has a chance counsel has a chance to talk to her that's when the e mail comes in and the e mails from by the way bullying in our school and it's to that e mail that miss fletcher responds and says he is at school today she should just take it easy and try to stay positive i don't think an intervention should is communicating this to the mother saying i hope she will be sharing specific names i hope you'll feel comfortable enough to come to was i'll talk to her next week i will honor your request as a mother you know your daughter better than i do you know that she needs some space today ok that's what she did i will talk to her next week hope she comes in that was friday october twelfth at eleven fifty four now what happens that evening is the football game mr mrs fletcher are talking to some other parents and it's at that point that these other parents tell mrs fletcher about the party of september twenty eighth the school district is absolutely in the dark about what happened off campus at somebodies private home with no parents or provision whatsoever and doesn't find out about that till much later but that friday night at the football game that's w fletchers learned from the other parents that there was a party and there were some communication from that other parent to mrs fletcher that something very bad happened then the fletchers go to the police they go to the police first and the police an open police then we go to monday monday comes around and the fletchers come in and that they talk to deborah whitehead again this point they say they're talking about r don't investigate this until we've gotten to a certain point and mind you at this point i would like to get just to talk about that the title nine letter which is has now been rescinded by this administration it was under his investigation that the title my letter was issued but even under that letter that was issued and has now been withdrawn even under that letter it does say a school may need to delay temporarily the fact finding portion of a title nine best occasion while the police are gathered together that's record forty nine o two so everyone agrees anyone who has common sense and everyone who can read that title my letter agrees that it is reasonable in the extreme to delay title nine investigation of the school if the police have requested you to delay it and they did but you do recognise i mean i'm sure he recognizes that the title nine letter goes on to say once notified the police department has completed its gathering of evidence dot dot dot the school must promptly resume and complete its fact finding for the title nine  day it was didn't care or refused to take action  there and so they're required to do that even in the face of police requests do they not but i guess the best question