stop automatically but you may sit down if you wish to answer at that point this case is about the scope of judicial review under title nine and the minimum steps a school district must take to evade liability for gender based peer harassment as a matter of law the district court found that the school district did something and that that bare minimum response should not be second guessed as the apple e puts it in their brief quoting the fifth circuit i believe judges make poor vice principals and so is mindful of the supreme court's cautions in davis that disciplinary disciplinary decisions should ordinarily  guessed and that a victim of peer harassment has no right to demand a particular remedy but in this case there was no disciplinary action taken and there really was no remedy of any kind provided until far far after the fact and davis also made clear that even where a district does something that something may not be enough if its actions were clearly and reasonable under the known  reported that inappropriate touching to administrators and stated that if it happened several times r c in fact her assailant did not deny it at the time and that's according to the contemporaneous notes of the vice principal the district did not notify doe's parents at that time they did not notify overseas parents they did not notify their teachers even the teachers who had them in class at the same time in the same classroom they did not notify the title nine coordinator or anyone else for that matter the only action taken was a stern talking to with r c the students were not even separated within their classrooms and unknown to anyone except the district administrators at that time at least those involved in this case another student t r had previously reported r c for inappropriate unwanted touching and as far as the record reflects no action was taken in response to that at least the record is silent as to what action if any was taken at that time the second assault on doe took place almost one year after the first incident in this case or what we've term the first incident in th october two thousand and fifteen in their shared classroom seated directly next to each other so is it fair to assume then that the stern talking to was affected for a year honor there's a gap in exactly what happened throughout that year though reported at the time of her first incident that it happened several times up to that point and after the second incident her therapy notes for instance indicate that he continued to harass her at school after that fact so drawing the inference as in our favor and given that they were still in close proximity to each other it's fair to assume on the record that it wasn't taken care of for an entire year as a result of that discussion in the second case they were seated directly next to each other in the same classroom and r c once again touched her breast and this time emboldened he took it a step further  he forced his hand up her shorts and touched her vagina and he attended a tempted to force her hand onto his penis as well she reported that incident to administrators and again the response was a stern talking to with r c this time with a school resource officer present the reporting again did not go further than that the parents were not notified the teacher  whose classroom this assault took place was told by e mail that there may have been some inappropriate touching and that she should try to keep an eye on things and keep the lights on during movies in the future but that was the in fact the two students special ed teacher miss duffel was not notified at all that something like this that happened or that she should be watching for something like this on her own cost so what's your legal argument we know the facts sure spent five minutes on the facts but we read all that beforehand so you might want to focus on what you think is the legal issue here right the first being that there was no response to the first incident other than a stern talking to and that as a result of that r c acted again in the same manner and then saw against hope and that the school was indifferent and taking no action whatsoever and in ok you have what's your best authority for the idea that schools must do more than that to show that they're not deliberately indifferent there are several cases your honor we actually think that this case is quite similar to  described in davis versus monroe the ninety ninety nine case from the supreme court they were for example the incidents began with an attempt to grope and with sexual i statements no discipline was taken there were multiple victims just like there were here the student became depressed and suicidal and what's really critical and in response to your question your honor is that when it was reported to the principal in that case his response was i guess i'll have to threaten him the assailant a bit harder and that's essentially what what the school did in this case they just gave them another stern talking to each time one of these these incidents came up and other circuits under similar facts of held the same for example the eleventh circuit and versus the school board of broward county in two thousand and ten reversed a grant of summary judgment because they said they quote could not accept the district court's conclusion that merely because school officials confronted the assailant obtained statements from complaining students and informed the school board special investigative unit of sexual misconduct which is something that didn't happen here even the top of my corner wasn't notified  that wasn't enough to mean that the school board's response was reasonable in fact in that case they said we reached this conclusion even though it is undisputed that the principal and the school board took some action in response to the allegations now i is there some tension between a deliberate indifference standard than a reasonable the standard are they really the same thing reasonable this sounds like negligence and deliberate indifference cases always say there has to be more than just negligence certainly there does have to be my view of why do you refer to the standard is reasonable as the standard is in fact whether a district or its employees acted in a way that was clearly under reasonable so it's one of the end there so it's a harder burden to meet but it's still asking whether their actions were reasonable and then if they were clearly unreasonable they were deliberately indifferent so it's true if it's not it's not just that which is there must be something more than negligence and all of these cases that i'm referring to have analyzed this under the deliberate indifferen  and clearly under a reasonable standard and fact there's one more case i wanted to point to in response to your question that's the sixth circuit case vance versus spencer county does not clearly unreasonable language come out of davis or talking to students and the same is true here and really that the district court's opinion as well as the school district's opinion rests on kind of three pillars one being that these were isolated incidents and the record belies that doe herself had at least two incidents that were reported at the time of the first incident she reported that it happened several times in her therapy notes she explained that she continued to be harassed by r c a at school and there's documented record evidence in the contemporaneous notes of the vice principal that at least one other student had also reported the same kind of unwanted touching secondly the district court and the school district allege suffer but in fact her therapy notes indicate that she was scared at school she was anxious she felt suffering really the question or is it being denied equal access to an educational program it it's the latter and there must be a deprivation of some kind of educational benefit so what's the evidence that the evidence is from her own testimony in the testimony in those notes that while at school she was depressed she w withdrawn in fact the special education teacher in this case testified that she had deserved her being withdrawn from her classmates so she didn't have the same kind of experience that she had before that in fact she was even self harming and cutting as a result and so  it's a reasonable inference at summary judgment to assume that that had some kind of impact on her day to day activities and school and her educational opportunities any case law to support that theory sure your honor again davis for example well doe explained to her therapist that she felt that she was being blamed for the situation at school especially that the administrators thought that she was making all of this up and she said quote that she was being  emotionally abused by the principal and so all of this baggage was not just a result of the actual abuse from r c a but also the response of the ongoing response and finally i would just point out that to finish my thought the third point that the district court and the district relied on and what i've already largely addressed was that the school acted reasonably in its response or at least not clearly unreasonably we submit based on the cases that i cited earlier that i mean are talking to the students under these circumstances isn't enough we're not asking that the school should have done a particular thing but there are a number of things that they could have done even if they were fruitless they would not have been deliberately indifferent contacting the parents being an obvious one separating the students being another and i see that i'm running into my rebuttal time so if there are no further questions or sort of the rest of the time are you focused on both actions or just the first one both the allegation is that the first incident and the lack of a response they are gave rise to the second incident because students for example were allowed to be in a classroom next to each other in a darkened room and that c knew he could get away with it and in fact he did it he did one of the nicer sort about the second time the second time the result of the second incident was the documented depression and the anxiety at school her feeling  school district home of the san wizards the superintendent asked that i wear the senator type i thought it be a little flashy for this morning why not set the right tone for this kind of the see there probably not the serious matter i said i would do that and stick with the blue your honor i have stand that you said that you knew the facts well i wanted to clear up a couple of points the first incident night great two thousand and fourteen stated that dos breasts were touched and that's clearly not in the record we deposed so we had her we ask her very nicely to explain these incidents in the record is clear that they were playing a game of kickball doing that starr what did he say while he was doing date after that call her the sexual epitaph b i t c h we don't dispute that that is her testimony actually to make clear that this was not a case of groping her in the middle of this p e class he did afterwards he did call her of the i t c h which is this which is the basis for appellate claiming that it had some sexual reference but your honor the cases are clear in davis as we cite to that gender in this type of environment with students banter teasing horseplay even when it has a gender effect or even when it's gender related is not enough to rise to the standard of a title nine case of deliberate indifference because of sexual harassment didn't another girl report something about him trying to touch  inappropriately at the time of this first incident that is a note that was documented by the vice principal that a female t c and in the testimony which that's vice principal billowed he testified that when he followed up with arm and he told him obviously you don't need to be hitting young ladies well as i remember the deposition did the in fact say that he didn't really recall the incident he just recalled the follow up right that it's undated he doesn't know when it happened undated he can only when we get to the second incident there's you know obviously a dispute as to what was reported by whom and when and part of the standard that we are to apply is clearly unreasonable under the no one facts are no one's circumstances the no one circumstance at this point have to be resolved in favor of the allegations of the nonmoving party right correct or until the question is isn't there at least so the court judge home state in his opinion that did not give notice to the district that something else would happen and the cases constantly speak of that the notice standard so we have to have notice of a similar incident so that incident in ninth grade did not put us on notice that our see could potentially or allegedly commit a sexual assault a force forced himself on somebody but even when that happened your honor although there's a dispute over those facts which the court correctly gave all  even then the two were separated the teacher was told to keep the lights on in the future to make sure you can see your classroom mrs larch the principal asked doat if she would like counseling she said  burress the two had no more contact that year so she made those she made those changes to protect and fact the classroom teacher was going to have everyone changes to not ostracized oh she had a right i was surprised the fact is what do we do to protect dove and obviously we did because it didn't happen again there were no more incidents when we were put on notice of that incident although the facts we did know everything giving all inferences to it did not happen again and as judge grindr was asking about educational benefit that's a big argument that i made in the court below judge holmes briefly touched on it it's not a negligence standard it's an educational benefit here her grades improved she graduated from the army r o t c program she participated in the though tech program which in that part of arkansas is a very big deal she graduated with her fellow students she was her educational committee met at the end of each year and showed that she was making progress in her gulps and her mother even commented that she was happy with the progress dove was making and so she made progress and i asked her in a deposition you know if you like school what she talked about the things that she liked those are all that's her testimony and that's the fact that she was not deprived of any educational benefit she actually succeeded because we ensured that she was not in that position with r c again when we were given notice that he had that force them were gender gender related statements calling him fruity gay talking about his a thin accent and he ultimately committed suicide tragically and this court determined that there was not deliberate indifference based on what the district kn so the facts were important there here this attempting to enter twine that there were multiple incidents her ninth grade year that's not the case as i tried to make clear in my briefing the district thought of there was a hallway and said that but don't lee denied that she said the only answer that my ninth grade year was the vault was the incident in the p e class where did this line come from in the referral then that said evidently he had tried to touch her several times previously right  principal lawrence that who she went too far so it was her recollection that the report from joe was that r c was making contact with her in the hallway during classes and making contact with her breast that was what lawrence recall she reported that to billow who then spoke with r c it was their impression that this had happened more than once that's when they took the remedial measures of talking to him and telling him do not do this again and nothing happened that year when i talked to doe in a deposition she was the only interaction that year that she had with r c and we know the steps that the district took it didn't happen your are your arse in the case of barnwell decided by this court a year ago the standard is what the district did was it clearly and reasonable and the question i would ask is what what does that mean that a district has to do beyond what we did here these students are there a night great we have incidents that are a year apart you know it begs the question at that age what are we supposed to do with r c who is didn't lead denying these incidents we separated them nothing happened for over a year how can that be determined to be clearly and reasonable since we were able to stifle the alleged acts and in day after the second incident was reported nothing else happened there were no further interactions between the two and ultimately  graduated from her graduate from school if i could briefly talk about two cases that appellant relies on the broward county joe the broward county actually involves an adult on student and that involved two prior students giving the district notice that this teacher had made overtly sexual contact conduct including verbal and physical while in his classroom and so that is adult one student in the day this case talked about you have to look at the relationships and we're going to place to place higher scrutiny on those relationships so it's clearly distinguishable and then the vance case vance be spencer a six circuit that involved many assaults the student there i'm a it was very sad to read the record she had been harassed including stabbed in the hand two male students yanked up her shirt pulled her hair or attempted to disrobe her and that happened over the course of several years ultimately leading to her having to quit school again and that was severe and purse and pervasive because the day this court tells us that it must be severe and purse and pervasive in order for it to make the rigorous standard of title nine st student sexual discrimination here we just simply do not have that and every time that a an incident was brought to the attention on the two occasions the district responded not just in its discipline of our city but in protecting dough and making sure she had had those counseling opportunities available to her and it indeed protected her as we know there was nothing after the second incident which it was arguably more  in the context of sexual assault the first one being the two making contact during of a game the second one being him attempting to force him s if the panel has no additional questions i just have a procedural question we are this appendix in the case but the briefs throughout cite these depositions and exhibits which are not in the appendix did you guys c er possibly furnishing the court with an appendix that has all the materials that you're citing you might consider that future because even if they're under seal you can file a sealed appendix but if you don't then we don't have easy access to the materials we can get them through the record but just a thought for future reference thank you for your argument thank you mr bolling we'll hear from you in r i guess it was your appendix maybe i should direct that to you but you can file an appendix that has sealed materials i don't know if you knew that but that would make it easier then we'd have three copies each judge would have all the material that you think is important ye you don't need to do it at this point but i'm just telling you for future reference that's available i understand i apologize for that your honor we coordinated with the clerk's office about that and they instructed that we should have them delivered here under seal and there wasn't e c f notification that they were delivered but admittedly we did not include those in the appendix itself but they are if you file where i understand we can get access to them but you see if you send record materials there's one copy of the record right if you send  counsels presentation shows the issue with the decision in this case the standard is a summary judgment standard and a lot of that presentation was filling in the gaps explaining away conflicts in testimony you know the contemporaneous notes from the time of the incident the time of the reports are the best evidence of what actually happened so if years after the fact in a deposition something else is different that's an issue for the jury to resolve and plaintiff for example can create their own issues of fact just by giving an alternate testimony within a deposition for example but the notes from the vice principal speak for themselves and so if there was something different and depositions later i think that plaintiff says there was no hallway and so they do prove that i agree that that was in her testimony but that was just one of potentially many such incidents it at summary judgment if there's a contemporaneous note that says something has happened several times it's just as reasonable to assume that that information came from the victim in the one on one interview as opposed to the principal which is of the victim denies that the victim denied questioning or were guarding a first hand knowledge is saying there weren't any other incidents then why should we take and unattributed statement that there were several as creating an issue of fact for one thing the  suggesting that based on the fact that they would say that the therapy records are not admissible and so i briefly want to point out that under rule fifty six there admissible if if they can be put in a form at trial that would be admissible in this court for example and j r t said that all a nonmoving party at summary judgment has to do is show that they may be able to produce the evidence so i don't know what's the point here did you put in some therapy records