A few months earlier, a Sixth Circuit Court of Appeals panel in an opinion by Judge Alice Batchelder held that a female accuser did not have a cause of action against the college for allowing the accused to remain on campus. Or to put it bluntly, not suspending or expelling the male student did not allow the female student to claim she was harassed by having to suffer his mere presence on campus.
In short, we hold that a student-victim plaintiff must plead, and ultimately prove, that the school had actual knowledge of actionable sexual harassment and that the school’s deliberate indifference to it resulted in further actionable sexual harassment against the student-victim, which caused the Title IX injuries. A student-victim’s subjective dissatisfaction with the school’s response is immaterial to whether the school’s response caused the claimed Title IX violation.
What this meant is that colleges didn’t subject themselves to liability to the accuser by imposing a lesser remedy than expulsion, and that the circuit was emphasizing a return to the criteria stated by the Supreme Court in Davis v. Monroe County Board of Ed., that the harassment must be “severe, pervasive and objectively offensive.”
A different panel of the Sixth Circuit just ruled to the contrary in Foster v. University of Michigan.
Foster was the victim of sexual harassment during a University of Michigan Ross School of Business executive MBA program located off-site in Los Angeles, California. After Foster reported that the respondent*, a fellow classmate in the program, had sexually harassed her, the University instituted a no-contact and no-retaliation order against him while it investigated her complaint. Foster argues that the University’s response to the respondent’s unwillingness to comply with these measures was clearly unreasonable and caused her to undergo further harassment.
Because we believe that Foster has established a genuine issue of material fact as to whether the University was deliberately indifferent to the sexual harassment she suffered at the hands of a fellow student, we REVERSE the grant of summary judgment and REMAND for further proceedings consistent with this opinion.
There is an obvious and salient factual distinction between the two decisions. In the earlier case, the male accused’s only “offense” was still existing on campus, and the accuser’s “complaint” was that she would see him, and that the mere sight of him was traumatic enough to constitute harassment.
In the second case, the accuser claimed that the male accused engaged in affirmative harassing conduct in violation of the “no contact” order imposed by the school.
The accused student later violated the order, blocking Foster from doorways, texting her, writing threats on Facebook and detailing Foster’s Title IX claim via email to other students in the E.M.B.A. program. The university followed up on Foster’s communication about the incidents and banned the accused student from a class and from attending commencement events in Ann Arbor, Mich., according to court documents. He was arrested after showing up to a commencement event and sent back to California, the opinion states.
While the details, and the significance of the conduct, are disputed, the court nonetheless held the remedy used by Michigan, the “no contact” order and various related directives, were not, as a matter of law, sufficient to show that even if they proved insufficient, the school was not “deliberately indifferent.” In other words, even though the school took deliberate action, it could still be liable for deliberate indifference if the court, in retrospect, deemed the action inadequate.
What’s a college to do? As much as Judge Batchelder’s opinion concluded that the mere sight of an accused male student didn’t constitute harassment, such that the university was under no duty to suspend or expel every male accused lest it be liable under Title IX if the female student complained, the liability is contingent not on the university’s deliberate response to the complaint, but hinges on the male student’s compliance, the female student’s subjective satisfaction with the remedy and, of course, the validity of the subsequent complaints that the male student continued to engage in conduct that the female student felt was harassment.
The only safe way for a college to avoid Title IX liability, then, is to suspend or expel the male student, since they can’t be positive that the male student left on campus won’t engage in conduct that either is, or could be deemed, harassment. Indeed, even if the male student tries his best to comply with the school’s directives, there is no assurance that the students won’t cross paths at times, particularly when they’re both in the same educational program. And there is never an assurance that the sensitivity of the accuser won’t give rise to exaggerated claims of trauma and suffering by otherwise benign and harmless action.
“It’s a dynamic process,” [Appellant’s attorney, Joshua] Engel said. “The school puts in place what seems reasonable, but when the accused student says, ‘I’m not going to follow these rules,’ the school can’t just say, ‘We did something, good luck.’”
In dissent, Judge Jeffrey Sutton points out the absurd conundrum.
It’s not a university’s job to do the impossible—to “purg[e] their schools of actionable peer harassment”; it’s a university’s job to respond in good faith to allegations of harassment to eliminate the problem.
That’s what Michigan tried to do and tried to do in good faith. From March 13, 2014, forward, Foster presented the University with five instances of misconduct by the harasser. Each time, the University adopted escalating measures proportionate to the misconduct. Not once did its action remotely count as “clearly unreasonable.”
Going forward, there appears to be only one rational option in the Sixth Circuit for schools confronted with an accusation of sexual harassment, not because far lesser options aren’t available and won’t work, but because the good-faith efforts to address them using reasonable means won’t protect the school from subsequent Title IX liability: get rid of the male student.
*Inexplicably, but perhaps tellingly, the court refers to the accused male student as the “respondent” even though he was not a party to the action.