which would be you give me some examples ok so for example i believe in one there were only one or two witnesses other than the plaintiffs and the respondent when i interviewed in this case we had the complaint th doe and the reason that they provided was they were they had questions about you know the reliability of interviewing john those friends so they had these concerns about john doe but they didn't have any similar concerns about general similar complainant so for example the complainant made a variety of different statements to her witnesses the factual distinctions none of these distinctions were ever actually reckoned with by the investigators they sort of put the stevenson there and then just conclude that jane those come claims were completely corroborated the reality is the only thing that was corroborated which she claimed after the fact that it was not consensual but the factual allegations of what she told the witnesses was all over the map and specifically the one witness that the investigators claimed was the most important witness here who went by the initials g h he directly contradicted again rose  factual retelling of that then what she told the investigators the only thing that they had in common with the conclusion that it was not consensual and the investigators just sort of breezed over that and said oh it's totally corroborated because at the end they both concluded that it was an assault but the factual allegation were completely different and so you know respectfully there's a lot more air and a lot more meat in the record that shows that there was just and that was it wasn't anti male eyes responded i assume that they have some sympathy for the accuser over the of the accused and that's not covered  title line how do we how do we get around that you know now i'm glad that you brought that up because i actually want to get to that so i do want to talk about that the pro complaining versus you know profi male sort of their court seems so address it at page fourteen and twenty one of his decision so that it seems that we're kind of all on the same page that a bias was indicated by the facts but then the defendants and the just the court to think luzhin that it's tricky nature of making that distinction and fighting back to the university of colorado case as well so my st argument would be that by making that determination about what motivated the bias the district court improperly bias i don't think that it's necessarily the court's position to determine and specifically when the bias happens to also break down along gender lines i think that it should be up to a jury to decide whether that bias in fact was based on a not protected trait or protected trait which is really not much of a distinction you know in actuality don't and one doesn't know one take it into trouble larry because the footnote eighteen which is the big one runs through all sorts of the same sorts of things that you're talking about as potential bias in the investigation and no jury in that case correct i think one key difference again between go on in this case is in the interim the united states department of education has imposed the final regulations regarding title mind and the new title nine six point four five the eight and i understand that the regulation you know are are not necessarily retroactive but pertaining to compliance with title nine and i think that they make clear the department of education view on whether we you know and that respondent not in time male distinction is still you know pedagogically viable and i think that the answer we know now is the senate every it's not and i think that's a really key difference between its case and that one is that in between these two cases we have these new regulations making it very clear that the department of education used a program planted by the violative of title mind and i think that that's really important here and i have a rd factor so even if we think that it might not be a jury question that's what motivated by it even if we think that generally speaking the pro complainant not pro female the sanction is still viable we still have an issue in this specific case you can hear that be enforcement statistics during the relevant time period make it clear that do you would not uniformally pro complainant or progress on them but specifically that it shows to formal procedures exclusively on behalf of female component and that you want to formally fail to pursue formal investigations of sexual misconduct complaint that were brought by now complainants uniformly twenty one dollars complaints not a single cases were treated differently i think that it's enough to raise the inferring and when you combine it with all of the other factors in the case i think it pushes you over into the possible and frank that gets that pa the fault who filed the complaint in this case we're not talking about who painted the you and made a complaint we're talking about the you decision to pursue those simply and the decision to pursue  directly on gender lines and i think that creates a strong convention and you know i would like to point out that the district court in this case specifically said if there was evidence that female complainants were treated  more preferably than i'm sorry if there was evidence that female respondents were treated more preferably than male respondents that would imply a gender bias and the specifics here show exactly that there were five total complaints that were made against the male response and four of them which were brought my nails were summarily given word the only one that was formally pursued was the one that had a female complainant and that case the respondent was given to deferred suspension whereas a male student would sound responsible for the same violation in the same time period was given a full active suspension that we have it for and what you did did you present a particular example to the judge bramber oh we of the complainants so we don't have pickets petitions angry letters to the editor and we all keep our jobs for another year that may be a terrible motivation and it may lead to sloppy investigations and as you point out the g h figures prominently in this one but that's not within title nine isn't that for another remedy a state  mom you know be a pretty good start to giving over summary judgment under the hypothetical where where we're talking about persons of those particular race we're not talking about impact because now we're talking about one case has has clearly held that classification as a respondent is not classification based on gender it is gender neutral because more men and women can be their brief there are about one hundred dollars complaints filed by women that were not moved forward they were not investigated and there are many reasons for for those decisions including the fact that many complain chose not to go forward so as not to proceed and also including the fact that there were alternatives that the ultimate resolution such as the respondent in this area to transfer to another school so these are all no witnesses well what makes them in a probe because they didn't know there was support persons who were involved in the process of october privy to all the you know to the to the investigation that was going on  the investigators did at that point in time in the timeline is important here because at the time the request was made for additional interviews the investigators had already been thirteen people had already  so we all agree that we're here a grant of summary  there's actually quite a few other cases that double plays area over the last couple years and the th and th circuit i think of like cases go forward to trial you know they all have their different facts but you know i think in at least one of them you know kind of a one sided investigation was a factor in another i think it might have been the department of education's guidance letter you know so that it's a mix of different cases  position of having to play judge and jury on matters to which there is probably never going to be absolute certainty we will never know the absolute truth so all the school can do all the you can do in this case i argument that there was no showing of pretext and that the same up to xander there is given the conclusion that how those no evidence of gender discrimination it necessarily means also that the female was from responsible for nothing sensual touching but if the male was found sponsible for not consensual touching and not consensual kissing this is not an apples to apples comparison violation was identical and do you discuss there's that way that certain violations require certain sanctions and specifically i think they made the argument here that you know nonconsensual penetration always needs a  important point to make a start the training materials that appeared to show a gender bias again there's the statement that there was quote no evidence on the record as to who created it the document itself is a me and in in the evidence i