‘EXPEL FIRST And Ask Questions Later’: Appeals Court Undermines Its Own Precedent In Title IX Ruling
It’s not enough for a college to arrest and remove a student accused of harassment, at least according to a new Title IX ruling from the 6th U.S. Circuit Court of Appeals. A three-judge panel found the University of Michigan showed “deliberate indifference” toward student Rebecca Foster, based on her alleged harasser’s repeated flouting of restrictions placed on him by the university.
The ruling appears to undermine an opinion from the same court but different three-judge panel in December. That panel said the female plaintiff cannot claim the University violated Title IX policies simply because she is dissatisfied with its response – a sentiment echoed by the dissenting judge in the new ruling. Accusers “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,” the December ruling said. It was that standard of deliberate indifference that was in question in last week’s ruling. “Under Title IX, a school may be held liable only for what it can control,” Judge Jeffrey Sutton wrote in a scathing dissent. The university “ratcheted up the protections at every turn,” the opposite of deliberate indifference, he said: “If there is one thing sure to come out of today’s decision, it will be a university’s decision to expel first and ask questions later.”
New York criminal defense attorney Scott Greenfield denounced the majority opinion in an analysis, noting it “perhaps tellingly” refers to the male student as the “respondent,” even though he was not a party to the lawsuit. (The opinion doesn’t explain why it identifies him as such.) If UMich’s response to Foster’s complaint qualified as “deliberate indifference,” the only possible remedy would be to expel an accused student upon report of the behavior, Greenfield wrote.
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