January 19, 2022

Volume XII, Number 19

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January 19, 2022

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January 18, 2022

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Sixth Circuit Sheds Light on Standard for Title IX Deliberate Indifference Claims

On December 12, 2019, the United States Court of Appeals for the Sixth Circuit held that a sexual misconduct complainant’s fear of further contact with the respondent was not enough to support a claim against the university for deliberate indifference under Title IX of the Education Amendments of 1972.

In Kollaritsch v. Michigan State University Board of Trustees, No. 17-2445, the court diverged from other circuit courts by narrowing the scope of conduct for which a university can be held liable in connection with its Title IX responsibilities.

Background

In the case, several female students brought suit against the university under Title IX alleging the university was deliberately indifferent in responding to their separate reports of sexual misconduct by the same male student.

Although the university found the male student responsible for violating its Title IX policy, one of the complainants alleged that the male student continued to stalk or intimidate her. The university investigated but was unable to substantiate her retaliation allegation. The court noted that the complainant alleged nothing more than “just seeing” the male student and failed to describe the encounters as something sexual, severe, pervasive, or objectively offensive.

The university did not find the male student responsible as to the two remaining complainants who argued that the male student’s continued presence on campus created a hostile environment.

All three complainants alleged claims of deliberate indifference under Title IX, contending that the university violated the law in its handling of their cases.

The Sixth Circuit’s Decision

In its decision, the court stated that for a student-victim to prevail on a “deliberate indifference” claim against a university, the student-victim must plead and ultimately prove the following:

  1. There was an actionable incident of sexual assault and the university knew about it.

  2. The same student-victim suffered some “further incident of actionable sexual harassment.”

  3. This further incident of actionable sexual harassment “would not have happened but for the objective unreasonableness (deliberate indifference) of the school’s response” to the original instance of actionable sexual harassment.

  4. The student-victim suffered an injury that is attributable to the further incident of actionable harassment.

The court rejected the argument that a university may be liable for its response if the student is “vulnerable” to further harassment but did not actually experience further harassment. The court recognized that a university’s inaction could be problematic but held that a deliberate indifference claim must still be premised on a “further incident of actionable sexual harassment.” The decision is at odds with other courts that have arrived at different conclusions, teeing up a circuit split for potential appeal to the Supreme Court of the United States.

In rejecting the claims, the court held that a student-victim’s fear that he or she may encounter the respondent was not enough to support a deliberate indifference claim under Title IX. Rather, the complainants would need to show that they suffered a further incident of actionable sexual misconduct in order to hold the university responsible.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume IX, Number 353
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About this Author

Rebecca J. Bennett Employment Ogletree, Deakins, Nash, Smoak & Stewart Cleveland, OH
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There is a story behind every employment discrimination claim.  Rebecca is skilled at telling your side of the story.  She unravels allegations, sifts through facts, and marshals evidence to build a defense.  Rebecca is a trial lawyer.  Through experience and intuition, she is good at evaluating risks and drawing up a winning strategy, whether that means early resolution or preparing for a jury trial.  Clients appreciate Rebecca’s cool-headed counsel in times of workplace trouble and uncertainty.

Rebecca has spent her career representing and counseling employers nationally in all...

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Federico G. Barrera Labor & Employment Attorney Ogletree Deakins Law Firm Cleveland

Rico represents employers in all facets of employment law.  He provides proactive compliance counseling, and when necessary vigorously represents employers in all phases of litigation in both state and federal court, as well as before various administrative agencies such as the Equal Employment Opportunity Commission and the Ohio Civil Rights Commission.  He has experience handling labor disputes, employee grievances, and arbitrations, as well as defending employers against claims of discrimination, harassment,  and breach of contract.  He has also helped employers...

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