Ruling Narrows Title IX Obligations
An appellate court’s decision could minimize colleges and universities’ responsibility to provide remedies for victims of sexual misconduct on campus.
A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled that Michigan State University and one of its senior administrators cannot be held liable for student victims’ emotional distress after seeing their alleged perpetrators on campus because the interactions did not lead to further sexual harassment or assault, according to an opinion issued Thursday.
Legal experts said the decision is a narrow interpretation of the protections for victims of sexual misconduct under Title IX of the Education Amendments of 1972, which prohibits sex discrimination, including sexual assault, on college campuses.
The court’s opinion, written by Judge Alice Batchelder, could set a “very clear and straightforward standard” for how federal judges interpret whether universities showed “deliberate indifference” when addressing reports of sexual misconduct, said Jake Sapp, deputy Title IX coordinator and institutional compliance officer at Austin College, in Texas. Deliberate indifference in student-on-student sexual misconduct cases occurs when an institution causes further harassment or fails to act upon an accusation of sexual misconduct, leaving the complainant "subject to" harassment, Sapp said.
The decision clears Michigan State of wrongdoing and sends the case back to the district court for dismissal. The primary complainant in the case, Emily Kollaritsch, said she suffered panic attacks after seeing the male student whom the university confirmed had sexually harassed her back in 2011. The male student was placed on probation and issued a no-contact order, which Kollaritsch alleged he broke, but the university was unable to find evidence of that, reported the Lansing State Journal.
The same male student had previously been expelled for the rape of a different female student, plaintiff Shayna Gross, but the university ended up allowing him back on campus after an independent investigation could not prove he committed the rape, the Lansing State Journal reported. Another anonymous female student said she was raped by him in 2014, but the male student withdrew from the university before Michigan State’s investigation was complete, according to the court’s opinion.
In all instances, Michigan State was found to have investigated the reports and disciplined the perpetrator for the only accusation it could prove -- sexual harassment against Kollaritsch, Sapp said. Even though the perpetrator was accused of subsequent misconduct after the first instance, Michigan State is only deliberately indifferent if the same student is victimized, Batchelder wrote.
There is a distinct split between several circuits on how deliberate indifference can be applied. Some courts maintain that if a victimized student is merely vulnerable to harassment -- though the harassment does not actually occur -- this means an institution is failing to provide an equal educational environment. But the Sixth Circuit on Thursday upheld the very specific language used in Title IX, requiring an alleged victim to prove that an institution’s decision not to remove the perpetrator from campus “resulted in further actionable sexual harassment against the student-victim, which caused the Title IX injuries,” Batchelder wrote.
Thursday’s decision is not a “seismic shift” from how the law is actually stated, said Michael Dolce, a lawyer with the firm Cohen Milstein and chair of its sexual abuse practice group. A student’s fear of coming to campus because they know their perpetrator will be there is not enough to argue a Title IX violation, he said.
“In some views, the mere contact on campus is enough to cause action against the school,” Dolce said. “Courts across the country have said that the mere presence of the perpetrator on campus does not qualify … If the standard was otherwise, anytime a student sexually assaulted someone, you would have to expel them. Title IX is never going to be interpreted that way even in the most liberal courts.”
But the interpretation does set a precedent that more conservative courts can turn to for a narrow view of the law and will upset some who argue Title IX should protect against the adverse effects of sexual assault and harassment on a student’s mental health, Sapp said. It’s not a favorable ruling for victims, said Laura Dunn, a lawyer who represents campus sexual assault survivors.
“What judges should keep in mind is that it’s a choice,” Dunn said. “There’s an ability to interpret the law and you have to decide what perspective you’re coming from. A lot of conservative ones think, ‘We’re going to be close to the law.’ I really suggest you think about the effect on social issues … That’s a horrible ruling and a horrible reality to subject victims to. This judge has no understanding beyond the law of how her words will impact survivors.”
The ruling is reflective of the Department of Education’s proposed regulations, which it published for review in November 2018, said KC Johnson, a professor of history at Brooklyn College who writes about due process violations in Title IX proceedings.
“The court said that the complainant doesn’t have the right to a specific punishment,” Johnson said. “It’s a recurring theme to how the Sixth Circuit has approached this more broadly, and how [Education Secretary Betsy] DeVos approached the regulations.”
Dunn said the ruling severely damages students’ protections under Title IX once the university has found one of their peers sexually harassed or assaulted them. Batchelder does not mention the words “hostile or abusive educational environment” in her opinion, which is what she should be evaluating in the case -- whether a student being fearful of seeing their perpetrator or experiencing panic attacks creates that environment, Dunn said.
“Sexual assault does not need to be pervasive -- it can happen once and that’s enough,” Dunn said. “You’re not only narrowing the law, you’re pretty flagrantly narrowing it so far to render it almost useless.”