No Deliberate Indifference: Circuit Court Finds University Not Liable for Student-on-Student Sexual Harassment

December 23, 2019

By Theresa E. Rusnak

On December 12, 2019, the U.S. Court of Appeals for the Sixth Circuit issued a ruling in Kollaritsch v. Michigan State University Board of Trustees, a decision which impacts students’ Title IX claims against their colleges or universities.

When the U.S. Supreme Court examined the issue of institutional liability for student-on-student sexual harassment in 1999, it held that a school may be found liable for student-on-student harassment only if it “acts with deliberate indifference to known acts of harassment in its programs or activities,” and the harassment is “severe, pervasive, and objectively offensive.” Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). Under Davis, a school “may not be held liable for damages unless its deliberate indifference ‘subjects’ its students to harassment.” Id. at 644. In the years since the Davis decision, a split developed between the Circuit Courts regarding the interpretation of this standard, with some courts finding that a school’s actions must lead to further harassment, and others holding that the school’s actions must only make the students vulnerable to the possibility of further harassment.

In Kollaritsch, four female students alleged that they were sexually assaulted by four male students. Each female student subsequently reported her alleged assault to the University’s administration, which commenced investigations. In their combined lawsuit, the students alleged that the University acted with “deliberate indifference” by failing to engage in adequate investigations of their claims under Title IX, and in so doing, made them “vulnerable” to future harassment.

One of the students claimed that because she saw her alleged attacker on campus multiple times after reporting her assault, the University failed to act quickly enough to remove her alleged attacker from campus and, in doing so, caused her harm. Another student claimed that the University acted with deliberate indifference by reinstating her alleged attacker’s student status after previously expelling him. Finally, another student alleged that the fact that her alleged attacker (who had withdrawn as a student) could return to campus without prior notification to her by the University made her vulnerable to future harassment.

The Court rejected each of the students’ arguments and found that the University’s actions did not cause the students’ continued harassment. Specifically, the Court held that for a school’s response to a Title IX complaint to meet the “deliberate indifference” standard, it must be “clearly unreasonable,” and that unreasonableness must cause further harassment to the student. Overall, the Court held that a student must plead, and ultimately prove: 1) an incident of actionable sexual harassment, 2) the school’s actual knowledge of that incident, 3) some further incident of actionable sexual harassment, and 4) that the further actionable harassment would not have happened but for the objective unreasonableness (deliberate indifference) of the school’s response.

STEM OPT Site Visits – Why ICE Is Knocking On Your Door Now - Higher Education Law Report

October 11, 2019

By Joanna L. Silver

U.S. Immigration and Customs Enforcement’s (“ICE”) latest compliance activity involves site visits of those employers who employ F-1 nonimmigrant students under STEM Optional Practical Training (“STEM OPT”) work authorization.  With STEM OPT, F-1 students who have earned STEM (e.g., science, technology, engineering and mathematics) degrees from U.S. institutions of higher education can apply for and obtain an additional 24 months of OPT work authorization in addition to the 1 year of post-graduation OPT granted to all eligible F-1 students.  

Read More >> <p>STEM OPT Site Visits &ndash; Why ICE Is Knocking On Your Door Now - Higher Education Law Report</p>

Race-Conscious Admissions and the Race to the Supreme Court - Higher Education Law Report

October 2, 2019

By Monica C. Barrett and Sarah A. Luke

In what is likely only the first step in a trek to the U.S. Supreme Court, on September 30, 2019, Harvard College defeated a challenge to its admissions policy brought in the federal District Court in Massachusetts on behalf of Asian-American applicants.  In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Civil Action No. 14-cv-14176-ADB, U.S. District Court Judge Allison D. Burroughs found that Harvard’s admissions policies did not violate Title VI of the Civil Rights Act or the strict scrutiny standard of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.  We will summarize the lengthy court decision in this comparatively short piece.  The decision itself outlines extensive factual findings based on written submissions and the testimony from eighteen current and former Harvard employees, four expert witnesses, and eight current or former Harvard college students. 

Read More >> <p>Race-Conscious Admissions and the Race to the Supreme Court - Higher Education Law Report</p>

Proposed Rule Would Preclude Undergraduate and Graduate Students from Union Organizing - Higher Education Law Report

September 24, 2019

By Robert F. Manfredo

On September 23, 2019, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking that addresses the long-standing issue of whether undergraduate and graduate students who perform services for compensation (including teaching or research) at private colleges and universities can form a union under the National Labor Relations Act (NLRA).  Under the proposed rule, student workers would not be able to organize based on the Board’s position that such individuals do not meet the definition of “employee” under Section 2(3) of the NLRA because their relationships with their colleges and universities are predominantly educational, not economic.

Read More >> <p>Proposed Rule Would Preclude Undergraduate and Graduate Students from Union Organizing - Higher Education Law Report</p>

New York Legislation Redefines Harassment Standard - Higher Education Law Report

September 16, 2019

By Taylor E. Reynolds, Theresa E. Rusnak, and Subhash Viswanathan

On August 12, 2019, Governor Cuomo signed legislation making sweeping changes to the New York Human Rights Law (“NYHRL”). Although we previously posted summaries of the significant amendments to the Human Rights Law and their potential impact on employers, we take this opportunity to explain how those amendments pose challenges for New York colleges and universities. 

Read More >> <p>New York Legislation Redefines Harassment Standard - Higher Education Law Report</p>

Proposed Title IX Regulations Would Necessitate Extensive Changes to Institutional Policies and Practices

November 19, 2018

By Philip J. Zaccheo, Laura H. Harshbarger, and E. Katherine Hajjar

On November 16, 2018, more than a year after rescinding Obama administration era Title IX subregulatory guidance on colleges’ and universities’ obligations under Title IX, the United States Department of Education published its long-awaited proposed Title IX regulations. The proposed regulations will likely be viewed by institutions as a mixed bag. On the one hand, the regulations promise a narrower scope of enforcement and greater deference to institutional decisions. On the other hand, notwithstanding Secretary of Education Betsy DeVos’s assertions that the prior administration had inappropriately imposed highly technical and overly-stringent compliance obligations on colleges and universities, the proposed regulations would legislate significantly in this area, mandating detailed new processes, many of which are arguably beyond the Department’s discretion to require and some of which may create conflicts with the requirements of state laws such as New York Education Law Article 129-B. The following are some of the most noteworthy provisions.

Read More >> <p>Proposed Title IX Regulations Would Necessitate Extensive Changes to Institutional Policies and Practices</p>

New York High Court Renders Important Decision Deferring to Institutional Determination in Sexual Misconduct Proceeding

November 6, 2018

By Howard M. Miller

Irrespective of one’s political point of view, the Kavanagh confirmation hearings captured the Nation’s attention and created watercooler debates, heated at times, as to respective views of the truth in a case involving sexual assault.  And while the public may becoming adept at sideline adjudications of wildly divergent versions of events, Colleges have long been on the front line. 

Read More >> <p>New York High Court Renders Important Decision Deferring to Institutional Determination in Sexual Misconduct Proceeding</p>

New NCAA Legislation Necessitates Changes to Institutional Employment Agreements

August 15, 2018

By Philip J. Zaccheo

On August 8, the NCAA Division I Board of Directors adopted Proposals 2018-16_and_2018-17.  These proposals, which arose out of the work of the Commission on College Basketball (and associated working groups), will necessitate new content in employment agreements with certain institutional personnel executed, extended or renewed on or after August 8, 2018.

Read More >> <p>New NCAA Legislation Necessitates Changes to Institutional Employment Agreements</p>

The Recent NYU ERISA Decision and Best Practices for ERISA Fiduciaries

August 12, 2018

By Robert W. Patterson

A class action lawsuit against New York University, which alleged that the fiduciaries of its two retirement plans breached their ERISA duties by failing to diligently monitor the plans’ investment funds and allowing the plans to pay excessive fees, was recently dismissed.1 After an eight-day bench trial, U.S. District Judge Katherine B. Forrest ruled that, despite some “troubling” deficiencies in the manner in which the fiduciaries discharged their duties, the plaintiffs failed to prove any fiduciary breach.

Read More >> <p>The Recent NYU ERISA Decision and Best Practices for ERISA Fiduciaries</p>

VERY LATE BREAKING NEWS: USCIS Issues Revised Final Guidance on Unlawful Presence for Nonimmigrant Students and Exchange Visitors

August 9, 2018

By Joanna L. Silver

As you know from the August 2, 2018 Higher Education Law Report, the U.S. Citizenship and Immigration Services’ (“USCIS”) policy memorandum dramatically changing the way USCIS calculates unlawful presence for students and exchange visitors in F, J and M nonimmigrant status and their dependents took effect on August 9, 2018. Very late in the evening of August 9, 2018, USCIS released a revised final policy memorandum which supersedes the prior one and addresses unlawful presence for F and M nonimmigrants with timely filed or approved reinstatement applications and J nonimmigrants who are reinstated by the U.S. Department of State, the agency that administers the J-1 exchange visitor program.

Read More >> <p>VERY LATE BREAKING NEWS: USCIS Issues Revised Final Guidance on Unlawful Presence for Nonimmigrant Students and Exchange Visitors</p>

As the Fall Semester Gets Underway, Colleges and Universities Should Remind Nonimmigrant Students and Exchange Visitors of New Unlawful Presence Policy to be Implemented by USCIS Beginning August 9, 2018 - Higher Education Law Report

August 1, 2018

By Joanna L. Silver

August 9, 2018, the effective date of U.S. Citizenship and Immigration Services' (“USCIS”) policy memorandum that dramatically changes the way USCIS will calculate unlawful presence for students and exchange visitors in F, J and M nonimmigrant status and their dependents, is just around the corner. As such, it is essential for Designated School Officials (“DSO”) on college and university campuses to remind nonimmigrant students and exchange visitors of the upcoming policy change to ensure that they do not violate it and jeopardize their stay in the U.S.

Read More >> <p>As the Fall Semester Gets Underway, Colleges and Universities Should Remind Nonimmigrant Students and Exchange Visitors of New Unlawful Presence Policy to be Implemented by USCIS Beginning August 9, 2018 - Higher Education Law Report</p>