please the court good morning your honors my name is aaron block b l o c k on behalf of dr shockey and i'd like to reserve three minutes of time for a bottle if i may have a watch the clock thank you your honor you are i'd like to begin by focusing on title nine in the title nine aspect of this case now title nine promotes a couple of very important values in the st is that universities like arizona state absolutely have to take allegations of sexual misconduct on campus seriously they have to investigate those allegations they have to do a good job and where they're credible they need to take serious action but the other thing that title nine imposes on schools like a s u is to treat accused students fairly as much as a s u has to investigate zealously they also have to investigate fairly they have to honor traditional norms of fair fact finding and analysis they have to allow students who are accused whose lives and reputations are on the line the opportunity to defend themselves and i think it's important to back out a little bit and think about the context if you're a student on campus one of the most powerful government official encounter in your young life is a school disciplinary official these are people invested with an enormous power to dictate the direction of your future your professional future your social future your economic future and so it's important that school disciplinary officials exercise that great power with great care and i believe the parties are in agreement on the overall governing legal standard in a case like this and that is that schools like a s u are forbidden from discriminating on the basis of sex in the way they investigate campus sexual misconduct allegations i think and right counsel so how is your client discriminate against on the basis of sex charge you're on to a great question and i'll turn to that so what the courts of appeals around the country have coalesced around and i'm speaking of the nd circuit in a series of citizens the th circuit the th circuit this court has gotten this recognized the body of law but hasn't really had a chance to dive into the details what the courts have recognized that you have to look for a few different things in a case like this in a case like this where there's a claim that the student was discriminated on the basis of sex in the sense of an erroneous outcome ok sort of a finding of guilt that was erroneous or if i wait a minute yes was there ever a finding of guilt well and if so in what perceiving also it's a walk through that so there are sort of several different times where there was a finding of quote guilt so there's the initial finding that dr swack e was liable or guilty of the charged offense and then after he said i want to hearing people at the school officials of the school sort of treated him as a quote convict that's a quote why didn't i mean i understand you're an advocate and you're going to color it the way you want to but the reality is that at least my reading of the record doesn't show a finding there was an allegation your client was represented i wonder if you or some other counsel requested a hearing correct there was a hearing or at least there was an opportunity for outcome as the student if you're not satisfied with the outcome you can say i would like a full blown adversarial hearing i want to evidence your hearing with witnesses in docking and the st one is an informal discussion basically right doesn't that lead to very serious consequences  temporarily basically what we would call a stay they basically tried to protect the female student who made the allegation from potential harassment while the matter was being investigated right if that was their respect that back and forth and ultimately in agreement as to how this was going to be handled as far as i know there was no final of claim of this said he would do anything wrong he didn't admit doing anything wrong is that correct don't need to tell his lawyer that he wanted the hearing he didn't want to settle because the school manipulated the process and changed a few days or a few weeks before the hearing the school said we are going to change your punishment to remove the suspension and expulsion so that you are no longer entitled to a hearing and dr psaki said that i want to hearing i want to clear my name which has been dragged through the mud and the school said to add there are no rights to appeal you cannot challenge this and i am but he got he got the right to get his degree got his green he wasn't going to have that before he got his degree and then in terms of publisher he filed the lawsuit filed a lawsuit in his own name it and it was because of the lawsuit that if you true employer was even aware of this right but your honor i don't think that we can tell citizens you have to suffer in silence and let your rights be violated and if you complain about it in a court of law which are entitle to do it's on you for damaging gravitation i don't think that's the law and so i realize he were appointed after think that it's not i don't think it's fair especially the stage to actually call it a real negotiated settlement because if you read the complaint in the surrounding paragraphs dr shockey said i don't want this deal i want the hearing and the school said to that we have changed your punishment to avoid the hearing and there is no doctor's walky as this is in the st of many complaint doctors well he said i want to appeal this decision of not allowing me to have a hearing and the school i believe it's defined in hex but the school said there are no channels for that but where you are stuck so it was a minute yesterday isn't it correct that until the settlement he clearly did have a right to a hearing yes ok until the school changed the punishment  mutual agreement where both sides say i'm giving up something that i have to take it so i've got something he got a degree he did wasn't going to get the degree but they they forced him to take it i mean that's the day he could have said i don't want this to agree i want to fight this in the court i'm just going to i'm just going to stand here it's going to be the alamo i'm not going anywhere i think your honor that's a really untenable position to put a young person and to say the degree that you have worked for for a professional lifetime or a scholastic lifetime is in jeopardy we're going to give you a raw deal and if you want to keep this degree you've got to take our raw deal and say signed i don't know that there's any i haven't seen anything sign and i don't think there's a reference to his lawyer signed on his behalf  all i have not seen anything in there's nothing in the phrase there are any lines writing not i haven't seen a settlement agreement i mean i grew if we had a look in the typical civil context if we had a settlement agreement that said we all current walking away it be a different case but this really when you read the a minute complaint and you read it in the light most favorable to dr shockey this is a unilateral deal the school said take the deal there are no rights to appeal and obeid the way if you want to file a complaint about the what the accuser has done to you we will we may come after you we might even revoke your degree so it's a really coercive situation and i think if you look at the cases from the nd six in the th circuit yes so what here has proved that this was all based on sex discrimination a couple things are that's what i was trying to get to so that so what the courts have done with the circuit the other circuit have done is say look for two things look for an investigation gone awry may or may not be discriminatory but it's a reason it's smoke right it's reason to look a little further like you would in the title seven context you've got a you know there's an employee disciplinary issue and maybe the process like in th court's nicholson case maybe the employee disciplinary process is a little suspect not necessarily discrimination but we need to look a little further then you look at the context a s u was under tremendous political and economic pressure to come down hard on accused male students a s u was under a federal d o a department of education investigation those investigations put millions of dollars on the line there was the what was the nature of the investigation doesn't say one way or the other was it against mit with a bias against men with a bias against women claim doesn't say it i think so as i understand the context and if you think about what is likely to happen on campus typically it is going to be men who are accused of sexually assaulting women that's statistically almost always going to be the case in this not to say those are  percentage that are valid as opposed to envelop but that's the typical fact pattern and the dear colleague letter the two thousand and ten or eleven dear colleague letter which was not in the person in a complaint but no one tonight what it is that also put pressure on schools to come down hard on accused judas who are almost always men and so you have the school of knowledge ing to dr swack he's a liability by being on but the two thousand and fourteen investigation we don't know what that was about i believe in the st so many complain it is about sort of an inadequate response to campus sexual assault which i would argue is almost always going to mean women who've been abused by men and the school is not doing enough to protect them really valid interest i mean i'm here to tell you that is an extremely important interest to protect victims  i think that it's a fair read of the complain and sort of the practical contacts that a s u given that most allegations of sexual misconduct are going to be against men and if a s u is being suspected by the client is made these allegations so far as i know under arizona law there is no property interest or a liberty interest in getting his graduate degree do you agree with that well your honor frankly i think with respect to the  process analysis in his it is hard to piece together a clear property or liberty interest with a couple of exceptions i do think there's a fairly clear liberty interest in protecting one's reputation in the dips disciplinary context i think the name clearing cases from this court make that fairly clear but in terms of the property interest the problem and i think the reason that this court advises district courts to be reluctant to dismiss cases on qualified immunity grounds at the pleading stage is that you often don't really know what the contours are of the property interests of the liberty interest at stake it may be then that's the essence of a qualified immunity is that the supreme court has said that when a constitutional right is not clear that you can't hold a public official to a standard that is not clear and so we don't want them to have to go through the trial and everything else and when there's a when the standard that they're going to be judged by is not clear absolutely right with respect to legal and clarity or lack of legal  complete agreement what i'm talking about is fact a lack of factual clarity until you get into discovery sometimes and really understand what are the property rights at stake here counsel with respect to other lawyers like you good lawyers come in and they always say we need to get to the jury we need to get to the jury we need to get to the jury we get police cases we get into harassment cases all kinds of and this is no different i'm just and that your client is upset client would like to have certain things but he had certain procedural rights under arizona administrative law he so far as i can tell got those rights and he settled his case now he may have buyer's remorse he may be upset about it he may feel he was unjustly accused but the reality is he settled it he got his degree he got certain rights then he filed a lawsuit afterwards at least according to my understanding of the record as it was the very fact that he filed the lawsuit that created a problem with a future employer because they found it and they found that he himself was the tipi if you will or to poor about what had happened you're actually think there was damage to doctors walkies reputation before he filed a lawsuit and that's in the st of many complaints he wasn't able to access his lab he couldn't complete his ongoing experiments he looked like an unreliable researcher and people started to hear because the school officials at the school like dr c or called him a quote convict count on us if we were to give time i think on title i actually think on title one we're pretty close if you look at the other circuits of don which is to say you've got an investigation that is clots in viewed in the light most favorable to us really concerning and you have political pressure where the school to protect itself could plausibly be discriminating against a relatively powerless student like dr swati and i think that if you look at what's happened in the other circuits that's enough and so could i go add some more factual detail about other you know sort of pattern evidence sure but that's hard to get without discovery i think we've got some allegations in there but that's hard to get until you get into documents and so on and i'm not i mean to be clear i'm not i'm not here in summary judgment saying we when we go to the jury i'm here saying it's twelve the six it's a permissive standard because in disk anti discrimination cases oftentimes the discrimination is so subtle it relies on subjective intent on very subtle behavioral attributes a c m running over time but he because it relies on those subtleties you have to get a discovery you have to get e mails and text messages and you have to put people under oath and ask them hard questions about why they did what they did so i think we're there with respect to with respect to title nine a think with respect to due process you asked for leave to amend we are we did not this is the st of many complain we did not if well let me i have to check  a motion there might have been something in the brief like you you might see sort of a catch all but i don't think it's a clear request although i've understand this court's law to be my home circuit is the th not as permissive you all are i think the nine hundred in the last be sort of you know if there's a too would like to start with the title nine plane which seems to be the focal point of today's argument course the question presented to the court is whether the plaintiff has pleaded plausible plead facts that cast doubt on the outcome of the proceeding and that the flaw in proceeding was because of his gender and we contend that he did not do that the district court  case it approved it in that case the plaintiffs or had pleaded different theories under title nine they all came back to sex discrimination and i think the plaintiffs there were alleging deliberate indifference and selective enforcement and outcome if there was no if you will although a finding of anything really that the hearing was aborted apparently because of a settlement as the condition precedent for no there was not a signed agreement as there would be say to resolve this a civil case what there was to think that bothers me about that is it is not in the record and the allegations are that he wanted a hearing all along that it was this cool decided unilaterally now we'll let you graduate and and then we will give you a hearing because if we let you graduate we don't have to give you a hearing under our procedures so that he that is he unilaterally accept it and it's unilaterally imposed on him as opposed to an actual mutual agreement that this is going to be a satisfactory outcome well i think it's like any agreement you never quite get what you want and anybody settle a simple case you might have that if you were looking at this is a contract case and someone in the situation changed because of that he he had something he got a benefit that he didn't have before there was an agreement because remember the under the rules the student can't graduate he was not going to graduate he had completed the requirements for graduation but he wasn't going to and there's allegations in the complaint that he defended his dissertation while all this was going on and he had met the requirements to graduate and by virtue of this agreement things changed he was allowed to graduate and go on to each other he graduated but he also had his to some degree his lab privileges were restored right just at a different time in the woman who accused him were going to be it was going to be in the lab is that is that correct but well i know he was by virtue of this agreement what happened was he was he was banned from the lab for three years that was the campus access restriction right so there still was a disciplinary action imposed that limited his access to the to the lab my bet as as part of the settlement he got to graduate but did he not also have some restoration of lab privileges not what he had before but something different that i misunderstand that i believe i don't believe there's any allegations about that in one way or that that he graduated and he was he he was restricted from two buildings where the labs were on campus and from from working at arizona state for three professor seager was telling other students and making it widespread they know according to the allegations that he was being investigated for sexual harassment on the campus well there certainly are allegations about that the way it's pleaded in the complaint is that is the basis for a section one thousand nine hundred and three claim under a under alleged violation of the right to informational there seems to be something wrong with the process where you know it should be sort of a confidential investigation or some rogue professor talking about the details of it to students in his class discriminate ledge discrimination on the basis of sex that's one of the four factors that that make up his complaint well if if you're considering that as part of the evidence relating to the thailand claim again what we're looking for is something that cast doubt on the proceeding this is this was according to the complaint complaint so it had no bearing whatsoever on the proceeding the finding of responsibility it already occurred and dr seeger's you as you indicated had no role in that so this is extraneous to the disciplinary proceedings so if we're looking at again the plaintiff's theory is erroneous outcome the focus is on the council on paragraph thirty one dollars of the complaint he alleges that he's aware that all males accused of sexual harassment are found guilty regardless of evidence why is that not sufficient survive trial the six under title nine well that's similar to what was in austin versus oregon which was dismissed by the district affirmed by the th circuit it doesn't go doesn't go to gender discrimination is why well men are found guilty regardless of evidence how is that not discrimination it's not discrimination because it doesn't say what fourteen were found responsible and that was enough to survive your honor i'm not sure about go versus miami and i do know that there was one case where a plaintiff had it w e a court determine and it could have been the miami case where court determined that there were sufficient allegations of sex discrimination based on the record the disciplinary record of the university where there was actual allegations in the form of an affidavit attached to the complaint that provided statistical proof but just a broad conclusory statement that males are  actually later i mean you know we are at twelve the six you know another factor that i have that is that other circuits have recognize sexual assault on campus well yes and that indeed the argument now seems to be that this somehow put pressure on the university and this argument let's st of all i would point out that this is a brand new argument never made in the district court but it was made in is an allegation in the complaint it is it's but it's a new it's a new argument but but the cases that have said that that pressure on the university is relevant have said you have to have more that that's not enough to push a complaint over the line of plausibility and if you look i keep going back to the university of oregon case because that's the one published decision of the th circuit on this and there was much greater pressure on the university there not a generalized pressure yes theoretically it's that the department of education can can cancel the funding to states it rarely occurs it's a theoretical possibility but it's what we're talking about the doubt the argument they're making is this very generalized pressure well what about the allegation about the two thousand and fourteen investigation that there actually are being targeted by the deal doesn't that at in that the plus that you're talking about no there must there must be must be some pressure on the university with the cases that have talked about pressures that have talked about an event like that combined with particular allegations relating to the specific investigation at issue in this case the investigation of white you can see it's possible that there is enough pressure at but there's just not the plus factor to get it over the top the sex well yes but i'm saying that the pressure here even the pressure they're talking about is this generalized pressure in the university of oregon case there was more specific pressure on the university there was a campus wide protest over the alleged assault in that case to the point where the president of the university had to go public and give a press conference about it and the th circuit said ok that's not enough to create a plausible claim of sex discrimination and it affirmed the dismissal on twelve b six so so the pressure they're talking about here is is insignificant compared to what was going on in the oregon case that was that the i mean for thank you would just to conclude is read too generalized to meet the plus ability standard correct and i want to i say my time is getting short i want to to address judge ward last question to you two appellants counsel about whether leave to mention be granted and i would respectfully say no that would not be appropriate here the plaintiff had a chance he stood on this complaint he has given us his best case when they looked last it was st file the district judge issued an order saying or any twelve b six motion can be filed the part meet and confer and at that point the plaintiff counsel says no i'm not changing a thing by the way that order is documentary number four and so we had to certify before the st motion to dismiss that i'm standing on this is i've given you my best case and when you asked the question before what could be added i didn't hear anything new about a title mind claim that could be what plaintiffs seem to be arguing was we need to do discovery but the whole point of doing this possibility analysis in the st place it is to examine the complaint to see if it's sufficient to unlock the doors of discovery and we  this complaint here is not sufficient to do that therefore we would ask that you affirmed the district court's dismissal all right thank you counsel i'll give you a couple of minutes you know you used to by your time you did come all the way from georgia discrimination plaintiffs at the twelve b six stage because these cases are hard to plead it is hard to discover what's really going on and we can't shut the courthouse down just because there's not and damning admission in the record that somebody was discriminating with respect you just stood he said i'm not i'm not changing anything this is my best shot i'm not going anywhere this is not one of those cases where you have this tenderfoot i'm represented as no idea what he's doing this is a intelligent capable man with a doctorate felt wrong he stated his best case he got one chance to amend he didn't want to amend surely you're not saying to us that we're going to force him to amend if you well after he has taken this stand he he says this is his best shot you disagree with that i don't disagree your honor because i don't know on the title nine side i don't know what more i kill lets without access to their files to get pattern evidence and documents for or in  mission from somebody i mean this is all you can really out in reality in real life this is what you do but this is the very problem of course that with the ball and probably anybody that in that situation said like yeah i can i possibly more be more specific i don't have access to discovery point you to a couple of things in the record that i think would help you ask your honor judge smith about sort of the circumstances of this being a settlement so on e r twenty six dollars paragraphs ninety three dollars ninety four cents i'm going to quote defendant hick stated that is the case did not involve a suspension expulsion or degree revocation plaintiff was not entitled to a hearing and one would not be held when playing of protested defendant hicks said the decision was final according to the able or student code of conduct and legal counsel when asked about any appeal process defendant hicks stated no and that is you had no chance to do so that is unlike any contract i have ever seen ok i don't think that you that it is fair on the top be six level to characterize that as a bona fide settlement where everybody gives up a little something that salary it's the the decision was made to go forward he could have appealed until they said we're changing our punishment were manipulating the process on the fly to avoid the bill i don't know if he can say no no no punish me punish me i mean that's not it's not in the work code of conduct i don't think it contemplates that it's an unusual situation that's a discovery type thing you put somebody on a rope and ass and does well i know him over time but i just had a couple of pin sites for you to about whether defendant seger and his description of the plaintiff as a convict was in the in the title mind section so that's your thirty two paragraphs one hundred and twenty eight thousand one hundred and twenty nine specifically describe how seger maligned dr swati and how that contributed to the title nine violation and in my belief also to the sort of ethos or atmosphere of