morning needless rally for the to take any action despite one of its officials seeing the really thirteen year old boys grabbing and dragging the words of the complaint k r into an empty building there after the school never made any effort to independently determine what happened inside that empty building the school never made any effort to check up on k r despite her credible claims that she had been raped right away i just question one day ask you w surprising in light of cases like kill that recognize that assistant principals of middle schools are appropriate persons and i think here if you look at the actions of that particular appropriate person assistant principal may you have i think  a unique circumstance something that i think approaches what is similar to the rate base scheme in hill what this court described as incomprehensible you have an adult professional administrator at a middle school witnessing with his own eyes three that this happened as school was letting out that the girls were leaving campus after school and i think that's also reflected in the fact that you know these bees were still school administrators on campus there were still you know obviously there were parent teacher conferences that were happening just  be clear about it because and you mention the parent teacher conferences that were happening it's after the class hours are over but there are school still school sponsored activities can i camp as at the time is that correct is exactly right yes so we so the administrators are still on duty that's exactly right the administrators are still on duty and we would say that even if there weren't parent teacher conferences going on although i think that's a very important point here school administrators would still be on duty in the moments after school lets out their responsibilities don't cease to exist as soon as the bell rings but just so we're clear the students were still in school they were not in class that's right they were not in school in terms of you know the final bell had rung so to  speak and we don't know how all at all well after the final but all that's right and i think again as your honor noted we are at the twelve the six day so at this stage i think we have to again i don't think this is in dispute but to the extent that it was we w starting to get to is this where the building is a new use the words on the perimeter which i suppose you could be on the proof europe if you're a geometrician you could be on the perimeter from the inside or on the press from the outside but the district judge assumed that it was technically within the school grounds right that's right and we think that was the proper inference that would be the inference you would want that's exactly right at this stage and i know that the board  important point you know the standard that davis spells out the supreme court's decision in davis is whether the harassment takes place in this is a quote in a context subject to the school district's control we think that when you're talking about a building on the school property i'm just noting that davis says that it has to be the actual inquiry is not this kind of bright line test whether you're on school property or off school property it's whether it's in a context subject to the school district control and we think it's perfectly reasonable that they even if this was just off of school property on the perimeter just outside of school grounds that would still be within the context of the school district control again we're not saying that that's what happened here this to be clear all three of the boys who  involved went to the school that's also correct right which is the only people involved were kids who went to the school that's exactly right and the building was abandoned the building was empty and the band at the time that's right and so we  is another good point because the fact that all these students were attending this school that this was immediately as after the school day let out that all smacks of this being in a context subject to the school board's control i think we can all imagine situations that are aware of situations if a fight breaks out in schools letting out even if it happens across the street if an administrator sees it we often expect the administrator to get involved it's also worth noting that the school board itself claims the authority to discipline students for activities that happen point is well the principal called the police the police conducted an investigation and determined there was no misconduct or criminal activity involved therefore the school is not required to suggest police officers who conduct an investigation right so i think that determination that the district court relied on is mistaken for two basic reasons one is we can talk about why it's mistaken as a general matter of law and then nd why it's a particularly in basis for the decision in this case just to start with why it's inappropriate as a general matter of law to zoom out i think it's important to recognize what the role of the polices and what the role that of title nine is we think it's perfectly ordinary and reasonable and i want to be very clear about this perfectly reasonable for school administrators to rely on the police to conduct criminal investigations to determine whether or not a crime has been committed but title nine is not a criminal statu make which is that forcible rape is not the only kind of student on student harassment that's actionable under title nine the police determining that this was consensual which again there are problems i think even with that determination does not mean that there is no other type of harassment or no other type of title nine violation that could have happened i think that davis q how would you have any case rectilinear were something that you're passing whether it's a correct determination is consensual counsels harassment i guess there are sort of two possibilities here one is you say it's harassment even if it's consensual the other is that they should have conducted their own consensual for the purposes of ruling out forcible rape as a crime does not mean that they determined that what happened in there was not harassment for the purposes of title nine and i think if you look at the davis case right the davis case doesn't mention rape because it wasn't about rape and that's a good example of the type i was the administrative on and to take it as a given given the police investigation that the sex was consensual no he was not for a few reasons right don't allege any inadequacy of the police investigation not explicitly in the complaint but we also don't describe any police investigation at all and part of the reason for that just by way of background is the  never spoke to her mother so they don't know what that depth the police investigation was but i don't think it's reasonable at the twelve the sixty's to infer here that the police did a thorough complete investigation but even if we were going to draw that  clear that's not what i'm saying i'm saying the school board has obligations beyond investigating whether or not a rape understand that but my question to you in your reporting the more difficult question which is a national natural response my question is didn't continue as you're sure as a general matter in an ordinary case absolutely it would be reasonable for a principle to rely for that narrow determination if the police had made on that narrow determination setting aside that that wouldn't absolve the principal of other title nine obligations in this case however there are good reasons why principle on should not have necessarily relied on that determination for one we know that under alabama law the students are well below the age of consent so that consent determination might raised red flags we know their principal on was aware of the rumors well they're well below the age of consent for purposes of statutory right but that also depends on the age of the prospect of suspects or defendants and what consensual maintainer is consensual in the sense that she consented to it and the law enforcement officers determine i'm sure that if i could just  i think that's exactly right your honor i was just making the broader point that there are good reasons to be skeptical of a consent determination in this particular context one is the age of the students two is the fact that the principal as we know was aware of the rampant rumors that students had run a train localism for gang rape on k r three is that doctors know that they received for is their awareness of the post traumatic stress she was feeling in her own account that hospitals verification that she had been assaulted we just think there's plenty of circumstances police investigation determination that it was consensual in this case and just one final point i'll sit down and see my time is up we don't even know because the complaint doesn't allege this that that the reason why volunteered no action it doesn't say explicitly  that the school board learned of the results of the police investigation or when they learned of the results of the police investigation and that that was their basis for not taking further action and that may be the case and gore can certainly bring forward evidence to that effect at summary judgment day age but we don't think that's the problem here i mean that's awful of course the problem is that the allegations are that she was grabbed and dragged in front of the assistant principal and he was also told what was going on and he did nothing i mean that's that's what makes this case even more horrible than just a rape which is in itself obviously horrible but that the the trusted adult who could have done something to stop that nothing to stop it yes or well with respect to a system principal terming may this issue of his failure to  allegations are is that k ars step sister who was walking with k r before the attack alerted mr may to the condo there are absolutely no allegations in the complaint to what they are witness boy's drag and grab our isn't that enough i mean three boys are grabbing and dragging a girl to an abandoned place that shouldn't that set off some kind of alarm bells i mean is that something that an assistant under title why not well what he witnessed according to the allegations was dragging and pulling it could have been horseplay so just just to be ok just to be clear and make sure i understand your argument your argument is the reason it doesn't satisfy title nine is because grabbing and dragging on its face do not amount to sexual harassment and discrimination is that your argument  a point of my argument is under title nine district liability looks at the rip the entire totality of the circumstances and i would only encourage this court not to focus on mr may but also look at what the principal did once he was aware of what had allegedly taken place he said to her you have an adult body like my girlfriend and he did nothing he didn't talk to the students he didn't talk to k r he did nothing then he told the mother that she should switch schools after she had missed eight days of class and the doctor and hospital had said that she had been raped i mean how does that help your client well the principal called the police the day immediately the day it was brought to his attention that district cannot reasonably be faulted for principal but on contacting the police and letting it how does that get the law the district off the hook the way davis in other cases talk about is did you did the district of an appropriate person have knowledge in advance and take no action to prevent further harassment and why doesn't may fit right into the on the allegation he had knowledge both from the stepsister and from his own observation a time prior to the actual event so he fits both parts of that whatever one does doesn't exonerate him doesn't well under the deliberate different and different in different standard that distorts the response must be clearly reasonable in light of the total totality of the circumstances no and what was known here that on the day of the assault k r was walking off campus the abandoned building was on the perimeter of the property this was an attack that did not take place during school hours it's been conceded that school dismissed which is why she and her sister were walking off campus but it wasn't me still on duty and mr vaugh were both still on campus but this is my thing and to me what they being paid to be present at that time well is that a fraction do get paid to stay after school if that's ok so they were still on duty  they had it and we're talking about four students and only four students there's nobody else involved where students are subject to their supervision and your position is he didn't have any obligation whatsoever hate him mr mayor mr bond mr me mr may and as i mentioned before he may have had some legal duty he was still on campus he is an administrator at the school but that's not the standard for deliberate indifference deliberate indifference looks at the totality of the circumstances in light of known circumstances and the question before the court is whether the district's response in totality is clearly and reasonable and the district was ition is meeting with k our principal dawn met with indifference and all the cases that this court has looked at it looks over a total of time deliberate indifference can be triggered in a moment during a late right because someone did not intervene to stop it then the district would be subject to liability every time under title not but that's not all stand except that it's not like a situation where i rape occurred on campus and nobody knew about it it's a situation where he's watching it happen and he does track where we're looking to face the possibility of the compliant the question is is watching the boys grab and drag her should have given him notice that she was about to be right i think that that is not have a reasonable inference given what happened what else did he give notice so what was the innocent explanation of three boys grabbing and dragging a girl and bilking  sister alerted defendants to the conduct which would obviously refer to paragraph thirty three dollars and thirty six dollars says he witnessed them grabbing and dragging i mean that's that's pretty you know one could be a little a little more grammatical but isn't that all pretty plausibly what is alleged here yes i mean it's true that he doesn't allege that he saw anything happen once they got to the building or in the building but there's nothing that indicates anything other than he saw and knew about the conduct up to the point of the building is not a fair inference all reasonable inference is i don't know dragging erin did the abandoned building to beat beat her what you have not answered my question what is the innocent inference that a reasonable human being would draw and draw from the fact that three teenage males were dragging a teenage same male into an abandoned building on the perimeter of the school property if that is the inference the court is drawing from the allegation no no answer my question are you yes i have a then tell me the innocent explanation what were they going to do that was exemplified our predicted our forecast by them dragging her into a an abandoned building off campus are on the perimeter of the campus i do believe your honor that it is a it's not a stretch of the imagination that she she could be sexually assaulted i'm not asking you to stretch your imagination in that direction i'm asking you to stretch your imagination in the innocent explanation and i'll tell you i'm going to last you any further speaking of harassment but i'm going to just simply infer  i do not believe in the allegations of the complaint demonstrate that the district through principle did take action and so let me ask you this on that point that a lot of the counter there might not go at a summary judgment stage or at a trial stage that is you know maybe the principal maybe is five feet tall and these teenagers are already six foot three and he said you know hey it's just not my business to get involved right now on the other hand depositions might say you know happens all the time at the school but wouldn't that go beyond the ten to twelve basic stage oh no your honor i think the allegations that we have before particular the allegations of the police's determination that the incident involved was consensual in nature will not address the sexual harassment unfortunately we live in a time where middle school students do or i understand that mr von when he contacted the police met with the mom and kay are the allegations support that the district was not deliberately indifferent on it had actual notice of the actual rape well so here's here's the thing about that couldn't run that may had actual notice of a potential rape when he saw her being grabbed contract and he had time to do something about it i'm not sure the allegation shows that he had time to do something about it well he could have stopped them i said that a reasonable inference from that allegation that these circumstances you know if if this incident is happening at the end of the day school is out it may or may not have been on campus we do not know where m standing at the time and if the allegations in the complaint does not demonstrate that he had the opportunity to jump in and stop or do anything i think that that is an unreasonable inference from the allegations that are before us particularly when it is alleged that the police determined that it was consensual in nature and principal one contacted the police immediately on the day of the attack that doesn't really have anything to do with whether he had an opportunity to stop it well your honor i would just reiterate briefly just to pick up on this last point about the allegations in the complaint surrounding where may was standing what he might have seen what he could have done did he have time to respond that i think that just underscores that we're at the twelve the sixty age  those inferences have to be drawn in favor of the plaintiffs i would just add to that point you know there are things that someone in that circumstance could do short of actually physically intervening no one is suggesting he has to physically charge in and pull these boys off simply he did nothing he could have called over and said to k are are you ok you could have called over the boys and said what's going on this is two thousand and fourteen he could have pulled out his cell phone called the police if there were other administrators or teachers around he could have called over to them there are any number of steps short right you are and i'm just saying that in this all these gaps in kind of the information that the board is drawing and asking for inferences to be drawn in their favor you can do the exact same thing with pointers the difference is that at the twelve the sixty eight dollars any reasonable inference your complain on this last question last point that came up about whether may had time to do something about it i think that the court is a good understanding of this again you have the twelve the six in princes the fact they were the twelve the sixty ages is a factor here but also you know in the hill case i think it's worth noting one of the facts that this court pointed to to show that school administrators had notice in hill was the fact that one of the assistant principals learned of the rate based scheme quote a few minutes before it went into effect and you know reasonably this court thought that was sufficient time for the assistant principal to act there we think a similar circumstance applies here i'm happy with my remaining time to address any other questions the court might have one and it's not legally