farmer versus kansas state university and what course vs kansas state university case numbers are seventeen dash three two zero seven and seventeen dash three two zero proceed good morning your honor is their teacher for the appellant kansas state university timeline prohibits institutional sex discrimination by colleges and universities as a condition to their receipt of federal firearms it does not directly applied to the conduct of third parties under the supreme court's holding in de those institutions are not vicariously liable for sexual assaults perpetrated by students against other students institutions have an affirmative duty to remedy the effects of criminal sexual assaults they did not know about at the time and that they did not cause instead under the narrow implied of action that davis recognizes institutional liability for money damages results only where the institution has actual notice of severe pervasive harassment it responds in a clearly unreasonable  might say deliberately indifferent manner and as a result it subjects its students the sexual harassment contrary to that teaching the district court below held that these plaintiffs could proceed based on some quite right is not and then subjects the students the subsequent sexual harassment the actual language in the this is that it makes them liable or vulnerable to further directly it may not be liable for damages unless it's deliberate indifference subjects its students to harassment then the court goes on to define the term subject that is the deliberate indifference must at a minimum cause students to operations of the funding recipient the harassment must take place in the context subject to the school's control the court speaks to actual harassment not the hypothetical vulnerability to it i think  that she was subject to a repeated pattern of harassment that it was reported school officials that they did nothing about it and thereafter she was harassed again not hypothetical harassment but actual harassment in the form of unwelcome groping and verbal overtures for sex davis did not hold that the mere vulnerability to harassment itself is a sufficient injury by itself to sustain mine for money damages that's what this court held in health you that's what this court held in roast it's what the majority of the other circuit courts upheld i think the noble case affirmed by the sixth circuit does a particularly good job ok so that the but what meaning then do you give vulnerable to it to mean i guess are you reading it as further harassment or i mean how are you reading that cross or how do you think we should well it refers to sexual harassment and whether or not it's further harassment depends on the type of case that's been brought so judge robinson below recognise that you can have in essence two different types of deliberate indifference liability so called previous all deliberate indifferen where the school is alleged to have had actual knowledge that a particular perpetrator is a risk to students that it fails to act and as a result the finances assaulted or you can have a post a small post report case where the point  alleges deliberate indifference to her report alone if you're proceeding on that post report shiri then by definition there needs to be a subsequent act of harassment otherwise the school's conduct is not  the plaintiff to harassment and we would instead be reverting to that form of vicarious liability that davis civically rejected there is a textual argument that the plaintiffs have made about this particular sentence i would start by first thing i'm interested in is this just so connor writes the opinion for the court and she summarizes the court's opinion in the first paragraph and there's no mention there about further harassment or boehner bill to it in fact the causation aspect of the case she does address is in the last sentence they say we conclude lie only for harassment that is so severe pervasive and objective offenses that it effectively bars the victim's access to educational opportunity or benefit isn't that really the injury that we're looking at here is his diminished access to the educational benefits k s u only to the extent that that injury is the result of case state's own conduct here are not the challenging the right you're not challenging that's not on the table right now your honor we're not arguing our response was not clearly unreasonable we have argued in greece below and well i understand that but in terms of the issue you're presenting to us don't we have to assume there was deliberate indifference you have to assume the right is clearly unreasonable yes all right deliberate indifference and then isn't the critical question whether that the liberal indifference diminished access to educational opportunity no your honor davis says that that deliberate indifference must subject students to harassment but i don't see that in justice o'connor summary of her opinion it says it says that it has to bar the victim's access to an single incident of sexual harassment no matter how severe and specifically concludes that she does not believe that was within the scope of liability that congress could have envisioned when it passed title line so if the the ory of liability liability were positing is that a student on student sexual assault results in liability unless the school affirmatively remediate the effects of that's all we've got a form of liability in premised on a single incident depends equally on the alleged persis turns and severity of the actions this is why the eighth circuit in colder start and the fifth circuit in carmichael both held that you can have liability arising from two cases you cited from the tensor eschewing and roost those are both summary judgment matters where the court went to trial i mean went to evidence on some adjustment and in both cases the court concluded that the school fixed the problem in s q they fired reprimanded and fired the teacher instruct the teacher had no more impact in roost they determined that the student had transferred to a different school and was no longer going to be vulnerable to the problem that i see in this case of the argument that the school did not do anything to remedy the event in fact they may have exacerbated by revealing details about the victim but they never went to the victim to the perpetrators and expel them or said your underwear watching you or do anything to make the students feel safe enough to continue to join the educational response to develop the question in this case is much more narrow than whether the school is created a safe environment in the general sense we're talking about the implied cause of action for money damages under title line navas scope of the department of education's regulatory enforcement authority not whether the school can be liable or some other cause of action but whether this piece of spending was legislation creates monetary damages for the school i would also answer you recognized in davis was narrow it did not create monetary liability under some sort of vicarious or respond yachts period or theory and here the theory as posited is there was a sexual assault that at this point the plants are contending case it is liable for they drop the prius whole theory of liability so we have a sexual assault that causes the plane just to fear further encounters with the perpetrators they then extrapolate that fear of encounter to say we had a vulnerability to harassment and therefore you're liable because you didn't remedy what makes us feel vulnerable they're going further than that i mean that that might help the sufficient but they are going further and saying you're also level because elisa's to the second of these places that you have revealed information about me that has made me feel more vulnerable to things you are that's not sexual harassment nor is that sex discrimination to notify someone that have been accused of sexual assault this court defined sexual harassment in siemens in your opinion as unwelcome conduct of the sexual nature or adverse conduct that is motivated by a person's gender if it's sexual harassment to notify a male student they're accused of rape only every school committing sexual harassment the argument isn't that that was sexual harassment the argument was that that contributed to an unsafe environment educationally and then my point is  schools aren't liable for creating an unsafe environment in the broad sense they're liable for intentionally engaging in sex discrimination deliberate indifference where that deliberate indifference subjects well to  extent that the court recognizes that as a sufficient injury i agree that it could be in fact it must be an objective inquiry here there are no facts alleged that even if reasonable inference are taken would suggest the point were actually more vulnerable to sexual harassment they have alleged that they felt fear of further encounters but there are no facts alleged for example that the perpetrators threatened them came up to them again in fact there was no interaction between the perpetrators and these plaintiffs at all post reports a case state therefore there could not be any further harassment and this case then boils down to the chance to make a state liable because it didn't remedy the emotional effects that flowed from the sexual assault but since these plaintiffs testified that in fact they did continue to feel the impact and they did impact their education ability they testified that they dropped out of school activities they didn't take classes they altered their sexual violence created the fear and now we're trying to hold case that might have all because it didn't come in and expel the students and alleviate that fear this is where we run into the conflict with davis saying that schools don't have an obligation to remedy sexual harassment they don't haunt the rule is not one where every excuse respondent has to be expelled how far do you carry that some of this from legal understanding here is there of a pattern of sexual harassment of a certain categories student that could rise so great that the university would have an obligation to remedy that earlier in your is your position they could say well until it happens state only learned of them at the same time there was no post actual knowledge harassed and i guess in answer to your question the cases where institutions have been found liable or at least were claims have been allowed to proceed like davis itself are ones where there was harassment actual knowledge to the school and then a continuation of harassment so to having you brought your your answer my question is no the university would not do isn't anything like in williams where the allegation was you're aware this male student is a rapist is a predator and you've done nothing and then he assaults her want in that might result in liability from a single sexual assault that  apply davis tells us that their rule they were announcing only applied in situations in which a funding recipient does not engage in harassment direct case state in its brief has explained that no there's no which davis drew from the plain language of title nine they were being subjected to entitle not so it just doesn't fit essentially the other thing case it is doing in making that argument is attempting to elevate the dissent in mediate effects of sexual harassment and that not all what's at issue here the other thing the case they would ask this court to adopt is a principle that it's not objective really harmful for rape victim to everyday leave her dorm and know that around any corner in any elevator any part of campus she can run into the man who raped her and knowing at the same time that the university she attend and had said we will do nothing about that that that fear in any impact has been your ability to access your education because it's nothing but subjective feelings on your part and we have no duty  reality it was every day's a risk they face when they stepped out of their house when they decided to go to class and they had to make the choice in the day to day i decide to go to class and risk running into my rapist or sedated i decided to stay home knows about it and it's a little deliberately indifferent to it and still fail to provide a safe educational environment liability can spring from their counsel you mentioned roast i'd like to ask you to address as q and and ro particular the passage in i'll read it from ask you i think there was a similar one in ross where this court said and i'm quoting significantly we know that ms ask you does not allege further sexual harassment occurred as a result of an aussie's deliberate indifference could you explain why that doesn't pose a problem for your case so in  isn't deliberately indifferent new liability can arise if there is a do school receives notice that wait the remedial response that we entered the wasn't totally infected there's further harassment going on and the court representing vance vulnerable to it in in the passage that i read to you not in s q because we weren't dealing with a case where a student was forced to want to daily basis make a choice between accessing her education principal excuse me that the statute make clear that whatever else tipper hit students must not be denied access to educational benefits and opportunities on the basis of gender and so the court was recognizing any definition we have to drive to subject to harassment has to take account of that because title nine is here too as ensuring access to education is no deprivation of access on the basis of gender and i need to ask you about another passage and this one is from davis and mr teacher mentioned in his argument and that is where the court said in this opinion and again i'm quoting although in syria a single instance of sufficiently severe one on one peer harassment could be said to have such a fact referencing denial of access to educational programs we think it's unlikely congress would have thought such behavior sufficient to rise to this level and i think the argument is that this passage creates problems for your case could you address that so the passage it doesn't affirmatively disclosed the possibility that  in that case the court said what the plaintiff was complaining of in the further discrimination context involved or liable to contact was sexual harassment in the abstract and that's because there was no perpetrator in the school anymore so the subject the risk of being subjected to you know further harassment just didn't exist anymore because the school was not deliberately indifferent and you know the school noted in that case is not an instance where in which school administrators investigated is it not to get down to grade levels we have fourth grade students rate by sixth grade they ride the bus together they live in a rural area they are forced to attend school every day and the little girls use the boy every day in school the school says your subjective fear being rewrap by this by your perpetrator has no basis in reality particularly because your parents are reported the police and what rational sixth grader who would rape a fourth grader would be a repeat offender right the school could remain deliberately indifferent let them ride on the bus together let them be any class to get in then the student could rape the little girl again in the school could argue well our initial response of inaction was not deliberately indifferent because this case think that it is so it is unreasonable for a rape victim to believe that someone under investigation for rate will rape them again so in that scenario there is asking you to fashion a rule that would lead to in certain circumstances that result would mean that in any case in which someone is is is raped the idea that they would be raped again is just not subjectively reasonable and they're asking for that inference in our case where report is made to the police in that just doesn't square with legal frameworks and in states across this country for example kansas has ordered protection for sexual assault and you can go into court and get a order be under their telling unlikely for someone who's under investigation for rape to go out and rape that same person again it logically follows that if a student here versus told by his university hey we're investigating rape that that person would be less likely to go and rape that the person again so wonder their own telling their failure to do that was deliberately indifferent and instead of reducing the risk of harm which they could have done left at this level thus making our client more vulnerable little more time so i want to talk about some of those because i think at the ports if your honour's results were well i think i think you're at the the end it might be a nice in fact where we're pretty close aren't we i think they've had about equal time so i  case will be submitted and