twenty six analysis that typically accompanies cases like this i'd also like to point out that in the district court's order dismissing the case on summary judgment according knowledge that thomas clock is sex played a role in the sanction that confirmed for says lewisville school district case i want to to a degree jump around a little bit and talk about some specific facts in particular some facts and evidence at the court below ignore in granting summary the investigator slash prosecutor slash judge of the disciplinary action after being ordered by his superior the dean of students and acting title nine coordinator cheap exclude thomas clocky from class stated on may twenty fourth of twenty sixteen in an e mail updating deems no i'm not sure i have enough here to keep  of class the district court's order doesn't even acknowledge the existence of that evidence let alone the significance of the evidence in this case and it is significant because it reflects a lack of any meaningful evidence to justify the sanction that was imposed upon thomas clocky i'd like to then go back to the beginning of the factual pattern if you will and call the court's attention to the record forty seven fourteen and fifteen and thirty eight ninety two and ninety three these record excerpts are excerpts of testimony given by deen snow then acting title nine coordinator for student against student both an allegation of sexual harassment and an allegation of sexual misconduct and based solely upon those allegations she decided to implement a disciplinary sanction in the form of excluding thomas clocky from participation in or deny them the benefits of education programming or activity so there can be no dispute that in the record below there was evidence not only of the fact that there was not enough to support the sanction that was imposed upon tons clocky but that it was sanctioned that involved his exclusion from participation in order to nine in the benefits of education programming and we know based on at least  shown when there is evidence tree weakness behind the disciplinary finding procedural flaws or patterns of decision making showing the gender of the accused as a motivating factor an employer this court reminded us that in a federally funded institution can be held liable for imposing discipline were gender is a motivating factor recognizing at least at the second circuit has approved of the claim theories of selective enforcement and erroneous outcome and those are the two theories that we focus on in our briefing in this case and i'd also like to point out another very significant fact because dover says columbia makes it significant and that is that there is ample evidence in the record  in the form of notes from the investigator slash prosecutor slash adjudicator mr moore that thomas clocky vehemently denied the allegations against him and that is an important fact when looking at the questions of erroneous outcome and looking at selective enforcement procedures particularly given the fact that there was a acknowledged deviation procedurally from the university's mandatory title nine complaint investigation process and procedures it didn't happen at all so we believe that the court needs only to find in this case while conducting its own over review that there was evidence casting articula ble doubt on the accuracy of the what we call the exclusion deprivation decision the sanction imposed upon thomas clock and and we think that there was clearly evidence creating a fact question under the well led erroneous outcome theory in our complaint and also showing that regardless of whether thomas clocky was guilty or innocence in the district court by the way  presume that thomas clocky was responsible for the conduct that he was alleged to have engaged in but there was ample evidence not only that thomas clock didn't hide it but there was no corroborating evidence that it occurred at all   the record excerpt that i just mentioned before which was the may twenty fourth twenty sixteen e mail of mr morse and i don't have enough to keep him out of class also reveals that there was articulable doubt there was no evidence to support the actual  that female students are not disciplined as strictly for similar behavior so so let me begin by by by referring the court to the testimony of dan moore which was that at this particular university  in the event of even a heated conflict between students and class the typical disciplinary action was to issue a mutual no contact order so the two students could go back to class and continue on and as as i think we've argued quite clearly those two students had in effect imposed such up an arrangement upon themselves be given that this event occurred early in the class in the proceeding and then they were in class together for hours later but the best evidence judge is that  we requested in discovery and obtain from the university the disciplinary files of of students who had been accused of harassment sexual misconduct and threats and we were given sixty nine cases we cited to the to that record extensively in our briefing and what that evidence of stablish is quite clearly is that only accused male students have ever suffered a sanction disciplinary sanction in the form of an exclusion from the educational programming or deprivation of the benefits of the same not a single female there were nine examples of females who had been disciplined under those circumstances like what out of the nine because you know them so closely which is the one that is most analogous in terms of the alleged behavior well instead of just saying no and tell me the one that you would point to is the stark think the one evolve in the reference to a dyke bitch would be the closest one in terms of overall facts but i would respectfully suggest to the court that that we are left without guidance in the case law involving disciplinary actions alleging title nine violations in terms of what is what what do you have to show as a composite comparative case i would respectfully submit to the court that you'll never be able to find an exact pattern and so to to impose a burden or an obligation upon a claimant given the guidance of this brain work that that in these title nine cases where we are too liberally fashioned remedies  you know based upon the the various facts that occur you would you would never find an exact situation and so we believe and we were allowed to pursue discovery below on the question of how does this university discipline students male and female who have been accused of investigated for and disciplined for alleged sexual misconduct harassment because they claimed it was a mere harassment case and threat and so i think that's the the the critical threshold that the that the underlying details of those particular cases trying to distinguish them i think those are fact questions alternately that a jury could say you know hey do we consider these to be comparative but i don't think we can determine whether they're comparative as a matter of law that this is no basis upon which to do this and i'd like then against that backdrop to focus on  some additional testimony in the record from mr moore and and and this this testimony in our view is very critical because it reflects what mr moore was thinking at the time that he was engaged in the management of this disciplinary kiddies as opposed to his after post litigation testimony where he's trying to explain what he meant it cetera and he he clearly testified that when he had been ordered by dean snow implement this exclusion deprivation sanction keeping thomas out of class and from benefiting from educational programming that he understood that that's exactly what was happening to thomas and he agree that thomas did suffer that denial of the benefits of educational program and i've encouraged the court to look at his testimony at fifty one thirty six of the record and in a campus size enough back to to to your question judge higginson the threshold point which is that mr moore acknowledged that mutual no contact orders allowing class participation but separation of the students in the class was the norm in  cases involving what he said or he did in class conflicts between students he agreed this was not even a heated in class conflict he acknowledged that it was a there was a dispute as to what actually transpired  no witnesses there was no observe the disruption of it all in the classroom as i indicated that students remained in the classroom to gather without incident of any kind for several hours there after and if the court looks at the record fifty one fifty females had ever suffered such a disciplinary result in a case involving harassment sexual misconduct or threat and and and finally i want to go back to the the comments  know and what i mean by that is it's just me it's something transpired between these students that causes did insta have something kind of an interaction what happened thereafter we don't know but it jury should have been entitled to review the evidence and decide whether or not there was an erroneous outcome based upon the facts as opposed to accepting that thomas clocky was as he was prejudged guilty as charged your honor in closing i'd just like to say that you know this is this is a case where the  so inclined to grant summary judgment render judgment read and summary judgment on the occurrence of at least the exclusion of deprivation from educational programming that took place because we believe that was an undisputed fact supported by the overwhelming evidence thank you very much in this or any questions i'll take my seat thank you a did was based on sex and there is no evidence supporting that there is a fact issue on the sex lies issue but i'd like to do is go through each of the titanite causes of action and demonstrate why the district court got it right dismissing the case all explain the elements necessary and why there is no fact issue here start the rhodies outcome claim they go to the select force will claim what they call the facial violation claim that they asked this court to adopt and create and then the retaliation claim so first with respect to the iranian outcome claim there are two elements the other courts have recognized the first is that the discipline student was innocent and wrongly found to have committed  and the second is that sex bias was the motivating factor of veteran his decision but the evidence in the record is is that dan moore interviewed clocky he interviewed watson interview the neutral witness blake and interviewed professor long's book festival on there was a contemporaneous note a contemporaneous e mail and a contemporaneous facebook post moore found watson to be credible but in contrast found clocky story to be quote far fetched and indeed to reverse the district court on the iranians outcome claim this court would actually have to believe that there's a fact issue in the record that the following occur  alleging that he called him a faggot said gay should die and said it was and should consider killing themselves then watson was such a good actor he acted scared and fooled professor long hair  and then more this court would have to find out there's evidence in the record suggesting that that actually occurred casting doubt on the correctness of the decision then this court would also have to find a fact issue on the of course they have adopted this cause of action require the plaintiff to prove that regardless of the student's guilt the severity of the penalty or the decision to initiate the proceeding was affected by the student's gender of course you are the plaintiff a show a comparative or who is similarly situated but was treated better than the records devoid of any such  we have a bullet point paragraph for each of these nine students none of that none of those students there's no evidence to record that though that the complainant in the respondent in those cases shared the same class they didn't have classes together  only two of them were decided by dan moore and under this circus precedent in the title seven contests there's no reason to be different here and tell my point you require the same decision maker and with respect to what they say is the most case in that case there was a different decision maker that female student was she was unloading stuff from her car and she parked in a parking spot she was with parking and a staff member who did not identify herself as a staff member came up and be rated the student and they submit the student cry and in frustration the student called her a dyke bitch that student was paralyzed and the student was found responsible a sanction and the student did not have a class with the staff member now student eight student thirty one and student forty one these are male students who shared a class with the complaint and these three male students were not prohibited from attending class inthe footnote nineteen on page forty of their brief they cite several student disciplinary cases and what they say is and what they said they repeated earlier that all the students who were excluded from class were males therefore  but i just gave you three that aren't so and that they listen to footnote three males that were excluded and we've got three males that were excluded so if in six or seven of the cases of half of them are excluded half of them aren't that's not of that's not evidence that there's a sex bias that this court says in lee versus kansas city that nearly identical does not mean identical but it's got to be a nearly identical situation with and that the law is the same decision maker and the evidence there is no evidence sufficient to establish that here now the third cause of action is what they ask you to create this new tort what they call the facial violation tonight claim and the reasoning in the supreme court case is implicitly reject that idea and further this is not the case to do so even if you want to propose new to work you have two elements the first is that the student was denied participation in educational program denied the benefits of the program or was subjected to discrimination in educational programs and the second element would be that this was motivated by sex there's no fact issue on either proposed element of this tort that this the appellate ask you to create with respect to the first element clocky was permitted to complete the course and obtain the credits u t a modified the class and allowed him to you read those and you read and more specifically what he says is that he was balancing two competing concerns when he was sanctioning clocky on one hand safe for that belief that on the other hand he knew that clocky was skip was set to graduate that august and so he was balancing those two concerns and he ultimately decided on the section he decided and that clock would be able to obtain the credits work with his class with his professor and his classmates in order to pass the class and he did pass the class but you're not you're not denying that he's lost an educational has to travel a lot for football is he denied educational benefit by working want to one of the professor and getting the education through some other means i think the answer is no relaxed the restrictions placed upon clocky after his alleged to lie to and for that reason alone that claim should fail i'd like to briefly address another point that counsel made in his in his argument and that is that he said that the evidence shows that essentially the dam were broken typicality in the interim measure and also in the section and that's just not supported by the record and if you look at answer questions about his version in closing play just true criticism of d'amour dan morse decision making is that he could handle the situation differently thank you a couple of brief points first to judge taken since questioned if there is some dispute as to whether thomas clocky was reading off of the script and as our briefing points out thomas clocky showed up for this meeting with his father his father was denied what transpired on a completely undocumented basis and so i would i would encourage remember when the research just tell me it is undisputed that the school prohibited the father from being in there when you say he was denied access ok yes and  ivan there was no explanation as to how he could have got into the room is what the record reflects but i would like to mention that this idea that in order to survive the comparative test if you will you have to have the same page twenty and i would encourage the court to take a look at the cases that we've cited there including the naca versus mcallister college case and doe versus brown versus university those cases simply say that the that the comparative cases to involve students who are similarly situated in material respects and i would respectfully suggest that the way that they are comparable in the churl respects is that they're charged with a code of conduct violations involving harassment threats to push sexual in cold different decision makers though they did not and they don't speak they don't speak to the issue of what is your best case that there can be a different decision maker i've never i've never found a case that discusses the issue of a decision maker in the title  disciplinary context just no cases on that specific question so i have no best case because it's never been discussed because it's never been a standard that's been imposed under the comparative analysis the other couple things i do want to mention is that this is not a keyset is second guessing action and i take issue with something that my friend just stated which is in order to prove erroneous outcome you have to have evidence that the accused did it was innocent that is not the standard that has been adopted in the case law  the second circuit has made clear that there simply has to be evidence of that cast articulable doubt upon the accuracy of the of the conclusion and in particular the display decision and i think that's important that we don't lose sight of that and more importantly in they didn't address this in a selective enforcement case innocence or guilt doesn't matter you look at the severity of the punishment under the totality of the circumstances and and look at whether or not the procedure itself as selected by the person to impose that discipline was flawed in such a way as to result in an absolutely severe disproportionate type of punishment and it's undisputed here based on the evidence i've already mentioned to the court that dan moore and sell said this was unusual it was not typical it was severe and it deprived the student knowingly of the benefits of educational programming and so in closing  you know again i can't emphasize enough the university is in effect asking this court to impose a requirement that says that you have to show that females suffered a different type of disciplinary outcome in the identical cases it's not the law it's never been the law and and that type of a requirement would deviate from the supreme court's admonition that in these title nine cases you're to fashion remedies that are reasonable based on the facts and circumstances and that achieve the purposes of title mine which is to prevent students from being deprived of their educational program and benefit on a discriminatory basis and we think there's sufficient evidence in the record as concluded by the district court