and may it please the court my name is david curran represent the university of arkansas which is the talent in this case and saw someone versus texas supreme court held that the state does not consent to waive its sovereign immunity to private states for monetary understood that section the court was interpreted in the argument made by the prisoner in that case which was that if relate to fell what then i know what they were discussing but that's what they said when i read it wasn't how can we do anything but understand that and i would submit that since it's not even argue about party there's no analysis there that is not even considered that taxes are given tiredly different point that really is if it does not fall in the residual cause having won that argument there is no occasion to go further and do any considered analysis of the issue and we look at what the supreme court has actually said as consider dicked on two thousand and seven its made contrary assertions if said for example and franklin their two thousand and seven quote  congress expressed no considered judgment as to the available remedies so set up the analogy there likewise two thousand and seven express is now considered judgment as to the available remedies that is considered that i think is impact for women congress doesn't express a considered judgment that's that's a disconnect for me congress right statute and lawyers and look judges and executive branch agencies attempt to do consider judgments we don't find considered judgment in the statutory language we will base the sometimes congress simply does not pass on the issue i think is the point and here has some how do we how are we supposed to divine that because the statute simply does not say it sets up an f m proposition without saying whether any type of  is actually amenable to suit it doesn't say so this like the wanted issue in milwaukee versus illinois is one for congress actually delegated the issue to the courts to develop this in a common law tradition rather than deciding the issue for itself precisely stuck the words in there remedial scheme or perhaps the greater we can't say because the statute doesn't say so and lane versus opinion and frank on the court grappled with what does that or maybe a provision mean and came up with the conclusion that it is equivocal it just does in doesn't this one say i mean because it doesn't have the word damages and that's not my point your honor is it has to have a magic where they can say compensatory relief monetary claims but it does not make any of those types of things available ordinary remedy at why money damages isn't that just by definition did she learn that new your first year remedies class that's correct judge erickson but this statute does not make remedies at law available against any type of entity that's the problem congress had said remedies at law are available against not just talking about the state but it does anything available against the state all around monies that are available against anybody else it doesn't say by sovereign immunity it says the remedies are available to the same extent that they're available in its non and non state entities and then does not tell us think we just said the same thing using slightly different words maybe so but i guess my point is that it doesn't fill out whether i don't understand i don't see the equivocation but ok i understand i understand your well there's a there's an illustration about when congress does want to speak and i must back up what terms it knows how to do so so there is an intellectual property that's easy to say we hear agency but the judge like in the sovereign immunity context the supreme court has demanded that in that situation congress has a duty to speak but perfect clarity on the subject and other statutes are illustrate of when it can do so so for example in the intellectual property damages so there we have to speak up i can't i'm sorry i'm too old i can i can understand you so there's a statute in the intellectual property arena and copyright trademark and that example reserved the issue of whether compensatory damages were available under title six and lower courts actually said in both lieberman and the seventh circuit and braden and the fist circuit held that compensatory says public or private had to be at the end of your of the key statute now that's what i call the franklin bootstrapping argument is is that you know if congress and acts a statute in one thousand nine hundred six then what about a case that decided six or maybe sixty years later which settles the issue as to another type of entity first of all that doesn't deal with the possibility that the federal government is among those type of entities but more importantly congress cannot discharge its duty under the clear statement rule by delegating that issue in the courts and that manner this frank court has made clear that and salzman for example that court federal courts may not step in and do that abrogating when the statute itself has failed to do so so we is a much more defined two one more easily understood and it talks about reference then to any entity public or private i mean i'm having a hard time following what's exactly necessary to  satisfy your version of the rule it's and to be clear my point is not taking issue with the phrase remedy a law to satisfy my understanding of the clear statement role the congress could have simply dropped a period after the word for such a violation and not included to the same extent clause but it didn't do that congress did not say states are subject to remedies the law only said it twice instead of once maybe three times if you do the first section do it better each time is said to the same extent there's always the qualifier and it doesn't say whether any type of entity is actually subject to a remedy a law that is not confronting the issue that's delegating the court maybe six maybe sixty years later franklin comes down and say well as to these other non state entities we did a spaced on inference based on a presumption about congress's decision making process that non states are amenable and then we attribute to congress that that was its go under this statute but this congress has got to demonstrate its considered judgment at the time of the and that if there never the questions are observed the balance might thank you good morning your honour's may it please the court my name is mason bolling i'm one of the attorneys representing the apple lemus freiburg or and the matter before the court today this show this court should confirm that the civil rights remedies equalization act forty two u c two thousand to seven authorizes money damages against state entities for violations of title nine and it should reject the university's contrary proposition for two reasons first as spending clause legislation two thousand to seven contains the requisite clear statement of all available remedies and states are on notice that by receiving federal funds they subject themselves to suits for money damages for violations of title n did not change that analysis and in fact that case actually undermines the university's position and several significant ways secondly as this court has previously held title nine is plainly section five legislation under the fourteenth amendment and damages are an appropriate remedial measure to enforce the prohibition on gender discrimination as to the first point you think and point is what the fourteenth amendment if for some reason this court found you thought you think our jurisprudence would go there take a let us go there well this court has ruled that title nine is fourteenth amendment legislation the supreme court has ruled that let me return to the first point here are two thousand to seven the remedies equalization act means what it says because damages are available against a private actor for violations of title nine their equal e available against a public entity our money damages available against a private entity seeing that answer is certainly yes then they are available against a public entity such as you mr clearly have left when that amendment was passed i think a reasonable reader of two thousand d'sevyn would have interpreted it that way oh no no no it wasn't the question you said it was damages were clearly available that against private parties and i asked you was it clear nothing wrong with that if franklin if we needed franklin to clarify the remedies that's ok if congress won it was resolving that circuit but they could have said said so much more clearly they could have clearly addressed it could have been how do we infer which side of the circuit split congress had in mind as the amendment well in part it's congress is in action since that time congress has on multiple occasions that's a bad way to interpret statutes we've been warned well and can and amongst other cases the supreme court has said we assume that congress knows what the supreme court is doing and how we are interpreting their statutes and if they wanted to correct what the supreme court held in franklin they could have done stuff that's not a good sovereign immunity area sovereign immunity jurisprudence turns on what the what did congress say in the statute it issued right and it has to be clear and unequivocal and if and if if congress was dealing with a circuit split and made no comment on it except to make a reference to remedies at law how do we how do we have the unequivocal that's the point well your honor the let me let me back up and say this it's reasonable to assume that congress intended for monetary damages to be available under title nine when they passed view two thousand and seven is an unequivocal expression of what remedies should be available all remedies and that congress when they enacted that the remedies were unclear they this room this remedy was it's not it's not at all clear from the congressional record that it was unclear to congress i mean there may have been subsequent court decisions as you alluded to earlier lawyers can always make these arguments that well wait a minute can't can and was was many be many jurors thought was off the reservation legally on the verdict from the text of title nine and that you're saying i'm sure i'm sure that i'm sure that the proponents of the amendment were clear what they would like to have how they would like to have been interpreted and i'm going to i mean that's that's looking at that's looking out over a big audience and finding your friends yes your honor but congress in fact as as the main opinion the majority opinion validation of can and word what the majority wrote was that the only used the word validation if you don't know you i don't specifically we're going to i recall that justice scalia did use the word valid not only is that a validation of canons holding it's an implicit i know the rest is ok but the majority did state in fact that they could not view any congressional action to signal anything except remedies were not limited in any way for violations of title nine and justice scalia agreed with the university since franklin at least and really even since two thousand and seven struggles to come up with any cases where a court has agreed that two thousand and seven is lacking in some way and so those are cited throughout the breeze and a variety of circuits in light of that from the university sort of past to say that a sufficient waiver then what then the world has to kneel and pay homage i did not i don't understand the argument i'm not suggesting that the courts spoke awesome and announced and all tried clear statement well that's the university's position i don't think sassaman changed sovereign immunity jurors prove it apply it to a difficult question i agree apply apply sovereign immunity jurisprudence as the supreme court was reminding them and sosman not on this issue of course and that's the critical part the software was dealing with something totally different at in fact sawsan minute what that means it can be context dependent right you need additional information to know what appropriate really fits that's not what two thousand people that are going to either side of the before the decision i'm sorry you're on a could have argued either side of the proposition  damages against a private entity and everyone knows that you do now under title nine then you also get them against a public entity that's exact secondly and footnote six justice thomas noted that we can't look at other appropriate relief cases where the court has to find that phrase to determine what might be available against a sovereign and the language he uses there is very interesting because it actually seems to parrot two thousand and seven sovereigns could not put the states on notice that they would be liable in the same manner absent an unequivocal textual waiver so that's exactly what congress did in two thousand and seven they said ok here's an unequivocal  other statutes prohibiting discrimination and at that point justice thomas in the supreme court at the perfect opportunity to announce the rule the university wants this court to adopt which is that it must say states are subject to monetary damages instead what the court said is no we're loop is not a statute clearly prohibiting discrimination such that it would fall within the residual clause of two thousand  students who are no longer attending the university or the school there is no other relief available to them otherwise they'll be really remedy less if monetary damages are on the ta amakosa brief points out a number of reasons that in their first hand experience that's been true for one thing you're putting aside the capable of repetition students but it would not it would not do anything to assist the student who actually brought the case the person who were seeking to make whole but perhaps the most critical policy argument that dovetails in with what congress intended is if we were to suddenly say that there's a difference between what remedies one may seek against a public entity and a private entity we have a major imbalance for students across the nation suddenly ones that attend private  rights remedies equalization act that was the whole point of it yes there are discrepancies in the great number of areas of law between public and private entities but congress spoke to this one directly and said those differences should no longer exist the remedies should be equal and that's the rule that we're proposing this court adopt and if there are no further questions we ask that you affirm the district court thank you to be clear section two thousand and seven does not say whether remedies at law are available against any type of end to the u s supreme court made that observation in both franklin and you  phrase appropriate relief at a rich history in case law as signaling damages at the supreme court refused to use that case law to add damages to the statute because the statute itself did not clearly say so so the case really comes down to this idea that i called the franklin bootstrapping argument which is that the clarity exists in the statute because years after the statute was in the acted the court not congress finally answered the issue as to non sovereign entities based on a presumption that that's the remedy that exists unless congress explicitly rejects the sentence that comes from the majority opinion it does mention it says validates canons holding which was that an implied right of action that exists but the same passage that very same passage of the court said that two thousand  about the nature of those available remedies and then it talks that it got the analogy to the saving closet issue in milwaukee vs illinois where congress expressed no considered judgment on the issue so the court was there was really grappling with the issue of the fact that congress passed legislation on the topic of title nine generally didn't say anything about rejecting a damages remedy and so then as against non sovereigns the rule of bell versus hood means we can apply that rule as against nonstop but the fact remains that congress has never said that remedies that law are they against the states and it is fundamentally at odds with the clear statement rule for courts to supply that clarity when it's the obligation of congress to confront its duty to grapple with the ramifications of overriding the state's sovereignty that is the very purpose of the clear statement rule and delegating that task to  federal agency or a future court and a common law tradition defies the purpose of the clear statement wrote a conditional waiver is not a clear statement waiver and for that reason we would ask that this court reverse the district court next case for argument a case number seventeen dash thirteen fourteen western