In light of the rapidly changing coronavirus (COVID-19) situation, Troutman Sanders and Pepper Hamilton have postponed the effective date of their previously announced merger until July 1, 2020. The new firm – Troutman Pepper – will feature 1,100+ attorneys across 23 U.S. offices. Read more.
On March 11, the U.S. Court of Appeals for the Sixth Circuit issued a decision highlighting the difficult situation institutions of higher education face in sexual misconduct matters when balancing a complainant’s interest in interim measures with a respondent’s due process rights. The court in Foster v. Board of Regents of the University of Michigan determined that the plaintiff was entitled to a trial on her claim that the university was deliberately indifferent to a classmate’s sexual harassment of her, despite the fact that the university had taken action in response to each instance of the respondent’s alleged misconduct. The Foster decision raises questions about when schools can be held liable for responding to reports of sexual harassment, particularly in light of the Sixth Circuit’s December 2019 decision in Kollaritsch v. Michigan State University Board of Trustees, discussed in an earlier alert.
Foster was a student in the university’s Executive MBA program, based in Los Angeles. Students in the program participated in monthly, weekend-long educational “residencies” at a hotel in Beverly Hills.
Foster and the respondent became friends during the 2012-2013 academic year. In May 2013, the respondent began pursuing Foster romantically, giving her unsolicited gifts, expressing his desire to date or marry her, and, eventually, escalating to nonconsensual physical contact. The respondent was alleged to have groped Foster in an elevator, kissed her without consent while on a hike with others, and, ultimately, exposed and attempted to force himself onto Foster in her hotel room.
Foster reported the respondent’s conduct to the university in March 2014, and the university issued a no-contact order. The respondent immediately violated the no-contact order by sending Foster a single-word text message: “Really.” The university gave the respondent an oral warning.
The respondent’s attendance at an upcoming residency was of particular concern while the matter was pending. The university instructed the respondent that he would stay at a different hotel than Foster, and that he was not to eat meals in the same room as her, attend social activities where she was present, or interact with her in class. During the residency, however, the respondent sent various university administrators a crude email that included sexist slurs against Foster. He also insulted her and threatened her boyfriend on social media. After the residency, the respondent sent several aggressive and demanding emails to university administrators. In response, the university’s general counsel directed the respondent to stop and warned that any further harassment would put his “receipt of a degree in grave jeopardy.”
Because of the respondent’s threatening emails, the university performed a threat assessment, ordered the respondent not to attend commencement in May, and stationed a plainclothes police officer at Foster’s hotel. When the respondent showed up at commencement, he was arrested and put on a plane back to California.
The court focused on whether a reasonable jury could find that the university’s response to Foster’s complaint was “clearly unreasonable,” an essential element of a deliberate indifference claim under the Supreme Court’s decision in Davis v. Monroe County Board of Education.
Although the university took action in response to the respondent’s improper behavior once it received notice, the Sixth Circuit held that a jury could find that its response was “clearly unreasonable.” The court criticized the university for not taking any immediate action in response to the respondent’s text message to Foster (saying “Really”) beyond an oral warning issued the next day. Following the respondent’s threatening email to administrators, the university discussed whether to remove the respondent from class, but decided it lacked the resources to do so. According to the court, a juror could conclude that “these two incidents manifested a clear intention [by the respondent] to subject Foster to further harassment, warranting a swift and severe response from the University as a means of deterring future misconduct.” The court also concluded that the university’s response to the respondent’s social media harassment and threatening emails following the April residency could be deemed deliberately indifferent.
Notably, while the Sixth Circuit acknowledged that its recent decision in Kollaritsch required the plaintiffs to plead that the university’s deliberate indifference caused them to suffer additional harassment, it found that the post-notice harassment need not be severe, pervasive and objectively offensive, if the entire course of conduct — pre- and post-report — met that standard. This conclusion might be questioned, given that the Kollaritsch court ultimately required dismissal of the plaintiffs’ claims because they failed to plead that their subsequent contacts with their alleged assailants were so severe and objectively offensive as to deprive them of an educational opportunity.
Judge Sutton dissented. His primary disagreement with the majority opinion was that it punished the university for engaging in a good faith effort to proportionately escalate disciplinary measures in response to the respondent’s conduct. In his view, neither the university’s individual responses to each report of harassment, nor the sum total of them, could “remotely count as ‘clearly unreasonable.’” The majority’s opinion, he concluded, also puts schools in the impossible situation of facing likely claims by respondents for violation of due process when they take ever more significant interim measures in response to reports of sexual misconduct.
Institutions of higher education both within and outside the Sixth Circuit should read Foster carefully. Unfortunately for schools, the decision highlights that their actions in selecting interim measures may be subject to second-guessing in future litigation. And, as the cases surveyed by the majority and dissenting opinions in Foster illustrate, the result of that second-guessing may well depend on the particular judges assigned to decide the issue. While the Foster decision counsels in favor of considering strong measures when a respondent acts in violation of a no-contact order, institutions must still consider that respondents also have due process and/or contractual procedural rights, an issue the Sixth Circuit has been on the front lines in expanding. If nothing else, the Foster decision reinforces that schools should carefully document the rationale behind each of their decisions so they can later demonstrate why the actions taken were deemed appropriate for the risks presented and why their actions should not be subject to second-guessing.
Pepper Hamilton’s Higher Education Practice Group will continue to monitor developments in this important area, arising from litigation and the Department of Education’s anticipated issuance of its new final regulations implementing Title IX. We will provide further updates as these developments unfold.
The authors are members of Pepper Hamilton’s Higher Education Practice Group, which embraces the mission and business of higher education, while providing comprehensive legal services to colleges, universities and other educational institutions as they navigate the myriad issues impacting their campuses each day.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.