Foster v. Bd. of Regents, No. 19-1314, 2020 U.S. App. LEXIS 7589 (6th Cir. Mar. 11, 2020)
03/31/2020After enduring months of sexual harassment, Rebecca Foster chose to report her fellow MBA student to the University of Michigan’s Title IX office (the “University”). In response, the University issued a no-contact order instructing the respondent from having further contact with Foster. The respondent proceeded to violate the no-contact order on several occasions. Foster asserted that the University was not doing enough to enforce the no-contact order or provide for her safety. Foster filed suit alleging a violation of Title IX under a theory of deliberate indifference. The district court granted summary judgment in favor of the University. On appeal, the Sixth Circuit reversed, finding that a reasonable juror could find that the University was deliberately indifferent to the harassment Foster suffered.
To succeed under a theory of deliberate indifference, a plaintiff must show (1) that the sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to an educational opportunity or benefit, (2) that the funding recipient had actual knowledge of the sexual harassment, and (3) that the funding recipient was deliberately indifferent to the harassment. The Sixth Circuit held that the sexual harassment Foster suffered prior to her complaint to the University could be considered in the analysis of the first prong.
While the University waived the argument that the sexual harassment was not “severe, pervasive, and objectively offensive,” the Court held that the facts demonstrated the harassment Foster was subjected to satisfied the first prong for deliberate indifference. There was little dispute that the University had actual knowledge of the sexual harassment. While some administrators were unaware of the harassment, that did not change the fact that the University had actual knowledge to satisfy the second prong of the test.
The Court held that there were enough facts from which a reasonable juror could find that the University was deliberately indifferent to the harassment Foster was subjected to. After learning of the months-long sexual harassment, the University issued a no-contact order. Despite the order, the respondent sent a text message to Foster that stated, “Really”, which Foster found distressing. When Foster reached out to the University to inform them of the violation and ask if she should take steps to ensure her safety, the University essentially acknowledged the issue but took no action in response. When Foster and the respondent were at a residency weekend in Los Angeles, the respondent was required to stay in a separate hotel, and avoid all social settings where Foster was present. Not only did the respondent violate this order, but he sent multiple emails to administrators attacking Foster, and indicated that he intended to continue to violate the no-contact order. Although the University instructed the respondent to comply with the no-contact order, he continued to violate it in various ways. The University could have barred the respondent from attending commencement once he made clear his intention to violate the no-contact order, rather than waiting until April 10; it could have instituted measures to ensure Foster’s safety during the Los Angeles residency; and it could have taken further disciplinary measures against the respondent to deter him from further harassment. The Court held that the University’s response could be considered deliberately indifferent, and therefore reversed the district court’s decision to grant summary judgment.