Title IX is a federal law that prohibits sex discrimination.Courts have consistently found that student-on-student sexual harassment is sex-based discrimination and that the university can be held responsible for it if the university remains “deliberately indifferent.” This means paying students damages if they are victimized on campus, but the University sits on its hands.

However, holding a university responsible for ignoring claims of sexual harassment is very difficult and often depends both on the facts and context as well as, unfortunately, the luck of the draw in getting a good judge or being located in a favorable jurisdiction.  More so than other claims, protecting the claims of victims and university proceedings often requires a good higher education attorney.

Courts disagreeover what constitutes “deliberate indifference” and how it comes into play when a university fails to investigate a claim or fails to respond effectively.  The question is always, does the university have a duty to act and, even if it does act, has the university failed in its dutyto protect victims of student-on-student sexual assault?

Title IX and the deliberate indifference standard

As conventionally understood, deliberate indifference is “the conscious or reckless disregard of the consequences of one’s acts or omissions.” A college or university can be deliberately indifferent when it sweeps harassment under the rugdespite actual knowledge of the harassment.

When applied to Title IX, deliberate indifference describes conduct where the university had actual knowledge of sexual harassment, but deliberately failed act when action was clearly called for.  Colloquially, we simply call this doing nothing when you know something has to be done.

The Supreme Court developed the deliberate indifference standard in two cases of the 1990s, Gebser v. Lago Vista and Davis v. Monroe County.

In the fist, a teacher was victimizing a student; in the second, a fifth-grade girl was being victimized by a fellow student.  Together, these cases defined deliberate indifference as harassment that 1) is so severe, pervasive and objectively offensive that it deprives the victim of the educational opportunities and benefits of the school, 2) that is actually known to a school official with, who, at minimum, has the authority to do something aboutit, and 3) that the schoolacts in a way that is clearly unreasonable.

Kollaritsch and Foster

In two recent Sixth Circuit Court of Appeals cases, the court has looked at the Gebser/Davis standard more closely.These two cases examine when a university’s response is unreasonable, and what kind of harm the student victim must experience to win.

In Kollaritsch, et al. v. Mich. State Univ. Bd. of Trustees, et al., four female Michigan State University students reported a fellow student for sexual harassment.  He had already been investigated for an alleged date rape two years earlier, but MSU ultimately found him not responsible after an appeal to the university vice president and associate provost for student affairs.  They reversed an initial decision to expel him.

Kollaritsch and her co-plaintiffs argued that this showed deliberate indifference because it permitted the student to remain on campus and sexually assault others, including them.  They also claimed that MSU delayedits investigations and otherwise acted either incompetently or in ways to protect the accused student.

But the Sixth Circuit found no proof that the victims suffered additional harm in the form of sexual harassment after they first reported the student, regardless of the initial incident in which he was accused but eventually exonerated.

Past allegations against him did not count as “actual knowledge” of harassment.  The new round of allegations(for some of which he was also found not responsible for but some of which he was found responsible) resulted in disciplinary action, after which, the court found, none of the plaintiffs experienced anymore harassment.  They claimed his continuing presence and what they viewed as a miscarriage of justice caused them ongoing harm.  But the court found the university’s response was not “clearly unreasonable.”

That is, the university did at least the minimum to avoid liability in court and did not have to pay the plaintiffs damages. The plaintiffs’ dissatisfaction with their school, its lethargic response, and what they saw as insufficient punishment of the student was not enough to prove “deliberate indifference.”

Kollaritsch hinged on a narrow interpretation of Davis, where the school isn’t liable unless its deliberate indifferencecauses the victimto additional harm.  The theory at work is simple if uncompromising: courts should not have to intervene in the internal disciplinary affairs of schools except in the most extreme circumstances.  Even if they act less than competently but not “clearly unreasonably,” that’s enough.

Compare this position with the court’s ruling in Foster v. Univ. of Mich. Bd. of Regents et al.

The Sixth Circuit reversed a lower court decision where the victim of a creepy stalker, her classmate in an executive MBA program,had to obtain a restraining order in court.  She also complained to the university, but the university’s lethargic and ineffective response left the stalker more or less free to harass her some more, which the victim continued to report.  It was not that the university didn’t do anything. It didn’t do anything effective enough to keep the creep away. Somewhat like Kollaritsch, the lower court found the harassment had “all but stopped” after the victim reported the creep;thus, what more could the university be expected to do?

Plenty, answered the Sixth Circuit.

The Sixth Circuit sent the case back to District Court for trial. Now Foster will be able to make her case to a jury that the university clearly did not do enough and knew that it was not doing enough.

One big difference between Kollaritsch and Fosteris that Fostercontinued to suffer harm in the form of repeated exposure to the stalker.  She plausibly argued that the university’s deliberate indifferenceto the creepy stalker allowed this to happen, despite its clear knowledge that the he had to be stopped.

By comparison, in Kollaritsch, the court found that plaintiffs could only argue that they were “subjectively” dissatisfied with the outcome of the school’s disciplinary action against their harasser.  They had not sufferedongoingharassment.

In these kinds of cases, the facts on the ground make all the difference.  Was the university’s decision to reverse the expulsion of the accused student in Kollaritsch simply the result of fair due process or an attempt by the administration to sweep sexual assault on campus under the rug?

Similar Facts Can Lead to Different Outcomes for Victims

A recent case against the University of Alabama-Huntsville presents similar facts Kollaritsch, but the court came to a different decision than Kollaritsch.

There an inebriated hockey player admitted to taking a drunken female student to his room, where he took off her clothes and started to have sex with her, even though she was incapacitated, which the hockey player admitted.  Shortly thereafter, he claimed, hethought better of it, so took the woman back to the suite in which he found her.  The hockey player had a history of disciplinary problems and had already been on probation for alcohol abuse.

The University of Alabama’s Conduct Board found him “responsible” for sexual assault and recommended expulsion.  Upon review, however, the Associate Provost considered the sanction too severe, writing “we have people walking around this campus that are known to have committed worse.”  As in Kollaritsch, an appeal to the higher level of administration resulted in leniency.

The player’s hockey coach also acted to protect the him and even posting bail when the player was arrested on criminal charges.  Yet the University first dissuaded the victim from pressing criminal charges, and when charges were pressed, the hockey player was able to reach a deal in which he could exit the country for his native Finland instead of standing trial for first-degree rape.

Mightily unimpressed by the University of Alabama’s protest that it hadnot acted clearly unreasonably, the judge considered the whole and found it to be a pattern of do nothingness in the face of serious allegations of sexual assault.  The young woman did not protest ongoing harassment, but that her assault had been the result of a long-established pattern that the University’s indifference had encouraged.

This was not simply the wheels of an inept university disciplinary system grinding forward; it was deliberate indifference.  More than that, the school actively sought to protect the hockey player at the victim’s expense.

The victim’s allegations of suffering emotionally due to the university’s intentional bungling of her complaint was enough to show harm after the initial assault.  In Kollaritsch, similar allegations had not sufficed to show ongoing harm.  The University of Alabama student was not required to show that she suffered repeated exposure to direct harassment.

Cases like this turn on careful development of the facts.  This makes it extremely important to seek representation by counsel.  An experienced higher education law attorney can prepare your case as it develops and also protect you from institutions of higher education that systematically bungle your case and ignore your rights.

If you believe have a Title IX claim against your school or university, call the team at Allen Law for a consultation.