On December 12, 2019, the Sixth Circuit – the appellate court that exercises federal control over Michigan and a handful of other states – released its opinion in Kollaritsch v Michigan State Univ Bd of Trustees, ___F.3d___ (2019). The plaintiff‑appellants in the case argued, generally, that the University denied the appellants educational opportunities in violation of Title IX when the University failed to adequately respond to allegations of four student‑on‑student sexual assaults.
The court provided an excellent breakdown of the various elements that must be alleged to pursue a student‑on‑student sexual harassment Title IX claim. It is now well‑established that a school may only be held liable where it is deliberately indifferent to sexual harassment, of which it has actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to educational opportunities or benefits provided by the school.
In this case, the court’s “particular focus” was “on the requirements that the harassment must be ‘pervasive’ and the school’s response must ‘cause’ the injury.” The Sixth Circuit communicated that, in order to be “pervasive,” harassment must include multiple incidents of harassment, including at least one act of further harassment after the school had actual knowledge of harassment. Additionally, in a highly‑technical explanation, the court analyzed the requirement that a plaintiff pursuing a claim like those in Kollaritsch must show the school’s deliberate indifference “caused students to undergo harassment or make them liable or vulnerable to it.” As a result, the court held that a plaintiff cannot pursue a student‑on‑student sexual harassment claim under Title IX unless s/he can show that s/he actually suffered further, actionable harassment caused by the school’s deliberate indifference.
In other words, when a student notifies his/her school that s/he is being sexually harassed, the school has actual knowledge of the harassment. If the school is then deliberately indifferent to the harassment, the student will have a Title IX claim against the school only if further, actionable harassment occurs, which can be credited to the deliberate indifference. In Kollaritsch, the plaintiffs did not plead further, actionable harassment following their reports of sexual assaults to the University. Thus, their claims were dismissed.
Importantly, the Sixth Circuit’s approach has not been adopted uniformly in other federal circuits. Some circuits have interpreted the “causation” element broadly, meaning that they only require plaintiffs to allege that a school’s deliberate indifference made further harassment more likely. For example, if a student informed her school that she was being sexually harassed, and the school was deliberately indifferent to her, then she could pursue a Title IX claim if the deliberate indifference made it likelier that she would be open to future harassment. Unlike the Kollaritsch appellants, the student would not need to allege an actual act of further, actionable harassment. The impact of the Sixth Circuit’s decision means that it is harder for some plaintiffs to pursue a Title IX claim in Michigan (or other Sixth Circuit states) than it would be for a plaintiff living in a federal circuit with the less stringent requirement. Relatedly, it is easier for schools in the Sixth Circuit to defend against claims like those featured in Kollaritsch.
Because there is a circuit split on the issue, it is possible the United States Supreme Court will review the issue in the future. Regardless of the eventual outcome, schools should continue to thoroughly investigate all claims of sexual harassment in good faith.
The decision is accessible here.