the next case for argument this morning is go against the madison school district good morning me please support my name's jeff herman from herman law on behalf of the palette school girls have the right not to be touched we are not suggesting that all touching would be inappropriate or constitutes sexual harassment i'm fact the council let me tell you what my basic problem is with your presentation there is no federal rule against sexual harassment there is a requirement under federal law that school districts not discriminate on account of sex in providing educational benefits so the critical question the supreme court said is whether there has been discrimination in providing educational benefits it's not just enough to say that a harassed be need to inquire whether there's a problem with the delivery of educational benefits and i wish you would address how the record speaks to that question well you get the answer that question judges that the new and the way gaps are in screen court analyzed this issue under title to address the question i asked the when eight when a child is in a school and they are being sexually harassed that violates title nine in the sense that need to enquire into the adequacy of the education whether joel was having educational problems in seventh grade you can take that view but of course you have to understand that i'm telling you that that's not the right question education being disrupted by the sexual harassment just because or sexual harassment you're saying still to show that their education is being disrupted mike and that your question theory i'm asking what the record shows about the quality of the education joe was receiving in seventh grade ok so the answer to that is that there was  that is going to say directly on point that because that on the record that shows that her education was being the plot won't let me take it back the answer is that when a girl is being raped and sexually assaulted and taken out of classes book that was eight grade and we need for you to prevail you have to show that there was a violation of title nine during seventh grade not during eighth grade yes so that's why i'm asking the question i'm asking let me and the the seventh grade violation is the sexual harassment that was taking place by willie collins walking up to girls who are having their lunch sitting at the cafeteria and he walks up he puts his arms on their shoulders any begins to rub them that's this rubs their education they have the right you know how they're on to school without being touched is there any evidence that it harmed their education you might have an opera your e belief about that but the question is whether the record supports that ok evidence well let me let me let me cite to the seventh circuit on this issue about his second book i'm done the seventh circuit is not evidence i am asking about the record in this case if there is no evidence in the record of this case you can say that if there is evidence in the record of this case please you know i'm trying to get the information to decide this is best i can if there is evidence in the record of this case now is the time to call it to our attention ok so the evidence  show this court is the evidence of the septa harassment the purpose of citing to the seventh circuit is to show that the seventh circuit of says when students are being sexually harassed in that way that leads to an interference in their education and violates title nine two have to start with what is a sexual harassment notice under title nine that's the inappropriate hugging in seventh grade that's the touching and i want to run i want to run through the record on those facts but the reason i cite the second circuit is because a sudden circuit has said in the merriam case versus north koreans that the damage caused by sexual harassment is arguably greater in the classroom in the workplace because the harassment has a greater and a longer lasting impact on younger victims and institutional sexual harassment an accepted behavior and so the very nature of a student being sexually harassed is interfering with their right to an education and impacts their education it sets them up for a lifelong damages and that's what the sun circuit said so we have to go back to under gaps or was there notice under title nine of sexual harassment before this girl was sexually abused by will account and the record  collins was rubbing shoulders he was picking up girls in the hallway giving them bear hugs lifting him off the ground full frontal hugs or is rubbing his body against eleven and twelve year old girls he had his hand on a girl's  not the lawyer for older children local lawyer for jane doe number fifteen we need to figure out what happened to change over number fifty five that would be the correct standard because until when it's an employee when you can stake everything you can stake your client's case on the position that you don't have to show anything about what happened to your cl that's well let's just say that's a risky legal strategy ok well i will show both of them but gaps or says if there is notice to the school or an appropriate person that a teacher an employee is set is is sexually was subject to the shoulder rubs that i described jane doe was subject to being picking up and being hugged jane doe kissed willy cones will account was constantly and it was known to the principal touching jane do for grooming process it is part of the grooming process it's but it would not be enough if it were words and things that we would say is grooming and red flags that did not constitute sexual harassment under title nine hundred one requires  actually be notice of sexual harassment we have that would change up the same sort of things that i described that willie count was doing to other seventh grade girls he was doing to change up but wasn't he also doing that seventh grade boys too with me hugging some quaint boys and doing i mean as far as the principal was concerned as far as kind of what as far as she knew right well principal said that it's not borne out by the evidence in the case in fact there's a video that i urge the court to review which was taken it's an eleven day but is there anything in the record that says that the principal had notice of the video yes well not the video perceivable was what's taking place in the video so the record about what specifically the video depicts so so there's no dispute in paragraph one eighty of the of the record that the video depicts the type of hugging that really count the type of fighting i'm wondering whether the principal actually had notice of the specific event so depicted in the video right correct correct so the what the way we get there is that it's an undisputed fact that the video represents that type level in frequency of the physical interaction between willie collins and the students that's an undisputed this behavior like that record is that this is the same kind of behavior that was taking place throughout the school years now defendants would disagree with our interpretation of the type of hockey you know they don't defendants disagree that when his hands going down he's touching the b contest that but they were talking about she had a better attitude her grades were better she seemed happier and everything else and now we know that's when the really disgusting behavior occurred and here's a critical point i think answers your honour's question education is what noticed the notice comes from the hugging in seventh grade and the fact that no action was taken allowed willy collins to then take her out of classes in eighth grade and a sexual assault or because the principal never told a te acher about this concern about lee hogg and willie collins hugging and touching this little girl so and the little girl only collins decided let's keep it secret and he was taking her out of class and he was sexually assaulting her reasonable jury could find that the school district had actual notice of sexual discrimination that rises to the title nine level the title line as this court is aware arises from congress authority under the spending kleis and he centrally title nine is a contract between the federal government and public schools if you were going to give you federal money you have to promise not to discriminate that is what gives the basis for the importance of the gaps are sort of elements of actual notice of sexual discrimination and the right to try to remedy that before they can be found liable for money damages now there's sort of a couple issues that were discussed at the circuit at the district court level and the first was actual knowledge of what and it's our position and i think the case law that i've cited in our briefs is that you have to have actual notice of sexual discrimination not adequate notice of a risk of sexual discrimination or something l particularly commendable but he seemed to be busy with a lot of young students some military and that's what i'm sort of curious about with some everybody noticed that  would you understand the record that's my understanding i mean the the hugging that was done was all in public areas he was a security guard and he that's where he was in the halls most of the time and the hugging that occurred a set forth in the record was mostly kids hugging him are they are there ok sions where he would initiate a hug there are but according to protection was not aware of palin's and the attack is the principal she was not aware of initiating hugs with with anyone other than his own daughter some of the there is but she was aware of him initiating these shoulder rubs to both boys and girls niece was in her grade and was a friend so that that's how the sort of there was a group of girls that became friendly with talents through the nice please do the nice she's the one that it's nice that oh i'm sorry that i was confused it was it was her cousin it cheap hooted keepers tell what happened when she was a freshman in high school to ja agree that this knowledge standard for seventh grade has to be actual knowledge of sexual discrimination and what we have here is kids primarily initiating the hugs with willie collins and i know that they don't have raised the issue of that children cannot consent to sexual conduct but that's not the issue here hugs in and of themselves are not necessarily sexual and we're not saying that welcome this is an element what i'm saying is that when you look at the totality of the circumstances when this you look at the issue is what did protect know so what she knows is based on what she hears and what she sees so when she's looking and she's seeing this public hugging that's happening in news she's seeing all these kids boys and girls all of the hugging  's when she sees that they're initiating it that's a concept to her that that would be a need is that it's less likely to be sexual harassment because they seem happy to see him and they want and it's many different children so i don't think it's an issue of welcome this under the mary m case i think it's a factor to consider and looking at the tail of the of the circumstances as to sexual harassment that is so severe pervasive objective only offensive that it is said to deprive the victim of access to the educational benefits provided by the school and that that standard one can be didn't subject to discrimination under any educational program or activity when you look at the davis case which is where the standard came from they discussed the fact that the language under  and the language under enda ed under any educational program that sets forth the standard that the district court used and it's not limited to student and student sexual harassment it's it's for all funding recipients and the davis case at multiple points throughout the case references the fact that the standard that was used in this case does apply to language is showing that there is a level of sexual discrimination that must be met before there can be actionable kind of lying claim and that's the standard that the davis court used and that's  standard that applies to employees student and student student sexual harassment claims and then my time is my time is up  students shoulder rubs that were brief and to boys and girls in the cafeteria there for her response of talking to palin's reminding him about boundary issues is approach is not clearly and reasonable given the