good morning arson me please the court counsel this case is about how much harassment a public school is allowed to tolerate against a child who has been sexually assaulted and i'm not going to be labor the point about the standards here  course the court knows them but the struck cases clear that would stand a motion to dismiss as here a complaint must contain enough allegations of fact to state a claim that's possible on its face at the very least at this stage in proceedings the complaint is plausible on its face additionally and importantly under the baker case a court must drop all reasonable inferences from factual allegations in the light most favorable to the plaintiff the district court clearly failed to do that in this case in fact it did just the opposite and drew many inferences against the plaintive and in favor of the defendant what's really important here is the evidence of the repeated harassment that took place against this child at the school after she was sexually assaulted and i won't be discussing all of the facts in the next fifteen minutes that's simply impossible but it is important to highlight the most part and ones insofar as it is necessary to establish a pattern of deliberate in highlighting highlight those errors with acts that pertain to the original sexual assault rather they had pertaining to a reporting of the assault that is res content or subject of which appears to relate to the original sexual act of course your honor so after this child with the salted off school campus  she at st was told by a school dean that if she tried to discuss the situation with two with the perpetrator she would be disciplined for harassing him so the focus of that point was on what was going to happen to her rather than to him and bear in mind your honor that the school has extensive powers under colorado state law to not only investigate but actually discipline any conduct not only by the perpetrator himself but also by all friends and acquaintances of the perpetrator who are somehow aware of the fault in now when we talk about the harassment that she experienced she was told that quote consent is a myth but one of the friends of the perpetrator and this was somehow based on what actually had transpired she was called quote unquote a dirty slut another student had asked her if she wanted to sexually experiment she was touched without her consent repeated she was told that a few other friends of the student who had perpetrated  the salt had actually had a discussion and said that she would be the one to quote unquote lose her virginity st and then also there was tolerance by the school that the subsequent harassment flowed from the report of the sexual solved and and i think the one case that both parties seem to focus on is our siemens case that persuasive that this harassment was not on the basis of socks at least based on tense or case law that you responded that your honor this was a very puzzling finding actually by the district court and it was a conclus finding it was one or two sentences in a seventeen page ruling that simply said well the court concludes that this rassmann was based on the report of the youth rather than or the report of the fault rather than the fault but the district court in conduct any kind of analysis determining or leading up to what led it to make that determination that certainly was never an allegation of the plea deal with something that the court found on its own and it's still a mystery as to why the court made that determination on its own with respect to seem to there are some important factual distinctions between siemens and the matter at bar st the court was not permitted to draw the reasonable inference that the plain it was treated differently because he was a male because the plaintiff pleaded similar hazing incidents occurred in the female athletic program as well we didn't have that same level of gender discrimination and the facts and seems consistently drew connections between the earthman and the report of the salt since the football team face disciplinary sanctions as a result of the plaintiff's report now that was in the pleadings itself we never drew or in this case the plaintiffs never actually drew any kind of a connection between the report of the salt and be disciplinary sanctions or lack thereof additionally there were actually disciplinary sanctions toward the for the football team in siemens there were no disciplinary sanctions in this particular case rather there were simply conversations with the perpetrator of the abuse and the friends of the perpetrator of the well and in the us didn't the school separate the the two students perpetrator in the victim when they separated from class and some things of that nature so the only thing that the school did well let me address a few things about that number one the only thing the school did is ensure that they were not that the perpetrator of the assault and the child were not in the same classroom or number we're not talking about a huge college campus here we're talking about a high school roughly two thousand maybe two thousand two hundred students in that high school they could still see each other well  you know we're talking about high school discipline we sit here or you know we're we generally don't nd guess you know disciplinary actions except in extraordinary circumstances and your argument is that these are extraordinary circumstances that you know the east high should have done something different right or or more and the fact that they didn't is evidence of deliberate indifference right yes your honor i mean it's you know why isn't what mind that they only separated the perpetrator of the assault from the stooped but they did not separate the five other students that were highlighted in the complaint who were also engaged in harassment so they were still in class warfare or in fact at one point she had received some kind of or she was aware of some kind of drawing that had been made from one of these five students that other students had seen to decide she should kill herself or the other students ever talked to discipline they were taught to your honor but they were not disciplined this leads to the question of whether talking to a student is discipline now st of all we don't know how much they actually even talk to them but then i think this is where a case like the vance case is actually quite instructive because the vance case made it clear that minimalist response is not within the contemplation of a reasonable response more important where a school district ha that its remedial action is inadequate and in effect it is required to take reasonable action in light of the circumstances to eliminate the behavior that does not mean it's supposed to actually eliminate the behavior but it is false to take reasonable steps to actually eliminate th that is alleged in the complaint yes your honor what we say here is basically that we have the same pattern that repeats of over and over again she alleges harassment they claim that they will do something she alleges more harassment they claim something will be done she alleges more harassment they may talk to some mystery about this because the schools have a have a tough job in this circumstance because they're also required to give these perpetrators of these associates an education also so i'm curious if there's anything about timing that she complained about harassment by student c and there was plenty of time for the well in the middle of a school year can you move someone out of the class what what are the limits here and how detailed is that explained in the complaint i'm most concerned about the deliberate indifference element sure so under state law actually the school has extensive powers to remove students under suspension for up to twenty five dollars days during the school year now there is no evidence that any student here either the perpetrator or the other students were removed for even conduct is quite low and i will read from the statute here it's really quite general behavior on or off school property that is detrimental to the welfare or safety of other pupils or of school personnel including behavior that creates a threat of physical harm to the child or to other children this child actually had alleged that she was fearful of physical harm and a suspension can take place instantaneously the only thing you don't have to get through hearing everything or you're going to get that not suspension your honor effect there is not a right to a formal hearing under for suspension under state law the only time that a formal hearing would actually be required is for an expulsion but a suspension and again you can go up to twenty five dollars days either consecutively or different spots throughout the year you can actually suspended student here's the thing though your honor again we're not even suggesting when the school has to suspend someone every single time or they had to spell thumb but what we do have to acknowledge is that there was no actual discipline that took place all they really did is talk to the students which provided no disincentive for them to continue to engage in this kind of behavior the school also alleges that they provide a counseling to the victim well that's all well and good your honor but that does nothing actually to protect her all that is supposed to do is condition her to somehow emotionally deal with the impacts of the harassment that she is having to end who is actually in charge of discipline at the school and who simply is the victim here i don't think that the school nurse or the child here is necessarily in a position to understand all of the disciplinary tactics and techniques of the school you know i'm just we're dealing with the most of it is is the allegations and i just wanted to see what she alleged the school board failed to do i think what the school board failed to do your honor or with the school fail to do is take who reasonable steps to actually stop the harassment with those reasonable steps well i think the reasonable steps would be something that actually involves what you think what it led is reasonable steps no your honor  she did not but at this point actually when we talk about being deferential to the school by all means we should be deferential to schools and discipline but a failure to acts or size discipline at all is something that is deeply problematic she does allege that yes correct and nobody is saying here that the school should have used immediately taken all six of these students and expelled them from school they what we are saying is that they should have taken reasonable steps and if you know that talking to the students repeatedly does nothing and these are the same group of students mind your honor then at that point you've got to escalate the discipline somehow or we are state our standards going to be  harassment that she was experiencing over a fifty experiencing over a fifteen month period now if every time she goes in there they tell her the same thing which is just that they were going to talk to the students and then she comes back against that look at happened again that he will talk to them it happened again we'll talk to them at some point the only thing that we're saying is that the school has got to do something more than just talk nobody's asking the court to step in and say this is what you have to do in these disciplinary situations what we are asking the court to do is say well you have these rules on the books you are authorized to use them in light of the circumstances you shut them could you clarify no your time's expired could you clarify the status of the individuals is the only claim that's left in the case  it please the court my name is holly ortiz i'm here on behalf of the appellate school district number one in the city and county of denver this appeal is before the court today in its final mind case which was dismissed pursuant to the rule twelve b six motion filed by the district in this case there are generally three issues on appeal deliberate indifference which we've already been discussing as well as the district that the district court correctly determined that mistake was not did not plead facts demonstrating that she was subject to severe pervasive and objectively offensive harassment that denied her access to educational opportunities and rd bid misto failed to plead fact sufficient to show that she was subject to harassment base sex and i want to start with deliberate and different since that's where we left off just a few minutes ago the standard for deliberate indifference is indeed clearly reasonable in order to state a claim for deliberate indifference a pla must show that the response to her complaints was clearly a reasonable this court held that in the ross decision it's also in the davis decision and i believe it is quoted in the s surgeon in ross this court said that the standard is that the responses must be clearly and reasonable simple or even heightened negligence will not suffice in davis that davis specifically said not it is not a mere reasonable with standards kids engage in inappropriate speech name calling harassment is not actionable it has to be clearly unreasonable in light of the known circumstance of what we did we know eighteen months or so of these statements why or why doesn't that plausibly clearly unreasonable response to sex based harassment well i think this is where the timeline issue does become important one of the reasons it becomes important  dean takes her to a school psychologist the psychologist interviews her they contact her parents they inform her parents they inform her parents that they can file a police report if they choose to they declined stating we don't want to ruin the boy's life let me just focus of a bit we're dealing with just the allegations in the complaint correct and i was struck if we don't know what happened i don't know what the school did or not but we're never going to get  on the victim telling the victim how she could cope with these problems and the allegation is it was very little against the alleged wrongdoers and particularly against the wrong there d was a continuing over two years as a collision isn't there a duty to ratchet up your response when history shows that your prior export responses are not effective but in this you are correct but in this case that it's that again the timeline is important she complains on the th the district takes action to her talking to her talking to her and they instituted a newco a no contact order so when they talked to both students she was talking about it a nd time the perpetrator right in these other people now there hadn't been any there had been allegations about them yet so i saw what allegations in the complaint were about what about activities the school district or the school imposed on these five alleged talkers so the allegations are she complains they counsel her they institute a no contact order she complains about generalized student fall out of student friendships so they provide counseling in how to handle the her to her because she's complaining about the fall out of school is right they have things we could talk about but i they take these actions for about two weeks after her initial complaint she come she makes complaints about general icefall out they take the actions they did which did include talking to the perpetrator he's the only one alleged at this point other than the fall out of friendships complaint a lives that they did anything other than that now but that's ok so that's when she does it the complaint the only thing that she's alleged the school board did was to issue a no contact rule with  st year she was talking to the counselor about fall out of friendships which she does tied directly to her reporting you agreed that if she was telling the counselors that she was continuing to face these problems and was was anxious and having psychological problems that was the same as notifying the school of rock no i do not agree with that i think that what she told those counselors is not legally telling the school telling a concern i think there's case law that says that a counselor is not experiencing peer backlash and the fallout of relationships due to her report of student want she did and she made one comment and that was that somebody told her they took the vote and she would lose her virginity st at that point you people the specific you know she did not she said the boys at that point they talked to student one's friends because she said student one's friends there were no further complaints of that harassment until the next school year months later she complains in so on september st again here backlash and the fallout of friendship she doesn't complain of sexual harassment at that point they counsel her on how to handle peer backlash and threats she doesn't complain again until november th and at that point we have more complaints about peer backlash and the fallout of friends and again she ties it directly to her report she does not tie it to her gender that that is why you see it doesn't it you're talking about in the complaint you're not talking about school records or anything like that i'm talking about the allegations in the complaint the allegations in the complaint for example she alleges that she was experiencing peer conflict this was a clear and she says this was a clear indication e h s received that doe was experiencing retaliation at school based on her rape report she complained to fall out of friendships and said she regretted talking to the school she makes the claim that this district retaliated against her she says everyone got mad at me for reporting student  will serve she does a score some of that but i'm looking at paragraph fifty one i was bullied as a result of the rape not the report of the rape but the rate per gram fifty seven i got rape jokes p dollars i was called a dirty slut paragraph fifty nine dollars i was asked if i wanted to sexually experiment paragraph forty three you will lose your virginity st and in progress twenty seven and seventy three all relate to the rape and not to the report now there were were certainly matters relating to the report too but each of these events refer to tauntings pertaining to the original sexual effect  distinguishes this case from simmons which dealt only with the reporting and not at all with the original offense so those instances you're talking about the school so the school talks to the kid who allegations of general bullying and harassment based on the fallout of her friendships that kind of thing the specific allegations that you're addressing the the rape jokes the pushing the girl down in calling her dirty slut that occurred after two daniel wary and after she reported student three different report on a different student student three reported him for blackmailing her in th teen that's when those comments occurred at that point it was not an reasonable given it was not clearly and reasonable given that the st time the district talked to the perpetrators the harassment of a sexual nature stop for a year it was not clearly had reasonable for the district to talk to the student again in addition to that the district did a safety plan for jane doe they conducted two suicide risk assessments when people them that there was concerns about her neither one came back for a suicide risk even at one point offered her a transfer to another school if that's what she wanted to do she didn't want to do that they took a myriad of options they investigated her complaints they kept her parents inform and they did talk to the point and it was not clear and we had reasonable for them to do so when it worked the st time and did it work the nd time based on the timeline i would say yes it did their w perv compromising pictures that were mentioned your brief implies that those were pictures nude pictures of her but i thought the record or the the allegations in the complaint we're dealing with did not suggest that these were pictures of her at all so i'm wondering if that was the miss if that was not the correct insinuation in your brief that these were knew that was not an accurate representation of what is in the pleading but i thought she's done it's about that too i thought the pleading referred to the report which was attached to the complaint so three and then it makes an allegation that the police talked to her and told her she couldn't do that the reasonable inference is that it's something she sent to student three but in my grown that there was a motion to dismiss on the pleadings because it was the document referred to in the complaint we did argue that that became a very that was a difficult thing to include because it also included the pictures which we are not going to submit to complaints being retaliation as opposed to addressing what was in the safe to teleport so as best we can tell the report was not relied on by the district court in its title mind correct decision coun