The University of Michigan recently secured a significant victory in a Title IX case that split judges on the Sixth Circuit Court of Appeals.
In an 8-6 en banc decision, the court overruled the decision of a three-judge panel and found that the university had responded adequately to an alleged victim’s allegations of harassment. The appeal court added that UMich had acted appropriately at every stage of its investigation. The three-judge panel had previously found that there was sufficient evidence that UMich had not done enough to protect the student from a hostile environment and that the sexual harassment case should go to trial.
The Sixth Circuit’s first decision on this case was covered in this blog here. The District Court had originally dismissed the case, but a three-judge panel of the Federal Appeals Court reversed. The ruling was seen at that time as establishing guidelines for lawsuits brought by alleged victims against universities that botched Title IX complaints, failed to protect the women, looked the other way, and let perpetrators off the hook.
The lawsuit was initially filed by Rebecca Foster, a student in the university’s Executive MBA program. Part of the program involved a three-day weekend each month at a Los Angeles hotel. Foster accused a classmate, anonymously named the “harasser,” of sexually harassing her, not only including unwanted advances, touching and derogatory comments of a sexual nature, such as calling her “hoe beast” and other names.
Upon receiving Foster’s complaint, the UMich began an investigation and required the harasser to cease all contact. But the harasser quickly violated the order. He texted Foster in response, “really,” and began to escalate the situation in communications with university staff and fellow classmates via social media and email, defying them to stop him.
UMich ultimately excluded the harasser from physically attending both classes and the graduation ceremony. He nevertheless persisted. He appeared at the commencement location while Foster was present, requiring campus police to intervene and force him to go to the airport and get on a plane back to California, where he lived.
The university’s report of its investigation found the harasser to have committed sexual misconduct. He was banned from campus for three years and from ever attending a university function attended by Foster. Undeterred, he persistently expressed his intention to defy the university.
Foster sued the university under Title IX, alleging that the university’s investigation was inadequate and demonstrated indifference to her harassment.
The en banc decision reverse the three judge panel and restores the decision of the District Court
In an en banc review, the entire bench of justices of a Circuit Court of Appeals in the Circuit (here the Sixth, which covers Kentucky, Michigan, Ohio, and Tennessee) reviews a previous decision of the appeals court. If a majority of the justices disagree with the first ruling, by three judges, the appeals court essentially overrules itself. That is what happened here.
The majority of the court justices ultimately ruled that Foster’s lawsuit must be dismissed. Universities are not required to implement perfect solutions to swxual harassment but only those that are not “deliberately indifferent” to the victim. Title IX makes it illegal to discriminate on the basis of sex, but unfortunately it does not protect anyone from university incompetence.
The majority of the Sixth Circuit held that the university took appropriate action on multiple occasions to respond to Foster’s claims and the inappropriate conduct of the harasser. This included issuing a no-contact order, verbal warnings, as well as aforementioned ban from class and graduation. The university further banned Foster’s would-be paramour from campus and school events—which he then tried to ignore and defy.
The university even assigned plainclothes officers to protect Foster when her harasser went on tirades against her, her classmates, and university staff. The university’s argument may be boiled down to: “what more do you expect us to do?” The Sixth Circuit now answers: “nothing, really.”
The decision was not unanimous. The dissenters on the court believed that it should be for a jury to determine whether or not Foster was treated fairly under Title IX. They also argued there should have been more analysis the university’s “deliberate indifference” given the circumstances. For example, the university knew its initial no-contact order was not effective but really did not do much about it.
Ultimately, the dismissal of the case is a significant victory for educational institutions and protects them from liability from alleged victims. The uphill battle against university incompetence and bumbling administrators has now become even steeper.
This is also why anyone involved in a Title IX dispute on campus should turn to legal counsel earlier rather than later. An experience higher education attorney will prepare your case from the beginning to protect your rights, and this almost always means spotting and documenting administrative incompetence.