the next one michael sarver versus the school board of broward county right you take your time in preparing for today i took note of a subject that was not emphasized in the in the briefs it was touched upon but the significance of it became more apparent more i read and i was beginning with the us versus the cob case squirt on the primary issue which appears in this appeal which is the deliberate indifference issue in the davis  this court concluded that went through the various factors that were were performed by the school district in terms of media corrective action that was taken upon notice of a sexual harassment situation talked about the investigation it was performed and the effectiveness of it and took corrective measures even though concluding that there might not have been any inappropriate conduct in the first instance and the court talked about how decisive that was in the later case of tb versus deal ville the court talked about if the school board's response to it was sought was deficient in any way reasonable jury could find that those deficiencies caused the plaintiff's subsequent emotional trauma which exists in this case and the court found that it was not clearly and reasonable in that case because the response was and i quote swift and affective a contrast in this case even response to this by the school was neither swift nor  effective not only did they violate their own policies but violated florida law and not reporting what had been told to them which was a sexually harassing and sex that's mostly sexually assault a situation that we would all agree that if the information that michael related two years later to the psychologist had been discords down the front and you might have a different case but the question is for the deliberate indifference i think whether based upon what the school knew at the time that is to say based upon what nelson shapiro learned after the weekend of the incident whether those steps were reasonable steps not whether they were perfect but whether they were reasonable what should they have done that they didn't do beyond saying to the teachers make sure you keep this woman away from this boy and as best we can tell they kept them apart except for one incident twenty months later when he walked into a physical ed class and she was there and even then they tried to keep him away from her and they asked him to leave  what should they have done that they didn't do here well it certainly goes to the issue of what were the known circumstances and one of the circumstances was that the assistant principal knew everyone asked michael what happened as part of his suppose it investigation to you but even if you accept everything that was said wasn't reasonable under the circumstances not to speak with him when they had a pretty good idea of what had  happened given the disability he had they were concerned maybe about making the matters worse could they have soundly said to themselves well we know what happened at the ball because we were told by the father mother we had that report and we're going to question them we're going to question the officer sergeant cruz and we're going to question the woman lorenzo herself but they just chose not to ask him anything why would that be so on reasonable under these circumstances to amount to deliberate indifference in the conduct of the investigation i would say two things in particular in response that you're out of the first is that the system and civil nelson set his own barrier of his own boundary of what he wanted to do to find out what happened and that included as he put it asking persons with the most intimate knowledge which would necessarily as he acknowledged include michael saffir moreover it was clear from what was told in the written report from the parents that they were not privy to everything that happened that they discovered certain things and saw certain things that happened in a room with four hundred people so they did they did not have all of the information and even much of the argument is they were deliberately indifferent because their investigation wasn't thorough enough that's your first point right that would be certainly part of it what else should they have done that the didn't do the second thing is based on this simple presentation of what was happened assistant principal nelson concluded that nothing inappropriate happened when in fact everybody  including his superior and civil nearly acknowledged it on the face of what was described by the parents that should have been reported to the special investigations unit which would have led to a suspension of that staff member from contact with students and assistant principal nelson misled the parents and to believing that their son in fact was going to be insulated the system principal also told these parents she will but they took some steps to insulate it what other steps should they have taken because it seems to me the only step they could have taken that would have categorically made it impossible we know she never talked to him afterwards she never touched him there was no interaction the only thing is that they were on the same physical campus and over the course of two years maybe it wouldn't be surprising that they'd see each other so it seems to me the only way to completely insulate the boy from her would have been to fire her was there anything short of firing her that they reasonably could have done here well it should have done and i think even the school board some policies which would have called for suspending her pending if more thorough investigation because this goes back to the nature of the investigation but if you get beyond that and one were to find that investigation was pretty good it wasn't great they didn't bring in the f b i they didn't question every conceivable witness but they talked to six or seven of them not eight of them once you get beyond that what should they have done based on what they learned would they reasonably say the prophylactic rule is you stay away from that boy at all times and instructed the teachers to keep her away from him were they obliged to fire her is my question based upon what they knew i don't think i wouldn't say they were obliged to fire her but definitely remove her completely from how could they remove her without firing her they could have suspended her reassigned her because michael was a disabled individual who was having significant emotional distress he received an essential message from the school's response that what she did was ok you misperceived you misunderstood that to a sixteen year old who by the defense's own acknowledgement had several years of developmental delay based on his disability is an extremely confusing picture you said they should have removed her i don't know what that different class with a different teacher and a different class aide right he was not assigned to her class right regular basis but for the fact that it appears he was barred from speech and physical therapy not just once but according to alberts if you're his father apparently had gone on for a lengthy period of time not just once one incident that's what the record would be so what could they have done short of firing or i guess is all i'm really ask set out that process in his first conversation with our severe when he said she will be removed from suspended and removed from contact with students reassigned somewhere else and in fact that's what the record reflects they alternately did when the police became involved two years later they assigned her to a mail room to do clerical work away from students and that was the procedure that they violated and the principal himself said that is what should have happened in the first instance but he didn't take any action to  fix that so that would be among the things they should have done they also should have frankly given the totality of the circumstances followed up with michael to make sure that he was in fact not having contact with her that was causing distress again this is a severely developmentally disabled  young man who was very confused about what happened and both by virtue of what the parents described in their note he was conflicted about what was going on as the as newbie able to render is resisting what the parents are saying michael is saying that well she's my friend that was his initial reaction that his distress it rose later none of that was accounted for in the school response and what the case of us is this is again it's what is respond to the totality of the circumstances and the core of the circumstances in addition to what new people arounds did in public view is the circumstances of michael finds himself in as a disabled young man that was not accounted for at all he was marginalized and sidelined this is a this is a young man who who should have at least been given the respect and the deference to be asked the question what happened what happened when your parents didn't see how are you feeling about it now that was not part of so the pivotal mistake if i hear you right was that the investigation your honors hudsonville of behalf of the school board of broward county with respect to the questions that were asked about what more could they have done i think it's important point out what the standard is for deliberate indifference of own sort it says it's an exacting standard that must be clearly in reason one light of the known circumstances such that it's an official policy not to do anything and i think if you look at the facts of this case and compared to other cases that's not what happened here i guess what i heard from my colleague was that the fact they didn't interview michael makes it deliberately different but what unique about this case is while they maybe didn't interview him they had eyewitness statements essentially from the parents because they were present at the ball sitting next to michael when these these incidents are alleged to have occurred well i thought the fact that and suggested that michael and the woman was seated at another table and the parents then sought to intervene to bring their son back to their table where he should have been but they warn at the other table for some preparatory period is that not right that is correct or out of that they came together to the ball and then walked in ahead of them with missile runs and set it on the table they then went through the line came in and went over to them how long did it take before they went over to the other table do we know from this record i don't believe we know from this record john i mean it's  indicate in their testimony was they went through that the line came in and saw michael and then tried to get him to come over to their side table john of this that was not the case which typically comes up in these cases where something happens in school where the parents are present the child comes home and tells the parents what happened they did indicate to the school board what they've been told and again you have eyewitnesses from the parents providing testimony through their own e mail and that blanket there's no evidence that the parents were ever told at the time by their son that he had been sexually touched by her you know a lot of the allegation airings didn't know that no one knew that until michael michael knew that correct but he didn't reveal that to anyone right but if they had taken the step of speaking the michael they would have learned that right on the front end with presumably well that's not so idle i'm fanciful is that he told the shrink later presumably he would have told the school earlier and i think that's that's what we're guessing what would have happened if michael didn't he didn't tell his parents either so i think to say that that would have happened is is just that we don't know that  but even if it did your honor that the response they had was to interview a number of people involved and then take steps that your daughter pointed out to make sure there was no cut it would not have been reasonable would it if they knew on the front end what they learned on the back the steps they did take i think it would have been a different circumstance and so they are but i'm asking i know it would be different i'm asking whether that would have been the steps they took would have been unreasonable no your honor because it was alternately totally effective in preventing any further acts of harassment i mean this is not a case where they were told something they have an investigation and something else happens this is a situation where there is a single incident alleged incident or single incident of such rassmann and then there are no further inciden there as you point out there's no contact never speaks and again the evidence is that there's a couple times when they see each other on campus in a classroom and then which apparently when when he's walking to an after school program he's joined campus so without that that second incident i think i don't think there's any case that they've cited that hold where just simply one incident no further acts weeds to live only for a school boy especially under the type of allegations that were the e mail and even subsequently to the why was it reasonable for the principal in conducting his investigation not to speak with the board i don't i don't know if there's any record of us that but i do think you pointed out and only we know he didn't speak to the boarding director and we know he spoke to six other people yesterday i think if you look at an e mail that's michael spears parents sent to the school board which is part of the record and it's at the twenty six dash one at page fifty one and this is in november of two thousand and thirteen in the second paragraph mr spear talked about some of the issues he has michael has with you know he doesn't say a line but he says in relaying the truth and i'll read from the paragraph we understand that they're there any challenges although we know not all of them are patterns of laws but often due to his severe and that's underlined memory and language issues that frequently get him completely confused flustered or trying to make up what he thinks is accurate or expected but is often wrong and where would we find that that's a that's an email from but from this if your email address but it's signed i believe by albert and it  was attached to his mistress appears deposition and it's at docket any entry twenty six dash one at fifty one so this is what the father says about his son correct and that but did he tell the principal about on the phone and when he filed this complaint there's no evidence of that your honor but this is something that was an ongoing problem if you write read the testimony with michael and some of the issues he has so in terms of when you have the parents sitting there providing eye witness testimony essentially in the form of the email and then the conversation what happened was certainly reason not to go with like a sphere where the press would just take steps to correct the situation he says no more contact communicated to the teachers and it's effectively carried out and i would also to point out like my colleague mentioned something about him the tonight's speech class and i think it's important to look at the record therefore the evidence actually shows there was apparently an issue where during the period michael wasn't getting education for a period of time but there is no record evidence connecting that to anything to do with the ball incident other complaint is made afterward if you look at the actual record evidence albert speer and what class had he not been given the opportunity to go to it's not clear i it has to do with the way the afterschool program was organized and that he would have some down time when he got back from a program where he would leave the campus with other e s e students and since he work and then before or after school program there was still time at school and for a period of time he was going to guidance and wasn't actually getting education and that was addressed at one point and so he starts getting the speech in the piece and that's on the p issue comes up but there's no evidence that the reason he wasn't getting it had to do with  court to read especially what the the appellant site and then go back to the record to read it because often when you really dial it down it's not quite as broader far reaching as they claim but you know we  well get your boy some counseling right i believe that's what the record shows that the that the parents asked for counseling and the principal indicated that would be something that would be provided do we know from the record whether in fact the school ever provided counsel it there is some which is just a also a useful document the case because it is a timeline prepared by this a few years in may of two thousand and fourteen which lays out kind of the key events of what was going on and in terms of retaliation claim it shows the huge gap in time that occurred between when the complaint was made and when some of the things they complained about came up and i believe the counseling was discussed in there your honor to show that eventually he was provided some counseling but with respect to that the school board a sponsor was totally effective in prison preventing subsequent acts of sexual harassment there's no real contact between michael and and the woman so while it may do it better to do more and get that counseling i don't think it makes their that he was merely a helper at the ball but more importantly he was not well rens is a supervisor and he was merely a teacher at the school which really means he's so low down on the totem pole that he's not an appropriate person in the title not he couldn't take  that this court has indicated are important in these investigations he couldn't discipline her he couldn't read a sign her he couldn't change schedules or anything like that that makes sergeant major cruise not an appropriate person  complaint regarding sexual harassment it's lorenzo was she was retained in the same position at the school in permitted to come in the frequent contact with michael after the incident at the dance when the school officials were put on notice that there was a problem there and i guess the it's my concern is why couldn't a reasonable j action have been taken after that first incident she would not have been permitted to come into cop frequent contact with him after that i would say two things in response that one i don't agree that the record supports the statement there was frequent contact if you look at again the e mail that i pointed out regarding the timeline it discusses what the contact were and as best it can be said there isn't some time in in in two thousand thirteen it looks like michael says that missile rounds walked into a classroom he was in they locked eyes she then walked out there's also how we can party where it's not clear if you actually saw her but they were maybe going to be together and that was bought as was attention it was change of michael could participate and she couldn't the p incident that you discussed and then with respect to seeing him on school in that timeline they say that michael revealed in march of two thousand and thirteen fourteen was the first time you're viewed it that when he was in his after school program which he was in in all the time that he would see her when he was walking two times a week from one class was after school programs we see her because she was working to to get kids on the bus so that that's not what nestle agree that the record supports frequent but nonetheless rahner in terms of negligence somehow deficient and then some subsequent act to hold them responsible for i mean that they want to act happened april and april two thousand and twelve and the records undisputed that there were no prior incidents with michael before that or any other student regarding this runs to put the school board on notice so that deals with a negligent retention supervision hiring the other negligence claim again it involves a notice component and there's just simply nothing to put the screw on notice that how organized the ball how it how it asked you do we know from the record how big the campus was i mean what it physically looks like it was a high school and they also like mine many high schools in south florida that are overcrowded there are the trailers that also have classes etc what do we know about the physical layout of the high school campus this is what is in the record at least in terms of the size of the school it's i believe it's five or six thousand students that's in the record in the motion for summary judgment and they do have the school calls in portables your honor i don't think they use the word trailer but that they do have we call them trailers right but i think the school because of portables i mean or or size other than the fact the records as there are portable classrooms there are i guess brick and mortar buildings and at six thousand other than removing her completely from the campus would there be any way given the nature of the school for over a period of two or three years for him not to see her from a distance i mean what they have done anything that would have made it impossible for them to has so much as have locked  from a block away or a football field away you know to say they would never have any contact i don't think other than reassign her to another school that would be private i was other than removing her from the campus it would be pretty hard to do that i don't y i'd like to address first that the issue of this contact if i may between michael and and nucular rennes after the night of the ball michael's testimony was that he saw her so frequently he thought she was stalking stalking him or following him and that caused him tremendous emotional distress and fear and that anxiety got to a level that he actually the records words became suicidal for them more of these were not incidents that were occurring months apart i mean for example there was an issue made as to when it was discovered by the parents that michael was being excluded from the eighth period class counsel just stated i don't think he meant to mislead the so it was an after school it was an after school it was the eighth period of the day that michael was barred from the physical education class and speech therapy and left in the guidance office after his in term ship and the reason for that the parents discovered was because no bill or rounds was involved she was the aide in the speech class you a question just help me with the facts that you made reference to the did they have like physical education like three times a week or something like that or every day if period as i appreciate from the record could be used for p e i on certain days speech therapy and others there's a way i read the record and i may have this wrong so correct me if i do or was that there was one occasion during the course of the two year period of time couldn't go in to be because she was there i think the records that were wrong i think it's incorrect because what the record reflects in that respect is that's one alberts if you're the father found out was going on and then confronted but it wasn't a one off this have been going on for some time this being specifically that he was barred from the classes other than that instance because she was there and is impression that it was corey work for some time and when he found out from when michael complained changing michael was it was at a internship at a hospital in the mid portion of the day and then when he get bus back to the school the eighth  a period got michael would have changed and it was is jim greer because they were training for special olympics instead he found himself in the office in the guidance office waiting for the data and because he couldn't be there because  there and i think it's also important to understand in this context that you know michael was seeing her regularly but also there was a reinforced message that she had done nothing wrong and it was reinforced in part by dr sugarman a dr finn for who were also e teachers special education teachers when they told him number one you're not telling the truth about what happened at the ball and over to you shouldn't be talking about this around other kids those were the things he was told and so this was an ongoing thing over the course of two years and it had the compounding effect of impacting michael's mental health to the point that he became suicidal so to say that the fact that the school did not take an action th left him exposed to further physical assault disregards the fact that it was a sexually harassing atmosphere as well that persisted for michael and again it's a subjective standard based upon what were michael's needs what were those circumstances and it really  es with assistant principal nelson's conclusion that when he interviewed newbie elements he found her to be credible even though he had absolutely no training by his own admission in terms of how to evaluate whether or not a predator is telling the truth at the same time he's testified that he had no basis to photo reject with the parents set and with the parents described according to nelson's own superior plan bill neely was in fact a violation of school sexual harassment policy should have been reported human should have resulted in her removal from campus which would have led which under those circumstances the other part of the evidence we haven't talked about is that the assistant state attorney test stated in her clothes out memo when she did finally hear from the police over two years later that had i known at the time had this been timely recorded i absolutely would have charged her with a crime and then mike wouldn't be in the situation today thank you very much counsel and thank you will take the case