[00:00:00] Speaker 02: Stage number 23 to 1712, Jabari Stafford, a balance, versus George Washington University. [00:00:07] Speaker 00: Ms. [00:00:07] Speaker 00: Knapp for the balance, Mr. Schwartz for the appellate. [00:00:12] Speaker 00: May it please the court, Jabari Stafford's hostile environment claims are timely because a three-year statute of limitations applies to Title VI claims brought in the District of Columbia. [00:00:22] Speaker 00: When a federal civil rights statute does not include a limitations period, courts borrow from the most appropriate state statute [00:00:30] Speaker 00: This borrowing inquiry must consider both the substantive and procedural characteristics of the relevant federal and state laws, as well as federal interests in predictability, simplicity, and minimizing litigation. [00:00:45] Speaker 00: We know that the procedural comparison is critical from the Supreme Court's decision in Burnett and this court's decision in Banks, and procedurally the DCHRA's private cause of action has little in common with Title VI's. [00:00:58] Speaker 00: even though those laws include a private cause of action aimed at eliminating discrimination. [00:01:04] Speaker 00: And that's because when the D.C. [00:01:05] Speaker 00: Council set a one-year statute of limitations for the D.C.HRA's private cause of action, it emphasized efficiency concerns that often characterize administrative remedials. [00:01:16] Speaker 06: How do you know that? [00:01:17] Speaker 06: Is there legislative history that supports that? [00:01:20] Speaker 00: There is legislative, there's legislative history that supports that, that we rely on in our reply brief. [00:01:27] Speaker 00: But we also, we don't even need the legislative history here because it's in the text of the DCHRA provision adding the statute of limitations that there's a tolling provision that says that filing an administrative complaint tolls the judicial limitations period. [00:01:46] Speaker 00: So a DCHRA plaintiff can add years to the time they have to prepare for a lawsuit and to accomplish all of the tasks that the Supreme Court in Burnett describes as involved in remedying injuries in court simply by filing this form complaint with the DC Office of Human Rights. [00:02:04] Speaker 06: Is there anything, I know under Title VI, individuals who [00:02:11] Speaker 06: who believe they're discriminated against in federally funded programs. [00:02:15] Speaker 06: That's what Title VI is all about. [00:02:17] Speaker 06: They can file a complaint with the Department of Education, right? [00:02:21] Speaker 06: Are there any cases that talk about whether the statute of limitations is told for that period of time? [00:02:27] Speaker 00: The statute of limitations is not told when an individual files a complaint with OCR. [00:02:34] Speaker 06: Is there a case that says that? [00:02:35] Speaker 00: There's not a case that I'm aware of that talks about a lack of tolling, but we know, for example, from Cannon and from Sandoval that the administrative remedies are entirely distinct. [00:02:47] Speaker 00: from the private cause of action here. [00:02:49] Speaker 00: And so for example, Justice Scalia talks about in Sandoval how the administrative remedies are both twice removed from the individual who is actually seeking relief through the private cause of action. [00:03:02] Speaker 00: And GW makes this point for Stafford when it argues that he could have filed a complaint with OCR, which in turn could have sought to terminate funding to the men's tennis team. [00:03:13] Speaker 00: But that would have been no help to my client who wanted the benefit [00:03:17] Speaker 00: of playing on GW's tennis team without daily racial harassment and humiliation. [00:03:21] Speaker 00: And so turning to the substantive comparison between DCHRA and Title VI, the substantive comparison doesn't make the DCHRA an appropriate analog in light of the procedural mismatch. [00:03:37] Speaker 00: And in any case, distilling the essence of a Title VI claim reveals that it is best characterized as a personal injury action [00:03:45] Speaker 00: And that's because the Supreme Court has repeatedly explained that invidious discrimination is a fundamental injury to personal rights. [00:03:52] Speaker 00: And Wilson and Goodman and Owens also emphasize these federal interests in uniformity, certainty, and the minimization of unnecessary litigation, all of which support the simple approach of choosing the personal injury statute of limitations that the parties here initially agreed applied to Title VI claims. [00:04:15] Speaker 00: It makes sense why courts have repeatedly borrowed from personal injury limitations periods for anti-discrimination statutes, concluding that it's unlikely that the limitation period for personal injury actions would be inconsistent with the remedial goals and policies of federal civil rights statutes. [00:04:36] Speaker 06: Is your point about being inconsistency that it's inconsistent? [00:04:43] Speaker 06: there's no administrative remedy under Title VI. [00:04:48] Speaker 06: Is that what's inconsistent? [00:04:49] Speaker 00: It's inconsistent that there's no administrative remedy, but what's more important is that there's no tolling. [00:04:55] Speaker 00: Because the D.C. [00:04:56] Speaker 00: Council, when it was setting a one-year statute of limitations for the D.C. [00:05:00] Speaker 00: HRA's private cause of action, was doing so at the same time that it was setting this tolling provision in place, which would mean that an individual would have much more time to accomplish the tasks that Burnett lays out [00:05:13] Speaker 00: as involved in filing a complaint in court. [00:05:16] Speaker 00: So, for example, Burnett explains that when an individual is not seeking to address discrimination through administrative remedies, the person must identify that they suffered a legally cognizable injury, search for, retain, and figure out how to pay for counsel or, as in this case initially, prepare to proceed pro se, conduct enough investigation to draft pleadings that meet the requirements of the federal rules, [00:05:40] Speaker 00: establish the amount of damages, prepare legal documents, pay a substantial filing. [00:05:46] Speaker 00: And this list in Burnett goes on. [00:05:47] Speaker 00: And when the D.C. [00:05:49] Speaker 00: Council set the one-year statute of limitations for the D.C. [00:05:52] Speaker 00: HRA, it knew that someone would have likely far longer than one year to accomplish those tasks because they simply needed to file a form complaint with the D.C. [00:06:02] Speaker 00: Office of Human Rights to stop the clock on the statute of limitations for their private cause of action. [00:06:08] Speaker 00: Now here, Stafford's student on student harassment claim is also timely because he filed suit within a year of experiencing a hostile educational environment that GW allowed to fester through deliberative difference until January 2018 when my client left the school and he filed suit within one year in November 2018. [00:06:30] Speaker 00: Now hostile environment claims are different in kind than claims about discrete discrimination, which grew on the day [00:06:38] Speaker 00: that the discriminatory act occurs. [00:06:40] Speaker 00: For a hostile environment claim, all instances of harassment contribute to the discrimination claim, so the clock does not start on the claim when the hostile environment is ongoing. [00:06:52] Speaker 00: And so the clock did not start on the cause of action on which my client filed suit until he was no longer experiencing the harassment, and that was after January 2018. [00:07:01] Speaker 05: How does a continuing violation factor into your analysis? [00:07:06] Speaker 00: This is what I'm referring to now, that under Morgan, because my client experienced harassment through January 2018, the clock did not start on the statute of limitations until then. [00:07:19] Speaker 00: So even if this court rules that a one-year statute of limitations applied, his student on student harassment claim is still timely. [00:07:28] Speaker 00: And here, there is no dispute that the environment, which GW concedes constituted severe pervasive and objectively offensive harassment. [00:07:36] Speaker 00: It did not change from year to year. [00:07:38] Speaker 00: The types of acts were the same, constant use of racial epithets, including the N-word, porch monkey and ape. [00:07:45] Speaker 00: This is JA3 at 880 and JA2 at 599. [00:07:51] Speaker 00: and racially fueled bots, this is JA3 at 936, and the harassers were the same. [00:07:56] Speaker 00: So although they added new teammates to their ranks, they were always led by team captain CR. [00:08:03] Speaker 00: And there was no intervening act that can be attributed to the university that even attempted to change the atmosphere. [00:08:09] Speaker 00: So this means that the harassment was ongoing within the year that Stafford filed suit, and it's attributable to GW's ongoing inaction, and Stafford's claim is timely filed [00:08:19] Speaker 00: Now GW's argument that I just had a question. [00:08:24] Speaker 02: I mean, so the district court here had an alternative ruling. [00:08:27] Speaker 02: I said the one year statute of limitations applied, but also did an analysis if a three year statute of limitations were to apply. [00:08:35] Speaker 02: I mean, in your view, if we were to agree with you that there was a three year statute of limitations, then what would be the appropriate [00:08:42] Speaker 02: this position here. [00:08:43] Speaker 02: Would it be to remand to the district court? [00:08:45] Speaker 00: Yes, it would be to remand for further proceedings and our assumption would be that those further proceedings would be trial because the court has already explained how it would rule on the merits here. [00:08:56] Speaker 00: That being said, it's our view that our client's teacher on student harassment claim is also would also he'd also be entitled to bring that to trial because here there was notice to the [00:09:12] Speaker 00: and deliberate indifference to that teacher on student harassment claim. [00:09:18] Speaker 05: Will we need to make a ruling about continuing violation? [00:09:21] Speaker 00: Not under the circumstances that a three-year statute of limitations applied, but in any case, again here, the harassment continued until January 2018. [00:09:30] Speaker 00: My client filed a suit within a year of that time. [00:09:33] Speaker 00: And also to be clear, the deliberate indifference was also continuing through that time because the notice that GW had all the way going back to my client's freshman year was noticed at the same hostile environment. [00:09:48] Speaker 00: And here, deliberate indifference, we have [00:09:51] Speaker 00: quintessential deliberative difference, and that is a failure to act. [00:09:54] Speaker 00: And so that failure to act didn't occur on any particular day. [00:09:58] Speaker 00: This series of omissions continued through January 2018, and my client felt it was in a year. [00:10:06] Speaker 05: Do you understand GW's claim to not really challenge the harassment? [00:10:12] Speaker 00: That's right. [00:10:13] Speaker 05: We're here really on which statute of limitations. [00:10:16] Speaker 00: Which statute of limitations applies and whether or not you have to act. [00:10:22] Speaker 01: Any further questions? [00:10:25] Speaker 00: Thank you. [00:10:32] Speaker 01: Good morning, Your Honors. [00:10:33] Speaker 03: May I please support Jason Schwartz on behalf of George Washington University. [00:10:38] Speaker 03: Let me address the statute of limitations issue and the points that my colleague made. [00:10:44] Speaker 03: This analysis starts with Del Castello, where the Supreme Court has commanded to test his two parts. [00:10:51] Speaker 04: Before you get to your rationale, tell me about what was allegedly an agreement on those statute of limitations initially. [00:11:00] Speaker 03: In GW's motion to dismiss, we assumed that there was a three-year statute of limitations that applied. [00:11:06] Speaker 03: Judge Cooper considered the full three years worth of allegations. [00:11:09] Speaker 03: He dismissed certain claims, did not dismiss others. [00:11:12] Speaker 03: In his ruling on the motion to dismiss, he pointed out that in his view, and I'll explain why that's correct, it was a one year statute of limitations. [00:11:20] Speaker 03: So under rule 12, when we answered the complaint, we asserted the one year statute of limitations. [00:11:25] Speaker 03: It's not possible to waive that statute of limitations argument prior to filing an answer as Judge Cooper found. [00:11:32] Speaker 03: That's where that comes from. [00:11:35] Speaker 06: The inquiry... Before you get into the [00:11:38] Speaker 06: I see where you're going on your argument about the statute of limitations. [00:11:41] Speaker 06: I read your brief, but let me just ask you kind of a big picture question about this. [00:11:45] Speaker 06: I mean, we've got, we've got these, um, we've got three Supreme court cases here, Wilson, Goodman and Owen, and they involve 1983 and 1981 to two civil rights statutes. [00:12:00] Speaker 06: And the court says, look, these are these civil rights laws. [00:12:05] Speaker 06: You know, that these civil rights laws are all, for all of them, the proper statute of limitations is a personal injury statute of limitations. [00:12:20] Speaker 06: These are all personal injuries. [00:12:23] Speaker 06: And Title VI is exactly the same. [00:12:27] Speaker 06: I don't see how, given those cases and the rulings for 1981 and 1983, [00:12:33] Speaker 06: How we could possibly distinguish title six. [00:12:35] Speaker 03: Understood, Your Honor. [00:12:36] Speaker 03: I think there's material. [00:12:37] Speaker 06: My big question. [00:12:39] Speaker 03: Yeah, I think there's a material which is there. [00:12:42] Speaker 03: And that is those cases are reconstruction era civil rights statute. [00:12:47] Speaker 03: where both this court and banks and the Supreme Court in the cases you mentioned have said essentially there is no perfect state law analog because the whole point of those statutes is to capture a wide variety of conduct and we need to be able to predict in advance what statute the conduct could be anything from excluding jurors on the basis of their race. [00:13:07] Speaker 03: is saying you can't bring a case in court on the basis of your race to providing negligent medical care to a prisoner, all sorts of conduct. [00:13:16] Speaker 03: Sounds like Title VI. [00:13:18] Speaker 03: Respectfully, Your Honor, it's not. [00:13:20] Speaker 03: Title VI is much more targeted. [00:13:22] Speaker 03: It's a spending clause statute on discrimination. [00:13:24] Speaker 06: Right, it is. [00:13:25] Speaker 06: But the type of discrimination that's captured under that is extremely broad. [00:13:31] Speaker 06: It is in the courts have said that Title VI is a broad civil rights statute. [00:13:37] Speaker 03: It is, but not in the sense of the Reconstruction Statute. [00:13:42] Speaker 06: I don't know of any, I'm sorry, but it certainly can't be that 1981 and 83 are Reconstruction era and this one isn't. [00:13:50] Speaker 06: This was passed in 1964. [00:13:55] Speaker 03: Absolutely, Your Honor, and the Supreme Court explained that the reconstruction area statutes are designed specifically to override state power. [00:14:03] Speaker 03: Therefore, there is no state statute limitation that is easily analogous. [00:14:08] Speaker 03: Instead, we jump to the default personal injury that sweeps broadly. [00:14:13] Speaker 03: Here, when you look at any of the spending clause statutes, Title VI, Title IX, or the Rehabilitation Act, [00:14:22] Speaker 03: The trend in the cases is to say these are different, especially here in D.C., where you have a broad D.C. [00:14:28] Speaker 03: Human Rights Act that covers hostile educational environment. [00:14:31] Speaker 03: Hostile educational environment is much more like hostile educational environment than it is a car accident. [00:14:37] Speaker 03: The statute of limitations that Mr. Stafford proposes. [00:14:40] Speaker 03: And so if you look at the cases of D.C. [00:14:42] Speaker 03: Court of Appeals, and Jayola has said that, [00:14:45] Speaker 03: 4 judges of the district court, Judge Nichols, Judge Cooper, Judge Boasberg, and Judge Kohler-Cattelli have said that. [00:14:51] Speaker 03: The Court of Appeals cases circuit courts outside the DC Circuit that have looked at this question, where they have looked at [00:15:00] Speaker 03: uh spending clause statutes designed to capture discrimination and state law human rights statutes that capture the same kinds of discrimination there are three cases that go our way all from the fourth circuit walski mccullough and more there are those title six cases um walski is a rehabilitation act case mccullough is rehabilitation act and more is title nine [00:15:26] Speaker 03: So all parallel spending clause statutes. [00:15:30] Speaker 02: My understanding is that all the circuits to decide this issue under Title VI have said [00:15:36] Speaker 02: that you should take a state personal injury statute. [00:15:39] Speaker 02: Is that? [00:15:40] Speaker 03: Not quite, Your Honor. [00:15:41] Speaker 03: So there's only one circuit court of appeals case that has compared Title VI to a state human rights statute, and that is Egerdahl. [00:15:51] Speaker 03: The other cases are just looking at personal injury versus breach of contract or specific intentional torts versus general catch-all personal injury. [00:16:01] Speaker 03: The only two cases that look at either Title VI or Title IX [00:16:05] Speaker 02: and compare them to a state human rights statute and come out against us are bogart and in that case the court of appeals said aren't they in part not comparing to human rights statutes because of of um you know of wilson and goodman and the supreme court's decision in those cases [00:16:25] Speaker 03: I don't think that's right, Your Honor, because the Supreme Court specifically explained that the reason that those statutes require general personal injury is because they literally have a litany of all different fact patterns, some of which require intent, some of which don't. [00:16:40] Speaker 03: It could be anything from, you know, again, voting to other forms of discrimination and negligent health care. [00:16:47] Speaker 03: There is no way to shoehorn them. [00:16:49] Speaker 03: The only Supreme Court case actually that addresses a state human rights statute [00:16:53] Speaker 03: is the case that addresses the Maryland human rights statute, which at that time did not provide for a private cause of action. [00:17:01] Speaker 03: So it both had this reconstruction era element of much broader than the spending clause statutes, and it didn't have a state analog. [00:17:09] Speaker 03: Here we have a state analog. [00:17:11] Speaker 03: Again, three of the five courts of appeals who have considered this pattern say that our answer is correct. [00:17:18] Speaker 03: And then, if you look specifically at the DC Human Rights Act, which is exactly the inquiry that the Supreme Court has commanded, whatever other state statutes might say is really irrelevant to this, what does DC Human Rights Act say? [00:17:30] Speaker 03: An apple is like an apple, not grapes. [00:17:33] Speaker 03: Right? [00:17:33] Speaker 03: So a claim for hostile educational environment is on all fours with the DC Human Rights Act, hostile educational environment, not a catch all for car accidents. [00:17:43] Speaker 02: So, so this wouldn't ruling for you wouldn't create a totally lopsided circuit split. [00:17:49] Speaker 03: That's correct. [00:17:51] Speaker 02: Very. [00:17:52] Speaker 02: narrowly parsing what these other circuits have done. [00:17:55] Speaker 03: Well, I think actually wouldn't create a circuit split at all because Del Castello has a very clear analysis the Supreme Court has told us. [00:18:02] Speaker 03: The Supreme Court cases do not direct the outcome here. [00:18:06] Speaker 03: Five cases, four judges in this circuit district court judges have concluded that these spending clause statutes are different. [00:18:14] Speaker 03: The DC Court of Appeals has concluded that the DC Human Rights Act is directly on point [00:18:19] Speaker 03: If you look at the reply brief page 8, the plaintiff concedes that Title 6 and the DC Human Rights Act address similar substantive concerns. [00:18:31] Speaker 03: So the only way they get to a different answer is by flipping the analysis upside down and saying, well, the process is different. [00:18:37] Speaker 03: That too is actually not true. [00:18:39] Speaker 03: Both Title VI and the D.C. [00:18:41] Speaker 03: Human Rights Act provide the claimant with a choice. [00:18:45] Speaker 03: You can pursue the administrative remedy or you can go to court. [00:18:49] Speaker 03: You don't have to exhaust the administrative remedy. [00:18:52] Speaker 06: But if you pursue what counsel was saying this morning, or under the D.C. [00:18:57] Speaker 06: Human Rights Law, if you do the administrative route, the statute of limitations is total. [00:19:03] Speaker 03: That is correct, Your Honor. [00:19:05] Speaker 06: Is that true for Title VI? [00:19:06] Speaker 03: I don't know the answer to that or does not address it. [00:19:09] Speaker 06: I think the answer is no. [00:19:11] Speaker 06: Your Honor, does that change your view about this? [00:19:14] Speaker 03: It doesn't. [00:19:14] Speaker 03: And the reason that that is not dispositive, there are a couple of reasons. [00:19:17] Speaker 03: Number one, as Your Honor may be aware, the administrative filing period with the Office for Civil Rights is 180 days. [00:19:24] Speaker 03: The statute of limitations we would be borrowing here from the directly on point DC Human Rights Act is one year. [00:19:31] Speaker 03: So a plaintiff would literally get double [00:19:34] Speaker 03: the amount of time if 180 days is sufficient. [00:19:38] Speaker 06: Suppose the agency doesn't finish those OCR doesn't complete the process within the one year period. [00:19:45] Speaker 03: I would imagine that the claimant would have an argument at minimum for equitable tolling in those circumstances, Your Honor. [00:19:52] Speaker 02: It's a pretty risky place to rest your claim on equitable tolling. [00:19:55] Speaker 03: Well, again, I don't think that tolling is dispositive, Your Judge, because if you look at the rule that I am advocating, which is literally the rule of Del Castello, right? [00:20:05] Speaker 03: Look at these two statutes. [00:20:06] Speaker 03: Are their essence the same? [00:20:08] Speaker 03: And if the essence is the same, is there a federal policy that would be defeated? [00:20:12] Speaker 03: Obviously, a federal policy wouldn't be defeated by picking a one-year statute of limitations because, for example, in certain other states, the statute of limitations for personal injury is one year. [00:20:23] Speaker 03: So that can't be an overriding policy choice. [00:20:27] Speaker 03: In fact, in some states, the statute of limitations under the State Human Rights Act would be longer than the default statute of limitations for personal injury claims. [00:20:37] Speaker 03: So it's not an outcome-oriented thing here. [00:20:39] Speaker 03: One year is a reasonable period. [00:20:41] Speaker 03: And in fact, you would ask, well, has the DC Human Rights Act and the DC Council consider this? [00:20:47] Speaker 03: The answer is yes, because subsequent to the DC Court of Appeals decision in Davis, the DC Council amended the Human Rights Act. [00:20:55] Speaker 03: to add a one-year statute of limitations period for actions filed in court. [00:21:00] Speaker 03: So they made that judgment, not just on the basis of administrative process, but as illustrated actually by the facts of this case, when discrimination cases get older, memories fade, evidence disappears, and justice is delayed. [00:21:14] Speaker 06: This is not a pro-claim or pro-claim rule. [00:21:18] Speaker 06: Isn't that true for 1981 or 1983 case also? [00:21:20] Speaker 03: That's certainly true, Your Honor, and as I said, in some states, the statute of limitations for those causes of action would be one year. [00:21:27] Speaker 03: In 1981, there's a little footnote, as I'm sure you're aware, the subsequent to the Civil Rights Act of 1991, a federal statute of limitations was imposed. [00:21:37] Speaker 03: for certain 1981 claims, but I don't think that's relevant to this consideration. [00:21:41] Speaker 06: So in Wilson, I want to ask you another question about Wilson. [00:21:44] Speaker 06: Yes, sir. [00:21:45] Speaker 06: Wilson says that when looking at a question like this, we are to apply the statute of limitations quote, or that quote, that quote fairly serves the interests vindicated by the statute. [00:22:01] Speaker 06: So if we look at that, [00:22:04] Speaker 06: And if we have a choice between a one-year and a three-year statute, wouldn't a three-year statute, isn't it fairly obvious that a three-year statute would much more effectively vindicate, quote here, fairly serve the interest indicated by Title VI by ensuring that victims of discrimination in federally funded programs have a three-year statute of limitations, not a one-year statute of limitations? [00:22:29] Speaker 03: Not at all, Your Honor. [00:22:31] Speaker 03: In fact, first of all, the point of that statement in Wilson, as I understood it, was to say that the full scope of Section 1983 actions, as pointed out in Wilson, could include discrimination in public employment on the basis of the First Amendment, discharge or demotion without procedural due process, mistreatment of school children. [00:22:50] Speaker 03: I mean, wouldn't we? [00:22:51] Speaker 06: Sorry, I know that was. [00:22:53] Speaker 06: But wouldn't we? [00:22:54] Speaker 06: I just knew his statement as Wilson as [00:22:57] Speaker 06: stating the obvious to a court, which is that you interpret a federal statute to accomplish its purposes, consistent with its goals. [00:23:05] Speaker 06: That's what it's saying here. [00:23:07] Speaker 03: Your Honor, I don't disagree, although I think there are two points I would make to that. [00:23:13] Speaker 03: Number one, the point of Wilson was that it is a panoply of actions that don't immediately fit anywhere. [00:23:19] Speaker 06: Just focus on my question about interpreting. [00:23:22] Speaker 06: Yes, Your Honor. [00:23:22] Speaker 06: Forget that I asked you about Wilson. [00:23:24] Speaker 06: When we interpret a federal statute on a question like this, don't we try, one of the things we look at is what is the purpose of the statute? [00:23:34] Speaker 06: I don't disagree with that. [00:23:38] Speaker 06: Wouldn't a one-year statute, as opposed to a three-year statute, limit the effectiveness of Title VI, that is the goals that Congress was trying to achieve with it? [00:23:47] Speaker 06: No, you're forcing by forcing people to file their cases in a more limited period of time. [00:23:53] Speaker 03: Your Honor, I don't accept the premise that longer is better for plaintiffs. [00:23:58] Speaker 03: A remedy for discrimination should be swiftly provided. [00:24:01] Speaker 03: If you look at the sister statute, for example, Title 7, the claim has to be filed with 180 days or 300 in a state with its own parallel state agency. [00:24:11] Speaker 03: And again, if you borrow the statute of limitations for personal injury in some states, that would be one year. [00:24:18] Speaker 03: Or if you look at this court's decision in the case that involved the Education of the Handicapped Act, it's selected as the most appropriate statute under the Dale Costello framework, the D.C. [00:24:30] Speaker 03: statute for appealing administrative orders, which was 30 days, Your Honor. [00:24:34] Speaker 03: So longer is not always better. [00:24:38] Speaker 03: Hold on, I'll give that to you in just one moment, Your Honor. [00:24:41] Speaker 06: Don't tell me I wrote it. [00:24:43] Speaker 06: I'm sorry? [00:24:44] Speaker 06: It's not my opinion, is it? [00:24:47] Speaker 06: No, I'm serious. [00:24:47] Speaker 06: I just don't remember the case. [00:24:49] Speaker 06: What case are you talking about? [00:24:51] Speaker 03: Just one moment, Your Honor. [00:24:53] Speaker 03: I'll get that. [00:24:54] Speaker 06: Okay. [00:25:02] Speaker 01: I apologize. [00:25:03] Speaker 01: I thought I had that at my thing. [00:25:04] Speaker 01: You can send it later. [00:25:05] Speaker 01: Don't worry about it now. [00:25:07] Speaker 06: You can submit it later if you'd like. [00:25:11] Speaker 03: Oh, I'm sorry, Your Honor. [00:25:12] Speaker 03: It's the Spiegler case. [00:25:14] Speaker 03: And there the court chose a 30 day statute limitations as opposed to 3 year general personal injury because petitions for reviews of orders of the school district with respect to the education of disabled children. [00:25:29] Speaker 03: It was in the interest of the statute, both plaintiff and defendant for those to be promptly disposed of. [00:25:36] Speaker 03: i would argue here again it's in the interest of all parties particularly college students or students at a secondary or even primary education that the claim of a hostile environment be dealt with swiftly and resolved so that's in the interest of all parties again i don't think the statute council for plaintiff in this case does not agree with [00:25:58] Speaker 03: I understand that, but this is not a results-oriented rule in each case. [00:26:03] Speaker 03: It's an application of Delta Stella. [00:26:06] Speaker 06: Her argument is that we're not just deciding this case, we're setting a rule for all of our cases under Title VI. [00:26:13] Speaker 06: And her argument is... [00:26:14] Speaker 06: that a three-year statute of limitations more faithfully executes the purposes of Title VI. [00:26:20] Speaker 03: And the only way, first of all, I disagree that it faithfully executes the purposes, and if you look at Davis, the DC Court of Appeals made clear it wasn't just about administrative expediency, that discrimination cases should be dealt with promptly. [00:26:35] Speaker 03: That is a policy goal. [00:26:37] Speaker 03: And again, if you apply the rule of personal injury statute of limitations, it just happens that in D.C., the car accident statute is longer. [00:26:47] Speaker 03: In other states, it could be a year or shorter. [00:26:50] Speaker 03: So if you faithfully apply the rule, as again, with all the spending clause cases, three or five court appeals decisions, Wolski, McCullough, and Moore come out our way. [00:27:00] Speaker 03: Four judges in this district have all come out that way. [00:27:04] Speaker 03: Judges Nichols, Boasberg, [00:27:06] Speaker 03: polar can sell it and hooper it again what the place arrest me to do the place as you do is put the inquiry on its head start with some sort of extra statutory reason as opposed to our apples like apples these statutes are the same. [00:27:23] Speaker 04: And do we need to do anything with the continued violation theory? [00:27:26] Speaker 03: You don't, Your Honor. [00:27:27] Speaker 03: So I think Judge Cooper was clear that it did not apply in this case, but I think you don't even have to get there because Judge Cooper found, notwithstanding what you've heard in sort of a new case presented on appeal, that in accordance with the local rules, [00:27:42] Speaker 03: no acts were presented that took place during the statute of limitations period. [00:27:47] Speaker 03: That's reviewed for abuse of discretion, and it clearly was not an abuse of discretion for him not to permit consideration of those after the fact, not in the rule seven supposed quote unquote facts. [00:28:00] Speaker 02: Thank you. [00:28:01] Speaker 03: Thank you, Your Honor. [00:28:08] Speaker 02: Smith will give you two minutes. [00:28:13] Speaker 00: Thank you. [00:28:14] Speaker 00: I'd just like to address that forfeiture point. [00:28:17] Speaker 00: Nothing has been forfeited on the continuing violation argument. [00:28:23] Speaker 00: GW did not argue below that Stafford had failed to point to acts of harassment that occurred within one year of when he filed suit or within three years of when he filed suit. [00:28:32] Speaker 00: Instead, it argued only that Stafford was required to point to acts that delivered indifference. [00:28:38] Speaker 00: And this makes sense that that was the only argument that GW made in its motion for summary judgment because at the motion to dismiss stage, the district court had rejected GW's argument that it could not consider events outside the limitations period if Stafford pointed to an act of harassment occurring within one year of when they filed suit. [00:29:03] Speaker 00: makes very clear that acts of harassment were occurring through January 2018 and my client filed suit less than one year later. [00:29:11] Speaker 00: So we know, for example, that during Stafford's senior year, the harassment, quote, intensified. [00:29:16] Speaker 00: This is JA3 at 936. [00:29:19] Speaker 00: And he consistently testified that the harassment occurred on an everyday basis and in everyday conversation. [00:29:26] Speaker 00: This is JA3 at 935. [00:29:29] Speaker 00: In any case, the court would not need to reach this issue if it agrees [00:29:33] Speaker 00: with Mr. Stafford that a three-year statute of limitations applies to Title VI claims in the District of Columbia. [00:29:40] Speaker 00: And for all of these reasons, we'd ask that the court reverse and re-apply for their proceedings. [00:29:45] Speaker 00: Thank you. [00:29:46] Speaker 02: Thank you very much. [00:29:47] Speaker 02: The case is submitted.