believe they said they were concerned about sufficient evidence to move forward to a guilty verdict young reasonable doubt and that was very disappointing to us but i think the criminal case a fact and it's disposition is a path that i really just and we're just said i'm not yeah i don't think it governs the case here but no i don't think it does but what it does do is show the importance of why the school here failed in its duties under title against the backdrop of me too when the heightened awareness of this case brings i see this case is setting a new bar for what a school district must do to comply with federal law they should the quarter fer it would be lowering the bar to such a level that a victim a number realize the benefits of title line and its protections to what it was intended to accomplish which was a quality in education that includes a safe learning environment where student is not harassed which is not hide the benefit of their education and here we have statements in the record from school officials who acknowledge this young lady was being denied the benefits for education after this assault which happened the school orientation she begins suffering immediately from depression anxiety p t s d and she was under so much stress from this experience everything the movement says is true did exactly that the evidence they discuss in the in the district court's opinion is all the school's evidence they disregard the disputed fact issues that the pla honor there's quite a few things of the court to look at in terms of conscious and deliberate indifference the school learned of the incident immediately after it happened the young lady complained or her home for friends had a something was off with her she was very upset very distraught and they immediately contacted counsellor who questioned her and said ok stay here with and get your pants they contacted the male student who was accused and he was separated and they brought in  now why were they conscious and different at that time immediately after they brought in the police and they spoke to the parents and both students they made a decision we're going to wait for the police to investigate this we are going to do anything the parents as many many times over and over again him in their communications in their their calls call logs documented in that in iraq a touring answers from the mother to the school saying what are you going to do to the student you know my daughter is not feeling safe in this environment they asked the school to provide her escort between classes so that's not feasible let me ask you a question though i mean she only saw the fellow one more time throughout that school year accidentally bumping into him in the halls so i mean there's rational fear in the news here ashleigh no fair i don't think that's entirely accurate your honor that she only saw one time we know that she at least physically bumped into him in the kazan and that really caused her a lot of thanks she also they had only one lunch period for the school and so there was no way to segregate people during the lunch period they couldn't say he goes to the first one and she goes to the second one so she was always going to be seeing lunch time and they had friends in common and she testified that she would see him and that he would come up to her when she was with her friends not to her but to the friends making her comfortable making her squirm knowing full well that this was she was out there to add more to just taped up that such day this is question about conscious indifference the e mails internally between the principal of the counselor and her teacher because our was an art student the male student was the music so they were going to have any costs together but when she was missing so much class your teachers e mailing this is principal and says you know we wanted to get the full benefit of her education those exact words but we don't think she's getting it because she's missing so much hots and we understand she now has epileptic seizures but you know maybe we need to get a plan for her now the assistant principal responded it's a tough situation all we can do is document our efforts well you know it's it's very unfortunate but i but i'm not quite sure i see that you think if the school in expelled then says that her problems would have been solved i think it would have gone a long way and making her feel less  about who's going to be around the minister any medical evidence to substantiate in other words did she go to a psychiatrist in the psychiatrists and i just don't remember because i don't think it's in the district court opinion but to psychiatrists she went to the hospital immediately after the incident she also did go to the children's assessor assessment center and she received counseling throughout this time period and beyond and and how much of that was a school apprised about and and was a school apprised that removing s s from the school would would contribute materially to her educational benefit there were again multiple instances of the mother calling the school trying to find some resolution asking what's going to happen what are you going to do they would go pick up oil from school early when she became sick in fact on one occasion at least she didn't in the record she had a seizure at school in class and so she would see the counselors or the use as a principal and she would say what are you doing what is happening and they would constantly push her off and say you have to wait for the police investigation there was finally she they demanded the parents a meeting with the principal the principal never met with them in person but instead delegated not to the assistant principal mr trout mr trump met with them and in his own declarations as met with them for about an hour and a half an hour and a half this is where they again declined to think so well i thought it had to do with the nature of the text messages that gone back and forth between these two people and the some kind of video in the hallways of a before and after the alleged the saw yes there are there were this was the incident happened at orientation in these a group the days leading up to the orientation they had exchanged text messages because again they had some mutual friends in the text messages which i have never seen in the not in the record because they were turned over to the police but they have been testified to and i don't think anybody disputes what was in them which was they started out innocently casually in the assimilated to graphic sexual innuendos asking her for sexual photos which she declined and that is something they don't dispute is that in her text messages she and her publicly said i don't want to be your friends with benefits i don't want to be your girlfriend everybody knows friends with benefits means so she tells them one day no and the next day he's the sultan and so those text messages are one thing you know you're what you're talking about those are the consent issues and this court's opinion largely was conditioned on this consent issue in that in that regard the district court got it completely wrong the girl was fifteen years old she was a minor under no circumstances and the law would not have been consent statutory to sell us but unfortunately we know that things gone in high schools right and that's that's a problem you're correct  serious problems a serious problem in sexual assaults on school campuses at the high school level top in a way more often than anybody wants to admit and oftentimes i've been on this case on the side of the defending the person who's been accu and so the court is more familiar with dealing with the due process issues of the accused and did they get enough to process with their fifth amendment rights protected that they get noticed and they get to defend themselves and cross examine people and you've got those competing concerns about the right to stay quiet if there's a proven all action versus the victim so here we have the opposite case we have a victim that got absolutely no process and she got no resolution no closure and ultimately tried to harm herself she jumped out of a moving  to what happens at the end of the school year in may the same male student has a sexual encounter with another female but nobody claims it's nonconsensual but those two students got penalize they got he got suspended they suspended both students a male a female for three days and they did an investigation and then they were the girl was kicked out of school and sent back to her home school and the male student who was graduating that year was not allowed to participate in graduation two bodies but the principal's own statement which they put in the summary judgment record said if he had not been a senior he would not have been allowed back at that school so it's very hard to reconcile what the school did when you had an nonconsensual account verses a consensual encounter and our client was under tight a lot and entitle to some sort of resolution she wasn't she should have been forced to wait four years for a criminal case to not go forward well but they i mean the resolution was you know they told him never to not to get in not to speak to her again and he didn't speak to her again for the whole year but your lover may not her problem it seems to me it's totally her problem if she continues to have the same friends her friends with him i think what happens lou we use that kind of reasoning it's her problem she has to deal with it which is that the what the counselors so on this record i'm not so many court to look at the full circumstances and decide what is the minimum the school has to do with all they have to do is say don't talk to each other stay away from each other we're going to wait on the police and they never have anything to took three years i agree with you that there's there are some things that we can't blame them for i don't blame them for the four year delay but what i do blame them for deserved failure to provide the resolution they were supposed to do they had a process and they c use it they showed that later on so that's what we would have asked for them to do for her ok thank you all right can't time for about zero mr gilbert good morning your owners may please the court my name is chris gilbert and i represent the used independent school district in this court as well as the individual defendants in the court below while the district certainly does regret what happened i know judge nancy outlets correctly ruled below that aisle did not meet the high standard for showing that the district response to the assault was still clearly unreasonable in light of the known circumstances which is the standard under davis versus monroe county judge atlas noted that the school district did conduct an investigation and found that quote in a situation where there is some indication that the incident may have been consensual and where there is a potential for criminal charges if it was an assault it was your it whereas here is some indication that it may have been consensual that would be the text messages between the students where she says i don't want to be your friend that was the end result but i think but the point was we knew that this was this was not a stranger assault and it was not a sort of ongoing sexual harassment sold only claim which is what a said out right sexual assault right but it changes the call it changes the calculus both of what sort of investigation is done and then what sort of steps are taken afterwards and what i meant by that your honor was they were aware travis springfield is the the counselor who sat down with her and talked to her about the text messages was concerned that it showed that there might have been a boyfriend girlfriend relationship there yes she ultimately told him in the text message but i mean if you can have great between spouses what's the difference about a fifteen year old and having her body invaded this way well and i agree your honor that ultimately that would be the conclusion but that's what they wanted to investigate and so what happened was they looked at both the text messages and the the surveillance video which the principal felt showed that they were leaving the room together walking in a direction that was could contrary to what she had told them she had gone and that she didn't seem to be upset and so it was those two things that they felt needed to go that they wanted to pass down to the police because they had but then she's in the bathroom crying uncontrollably and says she's just been assaulted that's correct but that's what they wanted to investigate and that's why they put the no contact order in place to make sure that while the police looked into this more fully that there wasn't any ongoing harassment i mean you know h p d from i mean this is a very disturbing situation and it seems to me that to some extent to a great extent h i s d is just seeking shelter under a very very latitude marion standard of review but goodness gracious i mean this is an outright sexual assault and perpetrators still wandering around on campus and during the middle of the day it occurs so many must have done it more than once because he ends up in school career that way too well and i would disagree with that your honor as to the second incident that occurred at the very tail end of that school year after the plaintiffs already transferred out of the school ever first of all i believe that the plaintiffs have waived the right to argue that that violated title mind that was brought up below that issue was brought up below in connection to the equal protection claim that was brought against the principal because the mother believed that the girl in that been kicked out of school but that the boy had not been so evidence was put in the record to show that no they were actually treated the same way but it was because he was graduating that they did pick him up what if anything was done to the assaulter here other than to say don't get near her again that was the major thing that was it that i mean there was not he wasn't suspended he was not suspended no you're there was nothing put in his room i mean i don't know if it matters whether it was put in his record or not he wasn't deprived of any particular that he needed to stay away from her that if she came into the room he was supposed to leave that room that if you ran in your opinion so the year is going on and the girl was apparently pretty obviously distraught and her pair are least the the school is being informed that her family is obvious that she is obviously distraught and into and you know why isn't something being done because you're wrong i think the difference here if you look at the case law is you have to look at what the parents were actually will porting the parents were complaining about the original incident they were complaining about the fact that he had not still been punished because of the original incident and they were complaining about her injuries arising out of the but they weren't complaining about any ongoing or numerous meant and as judge atlas flirting i'm sorry how bad is it does he have to impregnate her for the school district to realize that something is amiss no you're older but  this is not like the period of time in the ninety's when a friend was telling me the kids were having oral sex in the stairways at school this is much worse than that i agree it was a significant incident but i don't believe that  to the police doing nothing but before you realize something whatever happened was pretty darn bad it was a physical assault on the premises of the school and you didn't even suspend the guy for a day and i can't answer how long to roger i can say that there are numerous cases that have held that what the school district did in this case doesn't rise to the level of deliberate indifference up there and there are not many factually how many cases sexual us and outright sexual assault and the school does to absolutely nothing for the entire school year versus bowling green six circuit cases of sexual assault of a cheerleader on a on a bus that case has almost the exact same facts in the sense that the parents were complaining about the ongoing presence of the student at the school and the court in that case and the court in that case acknowledge that there are certainly cases out there that say that a school district has an obligation to continuously evaluate what it's doing to determine whether it's ineffective in preventing future harassment and may need to step up the restrictions it's put in place but with the bowling green k said in that case was unlike in this is a quote unlike those cases the sexual misconduct here was not ongoing after the initial salt m d saw r m in the hallway and in a handful of school events since m b does not allege that are him harassed her after he returned the cases she cites are not analogous to hold otherwise would effectively foreclose remedial measures short of expulsion and undermine the flexibility that the devas court took to guard that they do any remedial measures in that case they did they did you honor they did they did suspend him in that case initially but but the issues came up after he returned because the father didn't believe he should return in that case they did the same thing they did in this case they told the students to stay away from each other and the task of the assistant principal  sexual assault case that was more of a sexual assman although the boy in that case made the girl lift up her skirt on the bus and in that case they didn't do anything to the male student other than tell them to stay apart they told the female student that she could change buses the parents weren't happy with that obviously because they said well that's punishing her not him and the court in that case said that to the extent that jacqueline the play of that case and the boy continued to have random encounters in the hallways the court said the fact the subsequent interactions between jaclyn and britain occurred does not render the school committee deliberately indifferent devoid title nine liability and educational institution must act reasonably to prevent future harassment  don't believe your story i mean they talked to the parents and told them that they were looking into the issue of whether it was consensual or not they never disagreed the incident occurred that was never an issue of this behavior is not consistent with the fact that it might have been consensual problems that occurred with her over the course of the school year if they were triggered by this event are not consistent with consensual conduct and that's why i green with that and i think that's why they put in place the no contact order while they try to determine that issue because in this case as a school district we have concerns not only about the female student but also about the male student we want to make sure that everybody's rights are protected i understand that but i'm what i'm saying is there's no unlike the shibboleths and in you know about it out there in the political realm there is no doubt about what happened in the girl physically nobody challenges that her subsequent conduct was immediately traumatised and it displays ongoing and perhaps increasing trial i don't know for sure i'm saying they're exaggerating a little bit but it's but it's i mean there's nothing that suggests that s s should have gotten off scot free i agree your honor that in hindsight they certainly could have discipline him more significantly however as was indicated by the second incident if they had determined that this was a consensual as incident and punished him for that sort of a lesser punishment for a consensual incident they would have if they had done the same  thing that they did with the second group of students and more sort of hypothesizing at this point they would have disciplined both students and they would have sent them back to their home schools which obviously would have been that would be terrible for a while and so that's what they were trying not to do in the interim unfortunately in the wintertime here that that would have been the result because i don't know enough about the second incident but i am so because what we're dealing with here is undisputed sexual assault and over the next couple of months it should have become increasingly clear even to the school that this girl had been traumatized i think your honor so i do want to address that i think if you look at what the parents were reporting i think there is exaggeration going on there and that's what judge atlas found when she looked at all of the various things that parents alleged i'll does admit that the student never attempted to talk to her and never tempted to contact her again with a parent in the lawsuit alleges that there was ongoing continuing harassment and intimidation by the male student i didn't say that i'm talking about p t s d i'm talking about epilepsy that could have been triggered by this i'm talking about the incident where she attempted to harm herself where she's hospitalized for a period of time if there was if the parents were informant in a school that all this is a result of the issue you asked him of plaintiff's counsel i don't believe there's any evidence in the record that the absolute epilepsy was caused by this incident i don't think there's any evidence on the record as to what caused the epilepsy there is no evidence in the record you ask this question specifically that a medical person ever told the school district that i l is suffering because of the assault or because of what s s the continuing to suffer we knew that she was being counseled we knew that she was going that she was being treated for the epilepsy but  schools deal with a lot of students who have issues like epilepsy and i disagree that the school would be was turning a blind eye to that if you look at the evidence the record shows that they were attempting to talk to the parent of out setting up a five floor plan specifically deal with the epilepsy and the absences it was causing and that's in assistant principal rodriguez a counselor springfield's affidavits in the e mails that they attached the e mail that references documenting and says there's not anything more we can do about this was not about anything related to the title nine investigation the school district people testified that it was their understanding and part of what made this hard to deal with was it wasn't like this was a student who had no problems and then also she started having problems she had ongoing issues and she had the ongoing epilepsy issue and so what the assistant principal in the counselor testified to was that it was their understanding they didn't realize when the parents were calling and saying we have concerns about the fact that she sound or we have concerns about her well being they didn't understand that those were issues that were stemming from the assault they felt that those were issues stemming from the epilepsy and the health issues that shit going on which is why their reaction was to reach out to the parents and say ok we need to set up a five zero four meeting under section five before the rehabilitation act to put a plan in and step that's the first step that a school district does before they go so far as turning to the individuals with disabilities education act that's usually the second step and so in this case the e mail show that they were trying to get the mother to respond back about setting up a meeting and mom was not responding back and that was the reference to all we can do is document i don't know i'm wasn't referring to that specifically but you're saying there is no evidence that the school was informed post assault that the young lady was having a problem the psychological problems caused by that assault caused by the assault i wouldn't i but there may have been evidence of that there was nothing nobody ever told the school it would help if you get rid of s s if they went that far so i date they knew that they were dealing with issues stemming from the assault but i don't know that they ever got i honestly i don't remember exactly what the medical records were record seizing medical records furnished question about that one that was a and again you can you can get into the issue of whether minors can legally consent to sex or not but that was two kids messing around in the bathroom and there was never any question that both of them were willing participants  right well i think they are they could move they didn't need to do an investigation they could move forward because there was no question as to the issue of consent it was the only question here was whether they'd suspend i own admission to s s is that what you're saying no i think that they wanted to gather all the evidence to be able to make a more informed decision they didn't they deferred to h i s t and it went on and on and on and on and on it went on longer than they had wanted and then she left she left in february and very thought that when she was found in the bathroom crying  uncontrollably after all this has happened that maybe she's not really telling the truth because she said he did the because they were text messages but she said she didn't want to be his girlfriend and then there was what appeared to be an  equivocal video of the hallway that nobody's ever that hasn't been introduced in the record video and it was not introduced into the record but the principal in his affidavit described what he remembered seeing in that video and why he felt it showed that there was at least an issue there is whether this was consensual and from a legal standpoint is it deliberately indifferent for the school district after a certain period of time not to renew an investigation when it knows that a physical assault has occurred in the premises i don't know the answer to that your honor i've read i think most of the title nine cases because this is not my only title nine case and i don't believe i've ever seen a case that said that the obligation changes after a period of time i mean i think i think in this case they were deliberately indifferent because they took interim steps to try to protect and separate the students that judge at least ours i mean active in that you know in a sense i'm even less sympathetic to the school's position because it's the h i i acidy the say the school district police who screwed around with this not the houston police department which doesn't even have enough personnel that monitor murders anymore  but so why why don't the h i s and the police make something of a physical assault on the premises matter of top priority i can't i can't i mean you've got two people you've got you know you've only to interview two people and i think that's a good idea your honor i can't answer that question because that evidence is in the record well i think i've touched on everything i was going to touch on if there are no further questions from the core value of the rest of my time back thank you thank you to respond to one is under title line they are supposed to delegate the timeline ordinator who is supposed to implement the procedures for complaints such as this one to investigate them to resolve them and to inform the student and her parents of what those policies and procedures are and then rocketry answers they didn't identify time line ordinator and i still don't know if history has one if they had one which there are legally mandated to do it would have gone a long way perhaps to change the outcome of the situation your question judge jones about can they go all year and at what point does it become a deliberate ind ifference if they don't renew their interest and say hey we need to do something by the end of the school year is a good question and i think you hit the nail on the head every time the parents spoke to the school they said we have to wait for the police investigation  and fourteen when they met with the assistant principal in preparing for the meeting he said i called and spoke to his do police and they gave me an update and they're still investigating and that's could take many months so they knew how long it was going to take they knew they weren't going to get anywhere very fast and they didn't hear the suggestion that the school didn't know the school was having problems related to the trauma is absurd it really strains credibility to where it said well done don just you know a mode where three evident in the record the assistant principal says he met with them for an hour and a half testimony level here pardon me when in december of two thousand and fourteen which is the it was in august incidence feasible they've tried to say oh the parents only came to tell us they were going to sue us well did they take it i would have to help our conversation the parents weren't there if they weren't there to talk about the trauma and the effects on their daughter the what were they there to talk about they were there explaining what was going on with her she has she had by december been diagnosed with epilepsy and she'd had the seizure in class there were other symptoms of her trauma that she was suffering she would go to the nurse for stomach aches anxiety headaches when there is something in the record isn't there a batter and seeing one of the counselors repeatedly and just smiling and saying everything was ok or something like that so that's when one of the got the school claims they did to help them feel safe was to tell audio she could go talk to the the counsellor any time and so the counselor says well i would see her in all white house because she was doing what student is going to stop in the middle of the hall and say wow i'm about to have an anxiety attack or this is happening they didn't take any sincere serious interest in what was happening with her to make her feel like they cared because when she did go to them the  times she testified she went to them they basically said you got to deal with it small campus you might run into him nothing we can do about it how many students are high school hi i saw on the record last night i believe around seven hundred so there deliberate no your honor the only testimony from the school came by multiple written declarations written at different times that were repetitive and sometimes different they were inconsistency is even within their own declarations and they mentioned it is bo plate so but even still when the council argues that we waived the argument related to the second incident where the male student was punished i don't know how he makes that claim we're using facts he put in the record and we're bringing them to the court's attention so i don't think there's any real legitimate argument about the waiver there with respect to the video quickly aisles counsel objected to his admission because it was not produced until the close of discovery and it was objected to in her response but she would dispute what the video shows because the video is consistent with what she says happened before the incident and they had the assistant principal say oh i looked at it and this looks like it happened after the incident he wasn't there so his testimony will not has no credibility and shouldn't even be considered at all finally one of the driving concerns that i know this when they're going to have online cases is not wanting to second guess the administrative decision of a school and what they do in how they manage their daily affairs and punishments make it quick you read like there was no decision here