The Sixth Circuit has issued a steady stream of Title IX cases in recent months. Of particular note are Kollaritsch v. Michigan State University Board of Trustees, 944 F.3d 613 (6th Cir. 2019), which deepened a circuit split regarding institutional liability for “deliberate indifference” under Title IX, and Doe v. Oberlin College, 963 F.3d 580 (6th Cir. 2020), which addressed a male student’s claim that his institution discriminated against him during a disciplinary proceeding because of his sex. Taken together, these two cases highlight the increasing tension that institutions face when trying to balance the rights of victims and of the accused under Title IX.
In Kollaritsch, the Sixth Circuit held that a complaint states a Title IX deliberate-indifference claim for student-student harassment only if the plaintiff alleges both that the institution was deliberately indifferent to known acts of harassment and that the institution’s deliberate indifference then resulted in further harassment of the victim. The Kollaritsch panel read the Supreme Court’s leading case on the issue, Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), as permitting deliberate-indifference liability either when an institution directly causes further harassment to the victim—by, for example, placing a known harasser on the same dormitory floor as the victim—or when the institution fails to act and thereby creates vulnerability that leads to further harassment—by, say, failing to remove the harasser from the dormitory floor. Kollaritsch, 944 F.3d at 623. In either event, however, the institution is liable only if its actions (or lack thereof) actually lead to further harassment.
In so holding, the Sixth Circuit joined the Eighth Circuit, which has likewise held that Title IX deliberate-indifference claims require proof of further harassment. But other circuits have read Monroe more broadly, and require the student to allege only that the institution’s conduct made them “vulnerable to further harassment” and do not require an allegation that the student actually suffered any subsequent harassment. See e.g., Farmer v. Kan. State Univ., 918 F.3d 1094, 1104 (10th Cir. 2019). The plaintiff in Kollaritsch has filed a petition for certiorari, asking the Court to resolve the split.
The implications of this circuit split are important for academic institutions and for students. Permitting Title IX deliberate-indifference claims without proof of further harassment could create potential liability for a “wide range of decisions,” as Judge Thapar noted in his concurrence in Kollaritsch. Of course, requiring proof of subsequent harassment will have the inverse effect, restricting potential claims and limiting Title IX’s remedial scope. See Farmer, 918 F.3d at 1104 (noting that, consistent with Title IX’s objectives, an institution cannot “turn a blind eye” to harassment).
But an institution’s over-correction, as well as its under-correction, can lead to Title IX liability. While institutions are grappling with how to best protect student-victims, they also face potential liability for failing to adequately protect the rights of the accused. In Doe v. Oberlin College, for example, a Sixth Circuit panel recently held that a male student had sufficiently pled a Title IX claim where he alleged that the college reached an erroneous outcome in his disciplinary proceeding because of his sex. Notably, the panel’s decision discussed the institution’s “overhau[l]” of its sexual-assault policy after a federal investigation of the school’s handling of prior sexual-assault allegations. The panel determined, as previous Sixth Circuit panels have, that “‘pressure from the government to combat vigorously sexual assault on college campuses and the severe potential punishment—loss of all federal funds—if [the College] failed to comply’ can . . . yield ‘a reasonable inference’ of sex discrimination.” Oberlin Coll., 963 F.3d 580, 2020 U.S. App. LEXIS 20226, at *19 (6th Cir. June 29, 2020) (quoting Doe v. Miami Univ., 882 F.3d 579, 594 (6th Cir. 2018)).
Schools must thus thread the needle between cases like Doe and Kollaritsch, crafting policies that protect student victims from vulnerability to harassment, while simultaneously protecting the rights of the accused. Yet, as the Title IX landscape continues to shift, schools increasingly face the prospect of “los[ing] coming and going over the same incident—by insufficiently protecting the rights of the victim in one case and by insufficiently protecting the rights of the accused in the other.” Foster v. Bd. of Regents, 952 F.3d 765, 794 (6th Cir. 2020) (Sutton, J., dissenting), vacated and reh’g en banc granted, 958 F.3d 540 (6th Cir. 2020). The petition for certiorari in Kollaritsch will be closely watched, since broadening the basis for deliberate-indifference liability under Monroe would further narrow the eye of the Title IX needle.