The Sixth Circuit recently issued an opinion that makes it even harder for colleges and universities to navigate the narrow space between appropriately addressing allegations of sexual harassment and ensuring due process for alleged harassers. In Foster v. Board of Trustees of the University of Michigan, the Sixth Circuit ruled that a university may show deliberate indifference to sexual harassment when it fails to take immediate interim action that effectively ends the alleged harassment and then does not expel the alleged harasser. A dissenting judge noted that the decision raises the specter of a school being simultaneously liable to the victim for not preventing harassment and to the harasser for imposing sanctions without due process.
The case involved an off-campus executive MBA program that included monthly meetings at a hotel in California for in-person classes. Student Rebecca Foster and a male student became friends, but the male student apparently wanted a romantic relationship, and Foster did not. Without the university’s knowledge, the male student began to sexually harass Foster. Two weeks before the program’s final class session and about 45 days before graduation, Foster reported the harassment to the university.
The university’s response was recognizable to any Title IX coordinator. It investigated and implemented interim steps during the investigation including prohibiting the male student from having further contact with Foster. But just before the last class session, the male student texted “really” to Foster. The university verbally warned the male student, and he apologized. The male student further violated the university’s restrictions, so the university prohibited him from attending the remaining classes. The university then barred him from attending commencement in Michigan. The male student’s attorney informed the university that he would not attend, but Foster learned from social media that the male student planned to attend commencement. So, Foster obtained a personal-protection order from a California court against the male student. The university took emergency measures including posting plainclothes officers at the executive MBA commencement activities. When the male student showed up, he was removed, arrested for violating the California protective order and put on a plane back to California. He did not attend commencement and he had no interactions with Foster during the commencement weekend.
All of this happened in about 45 days, and consistent with best practices, the university responded to the male student’s action with escalating discipline. But the Sixth Circuit faulted the university for not taking harsher measures. The court thought that the university should have barred the male student from classes after the text message, and faulted the university for not immediately barring the male student from commencement activities when he further violated the no-contact order, and for not issuing a no-trespass order against the male student for the commencement activities. As the dissent noted, it seems that the only thing that the university could have done was to summarily expel him—an extreme sanction that raises concerns about whether the university could expel him without due process.
The Sixth Circuit’s decision is troubling because it finds fault with a diligent, reasonable escalation of interim measures to address the male student’s conduct. Indeed, the university would have very real concerns about providing due process to the male student under earlier Sixth Circuit decisions if it had suspended the male student from classes based on the first text message or expelled the student without first fully investigating the incidents and providing a hearing in the normal course. The university has asked the court to reconsider its decision, but unless the Sixth Circuit takes further action, this case shows the tightrope that schools must walk when addressing sexual harassment among students.
If you have questions regarding this recent decision, please contact Warner attorneys Jason Byrne or Matthew Nelson.
