Over the past several years, colleges and universities have experienced a plethora of litigation involving student-on-student sexual assaults.¹ The majority of these suits assert Title IX causes of action.²

Typically, at the college level, a student-complainant alleges that he or she was sexually assaulted by a fellow student-respondent. University investigators determine if the respondent violated school policy. This student conduct investigation is separate from a criminal investigation. If it is determined by a preponderance of evidence after a hearing that the student-respondent violated university policies, sanctions are issued. In most cases, the respondent can appeal the decision at the university level.

As of Aug. 14, 2020, under Title IX regulations promulgated by the U.S. Department of Education, attorneys are now allowed to question witnesses at hearings during a university’s investigative process.³ A sexual harassment complaint under Title IX may be filed with the Department of Education’s Office of Civil Rights (OCR) within 180 days of the last act of discrimination.⁴ Regardless of the outcome of the OCR complaint, a victim can file a federal lawsuit.⁵ Indeed, victims of sexual harassment can file a Title IX lawsuit without filing with the OCR first. The statute of limitations depends on the state in which the school is located.⁶

Under Title IX, holding a college or university liable for peer-to-peer sexual harassment requires the victim to demonstrate the institution acted with deliberate indifference. The U.S. Supreme Court held in Davis v. Monroe County Board of Education⁷ that a recipient of federal education funds, such as a college or university, may only be liable for student-on-student harassment when the university had an official policy of deliberate indifference, creating a heightened risk of sexual harassment to the plaintiff.⁸

After the Supreme Court decision in Davis, the Department of Education amended regulations implementing Title IX. The amendments adopted a modified version of the deliberate indifference standard set forth in Davis.⁹ Under the amended regulations,¹⁰ a university must provide supportive measures to complainants, which include:

[N]on-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the recipient’s educational environment, or deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The recipient must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the recipient to provide the supportive measures.¹¹

If the respondent is found to be responsible for sexual harassment, the institution must effectively implement remedies for the complainant designed to restore or preserve the complainant’s equal educational access and may impose disciplinary sanctions on the respondent.¹²

SIXTH CIRCUIT: DELIBERATE INDIFFERENCE

The U.S. Court of Appeals for the Sixth Circuit recently decided Foster v. Board of Regents of University of Michigan, a Title IX case involving the sexual assault of a student by a fellow student. The court found that the University of Michigan was not liable under Title IX because even if the harassment occurred, the institution was not shown to have been deliberately indifferent to the plaintiff’s complaints.¹³

In Foster, the plaintiff was part of an off-site MBA program based in Los Angeles that occasionally required students to stay at a hotel to participate in weekend educational sessions. The plaintiff became friends with the respondent through the program. Between September 2013 and February 2014, the respondent expressed interest in a romantic relationship with the plaintiff. On multiple occasions, he made unwanted physical contact including grabbing her buttocks, rubbing her leg, forcefully kissing her, and more than once climbing into her bed and attempting to force himself on her.¹⁴

On March 13, 2014, the plaintiff first reported the sexual harassment and assaults to the university’s Office of Institutional Equity. After the initial report, the respondent was instructed not to have contact with the plaintiff and not to retaliate against her in any way. In addition, the plaintiff and respondent were required to stay at different hotels and the respondent could not eat in the same dining room. However, the respondent was still allowed to attend class with the plaintiff, though he was not allowed to attend social activities. The plaintiff complained the accommodations were not sufficient to address her safety concerns.¹⁵

On April 3, 2014, the respondent sent a crude email to various university administrators referring to the plaintiff as a “psycho” and a “lying slut whore.” Still, the respondent was allowed to attend class with the plaintiff the next day; during breaks that day, the respondent stood in the plaintiff’s way when she exited class and went to get a beverage and blocked her when she tried to return to her desk. The plaintiff requested that security be called and the respondent be prevented from attending class the next morning. While the respondent did not attend class the next morning as directed by the university, he sent several classmates messages calling the plaintiff “a mean awful person,” a “wackadoo chick,” and stating, “my, what a time we had in her bed and mine for a few months there.”¹⁶

After the program concluded, the respondent sent more emails to university administrators generally criticizing the investigation, using aggressive language, and making various demands. For instance, in one email, the respondent said he would graduate with his class in person; though the university barred him from attending commencement and advised him to “exercise caution,” the respondent flew to Ann Arbor and appeared at a graduation function.¹⁷

The plaintiff brought a lawsuit under Title IX which was dismissed on summary judgment. The court held the university responded “promptly, compassionately, and effectively” to Foster’s complaints. The plaintiff appealed the decision to the Sixth Circuit which initially reversed the summary judgment,¹⁸ but after a rehearing en banc, the Sixth Circuit affirmed the district court ruling. The Sixth Circuit held that in order to prevail in a Title IX action, the victim must establish the school was “deliberately indifferent to sexual harassment, of which [it had] actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”¹⁹ The court relied on the 1999 U.S. Supreme Court decision in Davis v. Monroe County Board of Education, which held that a school’s response to sexual harassment is deliberatively indifferent if it is “clearly unreasonable in light of the known circumstances.”²⁰ The standard neither requires that the school purge itself of actionable peer harassment, nor does it require courts to conclude that “minimal, ineffective, or belated efforts to respond to sexual harassment are not clearly unreasonable as a matter of law.”²¹

In Foster, the Sixth Circuit did not find that the school engaged in deliberate indifference. The university knew the initial no-contact order was violated when the respondent texted the plaintiff and when the university received the respondent’s erratic emails. Afterward, the plaintiff detailed an escalating campaign of harassment by the respondent and what the plaintiff viewed as ineffective responses by the university.

Instead of finding a factual dispute regarding whether the university engaged in deliberate indifference, the court dismissed the plaintiff’s action finding that as a matter of law, the university did not engage in deliberate indifference under applicable legal standards. By doing so, the court created a high bar for a plaintiff-victim to meet in instances of sexual harassment of a peer on campus, even when the complaint includes sexual assault. That deliberate indifference standard, as interpreted by the Sixth Circuit, has removed a fact finder’s ability to review the effectiveness of the university’s action.

OVERCOMING DELIBERATE INDIFFERENCE

Overcoming the deliberate indifference standard in actions against public schools where peer-on-peer harassment is at issue, the reasonableness of the school’s response, the school’s control over the context and the respondent, and actual notice of the alleged harassment or assault all have been found to be relevant. The U.S. Court of Appeals for the 10th Circuit in Farmer v. Kansas State University found that the university’s deliberate indifference to student reports of rape caused victims to be more vulnerable to sexual harassment.²² In that case, the plaintiffs alleged that the university’s deliberate indifference forced them to continue attending school with the student-rapists, who were potentially emboldened, causing the plaintiffs to withdraw out of fear of encountering the student-rapists and other students who knew of the rapes.

In C.R. v. Novi Community School District, the U.S. District Court for the Eastern District of Michigan determined that the student-plaintiff had a claim under Title IX because the school’s deliberate indifference left them more vulnerable to future abuse.²³ In that case, the respondent sexually touched the victim, who was 12 or 13 at the time of the attacks and receiving special education services, on numerous occasions. The school nonetheless wanted to place the victim back in the same classroom as the respondent, exposing the victim to the same risk of abuse.

In Feminist Majority Foundation v. Hurley, the Fourth Circuit U.S. Court of Appeals decided there was deliberate indifference in a Title IX claim brought by a campus feminist group which was being sexually harassed through posts on a university-maintained social media site.²⁴ The court found that the university’s efforts were not reasonably calculated to end the harassment; the institution only created two listening circles, sent a generic email, and on one occasion dispatched a campus police officer to accompany a threatened student.

The Ninth Circuit U.S. Court of Appeals in Karasek v. Regents of the University of California²⁵ held that deliberate indifference can be found in a pre-assault claim to survive a motion to dismiss when the following is shown:

1. the school maintained a policy of deliberate indifference to reports of sexual misconduct;
2. which created a heightened risk of sexual harassment;
3. in a context subject to the school’s control; and
4. the plaintiff was harassed as a result.

The court found that actual knowledge or acting with deliberate indifference to a particular incident of harassment was not necessary for a pre-assault claim if those four elements were established and was persuaded by a state auditor’s report finding mishandling of complaints was putting students at risk and the university failed to address those concerns adequately.

CONCLUSION

Under Title IX, holding a college or university liable for peer-to-peer sexual assault requires the victim to demonstrate the institution acted with deliberate indifference. The U.S. Supreme Court in Davis held that a college or university may only be liable for student-on-student harassment where the university had an official policy of deliberate indifference.

For liability to attach, a university must have had actual notice of the alleged harassment or assault, its response must be unreasonable and deliberately indifferent, the student must be found to be under the university’s control, and it must be shown that these factors effectively precluded the complainant’s access to an education.

The Sixth Circuit in Foster involved the sexual assault of a student by another student. That court found that the University of Michigan was not liable under Title IX because it was not deliberately indifferent.

All of the above should be considered when evaluating peer-on-peer student sexual harassment claims. Deliberate indifference is a difficult, but not impossible, standard to meet. When a university or college has acted with deliberate indifference and failed to protect its students, Title IX provides accountability.