until he was the victim of gender and racial discrimination through a rigged disciplinary process after asking a graduate student to leave his lab for performance the students or to a faculty member that she would make sure dr had a hard time getting tenure years later after his peers recommended him for tenure the student made good on her promise and made an unsupportive complaint sexual impropriety five years after the alleged  dr mengele towards funneled into a disciplinary process that was designed to result in punishment for male students and faculty and even then not provided with the limited protections that were set out by that policy d latour was never given an explanation of the charges much less access to the evidence against him while his accuser was provided with an advisor who actively worked with the investigators to revise the student's statement in light of other accounts the investigators also ignored testimony provided by other students that the accuser had a history of making false accusations and racially and sexually charged statement when much of that testimony came from ma students of indian descent or no ruined dr mengele tours career by branding him as a sexual abuser through a system tainted by racial and gender discrimination the district cour dismissal here with eliminating all of title mine's protection against gender discrimination from an entire class of persons employed by educational institution never mind the supreme court's approval of a private title nine claimed prop i an employee of the school and the decisions of at least four other circuit court and according nor the clear deviations from the political policy that gave rise to an inference of gender and racial discrimination in the disciplinary process the district court also ignored the overwhelming force of the department of education action to undermine basic procedural protections for those accused of sexual misconduct on college campuses finally the court wrongly concluded that the department of education cannot bear any responsibility for the unlawful campaign to remove basic protection for accused students in fact these errors were reversal so that this case can move forward to discovery and your honors i welcome any questions from the bench thank you mr markham or i'm going to ask my colleagues momentarily that put some questions to but i have a simple actual question can you summarize what the procedural irregularities are in the process that quanell afforded to your client we're out of there were a number of and one of the most glaring procedural irregularities was the was the fact that the investigators ignored the clickable limitations period the policy said very clearly that it was a political for act that had occurred and here and here there was an investigation into something that had allegedly happened five years earlier in addition the policy made it very clear that dr mengele tor was entitled to notice of the specific accusations against him he was entitled to see the evidence presented against him and he was also in titled to present testimony and evidence in its favor and he repeatedly post questions and evidence for the investigators to consider and they ignored it in addition the policy said that no party whether the accuser or excused is guaranteed any sort of accurate and to be spent to cornell has argued now that there was a separate policy other than policy six dollars that is a factual dispute and again here this is simply on a motion to dismiss  but the record shows a number of instances where cornell invoked policy six point four not the separate faculty separate lation ships policy and just sort of  note that the several relationships policy that cornell is invoking now it's not a procedure it's simply a policy that document is just a couple of pages long the pa the procedure th allegations of sexual impropriety against faculty just the same as it does students and in fact the investigators invoke policy six point four if they did so in email they did so in the final report th court today and that's the right the private right of action for title line and the district court did not reach the merits it didn't have anything to say about whether or not  claim was adequately pled and so the district court said that a faculty member as opposed to a student is not allowed to sue under title lines no matter what and and that is simply inconsistent with statute and inconsistent with with the law and as we note in our brief the most important case on that is come from the supreme court itself the jackson case where the supreme court recognized that there is a title nine private right of action for a coach at an educational institution for retaliation and certainly the supreme court would not say that if there was not more generally a right a private right of action for faculty under title mine and all of the the courts that have considered that case that have considered this issue after jackson have concluded that it is clear from that decision that there is a right of action for faculty so how does how does judge charles deal with this issue that you're raising now with judge sharp rule the other way and he said that there was no private right of action because there's a title seven general remedy for employment discrimination or broadly and judge starr concluded that because there was another remedy available  he could not imply a cause of action and that reasoning was rejected by the supreme court when it established the private right of action again and in the st place the supreme court said just because there's other remedies doesn't need that there's not a remedy under title nine and it makes a lot of sense when you look versus title seven title seven applies more broadly to all employment situation whereas i don't mind of course applie possible and our circuit has never has never in your view point judge charged you recognize the existence of a private right of action from texas from a nation on the title mine for employees is that is that the case so this court in the summa decision recognized the issue in a footnote and and ultimately did not issue a binding holding in that case but to our knowledge and to the district court's knowledge there's never been a published decision in this court but it's something i think in some ways that's because it's been so obvious and there certainly have been other cases where faculty have raised or employees of educational institutions have raised title nine claims that haven't been  just i believe that this is the st time the does has presented itself squarely for this court's review and and certainly given this uncertainty at least in the district courts within the nd circuit it  sort of begs out for a decision now and we and the other circuits have acted on this question is that right yes your honor and the only the only circuit that has ruled the other way t circuit and as we note in our brief that was before the jackson case was issued that was before the supreme court recognized the title line action for for a coach and as the rd circuit noted in the doe case in two thousand and seventeen after the supreme court issued the jackson decision there's really no basis whatsoever to make a special carve out in title line just for employees of an educational institution claim under title nine the district court dismissed the title six national origin discrimination complaint for failure to state a claim and that was error particularly with discrimination from procedural irregularities and certainly we have those here that indicated earlier what we we have more here and specifically with regard to national origin discrimination  it is extremely know that several students came forward to defend dr bangle or and to say specifically that the student who made the accusation had said racially derogatory things or racially insensitive things to them and had been sexually suggestive statements to them despite repeated efforts requests to stop and not only did the investigators disregard those statements entirely and take no action against the students who made the accusation the st place but they disregarded those students accounts entirely they just because it didn't fit with the narrative by the accuser and i think there is a strong inference of national origin discrimination when you have students of indian descent coming forward saying this student made derogatory comments towards me because of my indian descent and their statements are disregarded racial bias is a substantial or motivating factor is that right it is your honor and this is a totality of the circumstances kind of an issue because not only do we have the procedur irregularities which give rise to both kinds of discrimination but we have the investigators are ignoring these comments and also as we point out in the parallel tenure proceedings  another member of the faculty wrote in her evaluation that she believed the doctor bangle it or behaved a certain way because of his national origin and that information was that review was sent to dean ritter and dean rader made both the tenure determination in the investigatory determination here and having considered all this evidence had been considered those statements the matter said nothing she she didn't push back at all she didn't correct those statements and instead she found that the investigators are right to ignore the evidence and sustain the allegation and i think collectively that does raise an inference of national origin happened is the defendant filed an answer and a motion to the motion for judgment on the pleadings simultaneously and we additional part of our argument was that this was premature this case should go to discovery  and not be decided at this stage and judge hart openly dismissed the case without allowing any discovery all right i'll come back later and question of  the factual matter cornell has asserted that there is some sort of other policy on on sexual and romantic relationships that has that it applied here instead of policy six point relationships because in the early part of the investigation that was the original allegation and ultimately because that was time barred cornell decided that it was a consensual relationship but again even regardless of which policy is is implicated policy six dollars is the process and as the procedural policy it says any allegations of sexual misconduct or sexual harassment should go through this policy and as we also point out if somehow the allegation doesn't fit under policy six point four knows very clear the grievances against faculty is to go through a different policy a policy through the the school bylaws and that requires a hearing in front of the faculty which certainly never occurred so it is not accurate for cornell to say now actually we went on a different policy it was outside of policy six point four and got everything i prompted by the department of education that right yes your honor and and that's the policy that was invoked ultimately by the investigators in there to in their findings against dr  banks thank you thank you your honors this is michael banks for cornell university mr krugman berg opened with his st three minutes of argument contending that the investigation which was was conducted under the romantic and sexual relationship policy was unfair or insufficient as this court is aware that issue has been resolved conclusively in the state court  proceedings professor of english or confirms in his brief that he's not challenging that in iowa ten year instead he's challenging the finding that he had a romantic relationship with the student for which he was suspended for two weeks that is the sole adverse employment action that is at issue here as this court knows and i know from the questions just asked there is a lengthy investigative report a sixty five pa report that was prepared and given to professor vinglish tour and his lawyer for review in draft form that report was perfect prepared after dozens of interviews and extensive reviews of records including e mails computer records medical records the independent investigators found that professor vangel it or had a consensual relationship with the student the dean accepted that finding and the suspension was imposed in state court professor vangel it or challenge the fairness of the investigation as well as the finding he said the investigation was arbitrary and the state court disagreed it refused to expunge from his record the findings that he had violated the policy at that is exactly what counsel is arguing to this court that there was some three minutes ok thank you he adds new allegations that not only was it arbitrary and capricious but it was based on gender and race but the fact of the matter is he is challenging  cites that the issue isn't just the allegations you make in the state court proceeding where the theories you rely on the claim preclusion applies and this is a quote from the paramount pictures case to not only every matter which was offered and received but any other admissible matter which might have been offered for that purpose and that your honor is why the claim in this case falls apart he could have argued the professor could have argued in a state court that the proceedings against him were not only unfair and arbitrary but motivated by bias for whatever reason he did not make that factual assertion and steady made more of i guess what we call a procedural due process argument but his decision not to present certain arguments or facts in support of his claim in state court does not change the reality that he now comes into federal court and asks to do the exact same thing he did in state court or he tried to do in state court which is to overturn the finding decision it was not arbitrary no your honor actually that's well the written opinion discusses the ten year decision but twice before both  justice rich and justice maurice there were challenges to the disciplinary suspension by way of a request for expungement of the findings from the record the finding that he had violated the romantic relationship policy and had a full and fair opportunity with representation of counsel to challenge that in the st round and had failed to do so for whatever reason professor vangel a juror did not appeal in the state court just as he did not pursue a grievance procedure at the university level he was advised when the report was issued an accepted by dean ritter that because this was a suspension of less than a semester there was a procedure in place he could have actually invoked a grievance procedure that is very very detailed and has many due process type aspects attached to it including an opportunity for a grievance hearing he elected not to do that we find ourselves today with two rounds of state court proceedings proceedings before the new york state human rights division and now district court proceedings and up in the nd circuit asking to go back to make the same challenge to challenge the same adverse employment action that he unsuccessfully challenged in the state court so i hope judge can promise that addresses your question i don't know if they think or they could climb to address the misconduct fine well i'm not sure what you mean by the misconduct finding it did refused to expunge the finding that he violated the romantic relationships policy that was stated explicitly by judge maurice that they would not that the judge would not revisit that he did not  opinion just as went to a dreary hears a case and enters a jury verdict they don't write an opinion but that decision and the judgment that is entered their on is conclusive regardless of whether there is an explanation yes cornell for some purposes certainly receives public funding and several of its colleges are deemed statutory colleges that have different  attributes associated with them st of all this was the arts and science college which was not one of the statutory colleges or state colleges as they're sometimes called but looking at this under state law and the question of has the state somehow imbued public status on them we cited in our brief the new york court of appeals case the small vs new york state college of veterinary medicine case which pointed out that certain decisions made by universities are not public in nature and don't trigger public regulation or statute such as nine hundred and eighty three and among those decisions and this is a quote from the style case are creating the academic curriculum hiring faculty maintaining discipline then that it goes on this is maintaining discipline this is exactly what the new york court of appeals referenced as a non public function of the university and within its private domain as an academic institution and employer cornell is new york's only lan university was originally established charter and i believe the th sixty's or so i should know the year on the cornell graduate but i don't know the precise year but it doesn't deal with the question of whether it's private colleges are deemed public for purposes of discipline that's a imposed on faculty members or other employees i have been able to rejoin thank you thank you i have had nobody i don't know if i have time perhaps to address one more point i would be less than two minutes  but i didn't know it with judging pierces on availability whether i might have that opportunity go ahead just one point in response to my opponent's argument about title mine that i wanted to make very briefly he says it is so clear and suggests that there are decisions going the other way i would point out that there are four district court opinions in the circuit within the last five years now that all sound title nine does not support a private cause of action for employment discrimination but notably while he cites the summa decision from two thousand and thirteen the judge pooler authored that declined to find a cause of action or declined to determine whether there was a private cause of action did not answer the question of i beg your pardon i think that's correct ye point but but that was also the case just two weeks ago two weeks ago in the gagliardi decision from the circuit the court again declined notwithstanding this suppose it clear precedent that my opponent points to to answer this question and instead chose to affirm a summary judgment entered below on alternative grounds without weighing into this difficult legal question on which the courts have now split we submit that the implied cause of action that many of the older cases recognized as a basis for extending title mimes to a private employment discrimination claim would no longer fly in this circuit or before the u s supreme court but notably just again two weeks ago in gagliardi the court declined to go there i submit that this court should be in the same place the state court proceeding so clearly disposed of the sole adverse employment action that is being challenged by professor vangel tore this is not a case in which the court needs to find an implied cause of action and create a new theory of relief that the nd circuit has not recognized its kind of unusual that are circuit has  addressed when as you indicate quite a few district courts expressed a view on the matter it may not be if i may your honor the other courts that the other circuits that have ruled on are are mostly decisions that are twenty to thirty years old the doe case which the rd circuit rule on in two thousand and seventeen is based on finding an implied cause of action the rd circuit says that it says there's nothing in the statute that permits this we're going to find an implied cause of action and as we note in our brief both the us supreme court and in recent years the nd circuit have a very clearly moved away from implied cause of action and said we should not strain statutes to find new theories now the canon case extends that to educational programs the jackson case that my opponent cited extends that to a coach who was complaining about the treatment of a girls basketball team out at a high school level but circuit started moving away from implied causes of action and declining to find causes of action that congress did not expressly create ectfully everything that my every said during his oral argument today confirmed all of the reasons why that decision was correct statements or failing to interview witnesses and consider evidence none of that conduct which he wants to today as the core conduct which caused his injury not allowing accused to have a hearing in which to cross examine witnesses but the fact of the matter is that the invest the investigation against him will provide a leading this relationship's policy well let me take a step back a policies to address that guidance from the department and only ringback changed its policies as to student again student harassment and there is apathy even testimony by is in which she says the claims against faculty members first sexual harassment claims against faculty members and other relation of order president biden has directed the department to take a look at those regulations and d and then the department of education just last week issued another dear colleague letter describing how it is going process we don't know and cannot know whether they've got whether any final rule making that comes out of that process will be substantially similar to the prior challenge documents or not but it will certainly revised to their title nine policies in relation to the guidance however the guidance and the changes in policies related to student which was worth counsel just conceded during his oral argument because her any claim that she had based on the the initial nonconsensual act was time barred and the only process that happened here was under this relationship's policy which was which is not high on the line and of and was assessing a consensual relationship and whether or not that was inappropriate for him as a faculty member to be having a consensual relationship with a graduate student that he supervised so respectfully no the title nine policies did not come into play in that evaluation entitles the accused to hearings and cross examination and dr ben went to war with the title to all of the same process  the court which you seem to be doing to prohibit the department from issuing similar similar regulations that he's asking the court to do step in and the record that they're currently developing and then evaluate whether or not that's subject to a valid challenge and any event well it's argument kind of circles back again for the redress ability argument not repressed the injury that he claims the reputational harm of cornell's both finding and disciplining him for and then publishing to other prospective employers the fact that he was found to have an inappropriate relationship has never backed off of the position that was articulated in that brief but has not authorized me to say the position with respect to this particular claim and whether dr pangloss were can make the d has a private right of action for the claims that he seeks to make in this case yes your honor thank you and and i just want to st focused on the department of education arguments understanding and i just want to emphasize how fact down these arguments are that the  department is sort of echoing cornell's factual assertion about what policy applied or what policy was actually used and certainly at this stage we have alleged that policy six four was use and applied and we have pointed to a number of facts to support that and it is not up to the court at this point to decide that that's simply incorrect and i also just want to point out to the department argument that the dear colleague letter had no effect for dr bangle it or again that's factually incorrect or alleged fact otherwise as we noted in the brief policy six point four says specifically that applies to faculty and policy six four was amended in two thousand and twelve in direct response to the dear colleague letter in fact cornell said after a time this was in response to the dear colleague letter because the former code of conduct did not fulfill the requirements of title nine and so it is certainly at the pleading stage very clear that the dear colleague letter had some effect on the disciplinary process sure a and certainly part of the claim is that cornell departed from policy six dollars but policy six dollars was also deeply unfair and deeply flawed and that's i think the essence of our argument against the department of education and that came about because of the dear colleague letter and while it's true that the those letters have been rescinded now they were in effect that the time at the time dr mengele tore went through this process he suffered that process because of the letter and particularly since the government is not even willing now to disavow that policy or disavow the possibility of reissuing those same letters this is a live controversy and finally just to just to briefly touch on the issue of redress ability as other courts are recognized as declaratory judgment here does have  effect it does have an effect to say that the policy that dr vinglish or with the the process he went through was the product of unlawful government action and that does go somewhere towards clearing his name at least enough for standing and finally i just briefly want to touch on the issue on the idea issue preclusion i'll note that judge sharp never even passed on this issue but the reason he didn't is because it's very clearly in a political here none of the new york state courts decided the issues that are actually presented today some of those some related issues were presented to the new york courts none of the new york judges ever ruled on them and so issue i have no further questions thank you great decision and twenty das christine fourteen