university disciplinary decisions instead a court's role is to ensure that the result right or wrong stems from a fundamentally fair process put otherwise by defendant's own standard the complaint in this matter would be properly dismissed if the court believes that reading it in its entirety and assuming all acts as true the complaint describes a fair process it's inconceivable that that that  repeatedly i guess throughout the three years we'll see technical arguments it's so at the high level this case is about whether not a fan fundamentally fair process occur and where we're at in this stage of litigation the arguments before the court are that are technical in reading disregard several critical or at least i'd like to highlight several critical paragraphs within the complaint that i think address specifically these issues and one of them i mean if you have got six for example states that the university investigators were inherently suspicious of the males on the football team and excuse me excuse me i'm sorry about those oh excuse me  the football players in an e mail right had a increase per pence a day for sexual assault and you know so so that right there is is a fact that's plaid it has sufficient ground around it is this isn't a cursory assertion the background is laid out before we move on and you know it even talks the complaint talks about motivation to deflect criticism from previous claims of sexual harassment again pointing to a basis of of sax in driving the purpose and the outcome of the investigation of counsel the person who wrote that e mail though didn't participate in the subsequent adjudication of the matter does she she did not she did not but what i would highlight there is an up prevailing attitude right so the the complaint my job in the complaint right is to set forth facts that lay a plausible ground that these that discrimination occur and this is one fact within the greater cont which sets forth that plausible basis we we can't you know allege the specific facts at this stage in the litigation which proved definitively but what we can do is is set forth a sufficient basis to say hey there's a real there's a real reason that this litigation should perk up us and it's not just based on an allegation without basis there are very real facts surrounding the the investigation and and what occurred within to merit further investigation further you know further dialogue on this subject  discovery you know many of the arguments that the that the court address are fundamentally factual arguments they're the facts of the case and there's factual assumptions with them that granted it's couched in a legal in a legal argument but it requires a factual determination in its in its very basis so what's the causal connection between this e mail and some adverse event the e mail was as put in the complaint the e mail was written by the direct supervisor all  investigator showing that at least within that department or the e e o c department there was a privilege the attitude of question in whether or not specifically male and we do put in that in the complaint mail football players had an increased propensity for sexual violence and our here to assure that the fair process occurred and if that's a starting basis for the investigation the starting basis is that you know individuals from this particular group are more likely to do something well you know that that fails in the in the basic promise of what should be fair and an impartial process from the from the outset i guess and highlighting this fact i would argue that from the outset that this was that there was was biased there were you know that there were i think there was one incident that i'm aware of there were there was an incident and ultimately those those charges were on substantiated as best i understand and our argument would be that that and i believe it's all in the eye and i should say that the end result of many different investigations within the athletic department led to some oversight by believe it was the department of justice that  ok yes and this kind of goes back to this argument which we saw actually and in respondents pretty which is the argument that discriminate any discrimination that occurred is discriminating against somebody   it is it isn't sufficient to argue that because somebody is the target of an investigation they can also not be a victim of sexual ha investigation can't be targeted to that individual individual because somebody holds a bias and is therefore using the tools available to them to direct something specifically an investigation against against an individual and up up up an accused so to answer your question the facts set forth in the complain don't trust the lad that because these individuals swore the target of an investigation terrible things happened to them that the allegation is that anybody who was and it's in this court it's properly within the federal court system because it's an underlying violation of federal civil rights and you know i've posit to you that  the complaint itself alleges that it's an underlying violation of civil rights specifically sex discrimination through very specific facts which are plat  is not inherently or if it were a title nine violation and then there are many circuits other circuits who have the a variety of responses for one it might be in everybody this could court everybody points out that we've never spoken to them and here you heard doing without getting us to address the one of the most important open issues in this cir specifically whether or not specifically what the standard should be in the circuit for when the federal court steps in an ad and looks and if they disagree with the result the bottom line is that the title nine violation no your honor no i would i would argue that again that the federal court isn't fair to nd guess the decision what they are there to do is to examine whether or not our complaint in particular holding our feet to the fire whether or not our complaint alleges is sufficient sufficient facts to  yes thank you your honor may have to use the court in two thousand and sixteen a university student reported that she had been sexually assaulted by up to a dozen students on the football team while several others stood by lined up and cheered alleged in the complaint the university responded to this report exactly as it should have and as it was obligated to do under federal law it followed the process calos in any student sexual misconduct matter  university is office an equal opportunity and affirmative action investigated it interviewed twenty nine people and reviewed documents text messages and videos a identified twelve students as potentially involved in the  assault following its investigation a issued in eighty page report which found that two of those twelve including the pilot john doe six had not violated the student contract code the ten students found to have by late in the code nine of the ten appellants and this case requested a hearing at the today's hearing they were represented by attorneys who cross examined their accuser they testified on their own habs they called witnesses and they presented evidence the hearing panel found that four of these students have not violated the student conduct code for the six found responsible the panel issued sanctions tailored to the severity of the wrong doing of these sixty three appealed to the university's provost who overturned the finding as to one of them not one sought review with the minnesota court of appeal this thoughtful individualized decision making process the law is the very claims the appellant's assert because disciplinary decisions were based not on race not unsexed but on the evidence presented at each stage of the process of a disciplinary decision that players must allege that he was disciplined because of his race and the opponents point to a specific email as their evidence that they were discriminated against on the basis of sex i'm sorry i said race i mean sex for title nine purposes and they characterize e mail as asserting that male football players had an increased propensity for sexual assault but the reading of the complaint shows that that's a mischaracterization of the e mail and paragraph thirty three of the complaint it's details that a year before the election the assault that underlies this case there was a group sexual misconduct matter involving several players on the football team you know a investigated that allegation as it was obligated to under federal law and found that one student ha violated the student conduct code in connection with that event and the other student said did the student conduct code by obvious skating and fossil find information that's alleged in the complaint following that incident director of the office of equal opportunity and affirmative action and you can see this in paragraph thirty four of the complaint sent an e mail to the athletics department saying there was a concerning pattern of behavior by university football players in other words this e mail followed a specific amount and was fulfilling the universe is obligation under title nine to provide an educational environment free of sexual harassment you know it was following up as it should have  that were there any other incidents of the the one legend one typically doesn't produce super there are no other incidents alleged in the complaint so and that's the document we're with at this point so then why doesn't the e mail sure at least some tendency to prejudge the situation against the male athletes because i think the e mail shows an effort on the part of  a gauge with the athletics department to address this concerning pattern but there is no pattern the e mail speaks for itself it is not appended to the complaint but it does detail more information than simply the one at and certainly i think that a group a sexual harassment at involving multiple players on a football team within one calendar year of another a bat that in itself could give rise to a concerning pattern it doesn't if the university were on a mission to find that male student athletes were had a i think the phrase was increased propensity for sexual assault i think that the conclusion of this disciplinary proceeding might look very different but in fact i did not find that all of the all of the respondents were responsible for violating the student conduct code the independent students actual misconduct hearing panel reached slightly different conclusions and found that several other players were not responsible per violating the student conoco and then the provost found that one of the students who had been found responsible by the panel was not responsible for violating the student conduct cut so look for that wouldn't the correct me if i don't have the facts as i get a little complicated in this case but one of the people who are involved in either creating or receiving e mail involved at least in the preliminary decision to  this suspension i mean i understand your argument maybe that it got cleaned up later on with the provost and others who weren't involved at email but what about just with respect to the suspension of the team meetings there are a couple of different kinds of suspension that are alleged in the complaint and are often conflated in the complaint not one of the accused students was ever experienced a suspension of his student ship until after the disciplinary hearing process reached its ultimate conclusion so until for the one the ones who appealed to the provost that suspension our expulsion was stayed until the very end of the disciplinary process not one student athlete was suspended from the football team and till after this investigation came out and it was not the decision of the author of the e mail to take any action with respect to benching some of the student athletes for a single post season football game the people who are implicated in the e mail were not involved in that decision and the complaint makes clear that that was those were different decision makers so it seems to me you are overlooking the fact of destroying their n protectable interest as well as their quote status the student are you rejecting the seven circuits analysis of the country time they were some were expelled it would it have been accomplished now that's a we're talking we're getting in the due process protectable liberty interest but it seems to me it overlaps the ni night title nine and alston's i see that mark clearly through the due process lens and i appreciate your reason that your honor because i think that no action was taken against these students without notice  opportunity to be hurt which is what is the university's obligation to provide under the due process and no student the only action taken against a student prior to the full st t sexual misconduct some committee hearing was the students were benched for a single football game they were never removed from the team they were never deprived of access to athletics facilities students are bench from football teams for reasons of the right reasons relating to violation of team rules and to the extent each benching raises a due process deprivation issue when no court has found that there is a constitutionally protected right to participate in a single post season football game i think that goes beyond what the university's due process obligations are and certainly implicates qualified immunity for president killer and  notice and therefore due process so it is alleged completely that jane had a spotty recollection of the events of the night when she made her report to police and to eat away so when in it interviewed twenty nine different witnesses at the end of the conclusion of that investigation it found that a certain it made a preliminary finding it's just a report that goes to the office for community standards that those seven thr ten it was more likely than not that they had violated the student conduct code by engaging in sexual harassment by being in it and in the apartment where the assault happened at that point they received full notice of the charges against them they had a full opportunity to be heard at a hearing where they were represented by counsel so they also had the same opportunity through the interview process as does any individual who's interviewed by the office of the equal opportunity in affirmative action to be represented by counsel to be represented by an advisor and to have that person with them throughout the where that notice is located in terms of the  they had noticed full notice of the allegations and they had an eighty page report there's no question that they had full notice of the allegations against them before they went to that hearing and an opportunity to be fully heard wasn't there some preliminary discipline instant prior to the full hearing the to the extent it can be characterized as discipline the only discipline alleged in the complaint it was taken against them is that they were benched for the single post season football game there's also an allegation that the university restricted all of the student athletes ability to register for classes and to obtain their transcripts but there's no allegation that any one of them ever attempted to register for classes or obtain their transcript so i don't know that that can be a constitutionally protected operation for the proposition that requesting a hearing constitutes protected conduct under title nine for retaliation purposes the court in jackson vs birmingham a four person board of education i'm sorry characterize that protection  retaliation against individuals because they complain of sex discrimination and requesting a hearing that is provided under the due process protections of the university process does not constitute  protected conduct for the purposes of retaliation cause of action situated persons who were treated more favorably than they were and finally the appellants have no not allege that the university consented to be seated in this court for state law claims and that's waving at sovereign immunity i thank you one thing that i really want to highlight in this process is that there is no dispute here there's no allegation in the complaint that the university doesn't have robots policies and procedures so at at a high level view it looks as if the university has a very robust process in place and there's no there's no question of that but that out of the what's alleged in the complaint is not a lack of process not a oh excuse me a lack of perceived years but it is a lack of of integrity in the execution of those procedures for example there's an easy page report so by any by any description a very detailed report of what happened or what is alleged to have happened but report sitting here and it never mentions this fact that alone and those allegations alone in the complaint should be a sufficient basis to call into question the investigation which occur beyond that i mean there are caught it wasn't just that the motivation behind what happened was it was based in a violation of civil rights sorry federal civil rights courts as well as the i believe it's circuit as is said the allegation of like that dear colleague letter produced by the previous administration is not that alone is not a sufficient basis to show gender bias but that letter in the contacts of also the e mail in the context of also an eighty page report which systematically excludes any mention of any facts that would be exculpatory in combination with the fact that the alleged victim ines is it as admitted to that sexual interactions with somebody that was under age and that went on investigated on mentioned all together all of that would gather show us that there was a very real there is a very there is a factual basis to a lad that there was sexual discrimination here and you know