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Case number 23-7135.

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Jane Doe bonding through her next friend, Julie Doe, and Julie Doe, mother and next friend of Jane Doe, a balance, versus District of Columbia, and equivalent names, individually and as an agent of District of Columbia.

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Ms.

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Murray for the balance, Mr. Phillips for the appellees.

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Good morning.

[00:00:25] Speaker 04:
Good morning, Your Honors.

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May it please the court

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This case is about, this is a Title IX case that has been brought by the appellant Jane Doe in this situation.

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This case as far, there's four counts at issue, I'll just take them one at a time starting with count one, which is her Title IX count for private action.

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This count was dismissed on summary judgment by the district court and we feel that that

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dismissal was erroneous.

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It really turns on the issue here of whether the district's response to Jane's report of a sexual assault was deliberately indifferent.

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And in order to prove deliberate indifference, we have to show that there were facts that could have been construed by a jury as clearly unreasonable

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in light of the known circumstances.

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This test considers the disciplinary authority both available to the school and the potential liability arising from certain forms of disciplinary action.

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It has also been described as examples of where deliberate indifference has been found is described as an official decision not to remedy the violation or the sexual harassment.

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or where there's a combined systemic effect of sexual harassment and the school's response effectively denies the victim's access to a scholastic program activity or school.

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One of the components of deliberate indifference is to show that the school's indifference to it allowed the victim to be either additionally harassed

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or made the victim vulnerable to it.

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This is not necessarily in the case of student and student sexual harassment, which is what we have here, showing that the victim suffered additional harassment from the student, but rather could be the school's deliberate indifference or the school's own actions being interpreted as sexual discrimination or harassment against the student.

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And that is what we believe has occurred here.

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Your argument center on the claims of delay.

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Because.

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The school certainly did respond here quickly within a day or so.

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She was offered transfers.

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Before the next school year, this was at the end of one school year, and before the next school year, she was able to go not just to another school, but to a school of her specific choice, which timeline did not require.

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And and there were measures put in place to offer therapy.

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I think it was like a summer program.

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And so it seems like.

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may not have been executed well, but at the end of the day, the actions were taken, actions were taken that would at a minimum take this out of the deliberate indifference category unless your point is, is it just time delay or I'm unclear given that this isn't an unresponsive district.

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Sure.

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I appreciate that question.

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So it's a two part, I believe this can be dissected into two parts.

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I think

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The first part is what occurs over the summer.

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Of course, this assault occurs on the last day of school.

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I think that's undisputed.

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Once the assault is reported, there is a delay in not necessarily in having the meeting, which Your Honor acknowledges happens the day after.

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But there is a delay in the school taking any further action associated with this.

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Was she not offered a transfer within 48 hours?

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It was discussed.

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She still had to go through and she was actually her mother who went through and was the person who actually made the request to the transfer office.

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None of the administrators did that, Your Honor.

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That was an offer from Dr. Pinder early on that she could go.

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Dr. Pinder discussed that with her.

[00:04:59] Speaker 01:
Okay, discussed it as in.

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This is an option for you or discuss it.

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Well, the way the transfer office works, and this is something we learned through discovery in this case, obviously, is that if there is a sexual assault or even something that's not a sexual assault, a regular assault, a student or an administrator can apply for a victim safety transfer for the student.

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didn't occur on the part of any of the administrators, despite statements to my client's mother that they could go ahead and do that.

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She had to go and be the one to actually make the transfer request.

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And when it was made, it was interpreted as a discretionary transfer by the transfer office.

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But does that matter at the end of the day she got what she wanted?

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I believe it.

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How can that be delivered in difference that it sounds like this is sort of the bureaucratic

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processes and paperwork.

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And there wasn't urgency because it was over the summer.

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So it's a little hard to put that in the, you know, not exemplary category, certainly not best practices category.

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But it's hard to see how that's delivered in difference given how strict that standards.

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Well, so the transfer that they were seeking was a specific safety transfer

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to two specific schools, either school without walls or Wilson High School.

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The victim safety transfer would have allowed her to do that because it was put in funnel through this discretionary transfer as she was given three schools that were just.

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Positive by the transfer office in trying to make the determination the transfer office representative Amanda Milo Howard

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emailed the various administrators who were responsible for investigating this assault, and asked them, essentially, was this, the question's phrased as, was this a valid sexual assault?

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And at the time that that question was posed, the administrators, at least two of them, had viewed the video footage, which it's undisputed shows her being dragged into the bathroom by the boy.

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Had done the interview with Jane so knew her version of events and despite having that evidence indicated to the transfer office only that the police were not prosecuting they never discussed the video they never discuss.

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wasn't the only question posed to them by Mr Howard what did MPD do.

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No, it was, was this a valid sexual assault?

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But then what did MPD do or was there a prosecution?

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I thought he had follow-up questions.

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I mean, he did have follow-up questions about MPD, but the initial question was, was this a valid sexual assault?

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And of course schools have their own ability.

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I just don't know the paperwork question here.

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For victim transfers, do they need the police to say a crime occurred?

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Oh, Mr. Howard actually says that you could have that as one factor, but you could also have had another item that was present here that never made it to the transfer office, which would be the letter of resolution from what was at the time, the district civil rights office, which found that she had been, I think they characterize it as sexual harassment, but she had been sexually harassed and set up those other amelior measures, including the

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the therapy and the summer program that your honor discussed.

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That letter never made it to anybody, the administrators or the transfer office to allow this to take place.

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So my point is all of this taken together in context creates this delay over the summer.

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She ends up being transferred immediately before school starts.

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She has additional anxiety associated with that.

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That's very clear in the record.

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And it's not until

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really, until David Pinder learns.

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But these same actions had happened, but they'd happened within June and were resolved by the end of June.

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Would it still be deliberate indifference?

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So that, you know, but instead of knowing by mid-August that you're going to the daycare.

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I don't think for that set of facts that it would be.

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I think the delay is significant.

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I think the delay is significant.

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And then the other portion of this argument, Your Honor, is that the, and I'm

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see that I'm running out of time and I haven't even gotten to the other three counts here.

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Um, but the other portion of this argument, your honor, is that once she is transferred to Wilson, those administrators are never provided with the letter of resolution.

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They are never provided any information about the fact that she was assaulted.

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She starts to miss school

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in part because she's having these physical.

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Can you help me understand the failure to provide that information?

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Because I can imagine the district being caught in between, because I don't know if it's policy, is it policy to share this information among schools?

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Because I can imagine, because this is in addition to being incredibly traumatic, it also qualifies as sort of medical information.

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which is generally treated quite privately.

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And so I can imagine plenty of people saying, I don't want you to be telling other people about this.

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I want a fresh start at the new school and then getting mad if they had told the school.

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And in fact, there are some claims here of distress caused by people at that school having found out why she was transferred there.

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So how is the failure to tell

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Wilson folks, why she was being transferred there or being allowed to transfer there, deliberate indifference.

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My argument would be, Your Honor, that it could, and I believe this was testified to by David Pinder, although I don't have the citation for Your Honor, but that it would go to at least the top administrators of the school, which would have been at the time, Principal Martin.

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She does not find out about this until- Is that established policy or a discretionary decision?

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I believe that that is established policy to make sure that they know that they have a student who has special needs associated with the finding of sexual assault at another school.

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I believe that that's what David Pinder was saying.

[00:11:24] Speaker 01:
Even if it's private medical information.

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I'm sorry.

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Even if it's private medical information.

[00:11:30] Speaker 04:
Well, it's not necessarily medical information that she needs to attend therapy because of that or that this

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school system was giving her, in effect, permission to do so, which is where we have the issue here.

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They don't have that information.

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She's being marked as absent and unexcused absences.

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There's very negative repercussions that come with that, given the number of absences.

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She's eventually kicked off of her cheerleading team.

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She's placed into the truancy system in DC Superior Court, where she's effectively monitored.

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Um, and it took not one, but two attempts by her family, her herself and her mother to have these absences overturned.

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And eventually the district two years later, there's only 10 of the absences that were overturned.

[00:12:21] Speaker 01:
Yeah, it did.

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It did overturn 10 of them.

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They disputed that.

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Yes, they disputed that much more were related to that.

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And our argument is, um, that Jane's condition at that point had

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snowballed, you know, she's missing other other days for depression related symptoms.

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She testified about all of this.

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So I don't think I think there's an argument here on the part of the the district that these absences are due to James own negligence or other things that are going on in her life.

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There's an attempt by the district to sort of wash their their hands of their part in that leading up to this, including

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Of course, James's comments about her during the meeting, James's attempts to undermine the investigation of the assault afterwards.

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We believe that those things are clear in the record.

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Suppose there was deliberate indifference.

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Can you help me with your theory of causation?

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Because

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you still have to show that the district caused discrimination based on sex.

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And usually in these harassment cases, the harassment is something akin to a hostile work environment.

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It's ongoing.

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And if the district knows about it and deliberately fails to stop it,

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It is fair to say that the district caused the district caused.

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Harassment that continues.

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This is very different.

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This is a. This is a horrible incident, but it's a one off.

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She is salted.

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It's done.

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What's the?

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What's the assault or harassment or discrimination that the district caused?

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in how they deliberately or otherwise responded to this.

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So I think it's the response to the assault.

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How does that cause?

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Well, I think that in and of itself is discrimination by the district in response to reporting the assault.

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So there's the response of the assault.

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And then there's also, of course, the actions that are taken against her

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at Wilson.

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There's two cases that we rely on.

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Williams versus the Board of Regents of the University of Georgia.

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That was also a one-off incident where a student is raped in a dormitory by basketball players at the University of Georgia.

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In that case, the student withdrew from the school the next day, and the 11th Circuit found that the

[00:15:22] Speaker 04:
school's response in failing to discipline the basketball players, failing to do any kind of investigation of it for, I think, a period of about eight months constituted deliberate indifference and was further discrimination given the severity of what had already occurred.

[00:15:44] Speaker 01:
Your point is this wasn't one off and that there was the assault and then there was and then the response by people who were supposed to do wanted to trust that would help and keep her safe.

[00:15:56] Speaker 04:
Correct.

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And to affect certain, you know, certain remedies, right?

[00:16:00] Speaker 01:
My understanding is that just compounded the harm.

[00:16:03] Speaker 01:
And you had expert testimony that obviously emotional trauma from the assault itself.

[00:16:10] Speaker 01:
Correct.

[00:16:10] Speaker 01:
And also, particularly for a child, to learn that the people who are supposed to protect her are, in her view, turned against her.

[00:16:22] Speaker 01:
Absolutely.

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And so that's the sort of second

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harassment.

[00:16:26] Speaker 04:
That's that's the additional harassment that occurs after the report your honor.

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It's not another student's harassment.

[00:16:33] Speaker 02:
What's the 11th Circuit case?

[00:16:35] Speaker 02:
Sorry Williams versus Board of State Regents.

[00:16:40] Speaker 04:
Got it, thanks.

[00:16:41] Speaker 04:
Thank you.

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Any further questions?

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I'm six minutes over my time.

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It's OK.

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So there's not a lot of case law that interprets retaliation in the title nine.

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context.

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I agree with that, Your Honor.

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And the case law does say that for the municipality to be liable, it's only liable for its own conduct, not for the conduct of individual actors within its purview.

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And you agree that that's the same rule with respect to retaliation?

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So we don't need to just look at, for example, Principal James.

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We have to look at the overall response.

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I agree.

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I agree with that, Your Honor.

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I do think James is part of that.

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And there is a case which indicates that the school the highest administrator at the school which forces her at the time is the assault occurs and is reported is an agent for for the district.

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So I do think that her conduct as it relates to the comments that she made in the June 14th meeting and then really her her actual actions taken afterwards.

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I know much has been made of

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She made, despite her comments, she called police.

[00:17:54] Speaker 03:
She... No, I mean, I think that you definitely have a stronger case if we just look at Principal James.

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But I guess my question is the law requires us to look at the overall response, including Pinder and other people who I think responded appropriately.

[00:18:07] Speaker 04:
I think that's true.

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And I do think there are people who responded appropriately.

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But I think as far as the retaliation goes, James's comments can't just be

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looked at as solely comments.

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There were actions that were taken that David Pinder testified about misleading comments to him about what the video showed in particular, which again caused harm to Jane caused delay in the transfer.

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And then when she is transferred, of course, this additional the finding of the sexual assault never made it to Wilson.

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And I do think

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The fact that Wilson is marking her as absent for therapy appointments that were sanctioned, as well as other things that were going on in her life, like depression, putting her in the truancy system, all of those things can add up to retaliation, Your Honor.

[00:19:00] Speaker 03:
I'm also interested in this intentional infliction of emotional distress claim.

[00:19:07] Speaker 03:
And it just seems like the elements of that cause of action can be met based on what

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Principal James did, but perhaps not.

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It's not in a straightforward way, because if it's just a question of whether they should get to a jury, I think that what she did could be considered extreme and outrageous.

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There was a sexual assault allegation.

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And without any investigation, she called it BS.

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And then she said that she was going to call the police in order to embarrass the victim.

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And so I think that that could be viewed as extreme and outrageous.

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And it did cause, I mean, you could arguably say it caused emotional distress to Jane Doe because Jane Doe overhears this.

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And there is evidence in the record from a psychiatrist that this amplified the trauma for Jane Doe.

[00:20:07] Speaker 03:
And I guess the thing that is a little bit

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unusual in this factual circumstance is that Principal James didn't intend for Jane to hear that comment.

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But I have not been able to find any case law that requires that kind of specificity.

[00:20:26] Speaker 03:
If there is extreme misconduct and intent to harm, she says she wants to embarrass the sexual assault victim before the police.

[00:20:33] Speaker 03:
And it did cause that kind of, I guess, damage

[00:20:38] Speaker 03:
It seems to meet the elements and I haven't been able to find a case case law that seems to support the district courts.

[00:20:45] Speaker 03:
Analysis which says that because principal James didn't intend for her to hear it doesn't count.

[00:20:52] Speaker 03:
I have I'm struggling a little bit with.

[00:20:54] Speaker 04:
I agree with your honor that there's no case law requiring that specificity.

[00:21:01] Speaker 04:
There's not a ton of case law in the district on this on this point or anywhere that I could find.

[00:21:08] Speaker 04:
Yeah, I don't have anything that specific.

[00:21:13] Speaker 01:
Only intent, or I thought recklessness was also sufficient.

[00:21:16] Speaker 01:
Recklessness is part of it.

[00:21:17] Speaker 01:
It's a set of intent.

[00:21:20] Speaker 01:
Correct.

[00:21:20] Speaker 01:
Reckless to make comments like this when the child is outside the door.

[00:21:25] Speaker 04:
Particularly considering the context, right?

[00:21:27] Speaker 04:
This occurred in a meeting.

[00:21:28] Speaker 04:
This is not a private meeting that she was having with her colleagues about it after the fact.

[00:21:33] Speaker 04:
This is during the reporting of the sexual assault, just right after the child had become distraught and walked out of the room and was standing

[00:21:43] Speaker 04:
just outside, immediately outside the door.

[00:21:45] Speaker 04:
I do think those factual circumstances.

[00:21:47] Speaker 01:
I thought there was evidence that she, maybe, I don't know if she could discern words, we could hear the voices talking.

[00:21:50] Speaker 01:
Correct.

[00:21:52] Speaker 01:
And is it that the words themselves are extremely outrageous, or is it that you have the head of the school with the people gathered there, you know, he wasn't talking to himself, he talked to the people who he called to investigate this matter, and then without any knowledge whatsoever of what's going on,

[00:22:13] Speaker 01:
immediately tells them that this whole thing is BS and he's out to embarrass her.

[00:22:22] Speaker 01:
That's his goal.

[00:22:24] Speaker 01:
And by the way, look at that dress she's wearing.

[00:22:26] Speaker 01:
Two of the very people are supposed to investigate this.

[00:22:30] Speaker 01:
And then there's a further act of lying to Dr. Pindar about the content of the video.

[00:22:38] Speaker 01:
I mean, to be fair, they were

[00:22:40] Speaker 01:
hand-in-hand only because he was hauling her in the bathroom by holding on, maybe with my hand to wrist probably more accurately, hauling her in there.

[00:22:48] Speaker 01:
But that was a complete, also to interrupt, I'm trying to get to, is it just the comments themselves or is it that he's sort of trying to skew the investigation against her, the school's investigation from

[00:23:04] Speaker 01:
the outset and then continues to take additional.

[00:23:07] Speaker 04:
I think it's all of the conduct and I think the case that's dispositive on that is Drasia.

[00:23:13] Speaker 04:
Granted, the district's argument is that those comments were made directly to the victims face in that case.

[00:23:20] Speaker 04:
It was a detective who was supposed to be investigating a report of rape.

[00:23:26] Speaker 04:
But what that case says is you have to take into account the circumstances, the position of authority,

[00:23:32] Speaker 04:
the entire tone and flavor of the conversation.

[00:23:35] Speaker 04:
And the tone of the meeting was certainly aggressive towards Jane, which is why.

[00:23:44] Speaker 04:
As well as the power dynamic.

[00:23:46] Speaker 01:
Maybe it's not face to face, but you're talking about a power dynamic between a principal and a child.

[00:23:50] Speaker 01:
Correct.

[00:23:51] Speaker 01:
It's very similar.

[00:23:52] Speaker 01:
In that case, there's another case that says sort of.

[00:23:56] Speaker 04:
It's Drasia that talks about the power dynamic, but that's in the context.

[00:23:59] Speaker 01:
I think there's another one that talks about children.

[00:24:01] Speaker 01:
Um, having a special, you know, that it's just different.

[00:24:05] Speaker 01:
Yeah.

[00:24:06] Speaker 01:
I believe in extreme conduct is different.

[00:24:08] Speaker 04:
That's a case that we addressed in our section on the negligent infliction of emotional distress, but it certainly would carry over to this intentional infliction.

[00:24:16] Speaker 04:
Your honor.

[00:24:18] Speaker 01:
My colleagues have further questions.

[00:24:20] Speaker 01:
Thank you very much.

[00:24:21] Speaker 01:
Thank you.

[00:24:33] Speaker 05:
Good morning, and may it please the court.

[00:24:34] Speaker 05:
Graham Phillips on behalf of the Appellees.

[00:24:37] Speaker 05:
Unless the court would like me to start elsewhere, I'll begin with the Title IX discrimination claim.

[00:24:42] Speaker 05:
And we think that this claim fails for either of two broad reasons.

[00:24:46] Speaker 05:
First, because the district was not deliberately indifferent because its response to Jane's assault was not clearly unreasonable.

[00:24:53] Speaker 05:
And second, and independently, there is no evidence that the district's alleged indifference

[00:24:59] Speaker 05:
the type of further harm that's required under Davis to sustain a private action for damages.

[00:25:04] Speaker 01:
Can I ask you to focus on the retaliation component of Title IX in particular?

[00:25:09] Speaker 01:
First of all, is James as a principal

[00:25:18] Speaker 01:
I have a senior enough official under Gebser in that she had the authority to control responses to retaliation within the school, such that she would be responsible, or I forget the word, but accountable official for that purpose.

[00:25:42] Speaker 05:
Right.

[00:25:42] Speaker 05:
So I think the answer is different depending on who it is that you're talking about performing a retaliatory action.

[00:25:49] Speaker 01:
So we talk about James herself retaliating as in again.

[00:25:58] Speaker 01:
really upset about this complaint, sexual assault, so spews venomous words to the very people who are supposed to do an objective investigation, but who report to her.

[00:26:12] Speaker 01:
And then there's at least evidence in the record, a jury would, you know, I'm not saying right or wrong, but there's evidence in the record.

[00:26:19] Speaker 01:
about talking to the police officers and then the police officers were hostile when they interviewed Jane Doe.

[00:26:27] Speaker 01:
And then there's the lie to Dr. Pinder about the content of the video.

[00:26:34] Speaker 01:
And if those actions are viewed as retaliation for the complaint being filed,

[00:26:41] Speaker 01:
And I guess you got the transfer and things like that, but I don't see what the district did to undo the impact of those retaliatory acts on the investigatory process, including the MPD process.

[00:26:56] Speaker 01:
And so if James is the person who's, who is the one who would be responsible for redressing or counteracting the retaliation, it didn't happen here.

[00:27:07] Speaker 05:
So there's a lot in your question, Your Honor.

[00:27:10] Speaker 01:
And there are a lot of responses to different pieces.

[00:27:11] Speaker 05:
But I think I'll start with what I think is where you started and I think is maybe the most important piece about this.

[00:27:17] Speaker 05:
For purposes of the school district having actual knowledge, Principal James's knowledge of her own alleged misconduct does not count.

[00:27:27] Speaker 05:
That comes directly from Gebser.

[00:27:29] Speaker 05:
Gebser says that the knowledge of the wrongdoer, him or herself, is not pertinent.

[00:27:34] Speaker 05:
And that conclusion is also supported by what we cite.

[00:27:38] Speaker 01:
Sorry, is it Jackson versus Birmingham?

[00:27:41] Speaker 01:
The one where the coach reported discrimination against the school, the girls sports team.

[00:27:50] Speaker 01:
And it was the board that retaliated against the coach.

[00:27:53] Speaker 01:
And it was the board that was the responsible official under Title IX.

[00:27:57] Speaker 01:
So it can be the same.

[00:27:58] Speaker 05:
I think that's because the board itself is essentially the official policymaker.

[00:28:02] Speaker 05:
It is itself the entity.

[00:28:04] Speaker 05:
Principal James is not the funding recipient.

[00:28:06] Speaker 05:
So she is separate.

[00:28:08] Speaker 01:
I thought they said in gaps are people who have the authority to address talent.

[00:28:15] Speaker 01:
That may not.

[00:28:16] Speaker 01:
I'm not talking here about the whole transfer and that thing that seems like there's different parts of the district that deal with that.

[00:28:21] Speaker 01:
But when it comes to the retaliation about this school investigation and the MPD who

[00:28:31] Speaker 05:
I understand that, but Gebser says that the wrongdoers own knowledge is not relevant.

[00:28:35] Speaker 05:
And if you think about the facts of Gebser, and I think it's helpful on this point to really- How did the board and Jackson have notice?

[00:28:42] Speaker 01:
Because they only had notice because they were the wrongdoer.

[00:28:46] Speaker 05:
Well, I think- It was the wrongdoer.

[00:28:48] Speaker 05:
Right, I think there is a distinction when the knowledge is directly to the funding recipient itself, the board.

[00:28:55] Speaker 05:
And here, that would be knowledge by, I think it would probably be the chancellor of DCPS.

[00:29:01] Speaker 01:
It has to be the chancellor only?

[00:29:03] Speaker 05:
No, but Your Honor.

[00:29:05] Speaker 01:
Could it be Pinder?

[00:29:07] Speaker 05:
Oh, if Pinder had knowledge of James's wrongdoing, that counts.

[00:29:11] Speaker 05:
Yes, yes.

[00:29:12] Speaker 05:
And when he did have knowledge of her alleged wrongdoing in this case,

[00:29:15] Speaker 05:
he took reasonable corrective actions.

[00:29:17] Speaker 05:
That's part of why her conduct cannot constitute retaliation.

[00:29:20] Speaker 01:
But what corrective actions were taken to deal with the retaliation?

[00:29:23] Speaker 01:
I get that they were to deal with how the sexual harassment claim was processed and dealt with, the transfer, those things.

[00:29:32] Speaker 01:
But the retaliatory steps to sort of ruin the investigation before it started.

[00:29:39] Speaker 01:
You know, to ruin the MB and if this is to be clear all I'm doing here because we're at summary judgment is considering the facts and light most favorable plaintiff I'm not in fact saying that any particular view this is right or wrong, but if we view it from that lens.

[00:29:51] Speaker 01:
He's also sort of the police whisperer, and then skews their investigation before it even.

[00:29:58] Speaker 05:
starts so you're I mean one thing this this notion that she skewed the principal James skewed the police investigation I think is totally dropped out of this case on appeal that is that is not something that on appeal is listed as an alleged retaliatory action and I think the reason why that's the case is as the district court explained in some detail there is no admissible evidence that that principal James sort of

[00:30:20] Speaker 05:
said something poisonous to the police about that.

[00:30:22] Speaker 05:
So that's not.

[00:30:23] Speaker 03:
Was there inadmissible evidence to that effect?

[00:30:25] Speaker 05:
Well, I mean, all there was was Jane Doe's and Julie Doe's understanding that she had said something to the police.

[00:30:33] Speaker 05:
But they didn't have any knowledge.

[00:30:35] Speaker 01:
Well, they were there.

[00:30:36] Speaker 01:
Did they not witness the talking?

[00:30:38] Speaker 01:
Did somebody witness?

[00:30:39] Speaker 05:
Well, they did not witness Principal James saying something to the police that was inappropriate.

[00:30:44] Speaker 01:
No, no, no.

[00:30:44] Speaker 01:
Do they witness talking?

[00:30:46] Speaker 01:
I'm sorry, just.

[00:30:48] Speaker 01:
You don't witness saying something inappropriate is what I'm asking.

[00:30:51] Speaker 01:
Did they witness James talking to the police?

[00:30:55] Speaker 05:
No.

[00:30:56] Speaker 05:
I don't think there's any evidence of that.

[00:30:57] Speaker 03:
I'm just surprised nobody deposed the police officers.

[00:31:00] Speaker 05:
Nobody deposed the police officers.

[00:31:02] Speaker 05:
Principal James's deposition is that she never talked to the police officers.

[00:31:05] Speaker 05:
And there is no direct evidence that she did.

[00:31:08] Speaker 05:
She directed that they be called, and they showed up at the school.

[00:31:12] Speaker 03:
And she said she was doing so to embarrass Jane Doe.

[00:31:16] Speaker 03:
And then the police were quite hostile to this.

[00:31:18] Speaker 03:
Apparently, there's evidence of the record that when the police spoke to Jane and Julie Doe, they were kind of hostile.

[00:31:24] Speaker 03:
So that suggests that perhaps something did happen.

[00:31:26] Speaker 03:
But I think without deposing the police officers, I don't know.

[00:31:30] Speaker 05:
That's right.

[00:31:32] Speaker 05:
I think the only direct evidence you have is the recording itself.

[00:31:36] Speaker 01:
Police officers had to talk to somebody.

[00:31:38] Speaker 05:
when they arrived?

[00:31:39] Speaker 05:
That's right.

[00:31:40] Speaker 05:
So if you listen to the recording, and although we think the making of the recording was improper, we don't object to this court listening to it.

[00:31:48] Speaker 05:
They arrive, and they arrive in the room, and they talk with Jane herself.

[00:31:55] Speaker 05:
And I think they talk with the intervention coach.

[00:31:58] Speaker 01:
The one that James had just skewed the view beforehand was the intervention coach that was in the room when James was making these comments?

[00:32:08] Speaker 01:
Yeah, that I'm bringing the police here to embarrass this person.

[00:32:11] Speaker 01:
This is all.

[00:32:12] Speaker 01:
And that person who reports to James.

[00:32:16] Speaker 01:
Yes, that interacts with the police and suddenly the police.

[00:32:20] Speaker 01:
Or hostile.

[00:32:20] Speaker 01:
That's not evidence.

[00:32:22] Speaker 05:
Your honor, I don't.

[00:32:22] Speaker 01:
I don't think there's evidence that evidence and reasonable jury could infer.

[00:32:26] Speaker 05:
A couple of things, Your Honor.

[00:32:27] Speaker 05:
Again, I think this whole issue of poisoning the police investigation has dropped out on appeal.

[00:32:31] Speaker 05:
And I think this court should focus on the arguments that the parties made.

[00:32:34] Speaker 05:
So I think it's out of the case.

[00:32:36] Speaker 01:
He's looking at the district court's semi-judgment decision here.

[00:32:38] Speaker 05:
That's right, Your Honor.

[00:32:39] Speaker 05:
But I think this court's position on appeal is to address the arguments that Jane has chosen to make on appeal.

[00:32:45] Speaker 05:
And I don't think you will find any such theory in her brief.

[00:32:49] Speaker 05:
So if I could return to the question

[00:32:51] Speaker 05:
On the question of whether Principal James's knowledge of her own wrongdoing is itself knowledge to the funding recipient, I think that's foreclosed by Gebzer.

[00:32:59] Speaker 05:
And again, I would...

[00:33:02] Speaker 05:
suggests looking at the back and forth between the majority and the dissent in Gebzer about that point.

[00:33:07] Speaker 05:
Because the court's definition of who is an appropriate person turns on their authority to correct the harassment.

[00:33:16] Speaker 05:
And as the dissent there said, well, that's obviously true in a teacher-student harassment case.

[00:33:21] Speaker 05:
Obviously, the teacher themselves has the corrective authority to stop sexually harassing the student.

[00:33:27] Speaker 05:
But the problem is that their knowledge of their own wrongdoing is not treated as knowledge.

[00:33:32] Speaker 01:
Is it clear from Gebser that had the principal in that case known about the teacher, student sexual harassment, the principal wouldn't have been sufficient either?

[00:33:47] Speaker 05:
Oh, no.

[00:33:48] Speaker 05:
And we don't dispute.

[00:33:49] Speaker 05:
I mean, it may depend on some vagaries of state law.

[00:33:51] Speaker 05:
But I think in the average case, if a principal knows about a teacher's sexual harassment, that is sufficient knowledge.

[00:33:57] Speaker 01:
The principal's not the funding recipient.

[00:34:00] Speaker 05:
That's right.

[00:34:02] Speaker 01:
So the test isn't whether a funding recipient

[00:34:05] Speaker 05:
That's correct.

[00:34:06] Speaker 05:
It's whether it's whether a person with sort of sufficient corrective authority knows except that person in the school is the one who's also doing their harassing.

[00:34:14] Speaker 01:
There's no claim, but anyone below that person there is.

[00:34:17] Speaker 01:
But you were saying it had to be knowledge by the recipient of funds and the principal.

[00:34:23] Speaker 01:
The school is indirect recipient of funds, but the funds are going, I assume, to the district or Department of Education or something.

[00:34:31] Speaker 05:
So I guess I would direct, I think the best, the best way to think about this or a helpful resource and thing about is we cite these cases.

[00:34:39] Speaker 05:
They're the MS X-RAL Hall case from the Third Circuit.

[00:34:42] Speaker 05:
And the Salazar case from the Fifth Circuit, they're about exactly this issue.

[00:34:45] Speaker 05:
They're the only court of appeals decisions that I know of that are on this issue.

[00:34:49] Speaker 05:
And they both hold together that a wrongdoer's knowledge of their own wrongdoing, even if they are a principal, assistant principal, is not itself enough to trigger.

[00:35:03] Speaker 01:
Again, those cases aren't binding on us.

[00:35:07] Speaker 01:
You started by saying Gebster foreclosed because the principal and the school are not funding recipients, but that has fallen away because someone with sufficient authority to address the retaliation within the school is all we need.

[00:35:24] Speaker 01:
And if it turns out that the one unquestionably that holds that position, the principal, also is the perpetrator,

[00:35:35] Speaker 01:
They get off scot-free under Title IX, but everyone underneath them wouldn't.

[00:35:38] Speaker 01:
That seems an odd rule to adopt.

[00:35:40] Speaker 05:
So I think the way that, what Gebser cites for it is the restatement of agency, I think it's Section 280, where they say, for purposes of this knowledge inquiry, the wrongdoer's own knowledge is not pertinent.

[00:35:53] Speaker 01:
So am I correct that under this test you want us to adopt, when the principal is the perpetrator,

[00:36:01] Speaker 01:
No tunnel line liability, just because the one with the most authority became the most abusive person in the building.

[00:36:09] Speaker 05:
If no one else with correct... If no one else that could correct the principal... Oh, the superintendent could.

[00:36:14] Speaker 01:
No, no, within the school.

[00:36:16] Speaker 01:
I'm talking within the school.

[00:36:17] Speaker 01:
Because you agree that it can be someone within the school, which is only an indirect recipient of the funds.

[00:36:22] Speaker 01:
Correct.

[00:36:23] Speaker 01:
Yes.

[00:36:24] Speaker 01:
So we don't have to find that.

[00:36:26] Speaker 01:
It's always it's always someone outside the school someone with again.

[00:36:29] Speaker 01:
I don't know which entity gets the funds in DC the district or its Department of Education, but whatever it is.

[00:36:35] Speaker 05:
The short answer is yes, Your Honor.

[00:36:37] Speaker 05:
If the principal is themselves the wrongdoer, and they're the only person with knowledge of the wrongdoer.

[00:36:42] Speaker 01:
If anybody else in the school under them is the wrongdoer, and the principal knows that's sufficient.

[00:36:48] Speaker 05:
Yes.

[00:36:48] Speaker 05:
I think, again, unless there's some kind of weird situation of state law about authority, then yes.

[00:36:53] Speaker 05:
That's the result.

[00:36:54] Speaker 01:
That's like an odd rule.

[00:36:56] Speaker 05:
I don't think it's any odder than the circumstance in Gebser itself, where, again, it was a teacher sexually harassing a student.

[00:37:03] Speaker 05:
The teacher themselves obviously has the authority to stop doing that, but their knowledge of their own wrongdoing is not considered.

[00:37:09] Speaker 01:
They're not.

[00:37:10] Speaker 01:
They're not.

[00:37:11] Speaker 01:
The teacher is not in a self supervisory position in the formal way in the way that a principal is in charge of running the school, running everybody in the school and implementing legal policies within the school.

[00:37:23] Speaker 01:
I mean, well, this seems to be a materially different point.

[00:37:27] Speaker 05:
I mean, I think it's certainly in the District of Columbia is subjected to

[00:37:31] Speaker 05:
additional supervisors, including the superintendent.

[00:37:32] Speaker 01:
And here again, when the super doesn't get outside, the schools can be their own communities.

[00:37:39] Speaker 01:
It just, it just seems an odd rule to me because I'm repeating myself and I'll stop there, but that it is sufficient under title nine for everybody in the school.

[00:37:52] Speaker 01:
if they engage in appropriate conduct, that they will be subject to Title IX unless the principal addresses the problem.

[00:38:02] Speaker 01:
But when the principal does it, they're just carved out.

[00:38:05] Speaker 01:
of liability unless somebody happens to somehow get noticed way outside to some other building miles and miles away where somebody in the district superintendent's office or the Department of Education happens to hear.

[00:38:18] Speaker 05:
I mean, I do think that is the upshot of Gebzer.

[00:38:21] Speaker 05:
And I think it's based on the principle in these decisions from Third and Fifth Circuits talk about it, which is that in this private action for damages, which is a judicially created right of action,

[00:38:33] Speaker 05:
we're trying to, to the extent possible, kind of parallel the administrative scheme, which really is based on the notion that the funding recipient will be notified of discrimination and given the opportunity to fix it.

[00:38:47] Speaker 05:
And so in the instance where it is a principal who's doing the wrongdoing, that does require that someone higher up the chain be given that knowledge and the chance to fix it, which is, I think, what

[00:38:57] Speaker 05:
a chance to respond reasonably to it, which I think did occur here once Superintendent Pinder became aware of the wrongdoing.

[00:39:04] Speaker 03:
So what's the alleged retaliation?

[00:39:06] Speaker 03:
What's the actual retaliatory act alleged by the?

[00:39:09] Speaker 05:
So I think there are two alleged instances of retaliation that are actually preserved on appeal and presented on appeal here.

[00:39:16] Speaker 05:
So the first is Principal James's recorded comments.

[00:39:21] Speaker 05:
And the second is her being marked as absent without excuse

[00:39:26] Speaker 05:
in Wilson during her junior year.

[00:39:30] Speaker 05:
So I think with respect to the recorded remarks, I think the main thing that I've already talked about is that when the person with corrective authority learned about those things, Superintendent Pinder, he acted not unreasonably to respond to them and launch this investigation on Principal James, and she was reprimanded for this.

[00:39:52] Speaker 05:
So I think that among other reasons, I think that defeats that.

[00:39:57] Speaker 01:
And also because, and your honor, I think this might go- Has anything done to address the impact of James's comments on the other people in the room who are responsible for conducting this investigation?

[00:40:08] Speaker 01:
I don't think- Talk to them and say that was wrong.

[00:40:11] Speaker 01:
Make sure you're going full throttle on this investigation.

[00:40:16] Speaker 05:
Not that the record was clear that there were other people in the room.

[00:40:19] Speaker 01:
Yes, ordinance of James to whom these talk these comments were directed.

[00:40:23] Speaker 05:
That's right.

[00:40:24] Speaker 05:
There were other there were other school officials there who are these comments.

[00:40:27] Speaker 01:
There's no evidence that anything was done to address the impact of retaliation with them.

[00:40:33] Speaker 01:
Well, I don't I mean, I don't make sure they didn't get sucked into this retaliatory process.

[00:40:38] Speaker 05:
Correct.

[00:40:39] Speaker 05:
I don't think there's anything on that point.

[00:40:41] Speaker 05:
I also don't think there's any evidence that anyone else at the school did anything even arguably wrong in responding to these allegations.

[00:40:50] Speaker 05:
And I just would take a second on this deliberate indifference point to run through the things that the school district did here.

[00:40:57] Speaker 05:
Immediately called the police.

[00:40:58] Speaker 05:
Immediately collected the security camera footage, which was important.

[00:41:02] Speaker 05:
Within days, Superintendent Pinder agreed to let her to transfer schools.

[00:41:06] Speaker 05:
And over the course of the summer, sort of expanded the transfer options available to her, conducted a Title IX investigation that substantiated her allegations and proposed a bunch of remedial measures, including most importantly, separating the two students if they both returned to Roosevelt.

[00:41:23] Speaker 01:
He's just offering, if a school does, and I'm not, let's take this as a hypothetical.

[00:41:28] Speaker 01:
If a school district, school says you can transfer

[00:41:34] Speaker 01:
to one of the schools.

[00:41:36] Speaker 01:
I know, I know, sorry, now I can't remember if it's Davis or Gepser, they don't get to prescribe every single aspect of the remedy.

[00:41:41] Speaker 01:
But if the offer is to transfer to schools, it's objectively worse, either academically or safety-wise or both.

[00:41:52] Speaker 01:
And I'm not, this is a hypothetical one, I don't know the status.

[00:41:56] Speaker 01:
But if a school were to only offer the victim the option of going to a worse, objectively, or Jerry could find worse educational opportunity, that would not be an adequate response, would it?

[00:42:14] Speaker 05:
I think quite possibly not if that was sort of the only thing they offered is we're going to prevent further sexual harassment by letting you, the victim, go to a worse school.

[00:42:25] Speaker 01:
That would be depriving of an equal educational opportunity.

[00:42:30] Speaker 01:
I'm baking in a lot of assumptions here that it is.

[00:42:32] Speaker 05:
I think arguably yes.

[00:42:36] Speaker 01:
And then whether it's true or not, that was sort of the reaction that Jane Doe and her mother had to the schools that were offered until Wilson was offered it.

[00:42:46] Speaker 05:
That's right.

[00:42:47] Speaker 05:
That was there.

[00:42:48] Speaker 05:
I would say that was their subjective reaction, and I don't think there is.

[00:42:51] Speaker 01:
I'm not suggesting that's right.

[00:42:52] Speaker 01:
Be clear.

[00:42:53] Speaker 01:
It was a hypothetical.

[00:42:53] Speaker 05:
Yes.

[00:42:54] Speaker 05:
Yeah.

[00:42:54] Speaker 05:
No, I think something.

[00:42:55] Speaker 01:
But in fact, and I take it there's no summary judgment evidence on this.

[00:42:59] Speaker 01:
But if you had a case where it was shown, just to be clear, it is not an appropriate response to put the victim in a worse education.

[00:43:08] Speaker 05:
I think that's right.

[00:43:09] Speaker 05:
And I think in the record here, there is DCPS's sort of grievance policy.

[00:43:13] Speaker 05:
And actually, one thing it talks about in there is about how the response should not be to sort of force the victim to go to a different school or change how they're experiencing school.

[00:43:30] Speaker 03:
To what extent do the deliberate indifference claim and the retaliation claim kind of rise and fall together?

[00:43:37] Speaker 03:
both seek to hold the district responsible.

[00:43:40] Speaker 03:
The district's only responsible for its own conduct.

[00:43:43] Speaker 03:
And if the district's response was all the things that you said, that's not retaliatory.

[00:43:49] Speaker 03:
I'm just wondering, is there any difference in the factual predicate under retaliation versus deliberate indifference?

[00:43:57] Speaker 05:
I mean, I do think they are analytically distinct.

[00:44:01] Speaker 05:
And you could imagine a version of this case where

[00:44:07] Speaker 05:
under different facts, there is some action that does qualify as retaliation, but doesn't amount to just straightforward discrimination under Title IX.

[00:44:20] Speaker 05:
I guess that's in part because in judging the reasonableness or not of actions under the discrimination test, you're asking whether they're reasonable in terms of preventing

[00:44:35] Speaker 05:
the sexual harassment from recurring or continuing.

[00:44:39] Speaker 05:
But that is not what you're asking for retaliation.

[00:44:42] Speaker 05:
So it would be possible for there to be some action that's sufficiently adverse, taken with a requisite intent, but doesn't go to whether it's likely for the sexual harassment to recur.

[00:44:57] Speaker 03:
But in this case,

[00:44:58] Speaker 03:
Is it your position that the district's response was not retaliatory because it was all of those things that also you're relying on to say they weren't deliberately indifference?

[00:45:08] Speaker 03:
I'm just trying to understand why there's a different actual predicate.

[00:45:12] Speaker 05:
I think it mostly overlaps, Your Honor.

[00:45:14] Speaker 05:
I think the one piece of the retaliation where maybe we would think about them slightly differently is the

[00:45:20] Speaker 05:
The one and only other allegation of retaliation on appeal that I think is preserved, which is the marking her as absent without excuse in her junior year at Wilson, that cannot sustain the Title IX discrimination claim for various reasons.

[00:45:38] Speaker 05:
One of which is, even if that was the wrong thing for the school to be doing, that did not make it more likely that she was going to be sexually harassed again.

[00:45:48] Speaker 05:
The reason it's not sufficient for retaliation, I mean the main reason is that there is no evidence that these mistakes occurred with retaliatory intent.

[00:45:59] Speaker 05:
So that's one place where I think the analysis works out a little bit differently.

[00:46:04] Speaker 05:
I recognize I'm well over time.

[00:46:06] Speaker 05:
I would be happy to address some of the court's questions about IID if you're interested.

[00:46:12] Speaker 05:
So with respect to Principal James's comments themselves, I don't think they satisfy the outrageousness element.

[00:46:21] Speaker 03:
Or let's assume that they do.

[00:46:23] Speaker 05:
OK, let's assume that they do.

[00:46:24] Speaker 05:
I hope I can try to persuade you later.

[00:46:26] Speaker 05:
That's not correct.

[00:46:27] Speaker 05:
But let's assume that they do.

[00:46:28] Speaker 03:
I mean, at least a jury could find it so.

[00:46:31] Speaker 03:
I mean, I don't have to decide if it does or doesn't.

[00:46:33] Speaker 03:
But could a jury find it so?

[00:46:35] Speaker 05:
Let's assume that a jury can.

[00:46:35] Speaker 05:
Let's assume that a jury can.

[00:46:37] Speaker 05:
Then I think the reason the claim fails is the lack of evidence of intent or recklessness to cause Jane, through these comments, to cause her severe and extreme distress.

[00:46:47] Speaker 05:
So it's undisputed that Principal James did not intend for Jane or Julie to hear these comments.

[00:46:53] Speaker 05:
She made them when they were out of the room.

[00:46:57] Speaker 05:
They're just.

[00:46:58] Speaker 03:
Do you think that it's an element of the offense that the perpetrator has to intend for the victim to know that they intend them harm?

[00:47:06] Speaker 05:
It has to be.

[00:47:08] Speaker 05:
I mean, if we're saying that the comments themselves are the outrageous conduct, it has to be that the defendant intended to cause extreme distress.

[00:47:19] Speaker 03:
Well, I think

[00:47:21] Speaker 03:
You can infer that or a jury could based on saying it's BS and I'm going to embarrass this person.

[00:47:29] Speaker 03:
There's an intent to harm Jane Doe.

[00:47:32] Speaker 03:
I think what the district court relied on was that

[00:47:36] Speaker 03:
there was no intent for Jane Doe to hear it.

[00:47:39] Speaker 03:
And it's not clear to me that that works.

[00:47:41] Speaker 05:
I think it does, Your Honor, because I think we have to separate, did she intend for her conduct, or her comments evidence that she intended for her subsequent conduct to cause Jane harm?

[00:47:54] Speaker 05:
I understand that theory, because what she says is I'm going to embarrass her

[00:47:58] Speaker 05:
But what she says she's going to embarrass her by doing is by calling the police.

[00:48:03] Speaker 05:
And that is not extreme outrageous conduct.

[00:48:05] Speaker 05:
That is appropriate conduct.

[00:48:06] Speaker 01:
It says to the people who are in charge of the investigation, this is BS.

[00:48:11] Speaker 01:
And by the way, look at her dress.

[00:48:13] Speaker 01:
And yeah, I'm out to embarrass her in vulgar terms, no less.

[00:48:19] Speaker 01:
And if that's to tank the investigatory process going forward, wouldn't it have been a minimum?

[00:48:27] Speaker 01:
Couldn't a jury find it's reckless as to whether tanking this investigation going forward, poisoning the minds of the people who are gonna be conducting it is gonna cause additional serious harm.

[00:48:40] Speaker 01:
We're talking about a child here

[00:48:43] Speaker 01:
who is supposed to be able to trust the adults to protect her.

[00:48:47] Speaker 01:
And suddenly they're all telling her, you're lying, you're lying, you're lying.

[00:48:54] Speaker 01:
Jerry couldn't find that causes compounds near emotional distress, compounding, I should say, severe emotional distress.

[00:49:01] Speaker 05:
Just to be very clear, I'm not saying these comments were appropriate.

[00:49:03] Speaker 05:
I just want to make that very clear.

[00:49:04] Speaker 05:
And I think that's common ground that these were inappropriate comments.

[00:49:07] Speaker 01:
I'm asking a specific question about either intent or recklessness to tank the investigation.

[00:49:13] Speaker 01:
and at a minimum of not knowing.

[00:49:16] Speaker 01:
It does seem like he was out with antagonism to get either her or her mother and tanking the investigation so that this child knows without having investigated at all.

[00:49:29] Speaker 01:
It's one thing if she'd come to a different conclusion.

[00:49:32] Speaker 01:
No investigation whatsoever.

[00:49:33] Speaker 01:
We're not believing the girl.

[00:49:35] Speaker 01:
We're out to destroy this investigation.

[00:49:38] Speaker 01:
To think, isn't that a bit reckless?

[00:49:40] Speaker 01:
That that would not cause additional trauma?

[00:49:44] Speaker 01:
And you cannot trust the adults around you to protect you?

[00:49:47] Speaker 01:
You're a child in school.

[00:49:49] Speaker 05:
So Your Honor, one thing, not that I think it's legally relevant, but Principal James is a woman.

[00:49:53] Speaker 01:
I'm sorry, did I say he?

[00:49:56] Speaker 05:
I thought you did.

[00:49:56] Speaker 01:
I did.

[00:49:57] Speaker 01:
I think it's because it's James.

[00:49:58] Speaker 01:
I apologize.

[00:50:01] Speaker 05:
Yes, she.

[00:50:02] Speaker 05:
So for one thing, I don't think the comments themselves, though inappropriate, evince an intent to tank the investigation.

[00:50:09] Speaker 05:
I mean, the nature of what she says is she's going to continue.

[00:50:12] Speaker 03:
OK, the only issue here is whether a jury could find it did.

[00:50:15] Speaker 03:
And a jury could find that the person in charge of the school saying without even seeing the videotape that it is BS, that that tanks the investigation because it's telling everybody who's supposed to be in charge of looking into this at the outset that it's BS.

[00:50:33] Speaker 03:
So a jury could find that that is outrageous and tanking the investigation.

[00:50:38] Speaker 05:
I don't think a jury can find that the principal intended these comments to cause Jane's severe.

[00:50:45] Speaker 05:
I don't think they can find that she was reckless either, because again, there was no basis for Principal James to think that Jane would ever hear these comments.

[00:50:52] Speaker 03:
So that's my question.

[00:50:53] Speaker 03:
Does the perpetrator have to intend for the victim to know that she's doing these outrageous things?

[00:50:59] Speaker 03:
There is a case.

[00:51:00] Speaker 03:
It's Holman versus Goyal.

[00:51:03] Speaker 03:
And that's a case in which the defendant gives a stalker information about the plaintiff, knowing well that the stalker is going to use that information to harass the plaintiff.

[00:51:12] Speaker 03:
So the phone number, the home address of the plaintiff,

[00:51:15] Speaker 03:
And it doesn't seem that that case contemplates that the perpetrator had to know that the victim would find out that the perpetrator did it.

[00:51:24] Speaker 03:
Because Jane did overhear this and knows what Principal James's intents were.

[00:51:33] Speaker 03:
And that's what caused her extreme harm.

[00:51:35] Speaker 03:
So it just seems to me the elements are met, potentially.

[00:51:38] Speaker 03:
A jury could find extreme outrageous conduct, that this extreme outrageous conduct

[00:51:43] Speaker 03:
caused harm because Jane found out about it.

[00:51:45] Speaker 03:
And there's testimony that there's damages.

[00:51:47] Speaker 03:
There's a psychiatrist saying this amplified her trauma.

[00:51:50] Speaker 03:
And the only thing that the district court and apparently you have to, I guess, contradict that is that she didn't know that Jane was listening.

[00:52:01] Speaker 03:
And I don't know that that's enough to evade liability under these circumstances.

[00:52:06] Speaker 05:
It's not the only thing we have, but we're accepting your premise that this satisfies the outrageous step.

[00:52:13] Speaker 05:
So I'm putting that to one side.

[00:52:15] Speaker 03:
I'm saying outrageous and causation, the only thing standing in the way is you're saying that she didn't intend for her to hear this.

[00:52:22] Speaker 03:
That's right.

[00:52:22] Speaker 03:
Or I did intend to hurt her by embarrassing her, but I didn't intend to hurt her by her hearing this.

[00:52:26] Speaker 03:
That just seems to be really cutting things very fine.

[00:52:29] Speaker 05:
No, I think it is appropriate to distinguish between an allegation that

[00:52:34] Speaker 05:
Her conduct in, for instance, the assertion that she misdescribed the video to Superintendent Pinder, that's.

[00:52:45] Speaker 01:
Knowingly mischaracterized, a jury could find.

[00:52:49] Speaker 01:
That's right.

[00:52:49] Speaker 01:
That's right.

[00:52:50] Speaker 01:
That's different than misdescribed.

[00:52:52] Speaker 01:
Knowingly or intentionally mischaracterized, a jury could find.

[00:52:55] Speaker 05:
Right.

[00:52:56] Speaker 05:
So I do think there's a distinction between those two things.

[00:52:59] Speaker 05:
And for that, the problem there is that there is no evidence that that caused Jane the extreme distress that's required by the eye.

[00:53:09] Speaker 03:
It could be viewed as evidence of Principal James's intent.

[00:53:14] Speaker 03:
That she said it was BS.

[00:53:15] Speaker 03:
She said, I'm going to embarrass her.

[00:53:17] Speaker 03:
And even though Jane didn't know it, there's more evidence of that intent based on other things that she did that Jane didn't even know about.

[00:53:23] Speaker 03:
But that doesn't mean

[00:53:24] Speaker 03:
It's irrelevant or it's not admissible.

[00:53:27] Speaker 03:
But my question just is, it just seems to me that you're saying, because Principal James didn't intend for her to hear this, that's what precludes liability.

[00:53:38] Speaker 03:
And I don't know of any case law that says that.

[00:53:40] Speaker 05:
I confess that I don't know of any case law that directly addresses that point.

[00:53:46] Speaker 05:
It follows logically.

[00:53:47] Speaker 05:
The person has to intend that the outrageous conduct will cause the plaintiff extreme emotional distress.

[00:53:56] Speaker 03:
But this is logically, she intends her harm.

[00:54:01] Speaker 03:
She says so explicitly.

[00:54:03] Speaker 03:
I'm going to embarrass her.

[00:54:04] Speaker 03:
She overhears it.

[00:54:06] Speaker 03:
And so the harm has been done.

[00:54:09] Speaker 03:
And just logically, why should this principal escape liability?

[00:54:16] Speaker 03:
just because she didn't intend for her to hear that when she was doing extreme outrageous things.

[00:54:20] Speaker 03:
And she did hear it.

[00:54:22] Speaker 05:
Well, I think part of it is because, and the case law, I think, bears this out, and I think the Drasia case bears this out.

[00:54:29] Speaker 05:
This is a narrowly confined tort.

[00:54:31] Speaker 05:
It has to be extreme conduct.

[00:54:34] Speaker 05:
That's a very high bar.

[00:54:35] Speaker 03:
Assume we have that met.

[00:54:37] Speaker 05:
And I think it has to be extreme conduct that you intend to cause the extreme emotional distress.

[00:54:43] Speaker 01:
Yes, but you don't.

[00:54:45] Speaker 01:
So this is a hypothetical.

[00:54:46] Speaker 01:
Imagine you have a principal and a similar sexual assault allegation.

[00:54:52] Speaker 01:
But before the student even comes in, there's zero chance of overhearing reporting or anything.

[00:54:58] Speaker 01:
The principal engages in a conspiracy with all the people involved in the school that are going to be in charge of investigating this, and as well with the district.

[00:55:08] Speaker 01:
The principal says, this person, the student, the student's family, they're royal pains, royal irritants.

[00:55:17] Speaker 01:
They're nothing but troublemakers.

[00:55:18] Speaker 01:
They're always suing everybody.

[00:55:19] Speaker 01:
They're always making up claims.

[00:55:21] Speaker 01:
We need to teach them a lesson.

[00:55:24] Speaker 01:
This is a total BS claim.

[00:55:28] Speaker 01:
And we need to make sure this investigation exposes them for the frauds they are.

[00:55:34] Speaker 01:
Now there's no chance the victim or family members can hear about this.

[00:55:39] Speaker 01:
It's a really good conspiracy encoded in everything and everything.

[00:55:43] Speaker 01:
Everybody's sworn to secrecy.

[00:55:46] Speaker 01:
And it never in fact comes out until

[00:55:49] Speaker 01:
later in discovery and litigation that it was this conspiracy.

[00:55:52] Speaker 01:
But in fact, the investigation is tanked.

[00:55:58] Speaker 01:
The child is told again and again, no one believes you, you're a liar, we think you're a liar, or that you wanted this, that it was consensual, which causes evident, you know, provable, the jury could find additional harm.

[00:56:15] Speaker 01:
Is it your position

[00:56:18] Speaker 01:
I think you would admit, or it would tell me otherwise, that that would be extreme outrageous conduct that causes harm relevant for Title IX.

[00:56:29] Speaker 01:
Is that correct?

[00:56:31] Speaker 05:
Well, for Title IX or for IAED, Your Honor?

[00:56:34] Speaker 01:
I'm sorry, IAED.

[00:56:34] Speaker 01:
I apologize.

[00:56:36] Speaker 01:
Brain not shifting.

[00:56:37] Speaker 05:
Yes, but I'd like to explain why.

[00:56:39] Speaker 05:
I mean, I think the reason why is because there, I think what the extreme, what the true extreme and outrageous conduct intended to cause harm is the conspiracy and the subsequent tanking of the investigation.

[00:56:50] Speaker 05:
And those secret comments that we learned about later sound like smoking gun evidence of intent.

[00:56:57] Speaker 05:
But that what actually is the outrageous conduct that intentionally inflicts the harm is the sort of subsequent

[00:57:04] Speaker 01:
But you wouldn't change it just without saying so if we then change the hypothetical so that the principal without investigating is just convinced this thing is a fraud and that we just need to get rid of this and make a clear message that we don't have fraudulent allegations like this in our school.

[00:57:19] Speaker 01:
So it's not intending to harm in that sense, but it's reckless as to the conclusion that this is fraud and needs to be shut down.

[00:57:27] Speaker 01:
It would be the same.

[00:57:29] Speaker 05:
I mean, again, I think if you're positing that then they actually sort of

[00:57:33] Speaker 05:
do inappropriate things to tank the investigation, then inappropriate.

[00:57:37] Speaker 01:
They just continually say, we don't believe you.

[00:57:38] Speaker 01:
We don't believe you.

[00:57:39] Speaker 05:
But yes, I would say that's inappropriate if they're not sort of investigating good faith.

[00:57:44] Speaker 05:
Yes.

[00:57:44] Speaker 01:
Right.

[00:57:45] Speaker 05:
Right.

[00:57:45] Speaker 05:
But I think that I think the distinction here is that the not just so.

[00:57:48] Speaker 01:
So your answer to Japan's question is.

[00:57:52] Speaker 01:
does the victim actually have to hear it face to face or know about it is no, that's not that's right.

[00:57:58] Speaker 05:
That's not a categorical rule for for all ID.

[00:58:00] Speaker 01:
It's just a question of degree them on how harm to the telling subordinates that don't even bother with this investigation.

[00:58:10] Speaker 01:
It's bullshit.

[00:58:11] Speaker 01:
Does this put a jury find that this

[00:58:16] Speaker 01:
was sufficiently like that.

[00:58:18] Speaker 01:
And because of all the ensuing things that happened, caused additional emotional distress because of distrust in adults around her.

[00:58:30] Speaker 01:
This is just a difference on a continuum.

[00:58:34] Speaker 05:
That's right.

[00:58:35] Speaker 05:
I think you would need outrageous conduct

[00:58:39] Speaker 05:
that causes extreme distress in the misconducting or nonconducting of the investigation.

[00:58:46] Speaker 01:
Well, I mean, the distress will come from, you know, the person's not, the child's not gonna be upset about paperwork not processing correctly.

[00:58:55] Speaker 01:
It's gonna be the outcome of adults around her disbelieving her and in my hypothetical blaming her or that would be the source of the harm even if the child doesn't know where this is coming from.

[00:59:09] Speaker 01:
Right.

[00:59:11] Speaker 05:
Yes.

[00:59:11] Speaker 05:
But again, I think you still have to have intent or requisites.

[00:59:17] Speaker 01:
Yes.

[00:59:18] Speaker 05:
Yeah.

[00:59:19] Speaker 05:
And something about the actual nature of how the investigation was done, that these secret comments are evidence was done with the requisite intent.

[00:59:28] Speaker 01:
The comments and the ensuing response would be what would cause the harm to the child.

[00:59:35] Speaker 01:
The child is going to perceive the harm as

[00:59:38] Speaker 01:
I'm not protected.

[00:59:39] Speaker 01:
They're blaming me.

[00:59:41] Speaker 01:
It must have been my fault.

[00:59:43] Speaker 01:
People think I'm a liar, but I'm telling the truth.

[00:59:45] Speaker 01:
That's the harm that that person is going to feel, right?

[00:59:50] Speaker 05:
Yes.

[00:59:51] Speaker 05:
I think my basic point is that if you're asserting, and that's the assertion in this case, that the comments themselves are the outrageous conduct that causes the harm, then if they are made with no intent that they ever be heard,

[01:00:08] Speaker 05:
than that.

[01:00:09] Speaker 01:
Or active upon.

[01:00:12] Speaker 01:
We just said they don't have to be.

[01:00:13] Speaker 01:
I mean, they have to be heard by the staff.

[01:00:15] Speaker 05:
No, I mean sort of ever heard even through a chain.

[01:00:19] Speaker 03:
So isn't your position then that if the defendant does something extreme and outrageous, which evinces an intent to harm the plaintiff, and the plaintiff learns of this and it causes her extreme distress,

[01:00:36] Speaker 03:
There's no liability if the perpetrator didn't intend for her to hear it.

[01:00:44] Speaker 05:
If all you're talking about is the comments themselves, you're saying that's the injurious, that's the outrageous comment.

[01:00:51] Speaker 03:
Why am I limited to that?

[01:00:52] Speaker 03:
The whole thing is extreme and outrageous.

[01:00:55] Speaker 03:
That she's making comments and calling a sexual assault victim's allegations BS.

[01:01:01] Speaker 03:
That she's saying I'm going to embarrass her in front of the police.

[01:01:04] Speaker 03:
That she's potentially tanking the investigation.

[01:01:06] Speaker 03:
All of it is extreme and outrageous.

[01:01:08] Speaker 03:
And the victim hears this, and it causes her extreme

[01:01:14] Speaker 03:
Damage.

[01:01:16] Speaker 03:
And this is the principal of her school who is supposed to be taking care of her.

[01:01:21] Speaker 03:
So she has heard it.

[01:01:24] Speaker 03:
And I hear your position to be if it wasn't intended that she hear it, there's no liability even though there was intentional or reckless intent to cause her harm.

[01:01:38] Speaker 03:
And it did cause her.

[01:01:40] Speaker 05:
So I don't think the conduct that supposedly actually caused, separate from the comments themselves, the conduct that the comments refer to and that, again, calling the police is not itself extreme and outrageous conduct.

[01:01:53] Speaker 03:
Calling the police in order to embarrass the victim, a jury could find is extreme and outrageous conduct.

[01:02:00] Speaker 03:
I mean, I don't think so.

[01:02:03] Speaker 03:
For the whole purpose of embarrassing the sexual assault victim in front of the police,

[01:02:07] Speaker 03:
I don't think that's a jury could find that.

[01:02:10] Speaker 03:
I know you disagree.

[01:02:12] Speaker 03:
A jury could find that that's extremely outrageous.

[01:02:14] Speaker 03:
So let's just put that aside and not argue about what a jury would find.

[01:02:19] Speaker 03:
But a jury could find that it was.

[01:02:22] Speaker 03:
And I don't know that why we have to

[01:02:25] Speaker 03:
Identify exactly what was outrageous about this when there's like three or four different possibilities But the victim heard it and it did cause her harm and it was extremely outrageous.

[01:02:37] Speaker 03:
That's what The elements are and it just sounds to me that the only correct me if I'm wrong the only thing you say that stands the way of liability is that the perpetrator didn't intend for her to hear it and

[01:02:50] Speaker 05:
If you've taken away my argument that it doesn't meet the outrageousness, then that's the other argument we've made, is that there's a lack of intent here.

[01:02:59] Speaker 03:
But there is intent to cause for harm.

[01:03:01] Speaker 03:
It's just not the particular harm.

[01:03:03] Speaker 03:
I intend to embarrass you from the police, but then you overheard me saying it.

[01:03:08] Speaker 03:
So just because all you did was overhear me saying it, that's not what I intended.

[01:03:13] Speaker 03:
Then I'm free of liability if I'm Principal James?

[01:03:16] Speaker 05:
I think she cannot be held liable for the comments themselves because she did not intend for them to.

[01:03:23] Speaker 01:
Recklessness, it's intent or recklessness.

[01:03:25] Speaker 01:
I don't know why you.

[01:03:26] Speaker 05:
I'm sorry, I just mean that as a shorthand.

[01:03:28] Speaker 05:
I'm not trying to dispute that.

[01:03:30] Speaker 01:
Then let's use a shorthand, reckless.

[01:03:33] Speaker 01:
Okay.

[01:03:33] Speaker 01:
Child's right outside the door.

[01:03:34] Speaker 01:
And even more relevantly as far as I'm concerned,

[01:03:42] Speaker 01:
The people who are right within earshot and to whom these comments are directed are the people that are supposed to protect that child.

[01:03:51] Speaker 05:
A couple of points, Your Honor.

[01:03:52] Speaker 05:
I don't think there's evidence that Principal James knew that they were right outside the door.

[01:03:55] Speaker 05:
And there certainly is no evidence that she had a reason to think that these comments were being secretly reported.

[01:03:59] Speaker 01:
Well, there's testimony that they were right outside the door.

[01:04:01] Speaker 01:
And I think a jury could infer that they're not going to go walk a mile away when someone just runs out in distress.

[01:04:08] Speaker 01:
And she tests.

[01:04:09] Speaker 01:
I think Jane said that she could hear

[01:04:12] Speaker 01:
not understand the words to be clear, but could hear the voices in there talking, so they weren't that far away.

[01:04:17] Speaker 05:
I don't think Jane's knowledge speaks to whether Principal James- Reckless.

[01:04:22] Speaker 05:
Was reckless, was reckless, was reckless.

[01:04:26] Speaker 01:
Why is it not reckless to say this directly, intentionally to the people who are supposed to do the investigating?

[01:04:36] Speaker 05:
I mean, I take the point that I think it could be reckless in a sort of everyday sense of that word.

[01:04:40] Speaker 05:
But I think for these purposes.

[01:04:41] Speaker 01:
Oh, I thought everyday sense?

[01:04:43] Speaker 05:
I think to be reckless in this sense, Principal James would have to assume that they are then going to tell, that it's likely that they're going to turn around and tell Jane these things.

[01:04:53] Speaker 05:
And I don't think that makes any sense.

[01:04:54] Speaker 05:
And I don't think that Jane Doe has ever made that argument.

[01:04:56] Speaker 05:
In fact, I don't think there's any argument in her brief that proffers a distinct theory of how this satisfies a recklessness standard if it does not satisfy the intent standard.

[01:05:08] Speaker 05:
unless the court has any further questions we'd ask that you affirm.

[01:05:11] Speaker 03:
I don't think you ever addressed Holman versus Goyal and why that doesn't stand for the proposition that the perpetrator doesn't have to know or attend that the victim would know that they did this.

[01:05:23] Speaker 05:
I confess, I don't think I'm familiar with that case.

[01:05:25] Speaker 05:
Is it in the briefing?

[01:05:27] Speaker 03:
I'm not sure if my law court found it if it was in the briefing, but it's a defendant giving the stalker information about the plaintiff, knowing full well that the stalker will use that information to harass the plaintiff.

[01:05:39] Speaker 03:
And then the stalker does that.

[01:05:41] Speaker 05:
It doesn't seem like... That sounds right to me, and I just don't think that lines up with the facts here.

[01:05:49] Speaker 03:
It just seems that you don't have to intend the victim to know that you're doing it.

[01:05:55] Speaker 03:
Principal James, I'm sure he could find Principal James is tanking the investigation.

[01:06:00] Speaker 03:
Jane finds out about it, that upsets her.

[01:06:03] Speaker 05:
I think the distinction is, in that case, it sounds like that the defendant intended the harm.

[01:06:11] Speaker 01:
Intended the acts that caused the harm.

[01:06:14] Speaker 05:
Yes, and it sounds like from the facts of that case.

[01:06:16] Speaker 01:
You just wanted to say intending the harm, which is a different thing.

[01:06:19] Speaker 01:
Intending the acts that caused the harm.

[01:06:22] Speaker 05:
But I think the IED tort requires intent as to the result of extreme emotional distress.

[01:06:27] Speaker 05:
I think that's the case law, and I don't think James ever disputed that.

[01:06:30] Speaker 05:
So that's the case.

[01:06:32] Speaker 01:
You intend the axe to intend the harm or you intend the axe knowing that harm will ensue.

[01:06:37] Speaker 01:
or reckless as to whether harmless.

[01:06:39] Speaker 05:
I think this tort is both.

[01:06:40] Speaker 05:
I think they have to be intentional acts that you either intend or are reckless as to the result that they are going to cause.

[01:06:46] Speaker 05:
But that sounds like a scenario where, sure, that defendant sounds like they intended their acts and intended them to have the extreme emotional distress.

[01:06:55] Speaker 05:
And that's the piece that I think we don't have here.

[01:07:00] Speaker 01:
Thank you.

[01:07:00] Speaker 01:
Thank you very much, counselor.

[01:07:03] Speaker 01:
Ms.

[01:07:03] Speaker 01:
Murray, we'll give you two minutes.

[01:07:07] Speaker 04:
Thank you, Your Honor.

[01:07:09] Speaker 04:
With respect to the intentional infliction of emotional distress claim, I believe that there's no question that this claim should have gone to a jury.

[01:07:19] Speaker 04:
What's required to prove intentional infliction of emotional distress is extreme or outrageous conduct that intentionally or recklessly causes the plaintiff severe emotional distress.

[01:07:34] Speaker 04:
What we posit the court got backwards here is that the court analyzed

[01:07:39] Speaker 04:
the intent and solely the intent as intentional and did not analyze the comments themselves as for what they were.

[01:07:49] Speaker 04:
There is case law in the district, the Bushrod case and the Walden case, which requires that you analyze the outrageousness of the conduct first.

[01:07:59] Speaker 04:
And that is because subjective intent can rarely be proven.

[01:08:04] Speaker 04:
That's a quote from Walden.

[01:08:07] Speaker 04:
What you're entitled to as a litigant is if you can show that the comments conduct was objectively outrageous, it can be inferred to, it can be used to infer the existence of intent on the part of the speaker actor.

[01:08:26] Speaker 03:
I think the problem is I think it's clear or a jury could find that it's clear that there was extreme outrageous conduct that was intended to harm Jane.

[01:08:34] Speaker 03:
But the actual harm to her was different from what was intended.

[01:08:38] Speaker 03:
Because if the intent was to tank the investigation, but the harm was that she overheard it, and that's what upset her, there's a disconnect within the theory.

[01:08:48] Speaker 03:
And that's what I'm struggling with.

[01:08:49] Speaker 04:
Sure.

[01:08:49] Speaker 04:
So I think the harm is not just that she overheard it, but the harm is that she's a victim of a sexual assault that's going to her principal, who's the person who's tasked to investigate this.

[01:09:04] Speaker 04:
Um, it has to be reported to, to make the report that this occurred.

[01:09:10] Speaker 04:
Um, she's putting her, you know, her, her fate in these administrators hands.

[01:09:17] Speaker 04:
And instead of objectively doing this, they, you know, obviously James makes these comments.

[01:09:23] Speaker 04:
She does eventually hear these comments and it does have a negative impact on her.

[01:09:28] Speaker 03:
No, there's no doubt.

[01:09:29] Speaker 03:
I think that, that that part of it's proved or a jury could so find.

[01:09:34] Speaker 03:
The issue is proving the intentional infliction of the actual harm, because intent implies that the perpetrator intended the harm.

[01:09:47] Speaker 03:
And what Principal James was saying in the meeting tended to, it was disrespectful, et cetera.

[01:09:54] Speaker 03:
But her intent seemed to be to embarrass Jane and tank the investigation.

[01:10:01] Speaker 03:
But she didn't intend to harm Jane by Jane hearing her saying these things and then amplifying her trauma.

[01:10:07] Speaker 03:
So it just seems like there was extreme outrageous conduct.

[01:10:11] Speaker 03:
It did cause harm.

[01:10:13] Speaker 03:
But the intent of the extreme outrageous conduct was to tank the investigation and embarrass her in a different way than what actually happened, which was she overheard what was said, and that's what really upset her.

[01:10:26] Speaker 03:
And I haven't been able to find any case law that kind of addresses this

[01:10:30] Speaker 03:
But there's an intent to harm, but the actual harm is different from what was intended.

[01:10:35] Speaker 04:
I believe that the existing case law, so the cases I just cited, Bushrod and Walden, that establish the intentional or reckless standard, I think that's where there's the sort of key here.

[01:10:48] Speaker 04:
These comments, if we're just talking about the comments, and I think we do have to talk also about the comments.

[01:10:52] Speaker 03:
But wouldn't it have to be reckless that she would overhear it?

[01:10:54] Speaker 03:
Or is it just reckless that it would tank them?

[01:10:56] Speaker 03:
Well, I think it's- Reckless in what sense for our purposes?

[01:11:01] Speaker 04:
I actually think it's all your honor.

[01:11:02] Speaker 04:
So I think it's reckless in the context in which they were made.

[01:11:07] Speaker 04:
The fact that it would be easy for her to overhear it.

[01:11:11] Speaker 04:
But also in the context in which she's making these, you know, making these out, bringing this allegation to them and conducting the investigation.

[01:11:21] Speaker 04:
I mean, the, the harm that occurred as a result of

[01:11:27] Speaker 04:
James's conduct is not just the fact that she overheard these comments.

[01:11:31] Speaker 04:
It's also the fact that James deliberately misconstrued what was on the video to Dr. Pinder that caused a delay in the transfer.

[01:11:40] Speaker 04:
I think there's another element.

[01:11:41] Speaker 03:
But it didn't cause the emotional distress because she didn't know about that.

[01:11:44] Speaker 04:
Well, she did know about the delay.

[01:11:47] Speaker 04:
She certainly felt the delay, Your Honor.

[01:11:49] Speaker 04:
So I think that that's established as part of the record.

[01:11:56] Speaker 01:
I'm just trying to think about general tort law principles.

[01:12:02] Speaker 01:
You have tortious action and intent or recklessness with the requisite mens reo with the tortious action.

[01:12:13] Speaker 01:
If the harm that you occasion is not

[01:12:21] Speaker 01:
when you attended but was recently foreseeable.

[01:12:24] Speaker 01:
Is the tort piece still responsible for it?

[01:12:28] Speaker 04:
I believe so under a recklessness standard, Your Honor.

[01:12:31] Speaker 04:
I think if it was just intentional, it would not be, but under recklessness, I think it would be.

[01:12:36] Speaker 01:
Because these, I don't know, how many other people were in the room when?

[01:12:40] Speaker 04:
There are two other people in the room and one on a phone.

[01:12:43] Speaker 01:
One on the phone, so three other people.

[01:12:45] Speaker 01:
I assume none of them were sworn to secrecy.

[01:12:48] Speaker 01:
There's no evidence that James said.

[01:12:50] Speaker 04:
It's certainly not under oath.

[01:12:53] Speaker 01:
Okay.

[01:12:53] Speaker 01:
I don't know, I'm just, I'm like in first year towards here trying to think about it.

[01:12:58] Speaker 01:
If I want to pull out a gun because my intent is to scare somebody and to cause them emotional trauma because I'm mad at them or for whatever reason, and instead the consequence is it's been snowing or icy or something and they try to run away from me and slip and fall on the ice and break their leg, I assume I'm responsible for that broken leg even though I only intended emotional trauma.

[01:13:24] Speaker 04:
I believe under that scenario would be.

[01:13:29] Speaker 01:
It would be... If you knew of the circumstances... It's a different harm than what you intended.

[01:13:37] Speaker 01:
You intended some kind of harm.

[01:13:39] Speaker 01:
It's a different one that results, but it's not... Unforeseeable.

[01:13:43] Speaker 01:
It's not.

[01:13:43] Speaker 01:
It's reasonably foreseeable that these words would come to her ears.

[01:13:49] Speaker 01:
I believe that's correct.

[01:13:52] Speaker 04:
I have, if I may, Your Honor, I have just another point about Gebzer, which was discussed at length.

[01:14:00] Speaker 04:
That case, and counsel touched on this, but in that case, that was a teacher who was sexually harassing a student.

[01:14:06] Speaker 04:
And they found under principles of agency that that teacher's conduct could not be extrapolated to the administrators.

[01:14:14] Speaker 04:
I think what we have here is a different situation.

[01:14:16] Speaker 04:
This is not a school administrator

[01:14:21] Speaker 04:
sexually assaulting a student, as was the case there.

[01:14:23] Speaker 04:
This is a school administrator acting with deliberate indifference through her various comments and actions after the sexual assault was reported to her.

[01:14:36] Speaker 04:
I believe that under Gebser, that's a completely different analysis.

[01:14:41] Speaker 04:
And I think that this actually falls squarely within

[01:14:45] Speaker 04:
in terms of the school having actual knowledge of a report of the sexual assault and then taking contrary and discriminatory actions after that.

[01:14:57] Speaker 04:
So I believe James's conduct can be extrapolated to the school under GIBSR.

[01:15:03] Speaker 04:
With respect to retaliation, there's a case that we're relying on Doe versus Manor College where

[01:15:12] Speaker 04:
a student was retaliated against after reporting sexual harassment.

[01:15:17] Speaker 04:
And the retaliation included sanctioning her.

[01:15:20] Speaker 04:
And I think that is something that is akin to what occurred in this case with the marking of the absences and putting her.

[01:15:30] Speaker 01:
Was there some retrenchment evidence that all or a majority of the marked absences should have been excused

[01:15:40] Speaker 04:
There's no evidence that the majority should have been excused, Your Honor, that there's evidence that I think it's something like 19 should have been excused, 10 were ultimately excused.

[01:15:54] Speaker 04:
And again, our claim is that her condition by the time that this was overturned, of course, had snowballed in terms of what was going on with her mentally, physically, in terms of her mental health and being able to participate fully in school.

[01:16:09] Speaker 01:
Thank you very much.

[01:16:10] Speaker 01:
Any other questions?

[01:16:11] Speaker 01:
Thank you very much.