talent in this matter this is a title nine case that i think probably turned mainly on the issue of deliberate indifference and how that is defined with respect to the facts in front of us and we have a case in which a minor in middle school engaged in a pattern of conduct  that for years was destructive and disorderly many years of misconduct and he then wrote several very inappropriate sexually explicit yes and the letters were very sexually explicit with respect to engaging in sexual activities they were directed the first letter did in any event the action that the school chose to take was in the first instance for in school suspension in the second instance was out of school suspension but the school took no action to notify my client's mother or father and didn't take any action to separate the two students and what it resulted in was an after school activity in which my client was playing volleyball and this young man was and supervised at the after school game at the volleyball game at which both the vice principal and the principal saw him and interacted with him and were aware that my client was playing volleyball although they didn't see her specifically but they took no action other than to tell him you need to leave and that was it and of course he didn't leave he then sexually assaulted my in fact whether she did or didn't but i don't think you could really expect a middle school student to understand the ramifications of addressing that issue or you know or whether or not they might just be afraid to fess up and tell the  truth and talk about any kind of a relationship that they're having with a young man in middle school so she did deny receiving them there is no evidence that she did other than the boxes saying you know do you want to have sex with me check no actually checked but the letters were taken up from this young man's desk at school so they were taken out and kept by the administrators of the school and however there was no opportunity for my clients mother to intervene to do anything to address the situation to talk to her about it to take any action all and then when they saw him they knew that this young man had a history of lying of not responding to discipline they had years of corrective action that had no effect on him whatsoever and they in fact told him after the first letter don't write any more letters like this and he wrote the second letter within i believe two weeks after being suspended and told not to write another one he then wrote the second one which they found there may have been others who knows but it was within i believe five days of the second letter that the sexual assault occurred so obviously whatever discipline they were meeting out had no effect on him whatsoever but i think there are several things that take this case out of the purview of other cases where they have found no deliberate indifference one of them being they had literal specific direct intent for this young man to sexually assault my client this had been a letter where young man had written i'm going to come to school and kill you i'm going to come and shoot you and they had taken no action and the kid came to school and wrote again and killed that killed somebody i think that there would be no question as to whether or not the school had acted inappropriately allowed something terrible to occur the fact that this was a sexual assault shouldn't make it any different  mean it's just as terrible as just as horrible and the intent was just as clear so i think that that the district court basically said that there was no evidence that the principal and the vice principal actually drew an inference that there was a substantial risk to my client which you know in any case an administrator can say well i didn't i didn't actually know he was going to hurt her i don't think that's the standard that there is a case that is specifically on point with the facts but i have i would argue that the u s supreme court davis case is very similar in fact where in that case  the davis versus monroe county board of education it was a fifth grader who's said things such as i want to get in bed with you and made other sexually inappropriate comments and read up against her and the court found that the school had had the authority to take remedial action and failed to do so and i think that factually that's a very similar case yes and yes your honor they did and i do i believe that this case meets the standard of deliberate indifference and i think that that the deliberate indifference standard was actually addressed in detail in more depth in the rest  case where they said that it occurs when a school chooses not to alleviate a known danger and so the danger in the present case was obviously known since it was a specific and direct threat and the school chose particularly when they encountered the young man at the volleyball game not to alleviate the danger whether or not the earlier discipline was appropriate or inappropriate or effective or in effect as obviously ineffective they did something they didn't do nothing but there are also other cases where the school chose to do something and the court still found that it was met the standard of deliberate indifference so just because they did something doesn't mean that they were deliberately well yes they instructed him to leave however at the time they encountered him they knew a number of things about him including that he was a liar and that he was disruptive that he didn't follow instructions and that he was likely not to follow that instruction and so simply saying hey go home and leaving and leaving him there knowing that he's unsupervised and shouldn't be there was deliberate indifference particularly in light of the fact that he had made specific threats of sexual assault he at the time that he picked her up and carried her into the restroom they were in the hallway no honor there was new screaming or yelling at that time but your honor i would contend that a girl of those tender years really can't consent to that kind of conduct so whether or not she yelled or screamed or fought i don't think is particularly relevant to whether or not a sexual assault occurred there is i don't think any dispute that there was sexual activity going on whether or not she fought against that or didn't intercourse with her and he literally said i'm going to do these things to you so i don't know how much more specific intent could be relayed other than saying i'm going to do  this which he did and they were both the principal and vice principal were aware of the letters they were aware of the intent and they were aware of his history and his behavior and that he didn't belong at the game that he was unsupervis and this all occurred in a matter of weeks between the letters and them in carrying out the volleyball game so in that respect  more supervision and closer scrutiny and it would put him in it would separate him from my client physically thank please the court i am bridget robinson representing the crowley independent school district your honors in this case the district court properly granted summary judgment for the crowley independent school district the district court applaud the correct legal standards did not pardon me that school district did not have actual knowledge of harassment or a substantial risk of serious harm to appellant and second that the school district did not act with deliberate indifference with respect to a r s disciplinary history the two school notes or its handling of the bathroom incident additionally although the court declined to address the issue of discrimination it is clear from the undisputed summary judgment evidence that the school district did not engage in intentional discrimination that deprived appellant of access to an educational opportunity for any one of those three reasons  case files and this court should affirm the summary judgment in favor of the school district beginning with plaintiffs appellant in this court failure to establish actual knowledge it is clear from the record that there was no school district official who was aware of facts from which an inference could be drawn that a substantial risk of serious harm existed and that the official actually drew that inference this court's precedents in rosa h versus and all is oreo independent school district requires both prongs to be meant to create a genuine issue of material fact  this case as you heard here today appellant herself concedes that the school district took action each time there was an incident involving a r appellant also concedes and included in her brief a r s disciplinary history and told you again today that he engaged in disruptive behavior disorderly conduct and other disciplinary infractions such as refusing to follow teachers directions none of those disciplinary incidents put the crowley independent school district on notice that there was a sexual predator on the loose who might attack a student at any moment this case in fact is very similar to the sneddon versus board of public education case in which even though the student had an extensive disciplinary history and in that case even though the student had touched a female students breasts and called both her and many other students things such as whore and bit on numerous occasions described in the opinion as being his common practice the court found that there was no actual notice that a sexual predator was on the loose the sign is true in this case and the trial court considered appellants theory and correctly concluded that it was not reasonable to expect the school to conclude from this record that a are would or could sexually assault another student in fact if you read the court's decision on page four eight zero of the record on appeal the district court performed an analysis of his entire disciplinary history and found that even though a r s disciplinary history was extensive other than the two notes the only disciplinary infractions over four school years which plaintiff included in her brief being the two thousand and eleven two thousand and twelve school year the two thousand and twelve two thousand and thirteen school year the two thousand and thirteen two thousand and fourteen school year and the two thousand and fourteen to two thousand and fifteen school year at issue in this case there were only two incidents that could even be remotely characterized as sexual in nature the first was riding in now to another student about kissing a boy in september two thousand and thirteen well over a year before this incident which had nothing to do with even kissing him it was basically teasing a student for kissing another boy the second was calling another student a prostitute in september two thousand and fourteen even though if you characterize those two disciplinary infractions which constituted disrespect and derogatory verbal statements and were punished as to be sexual it  clear that the school district did impose consequences disciplined i r and moreover the school district continued to follow its discipline matrix and imposing progressive consequences where for any infraction in any school year there were greater consequences imposed for each infraction so plaintive herself in argument today basically conceded that the school district was not deliberately indifferent when she said the school you engaged in years of corrective action as this court has held numerous times deliberate indifference is a much higher standard than negligence or even unreasonable miss even if you second guess the actions taken by us call district if there was some action taken even if it was ultimately ineffective in mitigating the harm or obviating the harassment the school district cannot be found to have been deliberately indifferent the court properly found that the actions taken by the school district in this case were reasonable not only because the school district applied consequences that were consistent with if it were a serious infraction yes your honor and the discipline my tricks takes that into consideration it takes into consideration both the seriousness of the fans and the number of disciplinary offenses so for example in this particular case they are received greater consequences for engaging in the sign conduct because one would be a first infraction one would be a second infraction take for example the two letters that or two notes that appellant climbs should have put the school district on notice and which they handled in a why that she characterizes as being deliberately indifferent for the first note which was found which the court correctly noted had to ballet and it did not have appellants full name on the letter it only had her first name if you generously agreed and tried to discern the pin meant shit although the letter actually looked lock it was reading written to ma by a d b and that characterization is in the record on appeal at page five sixteen of the summary judgment hearing transcript with which characterization appellant took no issue but it does actually look lock to b the second letter or note was only addressed to bay but because the school district tried to disarm what did that d b mean that i interviewed students whose names were anything similar to that including plaintiff in this case the reason that appellant's mother was not contacted is because when the assistant principal talked to a pal and and asked her if she had received any unwanted attention from anyone she said no he asked her had she been uncomfortable or had  anyone made her uncomfortable and any why she said no he asked her if she had received any notes or letters from any other students she said no he asked her if she felt like she had been harassed by any other student she said no he asked her if there was anything that made her feel that someone was showering her with attention or affection that was unlimited and she said no he asked her if there was anything that happened that made her feel uncomfortable in any way to please talk to him or the school counselor miss thompson and she said she would but it's uncontroverted that appellant never spoke with anyone and never claimed anyone she was uncomfortable in any why because the district did everything i could to determine whether appellant was actually the target of that first letter which did not threaten a sexual assault rather it inquired about willingness to engage in consensual sexual conduct and said thing such as i need another kiss but longer and do you still want to suck my ass lying for private part with a box for yes or no in which the yes box was checked and then also had a question do you still want to ride my ass lying for profit part with another box for yes or no in which the yes box was checked there was no indication that a sexual assault was attended rather it was a query regarding consensual sexual conduct appellant in her argument before the district court in her brief before this core and again here today told this court well it's reasonable to expect that a student involved in a relationship with another student might not want to admit that to school administrators however if appellants theory is correct and her client actually was the person who received the letters even though all of the summary judgment evidence including her own deposition testimony was that she never saw the letters never read any notes or letters didn't check any boxes and didn't even care about any notes and certainly knew nothing about them they were never delivered to her which the school district confirmed then that would actually establish more reason for the district court's granting of summary judgment in favor of the school district because it would clearly show that this was a consensual sexual activity albeit between minors obviously the school district cannot alter the fact that adolescents enter puberty and are flooded with new hormones which often costed us to desire to begin dating and sometimes even in gauge in consensual sexual activity looking at the record as a whole though even if you believe a palace deposition testimony that she never saw the letters that she they were never delivered to her and she did not check the boxes yes that were checked on the letters all of the other summary judgment evidence stablish is that it does appear this was twelve your honor and d s the pallant had a birthday a little later in the school year so she would was not quite twelve at the time your hon your honor it's interesting though that one of the things that appellant climbs in this case is that the students should have been separated when the evidence is clear even from appellant own deposition testimony that they were separated in fact they were never in class together which appellant herself admitted it page eight twenty five of the record on appeal the reason they were not in class together as also shown on pages seven eighty eight and seven ninety nine two hundred of the record on appeal is because a are the male student was a special education student and d s the female student was a general education student that is another reason that after the district became aware of this it's a d n a not because it was reported by  appellant because it was not it was reported by another student they had to go even though he was immediately sent home on the bus that day and suspended for the next three days pinning the investigation the the the manifestation determination review had to be conducted by the special education committee to move his placement to the alternative education placement and place p the disciplinary alternative education as a result of this incident but i would like to go back to the issue of whether it was consensual sexual activity as i just mentioned  yes your honor i think the evidence clearly shows in the video shows seven eighty five of the record that there was more than an hour and a half of interaction summary judgment evidence which shows that the school district was aware of anything that would cause them to jump to a conclusion or have any idea that this behavior could occur regarding appellants clime that the school should have been aware because they are was at the intramural game bleachers and white for his ride home he knew i are left more than two hours two miles from the school and therefore he did not want to require him to walk home when ms bland the principal saw a are in the hallway outside the gym and is also reflected in the video page seven hundred five of the record she also questioned a r about being at the school and told him that he needed to get his rod and go home but it is clear that appellant was not in the area at the time and ms bland never saw her the  uncontroverted summary judgment evidence a stablish is that in fact mr hunt did not see d s at the school that afternoon at all and he certainly did not see her at the  games in the genome or in the hallway that's in the record on appeal at page seventy three ms bland also did not see appellant in the hallway or at the intramural games that day and that's in the record at pages eight zero two eight zero three so there was nothing by which these officials should have or could have known that there was any threat posed by a r to d s when they did not even see them together they had no classes together and d s had previously been told if she ever received any unwanted attention or was ever uncomfortable in any way to place speak with the female coun the assistant principal or any other adult and she said she did her own testimony was that she never reported anything to the school district and the one student who did report this incident the following day said that the two students were boyfriend and girlfriend as did the other two students who were there it is clear from the record that these students were never together on the campus after this and there was nothing that that should have alerted the school district to act in any why other than what they did for all those reasons your honor the district court's decision rendering summary judgment favor the school district should be affirm whether or not my client was aware of the intentions of a are is completely irrelevant if if that student took a gun to school and shot somebody would whether or not that person was aware that he was going to be shot make a difference i don't think so so her knowledge of his intentions has nothing to do with the school's knowledge of his intentions and they obviously were aware of his intentions because he made them very explicit  with respect to notice i don't know i don't know how many incidents that a school would need and how much notice does it take he wrote to specific letters saying i am going to do these things to you desire yes some of them dumped some of them don't have a yes or no some of them say as a matter of fact the second letter says i want to do this today uses the literally the word today talking about i believe  saying that it is an expression of his intention whether it's whether it's with her cooperation or without her cooperation it is an expression expression of his intention to engage in that kind of conduct so and even if it's just an expression of his desire certainly you have a child with a very very long history of troubled behavior it it's not something that can be just passed off as oh this is just a i'm asking the court to consider that the school should have contemplated that not accepted it as a direct threat necessarily but at least contemplated that it might might be a direct threat certainly you know the parents should be informed that should be at least a consideration because if it is a direct threat it's going to result in a sexual assault which is what happened and i i take a little bit of issue with the notion that this was not a serious infraction or the a potentially serious infraction and a sexual assault is a very serious infraction and a potential sexual assault is a very serious infraction it's not something that you know that should be considered of you know minor infraction that can be dealt with within school suspension that there are a number of cases that we listen our brief where courts said that even though a school took some action it was not reasonable action under the circumstances and therefore it constituted libert indifference that i also want to note a couple of things first of all mr kent the vice principal admitted that he believed the first letter was addressed to my client so there's no question about that it's in the record i'm at the volleyball game the school did not follow its own disciplinary policies neither the vice principal nor the principal followed the school's own policies that required them to make a or leave the premises because he was not supervised and did not belong there at the time to say that they did not that they were unaware that this could happen i think is a very disingenuous argument they knew that she was on the