Title IX / College Discipline Practice - Warshaw Burstein LLP | <em >Foster v. Board of Regents, </em >Docket No. 19-1314, 2020 U.S. App. LEXIS 38857 (6th Cir. Dec. 11, 2020)
This links to the home page
  • Foster v. Board of Regents, Docket No. 19-1314, 2020 U.S. App. LEXIS 38857 (6th Cir. Dec. 11, 2020)
    After 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 forbidding 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. However, the Sixth Circuit vacated its original decision and reheard the appeal en banc. On rehearing, the Sixth Circuit affirmed summary judgment in favor of the University, finding that the University’s response was not deliberately indifferent.

    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. The Respondent explained that this message was accidental and promised it would not happen again. After this incident, the Respondent never texted Foster again. 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. When the Respondent violated this order, the University responded with increased sanctions, culminating in the Respondent being barred from attending the last day of class. The University also barred the Respondent from attending commencement, and made academic accommodations for Foster. The Court noted that the Respondent has rights too, so the University could not immediately expel him after the initial complaint. The University had no reason to suspect the Respondent would not comply with its directives, and responded swiftly with increased protections for Foster after each new violation. The University even involved plainclothes police officers to protect Foster at commencement, and were able to arrest the Respondent and escort him back to California when he showed up in violation of the University’s order. The University then banned the Respondent from its Ann Arbor campus for three years, permanently banned him from any campus events that Foster planned to attend, and placed a notation on his transcript that he had engaged in sexual harassment.

    The Court noted that “[a]t each stage, the University ratcheted up protections for [Foster]; from a no-contact order after the first complaint to a requirement that the harasser stay in a separate hotel for the program’s last three-day session to a removal from the third day of the session to an order that he not attend graduation.” The deliberate indifference standard makes schools liable when they refuse to take action to bring the recipient into compliance, not when they take action that ultimately fails to purge their schools of actionable peer harassment. The Court asked, “not whether the school's efforts were ineffective but whether they amounted to an official decision . . . not to remedy the violation.” The Court held that as a matter of law, the University’s response did not constitute deliberate indifference.