easy at st blush from your point of view but we think it's an extremely difficult case for asking you to take a careful look at the willful blindness trend in the law d incorporated in your juris assaulted in the classroom at school repeated times by a teacher there were many or all suspected sexual gave your and actual  file no notes no record of any of the reports and is superior at the central administration office at mit's that the school district and never undertook an investigation the principal says that he talked with the teacher from time to time to pick him to be careful and did minutes that he told some female students to stay away from the teacher those circumstances are in sharp contrast with what you've seen before in each case and gates this is a situation where there was actual knowledge not of sexual contact but of improper contact proper improper contact in violation of school principals and improper contact of the kind that triggered nebraska's mandatory reporting to acute which all school employee regardless of their position there was compliance with that statute finally by a teacher subordinate of the principal after repeated reports to him we think the case presents issues of fact for the jury it was decided on a motion for summary judgment we think the evidence we have clearly percents issues about whether there was deliberate difference there was certainly route that were made and to what they might mean and i think cass that in this context in nebraska the mandatory reporting statute has a criminal penalty it's a class three misdemeanor but it's a criminal equity if these facts were presented to him the brass could jury and this prince old was charged with a violation of that mandatory reporting statute i think the  there were on acts here that constitutes acts of discrimination indeed the apple leaders suggest in their briefs that what is required is that the school district know that there was actual sexual contact principal were never interviewed the school resource officer was never contacted the we've worked in the building not by the principal the school teacher lied to the principal and was caught lying to him about whether he had been approved to mentor this student in a school related but nots mentoring program that school programs a mentoring program though not occur at the school and activity authorized into proved to occur at the school the mentoring was always same gender mentor to student with the exception of this case it was always in the school principals area office area in a designated location except in this case just a case that is agreed just enough to require sufficient it's a case in which the reports were made to the appropriate person as i said before the principle not only was mandatory reporter but under its god description and the policies that the school dis build a file you know mr domino i think what i'm hearing from you is a good in agreement or a concession that there was no actual notice but something short of that and who the case was submitted because the principal waited to pass a report of misconduct on to superiors of the principal and the reported conduct wasn't of sexual contact it was a flat sitting and similar episodes which are things like we have in this case the other case i would identify for you is no one versus the chicago board of education this fed up case and i choose it even though it's a discrete court case because there are several th circuit cases cited in it that i think the facts are just good in the other cases as this one but it honor in this case the rd element that we have to establish is that the injury was so severe that the student was deprived of educational opportunity and in this case the student actually headed and obstat thrifts surgical procedure to repair the consequences of sexual assault by the perpetrator she had extensive counseling which continued to the time of trial on the issue of damages before the trial court not against the school district but against robeson and the evidence there was that it will continue on a lifelong basis her educational activity was interrupted there is good evidence in the record that she continued with good academic performance but she withdrew from friendships with which she withdrew from school activities and she simply didn't participate in the full educational experience because of what happened so as to the school district we ask that you reverse and remand for a trial under title nine s to the principal mr rob think that we're entitled to proceed under section one thousand nine hundred and eighty three and we're aware of your decisions that d say that the elements under one thousand nine hundred and three against the individual are essentially the same as those under title nine in a case like this given that precedent i won't argue to the contrary and won't repeat the bangs that i've said about the principal with two exceptions one thing i have not mentioned about the facts th far is that the principal himself caught the teacher and student in the home d room at noon alone with a light star twice he also received an e mail message from the teacher which had attached to it photographs d showing cheek to cheek contact and cheeking us if i may use that word inappropriate thing and hugging and mitts that he did not open that email to see those photographs the other thing i want to repeat that i have said before because i think it fair to brief repetition is to be sure the court is aware that a mr wakefield the superior of the principal mr piper arles pointed admitted that the school district made no investigation and that the only investigation in this case was by all the hall at least department after the teacher had been arrested  l i want to talk for a few minutes about our th amendment claim i recognize that this is principally an academic issue in the context of this case because the issue is presented against an incarcerated teacher who is likely judgement proof but i think it's an important issue and i urge the court to consider it it looks to me from reading the president cited in our brief li decided on this subject back in he twenty five i believe the case from rhode island where the court because of a rhode island statute said there was no jury trial right to find default damages against default the defendant i try to carefully identify and examine the other authorities on that subject which aren't very authoritative because they don't explore the subject very deeply there's a lot of repetition of the essence of what trial by jury is about the law of the community to participate in these decisions and to express it it's not about recovering collectible judgment it's about using reserve the rest of my time thank you very much on the court's careful consideration of the undisputed material facts in this case and the correct application of the laws versus progeny of this court which has consistently found that actual notice case one of the students told the principal that he was being sexually molested by that teacher but he did not want to press charges that principal did not report that nor take that they prove that there was actually a sexual harassment or sexual abuse and if the legally relevant person and that has to be a principal or someone high on has notice of that information they will not be held numerous text messages the teacher ignoring in order not to contact the student then trying to get the student to leave a sleep over to stay at her house was not sufficient notice it was actually a potential sexual abuse and that the court said that the school sexual abuse or sexual activity going on there was a vague inquiry about something going on between the there was an allegation that the girl had been seen going down to the coach's office into the gym it was an allegation she was seen sitting on the desk  that we don't have anything similar to that in that case they did not find it was reasonable to infer that there was sexual activity going on and that one the superintendent secretary was suspicious enough that she contacted the did not see that and they understood that until after robeson was arrested he also contends that there was no investigation what he wants to do is just regard what actually was done each time there was a report  going to have if you can read this you're going to be liable or criminally or civilly liable and that in this instance remember that we have a title implied action as the supreme court was very careful to say because we're implying  said to have actually the critical facts they also which is instructive so they are admitting that it is an actual and decide that there's no way they didn't have any evidence that the principal or o p s took steps to deliberately used in retaliation cases thanks because our evidence is circumstantial about mid to that the abuse was occurring then that shifts the burden to the defendant to prove that this was not occurring that has never child abuse or neglect then that triggers for the hack in this simply was not anything that rose about level at the end when the teacher saw the extended hug which you do have that video of the extended times out of school at that point she felt that there was an issue with the school policy requiring the person observes the questionable conduct to go ahead and read the report which occurred at that time and i will mention l v was not one of the individuals who or for mentoring the student informally or not there's no requirement to write down or document every time that the teacher is corrected or asked to do something here com the report to o p s excuse me the c r investigation and the thanks again spokesman were step four in the employee consultation report which you have evidence out which went down and identified the things that he was not supposed to do hugging thank you out of your morning the decision of the district court should be affirmed in all respects for a number of reasons st of all the district court directly found that the complaint against  principal barges was in his official capacity and not as individual capacity because of the appellant's did not express lee and unambiguous lee  that was not the case the district court correctly found under cox vs and dover's of splurging case law d that has been in effect now for almost fourteen thirdly if if if the action is against bartels it is official capacity as it relates to nine hundred and eighty three dollars then asked really a suit against the o p s which would require the allegation and proof of monaural type s liability but what we over and above that what we really have here is is a record that is absolutely devoid of any any facts that show that principal bartels had actual knowledge in other words awareness in fact of sexual harassment or sexual abuse or possession of facts that point plainly to the conclusions that robes and an l d were engaging in sexual conduct without further investigation and there is not a single reported incident in the record of any sexual contact between robeson n l d or any other student at the davis middle school for that matter that was told d to bartels or that he was aware of in fact no one including his staff members l d s friends and even her parents were aware of the sexual relationships between ropes and n l d at most the complaints described show some inappropriate professional behaviors that required counseling and additional employment structure of the ropes and but none of them pointed plainly to the conclusion that robes timely manner consistent with the exercise for specialist russian and judgement of his response to the reports of ropes of his conduct and that's conduct that was neither sexually charged nor meeting the definition of sexual harassment it was based on a professional cesspit and if each situation in light of statutory and school districts progressive discipline policies this court has a hered very carefully old for over twenty two years since gaps are and davis were decided and the united states supreme court and gaps are expressly found that actual notice was the standard not of high probability or something less than actual notice but actual knowledge of the of sexual abuse or harassment if you look at the gaps or opinion all of those that standard flows from that the analysis that the court did in rejecting title seven procedural evidentiary concepts in light of the nature of the creation of the implied cause of action so i say i nd everything that aiding and abetting involves more that participation in the in the in the criminal act it evolves some conscious sharing of the criminal act as in something that that that the participant wanted to bring about in furtherance of a common design and in this case not only do we have no evidence of a lack of common designer or desire on the part of principal bartels to bring about any particular result we don't even have any evidence that he actually knew what was going on between l d and ropes so i would ask as the sacrament did that shoe affirmed the judgment of the district court in all respects thank you are satisfied by mere encourage much of the wrongdoer in this case what mr carville's did was to tell other female students to stay away from the teacher instead of reporting separate them or do anything at all to protect that child counsel for the school district says that on one occasion the father scuse me do you have any case that stands for the proposition that one may unwittingly aid in a bad and acted they don't know is actually taking place in the civil context no i do not what i do have in this case your honor that i think differs from your question is that i have a principal who is actively allowing the behavior complained of to him to go on without an investigation all he had to do was to separate the student in her st year when she was a student of this keep them from the teacher and there were other sections of the class where that could have been done he didn't do that he could have interviewed those teachers not just had them come to him and say there's a problem which is all he did it didn't part of what i said your honor i think it's negligence i think it was negligent of him at the to the level of indifference to fail to maintain some notes or records of what he was doing contrary to the school district coun for the record that same policy prohibits even subtle sexual pressures or activities in this case what we know was that there was an inappropriate relationship and we know bartels d knew it what we don't know is w reason to suspect that that relationship was so intensive as to involve sexual contact we do know that it involved singling out this young girl and engaging in grooming activities that were reported to the principal and that grooming activities for a minor child beneath the age of consent are in fact acts of harassment she's not thirty five years old and doesn't have to be being groped to be victimized she's below the age of consent so i very strongly believe your honor that the failure to write these things down is negligent but it's above willful disregard it's it's it's on willful blindness not to investigate and write it down and it's deliberate intent indifference not to inquire of the person who came to the principal and said oh wait a minute what happened when where who was present who else could i talk to did anybody else see this do you agree with the assertion that willful blindness and that deliberate indifference are standards that are higher than mere recklessness i do your honor the supreme court said that that there between intentional misconduct and recklessness i do think that it's higher ok and what was going on here it was worse than reckless conduct specifically and why are you asking by the principal or by the teacher by the i'm not misconduct is above the snice i think that's above recklessness here i really think failure to investigate if not the st time there was a report then the nd the rd the th the th not to inquire of those teachers was above recklessness i think when the when the principal found that the student and the teacher in the room and we have no evidence that at that time catching them red hand he said we have no evidence that he said what's going on here we have no evidence that he directed the student to leave we have no evidence that he separated them even then and that conduct recurred and he caught it again i think that's above recklessness it might not be if this were a college student above the age of consent but this is an impressionable child and i think that for that person it sh trial by jury stands then a convicted rapist can deny a citizen of the united states the right to trial by jury but not showing up in court i ask you to reverse and reman and give this little girl trial thank you