thank you your honor and brady henderson and i represent plaintiff michelle jokey and her minor daughter and i have asked for two minutes for rebuttal if it please the court we are here today because of a young woman who had to choose between going to school and being safe from sexual harassment and bullying as an th grader at one of defendant schools played of joke his daughter received not just reading writing and arithmetic but also the message that she was army a skinny bitch that she was not hot enough to be sexy and ultimately that as a result she should be given a noose and hang herself because this abuse was linked to discriminatory policy in practice and that with deliberate indifference from defense staff plaintiff filed the present title nine action under appeal today in dismissing that action we contend that the district court made two key errors one substituting a narrower set of allegations then those actually claimed in the plaintiff's complaint and nd disregarding clear evidence and admission of deliberate indifference now the st of these points refers to the part of plaintiff's case that deals with general practice and procedure at the school  other institutions that grace runs and we made a variety of allegations concerning elements of policy from dress code and how it's in force but particularly to discipline and tolerance behavior for males that is at times sexually objectifying that equates to verbal abuse for instance of students and teachers and this has been on that claim what specific program or benefit from the school are you claiming that student a r i r has been referred to as both didn't have the benefit because of these alleged discriminatory policies you allege the policies are discriminatory but i didn't see anything in the record linking that to a deprivation to student a and judge we can view that in in two ways and i think your complaint use it in two ways one specific thing we do speak about in the complaint is plaintiff's daughter withdrawing from extracurricular activities so it's not necessarily what i think is the most significant but i think it st here simply because it's very specific she was a volleyball player she was in a position to do extracurricular things and withdrew from that because of this abuse however in reality the bigger issue i think is the deprivation of really the right to feel safe and well in the educational environment on equal terms with male students it's not that she could not go to school but she could not learn the same way and have the same opportunities to not have school have to result in mental anguish and distress simply from being there and from being sexually objectified as part of it from being exposed to a culture where she was not valued in the same ways or viewed in the same way as male students and more importantly that the administration was tacitly essentially agreeing with and supporting messages that these students were doing of which one that we call student b or b k was perhaps most significant does that answer your question or it thus you the district judge mr henderson found that your allegations were essentially as i read it too vague to to get a handle on and i have two questions one as near as i can tell you've made no effort in the district court for on appeal to try to amend the complaint to provide additional specifics and i guess my nd question is so i guess a tangent from that you asked in your prayer for relief or a permanent injunction to try to imagine what such is that even though the district court in urdu says this parts of the ruling of its ruling by saying we think this is too vague what the court actually because if we read online is to substitute a narrow interpretation and that for instance saying only that will address this must just in referring to dress code only be about i think the course words or a certain degree of modesty you don't know what that is now the reason that we're not able to go back and say well here is exactly what is in these codes here is exactly what's in force is that we're talking about a combination of what is in writing and what is in practice and there are elements and effects of that that plane of starter can be aware of but there are parts of it that we can't prior to discovery so for instance to use an example one of the things that  complain about in the response to the sexually from each pay is deliberately refusing to employ the school's policy and social media and falsely stating that that policy would not cover it so if all we knew was there was a policy about something and we assumed that that's what the school would do we would never have that claim in another situation it's why that's particularly problematic here where many of the cases that are cited a legitimate leak by the defense or pelion really relied upon court by the court are much more about summary judgment standard for that reason we have not had the opportunity to discovery we don't know exactly what is going on behind the scenes as to where the problem has more to do with what's in writing and where the problem has more to do with how staff are trained and what intentions they have which i think gets to that the nd question you asked about what would the elements of an injunction be part of the problem is it's difficult to know exactly what has to happen to solve the problem when we are not  to do discovery have an answer to the complaint and figure it out you know where we are now is simply a question of just a should billet not exactly which remedy is appropriate or whether a particular claim has proven and really to so i think of summarize our whole issue in this appeal it's very much that it's that the district court here is affectively applying a standard that is much more appropriate for summary judgment or even a trial verdict in terms of looking into specifics  shouldn't to the point of saying instead of relying on what's in plaintiff's complaint i'm trying to figure out exactly what is or isn't proven within these allegations indifference we know that there was deceit we know that there was deliberate avoidance which is really by definition the crux of deliberate indifference and yet here the district court of fact that we disregards that as a matter of law and  so on a twelve b six hour yesterday where the liver of related here another judge one place and i don't think it's only one place that is my time is limited one place i would point to is the deliberate avoidance regulating the social media element here much of the sexual harassment and bullying here is not just going on in the classroom it's going on using student social media that is circulated amongst classmates of the students involved and here the school has a policy that allows it to regulate that and it simply refusing to employ it here and in fact was telling a plaintiff that they simply had no policy that has continued even in pleadings if you don't know what in the record of the motion to harassment component of the complaint forms an example of the cultural tolerance as well exactly the policies and practices we're talking about here it's one specific example in the state in this case tolerating behavior from this and other male students that should not be tolerated for many students frankly that certainly would not be from the male students and her or her r rated student body was suspended right and there's no evidence of any further harassment by student b or no allegation of further harassment by student b after that suspension your honor that we believe student be there are some other things later in that it's unclear in the record exactly how much student he was involved in and that's a function somewhat again that we have this a lot of times going through social media where it's a little bit unclear what's directed to whom from whom and times and so i wouldn't necessarily agree with that statement that there is nothing resign i think that's potentially still matter to be determined by where i'm looking i'm looking at your point so ok maybe it doesn't foreclose the possibility but i don't see anything and ordinarily know both employment and educational settings if there are complaints about harassment brought to ministre toure's or managers disciplinary action is taken and there's no repeat that's sort of the are about that but you know here we're talking about a variety of things and one of them is you know this specific thing that said specific time but we're also talking about exposure to widespread tolerance in the student's behavior such as pardon the phrase but it's the common phrase that the wide circulation of a stick of a you know explicit fact child pornographic image that is part of what the student a in this case my my client's daughter has to experience on a daily basis and understand is tolerated in the environment where she is supposed to be able to have an expectation of safety and welfare equal to that male students   so referred to notre dame the peer which is one of the schools that's within the gray system we're here today to of course respectfully request that the court appalled the district court's dismissal of of the plaintiff's complaint vi of motion to dismiss and you know i want to start off by saying of course any instance of student on student bullying or harassment is is incredibly unfortunate and an inexcusable from the student's perspective however we have very clear roadmaps through the supreme court's decision in davis all the way down to many recent decisions of this court as to what the school's obligations are  with regard to responding to certain circumstances bullinger harassment and and the plaintiff's own complaint here goes into sufficient detail where as a matter of law the court can find that that days there were other actions taken and as judge hamilton pointed out there is no allegation in the complaint that after just two ation was addressed if there was any further  behavior by student b toward student aid the manner in which grace and notre dame to appear handled it took care of the issue as for the generalized allegations of discriminatory culture or however the the appellant wants to define that i was very intrigued by some of your questions about that there aren't any factual allegations of how that impacted the plaint the appellant's daughter directly and there are no allegations in the complaint about the impact that these allegedly just criminal tory policies and practices which just for the sake of the record of course grayson ordered him to  columbia college chicago is really instructive i want to point to just a brief excerpt page eight hundred and fifty five about a plaintiff cannot rely on these generalized allegations alone but must combine them with facts particular to his case to survive a motion to dismiss we don't have those particular facts here we have a general aligator three general allegations of summarize briefly in the best i can summarize a boys being treated better than girls and we have no facts alleged how that actually impacted appellants daughter in any way she left me what what do you do with mr henderson's reply to my earlier question where really we have one count here aspect of the complaint as well i disagree with that position your honor and i think that's an excellent question that's a logical leap in reviewing a complaint that that isn't sustainable under the title nine precedent of course there is a detailed allegations of these two students having having issues with each other and if the pleading standard was such that you could allege a a student on student harassment situation and then allege some generalized allegations that there was in an omnibus discriminatory culture at a school then any student on student harassment allegation could also bootstrap in a generalized discrimination be heading down that road now with respect to title nine cases of really demanding more than rule eight requires and i wonder if we're setting ourselves up for another fall what your what your view about well i think your concern your honor is is a good one but when you look at this specific complaint and when you look at the president particularly the dover says columbia college president right there's been no over ruling of the generalized position that conclusory allegations in and of themselves don't allow a complaint to survive a motion to dismiss and when you look at the three subcarrier graphs in this lengthy complaint that set forth the apparent basis for the generalized discrimination these are all conclusory a geisha is they're not allegations of fact let me see if you can help me with one follow up question and this goes to the harassment part of the complaint evie th amendment we have some precedent says long as there's action by the prison medical department it's sufficient they did something whether it was affective will the appropriate thing sometimes gets lost in the shuffle with respect to title nine year what how do you with all lawyer plead a case where it's pretty clear that what the school is that yeah they did a lot of things on the surface they punched all the buttons in the description in the handbook in the i don't live and book well what they were doing was slow walking that case well people the perpetrator aside and coached appears to help her make theirs disappear that's what i'm worried about well that is the end allegation in the complaint but when you look at this complaint as a whole and when we match that with the prior precedent of schools have a responsible for it they have to be held responsible but only if they're deliberately indifferent and that when you look at the standard and i realise i'm over no i'm not over my time when you look at the standards was the reaction clearly unreasonable and the supreme court in davis said there can be situations where as a matter of law the court can find that a response was not clearly unreasonable and that the school who is in the best position to understand the entire situation as wide leeway in addressing the specific situation when i walk it back to this case we the st allegation of wrongful conduct which is a social media allegation outside of the school context it was on december th by december th the boy was suspended for three days and over a period of just number eleven through january th there were at least eight conversations or meetings between the parents and the school which included the school's principal was the gray system president the grace board of trustees parents as well as a police officer and in that period we've got to remember there was a christmas break as well which was at least a week and a half and actually christmas was on a wednesday that year the school is out of session for two full weeks they were in school from december th until january th so all of that i understand your case that way but i still don't understand how under the law you like it to appl y and there are a lot of parents in this particular situation should they have a meeting with the principal they come back and say i got patted on the head well the president is very clear in that it parent very well may not be with the way that a school resolved things but that's not the standard the standard is not that of a parent wanted a certain thing and didn't get it the standard is was the school deliberately indifferent and we would position in this case that it wasn't expired but if you'd like another minute for any rebuttal you may have it but your honor i appreciate that just very briefly look at two things one is just a note to the court that we're not talking about garden variety bullying so to speak not that that's ok but we're talking about something that actually directly brings up issues of literally life and it's tantamount to a death threat that one at least it one if not two points by definition that should create some objective harm that significant here if i have to go to school knowing that my very life is being marginalized it's a big deal finally mr step think use the term take care of the issue right this took care of the issue when the suspension happened by grace's own deliberate blind eye to that looking only at what they felt was their core educational function not helping her thank you very much sir thanks to both counsel the case is taken under advise