going to college next year he's going to get some scholarships and the relevance of that is that environment is important for children environment is important for children and what this case is about is about children it's about their environment  hand is whether the magistrate committed plain error and by extension so did the district judge by failing to follow certain jurisprudence and we believe that the magistrate absolutely committed what about this or much harder case you know it's interesting i went back and looked at it and i know it's one of those i consider it maybe a distinction without a difference to be very honest with you i mean i kind of looked at case law i tried to find out what's really the difference between a didn't over with you on a motion for summary judgment versus just plain air rule and i would say in this case i think we can support the plane or rule because as we go through hopefully you've got a chance to talk about the record will speak to of course is that i believe the  the evidence he gave deferential to the defendant comments and facts rather than to the ones by the plaintiffs and any and all inferences that could have occurred and been married to the benefit of the plaintiff went through that and found it so i would say based upon my one i think for you on placing blame here is the deliberate indifference because our case law says deliberate indifference is not shown by the fact that the remedial steps are ineffective various parts of the record so in telling the story of course when you hire a lorry really just a story teller so i'm here to tell their story so we have this child we know that he being assaulted physically to have sexual connotations no one seems to argue that here's a question that the magistrate brings up about that that the schools not on notice which i thought was his first major error because there are significant testimony in there and the reason i bring that up is because i think if ever there shows that his failure in other areas as well so the kids being bullied harassed daily he's having his breast touched daily he's having his nipples twisted he's being called faggot being called gay all at the same time he's being harassed on the bus and being harassed in the gym he's being harassed in the locker room being harassed there's some racial issues there but i never thought there was enough for a title knew they had the incident in the locker room everyone knew about the child went to the secretary of the principal almost daily and left notes during two particular incidents that he was questioned under deposition and in his own decoration he brought up syringe where he told the vice principal that he was being bullied harassing talks on his breast and chest and in fact he said a single incident that made him go home and commit suicide was because he told the principal that he was being touched on his chest to deal with the abuse by the teacher and the courts that rightfully so says listen not having the policies and fourteen procedures in place by themselves don't create a cause of action that doesn't get you past liberal indifference fair enough us the supreme court specifically cited the various standards that are set forth in the regulations and they specifically cited the office of civil rights directives on title nine dealing with  and student on student harassment that do create not cause of you know what say a person a violation or use that term that creates deliberate indifference but part of the element part of these things you're supposed to look at to determine whether or not a school has acted correctly one of the reasons i was interested in this case and we admitted in stat it's not that the school didn't do anything it's really a question of there are effective and there was a cage th action so now we're talking about whether or not the action they took was effective correct which is a different question apparently from whether or not they had noticed that there was harassed mit and all this other misbehavior but that fellow students b ecause i think they had notice but what would what would you have the school do that they didn't do in this case what should they have done there's a there's a litany of standards that are set forth by the office over rights and they're basically procedural due process protection for parents they get notice of their rights they get noticed out of the investigation they have a right to get a report innocent or climate standards never got any  investigatory porch they have a right to know who the title nine coordinator she never got that they have a right to be able to know they can file a grievance with the school board she never got that right they have a right to know that they can file a complaint with the office of civil rights she never got those rights so it's a procedural rights that we those just one way that the district could handle i think the answer is both they're both binding but it is one way meaning it's not the only way and certainly they don't have to follow that to be able to satisfy other things or they have to follow that a b c office of civil rights directives that the school district was on notice to so so i think and then the important thing is that they're also incorporated into the school district's own policies and procedures which they you know proudly present  so what is it the school should have done very very good question i was impressed but a recent case kelly versus allen ice t i think fact that before you or you were on the panel judge all right and one of the things that the school district did there for that young man who was being bullied and harassed among many things but what impressed me the most was that they referred him to the fellowship of christian athletes to be able to be part of the group in the team in other words they did something to incorporate him to a group to kind of separate his isolation and make him part of the whole they also did sort of have the fellowship of christian actually yes at that school at that particular that particular case you asked me what i think the school did that was good in other words that you can imagine it could be some schools and some parents who may have a problem with being referred to the fellowship of christian act like you can envision today could you is i mean everybody has lots all right lots of things that's why we're all here all right but it was a public to have an option yeah the social skills group in other words they understood that he was having problems relating to his environment and they referred him to a social skills group now one of the things also that's important in the deliberate and different review of kids like my client is the let the literature absolutely reflect that because these kids have social skills problems when they're bullied and harassed they're more apt to get in trouble for defending themselves using using the athletic viewpoint to get the other guy that commits to fall first gets away with and when get penalized by the referee well that's what happened to my client he missed all the time for as you allege him fighting back after somebody did something exactly right and what's interesting in the school districts own training programs and they list elements of things that you're supposed to be careful about and look for in a kid that's being bullied harasses guess what they fight back and they're the ones that get in trouble so the school district to do anything to address that issue the answer is no they didn't do something what is your best case for not doing the right things are not doing and nothing is deliberate in deference as opposed to but i think that the case i just cited the kelly case the federal case they talked about different things that the school district should do i mean the real issue is you're on implicit in your question that who makes at the station that's who we get to the issue of controversy is told in other words we understand and the magistrate believe that the school district did enough fine of course we don't think they did but that's a fact question and that back question should and probably before you again is it's the only case that's going to trial in a school based injury in texas and the fifth circuit and maybe in the country only case what does that tell us that tells us that cases it's tell us what the supreme court said and tell them that cases district courts are misusing using too much summary proceedings here there's a question of material question of fact about whether the school district interventions were effective they provided something granted they investigated true they did some punishment they provide psychological services to the child no to their private social skills train what you're listing these is examples of where they were not effective really and if that's a label you think is appropriate seems to me that the case law says we're not looking into effect to dance we're looking at deliberate indifference you may be to stop the child from being bullied and harassed there's no more sexual assault but they don't fix the effects of the harassment which we have alleged you know complaint and in order brief as well so i think that's often what why they were deliberately indifferent because they did not affect any of the remedies they could have to deal with the abuse and harassment child experience not just stopping it but remedying its effects thank other word he would use was failure to remedy that answers the case that answers the question that disposes of this case first of all we've got to start on the davis line of cases student on student harassment first of all you start there and you say that standard is very difficult to meet in the best of cases it's just very difficult to meet that's the law then you go to we have summary judgment evidence and it was applied properly the proper standard was applied and then there was no objections now we have the plain evidence review the plane air rules again very difficult standard to overturn the district court  thirteen incidents reported to the school and to which responses were done and then there's a whole day by day set of facts in which he was being harassed there is in the briefing he was mention the day that he was daily taken some know down to some placement of office or whatever what about that is the case for deal with that it does seem to me that we are looking at somebody's judgment now there is some additional record that  problems at the school the incidents in school are much more than these thirteen how do we deal with that under the case law as well as school was written and if if the school was fully aware of some incident that principal system principal who ever saw but he didn't then come in and report how does that fit into the case for just the way that it fits in this first of all you go down to the ground or level and you go to the depositions and you go what was we found out we found out through the deposition process of ok as i took his deposition i took his mothers and his grandfathers of the three people who were involved and through those three depositions we determined that there were only thirteen reported incidents so then they we cross a cross examined each one of those individuals including k s and in that process got him to admit that other than those thirteen there were no the report nothing else was reported to anyone at the school district that was the way we make the distinction between these statements that chaos makes and later in the declaration after his deposition was taken he makes a declaration that was happening every day these global assertions of fact saying it was happening every day that's the way we distinguish what you're saying the thirteen were just those he reported principle somebody else are you saying there is no testimony to support that there was a much wider set of events than those thirteen there was testimony in a declaration filed after the deposition after we'd already cross examined k s he says he gives a declaration which we objected to the magistrate said he's going to let it  consider it so yes there was there was testimony on that point but the real point is to say not only was it going on if you accept that as a fact issue the question is but for him to say just generally everyone knew or this was happening every day what he said this was happening over here he doesn't do it doesn't tie it to any individual who knew and then didn't do anything a response but also he doesn't tie it to gender or gender stereotyping as well there's no there's nothing tied to that was the principal deposed because in some way evidence from that person teachers i mean was there any effort circular by the plaintiff to generate evidence that this was more widely known than these thirteen as i recall there were there was when mccormack was deposed i think there were only four depositions i took three i took them that the student the mother and the grandfather those are the three who were involved with the school had interaction with the school i believe mr circular to mr mccormick step solution but other than that i don't think miss mccormick i believe will correct me if i'm wrong i think that was i was one of the administrators i don't remember exactly at that school that yes yes so she and she testified and then we also have affidavits from the individuals that we've submitted into evidence and summary judgment they were available for deficit not opposed the way we have that issue about deliberate indifference i think that is absolutely key so we've got the davis standard we've got the plane air standard and now we've got the deliberate indifferen standard and what you've got is a pattern of responses and when you say well when mr secures as well you know there were a lot of situations here he kept he was the basketball analogy of somebody and retaliation get it well what we don't know what the this court should not do is to second guess disciplinary decisions of a school district such that when we go in we drill down we explain what we were doing in this particular instance some of those incidents like the bus incident we disciplined the other students we didn't discipline him he was harassed on the school bus and we took action against the students who bothered him there were other instances where it was determined by the administration was that he was the initiator that he was the one who was doing the appropriate conduct whether at the pep rally using foul language or whether instituting some kind of it actually get someone that was drilled down by the administrators to look at it and say what happened here and they determine in some circumstances that k s was at fault now to do then step back and ignore those actual facts and and they are not binding on the davis standard the supreme court set the standard o c r doesn't set the standard what o c r can do and you have to understand there are two remedies there are two remedies and in this kind of area one is to pull funding and the other is to have it applied right a cause of action which davis says if o c r if the federal government wants to pull our funding it can use those best practices as an argument to do so but it but it's not appropriate to use those quote best practices import them over and make them a replacement for the deliberate indifference tried there in circuits that have said it's deliberate indifference not to try a different strategy if the strategy you're using is not working with the kid and he's still getting harassed i don't want to be flippant in my response i think there may be something of the night circuit who knows but with i'm not aware of where i'm not aware of any  say to the contrary yes absolutely absolutely yes it's a circus said that repeatedly ok i think i have a factual question yes is it true that the record says that the psychologist helper person was calling the school in trying to suggest trying to talk to the principal of the system principal and was pushed off so that he couldn't report things or give suggestions for how to help him that is not correct in the brief and so i was not i was searching for the record for it you're talking about any wally the record reflects that there were calls made from any wally who is a therapist private in private practice and the evidence was that we called her back and she never called us back again so we made an effort and that's in the record that we made efforts to respond to any wally to find out what she had to say and in the way i see the record and the evidence and record was that any wally dropped the ball when we didn't chase her down we didn't you know robust for that because it seems that there is evidence that he had at least suicidal tendencies at some point and had a lot of absences and i would think that under any reasonable standard that that would be some evidence that it had a negative impact and that therefore the court could be clear could be wrong under plain error in its analysis of that particular aspect of the case do you have a comment on that yes i do and that has to do with the the body of law on plane air and if what it says is that this court has the discretion to correct plain errors only if the error is serious seriously part is a wrong analysis well your honor what i would say is the way i do the entire body of of response on that point was we looked at what his grades were we looked at what we were concrete negative effect if he's having to miss school because even if he does gets good grades anyway and he's really smart it's having a negative effect on his educational thing that he's not able to go to school and he's having  anyway well what you have is only the bald assertion conclusory assertion that this situation at school was the cause of my desire to commit suicide that's it there was nothing in the record but what you are what we have here is is that as a child who was being attended to on a regular basis was responded to on a regular basis and the fact that he had this negative experience in his life is not tied to something that the administration did in being deliberately deliberately indifferent to why with three incidents of multiple people grabbing your breast the exact type of gender stereotyping that would be that would be serious and pervasive why why the court that's another area of possible error that the court determined it wasn't pervasive in serious because it's breast grabbing and it's on a male but it's through a gender stereotyping and it's  multiple people grabbing the breast at the same time ok now we have to make sure we're focused on who the gender stereotyping is who is engaged in this alleged gender st brothers it's the people that the other students are saying he's feminine ok but the risk is that the fact that children are teasing each other pitching each other twisting each other that is not the issue the issue is is the gender stereotyping going on in the response by the administration to a report of it so what happened was on the bus there was an incident of the breast well i'm aware of the of the one on the bus there was that one is what i'm there may have been others on the end of there  my assuming there's three the still there is the gender stereotyping issue has to be from a from the school to the student in response to say oh you're a boy therefore they're grabbing your breasts i'm not going to come down as hard as if they grabbed the girls breast felt like that from the magistrate judges report that it's they're saying it's the scored seems to be saying well it's not that serious because it's not the genital and it's just the breast well to me that seemed to be in a proprium assumption that grabbing your breast if you're a male repeatedly is ok but the purpose of it to the extent that that is a gloss that that the match for was putting on it because it's a boy being grabbed by the breast and if it be the girl would come down hard there's no evidence of the record six yes at all there's some argument that's made but zero evidence on that point and that's the gender discrimination or gender stereotyping it's not serious because it's a boy no but it is it had to be but we have to have notice of the severe pervasiveness of it but remember we responded to each one of them and i don't have them all committed to memory the one that was that the one that was most clear was the one on the bus and all the people who are participating in harassing kids on the bus were disciplined that was appropriate action that they admit was appropriate right and that's that goes to deliberate indifference it doesn't go on whether he was subjected to pervasive harassment writing court finds that he wasn't subjected to and that's somewhat questionable and it seems that the easier way to decide this case and it seems that you tend to agree with that is the deliberate in difference well that's right i mean in the effort to represent my client and secure affirmation of the final judgment yes my stronger argument is the deliberate indifference so i'm willing to was a response of the other comment offhand comment about don't go crying to your mama from a from a cut being well anyway that but but i don't think that that perhaps it is perhaps you would you know if you look at it as a whole piece of cloth and there's a woman parts to it but i'm not going to stand here and say that that is a good thing to grab anyone it's you know  but the fact of the matter is on the playgrounds and schools these kind of things happen and all that is really required is to have a response of an appropriate response to them all and if it happens again you respond again but it is only if we were to have not responded at all or said you know what tough grow up it's a tough world out there get used to it that's the deliberate indifference and there was none of that there was none of that in this case with that if there are no other questions i will close just by saying i ask you based on this record affirm that the judgement in favor of northwest ice t thank you for your time just in this issue of the thirteen reports that they did respond to mother's declaration testimony is very very specific when she was questioned about this in deposition and later in decoration stated that idea that there are only thirteen complaints made is absolutely false her testimony is clear she went to the school weekly they got tired of seeing her the principal conkling she reported would like run away you want to talk to her she she testified and her and her decorations that she told the counselor that her son was being groped vice principal mccormick that if this was a girl you wouldn't treat it like this which really subsumes the idea that she obviously made complaints about her son being bullied or harassed and groped physically so the idea that there's no evidence about these other allegations of him being sexually harassed is not true now that goes to the leverage a different issue because i didn't investigate any of those they investigated the ones they want to do the best again and once they want to investigate or all discipline except the first one they're all disciplinary actions against the student so to say that there were medial measures to help him deal with bullying harassment and say those disciplinary action against him beatings now that's my understanding maybe other parts of the record that would show otherwise so i don't want to say but what i am saying is that regardless he became the center of davis of a four month period that the court looked at there too so the four months what did they do yeah they penalize some kids at the beginning that you know which and you asked some cases there's a here in our brief of course a six circuit case was patterson hutchins schools five fifty one f thirty four thirty eight six circuit and vance versus spencer county public schools to thirty one f thirty two fifty three also six circuit and those deals with this remedial issue they specifically say not only the did but his mother stopped it yes and in fact another point that i need to bring up your honor is that while there was some discussion between the school attempting to get in touch with the school counselor and they missed each other fair enough in december the school  school very specifically that he depressed because he's being bullied or harassed and there's no record of any meeting with that the doctor sent a letter saying my kids are being bullied and harassed he's depressed you need to do something there's no record anything happened right then necessarily trying clean everything up at the deposition you know some lawyers do something lawyers like to clean them up in their own declaration at the court admitted yeah right over their objection and i think there's plenty yes