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Kollaritsch v. Michigan State University Board of Trustees

United States Court of Appeals, Sixth Circuit

December 12, 2019

Emily Kollaritsch, et al., Plaintiffs-Appellees,
v.
Michigan State University Board of Trustees; Denise Maybank, in her individual and official capacity as Vice President for Student Affairs, Defendants-Appellants.

          Argued: March 20, 2019

          Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:15-cv-01191-Paul Lewis Maloney, District Judge.

         ARGUED:

          Michael E. Baughman, PEPPER HAMILTON LLP, Philadelphia, Pennsylvania, for Appellants.

          Alexander S. Zalkin, THE ZALKIN LAW FIRM, P.C., San Diego, California, for Appellees.

         ON BRIEF:

          Michael E. Baughman, Hedya Aryani, PEPPER HAMILTON LLP, Philadelphia, Pennsylvania, for Appellants.

          Alexander S. Zalkin, THE ZALKIN LAW FIRM, P.C., San Diego, California, for Appellees. Seanna R. Brown, BAKER & HOSTETLER LLP, New York, New York, for Amicus Curiae.

          Before: BATCHELDER, ROGERS, and THAPAR, Circuit Judges.

          OPINION

          ALICE M. BATCHELDER, CIRCUIT JUDGE.

         A victim of "student-on-student sexual harassment" has a private cause of action against the school under Title IX of the Education Amendments of 1972 (Title IX), 86 Stat. 373, codified as 20 U.S.C. § 1681, et seq., based on the formula first set out in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Under that formula, the sexual harassment must meet a certain standard and the evidence must satisfy the elements for an intentional tort. Our particular focus in this appeal is on the requirements that the harassment must be "pervasive" and the school's response must "cause" the injury. 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. 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. Because none of the plaintiffs in this case suffered any actionable sexual harassment after the school's response, they did not suffer "pervasive" sexual harassment as set out in Davis and they cannot meet the causation element. We also find that the individual defendant is entitled to qualified immunity. Altogether, we REVERSE the district court's order and REMAND for entry of a final judgment dismissing these claims.

         I.

         This lawsuit stems from four student-on-student sexual assaults at Michigan State University. In each case, a male student sexually assaulted a female student and she reported it to campus police and to the proper administrative authorities, which undertook a response beginning with an investigation. The plaintiffs are the female student victims: Emily Kollaritsch, Shayna Gross, Jane Roe 1, and Jane Roe 2. But this lawsuit is not about the sexual assaults, nor is it directed at the perpetrators; it is directed at the University administration and its response. The plaintiffs contend that the administration's response was inadequate, caused them physical and emotional harm, and consequently denied them educational opportunities. They sued the Michigan State University Board of Trustees (hereinafter "MSU") and Vice President for Student Affairs Denise Maybank, among several others, claiming violations of Title IX, Due Process and Equal Protection under 42 U.S.C. § 1983, and Michigan law.

         The defendants moved to dismiss the claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Following a hearing and the plaintiffs' withdrawal of several claims, the district court dismissed all but four claims: the claims by Kollaritsch, Gross, and Roe 1 that MSU violated Title IX, and the § 1983 claim by Gross that Maybank violated her right to equal protection. See Kollaritsch v. Mich. State Univ. Bd. of Tr., 298 F.Supp.3d 1089, 1096 (W.D. Mich. 2017).

         Maybank filed an interlocutory appeal of the district court's denial of her assertion of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (providing a defendant the right to an interlocutory appeal of the "denial of a claim of qualified immunity, to the extent that it turns on an issue of law"). Meanwhile, MSU moved the district court to certify its order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (providing for interlocutory appeal of qualifying issues at the courts' discretion) and, upon certification, moved this court to permit the appeal. We granted the motion, explaining that "whether a plaintiff must plead further acts of discrimination to allege deliberate indifference to peer-on-peer harassment under Title IX" is a controlling question of law warranting immediate appeal. We consolidated the appeals.

         From a procedural posture, a § 1292(b) interlocutory appeal such as this one is unusual in that it arises from a denial rather than a grant of a Rule 12(b)(6) motion to dismiss the complaint, so "we are not governed by the Rule 12(b)(6) standard of review" for granted motions. Foster Wheeler Energy Corp. v. Metro. Knox Solid Waste Auth., Inc., 970 F.2d 199, 202 (6th Cir. 1992). This is a review "limited to pure questions of law." Id.; but see Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996) (explaining that we are not limited to only the specifically certified question but may "address any issue fairly included within the certified order"). We do not make any determination of any facts, even by implication; the analyses and decisions herein leave all questions of fact unresolved and all allegations still merely alleged. See Sheet Metal Emp'rs Indus. v. Absolut Balancing Co., 830 F.3d 358, 361 (6th Cir. 2016). This same limitation applies to the facts accepted as true for purposes of our deciding the qualified-immunity claim.

         II.

         By design and effect, the Davis Court's Title IX private cause of action against a school for its response to student-on-student sexual harassment is a "high standard" that applies only "in certain limited circumstances." Davis, 526 U.S. at 643. The school is "properly held liable in damages only where [it is] deliberately indifferent to sexual harassment, of which [it] has actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Id. at 650.

         Ordinarily, we state the Davis standard as a three-element test and ordinarily that is enough.[1] But, even without the careful parsing that follows, the Davis formula clearly has two separate components, comprising separate-but-related torts by separate-and-unrelated tortfeasors: (1) "actionable harassment" by a student, id. at 651-52; and (2) a deliberate-indifference intentional tort by the school, id at 643. The critical point here is that the Davis formulation requires that the school had actual knowledge of some actionable sexual harassment and that the school's deliberate indifference to it resulted in further actionable harassment of the student-victim.

         Actionable Sexual Harassment. We can conservatively describe "harassment," without additional qualification, as some type of aggressive and antagonistic behavior that, from the victim's perspective, is uninvited, unwanted, and non-consensual. For student-on-student sexual harassment to be actionable under Davis's Title IX private-cause-of-action formulation, it must be (a) severe, (a) pervasive, and (c) objectively offensive. Id. at 651; see, e.g., Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 363 (6th Cir. 2012) (holding that harassment comprising a shove into a locker, an "obscene sexual gesture," and a "request for oral sex" did "not rise to the level of severe, pervasive, and objectively offensive conduct" (quotation marks omitted)).

         "Severe" means something more than just juvenile behavior among students, even behavior that is antagonistic, non-consensual, and crass. The Davis Court made an explicit admonishment that "simple acts of teasing and name-calling" are not enough, "even where these comments target differences in gender." Davis, 526 U.S. at 651; 652 ("It is not enough to show . . . that a student has been teased or called offensive names." (quotation marks and editorial marks omitted)).[2]

         "Pervasive" means "systemic" or "widespread," id. at 652-53, but for our purposes, it also means multiple incidents of harassment; one incident of harassment is not enough. Id. (explaining that this cause of action does not cover "claims of official indifference to a single instance of one-on-one peer harassment"). The Davis Court hypothesized that a single incident could be sufficiently severe that it would result in the articulated injury-and we do not doubt that a sexual assault would be such a severe incident-but the Court held that a single incident would nonetheless fall short of Title IX's requirement of "systemic" harassment. As the Court put it:

Although, in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an effect, we think it unlikely that Congress would have thought such behavior sufficient to rise to this level in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment. By limiting private damages actions to cases having a systemic effect on educational programs or activities, we reconcile the general principle that Title IX prohibits official indifference to known peer sexual harassment with the practical realities of responding to student behavior, realities that Congress could not have meant to be ignored.

Id. at 652-53 (emphasis added). The Davis dissent offered its view of this passage, which the majority did not dispute: "The majority appears to intend [the pervasiveness] requirement to do no more than exclude the possibility that a single act of harassment perpetrated by one student on one other student can form the basis for an actionable claim." Id. at 677 (Kennedy, J., dissenting). That a single incident is insufficient on its own to state a claim correspondingly adds further support to the requirement that at least one more (further) incident of harassment, after the school has actual knowledge and implements a response, is necessary to state a claim.[3]

         "Objectively offensive" means behavior that would be offensive to a reasonable person under the circumstances, not merely offensive to the victim, personally or subjectively. Id. at 651. "Whether gender-oriented conduct rises to the level of actionable harassment thus depends on a constellation of surrounding circumstances, expectations, and relationships, including, but not limited to, the ages of the harasser and the victim and the number of individuals involved." Id. (quotation marks omitted). The victim's perceptions are not determinative. "Indeed, the [Davis majority] . . . suggests that the 'objective ...


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