quarter this is a case about the process that was used to resolve fairly simple fact adjudicating conduct cases and when she heard mr peet exclusion of events she give serious consideration to the idea that this young man might have been the actual victim of intimate partner violence in spite of this people and her colleagues adopted and implemented a series of procedural devices that border arbitrary and improperly stacked the deck against mr h recklessly increase the odds of an erroneous step of ation of his right to pursue an education it's our contention that this process was flawed from beginning to end i meant to start at the end heard near change made there isn't your honor i think that if you look at the context this is two thousand and thirteen the dear colleague letter that the office of civil rights issued in april of two thousand and eleven had discouraged this and i think that the within a couple of years the movement across the country had been to move away from what had been a basic right that i think that most students throughout the country have enjoyed which was this right of direct confrontation but there's nothing in the record that suggests that there's change was made to get james haiduk in any event it certainly is there anything in the record to reflect procedures that the university was using in the fall of two thousand and thirteen and he played by the rules that had just been changed and submitted the questions their intention that that change rendered given the stakes of the hearing that competing narratives that fact finders had before him that resulted in a process that was unconstitutional you as a circuit bound dorothy bomb when it's a classic he said she said  either they accused him him or herself or of the students representative of her state of the opportunity to test in probe the credibility of the complaining witness so that clearly didn't happen in this that is asking a bit much so i don't think that the strategic by by playing by the rules that the university changed in the middle of the process for sort of the ability to come back and say hey wait a minute this wasn't fair so you want us to write an opinion that s r do it so it compels them to come forward and say hey i want to do this when you have any absence of any indication from him that he has any objection to that manner of proceeding knowing it it goes  find i think that the case that it is clear that direct questioning accuser is part of the q students due process rights but in this particular case to give him a rebuttal think you have to find that i think if you list of questions from thirty six to sixteen and then of the remaining sixty in the kerry board members asked a very few if you read the transcript of his hearing it doesn't the questions posed in this to me don't read like cross examination  reads like a deposition frankly and where you i think the reason for that as we point out at a briefing is the university by the time this hearing took place was training these questionnaires to bend over backwards to do anything that would make  university down the semester after james haitink's expulsion actually allow for charge students at the end of the hearing to they were asked directly do you is there any questions we should have asked and we didn't they would hand them a piece of paper to write down the and again there wasn't a vehicle that was presented to him or that would have been appropriate and again i think it goes to the point again of putting on an undergraduate student who was forced to defend himself who doesn't have the access to an discovery that the procedure on visor had made this sort of unilateral decision that the outset that only a small percentage of his questions would even be ass now on as a indicated in this he really should have been in this position because he was subjected to a seven month away from the time of his hearing intil when he finally had his day in court and university to the district imminent threat and that this was warranted if they had upon getting a report of his harassment immediately said look we need to step in here to see only answer predator and had done that there would be one thing they waited two weeks without reaching out to him and there was no reason for that it's it was not impractical there's no excuse for what to say that the procedure for suspension was minimally sufficient because they gave him the chance to talk to the administrator by  to testify and i think if you look at what actually happened when she had to show up and give testimony she recanted this idea that this contacted been anything but voluntary i think what  given was totally insufficient after a pretty deprivation that did not need to occur without him receiving any kind of notice now i don't want to just say one more thing about cross examination because the contact was consensual on a short he admitted that he violated the no contact order to review down she reviewed his letter and on august fifth notified him that she would continue the interim suspension him he had done nothing wrong to her and she had welcomed all of the contacts here so that the no contact order itself was premised on a false accusation and during the no contact proved all contact was consensual i find it hard to believe that the university with and has suspended the student for seven months assaulted him and all contacts were consensual i think there's two different pieces to your question why isn't an on the on the violation of the no contact orders and you're asking would claim that that acquitted the university and even proceeded with those charges had it been interception which it was not until september and the information that this was not consensual i don't know the answer to that but there is a second part to your question which is that if the hearing had submitted for the hearing board on appendix continuance a lengthy discussion of the evidence that was before the hearing the word in november that appendix sixteen hundred to six hundred thirty six and explains very present during that hearing in addition the educational advisor to the university name stacy batman who was also very involved in the process and although it hasn't been an issue in the briefing the answer your question about  well fitted his crime by not raising it himself they've submitted a request for notice and comment and universities been commenting on this over the holiday break at the university said to be notice and comment period presence at the end of january on exactly that and part of what they're asking something that the university takes very seriously but it is not santa now to the criminal court it's not to enter now into a civil trial the literature on this is deep and wide and deep stacks of the nineteen sixties but at the end of the meaningful time on means was reasonably prompt under the circumstances and it i cannot stand up here and say that i think that telling with it that it felt wrong i don't think it is but in that point in time hearings for not being held happened and it's at the university employee's official capacities now one thing contained in the entire second amended complaint which is the operative pleading here speaks of anything that is done in their individual capacity and while i recognize a counsel's argument that this makes it somewhat challenging to replied to something for the first time i didn't hear oh that's not the case the court still has to determine whether something was constitutional and that is the exact same angry that we make in a qualified immunity case did the person act in disregard of a known constitutional right something that they knew or should have known about and i submit here cross examination not unknown constitutional right while aspirational in law friendly under consideration discovering that the directive was the result of the false accusation i can't imagine the university within say five months suspension is the proper period of time particularly where this was the derivative itself was predicated on suspension was predicated on some extent on hearing the story from the parents his read measures the university itself were and they turned out to be quite a few differences between what the parents understood the facts to be she admits that they were consensual they were consensual sex cars are still in his decision and all of the contacts were consensual the university is still able and and the hearing words that he violated is no contact or treatment you're saying now is that even though they didn't give him a hearing back in june and july we know that had they given him a hearing the result probably would have been the same so he still would have been which i don't recognize would you say do you have much time or would you say something about the title nine time yes and in particular graciously if you question whether  statistically insignificant i know that they argue that we didn't give them everything they wanted but we did everything exactly what we were ordered to do after two rounds of motions to compel in the federal court they had evidence of from twenty ten to twenty fifteen of university students who had been disciplined accused of assault to result discipline and it was found that more males were expelled or disciplined severely than females is a very small statistical been true in other cases was probably true in this one it may not have been sufficient but it would have been it would have been competent evidence to that point and why should that not have been a while and i understand your back with a legitimate reason as to why you disciplined him in the way that we disciplined him and your records peaks on that subject the discipline decision is a curse to the finding of responsibility with me understanding his pas this incident and twenty thirteen had two fairly significant disciplinary issues now granted he accepted responsibility for this but i delved into the underlying issues about the disciplinary accounting problems that came up in the brief i don't take up the accuse of an assault and like james he'd actually violated her own no contact order hundreds of times nor given us not only not punished severely for either of these incidents she never faced charges and i think that if you look at a time line claim you know itself i think was enough to get the case to a jury if if they were to engage in the thought experiment of the switch in the sex of these two parties boyfriend who's responsible for this black guy hit me again he's a really good person i don't want to see himself or any consequences and then six weeks later after that boyfriend had been planning some min