to years ago to a judgment in our favor record forty seven forty two and those finding supported that judgment and that is the judgment that we believe should continue to be entered in this case to reflect those findings those five findings a like to use to frame the issues that been briefed to the court in the extensive submissions by the parties and in particular i would begin in the middle of the five submissions questions three and four which are the questions that submit these issues of actual notice and deliberate indifference as to which there's a dispute in the papers about sufficiency as to which the district court focused on his analysis of the issue in his jan of emotion and there's a lot of law about this  most involving somewhat different facts a lot hard to find a good analogy but what what struck me in coming back and in looking at the briefing again and the charges it was submitted there's this idea it's in the judge opinion it's in the briefing of our opponents that the actual notice part of it in question three and the deliberate indifference part of it and that part of the submission they're sort of separate they're sort of siloed and i think that is  the two ships have passed in the briefing that's been submitted to the court the question of what the district knew and start with action upon is not so easily separated from what they failed to do in the acts and deliberate indifference we here evidence of written complaints to the administration of the first school that little tea attended about mr evans doing things he ought not be doing in very serious things things that there is testimony in this record from multiple witnesses  there but what that analysis misses is what else was implicated at that time when they had those notices and had those meetings and then resolved to follow up there is a written policy that the parents are to be notified instantly i noticed a typo in our brief on the page number for that it's record or a way one one zero seven eight and seventy nine somehow it got scrambled the briefing plain as day the parents are to be involved when there is  a clearly stated round of harassment that did not happen there is a best practice a good practice of reviewing this film and watching him in the classroom the memo talks about acting as if  there's a t v camera there all the time of course the best practice is not to say let's play pretend it's to send somebody down there ms hughes who's the relevant administrator in charge of all this says that's what they ought to have done they didn't do that there's some dispute in the evidence about that but we want the jury gave credence to our side of that and the record as is presented this work shows that did not happen either and finally this business with this gentleman's personnel file it was not handled properly it was not transmitted to the administration of the new school and everyone involved the new school says i wish i'd known that these are things that link the actual notice the district had in these written warnings that were given to them with what happens later they are policies they're written in some cases they are acknowledged openly in other cases that show this was serious business you don't get in a situation where you talk about monitoring a classroom you don't get in a situation where you're worried about the contents of the personnel file that's a big deal that's the kind of deal that they had that's the kind of policies they had in place to deal with the out and none of them would follow through with and that forseeable a then set in motion what happened at the next campus there's  but that's the problem the jury is not tasked with being precise with giving dictionary definitions to things their charge of answering the questions that were put to them if one assumes that actual knowledge and deliberate indifference are preferably submitted the administrator are very similar in this respect they're both folks no longer with the district or off to other sides and particularly a case of miscues they kind of have some sympathy on both sides that's of sympathy for their old employers and for our little t and there's a lot of trying to their best in the courtroom some of it is inconsistency but what your honor it is is there in the examination is burton there is other testimony by her talking about what she believes she said in direct and the jury it was their task to sort all that out there is not like it's not a summary judgment they should have one affidavit and we can look and see exactly what was said this is a human being talking under a lot of stress she has these handwritten notes she also gave an oral report and that of all that it's fortunately relatively easy to read because her she's a pretty fairly limited role of it but the excerpts your honor sites like the excerpts from his hughes testimony about the administrative issues there's a lot of back and forth all which are jury questions to my to my way of looking at it and th issue about the conflicting testimony rutan and hughes in particular or more accurately testimony that needed to be weighed goes to the question of the point in time and my argument about linkage here the jury can of course look at any point that's most favorable to us in the light of that we look at this jury verdicts and i would suggest that they did that that they took a favorable view of what the district was told it took a viable view of the policies that took a favorable view of what the district then knew and then looking back and made a decision in light of all that to go in a silo by silo piece by piece misses the jury's praga to have to look at all the evidence put it into a timeline and those that's questions three and four and this issue about  notice and deliberate indifference which enormous about eight was spelled out in the briefing one two and five deal with the question of intentional discrimination and coming back to a kind of cold the difference between intentional discrimination and deliberate indifference is a little  cases and then that gets picked up in some sort of law about education doma pile is never mentioned again and we come back together in this case but i see you don't know pile as an accurate statement along at that time there are questions now about the evolution of the law after that i could be wrong some one about the dates of that but it seemed to me it was an accurate take them where they stood then and subsequent development of it was was not at issue i thought mistaken about the time line them up stand to be corrected but as i understood it it was sort of a snapshot that then got added onto by further case law the other thing about don't know pile whether or not there's a question there as to the standard on those the certain fourth factors in charge there's no word in requirement of that with the gentleman they had there that was having the trouble talking to the police officer it would have made no sense to do that there given that fact situation and that aspect don't piles clearly good law continues forward it would make no sense to have such a requirement here where this gentleman only saw people who could not speak and and you could not go find somebody to to use that some kind of a point of comparative or in addition on this question of whether you need to have a  their disability but she said otherwise in that same stretch there's a back and forth and how the question is asked so there is some evidence as to that and i think every cross examination of one of the experts or one of the administrators in the case acknowledges sort of the obvious that someone who cannot speak is someone who is unable to respond and to speak up and be heard from and acknowledging that us there is a disability that affected how this gentleman was able to treat these people and the ability of this person to speak up unlike other people in the school so it's a little bit of the obvious but it's all agreed to and everybody agreed that that was a meaningful i mean full distinction acting to act interacting with one another all over the place and you do have to sort of separate out who's getting treated they don't have a specialized environment like this and i think that's an important factor to keep in mind as we look at how all this this fits together the other issue about domo pilot coming back to that because it's something i was looking at and reviewing these cases again to be sure it's been out there for a while doing it's doing its thing being cited and relied upon and primarily in district courts are being cited but if you look at it step back and look at  differently it's not really in conflict in this submission there's one two and five lay out that like all the delano piled theory three and four lay out these additional bells and whistles but actual notice and deliberate indifference i think the court can affirm based on with you fall back to just one two and five that that is recognised by lines of authority that talk about intentional disability based discrimination and i worded my argument about sufficiency earlier in terms of what the district knew and how it showed it was serious what the policies were but the fact the district had those policies was aware of what was going on the unique vulnerability of the student and then just dropped the ball is evidence from which you could infer that and that is a viable theory and continues to be in some respects still bit of a tempest in a teapot the special rules that came up in these peer on peer cases deal with those situations where vicarious liability and scope are particularly important issues but they're not present discrimination that has been recognised throughout the land continues to be recognised and just hasn't seen a lot of airplay in the school cases because of the specialized rules of come up these specialized situations that doesn't mean the underlying analysis  the court tom brandt keller infant school district judge means was correct when he granted killer eyes to his judgment as a matter of law because the jury's verdict did not support of course the gaps are supreme court rejected responding at superior liability and opposed an actual notice the liberty in different standard under title none but the gets recorded was and looked at the express remedies misread remedies under title nine and said that the implied remedies would not be different from those expressed remedies required notice to the district of a violation an opportunity to correct the violation we are in a in an implied cause of action here so what the what the gaps or court did was they found that in order to have a cause of action for damages slide that you had to have proved deliberate indifference actual notice and deliber indifference that notice and explicitly rejected a lower standard because it was concerned that to do a have a lower standard would mean that the district would be liable for the wrongdoings of its employees directly and that was explicitly held in good and capture legislation footnote three schoolie writing for the majority and barnes explicitly rejected just justice stevens his argument in the dissent that title two of the a gay shouldn't be treated like spending clause of the geishas legislation but what he said was these are interlocking statues interconnected it's sort of a difficult graph to follow but he but he follows it and says this is what the title nine and section title six and section five zero four and title to the a are all interconnected statutes interlocking and that they all require actual notice and deliberate indifference and that's for the same reason that gets or did because of the difference between the express remedy and the implied ranie i mention the bank has an argument here about the spending clause that that's completely foreclosed by footnote three in barnes also the bank refers to the sheehan case and that is misplaced they ignore barnes footnote three and then they say that she had punted on this title to a gay issue that's nothing of the sort it was not reached by the supreme court and she handed because the supreme court said wait a minute both parties in this case are agreeing that vicarious liability is is is the norm we have never decided that issue but and we won't decide it now so she had and did not establish different standard and that was in a case of where there was intentional allegations of intentional discrimination by the school district itself lance and his progeny precludes the jury verdict finding against the evidence is actually if not to the contrary and least it is it really is contrary evidence that there wasn't a follow through after this meeting that it be wasn't monitored and basically  good i'm not getting along with evans and he's being inappropriate rough with the kids tend to tailor looked at that she answered use the supervisor interviewed the bruton interviewed followed up their meeting with that written document now the issue of you're asking about is the final issue that is ted the taylor said she followed up and in that point i disagree with judge means he thought there was a fact issue there but i don't think there was what the testimony was with that teacher said i followed up in a way that i would look in occasionally into the written a peek in and what essentially the of the testimony was that the teacher evans and the existence written never noticed when ted taylor was peaking and that's not a direct contradiction of the evidence but even assuming that you take that as a conflict in the could be construed by the jury in favor of the pla you still have active response to the situation and then you have had to tailor not perceiving the teacher the principal not perceiving there to be anything seriously wrong here but actively taking a response to it following up with a memo getting a supervisor involved and then nothing happening after that for two years so in ted taylor's mind when she gives the positive recommendation saying yeah it'd be fine for mr evans to go on she's not she's perceived that she has actually taken care of whatever the problem was by admonished him by documenting his violence and moving on that's that's what the evidence and the jury had before it and that's why i'm saying there was no deliberate indifference there so you saying it's beyond the jury's authority discretion to weigh the evidence differently than you just did this nothing or no only on the issue that i disagree with judge means on i don't understand i mean that per persuasion i'd like to talk about perception again because when we're talking in general terms about vague allegations and we kind of go emotional and say all this is horrible things are happening but when you look at what actually the evidence is that's been the p in and that's where we go through we said ok what happened in april of two thousand and eight miss britton a teacher teacher's aide complained about evans taylor immediately investigated gave oral and written correction to mr evans and perceive no more problems with evans by monitoring the symptoms keeping a log of them and requiring two people to participate in diaper changes t r s own treating physician testified that the fact that t r was experiencing dystonia did not indicate hard evidence of that would have come from t r his own physician and he who was an expert in the study it said no that's not the way to stony a works it and he also said that the team would not be able  to associate some past of behavior alleged past abuse which was never proven but he would not be able to make that connection and then say aha my diaper is being changed again by this guy who abused me in the past policy as best practice not policy but a best practice that was for protection of the teachers and the students in october of two thousand and nine t r receives a bug bite  that is not disputed by any evidence any medical evidence because in the the what it what happened was testy notified mr rideau and t r was examined at the hospital he was diagnosed with a bug bite was prescribed at a histamines and the lump on his head did not have the characteristics of an impact injury there was no bruising the jury received no evidence that the lump on t r s head was caused by an impact injury or that it was caused by mr evans the only medical evidence was that it was a bug bite they could read on the mother testify that she didn't see a  something that indicated to her that was but by that was her lay opinion about what that bump on the head was but the hospital's medical opinion was that it was a bug bite that was the diagnosis and then december of two thousand  r suffered a broken thumb this choppa immediately investigates she did not find any evidence of the cause of the injury or even whether it occurred at school the jury had no evidence that mr evans caused t thumb injury and their doctors themselves testified that t r s condition lends itself to unexplained injuries because of the filing of the arms then an april first  the two thousand and ten two year experience short pain at the end of a physical therapy session a therapy session that mr evans was not involved with the law the school district immediately notified mr dunn and she asked them to examine his body they sed the nurse and the paramedics they stripped him to his diaper they gammon him and found no injuries t r was then taken to the hospital where he was dying medically diagnosed as constipation and to another campus and placed mr evans on administrative leave and investigated evans never taught to or again and this chopper reported mr those allegation to child protective services which found no no abuse april during her investigation april two thousand and ten is when mr chopra learned that evan sometimes did not do two person lives this choppa obtained the teacher's resignation and transferred his aide who had not reported his failure to do the two person lives then from that time the summer of two thousand and ten until january of two thousand and seventeen keller iowa city gave r one hundred hours of extra services and an individual aide to help them through it throughout the school day these are not the actions of a public entity which is intentionally discriminating against a student on the basis distinguished factually and legally number one though on a pile should be held to it's facts which are distinguishable from the facts of this case not first of all i can get this case like gabs or get her involved of discrimination based on a use by a teacher and that was a sexual abuse case by a teacher in this case where involving allegations of physical abuse by teacher allegations before  accommodation during an arrest of a hearing impaired individual not allegations that the police officer physically abused the arrestee that's an important factual distinction because the legal analysis route for responding superior or would mean that you would have to have the employee eat under the course and scope of the flame and it cannot while it can be argued that the officer in delano pilot was within the course and scope of his employment when he made decisions about accommodations it cannot be said that a teacher such as evans would be within the course and scope of his employment when he allegedly physically abused the student we don't hire teachers to physically abuse students and same with a police officer he's not he might be hired to to provide a reasonable accommodations during the rest but that discretionary call is very distinct from this so the teacher in gaps or was not within the course and scope of definitively told the court what it should do it was it made the district gets or barnes made the distinction between title one and title two of the a da for example the agency principle that gave the agency  comes from title one of the eighty eight was used in the don't want to pile decision improperly in the in a supported into a title to analysis that was wrong we know it's wrong because it gives her a bar pile and you've got an easy way to distinguish it factually because donald pyle again involved a failure to accommodate his ability not a an abuse a physical abuse by the police officer of even if dilana piled were to be applied we believe there was no not sufficient evidence of intent and not sufficient evidence of disability based discrimination finally and i don't think you will have to reach this i open if you do two points i want to make first is just to say i want to say for twenty minutes that are the jury arguments that you just heard for the last half of the argument there didn't work with the jury and it should not work here under the standard of review every every statement of fact that was offered to the court is something that was fought and disputed in this record i can only get on with you this question of does the initial report rise to the level of abuse page two of our brief cites you to the testimony of ms brooten on this point and is hughes on this point is there dispute about it sure are those words used though to characterize what the district knew yes and did you hear a word about the district's response that i believe was appropriate because of the seriousness of the allegations you did not there taking here but it's the that well hughes again she says if i had only known when this that this person came to the new campus that would have been a big deal it's the for the forseeable consequence of not washing the guy in the classroom not documenting the file properly not getting the parents involved is this guy can go submarine get put on a new campus with the exact same group of kids where their trouble and then pop back up again now it's two years because school years take a while and that's it takes a while for things for the interaction to play out in the classroom but viewed under the light most favorable viewed in the in the in terms of the way the district saw its own actions of hindsight the testimony of ms hughes it's the time issues really of no moment it's the natural way that things play out during the course of the school year is the forseeable consequence of the decisions made by the district and miscues summarises that was  you can find whether it's clash on this issue where the jury was intitled fine for us but i think a good summary of all this is that the district's actions speak louder than the jerk that he in the districts words the jury's entitled to consider all of it and it did and the arguments you've heard here are good arguments that they were jury arguments and they were rejected delanoe file three points and number one there is there is no tension there there is there is a theory there is a line of ca about your own peer harassment and some other unique situations in school law that's where this issue has come up with these the profound findings three and four have been required intentional discrimination under the under the relevant statutes has always been a theory factors one two and five don't know pile of notes that and recent cases of the circuit in the past there's been a little cross talk in between the cases where they haven't necessarily picked each other up but there's not a tension in the first place they're just two separate theories and they're all got some added to this charge second question i'm missing the factual distinction the factual distinction is there's a claim and don't pile the guy got mishandled because of his discrimination you need to him know compared to situation no comparative or unique to him these other additions has been added on those specific situations has nothing to speak to that third point legally the a b a none of this love about the different intentional indifference and all that out her deliber indifference has anything to do with an eighty eight point we talk about that never apply brief but whatever the effect that has don't know pile is the first and the last word in this circuit but the elements of a claim under section two of the a b a the imbalance maybe to the power imbalance of a teacher harassing a student is that peer to peer if the harasser was an employee of the school it certainly is not now there are some patients in this district that are in the circuit that is involved lamps and what not and go with the principle that is had on the students they have involved in actions by employees of the school even there there's questions about force and scope and who the person is working for