we represent an incoming freshman at the university of kentucky that we refer to this matter is john doe mr goh was an incoming freshman in what would have been the fall semester of two thousand and fourteen u k there's another student we refer to in this matter a student a she was also an incoming freshman they were both athletes although in the underlying action we have agreed not to refer to the specific sport in which they were involved to further insulate their or their possible identities these two actually had met before they arrived at u k because of the the athletics part of it they had actually previously been in lexington kentucky and had met and i had taken a liking to each other and had begun texting and so once they arrived at u k there clearly was an interest they both had a mutual interest in each other and ultimately they ended up having sexual relations and what's important to this as sort of a start off to all of this is to understand that student a was never a complainant about about that and in fact the the position has been that this was actually consensual sexual relations there's no question there was some alcohol involved although people can argue i guess i the holder about about the level of drinking that that went on but it's clear that she was not a complainant so what started this process was that have been an anonymous person and truly someone i don't know who that person is  apparently was was present on that evening at up at a party where they were present where the others were all present i can only assume got the idea that because there was drinking involved that  that that meant that she was incapable of consenting so this anonymous person went and reported this to the university of kentucky and of course the university of kentucky like a lot of universities particularly under title nine and oversight of the office of civil rights the department of education and there's a dear colleague letter that's been referred to they are now beginning to process these as disciplinary actions rather than just deferring to some kind of complaint that might normally  conventionally be made to local authorities if someone thinks actually that some kind of crime has occurred but that's not what occurred here again code cover cover activities on u k property or dormitories anymore there are like really nice apartments that university and so it was on university property but i'm aware of some other matters not this one where u k takes the position that they actually through their disciplinary system do govern students regardless of whether they're actually on the property or not so i'm aware of other in this case that's not this case we would have u k property anyway if that matters to the court so so in this case i just want to emphasize that student a was not a complaint and u k came in fact she was a lot of things have changed in the way universities are handling these types of complaints regardless of who makes them and so u k then began investigating this and they initiated some charges or claims if you want to call them through their had i was going to touch on this but we've actually had two of these disciplinary process is where there's this this hearing which we don't think is much on i've laid it all out in the briefing and each time we also took an appeal there's an internal appeal what's called the u a b the university appeals board it just so happened that in each each of those instances there was a particular professor that someone i know well who is a law school professor who's a common law scholar in my opinion at the university of kentucky and in both cases he actually wrote opinions reversing the hearing conclusion that our client was responsible in their coverage right no actually this was paul sol and sit there trying to revamp the whole system and basically have him sit in on over and preside over these these disparate hearings where there are some claims of some kind of sexual misconduct that's really come in after the fact and process it still though if this matter really right there right what this court and and the second part of the question is if you think that is right but the court what what what you have this court here your honor that that is that's getting right to the heart of it i appreciate that i would say there's two things that are directly responsive to your to your point and to your question in the first one is this below the argument the if you go and look at the sexual misconduct policy that u k had in place on the date of these particular sexual relations it is our position that that is a patently unconstitutional facially unconstitutional provision and i know it is because not just looking at it by the way i got involved with the second administrative hearing and up to while i didn't participate i said there is a potted plant at the second hearing because i wasn't allowed to that hearing how would that witness or what i would do is i would whisper in my client's ear again he's i think eighteen years old at that point obviously hasn't even been to college really yet or had any law training he's trying to write down what i'm saying and passing them up and so yes we were doing that process but i would also say that at the particular panel that second panel hearing that i attended the presiding pm a member who also had no legal training just really was reticent to ask some of the questions and  he he asked them in ways where they were it like was a leading question and to get a specific answer he would turn it into just come an open ended question and it didn't really get you no quarter of the point again that gets it all the beauties of cross exam which that first off that the provision is void for vagueness under our argument because it doesn't identify it what point this there was clearly consent here they're just vitiated get after the fact with alcohol so we have consent but you're saying no sorry we're taking it back not consent so the the the point is that that's not wasn't my client's perception his perception was yes they had been drinking but it he had a honestly a good faith belief on his own that she in fact had the capacity consent to consent there had been a course of conduct leading up to that point that there was a discussion and i don't want to get too far into the weeds but at the time of the sexual relations she's the one that actually requested to have sexual relations there was a discussion about contraception there was also she also removed her own clothing so my client in good belief thought there was consent she also wasn't the complainant so what's happening here is that with this void in vague provision there are these panels these untrained panels or deciding that on their own that that she you know couldn't give consent at other things besides are really where the state in my opinion is licensing like they have the light licensing of professionals and the word of the state issues a permit that allows or a person or a company to engage in certain types of work and then the  state then initiate an administrative action that's maybe against that license or that permit with some kind of discipline but there's also a process there and it's those types of actions that i believe are what the courts are calling  criminal proceedings but this u k process is nothing like that so if we find that the requirements of a younger are met this court the federal court would have to thing unless of course there's a finding that the proceedings were brought in bad faith correct or that the the process itself is unconstitutional you are it's my belief that the way that i know my time is most up it's my belief that the way that  prosecuting a complaint against john doe and so it does have you when you were describing the perceiving it sounded a lot like you know like a grand jury proceeding  but you know i'll take your point now but out of it my question was yes if we find that of applies and i know you think that we that it doesn't apply and you're going into while but if we find that it does apply then facial argument that the person that the policy itself is facially are patently unconstitutional is an exception under younger and and by the way this is not a candle criminal proceeding because that's one of the things the process can't give us you cake is not in a position to even tell us that their own policy is in fact facially unconstitutional but up to where i started before and ask you if you prevail yes what is really look like i believe it's one of a couple of things or order the first thing is we're asking if the court gets it gets passed abstention it gets to the merits on the facial argument and they agree with us then we're done then there would be a permanent injunction that they have to stop processing a disciplinary proceeding against my client that's number one secondly even if the court gets past that one the court could also in or and it directive or order negligible relief saying this process because of what's at stake what's th is you have to give due process so you have to let the attorney participate you have to allow cross examination including a student and a and there's a few other things we've noted you have to give due process you can't discipline the state you know   how how could we grant that kind of relief you're talking about because by definition when they're courted stained you know and have a record that's produced that would enable  postural issue and i would say that the court because the lower court did not get to the merits that were stuck where he just abstained and didn't look at the merits so you're right in that sense we would just have to go back the recent sprint communications case with sprint makes clear there's really three critical issues that a court will address when confronted with an abstention motion first is this a one i'm calling nazi category that's the new orleans public service the corporate  category there are three categories that sprint tells us abstention may apply to you second the middle sec factors apply that's the state bar case and then thirdly doing the exceptions to younger apply so first category three categories into that is it a state criminal proceeding is it a state civil proceeding with an interest or enforcing an order that's not this case this case is the other element under nazi it's a state civil proceeding that a can to a criminal prosecution university says that there's just a prize where it's something that's regulated by the state back the bar association is that correct and i know it's not what is just regulated  state what sprint says that a quasi proceeding is really him three three factors that the matter is instituted in an effort to sanction who the federal plaintiff is clearly here the university instituted these student disciplinary proceedings against its jondo student for a wrongful act he's been accused of violating the sexual misconduct policy that are that the matter begins with an investigation and in the filing of a complaint in charges the facts of this case are undisputed a nother female student made a report to the university that the female student issued here had been sexually assaulted by the appellant the university didn't fabricate the claim which addresses the bad faith on this was another female student who reported the sexual assault they spoke with the victim through the investigation and she relates to the due process issue well as abstention asked what we're out here as it relates to abstention probably three cases one one sprint tells us what we need to do and how we need to follow the process when you look at the dat christian schools case which i was imminent in from this circuit up to the supreme court that was a state civil rights commission investigation in two and to implement context stench it was appropriate there huffman another case from the circuit that goes to the sixth circuit that was a a nuisance proceeding that was instituted by miss a pallet to close a theater that was showing obscene movies so those cases set the parameters for this guideline and then most recently at ross it's obvious not the circuit level but the shows have courts throughout the country earth dressing these contacts there was a case that just came out in november chartering versus the university of california and that shows the line of cases that judge ho followed here there were two cases from arizona these are all cited on page twenty nine of our brief there's a third circuit case writ bank board of education just sad i know you asked me for my single best case and i apologize because i think i think that is the human effect of all that that shows are these proceedings that you know verse to kentucky summer go on or code lation hearings that some schools have and now there are quite a few in the country that do have and i think that a big summer but maybe it's somewhat similar but biquad a bit different let me see if i can answer your question the ten you how the universe of kentucky student disciplinary proceedings are a can do a criminal prosecution there's at least ten facts there's a notice and report to the university which occurred here when another female friend of the victim reported to the university there's a new just a geisha that's that's noted in the policies third is the charges issued against the responsible student for responsible student receives notice of the chargers there's a hearing there's attorney assistants there's cross examination and and i realize it's not the level of attorney participation that this student would like but this court has dealt with that in  the flame case it dealt with it three or four months ago ski's me on a case for university of cincinnati and o b comes and that student disciplinary proceedings do not carry the same due process protections that it would at a full criminal trial when literally the liberty interest in the life interest may be at stake in those situations eight the accused shooter has the opportunity to present his own defense or her own defen pop if found responsible is possible sanctions tampa you have a right to an appeal as this case clearly demonstrates but third it to your point judge donal about doing the exceptions to younger  apply there's no evidence of bad faith or no real allegations of bad faith this was a process that began when another female student at the university reported the sexual assault and then the victim has participated in the matter time and time again as to whether the the policy itself is for is is unconstitutional that's not just a let's read it on its face is it unconstitutional what younger says in this is an incredibly h and apologize for in a quote its own thirty two of our brief but that the policy must not only be flagrantly and patently unconstitutional it must be so in every clause sentence paragraph and in whatever manner and against whom ever an effort may be made to apply it that is a tremendously tremendously high standard aside from the abstention issue the district court was also correct in dealing with the separate klein for damages against ms simpson briefed at length of the due process protections that apply in university disciplinary proceedings most importantly let me address the issue of qualified me and judge hood was correct in determining that clearly established law the not dictate that a university official must do x or can't do y in this case and there's a number of fallacies that the plaintiff points to and frankly the university solve those on its over see these types of hearings he was assigned to oversee this third hearing in november of fifteen at the time that her thing was put on hold for the pennsy of the lawsuit so we have a happens if we decided your so to speak absolute i think it would be a new case if he thinks there's an error the old errors will not be repeated and interest professor lawson that will oversee that in terms of the the questions that are b two to be submitted  hearings have occurred under this new policy there was an effort made to have this hearing but with pins in this lawsuit neither of the other parties wanted to proceed in the university respected both both of their their wishes parties the claims against ms simpson involve for errors that had occurred in the past as another panel of this court just hilde to those errors were corrected so the claim is not right as was referenced earlier he has not yet been sanctioned because the process hasn't been completed but even to the bigger issue of can you abstain while addressing qualified immunity this court repeatedly and supreme court bruce and we haven and other cases has said that immunity issues need to be decided at the earliest possible moment there were separate claims against ms simpson this court in summer versus lisa's and we decided in footnote fourteen addresses that there's a distinction between whether to abstain and whether to address the cough that's the whole basis of the doctrine to keep people not only from the they expenses and whatnot of even going through a trial and so forth that that's where that doctrine lies but that is true in part however miss simpson is not the official who would be in charge when they in fact she is no longer a university employee so she's entitled to have the claims against her addressed as expeditiously as as possible but even to the point it's clear that she voted no clearly established law while they were procedure errors that the university fixed it's not clearly established law that those were errors when when this court has said in the past that cross examination can be limited as is said in flame as it said recently in dhobi cummins that accused tutors are not entitled to the full panoply of procedural protections that you would have been full of it into your hearing so in the in the face of those cases there's certainly at least room for university administrators to just agree as to what can be involved honor i mentioned that to me that when you look at the cases that have extended younger beyond criminal proceedings to what they call a kin to the akin to mine to me what those often are the state licensing and permit issues where there discipline being pursued but what i want to point out is and i think this is very important is that unlike those lines of unlike what the u k has in those cases there's often a standard administrative procedures act involved in other words you know we have a federal a p a i would believe every fifty all of the fifty states probably have some version of administrative procedures act i can say that the kentucky k r s chapter thirteen b is the state a p a so if you're in a state agency  kentucky you get chapter thirteen b and it's it is a full on due process system you get a lawyer who is and who sits as a ministry of law judge you get the right to have your attorney fully involved you get a chart you get a list the notice of whatever the complaint or the charges are on your license or your permit there's a hearing you get to call witnesses you get to cross examine there's full participation it's not like any other kind of i mean just like a trial except it's an a l j it's an administrative hearing so most of those cases you're on it's my position or really a pin too because at least they've given you the kind of system that a criminal proceeding would give you this u k process is nothing like that like that i mean really if they wanted to clean this up and try to get younger abstention why don't they go past the statute and say that there are u k process it has to be run under chapter thirteen b of k r s you know i have a h have a pretty difficult argument if that was the case because then i could say well you're right you get full on due process with that a p a being applied but that's not what's going on here so that's why this is nothing like that your honor the other thing i want to mention on th unconstitutional or not and how all aspects of have to be but he also one of the elements he said was you know how it's actually used i participated in the second one and this really just showed itself i put this in the brief your hon r it was mentioned i think it's even in a footnote one of the questions that my client i had my client write down and submit to the panel the presiding panel member was to was to get at what my client my client was trying to establish that there had already been a sequence between the two that were he to to support the fact that he had a good faith belief that she had the capacity to consent the problem is is that the first off the panel was actually hostile to that because they've been trained that they're only to look at one side of it they're looking at her side of it and looking at whether or not she drank enough that they're going to take that consent away personal definition of consent is in conflict with the university's definition that you've already admitted that the record it's not sufficiently developed that we could ever get to that issue thank you for your or at least not at this at this stage you're all i was trying to say is i think that for younger purposes you have to do what's called a looksee you're not going to resolve those merits but you need to see that there's enough there that's it that helps thinking thank the parties for your argument and your submission of the matter is that mid level hued and opinion in due course thank you