The University of Michigan recently prevailed in an 8‑6 Title IX en banc decision that split the Sixth Circuit Court of Appeals.  The facts of the case, Foster v Bd of Regents of Univ of Mich,       F3d      ; No. 19‑1314 (CA 6, 2020), are relatively straightforward.  Rebecca Foster was enrolled in the University’s Executive MBA program, which involved roughly one three‑day weekend per month at a hotel in Los Angeles.  Foster accused a fellow classmate, described as the “harasser” in the Sixth Circuit’s Opinion, of engaging in sexual harassment against her.  The harassment included unwanted touching, contact, and comments.  After the University received her complaint, it launched an investigation and directed the harasser to cease contact.

The harasser violated the order soon thereafter when he texted Foster the word “really,” which the harasser alleged had been a mistake that he would not repeat.  In a series of subsequent events, the harasser escalated the situation, contacting University staff and fellow classmates in multiple emails and social media posts.  Described as “unhinged,” the harasser’s actions ultimately led to his exclusion from physical attendance at class and the graduation ceremony.  Nevertheless, when the harasser appeared in person at the place where the commencement was set to be held, with Foster present, the campus police intervened, forcing the harasser to go to the airport and board a plane back to his home state of California.  After the University released its investigative report, the harasser was found to have committed sexual misconduct, was banned from campus for three years, and was banned from ever attending a University event that Foster attended.  Foster then sued the University under Title IX, alleging that the University had demonstrated deliberate indifference to her complaints of harassment.

The court majority determined that the University was entitled to dismissal of Foster’s action.  It reasoned that the University took steps on multiple occasions to respond to the harasser’s conduct.  When Foster filed her complaint, the University imposed a no‑contact order.  When the harasser violated the order, the University issued a verbal warning – and the harasser never texted Foster again.  When the harasser physically confronted Foster, the University banned him from all future school events, including classes and the commencement ceremony.  The harasser launched a tirade to staff and classmates, prompting the University to assign plainclothes officers to Foster.  It then remained in communication with police throughout the remainder of the saga.  Recognizing the progressive discipline imposed on the harasser, the court concluded that the University was, as a matter of law, not deliberately indifferent to Foster’s claims of harassment.

The dissent would have found that a jury should have determined the case.  It highlighted that the deliberate indifference analysis hinged on whether the University’s actions were “clearly unreasonable in light of the known circumstances.”  Without reciting each detail of the dissent’s analysis, the dissent generally concluded that a jury could have determined the University’s responses to the harasser’s conduct were unreasonable – because the University knew that its initial no‑contact order had been ineffective.  The dissent ultimately opined that the majority improperly stepped into the jury’s shoes.

Whether or not the dissent’s view has merit, the case is a huge victory for educational institutions.  It also demonstrates the type of decisive, measured responses schools and universities should implement when dealing with a Title IX complaint.  Of course, the appropriate course of action will depend on the facts of the specific case.  However, it is clear that schools can take meaningful steps through progressive discipline, rather than immediately executing the “nuclear” option of expulsion.  As schools continue to walk the thin line between complying with Title IX obligations and affording respondents their due process rights, Foster is a welcome development that stands for the proposition that schools have some degree of latitude before their actions will be considered “deliberate indifference.”  It is possible that the decision will be appealed to the United States Supreme Court; for now, Foster is the law in Michigan and may be considered when navigating a Title IX complaint.