12-29-2020
The Sixth Circuit Court of Appeals, sitting en banc, held that the University of Michigan did not act with the “deliberate indifference” required by Title IX. (Foster v. University of Michigan) This decision reversed a Sixth Circuit panel ruling from March 2020. In that initial ruling, the Sixth Circuit concluded “deliberate indifference” was a question of fact for the jury to determine.
In the underlying facts, Rebecca Foster endured sexually harassing conduct from a fellow student while enrolled in the University of Michigan’s MBA program. Foster filed an official complaint with the University, providing documents in support of her complaint. The University investigated. After interviewing Foster, the University issued a no-contact order and instructed the harasser not to retaliate against her. When the harasser violated the order, the University reprimanded him. The University also imposed safety measures, including housing the harasser in a different location and insuring he sat far away from her during class. When the harasser violated the no-contact order again, the University prohibited him from attending class and the commencement ceremony. It also assigned plainclothes security to protect her. At the end of its investigation, the University found the harasser had sexually harassed Foster and banned him from ever attending any function with Foster.
The Sixth Circuit Court of Appeals considered only whether the University acted “deliberately indifferent to known acts of student-on-student sexual harassment.” As noted by the court, this standard presented a high bar. After reviewing the University’s “escalating” responses to the harasser’s conduct, the court determined the University had not acted deliberately indifferent as a matter of law. The school initiated its response with a verbal warning that moved up through various no-contact orders, culminating in the harasser’s suspension from class and removal from commencement. The court took into account the University’s “thin line” between protecting the victim and respecting the harasser’s statutory and constitutional rights to a fair process. Going forward, the court did not provide clear guidelines as to when “deliberate indifference” will be a question of fact or a matter of law.