By Adam Wolkoff, Assistant Director, Student Conduct Institute
In 1999, the U.S. Supreme Court established a framework for victims of student-on-student sexual harassment and violence to sue their schools for acting in “deliberate indifference” to the misconduct. Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Since then, courts have disagreed about what a reporting individual needs to plead to establish this type of claim. Now we have a clear Circuit split about this issue, adding to the list of disputed questions about Title IX that may one day await decision the U.S. Supreme Court.
The standard of “deliberate indifference” is very high, and typically only the most egregious responses have survived preliminary motions brought by defendant institutions.
The reporting individual must plead that they suffered sexual harassment (including sexual violence) that was “so severe, pervasive, and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school.” Davis, 526 U.S. at 650.
They must also plead that the institution had “actual knowledge” of the misconduct, yet was “deliberately indifferent” to it in a manner that will “‘cause [students] to undergo’ harassment or ‘make them liable or vulnerable’ to it. " Id., at 645.
Twenty years after Davis, the courts remain divided about what these phrases mean. One of the widest splits surrounds the harm that a reporting individual would have to plead, and eventually prove, to establish liability.
A growing number of courts have broadly interpreted the harm element, holding that a reporting individual need only show that the indifferent response made them “vulnerable” to further harassment; in other words, the reporting individual would not have to suffer further affirmative acts of harassment or violence to demonstrate harm from the response. Farmer v. Kansas State Univ., 918 F.3d 1094, 1104 (10th Cir. 2019).
Most prominently, the Tenth Circuit Court of Appeals held in Farmer v. Kansas State Univ. (2019) that two reporting individuals adequately pleaded deliberate indifference through allegations that the university's "dismissive treatment" of their rape complaints created an "adverse environment for learning" which "reasonably prevented them from accessing the educational opportunities available to other students"; their concerns were "more than a general fear of running into their assailants," as the reporting individuals had to take "very specific actions" that deprived them of educational opportunities, including that fear that encountering their assailants caused them to struggle in school, lose a scholarship, withdraw from campus activities, and avoid going anywhere on campus unaccompanied by friends or sorority sisters. Farmer, 918 F.3d at 1104.
Farmer is the leading example of what might be called the subjective standard: a reporting individual can maintain a Title IX lawsuit without alleging further harassment because the institution's failure to address their fears made them feel vulnerable and, in many occasions, forced them to withdraw from school. Fryberger v. Univ. of Arkansas, No. 5:16-CV-5224, 2019 WL 6119253, at *9 (W.D. Ark. Nov. 18, 2019) (reporting individual could state a Title IX claim because she "suffered from a deteriorating mental state" from ongoing fear of encounter with respondent on campus); Doe v. Howard Univ., No. 17-CV-870 (TSC), 2019 WL 3037605, at *4 (D.D.C. July 11, 2019) (reporting individual could state a Title IX claim because she "felt depressed and constantly fearful of encountering her rapist on campus"); Spencer v. Univ. of New Mexico Bd. of Regents, No. 15-CV-141 MCA/SCY, 2016 WL 10592223, at *6 (D.N.M. Jan. 11, 2016) (institution's failure to adequately respond to alleged gang rape, including its decision to allow respondents to return to campus after four-month suspension and its finding of no probable cause to investigate despite testimonial, video, and physical evidence of assault, could reasonably be seen as leaving the reporting individual vulnerable to continued harassment; thus, her decision to withdraw from campus was a reasonable and expected outcome of the institution's tacit permission).
By contrast, under what might be called the objective standard, other federal courts hold that an institution will not be liable for failing to pursue further remedies for the reporting individual if the reporting individual does not continue to experience sexual harassment or violence after putting the institution on notice of the respondent's conduct. Roe v. Northeastern Univ., No. 16-03335-C, 2019 WL 1141291, at *16 (Mass. Super. Mar. 8, 2019) (reporting individual cannot state a Title IX claim absent evidence that the university's failures in process resulted in harm to the reporting individual, and the record demonstrated that the university did not offer a "clearly unreasonable" response as a matter of law); Thomas v. Meharry Med. Coll., 1 F. Supp. 3d 816, 827 (M.D. Tenn. 2014) (Because reporting individual did not experience harassment after reporting initial conduct, the court found no grounds for finding the institution's response was deliberately indifferent); Moore v. Murray State Univ., No. 5:12-CV-00178, 2013 WL 960320, at *5 (W.D. Ky. Mar. 12, 2013) (reporting individual cannot state a claim for deliberate indifference where the reporting individual does not suffer further or additional harassment after reporting the incident); Adusumilli v. Illinois Inst. of Tech., No. 97 C 8507, 1998 WL 601822, at *4 (N.D. Ill. Sept. 9, 1998), aff'd, 191 F.3d 455 (7th Cir. 1999) (a university cannot be deliberately indifferent to a single incident of harassment if it does not occur again once the school is on notice of the violation).
On December 12, 2019, the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) released its long-awaited decision in Kollaritsch v. Michigan State Univ. Bd. of Trustees, holding that a reporting individual must plead further acts of sexual harassment to establish a Title IX claim of deliberate indifference. The Sixth Circuit broke with the Tenth Circuit (even as it explicitly declined to address its decision), holding that it is not enough for the reporting individual to plead that they felt vulnerable to further harassment after reporting the misconduct; they must plead that they suffered further harm that was “severe, pervasive, or objectively unreasonable.”
The court rejected the subjective standard, holding that when the U.S. Supreme Court described institutional action or inaction making the victim “vulnerable” to harm, it was describing a harm already inflicted on the victim because of the institution’s wrongful response. So, damages could be sought because the institution affirmatively put the student in harm’s way, or left the student vulnerable to the harm that came their way; under either analysis, the student was victimized another time because of the institution’s deliberate indifference to sexual misconduct.
Under the case before it, the Sixth Circuit found no allegations that the reporting individuals had suffered further affirmative acts of sexual misconduct owing to the institution’s deliberate indifference.
One of the reporting individuals lived in the respondent’s residence hall and saw the respondent on multiple occasions. On each of these occasions, she had a “panic attack” and “was forced to leave the building, often crying, lightheaded, and significantly distraught.” This feeling of vulnerability, even if coupled with allegations of mental distress, was not enough, in the court’s view, to establish Title IX liability. Neither would another reporting individual’s fear that she could have encountered a respondent found not-responsible for sexual misconduct. A reporting individual’s fear of encountering a respondent on campus would not be enough to show the further harm necessary to bring a Title IX claim forward.
Along with staking a position in the debate over the meaning of “further harassment,” the Sixth Circuit took an arguably more radical position what it came to defining what kind of misconduct will subject an institution to Title IX liability in court.
Under Davis v. Monroe County Board of Education, an institution may only be liable for money damages in court for its deficient response to sexual harassment that is “severe, pervasive, and objectively offensive.” Courts, including the Sixth Circuit itself in Vance v. Spencer County Public School District, 231 F.3d 253, 259 n.4 (6th Cir. 2000), have generally interpreted this language to mean that a single incident of severe sexual harassment, such as a sexual assault, would be sufficient to establish Title IX liability.
In Kollaritsch, the Sixth Circuit explicitly rejects its footnote in Vance and holds that “a single incident is insufficient on its own to state a claim”; the reporting individual would have to allege further harm to meet the “pervasive” prong of the Davis standard. While “we do not doubt that a sexual assault would be such a severe incident,” the court holds that, under Davis, a single severe incident would not establish the systemic harassment necessary to establish Title IX liability.
This conclusion effectively circles-back to its position that a subsequent harm must be pleaded to establish a Title IX claim. A student who is sexually assaulted cannot bring a Title IX claim unless, after reporting that incident, they suffer further affirmative harm.
Title IX cases have always been difficult for reporting individuals to win under the Davis framework, and the Sixth Circuit’s opinion further narrows their options in court by limiting the number of plausible claims that could make it past the exacting Davis standard. This decision only is binding on courts in Kentucky, Michigan, Ohio, and Tennessee. Yet regardless of your jurisdiction, it does not modify an institution’s responsibility under Title IX to prevent and respond to sexual harassment and violence. Its practical impact surrounds whether a reporting individual could obtain money damages from the institution for an allegedly deficient response to that misconduct.
Comparing the Tenth Circuit’s recent decision in Farmer, which points to a very different interpretation of Title IX liability toward reporting individuals, it is possible that the issues driving the Kollaritsch lawsuit will ultimately end up in the U.S. Supreme Court. Given the growing number of divisions among the federal courts regarding Title IX and the conduct process, including what a respondent would have to plead to maintain a Title IX lawsuit against an institution, or whether a conduct proceeding requires cross-examination, speculation continues to grow about whether the high court will hear a Title IX case in the higher education context.