Strictly Speaking: Limiting Title IX Student-on-Student Sexual Harassment Claims in Kollaritsch v. Michigan State University Board of Trustees

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Bringing claims for student-on-student sexual harassment may have just gotten more difficult.  In what could prove to be extremely influential precedent, the United States Court of Appeals for the Sixth Circuit’s recent decision in Kollaritsch v. Michigan State University Board of Trustees establishes exacting standards that student-plaintiffs must satisfy in order to perfect Title IX claims against their schools.  In rejecting the four plaintiffs’ allegations that Michigan State had been deliberately indifferent to their respective reports of sexual assault, the Sixth Circuit applied a strict reading of the United States Supreme Court’s seminal 1999 decision in Davis v. Monroe County Board of Education, which first recognized student-on-student sexual harassment as a violation of Title IX.

Initially noting that Title IX causes of action such as those in Kollaritsch consist of two “separate-but-related torts by separate-and-unrelated tortfeasors” – an accused student’s “actionable harassment,” and a school’s deliberate indifference – the court then proceeded to elucidate the requisite elements of both. To be “actionable,” the harassment must be “severe,” or more than “behavior that is antagonistic, non-consensual, and crass.”  Although recognizing that sexual assault qualifies as “severe,” to support a deliberate indifference claim, the harassment must be “pervasive,” and, for it to be pervasive, there must be “multiple incidents of harassment” (emphasis in original).  In fact, the Sixth Circuit patently dismissed the plaintiffs’ assertion that “a single, sufficiently severe sexual assault is enough to state a viable action,” bluntly holding:  “A single assault – particularly before any notice or response – does not state a claim under Davis.”

In addition, the conduct must be “objectively offensive.”  While, presumably, sexual assault would always be deemed objectively offensive, the offensiveness of other forms of harassment is not predicated upon the victim’s perceptions.  Instead, courts must consider “a constellation of surrounding circumstances, expectations, and relationships,” including the ages of the students and, though not specifically cited by the court, probably the nature of any prior interactions between the victim and the accused.

Having established those factors, the court turned to the “four elements of a deliberate-indifference-based intentional tort”:  knowledge, an act, injury, and causation.  Regarding the first two factors, the court reiterated what courts have consistently recognized, that schools cannot be held liable for conduct of which they had no prior actual knowledge.  To the contrary, it is only what they do after they have obtained such knowledge that is relevant.  Thus, a plaintiff must prove “actual knowledge” by the school of “actionable sexual harassment that prompted, or should have prompted, a response,” and that such response – or “act” -- was “clearly unreasonable in light of the known circumstances,” thereby “demonstrating the school’s deliberate indifference to the foreseeable possibility of further actionable harassment of the [same] victim” (emphasis in original).

The court’s discussion of the “injury” and “causation” prongs of the deliberate indifference tort were of greater note.  Quoting Davis, the Sixth Circuit held that the only injury cognizable under Title IX is “the deprivation of ‘access to the educational opportunities or benefits provided by the school.’”  Thus, while emotional harm may constitute a component of that educational deprivation, it is not, standing alone, “a redressable Title IX injury.”  In short, a student cannot seek relief under Title IX for trauma, depression, or other emotional harm so long as the student is still able to “access . . . the educational opportunities or benefits provided by the school.”

With respect to causation, the Sixth Circuit applied a stringent reading of Davis to establish a daunting evidentiary burden for potential Title IX plaintiffs.  The court held that in order to state a deliberate indifference claim, plaintiffs must prove that they suffered further harassment that “would not have happened but for the clear unreasonableness of the school’s response” (emphasis added).  In other words, even if the school’s response to an initial incident of harassment ultimately proved ineffective, the school would only be liable if a plaintiff could prove:  1) the school’s response was clearly unreasonable; and 2) that the unreasonable response was the direct cause of the subsequent harassment.

This is an interesting wrinkle on the Machiavellian end-justifies-the-means approach that many courts have followed in similar Title IX cases.  In those matters, courts determined deliberate indifference claims simply by considering whether or not the harassing behavior continued following the school’s intervention.  In Kollaritsch, the Sixth Circuit essentially held that whether the harassment persisted is not the relevant question; rather, the pertinent issue is whether it did so as a direct result of the school’s clearly unreasonable response, a more nuanced consideration that provides educational entities with greater protections.

Perhaps most importantly, the Sixth Circuit flatly rejected the plaintiffs’ interpretation of the language in Davis that “the deliberate indifference must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it” (emphasis added).  The plaintiffs argued that the last clause of this statement obviated the need for further actual harassment and instead established “vulnerability alone [a]s its own causal connection between the Act and the Injury.”  In other words, the plaintiffs argued that a victim being exposed to the possibility of further sexual harassment -- say, as a result of the accused student being allowed to remain on campus – was sufficient to support a deliberate-indifference claim.  The court dismissed without discussion the “several cases [cited by the plaintiffs] that rely on their same misreading of Davis,” instead holding that this “isolated phrase” simply described an alternative way in which a school’s “clearly unreasonable” response could leave a student “unprotected from further harassment.”  Nonetheless, there had to be actual further harassment.

Kollaritsch binds only those courts within the Sixth Circuit.  Nonetheless, and while some may find its reading of Davis unduly rigid, the Sixth Circuit’s application is pretty squarely based on that case’s plain language.  As such, other courts that are dealing with similar Title IX student-on-student sexual harassment claims may look to it for guidance, which would be an extremely favorable development for educational institutions.

Posted in Appellate, Title IX

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