By Holly Marie Wilson and Aaren Host

What conduct amounts to “deliberate indifference” sufficient to support a Title IX claim was recently addressed by the Sixth Circuit in Foster v. University of Michigan, 6th Cir. No. 19-1314 (Dec. 11, 2020). Sitting en banc, the court did not offer litigants any bright line rules but clarified that simply demonstrating that harassment continued after a university’s initial response or offering facts showing that the university’s response was ineffective is not sufficient to overcome summary judgment. 

An educational institution’s liability for the harassment of a student by another student is predicated upon whether the school’s response was “clearly unreasonable in light of the known circumstances” amounting to “deliberate indifference” pursuant to the standard set by the Supreme Court of the United States in Davis v. Monroe County Board of Educ., 526 U.S. 629, 650 (1999). The Sixth Circuit in Foster was asked to determine whether summary judgment in favor of the University of Michigan was appropriate when evidence was presented demonstrating that the measures it put in place were not effective at stopping the harassment.    

In Foster, plaintiff, a Michigan business student, complained of unwanted sexual advances by a fellow business student. The University intervened and ordered the harasser to have no contact with plaintiff. The harasser subsequently violated the no contact order after sending plaintiff a one-word text. Plaintiff alerted the University. The University reprimanded the harasser. He apologized. The University then put in place safety measures for the business program’s final session, which was to last two days. The University placed the harasser at a separate hotel from plaintiff. He was to eat separately from the rest of the class and would leave upon plaintiff’s arrival. The harasser would stay out of plaintiff’s sight during classes. If the harasser was present at the same social event, he would leave immediately. Michigan assigned two administrators to monitor the situation. 

Once the final session of classes resumed, the harasser violated the no contact order, posting an offensive Facebook message and initiating contact in the lunchroom. After plaintiff notified Michigan, it told the harasser he could not attend the last day of the program. After the harasser sent a series of “unhinged” emails, the university took the next step of prohibiting him from attending the program’s graduation ceremony. It then contacted the harasser’s lawyer to confirm he would not attend, reached out to the campus police, and assigned plain clothes police officers to be placed near plaintiff at the ceremony. Last but not least, the University allowed plaintiff an extension to complete her program assignments and allowed her to re-take an exam.

After the harasser showed up at plaintiff’s hotel on the eve of graduation, campus police were notified and removed the harasser pursuant to a restraining order plaintiff had obtained. The University issued a final investigative report that found that the harasser had committed sexual misconduct, it instituted a permanent no-contact order, and it placed a permanent notation on his transcript that he had committed sexual misconduct, banning him from campus for three years and from ever attending the same event as plaintiff. 

In light of these facts, a divided panel reversed the district court’s grant of summary judgment in favor of Michigan, finding that there was an issue of material fact as to whether the school was deliberately indifferent to the ongoing sexual harassment. Some of the facts the panel found remaining for jury consideration included whether the Michigan’s actions were inadequate given the harasser’s escalating conduct and whether the university should have implemented more forceful measures. 952 F.3d 765, 784–88 (6th Cir. 2020).   

After hearing the matter en banc, the full court affirmed the district court’s summary judgment ruling, finding, as a matter of law, that Michigan’s actions did not amount to deliberate indifference. Judge Sutton, writing for the majority, quizzically inquired, “[w]hat at any rate could the University have done differently?” The Court concluded that this cannot be the question to be asked in deliberate indifference matters, albeit a natural question to ask when confronted with the facts before it. The majority held that to ask such a question would make strict liability the rule.  

Ultimately, the majority refused to “dilute” the deliberate indifference standard to one of “mere reasonableness,” holding that “[u]nder Title IX, a school may be held liable only for what it can control.” An issue of fact is not created when the school fails to completely eliminate the harassment, despite a plaintiff’s belief that more could have been done.

While the Foster decision offers some teeth to the high bar presented by the deliberate indifference standard, it is notable that the Sixth Circuit did not take the opportunity to articulate a clear standard of review for deliberate indifference cases. Instead, litigants are left with the Davis Court’s guidance that, “[i]n an appropriate case,” the deliberate indifference inquiry can be resolved as a matter of law. Thus, deliberate indifference cases will likely continue to present a hybrid mix of fact and law which will continue to produce mixed results when it comes to dispositive motion resolution.     

If you have any questions concerning Foster v. City of Michigan, or have any questions regarding Title IX liability, contact a member of our Education Law Liability Practice Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.


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