may please the court my name is katherine he can and i represent the appellant kristen samuelson we are asking this court to reverse the judgment of the trial court because we have sufficiently pleaded the title nine claiming it was timely filed per the discovery rule today i will address two points in support of our position and for the rest who rely on our brief i request three minutes for rebuttal point number one in sexual harassment cases it is the deliberate failure to curtail known harassment rather than the harassment itself that constitutes the intentional title nine violation accordingly the district judge should have focused on samuelson's allegations of shoes deliberate indifference to knowledge of prior sexual violence not the rape itself the decision of the district court judge essentially fell for the empty chair defense where we get the word the focus should be is on the way in which the courts have looked at actual knowledge that's one of the three elements for the title nine claimed you have to establish actual knowledge that the funding recipient has that they were deliberately indifferent to the harassment and that the harassment was so severe pervasive and objectively offensive that it bars the victim's access to the educational opportunity or benefit there were two supreme court cases and one tenth circuit case that provides the legal framework in this setting the first of those was the  case decided in one nine hundred eighty nine that was a teacher student sexual teacher student situation in which the teacher and student had been having sexual intercourse the focus there was on whether the school had actual knowledge  the court stated that the liability is for the institution's own decisions to remain idle in the face of known harassment in that situation the court distinguish between instances in which there's  versus instances in which you need to have actual knowledge there they said consequently in cases like this one that do not involve official policy we hold that it damages remedy will not lie unless an official who has a minimum has authority to address the discrimination and to its to corrective measures has actual knowledge of the discrimination and feels adequately to respond you know i've read your briefs quite carefully and i'm still a little confused maybe you can help me out and that is precisely what we're talking about here because i understand that she's not claiming that the handling of her report or the actual event is the injury here but that she's talking about the follow on event that as of in two thousand she was deprived of her educational opportunities because she couldn't really continue is that an accurate statement of what her claim is yes your honor in that instance we focus on two things she reports the rape to the university and that is is focused on the harm by the rapist what what doesn't happen is any support from the university to help her stay in the system dealing with the effects of the rape ok bet and i understand that and you know from the record it does not appear that the university acquitted itself very well here at all but in the statute of limitations kind hexed she certainly knew as of that point when she found herself unable to continue with school but the university in her view wasn't doing things to help her so why isn't the statute run on that aspect of the claim the allegations in paragraphs ten and eleven of the complaint that are the focus on how she addresses  she's responded to by the sexual assault counselor the focus on that is dealing with the harm caused by the rapist right she knows about that harm what she doesn't know is that the institution had knowledge of a prior rape and did nothing to create new policies measures and ways of assisting victims of sexual assault that would have allowed her to stay in school that that's ok so i just want to unpack that a little bit that correct yes ok because i knew but as of the moment whether they had prior knowledge or not their obligation to assist her then does go back to the nature of the counseling and the nature of the follow one hell it it doesn't really hinge on the fact that they also knew about another event that's why i'm having trouble making the connections and maybe you can help me on that right the legal analysis that we look at is not only did she have knowledge of the critical injuries critical facts of injury but who was responsible for the injury and here we assert two different kinds of injury one is injury from the rapist the other is injury from being deprived of the benefits of her education because the institution had failed to develop corrective measures that would assist victims of rape to continue to be in school ok let's stop right there so obviously the unspeakable harm caused by the rapist my understanding in reading the papers is she's disclaiming that really is the basis of her arm and she's not holding the university for that she's trying to hold them liable for depriving her of or education it's absolutely ok but she knew immediately i mean they either did or didn't have processes in place and they either could not have obviously jumped into gear and begun to provide you know counseling procedures and that sort of thing but that she knew that at that moment i mean she knew that in the follow on period after the rape that's not something that's hinged to the fact that they also had another event is that well i think the danger we get into in this type of  situation is that we're at the pleading stage and there are allegations in paragraphs ten and eleven related to how they dealt with the rape we have other allegations impaired and i thought she'd she disclaimed this is what i'm getting i just want to be clear because the briefs were pretty clear that that's not she's not faulting the university for the counseling and the reaction is that true the focus of what happened with the rape and how that was report goes to the actual knowledge element of the title nine claim the harm that we're focused on is associated with being deprived of the educational benefit ok so that's really i mean ok just wanted to clarify that so what we're talking about is she claims that the university deprived her of this educational opportunities because she couldn't continue because if they hadn't taken corrective measures that would have facilitated her ability to stay in the system after having suffered the consequences of a rape ok but the corrective measures they would have taken would be taken at that moment right either in two thousand are shortly before or after right i mean i'm still really perplexed about the the link to determining a potential identity of the rapist right th campus situation so that's why i'm having trouble with and i still quite haven't heard it and i want to make sure i understand your claim right the corrective measures go to the deliberate indifference element with those measures we talked about  paragraphs fifteen and twenty six of the complaint so that's the second element that we've met with the pleading as necessary the timeliness goes to when does she discover when is she aware that the university is also  a party that causes her harm and that's what she doesn't know in one thousand nine hundred nine what she knows is that she's been harmed by a rapist what she doesn't know is that the university is also harmed her because they have failed to act on that prior knowledge of rape and change the way they go about assisting victims and so when she drops out of school she's dropping out associated with the consequences of the rape not associated with the failure of the university to do what they should have done because they had this prior knowledge well i mean the fact is if the university had an obligation they had it at that moment i mean they unrelated to the other rape they would have an obligation it seems to me to do the right thing to make it possible for their student to hopefully reenroll and thrive in their environment they had that duty at that moment on related to the other event right but that's going to the element of the title nine claim their actual knowledge when did their obligation arise it doesn't go to when the plaintiff discovers that she's been injured and who injured her  during that time but you knew there was harm correct but you have to know per the case not only the critical facts of injury but who caused those and that the university caused them because they didn't do anything to help her out she claims right she's focused on dealing with the rape not on the educational opportunity and being able to continue in that educational opportunity as we pleaded it if you look at how we pleaded in ten and eleven versus fourteen and twenty two this is a pleading issue right we've pleaded it now we're getting into a fact question and what kind of findings of fact could be make which goes to a different stage of the case and for that reason it should go back you've got to know what a plaintiff knows and when they know it are fact questions as set out in the in the case so that's we're talking about a pleading here i know that there's a desire to make a conclusion about what she knew and when she knew it and was it obvious or not but as pleaded her focus when she's talking with the university is on the rape not on whether the university is going to assist her in staying in the school she doesn't even know at that time that she's going to and all the time that's associated with i've been raped as pleaded when she becomes aware that the university had knowledge and failed to do what they should have done and therefore deprived her of opportunity to stay in school because they didn't provide those corrective measures wasn't into two thousand fourteen when she found out about the prior rape and that the university had done nothing as reported in the news accounts until now have to address the question of policy of articulated in simpson and this kind of goes to the actual knowledge element the violation is caused by an official policy which may be a policy of deliberate indifference indifferent to what though to providing an indifferent happened off campus no in this situation we're talking about the brenda tracy rape that preceded ms samael sense and because of that but that's not what harm her that provides the actual knowledge piece and then the delivery no no no but the question is what legal connection is there between the university's obligation the new timeline and the events that happen off campus involving non student the focus is not on the act of the rape at all maybe it should be well that's not how the law is your honor based on the what is the law on this on the off campus so you went as far as the university's title was raped and that provides the prior knowledge or honor that is one of the elements and from there you look to whether the university it till it was and deliberately indifferent to that rape and failed to take corrective measures that would have protected any other student students from experiencing a similar harm is once the advantage he of the rapist was known was there any lawsuit or other legal proceeding filed in connection with that as alleged samus and did not discover the identity she had new a name i understand but she didn't discover the identity of the rapist until after the news accounts in two thousand and fourteen that led her to make a connection to mr carlisle but she didn't so she knew the name meaning she knew the name of her rapist at that more or less in the vicinity of the time i would like to answer the question but i answer it in a way that's outside the pleadings information that would come up in may please the court counsel bruce campbell on behalf of the pelly oregon state university this case presents the question whether a student can properly assert a claim under title nine against the university for a sexual that was committed by a non student off campus location and the question is governed by the supreme court's decisions in davis and gaps are and those cases hold quite clearly that an institution is liable only if it exercise substantial control over two things first the context in which the harassment occurred and second it has to exercise can substantial control over the person who who did the harassing in this case it's  extreme form of harassment in in the form of rape and that controlling authority the district court properly held and concluded that the or even state could not be held accountable for an assault that occurred off campus it's not like the colorado situation where you have no real routing situation and you have a bunch of guys going to a place correct your honor that in that case that was the the incident was sponsored sanctioned approved in  but there is some there's a real disconnect between what's alleged in the complaint and what's been argued on appeal i think and that's what the panel struggling with and i've struggled with myself in trying to put this together the complaint alleges that there was a a sexually violent culture that she was subjected to extreme sexual harassment in the form of rape and then it goes on to talk about how she was treated poorly by the university after she made her report now on appeal  it's in the reply brief mysterious and has completely disavowed any claim based on the post assault treatment by oregon state university it's it's all tied to the priests all conduct is that theory though still doesn't cure the defects in the title nine complaint namely number one there's a problem with the lack of substantial control and number two there's a statue of limitations issue and the issue is framed or couched on appeal it's essentially a phrase this thusly had oregon state responded to the prior rape and taking corrective action would not have been deprived of access to us use educational opportunities and benefits and it's a different way of saying that had oregon state not not had i guess she would not have been actually raped in one thousand nine hundred nine had oregon state not had extreme indifference to prior acts prior rape that occurred in one thousand nine hundred eight i guess i might read it a little differently but i don't know if it makes a difference and that is i interpreted to mean that as a consequence of the rape number one the earlier rape they would have learned some things and modified their procedures in dealing with victims and although she's not faulting the counseling she's faulting that she couldn't go forward given herself her emotional state as she couldn't go forward and enjoy the university so i view that as her claiming that somehow the university should have done more after the fact to make her environment plausible or reasonable for it so she could proceed although it may suffer from the same disconnect between her claims and what she wants well if the claim is that the university's post assault response was inadequate then it's clearly time bar she knew as of at least the period surrounding her inability to continue school she knew what they offered and what was possible and what their procedures were correct correct that would be the latest in the year two thousand and one she and finds out about the tracy assault now she knows that the university had notice of one other off campus assault that's i think her claim and the right man i don't know quite what that means i still haven't quite heard from her council how that connects up to her claim but let's assume it does then i mean where would that honor the way i would the way i understand it in that is that had the university the allegation is that the university should have taken more concrete steps after the after it found out about the tracy correct rapes where the university should have done is implemented student training programs had more robust policies than taken a number of measures that would have prevented and if this is the way it's alleged in the complaint to it's a  paragraph twenty nine but for their deliberate indifference she or because of their deliberate indifference she was subjected to extreme sexual harassment in the form of rape so it's essentially that the university was responsible because of their deliberate indifference for the rape that she suffered in one thousand nine hundred nine and yet when you asked when i asked about that this woman having some trouble with the claim she's just claiming the university's responsibility for the rape but rather for creating an environment where she couldn't continue in school i mean that that's what her ultimate claim is i think she she claims somehow it's i thought she just claimed the injury from the rape itself happening but sort of i feel like it's a bit of a moving target but if to the extent that it's there's an allegation about post assault conduct as i think as a panel's noted that's that would be without question barred by the statute of limitations but so let's say then her her claim is she says the notice that the university is on once the tracy events occur so once the universities on notice that they fail to implement policies that would have prevented her rape but then that's not consistent with her claim that she's not claiming the university being responsible for her rape but so your  view of the claim is that she's claiming as a result of the notice the university should have done more about off campus events or off campus actors well i think i just looking back at the compl says this is paragraph twenty nine of the complaint as a result of zero zero zero s used deliberate indifference plaintiff was subjected to extreme sexual harassment in the form of rape by carlyle's cousin in the same apartment where carlisle and three other men it's actually assaulted missed tracy more than a year before so it sounds like as pleaded it's really the university's alleged deliberate indifference led to to the rate the rate but then that's i thought appeal this is a pages two and three per title nine claim is based on upon o ses deliberate indifference to its actual knowledge of traces report of rape that preceded samuelson's report of rape its actual knowledge of overseas football programs hostile culture towards women and its actual knowledge of the customer or practice of ignoring or suppressing reports about sexual misconduct by us use football players towards females and it goes on to say overseas deliberate indifference there were disciplinary albeit not very significant action taken against the player correct players correct according to the allegheny according to the allegations of  but i think the point is your honor is that if if the claim is that there was deliberate indifference in connection with the handling and the aftermath of ms tracy's rape then that would that so you have to look at did the university then under the under the davis test did exert have substantial control over the attacker and the circumstances in which the attack occurred that's the only way they can be held liable and if you look at the davis case which is about as far as the as far as the supreme court has gone that was a case where the fifth grade student had sexually harassed another fifth grade student and that it was it was a known case of harassment one student versus another and the allegation was that this school did not do anything to stop it and so that was an extension of title nine liability liability context because it was not he didn't have like a known assailant but he had a university program that was schools sponsored encouraged and supported by the university the recruiting program were recruits were to be shown a good time and so i think the holding of the tenth circuit was it became like official policy or custom of the university of colorado but that  rather than helping the show that there is a still a claim stated in this case it actually shows the deficiencies of the claim here because you have no no official policy or custom no sanctioned event it was an off campus party unknown to you o s u by and the attack was at the hands of a non overseas student so not only did the university not exert substantial control it exerted no control whatsoever i think so there is besides the lack of control the lack of the title nine violation on the merits you have then the  limitations no matter how you slice it bars the claim it's the trigger it's the injury that is the trigger and starts the clock for the statute of limitations not the later knowledge we cite of the case in our in our brief that it's learning i think the plaintiff there had said it's although they had actual knowledge of injury again it was a sexual assault their argument that they did not learn of deliberate indifference until injury and its knowledge of injury that triggers the running of the statute of limitations before my time runs out i'd just like to make one more point and that is in dismissing that complaint if the trial judge found that there is no any amendment would be futile so could the court properly dismissed the case with prejudice and we would ask that the court here affirm the judgment of the district court and that's that so unless the your honour's have any more questions i will see the floor thank you thank you focus in the title nine language isn't on rape the focus is on participation in denied the benefits of or subjected to discrimination under any education program so the focus there is on being deprived of the educational opportunity that's what we focus on that injury when we talk about o s u second to that when we talk about the two different allegations in the s s p alexander case there was an argument congress did not intend to eliminate only acts of sexual discrimination in edge of educational settings but also intended to require the militarization and minimisation of the effects of the discriminatory acts when they do occur that's why in our case we pleaded two types of of harm we've got in paragraph twenty nine as you had that back and forth responsibility for the rape and in paragraph thirty one we talk about the responsibility of the university for not a merely rating those are facts and then in paragraph twenty two is where we address the timeliness associate with the discovery by the university as a as a separate harm and then finally in progress twenty six we talk about the measures that would have made a difference thank you think both counsel for your arguments this morning samuelson the oregon state is