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

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0079p.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. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:17-cv-10781—Bernard A. Friedman, District Judge.
Argued: December 4, 2019
Decided and Filed: March 11, 2020
Before: MOORE, CLAY, and SUTTON, Circuit Judges.
_________________
COUNSEL
ARGUED: Joshua Adam Engel, ENGEL & MARTIN, LLC, Mason, Ohio, for Appellant.
Brian Schwartz, MILLER, CANFIELD, PADDOCK AND STONE, P.L.C., Detroit, Michigan,
for Appellees. ON BRIEF: Joshua Adam Engel, ENGEL & MARTIN, LLC, Mason, Ohio, for
Appellant. Brian Schwartz, Jacob Hogg, MILLER, CANFIELD, PADDOCK AND STONE,
P.L.C., Detroit, Michigan, for Appellees.
MOORE, J., delivered the opinion of the court in which CLAY, J., joined. SUTTON, J.
(pp. 32–38), delivered a separate dissenting opinion.
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 2
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Rebecca Foster appeals
the district court’s grant of summary judgment in favor of Defendants-Appellees Board of
Regents of the University of Michigan, the University of Michigan, and Alison Davis-Blake
(collectively, the “University”) on her deliberate-indifference claim under Title IX of the
Education Amendments of 1972, 20 U.S.C. §§ 1681–1688. Foster was the victim of sexual
harassment during a University of Michigan Ross School of Business executive MBA program
located off-site in Los Angeles, California. After Foster reported that the respondent, a fellow
classmate in the program, had sexually harassed her, the University instituted a no-contact and
no-retaliation order against him while it investigated her complaint.1 Foster argues that the
University’s response to the respondent’s unwillingness to comply with these measures was
clearly unreasonable and caused her to undergo further harassment.
Because we believe that Foster has established a genuine issue of material fact as to
whether the University was deliberately indifferent to the sexual harassment she suffered at the
hands of a fellow student, we REVERSE the grant of summary judgment and REMAND for
further proceedings consistent with this opinion.
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.1
This opinion refers to the accused student as the “respondent.”
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 3
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 walked
away from an elevator. Id. at 4.
- While they attended a football game over the winter holiday (the Phoenix bowl), 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 4–5.2
- 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 (Foster Dep. at 117) (Page ID #680). Foster then got out of bed, went into the
bathroom, closed the door, and undressed to shower. OIE Investig. Rep. at 5. 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.- 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
2
OIE Investigator Rebecca Veidlinger confirmed that Foster indicated to her that the Phoenix bowl game
incident and the Griffith Park incident were both examples of “unwanted sexual contact.” R. 44-4 (Veidlinger Dep.
at 57–58) (Page ID #736).
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 4
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.3
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”) 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;
specifically, she did not want the respondent to know 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.
3
Foster initiated physical contact with the respondent on one occasion: On January 6th, 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. OIE Investig. Rep. at 5.
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 5
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 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. One accommodation the administrators
discussed internally, on March 28, was 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 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 dining room.”
4
This instruction is hereinafter referred to as the “no-contact order.”
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 6
- 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. 48-16 (Hogikyan 3/31/14 email) (Page ID #1030). 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.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.”
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 7
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 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.” 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).
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. Professor
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.No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 8
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
removing him would escalate the situation.” R. 48-24 (Foster Notes) (Page ID #1045).5
5
The 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 they did in her notes. 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
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 9
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, which prevented Foster from getting her lunch. Id. at 173. Professor 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
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 10
#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 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 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.7 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
6
It 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.
7
It is unclear from the record how many students received this email. Nowhere in its appellate brief does
the University contest Foster’s statement that the email was sent to multiple students.
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 11
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).
- “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.
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 12
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) (emphasis in original). 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 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
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 13
other students.8 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 only pertained 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 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 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
8
This was not a post on Foster’s Facebook wall. Rather, it was a Facebook post on the respondent’s wall
that appeared on her newsfeed, R. 48 (Foster Dep. at 229) (Page ID #965), without the respondent directing it to her.
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 14
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 conclude that the University was deliberately
indifferent under Title IX.
Foster timely appealed.
II. DISCUSSION
A. Standard of Review
We review de novo a district court’s grant of summary judgment. DiCarlo v. Potter,
358 F.3d 408, 414 (6th Cir. 2004). Under Rule 56(a), summary judgment is proper “if 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). “In deciding upon a motion for summary
judgment, we must view the factual evidence and draw all reasonable inferences in favor of the
non-moving party.” Nat’l Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir. 1997). “‘We
examine the grant of summary judgment to determine whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” DiCarlo, 358 F.3d at 414 (quoting C.T. Massey v. Exxon Corp.,
942 F.2d 340, 342 (6th Cir. 1991)) (second set of internal quotation marks omitted).
B. Title IX Standard
In Davis v. Monroe County Board of Education, the Supreme Court held that Title IX
may support a claim against a recipient of federal funding for student-on-student sexual
harassment when the plaintiff can show (1) that the sexual harassment was so severe, pervasive,
and objectively offensive that it could be said to deprive the plaintiff of access to an educational
opportunity or benefit, (2) that the funding recipient had actual knowledge of the sexual
harassment, and (3) that the funding recipient was deliberately indifferent to the harassment.
526 U.S. 629, 650 (1999). On the third prong—the one most relevant here—a plaintiff may
show deliberate indifference “only where the recipient’s response to the harassment or lack
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 15
thereof is clearly unreasonable in light of the known circumstances.” Vance v. Spencer Cty. Pub.
Sch. Dist., 231 F.3d 253, 260 (6th Cir. 2000) (quoting Davis, 526 U.S. at 648). “[T]he deliberate
indifference must, at a minimum, ‘cause [students] to undergo’ harassment or ‘make them liable
or vulnerable’ to it.” Davis, 526 U.S. at 645 (citing Random House Dictionary of the English
Language 1415 (1966) and Webster’s Third New International Dictionary 2275 (1961)). A
school “need not . . . engage in particular disciplinary action to avoid Title IX liability.”
Patterson v. Hudson Area Schs., 551 F.3d 438, 446 (6th Cir. 2009) (internal quotation marks
omitted); see also S.S. v. E. Kentucky Univ., 532 F.3d 445, 460 (6th Cir. 2008) (Moore, J.,
concurring) (describing the standard in Davis as “highly deferential to schools”). But “[w]here a
school district has actual knowledge that its efforts to remediate are ineffective, and it continues
to use those same methods to no avail,” the school has acted with deliberate indifference.
Patterson, 551 F.3d at 446 (quoting Vance, 231 F.3d at 261).
The Supreme Court has acknowledged that “[i]n an appropriate case, there is no reason
why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not
identify a response as not ‘clearly unreasonable’ as a matter of law. Davis, 526 U.S. at 649.
“[W]hether [a] school’s belatedly stepped-up efforts were ‘too little, too late,’” however, may be
a question for the jury. Patterson, 551 F.3d at 447 (quoting Theno v. Tonganoxie Unified Sch.
Dist No. 464, 377 F. Supp. 2d 952, 966 (D. Kan. 2005)).
C. Application of the Title IX Standard
We apply the three-part test set forth in Davis to Foster’s deliberate-indifference claim.
In short, we conclude that there is a genuine dispute of fact as to the third prong of the deliberate
indifference test, and the district court erred in granting summary judgment in favor of the
University.
1. Severe, Pervasive, and Objectively Offensive Sexual Harassment
The University has waived any argument that the sexual harassment experienced by
Foster was not severe, pervasive, and objectively offensive for Title IX purposes.9 As Foster
9
The district court did not address whether Foster had demonstrated that she experienced severe, pervasive,
and objectively offensive sexual harassment that deprived her of an educational opportunity or benefit.
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 16
correctly points out, in its motion for summary judgment before the district court, the University
“did not argue that Foster was not the victim of student-on-student sexual harassment prohibited
by Title IX.” Appellant Br. at 17; see R. 44 (Defs. Mot. for Summary Judgment) (Page ID
#626). The University never raised this point at oral argument, because the district court did not
hold oral argument. See R. 52 (Notice of Determination of Mot. Without Oral Arg.) (Page ID
#1138). The University itself makes note of our precedent that “a party who fails to raise an
argument before the district court waives the right to make that argument on appeal.” Appellee
Br. at 27 (citing Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass’n, 176 F.3d 315,
326 (6th Cir. 1999)). Any argument that Foster did not experience severe, pervasive, and
objectively offensive sexual harassment is therefore waived. See Benahmed v. Houston Cas.
Co., 486 F. App’x 508, 514 (6th Cir. 2012) (“Defendant waived the immunity argument when it
failed to raise the argument in its motion for summary judgment.”); Thurman v. Yellow Freight
Sys., Inc., 90 F.3d 1160, 1172 (6th Cir. 1996) (“Issues that are not squarely presented to the trial
court are considered waived and may not be raised on appeal.”).
Indeed, even on appeal, the University does not meaningfully contest Foster’s ability to
satisfy this requirement in Davis. In its brief, the University states, without elaboration or further
argument: “Foster cannot establish that after the University had actual notice of the harassment
she experienced severe, pervasive and objectively offensive behavior that deprived her of access
to educational opportunities.” Appellee Br. at 29. The only subsequent reference to this issue is
in a footnote, in which the University claims that, because any interactions between Foster and
the respondent during commencement weekend did not constitute severe, pervasive, and
objectively offensive sexual harassment, Foster’s “failure to demonstrate that she was denied
access to educational opportunities provides an alternative ground for affirming [the district
court’s opinion].” Id. at 38 n.27. At oral argument on appeal, the University did not argue that
the harassment was not “severe, pervasive, and objectively offensive,” nor did it respond to
Foster’s assertion that it had failed to raise this argument below.10 Thus, even on appeal, the
University has not attempted to present an argument as to the severity requirement in Davis, and
10
In fact, the University acknowledged at oral argument that before Foster filed a report, she suffered
harassment that was “ongoing throughout the EMBA program.” Oral Argument at 14:28–33, Foster v. Univ. of
Michigan, No. 19-1314 (6th Cir. 2019), https://tinyurl.com/ygctbusf.
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 17
“[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.” McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir.
1997) (citation and quotation marks omitted).
Even if the University had not waived this argument, however, we could not conclude
that, as a matter of law, Foster fails to demonstrate severe, pervasive, and objectively offensive
sexual harassment. In assessing severity, we look for “something more than just juvenile
behavior among students, even behavior that is antagonistic, non-consensual, and crass”; in
assessing pervasiveness, we look for “multiple incidents of harassment; one incident of
harassment is not enough”; and in assessing objective offensiveness, we look for “behavior that
would be offensive to a reasonable person under the circumstances, not merely offensive to the
victim, personally or subjectively.” Kollaritsch v. Michigan State Univ. Bd. of Trustees, 944
F.3d 613, 620–21 (6th Cir. 2019). Although the causation element of Foster’s deliberate-
indifference claim is limited to the University’s actions after Foster reported the respondent’s
conduct to OIE on March 13, 2014, as discussed below, the analysis of the severity,
pervasiveness, and objective offensiveness of the harassment is not limited to events postdating
March 13.11 Thus, we first conclude that the full scope of the respondent’s behavior toward
Foster—meaning his harassment before and after her report to OIE—was severe and objectively
offensive for Title IX purposes. From his physical sexual misconduct in the winter of 2013–
2014, to his disparaging barrage of emails to Foster’s classmates and professors about Foster in
April 2014, the respondent’s behavior clearly rose to the level of actionable sexual harassment
under Davis. The University raises no argument to the contrary.
Our recent decision in Kollaritsch v. Michigan State University Board of Trustees, does
not compel a different conclusion with respect to pervasiveness. In Kollaritsch, four female
students at Michigan State University alleged that after a male student sexually assaulted them
11
If anything, the open question in this circuit has been whether post-report incidents of harassment may be
considered at all under the first Davis element. For example, in Pahssen v. Merrill Cmty. Sch. Dist., we noted that
the district court had properly considered whether several incidents of pre-report harassment constituted severe,
pervasive, and objectively offensive conduct, but stated that “[b]oth the Appellant and the government hedge on
whether we should consider the [post-report] sexual assault itself under the first Davis element.” 668 F.3d 356, 364
(6th Cir. 2012). As the analysis herein makes clear, a court may consider pre- and/or post-report incidents of sexual
harassment under Davis’s first element.
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 18
and they reported the assaults, the university was deliberately indifferent in its response.
Because the plaintiffs could not demonstrate further harassment beyond a single incident of
sexual assault, their claims were denied. Although the opinion states that Davis “requires that
the school had actual knowledge of some actionable sexual harassment and that the school’s
deliberate indifference to it resulted in further actionable harassment of the student-victim,” it
clarifies that “pervasive,” for Title IX purposes, means only that “at least one more (further)
incident of harassment, after the school has actual knowledge and implements a response, is
necessary to state a claim.” Id. at 621. That is, rather than requiring independent proofs of
severe, pervasive, and objectively offensive harassment from both before and after the school
had actual knowledge, one post-report incident of harassment can suffice. The opinion
subsequently reiterates this point, stating that a plaintiff is required to prove “an incident of
actionable sexual harassment,” “the school’s actual knowledge of it,” and “some further incident
of actionable sexual harassment.” Id. at 623 (emphases added).
In Foster’s case, on March 13, 2014, the University acquired actual knowledge of a
months-long campaign of sexual harassment by the respondent against Foster and implemented a
response. The respondent thereafter violated the no-contact order by sending Foster a text
message; announcing his intention to violate the order again in an erratic, late-night email to
University administrators; tagging Foster in a threatening post on Facebook; sending retaliatory
and harassing emails to Foster’s classmates and professors after he was barred from the final day
of the April residency; and appearing in the same room as Foster at commencement activities
after being prohibited from attending commencement. Whether considering the post-March 13
conduct alone or the full timeline of the respondent’s behavior, it is clear that his harassment of
Foster was pervasive.
For the foregoing reasons, Foster has adequately demonstrated that she experienced
severe, pervasive, and objectively offensive sexual harassment for Title IX purposes.
2. Actual Knowledge of the Harassment by the Institution
As a general matter, the University does not deny that it had actual knowledge of the
harassment. Still, for purposes of assessing whether a jury could conclude that the University
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 19
was deliberately indifferent, two points about the University’s level and timing of knowledge are
worth clarifying. First, on March 18, 2014, Foster made the University aware of the hundreds of
text messages that the respondent had sent to her, as an email attachment to OIE Investigator
Veidlinger. R. 44-7 (Foster 3/18/14 email) (Page ID #770). From that moment onward, the
University had actual knowledge of the nature of respondent’s pre-report harassment of Foster.
The record does contain one apparent inconsistency on this point. In an email on April 5,
Claire Hogikyan, Managing Director of the EMBA program, wrote to Valerie Suslow, Senior
Associate Dean of the Ross School, that Foster had “also shared some of the hundreds of text
messages [the respondent] has been sending her over the past several months,” as well as
evidence that the respondent had made contact with Foster via Facebook. 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 concluded, “I am inclined to agree
given this new information.” Id. It thus appears that Hogikyan may not have known of the
existence, or at least the substance, of these text messages until April 5. Indeed, during
Hogikyan’s deposition, Foster’s lawyer pointed out that April 5 was the first time Hogikyan
believed the respondent should be removed from the class, to which Hogikyan responded that
April 5 “was the first I saw [the text messages], and the first I was ever aware of them. So
leading up to this moment, I did not have any of that context.” R. 44-3 (Hogikyan Dep. 95–96)
(Page ID #718). That one University administrator may have been unaware of these text
messages until April 5, however, does not mean the University lacked actual knowledge of them
until that time, nor does the University make any such argument. The University had actual
knowledge of the respondent’s harassing text messages as soon as Foster provided evidence of
them to OIE.
Second, Foster cannot create a genuine dispute of fact over whether the University was
made aware of the respondent’s alleged in-classroom violations of the no-contact order during
the Friday, April 4 class session. See Foster v. Univ. of Michigan, No. 17-CV-10781, 2019 WL
764256, at *13 (E.D. Mich. Feb. 21, 2019) (“[Foster] does not allege that she called these
violations to the defendants’ attention.”). These included allegations that the respondent sat on
or stood near her desk while talking to the professor and that he blocked her access to the
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 20
beverage table. The only evidence Foster sets forth of the University’s knowledge of these
incidents is her testimony that, when the respondent’s presence in the lunchroom prevented her
from getting lunch, she stated to Professor Mehta, “What is happening here? None of the interim
measures are being held on your end.” R. 48-2 (Foster Dep. at 173) (Page ID #960). We cannot
draw a reasonable inference that Foster informed Mehta of other violations besides the
lunchroom issue, when in Foster’s own words she did not say anything to Mehta about them.12
See also R. 48-3 (Hogikyan Dep. at 185) (Page ID #983) (“Q: During Friday classes, did
Rebecca Foster ever come up to you, and report to you, that . . . she believed the interim
measures were not being followed? A: No.”).
3. Deliberate Indifference to the Harassment
The central issue in this case is whether the University was deliberately indifferent to the
respondent’s harassment of Foster after he signaled that he would not comply with the no-contact
order. As discussed above, Foster does not argue that the nature or extent of the respondent’s
pre-March 13 conduct toward her should have led the university to respond differently at the
moment she filed the report. Cf. Joyce v. Wright State Univ., No. 3:17-CV-387, 2018 WL
3009105, at *1 (S.D. Ohio June 15, 2018) (plaintiff alleged that university was aware of
respondent’s pre-university history of sexual misconduct and “was deliberately indifferent in
allowing [the respondent] to enroll at WSU”). Rather, Foster frames the issue as “whether the
University’s subsequent actions were adequate and effective once the school was aware that the
Harasser was not complying with the No Contact Order.” Appellant Br. at 14.
We first assess the various actions by the respondent and the University’s responses to
them, specifically inquiring whether responses were not, as a matter of law, “‘clearly
unreasonable in light of the known circumstances,’ thus demonstrating the school’s deliberate
indifference to the foreseeable possibility of further actionable harassment of the victim.”
Kollaritsch, 944 F.3d at 621 (6th Cir. 2019) (quoting Davis, 526 U.S. at 643, 648). We then
12
Foster also attempts to argue that she “reported further violations of the No Contact Order to OIE.”
Appellant Br. at 21. But the record she cites in support of this assertion is her email to Veidlinger in which she
reported the “Really” text message on March 30, which was the same—and apparently only—violation of the no-
contact order Foster reported besides the Facebook tag. See id. (citing R. 48-14 (Foster 3/30/14 email) (Page ID
#1027–28)).
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 21
assess whether these responses did not, as a matter of law, cause further injury to Foster, “such
that the injury is attributable to the post-actual-knowledge further harassment, which would not
have happened but for the clear unreasonableness of the school’s response.” Id. at 622. In brief,
a reasonable jury could conclude that the University was deliberately indifferent in responding to
the respondent’s ongoing, escalating campaign of harassment against Foster.
i. The Respondent’s Actions and the University’s Responses
First, Foster argues that after the respondent texted her on March 29 in violation of the
no-contact order, the University 1) did not take any immediate action in response, and 2) did not
make any substantive changes in the conditions imposed on the respondent, despite her
complaints that the existing conditions did not address her safety and emotional distress
concerns. Appellant Br. at 8. Instead, she claims, “OIE repeated the instructions that the
Harasser have no contact with Foster and that he stay in a different hotel.” Id. The University,
by contrast, states that after the text-message incident (on March 29), it sent emails to Foster and
the respondent on March 31 detailing “additional interim measures” for the upcoming residency
beginning on Thursday, April 3. Appellee Br. at 9.
Although the University’s March 31 email included a robust set of conditions by which
the respondent was required to abide, Foster is correct that the University did not take any
immediate action in response to the respondent’s violation of the no-contact order. With respect
to the timing of the University’s response, although Veidlinger responded to Foster less than five
hours after Foster informed her of the respondent’s text message, the entirety of her response was
that she would speak with the respondent the next day, and that Foster was “the best judge of
[her] immediate needs.” R. 48-14 (Veidlinger 3/30/14 email) (Page ID #1027). Veidlinger—
who herself was the recipient of Foster’s March 18 email providing the University with evidence
of the respondent’s extended harassment of Foster—did not contact the respondent immediately,
nor did she respond substantively to Foster’s inquiry about making further arrangements for her
safety.
Furthermore, the “additional interim measures” that the University conveyed to both
Foster and the respondent on March 31 were not a response to his violation of the no-contact
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 22
order, as the record reveals in three different ways. 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 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.
The University’s only response to this violation was to talk to the respondent and receive a
verbal assurance that he would refrain from further harassment (but, as we know now, he did
not).
Second, Foster argues that the University’s response to the respondent’s late-night, April
4 email to University administrators, which indicated his clear intention to continue violating the
no-contact order, was “minimal.” Appellant Br. at 28. In the email, the respondent refers to the
Title IX investigation as a “retarded” and “specious witch hunt,” and—perhaps believing that the
University represented Foster—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 that “if 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)
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 23
(Page ID #987). The email clearly suggests that the University administrators were mistaken if
they believed that the respondent would leave the karaoke outing if Foster were present, although
the interim accommodations 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).13 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.
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 severe response from the University as a means of
deterring future misconduct. After all, “the only evidence before this Court” of the University’s
response to these two incidents was Veidlinger “talking to” the respondent. Vance, 231 F.3d at
263. 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
13
There are competing facts with respect to the University administrators’ perspective on the respondent’s
late-night missive. Hogikyan testified that the email was “unprofessional and unbecoming of an EMBA student at
the University of Michigan.” R. 48-3 (Hogikyan Dep. at 72) (Page ID #976). Yet she also determined that “[t]here
was no impending situation in that classroom that [she] was concerned about,” so it “seemed very unwise” for her to
upset “what was, then, a very calm situation” by removing the respondent from the classroom in the middle of the
Friday session. Id. at 84 (Page ID #979); see also id. at 74 (Page ID #977) (“Q: Did you think, at the time, about
whether [the respondent] was appropriately, or inappropriately using the school’s e-mail system?” . . . “A: I was not
thinking about the school’s email at the time.”). Nor did Hogikyan form an opinion as to whether the email violated
any University policy. Id. at 74–77 (Page ID #977–78).
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 24
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,” Davis, 526 U.S. at 648, and Foster’s “requested academic accommodation[s]
. . . may not have been feasible,” Kelly v. Yale Univ., No. 3:01-CV-1591, 2003 WL 1563424, at
*5 (D. Conn. Mar. 26, 2003). The question remains, however, 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. Id.Moreover, there is a genuine dispute of material fact as to whether University
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. Pahssen, 668 F.3d at 364. A jury could conclude that the University believed
removal was appropriate and failed to take this action, supporting Foster’s claim of deliberate
indifference.
Third, Foster argues that University did not respond to the 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.”14 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
14
At 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, 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 25
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 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.
Fourth, 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. We
agree that a jury could reach this 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). We have no difficulty concluding that these
emails subjected Foster to further harassment as a continuation of the respondent’s existing
crusade against her.
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 26
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 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 apparently 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 our 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.
Fifth, 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,
only barring him 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
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 27
conclude that taking the respondent or his lawyer at their word, in light of these circumstances,
was clearly unreasonable.
ii. Injury and Causation
On the questions of injury and causation, there is a genuine issue of fact as to whether the
University’s responses to the respondent’s various actions “‘cause[d] [Foster] to undergo’”
harassment or “‘ma[d]e [her] liable or vulnerable’” to it. Davis, 526 U.S. at 645 (citation
omitted). Without a doubt, the question of causation may be a simpler one when the educational
institution provides a lackluster response to an egregious form of sexual misconduct. For
example, the minimal “talking to” employed by the school in Vance v. Spencer County Public
School District was in response to a stabbing incident and an in-classroom sexual assault. 231
F.3d at 263. That the consequence for such violent misconduct was a talking-to from the school
made the issue of causation more direct than in this case. It is more difficult to trace the
University’s response to the respondent’s verbal harassment to the ensuing harms that befell
Foster.
On the other hand, courts have concluded that educational institutions can “cause”
discrimination even when the causal chain is more attenuated. In Williams v. Board of Regents
of University System of Georgia, for example, after several students raped their classmate in a
dormitory, the University of Georgia failed to take any precautions that would prevent future
attacks from the assailants or “like-minded hooligans” by removing them from student housing
or implementing a more protective sexual harassment policy to prevent future incidents. 477
F.3d 1282, 1297 (11th Cir. 2007). Yet the nexus between this failure and further discrimination
to the victim was less clear, because she had withdrawn from UGA the day after the incident.
Still, the Eleventh Circuit held that this was immaterial to causation: “[W]e do not believe that at
this stage her withdrawal [from UGA] should foreclose her argument that UGA continued to
subject her to discrimination.” Id. The University’s failures may have subjected the student to
further discrimination “should [she] have decided to return to UGA,” and this was sufficient for
causation. Id.No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 28
Similarly, in this case, the fact that, for example, Foster did not receive additional
harassing text messages from the respondent does not mean that the University’s response to his
violation of the no-contact order did not cause Foster to suffer further harassment. Indeed, after
the University essentially let the respondent off with a warning for texting Foster, he violated the
no-contact order again—this time in a more extreme, threatening fashion on Facebook. In
similar fashion, soon after the University failed to reprimand the respondent for writing a
threatening email involving vulgar references about Foster, he wrote a similarly vulgar email
about Foster to her classmates. And after the University merely barred the respondent from class
after his threatening Facebook post, he shrugged off the University’s instruction that he not
attend commencement activities and appeared in the same room as Foster in her residence, in
apparent violation of the no-contact order, which prohibited him from “attending any social
activities outside of the scheduled classes where Rebecca Foster is in attendance.”
In our view, whether these incidents of post-report harassment that befell Foster were
traceable to the University’s responses is a question for the jury. Although a court may grant
summary judgment on the issue of causation when warranted, Hartsel v. Keys, 87 F.3d 795, 803
(6th Cir. 1996), “[o]rdinarily, causation is a question to be resolved by a jury.” Bailey v. Floyd
Cty. Bd. of Educ. By & Through Towler, 106 F.3d 135, 145 (6th Cir. 1997). Did the University’s
minimal response to the respondent’s first violation of the no-contact order and his crude,
threatening April 4 email lead to his subsequent violation of the no-contact order on April 4,
2014, when he tagged her on Facebook, referred to her as a “scrub,” and threatened her
boyfriend? Did the University’s response embolden the respondent to engage in retaliation
against her via derogatory comments about her in emails to their mutual classmates? Did the
University’s failure to institute more severe disciplinary and precautionary measures around the
respondent’s stated intention to be in Michigan for graduation lead to his appearance at the
Executive Residence, in the same room as Foster? There is a genuine dispute over these
questions, which a jury should answer.
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 29
***
In response to Foster’s arguments regarding the foregoing incidents, the University
argues that, compared to other cases in this circuit, the post-report harm here was minimal and
the University’s responses were effective. Specifically, Foster did not experience any severe
sexual harassment or assault after filing her report with OIE, in contrast to cases such as Vance
and Patterson, in which the victims suffered severe harassment and assault from multiple
perpetrators after complaining to the relevant authorities. See, e.g., Vance, 231 F.3d at 256(sexual assault by classmates occurred after complaint was filed); Patterson, 551 F.3d at 439–43,
442 (same). Furthermore, the University’s actions may be contrasted with those of institutions
that allegedly fail to respond to complaints or requests for accommodations in any way. For
example, the University compares this case to Kelly, in which a student-victim of sexual assault
made repeated requests for academic accommodations without any response from the University,
and was successful only at receiving alternative housing (she shared a dormitory with the alleged
assailant) several weeks after filing a complaint with the intervention of a university professor.
2003 WL 1563424, at *2.
Yet the University’s arguments are off-base in several respects. First, we cannot
countenance the manner in which the University frames the harm that Foster endured. The
University states: “While Foster focuses on Respondent’s behavior throughout the EMBA
program, including sending text messages and emails, unsolicited gifts, and grabbing her ‘butt,’
it is undisputed that no such behavior occurred after Foster finally reported the harassment and
the University imposed interim measures.” Appellee Br. at 38. This is incorrect. For instance,
even after the University imposed the additional March 31 measures, the respondent suggested to
the University that he would willingly violate the no-contact order again, and sure enough, he
did, both through his Facebook post and his presence in the Executive Residence. Cf. M.D. by &
through Deweese v. Bowling Green Indep. Sch. Dist., 709 F. App’x 775, 776 (6th Cir. 2017)
(only post-assault contact between perpetrator and victim was perpetrator’s unsuccessful attempt
to “follow” victim on Instagram). That some of the respondent’s continued misconduct took
place over the Internet would not preclude a jury from finding that it was pervasive and deprived
Foster of educational opportunities, in light of the University’s deliberate indifference toward it.
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 30
See Feminist Majority Found., 911 F.3d at 688–89 (“[W]e cannot conclude that UMW could
turn a blind eye to the sexual harassment that pervaded and disrupted its campus solely because
the offending conduct took place through cyberspace.”); Kollaritsch, 944 F.3d at 620 n.2 (“[T]he
severity of harassment on social media is virtually boundless.”); Bell v. Itawamba Cty. Sch. Bd.,
799 F.3d 379, 403 (5th Cir. 2015) (Costa, J., concurring) (discussing “the pervasive use of social
media among students and the disruptive effect on learning that such speech can have when it is
directed at fellow students and educators”).
Second, an educational institution’s complete failure to respond to a complaint or request
for accommodation is not the sine qua non of Title IX liability. Any response that is “clearly
unreasonable,” and subjects the complainant to further harassment, puts the funding recipient in
violation of the law. Davis, 526 U.S. at 649. In this vein, the University cannot avoid liability as
a matter of law when it successfully thwarts one type of sexual harassment but acts unreasonably
to stop another. We stated analogously in Patterson that a school district would not be shielded
from liability as a matter of law “if that school district knows that its methods of response to
harassment, though effective against an individual harasser, are ineffective against persistent
harassment against a single student.” 551 F.3d at 448. Here, in a similar fashion, the fact that
the University was undoubtedly effective in preventing further sexual assault and severe, in-
person sexual harassment against Foster does not shield it from liability if, for example, it acted
clearly unreasonably in responding to the respondent’s use of the phone and internet to harass
Foster. See Soper v. Hoben, 195 F.3d 845, 857 (6th Cir. 1999) (Moore, J., concurring in part and
dissenting in part) (although school prevented recurrence of one form of sexual misconduct
(rape), it took no steps to prevent another form (harassment)).
The same principle applies when “belatedly stepped-up efforts” by an educational
institution ultimately stop a particular form of harassment, but a victim suffers in the meantime.
Patterson, 551 F.3d at 447. For example, after the University barred the respondent from the
final day of the April residency, this may have caused the respondent to refrain from further
direct verbal harassment of Foster. Yet before this happened, the respondent both violated the
no-contact order and penned an erratic email to the University indicating his willingness to
violate the order in future, and the University’s responses were negligible. This may be
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 31
contrasted with the actions of the school district in Stiles ex rel. D.S. v. Grainger County,
819 F.3d 834 (6th Cir. 2016), in which “each time DS or his mother communicated a specific
complaint of harassment,” the district not only investigated the incident promptly but disciplined
the students involved. Id. at 849. Similarly, the University’s firm instruction on April 10 for the
respondent to refrain from harassing others by email was apparently effective, but it came after
days of email-based retaliation. An institution cannot avoid Title IX liability if some of its
responses were adequate but others were clearly unreasonable. See E. Kentucky Univ., 532 F.3d
at 455 (enumerating the school district’s comprehensive responses to “all of the alleged
incidents” involving the victim).
We hold that the University’s responses to the foregoing conduct by the respondent may
have been clearly unreasonable despite the fact that the harm Foster suffered was less severe than
in other cases and that belated responses may have ultimately stopped certain forms of
harassment from continuing.
III. CONCLUSION
For the foregoing reasons, we REVERSE the judgment of the district court and
REMAND for proceedings consistent with this court’s opinion.
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 32
_________________
DISSENT
_________________
SUTTON, Circuit Judge, dissenting. All agree that Rebecca Foster suffered peer-on-peer
sexual harassment while enrolled in the University of Michigan’s Executive MBA program. The
deposition testimony by Foster, assumed to be true at this stage of the case and laid out in detail
in the court’s opinion, shows that she suffered harassment, if not sexual assaults, from her
co-student. The question is not whether these acts counted as harassment or an assault. If true,
they most assuredly did, and Foster is free to make sure that the harasser gets what he deserves in
a state court tort action.
At issue in today’s case is a different question. Was the University deliberately
indifferent to her plight? In answering that question, it’s well to remember the nature of the
program. There is no campus for this MBA program for currently employed business
executives. The students attend classes roughly one three-day weekend a month at an off-site
hotel in the Los Angeles area over a 21-month period. It’s also well to remember that the
University did not know anything about the harassment before March 13, 2014. At that juncture,
Foster presented unspecific allegations of harassment to it. The University did not learn the
details of her plight until March 20, when she sat down for a Title IX interview. At that point,
this Executive MBA program had three more days of classes (April 3–5) and one
commencement ceremony (April 30–May 1).
At each stage, the University of Michigan did not show deliberate indifference to Foster.
It ratcheted up the protections at every turn: from a no-contact order at the outset to a
requirement that the harasser stay in a separate hotel for the last three-day session to a removal
from the third day of the program to an order that he not attend graduation.
Proportionate escalation. 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 County,
819 F.3d 834, 848 (6th Cir. 2016). The claimant must show that the university acted in a manner
“clearly unreasonable in light of the known circumstances.” Davis v. Monroe Cty. Bd. of Educ.,
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 33
526 U.S. 629, 648 (1999). It’s not a university’s job to do the impossible—to “purg[e] their
schools of actionable peer harassment”; it’s a university’s job to respond in good faith to
allegations of harassment to eliminate the problem. Id.That’s what Michigan tried to do and tried to do in good faith. From March 13, 2014,
forward, Foster presented the University with five instances of misconduct by the harasser. Each
time, the University adopted escalating measures proportionate to the misconduct. Not once did
its action remotely count as “clearly unreasonable.”
1. Foster first notified the University that she had suffered sexual harassment on
March 13, 2014, roughly two weeks before the final weekend session of her academic program,
23 days before the program ended, and 49 days before commencement. The University 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.
2. The harasser violated this no-contact order with a one-word text: “Really.” R. 44-14
at 1. In response, the University issued a verbal warning. The warning seemed to work. 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 again messaged Foster.
Before that, he had done so frequently; that indeed was the key source of her complaint on
March 13.
The University made sure the problem did not undermine Foster’s education or
performance. It excused her and her team from classroom participation, granted her extensions
on assignments, and contacted her professors to apprise them of the situation. It also offered her
and the harasser the opportunity to finish their education elsewhere. Each declined. That is not
deliberate indifference.
3. That brings us to the last residency session, scheduled for April 3 to April 5. No
problems apparently arose during the evening session on April 3 from 5:00 p.m. to 7:00 p.m.
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 34
But on April 4, the harasser violated the no-contact order in a different manner. 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. Id. at 20–21,
27. The University responded, this time not with a verbal warning. It banned him from all
future school events—prohibiting him from attending the April 5 session and from the
commencement ceremony.
The harasser did not respond well. He sent an inappropriate email to several of his
classmates and several over-the-top emails to the University. In response, the University
contacted his lawyer and secured the lawyer’s assurance that his 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 plain-clothes officers to guard Foster
during commencement. That is not deliberate indifference.
4. When Foster noticed on Facebook that the harasser appeared to be planning to attend
commencement anyway, the University stepped up its efforts. It passed Foster’s tip on to
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.
5. The harasser showed up at the commencement ceremony hotel. Campus police
arrested him, escorted him to an airplane, and sent him back to California. Foster never
interacted with him. That is not deliberate indifference.
Whether examined incident by incident or in combination, the University did its level
best to protect Foster from this student harasser. It started with precautionary measures, moved
to a verbal warning, and imposed a series of increasingly severe sanctions that ended with a
suspension from the last class and commencement and a one-way involuntary flight back home.
All the while, it took proactive measures to protect Foster’s safety and academic experience.
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 35
Compare these circumstances to a case in which the school won. In Stiles ex rel. D.S. v.
Grainger County, 819 F.3d 834 (6th Cir. 2016), a school administration 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 id. at 849. Even so, because the University went beyond
“merely talking to the offender[]” and took some proactive steps to protect the victim from
further harassment, we concluded it could not face damages for failing to “eliminate [his] peer
harassment” altogether. Id. The same is true, even more true, here.
Now compare these circumstances to cases in which the schools lost. In Vance v.
Spencer County Public School District, 231 F.3d 253 (6th Cir. 2000), harassers “touched [a
middle school girl] inappropriately” in “virtually every class” she attended for over a year. Id. at
257. Despite the victim and her mother’s repeated complaints 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—and properly so. Id. at 262–63. Likewise, in Patterson
v. Hudson Area Schools, 551 F.3d 438 (6th Cir. 2009), the victim suffered years of “persistent
harassment,” id. at 448, that included “daily” bullying, physical assault, and sexual assault, id. at
439. We found 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
proven inadequate. Id. at 449. To describe the facts in these cases is to distinguish them from
Foster’s case.
Lack of better alternatives. What at any rate could the University have done differently?
That of course is not the test. A Title IX plaintiff has no right to insist on “particular disciplinary
action[s].” Davis, 526 U.S. at 648; Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 365 (6th
Cir. 2012). 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 complains of several roads
not taken. None advances her case.
Start with her suggestion that the University could have suspended the harasser. But
didn’t it do exactly that? 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
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 36
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 repeat. While we have cautioned schools against relying on verbal
warnings that continued not to work, see, e.g., Patterson, 551 F.3d at 449; Vance, 231 F.3d at
257, we have never suggested that schools cannot employ one verbal warning before turning to
harsher sanctions. Wherever the threshold for deliberate indifference lies, this does not cross it
as a matter of law.
What about Foster’s suggestion of “immediate expulsion”? R. 18 at 13. That is a heavy
lift in a case in which the claimant first told the University about the problem two weeks before
the last three-day session and in which it did suspend the harasser when the initial steps did not
work. The harasser has statutory and constitutional rights too, as we well know, particularly in
the context of such serious allegations. Alleged harassers have not been shy about suing
administrations under Title IX and § 1983 for denying them educational opportunities without
the requisite notice and process. See, e.g., Doe v. Baum, 903 F.3d 575, 580 (6th Cir. 2018).
Foster’s harasser threatened to join this number, forcing the University to hold the thin line
between protecting Foster and denying the harasser process before expelling him. If there is one
thing sure to come out of today’s decision, it will be a university’s decision to expel first and to
ask questions later. Because these cases often generate triable issues of fact, a pattern
accentuated if we dilute deliberate indifference into mere reasonableness, one wonders when the
day will come that two different juries will find that the same school 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.
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
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 37
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 suspension 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
clearly unreasonably in taking an officer of the court—his lawyer—at his word when he assured
the school that his 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 flew him back home. He never
interacted with her.
Causation. Foster also must show causation. She must establish (1) that she sustained a
cognizable injury—a “deprivation of ‘access to the educational opportunities or benefits
provided by the school,’” Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 622 (6th
Cir. 2019) (quoting Davis, 526 U.S. at 650)—and (2) that the school caused that injury—that it
stemmed from “post-actual knowledge further harassment” that “would not have happened but
for the clear unreasonableness of the school’s response,” id. (emphasis removed).
Foster’s complaint does not allege that the harassment occurred within a forum the
University had the power to do anything about. Title IX deliberate indifference claims make
sense “only where the [school] has some control over the alleged harassment,” Davis, 526 U.S.
at 644, and that does not describe this situation. The harasser, sure enough, retaliated against
Foster by making inappropriate comments to her classmates on Facebook and over email. But
the school could not force him to divulge his Facebook credentials. Nor could it prevent him
from emailing his classmates, whose addresses he already had.
The court’s contrary suggestions fall short. It points to discussions among administrators
about possibly terminating the harasser’s school email account. But there’s no suggestion in the
complaint or in the record that this would protect Foster in any meaningful way. All but one of
No. 19-1314 Foster v. Univ. of Mich. Bd. of Regents et al. Page 38
the abusive emails went directly to the University. And it had no choice but to continue dialogue
with the harasser. After all, it had a Title IX investigation to conduct. The court adds that the
University provided the harasser with Wi-Fi for the final residency session. True enough. But
that event predated the conduct that led to his removal from class. Attending business school
without internet access makes little sense.
By enforcing its no-contact order through escalating sanctions, the school did all it could
to help Foster. Additional help required additional means of redress: blocking the harasser’s
Facebook posts or getting a no-contact order from a state court. Frustrating as all this may seem,
only the victim, not the University, had access to these other solutions.
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.
I respectfully dissent.