GOOD: Federal Appeals Court Continues to Rewrite Rules on Campus Sex Assault Investigations
Late last year, in a ruling from a three-judge panel largely unnoticed outside legal circles, the federal Sixth Circuit Court of Appeals threw out Kollaritsch’s claims, saying just seeing her abuser around campus wasn’t enough to let a sexual abuse survivor successfully sue a school. Instead, the ruling said, there had to be evidence the abuser took action again against the survivor and the school was deliberately indifferent to it. The decision continues the trend of the Sixth Circuit ruling in favor of the accused and schools in campus sexual assaults. It also sets up conflicts with other appeals court rulings, a key ingredient for what all believe is a coming U.S. Supreme Court case. The ruling is in direct conflict with a ruling in the 10th Circuit. (The 10th Circuit ruling says a survivor doesn’t have to actually suffer further sexual misconduct, just be vulnerable to it in order to have a viable suit. The Sixth Circuit says that’s too broad.)
“In short, we hold that a student-victim plaintiff must plead, and ultimately prove, that the school had actual knowledge of actionable sexual harassment and that the school’s deliberate indifference to it resulted in further actionable sexual harassment against the student-victim, which caused the Title IX injuries,” Judge Alice Batchelder wrote. “A student-victim’s subjective dissatisfaction with the school’s response is immaterial to whether the school’s response caused the claimed Title IX violation.”
The women “just didn’t like what MSU did” in terms of punishment, said Deborah Gordon, an attorney who represents a University of Michigan student in another landmark Sixth Circuit decision. In that case, Gordon’s client had been accused of sexual assault. He sued the school, alleging his due process rights had been violated. The case ended up at the Sixth Circuit, which ruled universities must offer the accused a live hearing with a chance for cross-examination of their accuser. That set off a chain of massive changes to how universities in the states covered by the federal court — Michigan, Ohio, Kentucky and Tennessee — had to investigate these issues. U.S. Department of Education Secretary Betsy DeVos is expected to make similar hearings a centerpiece of her new rules for how campuses across the nation must handle these cases.
The Kollaritsch case at MSU also could reshape the landscape. If Kollaritsch had won, “the court would be flooded with litigation,” Gordon said. “A violation of (sexual misconduct rules) shouldn’t mean that everyone should be immediately expelled. That seems to be what they wanted. The ruling makes it very clear that there was sexual harassment or sexual assault that was dealt with.
“What this Sixth Circuit opinion makes clear is being vulnerable is not just being on campus with the person. This is the court pushing back against the view that all women must be viewed as victims and all accused should be banished.”
freep.com-Jesse
