Rebecca Foster v. Bd. of Regents of Univ. of Mich. ( 2020 )


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    Pursuant to Sixth Circuit I.O.P. 32.1(b)
    File Name: 20a0378p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    REBECCA FOSTER,                                                 ┐
    Plaintiff-Appellant,      │
    │
    >        No. 19-1314
    v.                                                        │
    │
    │
    THE BOARD OF REGENTS OF THE UNIVERSITY OF                       │
    MICHIGAN; UNIVERSITY OF MICHIGAN; ALISON                        │
    DAVIS-BLAKE,                                                    │
    Defendants-Appellees.                    │
    ┘
    On Petition for Rehearing En Banc
    United States District Court for the Eastern District of Michigan at Detroit.
    No. 2:17-cv-10781—Bernard A. Friedman, District Judge.
    Argued En Banc: October 7, 2020
    Decided and Filed: December 11, 2020
    Before: COLE, Chief Judge; MOORE, CLAY, GIBBONS, SUTTON,
    GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR,
    BUSH, LARSEN, and NALBANDIAN, Circuit Judges.*
    _________________
    COUNSEL
    ARGUED EN BANC: Joshua Adam Engel, ENGEL & MARTIN, LLC, Mason, Ohio, for
    Appellant.     Stephen J. Cowen, JONES DAY, Detroit, Michigan, for Appellees.
    ON SUPPLEMENTAL BRIEF: Joshua Adam Engel, ENGEL & MARTIN, LLC, Mason, Ohio,
    for Appellant. Stephen J. Cowen, Amanda K. Rice, Andrew J. Clopton, JONES DAY, Detroit,
    Michigan, for Appellees. ON BRIEF IN SUPPORT OF APPELLEES’ PETITION FOR
    REHEARING EN BANC: Bryan H. Beauman, STURGILL, TURNER, BARKER &
    MOLONEY, PLLC, Lexington, Kentucky, for Amici Curiae.
    *Judge   Readler and Judge Murphy recused themselves from participation in this decision.
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.                  Page 2
    SUTTON, J., delivered the opinion of the court in which GIBBONS, GRIFFIN,
    KETHLEDGE, THAPAR, BUSH, LARSEN, and NALBANDIAN, JJ., joined. MOORE, J. (pp.
    16–40), delivered a separate dissenting opinion in which COLE, C.J., and CLAY, STRANCH, and
    DONALD, JJ., joined in full, and WHITE, J., joined in part. WHITE, J. (pg. 41), delivered a
    separate dissenting opinion.
    _________________
    OPINION
    _________________
    SUTTON, Circuit Judge. Rebecca Foster suffered peer-on-peer sexual harassment while
    enrolled in the University of Michigan’s Executive MBA program. At issue in this Title IX case
    is whether the University was “deliberately indifferent” to her plight. Davis v. Monroe Cnty. Bd.
    of Educ., 
    526 U.S. 629
    , 647 (1999). It was not. At each stage, the University ratcheted up
    protections for her: from a no-contact order after the first complaint to a requirement that the
    harasser stay in a separate hotel for the program’s last three-day session to a removal from the third
    day of the session to an order that he not attend graduation. That does not constitute deliberate
    indifference as a matter of law, and accordingly we affirm the district court’s summary judgment
    decision in favor of the University.
    I.
    The University of Michigan runs an MBA program for business executives. Students
    attend classes roughly one three-day weekend a month at a hotel in Los Angeles. In August 2012,
    the program welcomed a cohort of 40 professionals for that year’s new class, all slated to graduate
    in May 2014.
    Toward the end of the program, on March 13, 2014, the University received a call from
    one of the students, Rebecca Foster, who reported that another student had harassed her. Foster
    filed an official complaint and submitted evidence of the harassment: emails, texts, and social
    media posts.
    The University began an investigation.          It interviewed Foster, who described her
    experience with the harasser. The two became friends through the program. In late 2013, the
    harasser, already married, began expressing romantic interest in Foster. During the October 2013
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.                  Page 3
    residency, he began delivering morning coffee to her hotel room. At first Foster refused, but she
    eventually allowed him to come in and have coffee with her. During the November residency, he
    told her that he “kind of love[d] her,” and she “clearly” responded that she wasn’t romantically
    interested in him. R.48-10 at 4. During the December residency, when he said he was “in love
    with her,” she responded, “I do have feelings for you. But it’s because we’re friends.”
    Id. The harasser initiated
    “unwanted contact” with Foster. R.44-4 at 7. At the December
    residency, he “grabbed her butt” as she walked away from an elevator. R.48-10 at 4. When a
    group of students, including Foster and the harasser, went to a Michigan football game, the harasser
    rubbed her leg. Days after the game, Foster, the harasser, and two others went to the Griffith
    Observatory, where the harasser, without invitation, kissed her on the cheek.
    Things escalated during the weeklong residency in January 2014. On January 6, Foster,
    “tired and worn down,” kissed the harasser for 10 seconds in her hotel room. R.48-10 at 5. When
    he delivered coffee on January 8, she asked him to leave, but he instead “crawled into [her] bed”
    and tried to remove her clothes.
    Id. She got out
    of bed, went into the bathroom, and undressed to
    shower. He came into the bathroom while she was naked and pulled down his pants. She told him
    to leave, and he did. On January 10, he tried to kiss her while they were in his hotel room. When
    she rebuffed him, he “unleashed tons of hurtful texts.”
    Id. at 6.
    Foster began to “fear[] for [her] safety.”
    Id. She continued to
    see the harasser socially but
    reiterated that she didn’t have romantic feelings for him. After the February residency, the harasser
    sent a series of messages to Foster “ruminating” about his feelings.
    Id. at 7.
    The two did not
    interact during the March residency, but after it ended he sent her more text messages. She texted
    back that he was “scaring” her.
    Id. Feeling “overwhelmed,” Foster
    reached out to the University.
    Id. After hearing Foster’s
    account of what had happened, the University responded the next
    day. It ordered the harasser not to contact Foster in any way or to retaliate against her.
    The University then interviewed the harasser, who gave a different account of their
    relationship. In his telling, when he expressed romantic feelings to Foster during the October 2013
    residency, she was “amenable to elevating [their] relationship to the sexual plane,” asked him to
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.                  Page 4
    be “patient” with her, and told him to keep their relationship a “secret.”
    Id. at 9.
    During the
    November and December residencies, they would go on dates and engage in foreplay in their hotel
    rooms. They started having sex during the January residency, but she stopped the “sexual
    experiment” afterward.
    Id. at 11.
    During the February residency, he tried to distance himself from
    her, but she would always “draw [him] back in” with “provocative conversation.”
    Id. He avoided her
    completely during the March residency because he was “intent upon NOT falling back” in love
    with her.
    Id. at 12.
    He denied engaging in sexual misconduct.
    On March 29, the harasser violated the no-contact order by sending Foster a one-word text:
    “Really.” R.48-13. Foster alerted the University, and it promised to reprimand the harasser the
    next day. And so it did. The harasser apologized, explained the text had been a misunderstanding,
    and vowed he would “not do it again.” R.44-15. He did not text her again.
    On March 31, the University told Foster about the safety measures it had imposed for the
    final residency session, scheduled from Thursday, April 3 to Saturday, April 5. It would house the
    harasser in another hotel. He would eat separately from the rest of the cohort and would leave the
    cafeteria prior to her arrival. In classes, the harasser would sit out of Foster’s sight. The harasser
    knew that if he showed up to a social event and noticed Foster, he had to leave “immediately.”
    R.44-16. The school also put Foster in touch with two administrators charged with monitoring the
    residency session and helping her as needed.
    Foster sent a follow-up email expressing concern for her safety and wellbeing, explaining
    that she did not want to be “in the same room” as the harasser. R.44-19. The University offered
    additional accommodations. It assured her that she would not have to speak in front of the harasser
    and that her grades would not suffer. The University offered both Foster and the harasser the
    opportunity to complete their educations at the Ann Arbor campus instead. Each declined.
    The University successfully implemented the safety measures during the Thursday session.
    At one point, a professor stopped the harasser from entering the dining hall while Foster ate inside.
    No contact as a result occurred between the harasser and Foster that day.
    Upon the harasser’s request, the same professor provided him with access to the hotel
    Wi-Fi, something he presumably lacked after the University moved him to a different hotel.
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.                  Page 5
    Believing he had been unfairly denied dinner, the harasser sent a crude email to the faculty, though
    not Foster, late that night. He insisted on attending a private karaoke event that he had already
    arranged for the following evening for the students in the program, no matter who attended. And
    he invited the University to “pound sand.” R.44-22 at 1.
    Overnight and into Friday morning, the University considered whether to remove the
    harasser from the Friday morning session in view of the late-night email, but decided against it.
    The University told Foster not to attend the private karaoke event that the harasser had organized.
    The harasser violated the no-contact order on Friday. He “got right in [Foster’s] way”
    during a break, stood in front of the coffee table to prevent her from getting coffee, and stood in
    the lunchroom until Foster had to enlist one of the administrators to get her lunch. R.44-2 at 21.
    He also posted an offensive comment about her on his Facebook page.
    After Foster notified the University about the Facebook post, it called the harasser and told
    him that he could not attend class the next day, the last day of the program. The harasser emailed
    his classmates to explain his absence. He revealed that Foster had filed a complaint against him
    and described their purported affair in a crude way. He also bombarded staff and administrators
    with a series of strange, if not unhinged, emails. The University’s general counsel replied, insisting
    that the harasser desist from further contact with the University’s staff and Foster. He added that
    any further violation would put the harasser’s “receipt of a degree in grave jeopardy.” R.48-31.
    In response to the harasser’s emails, the University also prohibited him from attending the
    MBA commencement ceremony in Ann Arbor. To make sure that he would not attend, the
    University contacted his lawyer and secured the lawyer’s assurances that her client would comply.
    It also reached out to the Ann Arbor campus police force and asked them to conduct a “threat
    assessment” based on the harasser’s recent emails. R.48-33 at 2. The officers concluded that he
    did not pose a danger to the safety of Foster or others. The University took one more precaution.
    It assigned plainclothes officers to stay near Foster and to protect her at the commencement
    ceremony. Foster took a measure of her own. She obtained a temporary restraining order against
    the harasser from a California court.
    No. 19-1314                  Foster v. Univ. of Mich. Bd. of Regents et al.                  Page 6
    Foster requested, and received, extensions from at least one professor to complete her
    assignments for the program. When she reported difficulty focusing, the University permitted her
    to retake an exam and did not count the first try against her.
    On April 29, Foster told the University that she saw a Facebook post by the harasser
    suggesting he would travel to Ann Arbor to attend the commencement ceremony. The University
    told the campus police about the message. It provided a photo of the harasser to the staff at the
    Executive Residence, where the MBA commencement would be held. And it stationed a police
    officer in Foster’s hotel.
    Foster arrived at the Executive Residence on April 29. When she went into one of its
    common areas, she saw the harasser’s reflection in a window. She found a campus police officer,
    who escorted the harasser out of the building. Early the next morning, campus police received a
    copy of the temporary restraining order. Later that day, they located the harasser at, perhaps
    unsurprisingly, a karaoke bar, and arrested him. They took him to the airport and forced him to
    board a plane back to California.
    On May 1, the University released its investigative report. Based on the evidence and
    statements supplied by Foster, the harasser, and five witnesses, it determined that the harasser had
    committed sexual misconduct and imposed sanctions against him, mainly a permanent no-contact
    order. It placed a permanent notation on his transcript that he had committed sexual misconduct.
    It banned him from campus for three years. And it banned him from ever attending a University
    event that Foster attended.
    Foster sued the University of Michigan under Title IX on the theory that it had shown
    deliberate indifference to her complaints of peer-on-peer harassment. The district court granted
    the University’s motion for summary judgment. That decision prompted this appeal.
    II.
    “No person in the United States,” Title IX says, “shall, on the basis of sex, be . . . subjected
    to discrimination under any education program or activity receiving Federal financial assistance.”
    20 U.S.C. § 1681(a).         The statute covers a school that “subject[s]” students to sex-based
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.                 Page 7
    “discrimination” in at least two ways.       A school might directly interfere with a student’s
    participation in an education program on the basis of sex. Or it might indirectly do the same thing
    by being “deliberately indifferent to known acts of student-on-student sexual harassment.” 
    Davis, 526 U.S. at 647
    . This case concerns the second possibility. The University accepts, for purposes
    of resolving this summary judgment motion, that Foster suffered actionable sexual harassment—
    harassment “so severe, pervasive, and objectively offensive that it effectively bars the victim’s
    access to an educational opportunity or benefit.”
    Id. at 633.
    That leaves one question: Was the
    University “deliberately indifferent” to Foster’s plight?
    Id. at 647.
    Deliberate indifference, as the phrase suggests, presents a “high bar” to imposing Title IX
    liability on a university. Stiles ex rel. D.S. v. Grainger Cnty., 
    819 F.3d 834
    , 848 (6th Cir. 2016).
    It’s not a university’s job to do the impossible—to “purg[e] [its] school[] of actionable peer
    harassment”; it’s a university’s job to respond in good faith when allegations of harassment arise.
    
    Davis, 526 U.S. at 648
    .
    A review of the facts in Davis—the key case in the area—adds contour to the
    deliberate-indifference standard. When a fifth-grade boy waged a months-long campaign of
    sexual harassment against a girl who sat next to him in class, the school did almost nothing.
    Id. at 633–35.
    The harassment included vulgar statements, such as “I want to get in bed with you” and
    “I want to feel your boobs,” and physical elements, such as the harasser’s “rubb[ing] his body
    against” the victim in a “sexually suggestive” way and “attempt[ing] to touch [the victim’s] breasts
    and genital area.”
    Id. at 633–34
    (quotations omitted). Most of the harassment occurred in the
    classroom and under a teacher’s supervision.
    Id. at 633–35, 646.
    The victim’s grades suffered,
    and she contemplated suicide.
    Id. at 634, 652.
    Despite her quick and frequent reporting, the school
    took “no disciplinary action” and failed to make “any effort” to separate the harasser from the
    victim.
    Id. at 635.
    It did not even permit the victim to change desks until after three months of
    reported harassment.
    Id. The victim established
    a cognizable claim of deliberate indifference, the
    Court concluded, because the school “fail[ed] to respond in any way over a period of five months
    to complaints of [the harasser’s] in-school misconduct.”
    Id. at 649.
    Gauged by these standards, the University of Michigan did not show deliberate
    indifference. Recall that the University did not know anything about the harassment until March
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.                 Page 8
    13, 2014, when Foster first complained about it. The University learned the details of the situation
    during a Title IX interview on March 20. At that point, the Executive MBA program had three
    more days of classes (April 3–5) and one commencement ceremony (April 30–May 1).
    From the first notice of harassment on March 13 through commencement, Foster presented
    the University with five complaints of misconduct by the harasser. Each time, the University
    adopted escalating measures proportionate to the misconduct.
    First, on March 13, 2014, Foster notified the University that she had suffered sexual
    harassment. The University promptly opened a Title IX investigation and put in place interim
    protective measures. It ordered the harasser not to contact Foster, banned him from her hotel,
    required him to eat meals separately from the group, instructed him to leave any social event she
    attended, and warned him against retaliating in any way.            The University assigned two
    administrators to monitor his activity and assist Foster if any issues arose. That is not deliberate
    indifference.
    Second, on March 29, the harasser violated the no-contact order through a single-word text:
    “Really.” R.48-13. In response, the University issued a verbal warning. The harasser apologized,
    explained that he meant to send the text to someone else, and promised that he would not make
    the same mistake again. From that point on, he never texted Foster again. Before that, he had
    done so frequently; that indeed was a feature of Foster’s March 13 complaint. The University
    made sure the problem did not undermine Foster’s education or performance. It excused her from
    classroom participation, granted her extensions on assignments, and apprised her professors of the
    situation. It also offered her and the harasser the opportunity to finish the MBA program at the
    University’s campus in Ann Arbor. Each declined. That is not deliberate indifference.
    Third, during the last three-day session and after no problems emerged during the April 3
    class, the harasser violated the no-contact order on April 4. He “got right in [Foster’s] way” during
    a break, stopped her from getting coffee by standing in front of the table, stood in the lunchroom,
    and made an offensive comment about her on Facebook. R.44-2 at 21. In response, the University
    banned him from all future school events, including the April 5 class and the commencement
    ceremony.
    No. 19-1314                 Foster v. Univ. of Mich. Bd. of Regents et al.                     Page 9
    The harasser did not respond well. He sent an inappropriate email to several of his
    classmates and several over-the-top, deranged emails to the University. In response, the University
    contacted his lawyer and secured the lawyer’s assurances that her client would comply with the
    disciplinary sanctions. It then contacted campus police and asked them to conduct a “threat
    assessment” to determine what danger the harasser posed to Foster and others in the community.
    R.48-6 at 2. Even though the assessment concluded that the harasser did not pose a risk to anyone’s
    physical safety, the University assigned several plainclothes officers to guard Foster during
    commencement. That is not deliberate indifference.
    Fourth, when Foster noticed on Facebook that the harasser appeared to be planning to
    attend commencement anyway, the University addressed the problem. It shared Foster’s tip with
    the Ann Arbor campus police and provided a photo of the harasser to the front desk of the hotel at
    which the commencement would be held and at which Foster would be staying. And it assigned
    a police officer to stay overnight in Foster’s hotel for the duration of her visit. That is not deliberate
    indifference.
    Fifth, the harasser for reasons all his own nonetheless went to the commencement
    ceremony. When Foster saw his reflection in a window at the hotel, she told the University.
    Campus police arrested him, escorted him to the airport, and sent him back to California. He never
    had a chance to interact with Foster. That is not deliberate indifference.
    Whether examined incident by incident or in combination, the University did its level best
    to protect Foster from this harassing classmate. It started with precautionary measures, moved to
    a verbal warning, and imposed a series of increasingly severe sanctions that led to a suspension
    from the last class and commencement as well as a one-way flight back to California. That wasn’t
    the end of it. The University banned the harasser from its Ann Arbor campus for three years,
    permanently banned him from any campus events that Foster planned to attend, and placed a
    notation on his transcript that he had engaged in sexual harassment. All the while, it took proactive
    measures to protect Foster’s safety.
    The University also attempted to ameliorate the effects of the harassment on Foster’s
    education, what Title IX is “designed to protect.” 
    Davis, 526 U.S. at 652
    . When Foster expressed
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.                 Page 10
    concerns about participating in class, it excused her. When Foster sought time extensions on her
    assignments, it granted them. When Foster asked to retake a test, it permitted a second try. When
    Foster explained the damage the harasser wrought on her networking prospects, the University
    banned him from future networking events. These measures indeed went beyond what a university
    is required to do. That is not deliberate indifference.
    Compare these circumstances to a case with far less proactive conduct by the school and
    in which the school nonetheless prevailed. Stiles involved a school administration that responded
    to a victim’s allegations of continued peer-on-peer harassment, filed over the course of 18 months,
    with one verbal warning after another. 
    See 819 F.3d at 849
    . Even so, because the school went
    beyond “merely talking to the offender[]” and took some proactive steps to protect the victim from
    further harassment, we concluded it could not be found liable for failing to “eliminate [his] peer
    harassment” altogether.
    Id. at 850–51.
    The same is true, far more true, here.
    Now compare these circumstances to cases in which the schools lost. In Vance v. Spencer
    County Public School District, harassers “touched [a middle school girl] inappropriately” in
    “virtually every class” for over a year. 
    231 F.3d 253
    , 257 (6th Cir. 2000). Despite repeated
    complaints by the victim and her mother to school officials, they responded only with a string of
    verbal warnings. “[T]he more [the victim and her mother] complained,” the more the harassment
    “seemed to increase.”
    Id. In that context,
    we found the school’s pattern of non-responses
    deliberately indifferent.
    Id. at 262–63.
    Likewise, in Patterson v. Hudson Area Schools, the victim
    suffered years of “persistent harassment” that included “daily” bullying, physical assault, and
    sexual assault. 
    551 F.3d 438
    , 439, 442, 448 (6th Cir. 2009). We found a cognizable claim of
    deliberate indifference because the school’s “only response” to the victim and his mother’s pleas
    for help was to “employ the same type of verbal reprimands” that had already come up short.
    Id. at 449.
    Reading the facts in these cases is all it takes to appreciate the significant difference
    between those cases and this one.
    Foster suggests that, whenever harassment continues after a school receives notice, a
    reasonable jury can find that the school remained deliberately indifferent. That can’t be. Foster’s
    proposed rule calls to mind strict liability, not deliberate indifference. The deliberate indifference
    standard makes schools liable when they “refuse[] to take action to bring the recipient into
    No. 19-1314                 Foster v. Univ. of Mich. Bd. of Regents et al.                   Page 11
    compliance,” Gebser v. Lago Vista Indep. Sch. Dist., 
    524 U.S. 274
    , 290 (1998), not when they take
    action that ultimately fails to “purg[e] their schools of actionable peer harassment,” 
    Davis, 526 U.S. at 648
    . We ask not whether the school’s efforts were ineffective but whether they
    amounted to “an official decision . . . not to remedy the violation.”
    Id. at 642
    (quotation omitted).
    To the extent Patterson suggests that an ineffective response necessarily generates a jury issue on
    deliberate indifference, 
    cf. 551 F.3d at 448
    , that is wrong.
    What at any rate could the University have done differently? That’s not the test of course.
    Else, strict liability would be the rule, and we would be ignoring the Supreme Court’s admonition
    that a Title IX plaintiff (or lower court) has no right to insist on “particular disciplinary action[s].”
    
    Davis, 526 U.S. at 648
    . But it’s still worth asking the question because, if the claimant can’t
    identify a better approach, it follows that no deliberate indifference occurred. Foster points to
    several roads not taken. None advances her case.
    Start with her suggestion that the University could have suspended the harasser. But isn’t
    that what it did in a series of escalating ways? At the outset, it banned him from staying at the
    hotel. Then, after he violated the no-contact order, it banned him from attending any remaining
    classes and from the commencement ceremony. That means he could not attend any official school
    events, which surely counts as a suspension, as any parent of a trouble-making student could attest.
    If Foster means to say that the ban came too late, that too defines deliberate indifference
    down. And unfairly so. At the time the University issued its no-contact order, it had no reason to
    believe the harasser would refuse to abide by the order’s terms. From that point on, after the
    “Really” text, it gave only one verbal warning before removing him from the classroom for good.
    Even then, it stopped at a verbal warning only after receiving an apology and assurances that the
    incident would not happen again. While we have cautioned schools against relying on verbal
    warnings that repeatedly do not work, see, e.g., 
    Patterson, 551 F.3d at 449
    ; 
    Vance, 231 F.3d at 257
    , we have never suggested that schools may not employ verbal warnings before turning to
    harsher sanctions.
    The late-night karaoke email says more about the harasser than the school.                 True,
    the harasser’s email suggested he might violate the no-contact order if Foster showed up at this
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.                 Page 12
    non-school-sponsored event. But the University told Foster about the email and suggested she not
    attend the karaoke event. And the harasser gave the University no reason to believe that he would
    violate the no-contact order in the classroom given that he had complied with the order in class the
    day before. Absent more reason to be concerned about a problem in class the next day, the
    University did not act in an intentionally indifferent way by allowing the harasser to go to this
    second-to-last class of the MBA program.
    The dissent maintains that one of the administrators “admi[tted] inadequacy” by suggesting
    that the satellite MBA program lacked resources for dismissing the harasser. Dissent at 34
    (quotation omitted). Hardly. The administrator simply noted that the school would have to work
    with hotel security rather than campus police. And hotel security proved up to the task of keeping
    the harasser out of class. If the University was short on anything, it wasn’t resources; it was time.
    And its real-time decision did not rise to the level of deliberate indifference.
    What about Foster’s call for an “immediate expulsion” of the harasser? R.18 at 13. That
    is a heavy lift in a case in which the claimant first told the University about the harassment two
    weeks before the last three-day session and in which it suspended the harasser when the initial
    steps did not work.
    Recall that the harasser has “constitutional [and] statutory” rights too. 
    Davis, 526 U.S. at 649
    . It’s “entirely reasonable for a school to refrain from a form of disciplinary action that would
    expose it” to lawsuits by the harasser.
    Id. Alleged harassers have
    not been shy about suing school
    administrations under Title IX and § 1983 for denying them educational opportunities without the
    requisite notice and process. See, e.g., Doe v. Oberlin Coll., 
    963 F.3d 580
    , 581 (6th Cir. 2020);
    Doe v. Baum, 
    903 F.3d 575
    , 580 (6th Cir. 2018); Doe v. Purdue Univ., 
    928 F.3d 652
    , 670 (7th Cir.
    2019). Foster’s harasser threatened to join this number, forcing the University to hold the thin line
    between immediately protecting Foster and denying the harasser process before expelling him. In
    this light, the University’s decision to take steps “short of expulsion” did not rise to the level of
    deliberate indifference. 
    Davis, 526 U.S. at 648
    .
    Any other approach would encourage universities to expel first and ask questions later.
    Because these cases often generate triable issues of fact, a pattern that will accelerate if we dilute
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.                 Page 13
    deliberate indifference into mere reasonableness, the day will eventually come in which two
    different juries will find that the same university loses coming and going over the same incident—
    by insufficiently protecting the rights of the victim in one case and by insufficiently protecting the
    rights of the accused in the other. Instead of identifying ways to avoid this parade of horribles, the
    dissent sponsors an additional float or two. Dissent at 38–39. Save for the highly unusual case,
    we respectfully disagree with the idea that Title IX was meant to impose liability on universities
    coming and going.
    Foster insists that this dispute does not implicate any such due process concerns. In her
    view, the “Really” text and the karaoke email gave the University undisputed evidence that the
    harasser violated the no-contact order and planned to do it again. Not so. The harasser called the
    text an accident, apologized, and never sent another text to her. As for the karaoke email, it went to
    university staff, not Foster, and the University legitimately doubted that it violated the no-contact
    order or amounted to “retaliation.” R.44-5 at 7.
    One thing more on this score. Expulsion would not have prevented many of the harassing
    acts—the “Really” text, the Facebook post, and the trip to Ann Arbor on the weekend of the
    graduation ceremony—because they lay beyond the school’s control. Immediate expulsion would
    not have secured Foster any quantum of protection that the suspensions did not.
    That leaves the suggestion that the University should have secured a no-trespassing order
    against the harasser after banning him from commencement. But the harasser gave the University
    no reason to believe he would attend the ceremony. And the University did not act indifferently
    in taking an officer of the court—the harasser’s lawyer—at her word when she assured the school
    that her client would not fly from Los Angeles to Ann Arbor for the event. A no-trespassing order
    would not have changed things anyway. Even without this order, the University took numerous
    steps to provide for Foster’s safety, such as having campus police stay overnight in her hotel and
    positioning them near her at the event. These measures worked. When the harasser showed up,
    campus police arrested him and promptly placed him on a one-way flight back home. He never
    interacted with her.
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.               Page 14
    Context, as in most things, tends to illuminate. Title IX deliberate indifference claims have
    special resonance when the school “exercises substantial control over both the harasser and the
    context in which the known harassment occurs,” as in an elementary school. 
    Davis, 526 U.S. at 645
    . But that plainly does not describe many features of this situation. Universities differ from
    grade schools when it comes to the control they have over students. That’s all the more true for
    off-site graduate programs conducted at a hotel, over 2,000 miles from a campus, for mid-career
    executives with an average age of 40. Much of the misconduct in this case did not even occur in
    the classroom but in inappropriate comments on Facebook, over which the University has no
    control. Even when the harasser sent inappropriate emails to classmates, spilling the details of a
    self-described affair, the University could not restrain his ability to use external email addresses
    he already had. It could and did control the harasser’s physical presence at classes, social
    events, ceremonies, and the like. And it could and did punish the harasser when he deployed
    these means of communication in hurtful ways. All of this does not mean Title IX fails to
    protect forty-year-old “free adults” learning in an off-site graduate school; it just means the
    deliberate-indifference   inquiry operates differently than it         does   for elementary-age
    “schoolchildren” over whom grade schools possess a unique degree of “supervision and control.”
    Id. at 646
    (quotation omitted).
    Contrary suggestions exceed the grasp of a deliberate-indifference claim.              Sure,
    administrators discussed terminating the harasser’s school email account.          But there’s no
    suggestion in the complaint or in the record that this would have protected Foster in any meaningful
    way. All but one of the abusive emails went directly to the University. And it had no choice but
    to continue dialogue with the harasser. It had a Title IX investigation to conduct. True enough,
    the University also provided the harasser with Wi-Fi for the final residency session. But that event
    predated the conduct that led to his removal from class. And attending business school without
    internet access makes little sense anyway. This argument ultimately devolves into a variation on
    the theme that the University should have expelled him immediately.
    Under Title IX, a school may be held liable only for what it can control. The University
    of Michigan did not show deliberate indifference when it comes to that duty and the limits on that
    duty. In Davis, the Court said that, “[i]n an appropriate case, there is no reason why courts, on a
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.                Page 15
    motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response
    as not [deliberately indifferent] as a matter of 
    law.” 526 U.S. at 649
    . This is one of those cases.
    We affirm.
    No. 19-1314                      Foster v. Univ. of Mich. Bd. of Regents et al.                            Page 16
    _________________
    DISSENT
    _________________
    KAREN NELSON MOORE, Circuit Judge, dissenting. Title IX’s deliberate indifference
    standard for institutional liability in cases of student-on-student sexual harassment asks whether
    the school’s response to sexual harassment was “clearly unreasonable in light of the known
    circumstances.” Davis v. Monroe Cnty. Bd. of Educ., 
    526 U.S. 629
    , 648 (1999). This standard
    does not require a particular response of school administrators
    , id., leaving an array
    of options to
    choose from. Think of those options as falling along a spectrum that begins with doing nothing at
    all and ends with immediate expulsion of the harasser. The one extreme—doing nothing in
    response to known sexual harassment—would be clearly unreasonable no matter the
    circumstances, a straightforward case of deliberate indifference. The other extreme—immediate
    expulsion—would almost certainly be not clearly unreasonable as a matter of law; this response is
    the antithesis of deliberate indifference (even though it would raise serious issues of procedural
    due process for the accused harasser).
    But what about the wide range of possible responses that fall somewhere in between those
    two poles? Certainly, some of those responses will be so clearly reasonable in light of the known
    circumstances as to entitle a school defending against a Title IX damages action to judgment as a
    matter of law. Just as certainly, however, there will be responses where reasonable jurors could
    differ as to whether the school’s response to sexual harassment was deliberately indifferent. In
    many, if not most cases, determining whether the school’s response amounts to deliberate
    indifference requires a fact-intensive inquiry into the nature of the response and the circumstances
    surrounding it. This case asks us to decide whether one such response—the University of
    Michigan’s ineffective response to a fellow student’s sexual harassment of Rebecca Foster1—was
    so clearly reasonable as to entitle the University to summary judgment. Because Foster has
    established genuine issues of material fact as to the University’s deliberate indifference, I dissent.
    1Henceforth, this opinion will refer to this student as the “respondent.” At this stage, the University does not
    contest that the respondent sexually harassed Foster.
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.               Page 17
    I. BACKGROUND
    Foster and the respondent were both part of an off-site executive MBA (“EMBA”) program
    based in Los Angeles through the University of Michigan Ross School of Business. As part of the
    program, the students occasionally took part in “residencies,” which were once-a-month, weekend
    educational sessions at the Beverly Wilshire hotel in Beverly Hills. R. 48-2 (Foster Dep. at 90–
    91) (Page ID #951). The students would check in to the hotel on Thursday night, take part in all-
    day sessions on Friday and Saturday, and check out on Saturday night.
    Id. A. Pre-Report Background
    Foster developed a friendship with the respondent in the fall of 2012 through the spring of
    2013. R. 48-10 (Office for Institutional Equity (“OIE”) Investig. Rep. at 1) (Page ID #996). She
    did not have a dating or sexual relationship with the respondent.
    Id. The respondent began
    sending
    complimentary texts to Foster in May 2013
    , id. at 2,
    and began expressing a “more intense and
    romantic interest in her” in September 2013
    , id. at 3.
    At this time, he began giving her unsolicited
    gifts, informing her that she “h[e]ld beguiling power over [him],” and suggesting he wished to date
    or marry her.
    Id. On multiple occasions,
    the respondent made unwanted physical contact with
    Foster, as follows:
    •    During the December 2013 residency, the respondent “grabbed [Foster’s]
    butt as she was walking away from an elevator.”
    Id. at 4.
    •    While they attended a football game over the winter holiday (the Phoenix
    bowl game), the respondent “rubbed her leg/put a hand on her knee.”
    Id. • On New
    Year’s Eve 2013, while Foster, the respondent, and two classmates
    visited the Griffith Park Observatory, the respondent “grabbed her and
    kissed her forcefully on the cheek.”
    Id. at 4–5.
    •    On January 8, 2014, during the EMBA program’s monthly residency, the
    respondent brought coffee to Foster’s hotel room, and Foster told him to
    leave her alone and get out, but instead he climbed into bed with her and
    attempted to force himself on her.
    Id. at 5;
    R. 48-2 (Foster Dep. at 117)
    (Page ID #955). Foster then got out of bed, went into the bathroom, closed
    the door, and undressed to shower. R. 48-10 (OIE Investig. Rep. at 5) (Page
    ID #1000). The respondent then opened the door, entered the bathroom
    while Foster was naked, and pulled his pants down.
    Id. Foster demanded he
    leave her room, and he left.
    Id. No. 19-1314 Foster
    v. Univ. of Mich. Bd. of Regents et al.                           Page 18
    •    On February 7, 2014, during another residency, the respondent again
    brought coffee to Foster’s hotel room, and after Foster answered the door,
    she returned to bed and told the respondent to leave multiple times.
    Id. at 6.
    The respondent then climbed into bed and tried to—in his words—
    “schnuggle” with her from atop the covers. Id.2
    In addition to this unwanted physical contact, between September 2013 and February 2014, the
    respondent repeatedly expressed romantic feelings for Foster, despite her clearly rejecting his
    advances and informing him that she wanted a platonic friendship.
    Id. at 3–6.
    On February 28,
    2014, after receiving a series of messages from the respondent regarding his perception of their
    failed relationship, Foster called the respondent, told him that he should seek professional help,
    and “asked him not to talk to her about his romantic interest in her anymore.”
    Id. at 7.
    After the
    respondent sent Foster several text messages on March 9 and 10, to which she did not respond, the
    respondent sent her a message on March 11, stating, “Do I creep you out?;)”
    Id. Foster responded: “No.
    You’re scaring me and I want this to stop.”
    Id. The two exchanged
    several messages
    thereafter, with Foster accusing him of “trivializing the way” she felt.
    Id. B. The March
    Report and Pre-April Residency Response
    On March 13, 2014, Foster first reported that the respondent had sexually harassed her to
    the University’s Office of Institutional Equity (“OIE”)3 and the Ross School. R. 44-7 (Heatlie
    3/13/14 email) (Page ID #772). Over the next few days, OIE and Title IX Coordinators from the
    University were in touch with Foster to interview her and collect documentation corroborating her
    report. On March 18, 2014, Foster provided OIE with over 300 screenshots of over 900 text
    messages the respondent had sent to her and evidence of gifts and letters she had received from
    him.    She also raised concerns about an online school session taking place the next day;
    2Foster  initiated physical contact with the respondent on one occasion: On January 6, 2014, when she was
    “tired and worn down,” she kissed him and the kiss lasted for approximately ten seconds; she made an excuse to end
    the kiss. R. 48-10 (OIE Investig. Rep. at 5) (Page ID #1000).
    3The   OIE is responsible for investigating sexual misconduct allegations at the University, including those
    involving students and employees. See generally The University of Michigan Interim Policy on Sexual and Gender-
    Based      Misconduct     (Aug.     14,    2020),      available   at:       https://sexualmisconduct.umich.edu/wp-
    content/uploads/2020/08/policy-on-sexual-gender-based-misconduct-08-07-20.pdf.           Its coverage extends to
    University “Program[s] or Activit[ies],” and thus its coverage extends beyond the Ross School to an array of programs
    such as, for example, the University’s Law School, study abroad programs, field work, etc. See
    id. No. 19-1314 Foster
    v. Univ. of Mich. Bd. of Regents et al.            Page 19
    specifically, she did not want the respondent to know that she was attending the session. R. 44-7
    (Foster 3/18/14 email) (Page ID #770). OIE Investigator Rebecca Veidlinger informed Foster the
    next day that she had made arrangements with the session’s professor to ensure that Foster’s
    concerns would be addressed. R. 44-8 (Veidlinger 3/19/14 email) (Page ID #774). The online
    class took place without incident.
    On March 21, 2014, Veidlinger contacted the respondent to schedule a meeting to discuss
    Foster’s allegations. R. 44-12 (Veidlinger 3/21/14 email #1) (Page ID #780). In a subsequent
    email to the respondent that day, Veidlinger finalized plans for this meeting and stated:
    In the meantime, you are instructed to have no contact with Rebecca Foster. This
    includes direct and indirect contact, and includes contact in person, by email, by
    text message, by phone, or through a third party. In addition, as you read in the
    Student Sexual Misconduct Policy, the University prohibits retaliation of any kind
    so you are instructed not to retaliate in any way.4
    Id. at 779.
    While it began to investigate Foster’s complaint, the University developed a set of
    interim accommodations in response to her concerns. On March 28, administrators discussed one
    accommodation internally: where the respondent would stay and eat during the upcoming April
    residency. See R. 48-12 (OIE-Ross emails) (Page ID #1023–25).
    On Saturday, March 29 at 11:45 p.m., the respondent sent a text message to Foster that
    stated, “Really”. R. 48-13 (Text Message) (Page ID #1026). That same night, Foster notified
    Veidlinger of the message, stating that it was “very distressing” and asking, “Should I make further
    arrangements for my safety at this point?” R. 48-14 (Foster 3/30/14 email) (Page ID #1027). The
    next morning, Sunday, March 30, Veidlinger responded: “I will address this text with [the
    respondent] tomorrow. As to your safety, you are the best judge of your immediate needs. Please
    keep me informed if he makes any other contact.”
    Id. On Monday, March
    31, Claire Hogikyan, Managing Director for the EMBA program, sent
    Foster and the respondent separate emails enumerating a list of accommodations for the April
    4This   instruction is hereinafter referred to as the “no-contact order.”
    No. 19-1314                  Foster v. Univ. of Mich. Bd. of Regents et al.                 Page 20
    residency, which would begin in a few days. The email to the respondent included the following
    details:
    •   The respondent would stay at a different hotel from the one where the
    residency would be held and where Foster would be staying.
    •   The respondent would be “required to put [his] food on a plate or in a to-go
    container and eat in a separate location outside of the Le Petit Trainon [sic]
    dining room.”
    •   The respondent was prohibited from “attending any social activities outside
    of the scheduled classes where Rebecca Foster is in attendance.”
    •   The respondent was prohibited from interacting with Foster “in any way
    during class.”
    R. 48-17 (Hogikyan 3/31/14 email) (Page ID #786). Hogikyan also stated that she would be
    present during the residency “to ensure compliance with these measures.”
    Id. The email to
    Foster
    was similar in substance, with fewer details. Hogikyan added in the email to Foster that Nirav
    Mehta, a University professor, would be present during class and would “make sure that [the
    respondent] is seated appropriately out of your sight.” R. 48-15 (Hogikyan 3/31/14 email) (Page
    ID #1029).
    Foster was unsatisfied with these accommodations. In correspondence with Veidlinger
    that day, Foster stated that the accommodations “do not address my safety” and that she did not
    want to be in the same room as the respondent during the upcoming residency. R. 48-17 (Foster
    3/31/14 email) (Page ID #1032). She reiterated that the respondent had violated the no-contact
    order with his March 29 text message. Foster also inquired (1) how she was expected to handle
    class participation, including speaking in class; (2) how to manage breaks during class sessions,
    given that, for example, she would have to cross the respondent’s path every time she wished to
    use the bathroom; (3) how the University would address her desire not to see him and for him not
    to see her, including at social functions; and (4) whether the respondent was able to discuss with
    others the investigation and why his accommodations had changed for the April residency.
    Id. No. 19-1314 Foster
    v. Univ. of Mich. Bd. of Regents et al.              Page 21
    Approximately twenty-four hours later, on Tuesday, April 1, Veidlinger responded to each
    of the points raised in Foster’s email as follows:
    1.      She assured Foster that she would not be called upon to speak in front of
    the respondent and that non-participation in the residency would not
    affect her grade.
    2.      She noted that “it is possible, given the concentrated nature of the
    residency classes, that the Respondent and you might have some
    incidental contact at break time.” Veidlinger suggested that “contact can
    be avoided if you use the bathroom in your room.”
    3.      She reiterated that the no-contact order required the respondent to leave
    a social function if Foster were present. She suggested that, in light of
    Foster’s discomfort, “you may choose not to attend a social function if
    you know he is already there.”
    4.      She explained that both parties were permitted to discuss the
    investigation.
    R. 48-18 (Veidlinger 4/1/14 email) (Page ID #1033). Veidlinger also indicated that she had spoken
    with the respondent the day before (March 31) about his apparent violation of the no-contact order
    through the text message he had sent to Foster: “He said it was intended to go to someone else,
    that he mistakenly texted you, and that he was sorry to have done that. We went over the no contact
    and retaliation provisions and I do not expect anything like that to happen again.”
    Id. In a phone
    conversation with Hogikyan that same day, Foster requested in-classroom security, which
    Hogikyan denied. R. 48-2 (Foster Dep. at 166, 185) (Page ID #958, 961). According to Foster,
    Hogikyan explained that she didn’t want to “escalate the situation,” perhaps because prospective
    students would be attending the residency that weekend and the University “did not want it to look
    like they needed security in [the] classroom.”
    Id. at 166–68
    (Page ID #958). Also, on April 1, the
    University conveyed an offer to both Foster and the respondent to attend the upcoming residency
    in Ann Arbor instead of Los Angeles; both parties declined. R. 48-3 (Hogikyan Dep. at 45–46,
    65, 69) (Page ID #974–76).
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.                  Page 22
    C. The April Residency
    The April 2014 residency began on the evening of Thursday, April 3, and the students had
    a class session from 5:00 to 7:30 p.m. R. 48-3 (Hogikyan Dep. at 39) (Page ID #972). After class
    ended, Foster and the respondent were among the last remaining students in the classroom. R. 44-
    21 (Mehta 4/10/14 email) (Page ID #793). Foster then entered the dining room. Mehta, who had
    been monitoring Foster and the respondent in the classroom as planned, approached the respondent
    and explained that because Foster was already in the dining room, it would be impossible for the
    respondent to go through the line and exit the room before Foster entered. Mehta offered the
    respondent several alternative options for getting food from the dining room. The respondent
    objected to what he perceived as preferential treatment toward Foster and stated that if he did not
    receive an apology from the EMBA program, he would have a “response” and things would get
    “ugly.”
    Id. The respondent did
    not enter the dining room and had no contact with Foster.
    Id. Late that night,
    the respondent sent a crude email to various University administrators. He
    referred to the Title IX investigation as a “retarded witchhunt” and a “specious witch hunt,” and
    referred to Foster as “your psycho hobeast client” and a “lying slut whore.” R. 48-20 (Respondent
    4/4/14 email) (Page ID #1036). He also stated,
    [I]f you think for a minute that i am either going to miss [an upcoming social
    activity] or abruptly depart it just cause some lying slut whore seeks baseless
    vindictive retribution, well youve got an inflated sense of your own influence and
    with that, another thing comin. i’d recommend you protect your shrinking violet
    client by informing her that i will in fact be there, and if she (or you) have a problem
    with that, you’re welcome to pound sand.
    Id. Upon receiving the
    respondent’s email on Friday morning, April 4, University
    administrators considered whether to remove him from class that day. R. 48-3 (Hogikyan Dep. at
    77–84) (Page ID #978–79). According to Foster, in a subsequent conversation with Hogikyan,
    Foster learned that on Friday morning, Veidlinger and Anthony Walesby, a University Title IX
    investigator, had told Hogikyan to remove the respondent from the property, but Hogikyan kept
    him in the classroom because she believed there was no imminent danger and she “thought
    No. 19-1314                     Foster v. Univ. of Mich. Bd. of Regents et al.                             Page 23
    removing him would escalate the situation.” R. 48-24 (Foster Notes) (Page ID #1045).5 According
    to Foster, Hogikyan told OIE, University Dean Alison Davis-Blake, and Valerie Suslow, Senior
    Associate Dean of the Ross School, that “the school doesn’t have the necessary resources to handle
    the situation (dismissal/removal of student) in place here in LA,” and Davis-Blake and Suslow
    agreed.
    Id. Foster further recalls
    Hogikyan referring to “[s]omeone at Michigan” who had stated
    that, rather than attending the upcoming social activity with her classmates, Foster should “have
    her friends stay in with [her] and rent [a] movie.”
    Id. Davis-Blake reportedly told
    the Ross School
    to “just get through [Friday] and then let due process kick in.”
    Id. Foster claims that
    during classroom breaks on Friday, April 4, the respondent violated the
    interim accommodations in numerous ways. First, he stood in her way of exiting the classroom;
    second, he stood in front of the beverage table for the duration of a break, preventing Foster from
    getting coffee; and third, while Foster was away from her desk, the respondent stood near or sat
    on her desk while speaking to the professor, preventing her from returning to the desk. R. 48-2
    (Foster Dep. at 170–73) (Page ID #959–60). Later in the day, the respondent was in the lunchroom,
    5The  parties dispute the veracity of the statements in Foster’s contemporaneous, personal notes, see R. 48-2
    (Foster Dep. at 186–90) (Page ID #961–62), and whether the notes are admissible evidence. First, several University
    employees have testified that they did not discuss the topics that Foster says in her notes they did. For example,
    Walesby and University Dean Alison Davis-Blake testified that they did not recall any conversation regarding the
    school lacking the resources to handle the dismissal or removal of the respondent. See R. 48-4 (Davis-Blake Dep. at
    17–19) (Page ID #985); R. 48-5 (Walesby Dep. at 43–44) (Page ID #987). But see R. 44-4 (Veidlinger Dep. at 34–
    35) (Page ID #734) (“I have a general memory of discussing . . . if this was going on on the Ann Arbor campus that
    we would have more resources available to us quicker, that they’re not there.”). At the summary-judgment stage,
    however, we construe all facts in the light most favorable to the non-moving party, see Matsushita Elec. Indus. Co. v.
    Zenith Radio Corp., 
    475 U.S. 574
    , 587 (1986), so we assume that Foster’s sworn recollections of the facts are true.
    More significantly, the parties dispute whether Foster’s personal notes are admissible evidence and/or
    whether they contain admissible evidence. On the one hand, the University is correct that this record—an out-of-court
    statement by Foster—constitutes hearsay. For example, the record reads: “Claire told OIE and Allison/Valerie the
    school doesn’t have the necessary resources to handle the situation (dismissal/removal of student) in place here in
    LA.” R. 48-24 (Page ID #1045). Foster wishes to demonstrate that Hogikyan indeed made this statement—or in
    evidentiary terms, that this out-of-court statement is true. Although Foster is correct that opposing party statements
    are admissible, see Fed. R. Evid. 801(d)(2), the record itself is hearsay. However, the Supreme Court has cautioned
    that the party opposing summary judgment need not “produce evidence in a form that would be admissible at trial in
    order to avoid summary judgment.” Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 324 (1986). Instead, a party opposing
    summary judgment who proffers evidence in a form not admissible at trial “must show that she can make good on the
    promise of the pleadings by laying out enough evidence that will be admissible at trial to demonstrate that a genuine
    issue on a material fact exists, and that a trial is necessary.” Alexander v. CareSource, 
    576 F.3d 551
    , 558 (6th Cir.
    2009). Here, the statements in the record would be admissible at trial. As a trial witness, Foster could lay a foundation
    for them and they could be admitted for their truth as opposing party statements. It is therefore proper for us to
    consider at this juncture any opposing party statements that are contained in R. 48-24.
    No. 19-1314                    Foster v. Univ. of Mich. Bd. of Regents et al.                           Page 24
    which prevented Foster from getting her lunch.
    Id. at 173.
    Mehta asked Foster if she needed help
    with getting lunch, and Foster responded, “What is happening here? None of the interim measures
    are being held on your end.”
    Id. Foster testified that
    she had to be very “discreet” in this
    conversation because she was sitting next to two students, and they were wondering why she could
    not enter the lunchroom.
    Id. Foster also recalls
    that during a break on Friday morning, Hogikyan
    conveyed to her that the school advised her not to attend a karaoke gathering that evening, because
    the respondent would be there.
    Id. at 159–60
    (Page ID #957).
    That evening, the respondent attended the karaoke event he referenced in his late
    Thursday/early Friday email. Foster did not attend. Late in the evening, however, she notified
    Hogikyan that the respondent had “posted to [her] Facebook wall,” calling her a “[s]crub” and
    making a threatening comment about her boyfriend. R. 48-22 (Foster 4/4/14 email) (Page ID
    #1040). Foster then visited Hogikyan in her hotel room at the Beverly Wilshire. R. 48-23
    (Hogikyan 4/5/14 email) (Page ID #1044). Hogikyan told Foster about the contents of the
    respondent’s email from the night before and shared other emails from the respondent to the
    University. R. 48-24 (Foster Notes) (Page ID #1045). Foster told Hogikyan that she had been
    shaking for the last twenty-four hours and that Hogikyan was putting the entire class at risk.
    Id. In an email
    later that night to Suslow, Hogikyan confirmed that Foster had shared with her some
    of the text messages that the respondent had sent to Foster in the preceding months, as well as
    evidence that the respondent had “just posted a comment on [Foster’s] Facebook wall” that night.6
    R. 48-23 (Hogikyan 4/5/14 email) (Page ID #1044). Hogikyan stated that Foster asked her to call
    security and “disallow [the respondent] into class” the next morning, and remarked, “I am inclined
    to agree given this new information.”
    Id. On Saturday morning,
    April 5, Hogikyan called the Hyatt Regency hotel, where the
    respondent was staying, and asked security to go to the respondent’s room and inform him that he
    6It appears that Foster and Hogikyan technically mischaracterized what the respondent had done on
    Facebook. Whereas Foster and Hogikyan contemporaneously referred to the respondent’s action as posting a
    comment or post on Foster’s Facebook wall, on appeal the parties agree that the respondent in fact “tagged” Foster on
    Facebook. Appellant Br. at 8; Appellee Br. at 15. Review of the relevant documents in the record—R. 48-22 (Page
    ID #1042–43) and R. 45-1 (Page ID #803–04)—supports the parties’ characterization of the respondent’s action,
    which is immaterial here.
    No. 19-1314                  Foster v. Univ. of Mich. Bd. of Regents et al.                Page 25
    was not to report to the Beverly Wilshire for class that day. R. 48-3 (Hogikyan Dep. at 112) (Page
    ID #980). Shortly thereafter, the respondent spoke with Hogikyan, who “informed him that he
    had violated the no-contact order, and, therefore, he was disallowed from attending class, and he
    should not come to the Beverly Wilshire that day.”
    Id. The respondent did
    not attend class. He did, however, write an email to several classmates
    with the subject line “Explaining my regrrtable [sic] absence today,” in which he provided
    background on the investigation and stated that because he had violated the no-contact order, he
    was barred from attending class that day. R. 48-25 (Respondent 4/5/14 email) (Page ID #1047).
    The email includes the following statements: “i engaged in an inappropriate sexual relationship
    with our classmate rebecca foster”; “her claim . . . is false baseless and vindictive”; “Shes a mean
    awful person and wackadoo chick”; “my what a time we had in her bed and mine for a few months
    there. I have no malice for her and shall be ever grateful for her sharing those world class tatas
    with me for awhile there.”
    Id. D.
    Post-April Residency
    After the April residency ended, the respondent sent several emails to University
    administrators and professors involved in his Title IX investigation. See R. 48-26 (Respondent
    4/7/14 email) (Page ID #1049–50); R. 48-28 (Respondent 4/8/14 email #1) (Page ID #1054–58);
    R. 48-28 (Respondent 4/8/14 email #2) (Page ID #1053–54); R. 48-27 (Respondent 4/8/14 email
    #3) (Page ID #1051–52); R. 48-29 (Respondent 4/9/14 email) (Page ID #1059). The emails
    generally criticized the University’s handling of the Title IX investigation, used aggressive
    language, and demanded various things from the University. The emails included the following
    statements:
    •   “You gettin this, MP? Cause I know you well enough to know that you’re
    probably pretty pissed at the egregious mishandling of this case by your
    minions . . . . If I were you, I’d pick up the damn phone, stat.” R. 48-27
    (Page ID #1051).
    •   “I will graduate, with my class, in person and on time. Ms. Rebecca Foster
    will be barred from the premises and from all programs thereto pertaining.
    Or things could actually start to become slightly acrimonious, litigious, and
    epically embarrassing for all concerned parties.”
    Id. (Page ID #1052).
      No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.                Page 26
    •    “Maybe this sordid episode will somehow make all of us better people.
    Want me to start writing up a case study? Wink.” R. 48-28 (Page ID
    #1058).
    •    “Recommendation? Best deal with this matter sooner than later. Cause the
    story is growing deeply institutionally incriminating and embarrassing.
    And if left untended, could go hilariously viral. . . . Tick tock tick tock.”
    R. 48-29 (Page ID #1059).
    On April 10, Tim Lynch, General Counsel for the University of Michigan, wrote to the
    respondent and stated, in relevant part:
    The language and tone of your emails is wildly inappropriate and offensive. You
    are harassing others and embarrassing yourself.
    You will not be permitted to participate in any commencement activities.
    In addition, any further harassment by you of University faculty, staff, or students—
    by email or otherwise—will put your receipt of a degree in grave jeopardy.
    R. 48-31 (Lynch 4/10/14 email) (Page ID #1062) (original emphasis). The same day, Hogikyan
    informed Foster that the University had informed the respondent that he was barred from
    commencement. She added: “I don’t know how close you live to him. Please exercise caution.”
    R. 48-32 (Hogikyan 4/10/14 email) (Page ID #1064). Foster replied the following day, seeking
    information as to why she should exercise caution.
    Id. (Foster 4/11/14 email)
    (Page ID #1064).
    Hogikyan replied that the respondent “has demonstrated erratic behavior” and that, because of this,
    she “wanted to err on the side of safety.”
    Id. (Hogikyan 4/11/14 email)
    (Page ID #1064).
    Hogikyan then informed the University Dean that she had communicated this information to
    Foster, adding, “I am concerned for her as I understand that she lives near [the respondent].” R. 48-
    33 (Hogikyan 4/10/14 email) (Page ID #1065).           The University took steps to remove the
    respondent from an unidentified LinkedIn group
    , id., and based on
    the content of his emails,
    decided to have a threat assessment conducted of him. R. 48-3 (Hogikyan Dep. at 123–24) (Page
    ID #981). This assessment would help determine “what our risk of him actually showing up here
    [for commencement] is and the degree to which we need to be concerned.” R. 48-34 (Cotrone
    4/11/14 email) (Page ID #1069). The University Police concluded, based on their assessment, that
    the respondent “was not considered a physical threat to anyone on campus.” R. 48-3 (Hogikyan
    Dep. at 124) (Page ID #981). The University planned to have a plainclothes University of
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.                Page 27
    Michigan Police Department officer stationed at the Executive Residence, the official residence
    for the program, where Foster would be staying during commencement activities. R. 45-7
    (Commencement Detail emails) (Page ID #811–12). On April 16, 2014, the respondent’s attorney
    confirmed that the respondent would not attend commencement activities in Ann Arbor. R. 45-6
    (Lowenstein 4/16/14 email) (Page ID #810).
    On April 17, Foster obtained a restraining order against the respondent in Los Angeles.
    See R. 48-2 (Foster Dep. at 240) (Page ID #966).
    On April 29, Foster informed Hogikyan that she had learned that the respondent would be
    traveling to Ann Arbor for commencement through a Facebook post and a conversation with two
    other students. R. 45-9 (Foster 4/29 emails) (Page ID #815). Foster also informed Hogikyan that
    she had a restraining order in place, but that she believed it pertained only to Los Angeles County.
    R. 45-11 (Hogikyan 4/29/14 email) (Page ID #819). Hogikyan testified that until it became clear
    that the respondent would be traveling to Ann Arbor, “[w]e were, up until that time, operating
    under the hope—if you will—that he . . . would follow his attorney’s advice, or direction, and not
    come.” R. 48-3 (Hogikyan Dep. at 159) (Page ID #982). Once Foster informed the University of
    the respondent’s Facebook post announcing his intention to attend commencement, administrators
    had an “emergency get together,” in which they “put . . . into action” the preparatory plan that they
    had devised in case the respondent arrived in Ann Arbor.
    Id. at 157, 160.
    On the night of April 29, 2014, Foster was in a common-lounge area of the Executive
    Residence for a “graduation gathering,” R. 48-41 (Police Rep. at 4) (Page ID #1101), when she
    saw the respondent through “a reflection in the glass” in the “same room” as her. R. 48-2 (Foster
    Dep. at 238–39) (Page ID #966). He stood up and looked at her.
    Id. She then went
    downstairs to
    the lobby of the hotel, where she was put in touch with Sergeant Hicks, the plainclothes officer
    stationed at the Executive Residence in case the respondent appeared.
    Id. Hicks and another
    officer told the respondent to leave the Executive Residence.
    Id. at 244
    (Page ID #967). The next
    day, Foster provided the University with a copy of the temporary restraining order, and after it was
    determined that the order extended to Michigan, law-enforcement officers arrested the respondent.
    Id. at 241;
    R. 46-2 (Veidlinger 4/30/14 email) (Page ID #829). He was released into the custody
    No. 19-1314                 Foster v. Univ. of Mich. Bd. of Regents et al.                    Page 28
    of the University police department and transported to the airport to board a flight back to
    California. R. 48-41 (University Police Report at 6–7) (Page ID #1103–04).
    On March 10, 2017, Foster brought this action under Title IX and amended her complaint
    on June 14, 2017. On November 7, 2017, the district court denied the University’s motion to
    dismiss the amended complaint. On February 21, 2019, the district court granted the University’s
    motion for summary judgment. The court explained that as a result of the University responding
    “promptly, compassionately, and effectively” to Foster’s complaints, the respondent’s text
    messages to Foster, his Facebook posts mentioning her, and his physical interaction with her “all
    but stopped.” Foster v. Univ. of Michigan, No. 17-CV-10781, 
    2019 WL 764256
    , at *13, 15 (E.D.
    Mich. Feb. 21, 2019). Under these circumstances, the court held, “it would be simply impossible”
    for a reasonable jury to find that the University was deliberately indifferent under Title IX.
    Foster timely appealed.
    II. STANDARD OF REVIEW
    Courts ordinarily begin their analysis with a recitation of the standards that govern their
    review of the issues presented. The practice may not lead to the flashiest opinions—the practice
    may even seem a bit dull—but it serves at least a few important functions. First, it orients the
    reader. By delineating the scope of review and its limits, and the principles that structure the
    analysis, courts apprise the reader of the legal parameters of their decisions. Second, it reminds
    the writer of their role. Without a recitation of the rules, it is easier for the court to drift away from
    its carefully calibrated role in the legal process. None of this is to say that there is some hard and
    fast rule that every opinion must include a rote soliloquy of standards. But the majority might
    have benefitted from something like it here before it stepped out of its boots and into the jury’s
    shoes.
    Because we review de novo the district court’s grant of summary judgment in favor of the
    University, we are bound by the same standards that governed the district court below. Garretson
    v. City of Madison Heights, 
    407 F.3d 789
    , 795 (6th Cir. 2005). Summary judgment is appropriate
    only where “the movant shows that there is no genuine dispute as to any material fact and the
    movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). As explained by the
    No. 19-1314                 Foster v. Univ. of Mich. Bd. of Regents et al.                Page 29
    Supreme Court: “The inquiry performed is the threshold inquiry of determining whether there is
    the need for a trial—whether, in other words, there are any genuine factual issues that properly can
    be resolved only by a finder of fact because they may reasonably be resolved in favor of either
    party.” Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 250 (1986). Thus, summary judgment is
    appropriate only where the evidence “is so one-sided that one party must prevail as a matter of
    law.”
    Id. at 252.
    The law of summary judgment provides various interrelated safeguards intended to ensure
    that courts do not impose upon the realm of the jury. To begin with, “we draw all reasonable
    inferences in favor of the non-moving party and construe all evidence in the light most favorable
    to the non-moving party.” Tingle v. Arbors at Hilliard, 
    692 F.3d 523
    , 529 (6th Cir. 2012) (citing
    Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 
    475 U.S. 574
    , 587 (1986)). Similarly,
    “[c]redibility judgments and weighing of the evidence are prohibited during the consideration of a
    motion for summary judgment[.]” Ahlers v. Schebil, 
    188 F.3d 365
    , 369 (6th Cir. 1999) (citing
    
    Anderson, 477 U.S. at 255
    ). Moreover, “[i]f reasonable minds could differ as to the import of the
    evidence,” then summary judgment is unwarranted. 
    Anderson, 477 U.S. at 250
    . Applying these
    guardrails, we ask whether “the evidence is such that a reasonable jury could return a verdict for
    the nonmoving party.”
    Id. at 248.
    If so, there is a genuine dispute of material fact such that
    summary judgment is unwarranted and the case is for the jury, not the court.
    III. DISCUSSION
    Title IX affords victims of student-on-student sexual harassment a private right of action
    for damages against schools that receive federal funding. 
    Davis, 526 U.S. at 633
    . To prevail, the
    victim must establish that the school was “deliberately indifferent to sexual harassment, of which
    [it had] 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.
    At this juncture, there is no dispute that Foster endured sufficiently severe,
    pervasive, and objectively offensive sexual harassment, nor that the University had actual
    knowledge of it. The question is whether the evidence before the district court was so one-sided
    that no reasonable jury could find that the University’s response to that harassment was
    “deliberately indifferent.”
    No. 19-1314                     Foster v. Univ. of Mich. Bd. of Regents et al.                            Page 30
    But what, exactly, constitutes deliberate indifference? The Supreme Court supplies the
    answer: a school’s response to sexual harassment is deliberately indifferent if it is “clearly
    unreasonable in light of the known circumstances.”7 
    Davis, 526 U.S. at 648
    . The response “must,
    at a minimum, ‘cause [students] to undergo’ harassment or ‘make them liable or vulnerable’ to it.”
    Id. at 645
    (quoting Random House Dictionary of the English Language 1415 (1966); Webster’s
    Third New International Dictionary 2275 (1961)). The deliberate indifference standard does not
    provide that schools can “avoid liability only by purging their schools of actionable peer
    harassment.”
    Id. at 648.
    Nor does the deliberate indifference standard mandate “particular
    disciplinary action” in response to sexual harassment.
    Id. But neither does
    it require courts to
    conclude that minimal, ineffective, or belated efforts to respond to sexual harassment are not
    clearly unreasonable as a matter of law.8 See, e.g.
    , id. at 653–54;
    Vance v. Spencer Cnty. Pub.
    Sch. Dist., 
    231 F.3d 253
    , 262 (6th Cir. 2000); Patterson v. Hudson Area Schs., 
    551 F.3d 438
    , 450
    (6th Cir. 2009); Williams v. Bd. of Regents of Univ. Sys. of Ga., 
    477 F.3d 1282
    , 1295–97 (11th Cir.
    2007).
    With these principles in mind, let us turn to Foster’s claims. Notably, Foster does not
    contend that the University responded with deliberate indifference when she reported the
    respondent’s pre-March 13 sexual harassment of her. Rather, Foster frames the issue as “whether
    the University’s subsequent actions were adequate and effective once the school was aware that
    7The majority appears to conflate deliberate indifference with a “good faith” standard.  Maj. Op. at 7. Indeed,
    despite the fact that the Supreme Court has expressly defined deliberate indifference in this context to mean a response
    to sexual harassment that is “clearly unreasonable in light of the known circumstances,” Davis, 526 at 648, that phrase
    (or even just “clearly unreasonable”) is nowhere to be found in the majority’s opinion. Conversely, the phrase “good
    faith” does not appear once in Davis. The school’s “good faith” is beside the point—it does not prevent a jury from
    concluding that a school’s response to sexual harassment was “clearly unreasonable in light of the known
    circumstances,” and thus deliberately indifferent. See
    id. 8Contrary
    to the majority’s insistence, Davis—a case where the school “fail[ed] to respond in any way over
    a period of five months to complaints of [the harasser’s] in-school misconduct,”
    id. at 649—does
    little to “add[]
    contour to the deliberate-indifference standard,” Maj. Op. at 7. Yes, a school’s abject failure to respond to known
    sexual harassment is an obvious example of deliberate indifference. But Davis does not stand for the proposition that
    any response to sexual harassment—no matter how lacking—is enough to clear the deliberate indifference bar; if it
    was, there would be no need to ask whether a response was “clearly unreasonable.” See 
    Davis, 526 U.S. at 648
    .
    A case involving no response to sexual harassment does nothing to explain the range of actual responses that a jury
    could reasonably find clearly unreasonable, let alone the range of responses that would be not clearly unreasonable as
    a matter of law. To employ Davis as the barometer for deliberate indifference, as the majority does, is to fundamentally
    misunderstand the nature of that inquiry.
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.                 Page 31
    the Harasser was not complying with the No Contact Order.” Appellant Br. at 14. This is
    significant because it goes to the known circumstances that inform whether the University’s
    response to the respondent’s sexual harassment of Foster was clearly unreasonable. In other
    words, we are faced with a case where the University knew its initial response was ineffective and
    we must determine whether its subsequent actions were so reasonable—in light of that knowledge
    and the surrounding circumstances—as to warrant judgment in its favor as a matter of law. They
    were not, and the majority errs in concluding otherwise.
    Foster reported the respondent’s sexual harassment of her to the University on March 13,
    2014. R. 44-7 (Heatlie 3/13/14 email) (Page ID #772). Then, on March 21, 2014, the University
    implemented its no-contact order, which instructed the respondent to have no contact with
    Foster—directly or indirectly—including “in person, by email, by text message, by phone, or
    through a third party.” R. 44-12 (Veidlinger 3/21/14 email #1) (Page ID #780). The no-contact
    order also instructed the respondent that University policy forbade any form of retaliation against
    Foster and that he was not to retaliate against her in any way.
    Id. From that point
    on, Foster details
    an escalating campaign of harassment by the respondent and an accompanying series of
    ineffective, belated, or nonexistent responses by the University. She contends that, in light of the
    circumstances, a reasonable juror could find these responses were clearly unreasonable.
    The Respondent Dismisses the University’s Initial Response. Foster argues that two
    incidents of the respondent’s continuing harassment put the University on notice that its no-contact
    order was ineffective, and she argues that the University’s responses to those incidents were clearly
    unreasonable. The first of these incidents was when the respondent sent Foster a one-word text
    message, “Really,” on March 29, 2014. R. 48-13 (Text message) (Page ID #1026). This was a
    clear violation of the no-contact order, which prohibited the respondent from contacting Foster
    “by text message,” R. 44-12 (Veidlinger 3/21/14 email #1) (Page ID #780), and Foster reported it
    to the University immediately, R. 48-14 (Foster 3/30/14 email) (Page ID #1027). The second
    incident was the respondent’s April 4, 2014 email to school administrators, where he refers to the
    Title IX investigation as a “retarded” and “specious witch hunt,” and calls her “your psycho
    hobeast client” and a “lying slut whore.” R. 48-20 (Respondent 4/4/14 email) (Page ID #1036).
    He also states,
    No. 19-1314                     Foster v. Univ. of Mich. Bd. of Regents et al.                          Page 32
    [I]f you think for a minute that i am either going to miss [the karaoke outing] or
    abruptly depart it just cause some lying slut whore seeks baseless vindictive
    retribution, well youve got an inflated sense of your own influence and with that,
    another thing comin. i’d recommend you protect your shrinking violet client by
    informing her that i will in fact be there, and if she (or you) have a problem with
    that, you’re welcome to pound sand.
    Id. As University Title
    IX Investigator Anthony Walesby acknowledged in his deposition, the
    respondent appears to indicate in this email that he intends to violate or disregard the interim
    measures imposed on him, R. 48-5 (Walesby Dep. at 41) (Page ID #987), which barred him from
    “attending any social activities outside of the scheduled classes where Rebecca Foster is in
    attendance,” R. 48-16 (Hogikyan 3/31/14 email) (Page ID #1030).
    A reasonable juror could find that the University’s response to these two incidents was
    clearly unreasonable. Beginning with the text message, a reasonable juror would have no trouble
    reading that text message as an intentional violation of the University’s no-contact order that
    should have alerted the University to the respondent’s propensity not to follow its instructions,
    despite the respondent’s insistence that the message had been meant for someone else. Yet the
    University took no action but to speak with the respondent and review the same no-contact order
    it had already imposed. R. 48-18 (Veidlinger 4/1/14 email) (Page ID #1033) (“I spoke with the
    Respondent yesterday concerning the text that he sent you on Saturday. . . . We went over the no
    contact and retaliation provisions and I do not expect anything like that to happen again.”). Indeed,
    the University did not substantively respond to Foster’s expression that she was concerned for her
    safety, simply stating that she was “the best judge of [her] immediate needs.” R. 48-14 (Veidlinger
    3/30/14 email) (Page ID #1027).
    As for the respondent’s vulgar April 4, 2014 email, the respondent expressly stated his
    intent not to follow the interim orders the University had put in place on March 31, 2014.9
    9It   should be noted that although the University implemented these interim measures on March 31, 2014,
    they were not in response to the respondent’s March 30, 2014 text message as the University argues. First, the record
    is clear that on March 28—before the respondent violated the no-contact order—University administrators had already
    decided to impose additional interim conditions on him. R. 48-12 (Veidlinger & Hogikyan 3/28/14 emails) (Page ID
    #1023–25). There is no indication in the record that the University decided to impose these conditions on the
    respondent only once he violated the no-contact order on March 29. Second, at no point in its March 31 email to the
    respondent did the University mention his violation of the no-contact order or indicate that these measures were being
    imposed in response to the violation. R. 48-16 (Hogikyan 3/31/14 email) (Page ID #1030). Third, in a subsequent
    No. 19-1314                     Foster v. Univ. of Mich. Bd. of Regents et al.                           Page 33
    Given the crude, threatening content of this email, University administrators discussed on Friday
    morning, April 4, whether to remove the respondent from class as it was happening at the Beverly
    Wilshire hotel. Ultimately, they decided not to. In fact, a review of the record confirms that the
    University took no action at all in immediate response to receiving this email.
    In assessing these two incidents, it is true that a reasonable juror could regard the
    respondent’s March 29 text-message violation as de minimis, given that the message contained
    only one word and no explicit threat, and could regard the April 4 email as inappropriate yet not
    violative of the University’s orders, given that (1) the email was not addressed to Foster and (2) it
    only signaled the respondent’s intention to violate the no-contact order if a certain condition were
    satisfied (namely, Foster showing up to the same event as him). A juror might thereby regard the
    University’s minimal response as commensurate with a minimal amount of harassment, as the
    majority does.
    Yet a reasonable juror could also conclude that, in light of the respondent’s extended
    pattern of sexual harassment, these two incidents manifested a clear intention to subject Foster to
    further harassment, warranting a swift and robust response from the University as a means of
    deterring future misconduct. This differs from a conclusion that the University was mistaken in
    rejecting Foster’s particular requests that in-classroom security protect her, R. 48-2 (Foster Dep.
    at 166, 185) (Page ID #958, 961), or that the respondent be prevented from seeing her in person,
    R. 48-17 (Foster 3/31/14 email) (Page ID #1032). Title IX does not give victims the “right to make
    particular remedial demands,” but the question remains whether the University’s particular course
    of action was “clearly unreasonable,” and the answer to the question is not clear as a matter of law.
    
    Davis, 526 U.S. at 648
    .
    Indeed, there are genuine disputes of fact as to the University’s responses to these two
    incidents that further demonstrate the inappropriateness of resolving this case on summary
    judgment.       First, there is a genuine dispute of material fact as to whether University
    email to Foster on April 1, Veidlinger made clear that there would be no consequences for the respondent’s violation
    of the no-contact order. R. 48-18 (Veidlinger 4/1/14 email) (Page ID #1033) (“I spoke with the Respondent yesterday
    concerning the text that he sent you on Saturday. . . . We went over the no contact and retaliation provisions and I do
    not expect anything like that to happen again.”). Thus, the additional interim measures set forth in the March 31 email
    did not address the respondent’s March 29 violation of the no-contact order.
    No. 19-1314                      Foster v. Univ. of Mich. Bd. of Regents et al.                              Page 34
    administrators—including the University’s dean—agreed after receiving the respondent’s April 4
    email that the school simply did not have the “necessary resources” to effectuate his removal from
    the residency given that the program was in Los Angeles, and whether they changed their minds
    only after his next violation of the no-contact order that night. R. 48-24 (Foster Notes) (Page ID
    #1045). Such an “admission of inadequacy” would support a finding of deliberate indifference.
    See Pahssen v. Merrill Cmty. Sch. Dist., 
    668 F.3d 356
    , 364 (6th Cir. 2012). A jury could conclude
    that the University believed removal was appropriate and failed to take this action, supporting
    Foster’s claim of deliberate indifference. Second, there is a factual question as to whether the
    University’s decision not to implement in-class security measures beyond having a school
    administrator watch the respondent during class was influenced by a desire not to scare off
    prospective students who would be observing the class that day. R. 48-2 (Foster Dep. at 166)
    (Page ID #958). A jury could reasonably conclude that taking less robust action in order to help
    recruiting evidenced deliberate indifference to the sexual harassment that Foster endured.
    The Respondent’s April 4, 2014 Facebook Post. Foster next argues that University did not
    respond to the April 4, 2014 Facebook-post incident, stating that after this violation of the no-
    contact order, “the harassment continued and escalated” and that she reported “the continued
    misconduct,” “[y]et the school, essentially, did nothing more than restate the No Contact Order.”10
    Appellant Br. at 20. On the one hand, the University immediately informed the respondent that he
    was prohibited from attending class the next day, and he complied. See R. 48-25 (Respondent
    4/5/14 email) (Page ID #1047). The University also worked with hotel security to ensure that the
    respondent would be stopped if he tried to attend class that day. See R. 48-4 (Davis-Blake Dep. at
    19) (Page ID #985) (“I do recall that we had conversations about the Beverly Wilshire having
    security and using that security to address issues as part of our contract with them.”). On the other
    hand, in light of the respondent’s pattern of noncompliance and the threatening nature of the
    10At first blush,  it is not clear what subsequent incidents of harassment Foster is referring to, but in the same
    section she clarifies that, in response to the harassment, she “requested that the Harasser be prohibited from entering
    the class or otherwise being present near her,” and that a University administrator said, “I am inclined to agree.”
    Appellant Br. at 20. This describes the Facebook tag incident. Foster reported the incident, and requested that the
    University prohibit the respondent from entering class—as Claire Hogikyan’s April 5 email confirms, Foster asked
    the University to “disallow [the respondent] into class in the morning.” R. 48-23 (Hogikyan 4/5/14 email) (Page ID
    #1044). Hogikyan stated she was inclined to agree with this request.
    Id. No. 19-1314 Foster
    v. Univ. of Mich. Bd. of Regents et al.                Page 35
    Facebook post, a reasonable jury could conclude that the University’s response to this incident was
    clearly unreasonable.     The University could have barred the respondent from attending
    commencement at this point, rather than waiting until April 10; it could have instituted measures
    to ensure Foster’s safety in the Los Angeles area; and it could have taken further disciplinary
    measures against the respondent to deter him from further harassment. A jury should decide
    whether the University’s response was clearly unreasonable.
    The Respondent’s Retaliatory Emails. Next, Foster argues that the University’s response
    to the respondent’s retaliatory emails after being barred from the final day of the April residency
    was deliberately indifferent. A reasonable jury could reach that conclusion. After the respondent
    was barred from class, he sent numerous emails to his classmates, professors, and University
    administrators in which he derided the investigation against him, referred to Foster in a derogatory
    manner, and made statements that could be construed as threats, albeit not against Foster directly.
    The record contains six emails sent by the respondent between April 5 and April 9 to various
    individuals regarding the Title IX investigation before the University explicitly ordered him to
    refrain from sending these emails. See R. 48-31 (Lynch 4/10/14 email) (Page ID #1062) (“[A]ny
    further harassment by you of University faculty, staff, or students—by email or otherwise—will
    put your receipt of a degree in grave jeopardy.”) (emphasis in original). The University had actual
    knowledge of each of these emails; the one email that was sent to Foster’s classmates (as opposed
    to University employees) was “very likely” forwarded to Hogikyan by Foster. See R. 48-3
    (Hogikyan Dep. at 110–111) (Page ID #980) (“I believe it was forwarded to me. . . . I don’t recall
    [by] who[m]. Very likely it would have been Rebecca Foster.”). The emails were not sent to Foster
    directly, but, as the University itself found with respect to the respondent’s April 5 email to his
    classmates, they constituted retaliation against Foster for filing a complaint. See R. 48-10 (OIE
    Investig. Rep. at 24–25) (Page ID #1019–20). I have no difficulty concluding that these emails
    subjected Foster to further harassment as a continuation of the respondent’s existing crusade
    against her.
    The University discussed the possibility of removing the respondent from his University
    email account after he was barred from the final day of the April residency, see R. 48-3 (Hogikyan
    Dep. at 42–43) (Page ID #973), but it did not take this action. As with Foster’s earlier requests for
    No. 19-1314               Foster v. Univ. of Mich. Bd. of Regents et al.               Page 36
    more robust accommodations, it was possible that taking this course of action would not have been
    feasible or proper in the absence of a formal finding by the University that Foster’s complaint had
    merit. Yet the University had substantial control over the respondent’s electronic communications,
    as evidenced by discussions about removing him from the email system, Davis-Blake’s
    instructions to remove him from a LinkedIn group, and Mehta providing the respondent with a
    local WiFi password. See Feminist Majority Found. v. Hurley, 
    911 F.3d 674
    , 687–88 (4th Cir.
    2018) (university had control over cyberharassment because, in part, harassing messages were
    posted “using the University’s wireless network”). In my view, a jury—not this court—should
    determine whether the University was clearly unreasonable in allowing the respondent to continue
    unimpeded in his misuse of University communication systems to retaliate against Foster.
    The Respondent’s Appearance at Commencement. Foster argues that the University
    “should have known it needed to take more drastic actions” with respect to the respondent’s
    foreseeable appearance at commencement.         Appellant Br. at 24.    Although the University
    undoubtedly took several tangible steps toward ensuring that the respondent would not be
    present—such as confirming with his lawyer that he would not be present, stationing a plainclothes
    law enforcement officer at the residence where Foster stayed during commencement, and
    conducting a “threat assessment” of the respondent—a reasonable jury could conclude that its
    efforts were clearly unreasonable. The University could have taken numerous further responses,
    from instituting a no-trespass order at the Executive Residence against the respondent to placing
    him on interim suspension after receiving word that he was flying to Ann Arbor for graduation, in
    direct violation of the University’s instruction. Furthermore, the University never restricted the
    respondent’s presence on campus generally, but instead it barred him only from attending
    “commencement activities.” And any significance the University ascribes to the respondent’s
    lawyer’s assurances is misplaced, given that the respondent himself had already once promised to
    stop violating the no-contact order (after the text-message violation), and then proceeded to break
    this promise. A jury could reasonably conclude that taking the respondent or his lawyer at their
    word, in light of these circumstances, was clearly unreasonable.
    Not only could a reasonable jury find the University’s response to each of these incidents
    to be clearly unreasonable, but also it could find that the University’s inadequate response
    No. 19-1314               Foster v. Univ. of Mich. Bd. of Regents et al.                Page 37
    “‘cause[d] [Foster] to undergo’” harassment or “‘ma[d]e [her] liable or vulnerable’” to it. 
    Davis, 526 U.S. at 645
    (citation omitted). Here, a reasonable juror could find that the University’s
    lackluster response to the respondent’s initial violation of the no-contact order and his threat to
    violate it again emboldened the respondent to continue and escalate his harassment of Foster,
    which included a threatening and offensive Facebook post, a series of vulgar emails to University
    officials, and crude emails to other students that the University itself concluded were retaliatory.
    Similarly, the University’s response to the April 4, 2014 Facebook post and the retaliatory emails
    could have emboldened the respondent to attend commencement activities despite the University’s
    instructions, making Foster vulnerable to further harassment. Likewise, the University’s failure to
    bar the respondent from his school email account could have led to further retaliatory emails.
    Finally, a reasonable juror could find that the University’s failure to bar the respondent from
    campus entirely (as opposed to only Ross School commencement activities) made Foster
    vulnerable to further harassment when the respondent in fact turned up on campus and came into
    contact with Foster at the Executive Residence. These are just a few examples. Although a court
    may grant summary judgment on the issue of causation when warranted, “[o]rdinarily, causation
    is a question to be resolved by a jury.” Bailey v. Floyd Cnty. Bd. of Educ., 
    106 F.3d 135
    , 145 (6th
    Cir. 1997). That is the case here.
    By the majority’s telling, the University was not deliberately indifferent to the sexual
    harassment and retaliation Foster endured; each time Foster reported the respondent’s misconduct
    to the University, it “adopted escalating measures proportionate to the misconduct.” Maj. Op. at
    8. But, as set forth above, the only way to reach that conclusion is by stepping into the jury’s
    shoes. It requires weighing the evidence and its significance, determining the credibility of
    testimony, and drawing inferences against Foster, even though she is the non-moving party. None
    of that is appropriate at the summary judgment stage. A reasonable juror could take that very same
    evidence and conclude that the University implemented an ineffective initial response and then
    belatedly and inadequately updated that response when faced with clear evidence—from the
    respondent himself—that the respondent would continue to disregard the University’s instructions.
    That juror could reasonably find that in doing so the University exhibited deliberate indifference.
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.               Page 38
    ***
    Looming over the majority’s decision is the specter of a day “in which two different juries
    will find that the same university loses coming and going over the same incident—by insufficiently
    protecting the rights of the victim in one case and by insufficiently protecting the rights of the
    accused in the other.” Maj. Op. at 13. In other words, the majority is concerned that a contrary
    holding would render schools liable to both the victims and the perpetrators of sexual harassment
    based on the same response: the victims for deliberate indifference under Title IX and the
    perpetrators (or accused perpetrators) for violations of their procedural due process rights. But
    this false dilemma is an unwarranted distraction. There is nothing untoward about a school being
    liable to both the victim of sexual harassment and the harasser in the appropriate circumstances,
    and in any event this case implicates no such risk of dual liability.
    First, consider an obvious example. Students A and B are classmates at a state college that
    receives federal funding. Student B sexually assaults Student A at the college dormitory where
    they both reside. Student A reports the assault to the college, but the college does not respond to
    the allegation, allowing Student B to continue residing in the dormitory. When Student A reports
    a second sexual assault by Student B, the college realizes its mistake and this time immediately
    expels Student B without a hearing. The college’s failure to respond to the first assault would
    result in damages liability to Student A under Title IX: the college had actual knowledge of the
    assault and its failure to respond was clearly unreasonable, leading to the second assault. 
    Davis, 526 U.S. at 645
    , 648. At the same time, the immediate expulsion would likely have violated
    Student B’s procedural due process rights because due process requires notice and an opportunity
    to be heard before a non-academic disciplinary expulsion. Flaim v. Med. Coll. of Ohio, 
    418 F.3d 629
    , 634 (6th Cir. 2005). Such a hypothetical college would appropriately lose in suits brought by
    the victim and by the harasser, on the grounds of two independent wrongs committed by the
    college.
    This outcome is also possible (and rightly so) in less extreme cases. As explained above,
    Title IX damages for student-on-student sexual harassment are available in cases where the school
    in fact responds to the harassment but its response is nevertheless clearly unreasonable. See 
    Davis, 526 U.S. at 648
    . And procedural due process sometimes imposes particular requirements on the
    No. 19-1314                Foster v. Univ. of Mich. Bd. of Regents et al.                 Page 39
    hearings that schools must afford accused students, such as an opportunity to cross-examine
    witnesses, Doe v. Univ. of Cincinnati, 
    872 F.3d 393
    , 400–04 (6th Cir. 2017), and an unbiased
    decisionmaker, Doe v. Miami Univ., 
    882 F.3d 579
    , 601 (6th Cir. 2018). A belated response that
    makes the victim vulnerable to further harassment in the interim could be deliberately indifferent
    if a jury concluded that the lateness of the response was clearly unreasonable, subjecting the school
    to Title IX liability. The same school, however, could lose a suit to the harasser if, when the school
    belatedly did sanction the harasser, it did so by employing a biased decisionmaker or failed to
    afford the harasser an opportunity to cross-examine witnesses if the circumstances called for it.
    Whatever tension there is in this sort of possible dual liability for schools responding to
    sexual harassment is superficial. Schools subject to both Title IX and the Due Process Clause have
    independent obligations to the victims of sexual harassment and to the alleged harassers. They are
    obliged to respond without deliberate indifference to the victims of sexual harassment, and they
    are independently obliged to afford procedural protections to the accused. It is naïve to suggest
    that these schools are incapable of failing on both fronts, and it is not for this court to bend the
    rules of institutional liability under Title IX so that schools may better avoid that outcome. It is
    perfectly proper to expect schools to meet their obligations under Title IX to victims of sexual
    harassment while affording due process to the harassers.
    As for this case, concluding that the University’s response to the respondent’s sexual
    harassment of Foster was not clearly unreasonable as a matter of law would not put educational
    institutions in an “impossible position” as amici contend. Amici Curiae Br. at 1. Nor would it
    encourage universities to “expel first and ask questions later,” as the majority opines. Maj. Op. at
    13. First, the University had options available to it short of expulsion or even suspension. No one
    is suggesting that the following examples of available interim responses would have violated the
    respondent’s procedural due process rights under the circumstances of this case: (1) suspending
    his email privileges; (2) requiring him to complete the April residency in Ann Arbor (as opposed
    to making that only an option); (3) removing him from class earlier than the University ultimately
    did; and (4) barring him from campus during commencement (as opposed to simply barring him
    from commencement activities). Second, even if the University had chosen to suspend or expel
    the respondent after taking some of its interim measures, it is far from clear that this would have
    No. 19-1314                 Foster v. Univ. of Mich. Bd. of Regents et al.                  Page 40
    run up against the respondent’s procedural due process rights. “The amount of process due will
    vary according to the facts of each case,” 
    Flaim, 418 F.3d at 634
    , and our cases largely involve the
    question of what process is due to students accused of, but contesting whether they are responsible
    for, a violation of school policy (e.g., sexual misconduct) in the first instance, see, e.g., Miami
    Univ., 
    882 F.3d 579
    . In such a context, procedural due process protections are more robust,
    requiring, for example, an opportunity to cross-examine witnesses at least where credibility is a
    key issue in the cases. See Univ. of 
    Cincinnati, 872 F.3d at 400
    –04. Here, in contrast, there is no
    dispute that the respondent had violated the school’s no-contact order, and he explicitly stated his
    intention to do so again. The more drastic response would not have been based on the unproven
    allegations of misconduct, but on the undisputed violation of school policy that occurred thereafter.
    To reiterate, Foster is not arguing that the University was deliberately indifferent in failing to expel
    the respondent immediately upon her allegation that he sexually harassed her; she is arguing that
    the University was deliberately indifferent in failing appropriately to adjust its response after the
    respondent signaled his unwillingness to comply with the University’s instructions and proceeded
    to engage in an escalating campaign of harassment and retaliation against her.
    Setting the above aside, let us remember the posture in which we find ourselves. Denying
    the University summary judgment is a far cry from concluding ultimately that it acted with
    deliberate indifference, let alone that Foster has proved she is, in fact, entitled to damages. It
    simply represents a judicial determination that the victim of sexual harassment has raised questions
    of fact that should be resolved by the jury, not this court. 
    Anderson, 477 U.S. at 249
    (“[A]t the
    summary judgment stage the judge’s function is not himself to weigh the evidence and determine
    the truth of the matter but to determine whether there is a genuine issue for trial.”). That fact gets
    lost in the majority’s ominous warnings of dual liability—and in its opinion more broadly. Foster
    presented sufficient evidence of the University’s deliberate indifference under Davis to establish
    a genuine dispute of material fact. That is the point. The evidence was not so one-sided as to
    compel a result in favor of either party, and thus the case should have been for the jury, not this
    court, to decide. Accordingly, I respectfully dissent.
    No. 19-1314               Foster v. Univ. of Mich. Bd. of Regents et al.              Page 41
    _________________
    DISSENT
    _________________
    WHITE, Circuit Judge, dissenting. Although I do not agree with the dissent’s discussion
    of the University’s response to the March 29 “really” text, I otherwise join Judge Moore’s opinion
    and emphasize the observation that the majority’s seeming application of a good-faith standard is
    unmoored from any applicable legal precedent. Davis v. Monroe Cnty. Bd. of Educ., 
    526 U.S. 629
    ,
    648 (1999).