requires that are you requesting any rebuttal time i apologize your honor yes three minutes please title nine requires that no person in the united states shall be excluded from to spatial and denied the benefits or subjected to discrimination in any education program or activity receiving federal financial assistance the supreme court has said this repeatedly and the district court's order below flies in the face of that cannot be squared with the plain language of the statute which applies to which which prohibits discrimination against any person in canon the pla applicant in north haven the plaintiff was a teacher in jackson the plaintiff was a coach in case after case involving student addicks court certified classes of  him and the educational institution that you them are student but it can't just be somebody who happen to be taking a shortcut and walking across campus that that wasn't they have to be some connection to that to the  ok we don't argue that so what the statute tells us is the question really is whether the institution offered a and a program or activity or and education opportunity benefit  to the plaintiff and hear clearly u k provided those things to jane doe she resided in their dorm on their campus so the dorm is an educational opportunity or benefit the dorm is part of the entire operation of the institution that is an educational program or activity student is taking part in the inverse invitation person here because she's not a student at u k right right so my question somewhat similar to judge donald's is when does a citizen a person  community come under an educational opportunity or benefit the athletic one which you rely a lot upon is those that think although you said something about an applicant or recruit i wasn't sure about that one but you know i mean in my community i can just go and use the running track at our local college i can use the library i can use the  cafeteria my protected in any of those activities or all of them every case is going to be a fact specific inquiry it's going to depend on the context in which the person is using those facilities so use is a little bit too loose where the where the person is participating in or taking the benefit of an educational program or activity on the campus and that person would be covered so to use your analogy a person who are sorry was judge donald who said you know someone happens to be passing through the campus because that is between point a and b and a and b have no connection to the university they're just passing through that sanders comes to speak at harvard and anybody in cambridge who comes to hear the lecture is protected we're conflating two things the coverage of the statute under six section one thousand six hundred and eighty seven focuses on the idea that you parse out whether a particular activity or a residence or hall or a class or a and now flooding event or a lecture is a program or activity is was rejected after greater senator but that's your no piecemeal argument but i was looking at the other side which is a person who is not generically a student and that's where most of the piecemeal parts come in is something educational but my example was simply a citizen attending an educational of that i mean you know very frequently you know somebody is coming to give a lecture on their latest discoveries about cosmology that's terribly educational certainly but then are you a person who has been denied an educational opportunity or benefit if you have no other connection other than as a citizen if you are a person who came to the institution for that purpose you are being denied an educational benefit of the institution it shouldn't be surprising that institutions that receive federal financial assistance i should be expected to ensure that someone coming to their lectures because they do open their doors to all kinds of events educational events that the institution should be expected to make sure that anyone who participates in those events is not going to be subjected to sex discrimination or is not going to be sexually assaulted and that the institution is responsible for its response to those in the other part of it is who does the university have control over we talk about student on student harassment which is what most of these cases are in my example of what about person on person harassment you attend the lecture you're you are harassed by someone who is also just a person in the community but it's on the campus again that university libeled that's a fair question the the issue is the degree of control that the institution has  over everyone involved so the the university has control over the campus the university has control over the assailant if that person is connected to the institution you're in here it is a u k student yes but if the assailant commits the assault at a bar let's suppose again ms doe here the assault was in the dorm as i understand it but suppose it's the same person at a bar in the community that might still prevent her in the exactly the same way as she claims taken advantage here yes because that because the issue is why does the campus situations still included because i the assailant is someone over whom the institution what you mean in your view it really rests on they're having control over  over the ledge the perpetrator and then some tenuous connection to the university's activities is that kind of a fair statement that's part of what the courts have looked at the but the issue is title nine is about eradicating sex discrimination in education it's not about adjudicating sexual assault or rape in a criminal sense it is about making sure that the university's response to the knowledge that that a person on their campus accessing benefits of their programs or activities is such that she is able to continue to pursue her education that that experience doesn't do a rail or education that's what title nine is about it's not about adjudicating these events in a criminal sense ok and so just to be clear then what you call her education would include clearly you know sure's that are open to the citizens use of the track use of the library use of the cafeteria yes those are benefits of the institution and in this case of educational benefits of the institution everything that the institution does is an educational beverage thing the institution does as an educational benefit ok b and so the the error below is that the district court adopted the universit characterization of other circuit decisions that have limited the application of title mind to students that's just not right on what's true what's your best case for a case that is up held what i called the not my view but i would characterize as tenuous the say a use of a track use of a library attendance at a lecture the best case close to the best case is the only circuit to directly address this head on and that is dover's as brown university in the  st circuit where in footnote six it said the that the victim does not need to be in an old student in order to have title nine protection and institution  the st circuit and in the th circuit the earlier case in frasier is obliterated by that brown decision but where courts have imprecisely said that the plaintiff has to show that she was a student  that just isn't supported by the statute and that's incorrect but in brown that was a student at a different college and the outcome was unfavorable to the point of pride the reason the outcome was a favorable to the plaintiff was because the plaintiff according to the court did not plead sufficient facts to meet the standard but that doesn't mean that the standard was any different the standard was still that the statute says no person shall be have given protection under title nine to all members of the public or so it seemed similarly in the th circuit under katie the court decided assumed without deciding specifically a holistic experience that the students had to enhance their entire educational experience and to encourage them to succeed she had access to computer and online facilities that the public did not have access to and she had borrowing privileges at the u k library that the general public did not have access to and she was required to follow the student code of conduct so i could see my time is up and listen for his own questions so for all of those reasons here after the assault and the completely inadequate response by the university jane doe had none of those benefits and that's the violation harassment under title nine i'm out nd i'm sorry why not why she not in the class because she was not a participant in an educational program what it would i just heard a few minutes ago not i think we need to address the choice of language was that everything the university does is an educational benefit as she was denied an educational benefit that's not the proper phrasing in the statute it's whether or not she received the benefits of an educational program or an educational activity  everything the university does has a learning element to it not everything the university does would qualify as an educational program or activity not you're not think just then that just classroom activities would be the educational benefit because you know that and this and them with their with going to a community college she had the benefit of living in the dorm and and interacting with offensively her future classmates i mean when she comes to the u k eventually after completing the two new college thing then she's right there with her class so why didn't all of that by you case own admission a cosseted part of educational benefit but i think multiple reasons the st of which you cannot we can't assume we would hope but we cannot assume that misto was going to be kentucky student if that's that's where that was her go but if that were the case your honor if all it takes is i want to be a u k student one day then anyone who sets foot on a campus m very closely related to that and i was just getting ready to to to address that is what does u k have substantial control you know that's what when you look at gaps truly look at david gibbs or scuse me and you look at davis that's what the supreme court has said it and it was a d to earlier about the off campus incidents and they were grouped in back in the yesterday almost but substantial control over not just the alleged harasser but also the context in which it occurs as as davis itself says in most cases that this court has had have dealt with k through twelve situations where the peer to peer harassment has occurred in high schools and middle schools i'm not aware of appear to be harassment case that the six circuit is dealt with on a college campus and that's important because of what davis says davis says that k through twelve schools have a much greater degree of control over their students than what college do over free adults and so in this situation the university doesn't have substantial control over the way that adults interact with each other on campus according to what davis and title nine addresses now and that they look at what is the university's response correct correct and the response here plainly was not immediately suspended from the university he is given a ladder which was personally served and he had two hours under that letter to leave campus within six days he has a scheduled hearing on his charges and his attorney asked for a one day continuance because he is dealing with his arraignment in faith district court and the university says no it won't continue it one day that it was an error on the university's part in its due process at best were negligence it certainly doesn't rise to being deliberately indifferent to the complaint much of this is for us at this point i thought that what was before us appeal is just the standing issue because that's what the district court ruled that was the latter opinion that the district court ruled well i'm looking at the also the statement of the issue read says does a person ha standing to bring a title like claim against mercy are we looking beyond the standing question here we certainly briefed it and i think you can others along lot of cases that allows this court to affirm the district court on any alternative ground this was addressing initially on our st motion to dismiss and what judge hood held at that time was that through the rd hearing and again at that point we're at a different posture we've got the prayer of john doe case from from two years ago that was before him as well and what judge heard here was this through the rd hearing so basically through roughly the st twelve months after the report was made that the university was not deliberately indifferent but judge who did not know and in fact the university had not yet scheduled that  hearing judge who did not know why so the case went forward on those grounds there was some change of counsel my colleagues here became involved and it gets rebooted so to speak and at that point judge hood then rules wowing have to address the remaining was within our brief and i think what's what's important to note here is part of the claim we're because i don't think there's any argument it certainly did here this morning i didn't see in the brief there is no argument that the universities initial response within those st ten to fourteen days remember missed the leaves campus on or about october th after this event occurred on october nd so she's off campus within roughly twelve days i don't believe there's been any argument that the university did anything that was deliberately indifferent in those st twelve days while what she leaves campus she is no longer on campus i don't think she's a protest we've clearly laid out what we think are strong grounds wh she was not a participant in the educational program for that twelve days but certainly what she leaves it she no longer is in part of what i think is really telling it is a note in the reply brief that the that  but what's the relevance of her leaving campus i mean if she were undoubted student and then left campus and didn't come back wouldn't she have been you know cream of fire she denied educational opportunity no no no again not at all you're on st of all it's that point we have no ability as the university to control any context in which she is right that's the standard is are we preventing harassment in the context that we have substantial control over if she's no longer on campus there is no way that the university can do that in the very few cases that have recognized that that former students might be able to continue a claim there was prior knowledge one of two things elements there was either prior knowledge as in the case  circuit for the university of georgia prior knowledge of the assailant including the basketball coach who had been at different schools and had seen similar issues arising and had been told by that university do something about sexual harassment training so that prior knowledge assault which isn't a fact at all here not alleged or in a different context the response of the university is that happened off campus we're not going to do anything about it this case is nowhere near either of those two extremes in this case the university of them twenty four one from her last complaint which she briefly addresses on page eighteen but most of the top of page one thousand of her reply when she argues the difference kentucky didn't address the rapes impact on her education despite knowing in october of fourteen how the rape was affecting her she's not our student and she's left campus what more can the university do now if she needs resources to address the sexual assault there available anyone can walk into either university hospital seek other mental health treatment at the university of kentucky or or attend the crisis center that the university has for for victims of violence anyone can  participate it doesn't matter where the assault occurred or what your relationship with the university is or once was what more can the university techie do to address her education at a community college when she's no longer living in a university dorm  campus in and beyond that that's not what time online requires what what gives students the private right of action to sue for peer harassment is when the university is deliberately indifferent and doesn't address it and as we talk yesterday if to respond promptly you have to investigate you have to take proactive steps in the university did that immediately after the assault was alleged if you use the term students but you you th circuit and the th circuit have have held that employees are not covered under tight on time because they're exclusive remedies under title seven other courts have disagreed with that i think this court and some unpublished decisions has assumed that to be the case i'm not aware and permit i missed it when i'm not aware that this court has ever affirmatively ruled that employees hold that private right of action or timeout but let me give you a couple other elements of the university and think how they apply to this and it kind of goes to some of the points that judge barnes was reiterating earlier i speak every now and then and i think some of your colleagues have at your kentucky college of laws continuing legal education series that they have they do continuing certificate that imus maintain with thirty bar association there's instructors that meets all the criteria that the rd circuit laid out in the mersey hospital case been out of law school for twenty two years now in my covered under title nine if i am sexually harassed there in the hallway of that law school i think not and i think university clearly has no expectation the nerd spending clause liability with the federal government to impose town  there there are two other elements that the u k has throughout the state you may be familiar with is the risk that he has a county ag extension agent office located in all one hundred and twenty counties there their workers are farmers they're checking crop yields they're examining soil concentration that clearly has an educational element to it when when when all of these local farmers command and work with the university kentucky ag extension agent offices are they participating in educational programs that they would be covered under title nine and have a private right of action to sue for harassment i think not it even in the student context that that the college of agriculture operates the four  have state speech contests and other elements those are teeny states that are doing that down to you know st and nd grade with their little posters think they're covered under timeline with the university of kentucky clearly they would be with their schools for our high school students we have a governor scholars program in the governor's school for the arts govern school for the arts is on you case campus the governor scholarship program is typically at morehead and murray different campuses  throughout the state these are high school students they are living on state university campuses not taking classes at the university but it's that same university so it's that same residential setting they're not covered under title nine as well yes earlier what's the connection the connection is this is a landlord tenant relationship in the benefits that she got are very very similar to that context or those shared by by the rest of the state let me ask you because you're sort of raising what's referred to in some of these things as programs run by other people on on university campus the university has a summer school program that it's running you would agree that that's covered if students sure are yes and people who were students at something run by the university my  children what i always called it nerd camp they didn't like that but for high school students who would come to a university for a program that the university is running on the campus yeah meet with that way i think that is  think that's different if that truly is a university program that they can meet and i like the criteria that the rd circuit laid out in mercy as to what is an educational program that meets those standards yes that's not typically the case for you see the example i have was that a college ram the nerd camp and a professional ballerina camp and the washington redskins training camp thank you judge batchelder you're exactly right everything that mr bowman just spent his time talking about is not before the court yet because the plaintiff has not had full discovery to address those issues the court below did not address that in the order that is on appeal here the only issue before the court is the standing issue but to the extent that the court is concerned in any way about deliberate indifference let me just counter some of the things that mr bowman just pointed out the issue that issue has been addressed by this circuit in vans and in a corner in vance the court was focused on the characteristics of the defendant entity and whether the plaintiff was denied access to the educational opportunities or benefits  offered by the school which goes to judge bob's hypotheticals and again horner looks at the institution wide application of title nine to any person who may bring your testified at the very st hearing that mr bowman says they quickly held that she was afraid to be on campus that she was having trouble sleeping that she was thinking about leaving school and no one did anything about that no one and that's what title nine is about that is part of the university's response they had an obligation to respond in a way that kept her in school and they didn't do that they're focused on checking the boxes side what that would be no but the courts have said she does not get to cite that but the analysis is the analysis is whether the university's response was clearly unreasonable in light of the known circumstances and here  pleaded more than enough to show that their response was clearly and reasonable in light of the known circumstances they had a process they had many hearings but it was obviously ineffective and they knew it was ineffective it had procedural error after procedural error and between this case and since mr bowman is brought it many times yesterday's case and others that have been before this court recently there have been you know a dozen different hearings involving this process at this institution and they know they can't get it right and that shows deliberate indifference that they have not fixed it it also is in legend in the complaint that the chief of police specifically deliberately interfered with the witness in favor of the  assailant to impede the plaintiff that is in is potential evidence of deliberate indifference but we haven't had discovery on that yet hopefully we won't have to come back on that question but it's not before the court at this time in some your honor this indifferent we'll get there at some point we hope it's a court sent us back to the district court but she clearly has standing to make this claim because she's a person who is denied the benefits and the educational opportunities of u k under valence you think  the matter is submitted and we will provide an opinion in due course thank you very much