it may please the court i'm alan milstein i represent brendan austin i like to reserve three minutes for rebuttal so i'm going to argue the not the title nine issues my colleague mr michaels will argue the ninet three issues for the last three minutes so i have a first class the question is are you going to adopt or have you already adopted the mcdonnell douglas standard i think you've already have even though  finance that they basically said that they rejected mcdonnell douglas at the pleading stage so i'm interested to know how you square that statement with your effort to adopt so let's say you don't have the second circuit case and of course we're not bound by the second circuit in your view how can you square the clear statements or glance is because i don't think it matters well that's another question of course so might not matter because you could get to the same result in your view or in the different city i guess each side thinks it doesn't matter to the differences whether it's minimal plausibility or plausibility and i think under either if you look at the case in the sixth circuit which i think along with the columbia case those are the two closest cases to this one in the bam case you had a situation where the accused did not have the right to cross examination to not get a list of the witnesses and the court essentially said that the lack of cross examination to not have the right to cross examine situation at the university of michigan where they where that case took place where you've got protests and and the public essentially pressuring the university to essence kick out these guys who've been accuse that that's gender bias so you've got the combination of no cross examination and you have the calm in the combination of of this in essence trying not to aggravate the protests and as as the court said in the verse of columbia it's certainly plausible that when you've got those kinds of protests that the board the hearing board is going to want to not essentially fan the flames of those protests and again as as said in dover says call be enemy other cases it doesn't matter whether that is the best administrate if proceeding and the panel hearing and what in your view your clients gave up by not going to a panel hearing and vice versa it was a distinction without a difference in essence it was a hobson's choice given to mr alston's attorney you could have a paddock conference where you could have the ministry of conference but in neither case or are you going to have the right to cross examine in either case or you  request that people of their choosing be contacted for information have the right to counsel there was a hearing officer present but no right to cross examination is is that i n your view required under matthew's analysis for every due process hearing in this context not for every due process hearing so that when you have competing narratives that is all you have is a he said versus she said with no other witnesses able to since say i heard that or heard this in that case as ballmer said then you need to have the cross examination there are  clarify a factual question then for with regard to the he said she said the ultimate conclusion was as i recall understand it only that express as distinct from implied consent so why are where is the factual dispute that would have in your view demanded cross examination what we'll edge in their complaint and what is in the student brochure and what is present in other cases is you need either verbal consent or unmistakable physical indication of consent the woman voluntarily goes in the cab the woman voluntarily goes to the apartment the woman as happened in in the columbia case she takes off her clothes so there were we allege that it was verbal consent or and or we said so if there was testimony in this governor i believe our clients will say to some extent there was verbal consent but there also was which included again that line that it it's an mistake of both physical indication of consent that that's enough now again there are two theories one is erroneous outcome and we believe that it's hard for me to understand how the judge could say that we did not adequately plead that there was an erroneous outcome if you look at the paragraphs of the complaint we played it in detail but there's a second theory with respect to title nine and that's the selective enforcement theory the judge totally ignored that theory so the selective enforcement theory says if it either in the initiation or in the penalty there is gender b then that also states a claim under title done so in this way where where is the allegation of similarly situated students or situations and if so what you mean by similar situated well when you talk about selective enforcement then that's what you're talking about is you're talking about comparisons of similarly situated situations and the government or in this case the university does not treat them similar and that's why you have selective unfortunately so what where is i'm looking for the allegation that that shows  what they said but tell me where in the complaint i look for that fundamental allegation that really lays out the selective enforcement claim that the treating the different groups differently  we said it was that what he was what he was essentially sentence to was four to ten years and that in one of the other cases was it was four to ten years on the table or imposed but but how does that to do with the with the fact that in every in every one of these cases the the males we have affidavits from the attorneys saying that the males were always convicted essentially by the by the university in the one case in which there was a the attorney said he had a woman client she was not convicted you had these protests going on and you had the the college president giving a understand your theory if you look at the bit in our complaint paragraph thirty to fifty two which i think is one forty eight when you have the amended complaint thirty minute could play here which is one forty eight to one fifty five in the record we allege that as a result of all the good this is in the initial pleading stage where everything's got to be construed in their favor we'll edge that this these these protests the speeches by the president all always sensually in body exit exactly what the other courts say is gender bias it can be construed no other way but at least it's plausible counsel you have eaten into your colleague's time process because you have very little time and i'd really like to talk about the liberty interest and the reputational yes absolutely been given very short shrift here do you have an organ are you making an argument to the due process clause that your client had a protected reputational interest presents the facts of the university's own investigative report now bear in mind we are at the stage where we're just merely trying to break down the doors of discovery but as his client as he represented his client he was not allowed to take with him the the investigative report done by the university but he was allowed to read it and in his declaration he swears that as he reads this report he's be believed that their investigation exonerate these students and that he was surprised that there was any discipline because their investigation supports the student's own story now we don't have this report but if the university's own investigation gender discrimination no there was there was due process and and of course qualified immunity because anybody would know that if you're an investigator and your own investigation exonerates the person earth you're accusing of a crime criminal got a little carried away there but you know why would they pursue a disciplinary action against a man when their own investigation says that they didn't do what the woman says she was she said to do again we are at the pleading stage is we must take mr verrall rube's declaration on its face as true he was he did not receive a copy of this report as he wasn't allowed to by the university so we think that you know what little time i have that was the other highlight point i could make on all issues at once if there's a report by the university that exonerates in its skull page these students then by all means we need to open the doors of discovery on all of these constitutional issues of whether it was the due process whether there was gender discrimination and of course qualified immunity and i appreciate your time me to take these moments and if you have any questions i'm certainly available at this time i don't believe we do and since we do you know ask a lot of questions one one of you may have two minutes for about when the time comes thank you very much ana in which the court said that without fine the property interest which does not exist like about a property i just am talking about a liberty interest i fully understand if we are alderson the court did hold that one could not pursue a liberty interest without showing an underlying violation of  instances where the court has made very clear that you have to do a lot more the government would have to do a lot more than defame someone and it's not enough to just fire someone but there are admittedly outlier cases but cases where the government has taken action for example labeling somebody a communist  really vile it really defamation per se without has been deemed sufficient why isn't that sufficient here because the day and age because these folks are being accused of sexual assault they were accused of a violation of the student conduct code which is having sex penetrative sex without consent nobody the university accused him of rape no but the university called it sexual assault is it really your position that this isn't something that would have been akin to a deep stain or badge of infamy really no your honor this is obviously a very serious matter for the university every serious of all the way around so it's just a question of whether they have a protected interest to get to the question to even get to the question about whether there was  and they did have adequate process that's not about process i'm trying to figure out why your position is that they didn't have a protected interest because we believe that davis is there to be a property interest in our state of oregon and that that interest those interested need to be protected b need the right to employment and then you can also have a right to reputational harm exactly your own and you're just saying in your view there is no foundation all right there is no foundational right to the liberty interest without because there is no foundational property is they did get due process due process requires a fair opportunity to be heard to understand the allegations are being it made against you and an opportunity to present evidence they had all of those things you say there is there any case that is similar to this that you're aware of that squarely holds that cross examination is not a required element and due process here i'm unaware of a case that holds the cross examination squarely holds the cross examination is not required that's or is not an element that said there is only one case that would establish that it is and it is bound which i would argue was not necessarily correctly decided but certainly was decided on the facts of that case in which it was a word against word allegation that was dispositive in that case as the court found there is no certainly no clearly established right in the circuit or in the state of oregon to cross examination in these contexts and it happens regularly and university processes across the country and i don't quite sure why this war against war distinction matters here because as i understand the students argument they're basing it on the on the or clause of the student misconduct rules and that is or something that is on the stake of conduct so in some ways if the conduct  is not disputed so much it's like if this this and this happened which they allege that are you just saying as a matter of law that's not a mistake it will conduct or that it administrative conference had sufficient evidence in front of him to find a violation of the student conduct code without necessarily resolving the dispute between what the female students said and what these respondents in the case  because that's how you would distinguish it from some respects absolutely right because the confessions of the students themselves in the surreptitious recordings and text messages with the female student as well as what they said to the police was enough for m after the first encounter in the bathroom when the female student went in the hallway she was crying and yet he pulled people out her back into the bathroom with two of his friends to engage in some very troubling conduct and when she cried later then yes he says he does think that they stopped at that point but those facts combined with the statements from the young men themselves they understood why she was upset but they understand that they why she would feel that she was taken advantage of those at the universe position that these conflicting facts which are very troubling facts and no one is minimizing them but we're just trying to get our arms around this as a again it's it will be six zero trying to get our arms around how this can be decided as a matter of law when there's this very kind of looking evidence given the definition of that's in the university policy and sounds like now what you're arguing is that even if consent was given it was with or if it could have been understood by a mistake of a conduct that it was then withdrawn is that it yes with one here i'm saying that that is what mr weintraub found it was well within his prerogative he didn't abuse it he didn't engage in an erroneous outcome but the question you're asking should he find that it was withdrawn he found that they violated there's no specific factual finding in his decision what he did unmistakable conduct and that it sounds like your answer is we don't have i believe mr one hundred did have enough to make the decision he did at that my real argument your honor is that the district court was not there to retry that case the question before the district court on the world twelve motion was did these individuals have due process did they have an opportune understand i'll try to i have i have one one sort of follow on question i think two to both of my colleagues questions i'm trying to just pinpoint the  your your argument concerning cross examination seems to me to be twofold the first is it's not necessarily require heard and second it isn't required in the circumstances because the decision concerning discipline rest of this the plaintiff's own account of events is that is that your position yes your honor that is a position i would add to that very importantly that ultimately the due process claims that section one thousand nine hundred three claims lie only against the individual named defendants in this case the eleventh amendment precluded those claims to be brought against the university which means that qualified immunity becomes to just the dispositive issue here and so process arena when you just explain on behalf of the university what is the difference between this administrati and panel hearing absolutely they are very similar and was the choice that they made as advised by counsel to go for the administrative conference so what did they have that was in fact a process they had a right to see the record which they did mr bill rhodes declaration says no he wasn't allowed a copy out of the room but he was allowed to make notes and see it and see what was in there they were allowed the plaintiff had rights to counsel their rights to an impartial decision maker they had the rights to present a response they had a right to present supplemental material which mr belin was declaration says they did and so one of the fundamental claims is well mr weintraub didn't subpoena the taxi driver well the subpoena the taxi driver could have been subpoenaed had they chosen to go with the panel hearing approach on advice of counsel they chose not to do that so maybe you're mixing and matching what happened with the procedural aspects what's the fundamental diff i know one big difference of course is  one counsel pointed out as they felt they were in a hobson's choice in terms of the expulsion situation but what what do you get in a panel hearing what you get in a panel hearing is all of the above that i just described plus the right to call and examine witnesses the right to have the office of general counsel issue subpoenas to have those witnesses attend and the right to an appeal i'm saying that it's really one thing same anation provided and the panel hearing yes your hon year of their scholarships i don't you talk about the renewable portion of the scholarship but what about the credits they have been awarded for that quarter where this incident occurred and the scholarship awarded you know allowed them the cost of tuition the full cost of attendance which is a stipend to cover  their rent they're given food at the training table they enjoyed all of those benefits through the end of the school year i think it was never terminated correct that way that year this happened in march right the incident happened march ninth the early morning hours the administrative conference i believe happened in may that they didn't finish that school year my understanding and the record is not entirely clear on this your honor the students themselves voluntarily left the university at some point in march or april after their basketball season was over that was not the university determination we discern we didn't recoup from them their tuition we certainly would have continued to allow them to go to the training table with the exception of mr austin who was still under because he didn't present himself to a hearing on the p t s he was under a temporary suspension that did restrict some of his activities but in terms of the scholarship the food the lodging the tuition was say what about allowed to finish out the term and earn those credits they absolutely were allowed but we misunderstood what about  take those exam and exams and earn those credits it's somewhat of a moot point your honor he left town and never came back it was not our choice it was his choice where is that in the record it is not on the record your honor it was not materials not what the the issue was whether they got they sure did they pled they had a property interest and there's the sentences i think awkward because they talk about a renewable scholarship interest in the in the future years i think is not of interest to me but that but the credits that have been awarded to them for what pursuant to which they were you know studying at the time of this incident is is interesting to me and i and i think they sure did plead that yes your honor that they were allowed to continue there's their school year they certainly had an a in a in a except you could have appealed that emergency temporary suspension and i would be happy to provide a supplemental briefing on that issue your honor since the record is not clear about whether these individuals were allowed to continue where we're here on the pleadings so  process is one that lies only gets the individual defendants which means that of qualified immunity to dispose of those claims then there is no longer an argument for the district court to even hold a trial on the issue it's  obviously did not overrule it bill let's bear in mind that title nine is an intentional discrimination statute in order for them to prevail they have to allege specific facts that raise a plausible allegation that mr wein he made the decision in the ministry of conference was infected by intentional bias that is the argument that was made by the plaintiffs and it ball who said in the wake of the nine eleven terrorist attacks that when the federal government rounded up arab muslim men for detention that they were discriminated against arab muslim men as large as the argument they're making here and with the supreme court said is you can't just show us the numbers you've got to show us some specific facts from which one can  er the malicious intent by the government actors here that is something they failed to do after four bites at the apple they have a conclusion or a factual allegations to do mimic what is in the da case but they do have specific facts that show that mr weintraub the decision maker or that the facts that are found within the use of case statements by the decision maker statements by other print government officials or a pattern of decision making that shows gender bias they have shown none of that you're ours and therefore they are not entitled to a fifth bite of the apple in front of the district court thank you c brief not focusing on the renewable portion but on the quarter that these athletes were working on at the time what is the status of the record where they are allowed to finish their classes what do we know about that we don't know if they were allowed to finish their classes but we advance is what i understand and no money is alleged to have been recruited from them for a that's correct and they in terms of being a student in good standing under the contract by the time that determination was made similarly morals clause if you do something that violates the student conduct you're going to lose your term to be a medical resident but we don't have that because we have not been able to discover that and again we're at the stage of the proceedings where we need to engage in discovery to answer a lot of these broad question do we need let's step back to see what we need to answer on the pleadings the question is with got the contract which we can read and it's pretty short actually it was pride you know i know that these athletic country but he said we don't know what the medical residency contract is for strike no but the question here  is i think judge kristen has been pointing out there is the contract for that school year in which they were in and then there's of course the renewability so is there any where in your complaint that you've alleged that they were deprived of  we don't know how similar or dissimilar that condition is from the medical residency in stratton for example thank you counsel we appreciate very much the arguments of all three counsel they've been  very interesting and helpful in this challenging case and the case has submitted our final case on the smarting stock and yes informing citizens versus the f