What Effort is “Enough” by Institutions in the 6th Circuit to Avoid “Deliberate Indifference”?

March 18, 2020

Last week, the 6th Circuit Court of Appeals decided the case of Foster v. The University of Michigan, No. 19-1314 (6th Cir. March 11, 2020). In this case, Foster was repeatedly sexually harassed by the respondent. The University of Michigan put a no-contact order in place, but the respondent made clear actions to violate the order. The University of Michigan made some attempts to remedy the situation. Nonetheless, Foster sued the University of Michigan alleging “deliberate indifference” under Title IX for failure to adequately address the respondent’s violations of a no-contact order. The district court ruled in favor of the University of Michigan and dismissed the case on summary judgment; Foster appealed.

In Title IX cases, the test for “deliberate indifference” is as follows:
1. Severe, pervasive and objectively offensive sexual harassment;
2. Actual knowledge of harassment by the institution; and
3. Deliberate indifference to the harassment.

In Foster, the first two elements of the deliberate indifference test were not substantively debated by the parties. Rather, the case rests on the third prong – whether the University of Michigan did enough after it was clear that respondent intended to continue to violate the no-contact order. The appeals court summarized the case as follows: “[t]he central issue in this case is whether the University was deliberately indifferent to the respondent’s harassment of Foster after he signaled that he would not comply with the no-contact order.”

After a thorough review of the facts of Foster’s harassment and the University of Michigan’s response, the appeals court held that there was sufficient evidence of “deliberate indifference” on the part of the University of Michigan that the district court erred in dismissing the case. The case has been remanded to the district court for further proceedings. The University of Michigan clearly made some steps to protect Foster from the respondent and his multiple violations of the no-contact order, but was it enough?