What Qualifies as Harassment?

A federal appeals court says universities must do everything in their power to stop further harassment of students who report it, and defines what behaviors qualify.

March 12, 2020
 

A federal appellate court’s decision could put more weight on universities to prevent further sexual harassment of students after they make a complaint to Title IX officials.

The opinion from the U.S. Court of Appeals for the Sixth Circuit Wednesday expands on a December decision in the same court that limited which behaviors universities could be found liable for allowing after a student reports sexual harassment. A university isn’t liable if a claimant experiences panic attacks after seeing the student who harassed them on campus, federal judges said. But if further “severe, pervasive and objectively offensive” harassment occurs and the university does not prevent it, they can be proved liable, according to the March 11 opinion.

The Sixth Circuit judges reviewed a case against the University of Michigan, which argued the university inadequately responded to repeated sexual harassment claims made by Rebecca Foster, a student enrolled in the university’s executive master of business administration program from 2013 to 2014. While she attended the program in Los Angeles, another student allegedly forced himself on Foster, which she reported to the university’s Office of Institutional Equity. She was granted a no-contact order, according to the opinion.

The accused student later violated the order, blocking Foster from doorways, texting her, writing threats on Facebook and detailing Foster’s Title IX claim via email to other students in the E.M.B.A. program. The university followed up on Foster’s communication about the incidents and banned the accused student from a class and from attending commencement events in Ann Arbor, Mich., according to court documents. He was arrested after showing up to a commencement event and sent back to California, the opinion states.

Because Foster experienced further harassment after Michigan was aware of the incidents and failed at its attempt to protect her from the student, the university is liable for “deliberate indifference” to her claims under Title IX, which prohibits sex discrimination in educational institutions that receive federal funds, Judge Karen Nelson Moore wrote in the Sixth Circuit opinion.

With both opinions, the Sixth Circuit appears to be establishing a standard of harassment that plaintiffs need to prove in order to pursue cases against institutions for inadequately responding, said Laura Dunn, a lawyer who represents sexual assault survivors. The federal judges are outlining a need for “tangible, verbal harassment or interaction” to occur, and not just a claimant’s “proximity” to the accused student.

“It seems to be carving out that we do need credible harassment and we need to assess the quality of that harassment, whether it’s severe or pervasive enough,” Dunn said. “That creates another barrier to reporting and using Title IX on campus.”

Judge Jeffrey Sutton dissented from Moore’s opinion and outlined the limited time period Michigan had to respond between when Foster reported the harassment and the final E.M.B.A. classes, which spanned just more than two weeks. The university did what it could to protect Foster, and still her harasser persisted, which does not mean Michigan’s response meets the “‘high bar’ to imposing Title IX liability on a university,” Sutton wrote.

“It’s not a university’s job to do the impossible -- to ‘purge their schools of actionable peer harassment,’” Sutton wrote. “It’s a university’s job to respond in good faith to allegations of harassment to eliminate the problem. That’s what Michigan tried to do and tried to do in good faith.”

The Sixth Circuit ultimately reversed the decision of the district court where Foster originally filed the lawsuit, which had held “it would be simply impossible” for a jury to conclude Michigan had violated Title IX.

The federal court's opinion makes a statement about how far universities must go to protect their students, said Joshua Engel, Foster’s attorney. If initial measures are not effective in separating a harassing student from a victim, the university is obligated to keep trying until it succeeds, he said.

“It’s a dynamic process,” Engel said. “The school puts in place what seems reasonable, but when the accused student says, ‘I’m not going to follow these rules,’ the school can’t just say, ‘We did something, good luck.’”

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