it please the court my name is heather gets and zachary and i'm here on behalf of the appellant john doe i request five minutes of a battle well as i said before you'll have to monitor your own time because it'll keep running as long as you're arguing but you may do as you wish appellant john doe was found responsible for sexual assault by the university of arkansas in this case following a deeply flawed and discriminatory process he was denied notice of the allegations upon which the panel ultimately convicted him he was denied the right to cross examine his accuser and significant witnesses in the case and he was ultimately tried before a panel seeking to appease the public outcry for convictions at the height of the mitsu movement and jane rose highly publicized protest the only justification for the panel's decision is the unsupported finding that the female accuser jayne rove was more credible than john doe despite substantial evidence to the contrary and this leads to the determination that the decision  in paragraphs twenty eight and sixty three contains batu all allegations about the contact between these individuals correct your honor and it alleges makes factual allegations that that whatever sexual contact took place that it was consensual and that rove who was not intoxicated based on the allegations in the complying which are accepted as true that the right or wrong decision was reached what what do we do with that does that it does it does is it matter whether the decision gradually wrong your honor we're not here reviewing the correctness of the right or wrong us of the decision except to the that that plays into allegations of gender bias and also and level goes to the due process and the denial of notice in cross examination but we're not here to challenging to say that the university was wrong or didn't wasn't supported well you're saying well that we have to presume that it's wrong because at this level at this stage of the proceedings the evidence is is does not support the finding we assume that's true then we get to well what's the nexus to gender bias that's where to me the question is what evidence points to that that's in the complaint you're correct your honor  title nine for the title nine claimed there are two claims in this case there's a due process claim and a title nine claim and the next to gender is only required for the title nine claim it's not required for the due process claim but under the title nine claim there's two prong would show some sort of inference of gender discrimination and i submit to you that we have all of them in this case and one of them is this idea of sort of general pressure that exists from the two thousand and eleven dear colleague letter in which the besides that but we have several something more years here in this case a big one is that we have targeted pressure on the university of arkansas from not one not two but three separate o c r complaints that were initiated by the office  against the university of arkansas now if they are determined that the university of arkansas is in violation of title nine the university can lose its funding so this is significant but in addition to that there was also a highly publicized civil lawsuit that was brought against the university claiming that the university was not accurately implementing its title nine process and was not handling a claim of sexual assault made by a female against a male in a proper manner so that the nd that targeted pressure that we have there was also an investigation initiated by the arkansas legislature in january of two thousand and eighteen which is just a couple months before the hearing panel in this case dealt with this case in which they were looking at allegations that the university of arkansas is failing to take allegations of sexual assault by females against males and then the last and most significant line is that jane roe herself following the title nine co ordinators finding that john doe was not responsible for sexual assault jane roe instituted a  widely publicized protest of that decision and fact the university's the university's own paper came out and said that she was denied fundamental justice in that case to the point that the university then had to come out and make a response to defend their title nine process and about two days later it was when the university hearing panel released its decision in this case finding that john doe was responsible for the finding now another factor that's been held is no evidence in the record of lack of consent and that is that is alleged in our complaint the interesting thing is that that ties back into the notice problem because the decision that was issued by the hearing panel is not even in line with the says that that those are only two examples and that there can be other ways that it can also arise but that's really irrelevant in this case because where the university suse's to unilaterally limit its notice to incapacitate and that was confirmed by john doe in the case where the university unilaterally limits its notice to a certain set of facts it cannot then expand back up to the general idea without some additional notice or some additional allegations to john doe and decision came down finding him not responsible jane rowe then submitted her appeal and in her appeal she included the statement that anytime sexual acts are performed to someone who is incapacitated those acts are committed by force now the university wants to say that this provides notice to john doe that now there is the issue of without consent or by force that's going to be that's going to be dealt with by the hearing panel but if you look at her actual statement it's just a rephrasing of the incapacitation claim all she's trying to do i of incapacitation we're still limited to allegations of incapacitation then the hearing panel in its decision decides that she may have been incapacitated but he had no reason to know of any incapacitation so essentially they've quit him of the to quickly wrap up here so that i can save some time but one is that he was denied the right of cross examination so he wasn't given the opportunity to ask any questions and he didn't know going into the hearing that he needed to be asked question about did you fact consent the answer to that question is irrelevant if she's incapacitated it doesn't matter if she was screaming yes from the rooftops if she's incapacitated her consent is irrelevant so the issue of whether or not she did or did not in consent was not at issue in the case there was no proof on that the investigation wasn't on that the cross examination questions that were submitted were not on that as far as we know and and then the panel unilaterally used that issue of whether or not there was consent and found that since john doe had not proven that there was consent that he was guilty now we submit that this case has a myriad of due process by elations and also  because of the significant public pressure because of the fact that the decision is so out of line with the evidence in the case that it also at that we've adequately implausibly played a title i listen if there's never the questions at this point i'd like to reserve the remainder of the time of the complaint so the plane of had notice of what the allegation was that he was found responsible for he absolutely had notice of the hardest paragraph one hundred and fifteen relate to paragraph one hundred and fourteen complete st well that she all know your honor what what she is stating is her understanding of what the policy says she appealed on another ground she did also appeal on the in the past patient base she also appealed on that but she says she appealed on to two grounds that she was too incapacitated to consent and that she in fact did not consent so she had two grounds for her that she did not consent but so has the money but her testimony actually was something along the lines this says i don't know why i would help which isn't exactly a denial of consent she didn't say i did not consent she said i don't know i don't know why i would now it seems totally inconsistent with this claim that i had the night consent but well i believe it when when she said that she does not know whatever right she says i don't i don't remember but i don't know why i would have consented which is evidence that this is that the plaintiff was not a person that she was interested in having sex with i don't know why i would have consent passing another way could be that the person consents the victim consents but the person is so intoxicated that he or she is incapacitated that would not be a valid consent and then we have we have force where someone is overpowered three ways a policy can be violated but the policy is clear consent has it can't just be passive it has to be active consent it can't just be this passive consent might be given  allege that she testified jane roe testified that she does not know while she would have consented and that is evidence that she did not consent at a a jury could the questioning earlier indicated or suggested there is no way to that to intentional gender discrimination that there's this not just because the panel found him responsible found against him but that does not suggest they found against him because he happens to be male they judge his credibility they judge his manere and they made a decision in their view that he's responsible and that the complaint alleges evidence on both sides of whether there was consent and panel reasonably could of credit her that's your view yes your honor and so i guess here may be saying well even if it was ultimately wrong it was factually supported it was factually supported which other sure for it's not wrong in the sense of why it's sexual assault as an actual or attempted sexual contact with another person without that person's consent it's a very firm stance of the policy it is and that's what they found him responsible for what's the rest of the paragraph about it's it's  it's just not it's not plausible that the university or really that any more on would intentionally discriminate against someone based on gender in order to prove to the department of education that they are not discriminating based on gender i mean that this is not plausible well it's not is impossible to think when you're in an environment during the me too movement where people are saying that the women always have to be believe i got to do is turn  be i mean it is just to me implausible so illogical that no no person would really do that try to prove that they're not discriminating that they're not in gauging intentional gender complainants and so why wouldn't it be possible that they'll say well we're going to have to find more men responsible and maybe will go light on the punishment in order to kind of smooth things over i mean  to the development of the evidence what about that no you are because they have the state of trying before the doors are open to discovery and number two this allegation that they're making about this pattern of discrimination in other cases it ask the court not they're the next time the university finds against a female found against the woman then that woman could come to court under their theory and say oh the university was under pressure to to have to rule against me because  john doe's loss it and that is not right i just ask the court to let the university make its decisions in these matters on a case by case basis without regard without having to worry about oh you know keeping some telling we found against the woman in these cases we filed against the guys in these cases we didn't have to be keep some running tally and worry about that tally this we dismayed to be able to be free to make our decisions on a case not not regard to gender of any kind and that's what we did here i didn't get to talk about the cross examination piece of course ask questions about it i will but watch what we give you get both sides are two minutes but he was a way out as was she to submit written questions to the panel to ask to ask the opposite party that is a perfectly reasonable rational way to conduct things because you know keep in mind please that these campus proceedings are not presided over by a professional judges who have experience in controlling across examination you know professional judge has experience in making instant change rulings on objections and keeping them where if the panel leaves out the best questions well there's there's and so that person never really has a chance to use the engine of tru or no allegation what questions i left out so it's a conclusion reality as you know they left out questions they paraphrase and question but we don't know what questions he was there he should be able any is advised was there they should be able to at least give the court some indication in the complaint questions were left out there to you know if a lot of times you know these students are not represented by counsel they don't have a six minute right to counsel they they come to these proceedings by themselves and if you know in the hands of a professional trial lawyer who's litigated cases cross examination may be a good way to do to get to the credibility of the witnesses but in the hands of non lawyers and in these types of situations and the thing that occurs to me at the outset is that the university's argument seems to boil down to we need to be free to make our own decisions here and you guys can't nd guess whatever we do but we can't be expected to provide fundamental a little more mainstream that's like capital murder capital murder as a generic charge that then it has been broken down into subcategories if the state chooses to charge someone under say felony capital murder then it would be a violation of due process to then submit to the jury jury instructions on premeditated and deliberate it deliberated because that's not what he was charged with and in this case and lack of consent is sort of the generic thanks and then there physically froze and then you would be incapacitated so that would still be covered by the incapacitation of the of the of the definition but that too that wasn't provided notice that either no one ever provided notice t john doe that he was going to have to defend against allegations that she was frozen in fright and that could not consent nowhere not even jane doe in her appeal ever alleged that she was frozen in fright and couldn't provide  who paid the worms the bird earth is there a bird that's a tricky question your honor and there's no what was the burden of proof that the university policy provides that students are innocent until proven guilty essentially that there is a presumption of innocence so from that standard the burden would be on the university to prove the violation is not actually set up as versus roe it's set up as dover says the university which is also important when you think about the university's point on notice because the university who is in charge of the allegations it's not jane bro so jane roe can say whatever she wants to in her notice of a heel but it's the university who decides what allegations they're going to pursue against him and john doe following her somewhat cryptic notice of appeal went to the university and said this this seems like maybe it we're getting confused here what am i actually defending against and at that point the university said we won't tell you we'll get to the  hearing if the burden is on the university and based upon the allegations contained in the notice would it be with the burden the n b a to show that there yesterday well based on the notice that john doe received because the university chose to limit the allegations in the case to allegations of incapacity the burden on the university would be to show that she was incapacitated and what she was saying is any time that someone is has sexual contact when they are incapacitated that is by its very nature by force so what she was trying to do in her in her appeal she wasn't bringing two grounds for was still appealing the incapacitation she was just trying to backdoor in without having to also prove that he knew or should have known and so and the reason that he was doing that is because proving that he knew or should have known was virtually impossible the university proving lack of concern yes because what the what the panel said was that there was no evidence of consent in the record what they found was that no one none of the witnesses had anything  to say on whether or not there was consent joe didn't remember whether or not she consented they didn't credit the statement about i don't know why i would have what they said is she didn't remember which is what she said i don't remember ever not they said the evidence is equal there is no evidence on either side of the scale so we find there is no evidence of consent in the record if the evidence is equal the preponderance of the the presumption of innocence mandates that john doe should not been convicted in that case th they could have made that finding given the evidence that was in front of them and that's not a finding that they made the finding that they made was that the evidence did not support a finding of consent what would you like me to discuss briefly the title nine and the inference of discrimination i'm out of time at this point i think i think you covered that to some extent already and we have of course your thorough brief so the only other thing i'd like to add i'm sorry on  examination just because it was something that he brought up is that the questions that your honor was asking about shouldn't we determine the level of questions that were omitted here yes you said and if you go to the st circuit case and hey that that's exactly what happened in that case  you didn't allege that anything particular was omitted well we don't actually have that information because the university has refused to give us the copy of the hearing and yes john doe was there but he was going to a very heightened and emotional that they left out any important question well we allege that they left out questions i think at that point the president the motion to dismiss standard with would require that you plead that you infer that those are important questions and we also pl