[00:00:51] Speaker 02:
What was the actual, what happened with the criminal charges?

[00:01:34] Speaker 03:
And then they thought that the police were.

[00:05:11] Speaker 03:
with respect to sabotage of the orderly resolution of the complaint for the entire pendency of that five-month period, the reason that Manhattan Beach Unified School District gave for not investigating was purportedly that the police were investigating themselves.

[00:05:27] Speaker 03:
What were you saying is the five-month period from when the school learned of the

[00:05:43] Speaker 03:
be counted against the school since they didn't even know who the person was.

[00:05:48] Speaker 03:
The plaintiff submits that there was sufficient evidence included in that voicemail for the school to ascertain who it was.

[00:05:53] Speaker 00:
Is there any dispute as to the reason why they didn't investigate that is that they believed that the police were investigating and the police told them not to investigate until they were done?

[00:06:03] Speaker 03:
There's no dispute that that is the stated rationale by Manhattan Beach Unified School District for not investigating.

[00:06:23] Speaker 03:
with the police coupled with the unequivocal testimony by the relevant Manhattan Beach Police Department detective that no investigation was ever opened after that July 25th complaint refusal form.

[00:06:34] Speaker 00:
So is it your position that there's a dispute of material fact?

[00:06:38] Speaker 03:
Yes, yes.

[00:06:40] Speaker 03:
And what is it exactly?

[00:06:49] Speaker 03:
perhaps an unskilled game of telephone between the

[00:07:26] Speaker 03:
of the students' offending behavior.

[00:08:13] Speaker 02:
of the rape, but the school doesn't have authority to make criminal investigations for a criminal incident that happens off campus.

[00:08:22] Speaker 02:
What they would have authority is to investigate harassment on campus.

[00:08:25] Speaker 02:
And so what if you allege that there's a delay and that it seems like they were reacting pretty quickly to whenever she complained about, you know, she would see him and she'd be in a school path and they would change and immediately try and rectify that.

[00:08:40] Speaker 02:
So that's because the delay shouldn't be from the

[00:08:56] Speaker 03:
the month of August, when the meetings took place.

[00:08:59] Speaker 03:
And multiple cases in the city.

[00:09:01] Speaker 03:
Mr. Do you agree that they don't have authority, that that's not, they don't have authority over that?

[00:09:06] Speaker 03:
Over a criminal investigation.

[00:09:08] Speaker 03:
Yes.

[00:09:09] Speaker 03:
What would you have wanted them to do in the

[00:09:36] Speaker 02:
the school.

[00:10:50] Speaker 03:
they should have been a little bit more relaxed.

[00:11:33] Speaker 03:
Um, so they didn't change its schedule, and even when they did make those changes... But they told them to leave by noon, I think it was, or something like that.

[00:11:39] Speaker 03:
They did, but this was, again, in December of 2018, after nearly five months of notice to the school.

[00:12:49] Speaker 03:
not be what may be unreasonable in the context of a secondary school may not be unreasonable in the context of a university.

[00:12:55] Speaker 03:
So to answer your question, yes, I think schools face a heightened responsibility, grade schools face a heightened responsibility as

[00:14:14] Speaker 04:
I think the primary issue with

[00:14:52] Speaker 04:
And current Title IX regulations presently, although they weren't in effect at the time of this incident, still give some guidance on what is reasonable under the circumstances.

[00:15:02] Speaker 04:
And presently under those regulations, a school cannot contact a respondent to investigate an incident of sexual assault if there is no formal written complaint.

[00:15:13] Speaker 04:
The school can offer supportive measures to the victim.

[00:15:16] Speaker 04:
But without the victim's willingness to sign a complaint stating, I want an investigation,

[00:15:22] Speaker 04:
The school should not contact the respondent out of fear of potential retaliation.

[00:15:27] Speaker 04:
And here we have clear plaintiff's insistence on anonymity.

[00:15:31] Speaker 04:
Sure, her parents were going to the school and saying, I want XYZ.

[00:15:35] Speaker 04:
But by the time the plaintiff actually spoke to the school about this, she declined any types of measures that would draw attention to herself.

[00:15:44] Speaker 04:
She didn't want a security.

[00:15:55] Speaker 04:
for some schedule changes and it was given the allegations that now in hindsight, there was a verbal request to investigate or a verbal title nine complaint is simply not sufficient to trigger the criminal investigative duties on a school that the plaintiff is trying to impose here.

[00:16:20] Speaker 04:
to go to school, a free and appropriate right to public education.

[00:16:24] Speaker 04:
Their rights on campus cannot simply be restricted based on a parent.

[00:16:30] Speaker 04:
Even plaintiff herself was upset that the parent went above her head to the counselor and told the counselor about the issue.

[00:16:36] Speaker 04:
A plaintiff skipped meetings with that counselor because the mother did that.

[00:16:41] Speaker 04:
You know, clearly there was some disconnect between the parents, but without a formal complaint,

[00:16:54] Speaker 00:
I do think that's an important point because as mandated reporters under the child abuse and neglect reporting act.

[00:17:15] Speaker 04:
the police any sort of sexual assault, which is exactly what we did here.

[00:17:20] Speaker 04:
We have Stephanie Hall saying she called the police.

[00:17:22] Speaker 04:
The police told her that she was investigating.

[00:17:25] Speaker 04:
Jennifer Leach was not un-privileged in her testimony.

[00:17:28] Speaker 00:
She actually said, I'm not sure.

[00:17:41] Speaker 00:
investigating and that's a disputed factual issue.

[00:17:46] Speaker 00:
I don't agree that it's a disputed factually

[00:17:57] Speaker 04:
but she doesn't remember exactly what she said.

[00:18:00] Speaker 04:
But there were no ongoing communications between the police about a minors file to the school.

[00:18:06] Speaker 04:
In fact, when the school tried to ask the police about what was going on in November, there's an email from the police where the police are saying, I can't talk to you about a minors investigation, but I'm clearing you to investigate on your own.

[00:18:18] Speaker 04:
At this point, the school reported it out to the authorities for the authorities to investigate the rape when the on

[00:18:27] Speaker 04:
on campus was brought to the school.

[00:18:30] Speaker 04:
They responded at every

[00:18:44] Speaker 01:
I think the 27th.

[00:18:47] Speaker 04:
Yeah, so on the 27th was actually just one week after the police had already met with Tyler Gordon and instructed him to stay away from her, go to a diversion program.

[00:18:57] Speaker 04:
So the police were still doing some activity on the case, maybe not an investigation, but a school district of high school students is powerless to conduct a criminal type inquiry of off-campus conduct.

[00:19:09] Speaker 04:
They don't have subpoena power.

[00:19:11] Speaker 04:
They can't do DNA tests.

[00:19:24] Speaker 04:
investigation consisted of speaking with the plaintiff, asking her, what is it that she's seeing?

[00:19:29] Speaker 04:
What is it that you need?

[00:19:31] Speaker 04:
There were actually many meetings where the council requested to speak with the plaintiff in September, in October, and she just didn't go to the meeting.

[00:19:38] Speaker 04:
So they kept reaching out to the parent.

[00:19:40] Speaker 04:
They kept trying to offer alternative.

[00:19:42] Speaker 01:
What about the petitioner's fault that she did not comply with the school's request for an investigation?

[00:19:49] Speaker 04:
I'm not going to blame the petitioner or Ms.

[00:19:51] Speaker 04:
Jane Doe for any aspect of this

[00:20:01] Speaker 04:
to put the school on written notice that I want an investigation and I want to sign a complaint against this perpetrator.

[00:20:09] Speaker 04:
After being given multiple opportunities to do that, that was never made.

[00:20:14] Speaker 01:
I just want to get a clear answer from what the school's position is.

[00:20:18] Speaker 01:
What was the reason for not investigating in August, beginning there in August?

[00:20:24] Speaker 01:
I just need to know that.

[00:20:25] Speaker 04:
The school was under the belief that there was a criminal investigation that was ongoing.

[00:20:40] Speaker 04:
Even if it were, it would be enough to remand this back down because there's so many other facts that show there was no deliberative difference here.

[00:20:48] Speaker 04:
Significantly more facts than there even was in the carousel case, which found that a multiple month, I think it was eight and a half month delay in investigation.

[00:21:01] Speaker 04:
finding of deliberate indifference on the school, even a failure to tell the respondent or the petitioner in Karasek about the status of the investigation was still not enough for deliberate indifference in Karasek.

[00:21:15] Speaker 02:
So does the Title IX duty, does it have a nexus to campus at all?

[00:21:21] Speaker 02:
So say, for example, rape was reported in August, but it had nothing to do with campus.

[00:21:26] Speaker 02:
She's not saying anything that affects her at all on campus.

[00:21:38] Speaker 04:
I would say that at that point the school has a duty to offer remedial measures and that the duty to investigate is triggered by a formal written complaint.

[00:21:46] Speaker 02:
But isn't Title IX's duty is harassment on campus or is it harassment off campus?

[00:21:52] Speaker 04:
I agree that Title IX is with respect to on-campus conduct and if there is actual notice of on-campus conduct that is going on.

[00:22:08] Speaker 04:
started yet exactly exactly and as soon as school did start because at that point it's just a criminal investigation it's a rape that's happened off campus I do completely agree and even at that point we had just learned of the perpetrators name as of the first week of school as was just admitted by my colleague when he was up here so it's

[00:22:41] Speaker 04:
I do think that the requirements of Title IX to appropriately respond to the situation were triggered and I do think they were making every effort to respond to it.

[00:22:59] Speaker 04:
Every time she requested a meeting

[00:23:06] Speaker 04:
have her come in later in the day if she would like.

[00:23:10] Speaker 04:
The problem is to speak

[00:23:26] Speaker 04:
He blew up in social media and he obviously knew then that he was being accused of this crime by this person because it was all over social media.

[00:23:34] Speaker 04:
It was unavoidable at that point to get the respondent involved when the plaintiff at the beginning feared retaliation.

[00:23:42] Speaker 04:
So instead of involving him, they focused on what they could do to help her.

[00:23:46] Speaker 04:
They responded to every request that she had.

[00:23:48] Speaker 04:
This wasn't a situation where she was completely ghosted, for example, and just left to her own devices.

[00:24:02] Speaker 04:
exact things that she wanted.

[00:24:04] Speaker 04:
We know she wanted the perpetrator to be kicked off the wrestling team and to be kicked off campus.

[00:24:10] Speaker 04:
That was her two primary asks.

[00:24:12] Speaker 04:
And it has been the ask all throughout her senior year and all throughout this litigation.

[00:24:18] Speaker 04:
But an aggrieved victim is not entitled to the precise remedy that they seek.

[00:24:23] Speaker 04:
The school would be subjecting itself to liability on the perpetrator side, as we've seen in erroneous outcome claims.

[00:24:30] Speaker 04:
If we were to have willy-nilly kicked him off campus or denied him participation in athletics without having some sort of criminal justification for doing so or some sort of on-campus conduct that supported such drastic measures after a hearing had taken place and without the formal written

[00:24:57] Speaker 04:
against this perpetrator.

[00:24:59] Speaker 04:
It's a sticky situation.

[00:25:00] Speaker 04:
It's not ideal in anyone's situation.

[00:25:05] Speaker 04:
The perpetrator wasn't happy.

[00:25:07] Speaker 04:
Ms.

[00:25:07] Speaker 04:
Doe wasn't happy.

[00:25:08] Speaker 04:
The school wasn't happy.

[00:25:10] Speaker 04:
No one wanted this to happen to her.

[00:25:12] Speaker 04:
But when you're faced with something horrific and responding to it while trying to balance the constitutional rights and the rights of privacy of two minors that are involved, I think the school here acted in a manner

[00:25:25] Speaker 04:
It took those issues into account.

[00:25:28] Speaker 04:
It tried to balance those realities.

[00:25:31] Speaker 04:
And those are the types of things that Davis talked about when it talked about Title IX liability in the peer-on-peer harassment context when you're dealing with minors in schools.

[00:25:41] Speaker 04:
Because there can be things like name-calling, teasing of minors that may not necessarily trigger Title IX liability, but might trigger a response so that way it doesn't escalate.

[00:25:55] Speaker 04:
to respond to her in every way that we could while trying to balance everyone's rights under the situation.

[00:26:01] Speaker 04:
So I think under the facts of the Carrouset case, the Oden case, Ninth Circuit precedent, which talks about the requirement that there be deliberate indifference before Title IX liability can lie, there must be an

[00:26:21] Speaker 04:
before Title IX liability may lie.

[00:26:23] Speaker 04:
And based on that precedent, I do think here that the summary judgment ruling should be affirmed because there is no evidence of deliberate indifference here.

[00:26:34] Speaker 04:
If there's no further questions,

[00:27:10] Speaker 03:
submitted in a particular form.

[00:27:12] Speaker 03:
However, information suggesting that a serious act of rape

[00:27:41] Speaker 03:
unreasonable.

[00:27:43] Speaker 03:
With respect to the contention that she didn't want the school to discuss the allegations with Tyler Gordon, I think she was equivocal on that point, but regardless, the school could have apprehended the testimony of the other victims of Tyler Gordon, which was available, the information for those victims was available to the school as early as August of 2018.

[00:28:03] Speaker 03:
The Rost case cited in the

[00:28:35] Speaker 03:
about police investigation.

[00:28:37] Speaker 03:
Okay, Councilor, over time if you want to wrap up.

[00:28:41] Speaker 03:
Genuine disputes of material fact permeate this file.

[00:28:43] Speaker 03:
I'd submit that the matter should be remanded, given the substantial evidence of deliberate indifference on the part of the district.

[00:28:50] Speaker 02:
Thank you, Your Honor.