The Sixth Circuit has ruled that Title IX liability requires "proof that a 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 complaining student in Kollaritsch v. Michigan State Board of Trustees. This resulted in the dismissal of four students' claims.
The Court took pains to analyze the proof components. First, it distinguished mere "harassment" which it "conservatively" described as "some type of aggressive and antagonistic behavior" that is uninvited, unwanted and non-consensual." "Actionable" sexual harassment, on the other hand, must be "(a) severe, (b) pervasive, and (c) objectively offensive." "Severe" means "something more than just juvenile behavior" even if it is "antagonistic, non-consensual, and crass." The court reiterated the Supreme Court's admonishment that "simple acts of teasing and name-calling ... even where these comments target differences in gender" are not enough. To further emphasize the standard for "actionable sexual harassment" the court pointed to a prior decision, Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, (6th Cir. 2012), where it held that harassment consisting of a shove, an "obscene sexual gesture," and a "request for oral sex" was not actionable sexual harassment.
The "pervasive" element requires "multiple incidents of harassment; one incident of harassment is not enough." "Pervasive," the court emphasized, "means 'systemic' or 'widespread.'"
Whether behavior is "objectively offensive" is not determined by the complainant's "perceptions"; the "behavior [must] be offensive to a reasonable person under the circumstances, not merely offensive to the victim, personally or subjectively."
The only ground the court broke in the decision was a holding that a student's perception of vulnerability to further sexual harassment was not enough to trigger Title IX liability.
As Judge Thapar remarked in his concurring opinion, if universities are going to get into the Title IX claim investigation and adjudication business, "we should expect them to do better."
Robert L. Abell
www.RobertAbellLaw.com
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