Amicus Curiae Brief — Emily Kollaritsch, et al., Petitioners v. Michigan State University Board of Trustees, et al.

No. 20-10

IN THE

Supreme Court of the United States

d

EMILY KOLLARITSCH , et al.,

Petitioners,

—v.—

MICHIGAN STATE UNIVERSITY BOARD OF TRUSTEES , et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR AMICI CURIAE PUBLIC JUSTICE,

THE CALIFORNIA WOMEN’S LAW CENTER, EQUAL

RIGHTS ADVOCATES, KNOW YOUR IX, AND THE

WOMEN’S LAW PROJECT IN SUPPORT OF PETITIONERS

ADELE P. KIMMEL

ALEXANDRA BRODSKY

PUBLIC JUSTICE

1620 L Street NW, Suite 630

Washington, DC 20036

(202) 797-8600

akimmel@publicjustice.net

SEANNA R. BROWN

Counsel of Record

TRACY L. COLE

VICTORIA L. STORK

DARLEY MAW

BAKER & HOSTETLER LLP

45 Rockefeller Plaza

New York, New York 10111

(212) 589-4200

sbrown@bakerlaw.com

Attorneys for Amici Curiae

i

TABLE OF CONTENTS

Page

INTERESTS OF AMICI ..............................................1

SUMMARY OF ARGUMENT .....................................3

ARGUMENT ................................................................6

I.

The Decision Below Contravenes Davis

By Eliminating The “Vulnerability”

Prong And Failing To Premise An

Institution’s Liability On Its Own

Intentional Conduct. .....................................6

II.

The Decision Below Contravenes

Fundamental Tort Law Principles Of

Causation By Unlinking The Relevant

Conduct From The Relevant Injury. ............9

III. A School’s Deliberate Indifference To

Known Harassment Deprives Students

Of Access To Educational Opportunities

Regardless Of Actionable Post-Notice

Harassment. ................................................12

A. Sexual Harassment In Schools Is A

Widespread Problem. ............................13

B. Schools Can Act To Ensure Students

Can Learn In The Wake Of Sexual

Harassment. ..........................................15

C. Without School Intervention,

Victims’ Access To Educational

Opportunities Suffers. ...........................16

CONCLUSION ..........................................................21

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Albiez v. Kaminski,

No. 09-CV-1127, 2010 WL 2465502

(E.D. Wis. June 14, 2010) .....................................19

Davis v. Monroe Cty. Bd. of Educ.,

526 U.S. 629 (1999) ...................................... passim

Doe ex rel. Doe v. Coventry Bd. of Educ.,

630 F. Supp. 2d 226 (D. Conn. 2009) ...................18

Doe v. Univ. of the Pac.,

No. civ S-09-764 FCD/KJN, 2010 WL 5135360

(E.D. Cal. Dec. 8, 2010) ........................................16

Farmer v. Kansas State Univ.,

918 F.3d 1094 (10th Cir. 2019) .................... passim

Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274 (1989) ................................................8

Goodwin v. Pennridge Sch. Dist.,

389 F. Supp. 3d 304 (E.D. Pa. 2019) ....................18

Jennings v. Univ. of N. Carolina,

482 F.3d 686 (4th Cir. 2007) ................................20

Kelly v. Yale Univ.,

No. 3:01-CV-1591, 2003 WL 1563424

(D. Conn., Mar. 26, 2003) ...............................17, 18

Kollaritsch v. Michigan State Univ. Bd. Of Trs.,

298 F. Supp. 3d 1089 (S.D. Mich. 2017) ..............11

iii

Kollaritsch v. Michigan State Univ. Bd. of Trs.,

944 F.3d 613 (6th Cir. 2019) ........................ passim

M.D. v. Bowling Green Indep. School Dist.,

No. 1:15-CV-00014-GNS-HBB,

2017 WL 390280 (W.D. Ky. Jan. 27, 2017)..........15

Pearson v. Logan Univ.,

937 F.3d 1119 (8th Cir. 2019),

reh’g denied (Oct. 10, 2019) .................................16

S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cty.,

819 F.3d 69 (4th Cir. 2016) ..................................15

Williams v. Board of Regents of University

System of Georgia,

477 F.3d 1282 (11th Cir. 2007) ......................12, 19

Statutes

20 U.S.C. § 1681(a) ............................................ passim

Other Authorities

Anonymous, On Assault Narratives,

YALE DAILY NEWS (Feb. 1, 2012) ..........................17

Bureau of Justice Statistics, Rape Sexual

Assault Victimization Among College-Age

Females, 1995-2013, U.S. DEP’T JUST.

(Dec. 2014) ............................................................14

Carol E. Jordan et al., An Exploration of Sexual

Victimization and Academic Performance

Among College Women, 15 TRAUMA,

VIOLENCE, & ABUSE 191 (2014) ......................19, 20

iv

Catherine Hill & Elena Silva, Drawing the Line:

Sexual Harassment on Campus,

AAUW (2005) ..................................................14, 18

Catherine Hill & Holly Kearl, Crossing the Line:

Sexual Harassment at School,

AAUW (2011) ..................................................13, 20

Cecilia Mengo & Beverly M. Black, Violence

Victimization on a College Campus: Impact

on GPA and School Dropout, 18 J. OF COLLEGE

STUDENT RETENTION: RESEARCH, THEORY &

PRACTICE 234 (2015) .............................................19

Charles A. Sullivan, Tortifying Employment

Discrimination, 92 B.U. L. REV. 1431 (2012) .........9

David Cantor et al., Report on the AAU Climate

Survey on Sexual Assault and Sexual

Misconduct, WESTAT (2015) ...............................14

Erica van Roosmalen & Susan A. McDaniel,

Sexual Harassment in Academia:

A Hazard to Women’s Health,

28 WOMEN & HEALTH 33 (1998) ............... 17, 18, 20

Joseph G. Kosciw et al., The 2017 National

School Climate Survey: The Experiences of

Lesbian, Gay, Bisexual, Transgender, and

Queer Youth in Our Nation’s Schools,

GLSEN (2018) ......................................................14

Kathryn J. Holland and Lilia M. Cortina,

“It Happens to Girls All the Time”:

Examining Sexual Assault Survivors’

Reasons for Not Using Campus Supports,

59 AM. J. COMMUNITY PSYCHOL 50 (2017) ...........15

v

Lilia M. Cortina et al., Sexual Harassment and

Assault: Chilling the Climate for Women in

Academia, 22 PSYCHOLOGY OF WOMEN

QUARTERLY 419 (1998) ...................................17, 19

Marisela Huerta et al., Sex and Power in the

Academy: Modeling Sexual Harassment

in the Lives of College Women,

32 PERSONALITY AND SOCIAL PSYCHOLOGY

BULLETIN 616 (2006) ................................ 13, 14, 19

National Women’s Law Center, Let Her Learn:

Stopping School Pushout for Girls Who Have

Suffered Harassment and Sexual Violence

(Apr. 2017) ............................................................13

National Women’s Law Center, Let Her Learn:

Stopping School Pushout for Girls With

Disabilities (Apr. 2017) ........................................15

Peter Baumann, Deliberate Indifference:

How to Fix Title IX Campus Sex-Assault

Jurisprudence, 106 GEO. L. J. 1139

(Apr. 2018) ............................................................15

Sandra F. Sperino, Let’s Pretend Discrimination

is a Tort, 75 OHIO ST. L.J. 1107 (2014) ..................9

1

INTERESTS OF AMICI 1

Public Justice is a national legal advocacy

organization dedicated to protecting civil, consumer,

and workers’ rights, as well as environmental

sustainability and access to the courts. In its civil

rights program, Public Justice has long focused on

ensuring that educational institutions comply with the

Constitution and anti-discrimination laws, including

Title IX. Public Justice works to secure educational

equity and safe campuses for students through

lawsuits designed to enforce Title IX. For example,

Public Justice often represents students denied equal

educational opportunities because of gender-based

harassment or sexual violence suffered at school. In

Public Justice’s experience, holding schools accountable

under Title IX is critically important to protecting

students against discriminatory practices and to

ensuring that students can obtain their education in a

safe environment, free from sexual harassment.

The California Women’s Law Center (“CWLC”)’s

mission is to break down barriers and advance the

potential of women and girls through transformative

litigation, policy advocacy, and education. A vital part

of CWLC’s mission is fighting for women’s and girls’

access to equal educational opportunities by ensuring

that access to education is not impeded by gender

discrimination. CWLC strongly believes that young

women and girls deserve the right to an education free

from sexual harassment and violence. CWLC therefore

1 All parties have consented to the filing of this brief. Amici affirm

that no counsel for any party authored this brief in whole or in

part and that no person or entity made a monetary contribution

specifically for the preparation or submission of this brief. The

parties were notified ten days prior to the due date of this brief of

the intention to file.

2

has a strong interest in ensuring effective enforcement

of Title IX’s protections in education through

appropriate regulation and standards that advance

Title IX’s purpose of ensuring equal access to

education and educational opportunities.

Equal Rights Advocates (“ERA”) is a national civil

rights advocacy organization dedicated to protecting

and expanding economic and educational access and

opportunities for women and girls. In service of its

mission, ERA litigates class actions and other highimpact cases on issues of gender discrimination in

employment and education. ERA has a long history of

pursuing equality and justice for women and girls

under Title IX through advocacy, legislative efforts,

and litigation. ERA has served as counsel in

numerous class and individual cases involving the

interpretation of Title IX in the athletics and sexual

harassment contexts. ERA also provides advice and

counseling to hundreds of individuals each year

through a telephone advice and counseling helpline,

and has participated as amicus curiae in scores of state

and federal cases involving the interpretation and

application of procedural and substantive laws

affecting the ability of students to obtain and enforce

their equal rights under Title IX. In 2018, ERA

launched its Ending Sexual Violence in Education

Initiative, which includes the development of a

groundbreaking national pro bono network of

attorneys to assist survivors of sexual violence in

education.

Know Your IX is a survivor- and youth-led project of

Advocates for Youth that works to end gender violence

and discrimination in schools.

Know Your IX

accomplishes its mission through: educating college

and high school students in the United States about

their legal rights to a safe education free from sexual

3

harassment and violence; training, organizing, and

supporting student survivor activists in challenging

their educational institutions to address violence and

discrimination; and advocating for policy change at the

campus, state, and federal levels to ensure meaningful

systematic action to end gender violence. Know Your

IX has long worked to ensure all young people know

their rights to an education free from violence so that

no student is unfairly denied their right to learn.

The Women’s Law Project (“WLP”) is a

Pennsylvania-based nonprofit public interest legal

advocacy organization that seeks to advance the legal,

social, and economic status of all people regardless of

gender. To that end, WLP engages in impact litigation

and policy advocacy, public education, and individual

counseling. Founded in 1974, WLP prioritizes program

activities and litigation on behalf of people who are

marginalized across multiple identities and

disadvantaged by multiple systems of oppression.

Throughout its history, WLP has played a leading role

in the struggle to eliminate discrimination based on

sex, including working to end violence against women

and girls and to safeguard the legal rights of students

who experience sexual misconduct and violence in our

schools and universities. To this end, WLP engages in

public policy advocacy to improve the response of

educational institutions to sexual violence and

counsels and represents students who have been

subjected to sexual misconduct on our campuses and

in our schools.

SUMMARY OF ARGUMENT

The issue in this case is whether liability for a

school’s deliberate indifference to known sexual

harassment turns on the school’s own intentional

4

conduct, as this Court repeatedly has held, or on the

post-notice conduct of the harasser. The decision

below concluded that even if a school’s deliberate

indifference to harassment subjects a victim to

discriminatory lack of access to education, the school

cannot be held liable unless a harasser also decides to

subject the victim to yet another act of harassment.

Because this decision contravenes this Court’s

precedent, fundamental principles of tort law, and

both the language and purpose of Title IX, this Court

should grant certiorari to reverse the decision below.

Petitioners are three former students of Michigan

State University (“MSU”) who sued the university in

federal district court for violating Title IX’s mandate

of equal access to education. Petitioners alleged that

MSU’s responses to their reports of student-onstudent sexual harassment were so clearly

unreasonable that they amounted to deliberate

indifference. Because of MSU’s alleged deliberate

indifference, Petitioner Emily Kollaritsch feared for

her safety to the point that she took leaves of absence

and failed to take classes, Petitioner Jane Roe 1 felt

sufficiently unsafe on campus that she missed classes,

and Petitioner Shayna Gross stopped participating in

extracurricular activities.

Schools that receive federal funding “may be liable

for ‘subject[ing]’ their students to discrimination

where the recipient is deliberately indifferent to

known acts of student-on-student sexual harassment”

by a harasser under the school’s disciplinary

authority. Davis v. Monroe Cty. Bd. of Educ., 526 U.S.

629, 646-47 (1999). For a school to be liable for

damages, its deliberate indifference must either

“‘cause [students] to undergo’ harassment or ‘make

them liable or vulnerable’ to it.” Id. at 645 (quoting

Random House Dictionary of the English Language

5

1415 (1966)). The district court found that Petitioners

had stated a facially sufficient claim against MSU

under this standard. The Sixth Circuit reversed,

concluding that to state a claim under Davis, a victim

must also allege that the school’s deliberate

indifference caused additional post-notice harassment.

The decision below recognized that the relevant injury

here is not post-notice actionable harassment but the

lack of equal access to education. But rather than

connect the school’s action to that injury, it determined

a student may state a claim only if she also is subjected

to a separate tort: further actionable harassment by a

third party. Educational injuries caused directly by

the school’s deliberate indifference to harassment are

insufficient to state a claim.

The decision below misstates both the holding and

reasoning of Davis. It forces a Title IX analysis into

the framework of a traditional tort, and then

contravenes basic tort law. Most importantly, if

upheld, the decision below would deny innumerable

students relief to which they are entitled under Davis

and immunize schools for their own actionable

conduct. When a school has made no reasonable

response to known sexual harassment, victims are left

on their own to protect themselves, often by

withdrawing from classes and other educational

opportunities in an attempt to avoid the harasser.

Perversely, a student may escape further actionable

harassment because she has been compelled by the

school’s deliberate indifference to avoid the

educational opportunities offered by the school.

Because the decision below undermines Title IX and

upends Davis, it should be reversed.

6

ARGUMENT

I.

The Decision Below Contravenes Davis By

Eliminating The “Vulnerability” Prong And

Failing To Premise An Institution’s Liability On

Its Own Intentional Conduct.

The Sixth Circuit granted an interlocutory appeal in

this case to determine the purely legal issue of

“whether a plaintiff must plead further acts of

discrimination to allege deliberate indifference to

peer-on-peer harassment under Title IX.” Kollaritsch

v. Michigan State Univ. Bd. of Trs., 944 F.3d 613, 619

(6th Cir. 2019). But this Court’s decision in Davis v.

Monroe County Board of Education has already

answered that question in the negative, as the Tenth

Circuit stated in Farmer v. Kansas State University,

918 F.3d 1094, 1103 (10th Cir. 2019) (“Davis, then,

clearly indicates that Plaintiffs can state a viable Title

IX claim by alleging alternatively either that KSU’s

deliberate indifference to their reports of rape caused

Plaintiffs ‘“to undergo” harassment or “ma[d]e them

liable or vulnerable” to it.’” (quoting Davis, 526 U.S. at

645)).

In Davis, this Court considered whether a recipient

of federal funds’ deliberate indifference to known acts

of student-on-student harassment amounts to an

intentional violation of Title IX. Davis, 526 U.S. at

643. The Court held that it can, if the deliberate

indifference “subjects” its students to harassment,

meaning the deliberate indifference “must, at a

minimum, ‘cause [students] to undergo’ harassment or

‘make them liable or vulnerable’ to it.” Id. at 645

(quoting Random House Dictionary of the English

Language 1415 (1966)).

7

The Davis Court emphasized that “a recipient of

federal funds may be liable in damages under Title IX

only for its own misconduct. The recipient itself must

‘exclud[e] [persons] from participation in, . . . den[y]

[persons] the benefits of, or . . . subjec[t] [persons] to

discrimination under’ its ‘program[s] or activit[ies]’ in

order to be liable under Title IX.” Davis, 526 U.S. at

640-41 (emphasis added). The Court found that,

contrary to the defendants’ arguments, the plaintiff

had stated a claim because she was seeking to hold the

recipient liable not for the harasser’s conduct, but for

“its own decision to remain idle in the face of known

student-on-student harassment in its schools.” Id. at

641.

As Petitioner describes, the decision below

misapprehends Davis by ignoring the plain language

of the disjunctive “or” in its holding, which makes clear

that liability for deliberate indifference arises either if

it makes a student “liable or vulnerable” to subsequent

harassment, or if it “cause[s them] to undergo” it.

Petition at 26.

The Sixth Circuit attempts to explain away the

“vulnerability” prong rather than give Davis’s

language its plain meaning. It reasons that instead of

the natural distinction between “cause to undergo”

and “make liable or vulnerable to,” the Court was

articulating a distinction between omission and

commission—describing two alternate ways a school’s

deliberate indifference might cause a student to

undergo further harassment. But there is no basis, in

the Davis decision or logic, for this distinction. First,

as Petitioner notes, direct acts of harassment by the

fund recipient are explicitly excluded from the purview

of Davis altogether. Davis concerns sexual harassment

committed by a third party, for which a school is not

vicariously liable. Its potential liability derives from

8

its own actions in response to that harassment, not

from committing it. Davis, 526 U.S. at 640-41. If the

“cause to undergo” prong really did require an

affirmative “detrimental action” that “foment[s] or

instigat[es] further harassment,” such as the example

in Judge Thapar’s concurrence of a school sending

discriminatory emails, it would not state a Davis claim

at all. See Petition at 26-27. Second, there is nothing

in the ordinary meaning of “cause to undergo” and

“make liable or vulnerable to” that equates the former

with action and the latter with inaction. For example,

a school might be described as rendering a student

“liable or vulnerable to” harassment if it takes certain

affirmative acts, such as assigning a student to a class

taught by the teacher who has abused him. The Sixth

Circuit simply superimposed a different and unrelated

distinction over that already drawn by Davis.

Beyond misapprehending the language of the

holding, the decision below turns the very foundation

of Davis on its head. The premise of Davis is that a

fund recipient is liable “only for its own misconduct,”

which in that case consisted of “its own decision to

remain idle in the face of known student-on-student

harassment in its schools.” Davis, 526 U.S. at 640-41;

see also Gebser v. Lago Vista Indep. Sch. Dist., 524

U.S. 274, 290 (1989) (liability is premised on “an

official decision by the recipient not to remedy the

violation”). Yet the Sixth Circuit’s incorrect rule

premises a school’s liability on the further misconduct

of a separate actor: the harasser. In Farmer, the Tenth

Circuit found that an allegation of post-notice

actionable harassment was not required when a

plaintiff alleged “liability [that] stems directly from

[the school’s] own conduct, its own deliberate

indifference.” 918 F.3d at 1104 (emphasis added).

This result is mandated by Davis.

9

II.

The Decision Below Contravenes Fundamental

Tort Law Principles Of Causation By Unlinking

The Relevant Conduct From The Relevant

Injury.

Some commentators have convincingly argued that

courts should not shoehorn Title IX and other civil

rights laws into common law tort analysis. The

traditional elements of tort law may not align with

those laws’ purposes and “tortification” may foreclose

accurate, nuanced analysis of these statutes. Sandra

F. Sperino, Let’s Pretend Discrimination is a Tort, 75

OHIO ST. L.J. 1107, 1109 (2014); see also Charles A.

Sullivan, Tortifying Employment Discrimination, 92

B.U. L. REV. 1431 (2012). Regardless, assuming courts

should apply Davis in a manner that avoids violence to

basic tort law principles, the Sixth Circuit erred by

inserting the need to plead and prove a separate injury

by a separate tortfeasor into its analysis of “causation.”

The basic elements of a Title IX claim under Davis

are not in dispute: A school may be held liable when

(1) a student is subjected to severe, pervasive, and

objectively offensive harassment; (2) the school had

actual knowledge of that harassment; (3) the school

was deliberately indifferent to that harassment; and

(4) the student was deprived of access to educational

opportunities or benefits provided by the school. See

Davis, 526 U.S. at 650. Viewed in traditional tort

terms, a recipient of federal funding has a duty of nondiscrimination. 20 U.S.C. § 1681(a). Davis holds that

it breaches that duty if it is deliberately indifferent in

the face of known severe, pervasive, and objectively

offensive student-on-student harassment. Davis, 526

U.S. at 633.

Crucially, as the Sixth Circuit

acknowledges, “‘[i]njury’ in this Title IX context means

the deprivation of ‘access to the educational

10

opportunities or benefits provided by the school.’”

Kollaritsch, 944 F.3d at 622 (quoting Davis, 526 U.S.

at 650).

The correct question in a case like Petitioners’, then,

is whether the defendant’s deliberate indifference to

sexual harassment (its breach) caused the plaintiff’s

educational deprivation (her injury). There is no need

for further sexual harassment, which simply is not, as

the Sixth Circuit acknowledges, the injury in question.

Rather, “the breach of duty is causally linked to the

injury through the ‘cause to undergo’ and

‘vulnerability’ prongs.” Petition at 30; see also infra

pp. 13-21 (explaining how vulnerability to sexual

harassment

deprives

victims

of

educational

opportunities).

Eschewing this clear application of tort principles,

the Sixth Circuit inserted an additional step into the

causal link between the recipient’s breach and the

plaintiff’s injury. The court recognized, as it must,

that the relevant injury here is deprivation of access to

education. But, by its telling, this injury cannot be

“caused” by “a deliberate-indifference intentional tort

by the school.” Instead, the injury requires a separate

tort committed by a separate tortfeasor: additional

“‘actionable harassment’ by a student” post-notice.

Kollaritsch, 944 F.3d at 619-20. By unlinking the

school’s act and the plaintiff’s injury, the Sixth

Circuit’s rule contravenes traditional tort principles

and Davis, which makes clear that a fund recipient’s

liability depends on its own intentional conduct, not

third parties’. See Petition at 30-31.

In doing so, the Sixth Circuit rejected the First,

Tenth, and Eleventh Circuits’ conclusion, which reads

Davis and tort law in harmony: A school may be liable

if its deliberate indifference to known harassment

11

causes the victim’s lost access to educational

opportunities or benefits, whether or not the plaintiff

experiences additional post-notice harassment.

Petitioner Kollaritsch, for example, may not allege

additional actionable sexual harassment by John Doe

after she reported his conduct to MSU. 2 But she does

allege that the school’s clearly unreasonable response

to her complaints of harassment—including, among

other things, taking no action when John Doe violated

a “no-contact” order issued by the school—left her

exposed and vulnerable such that the school’s failure

to enforce the no-contact order effectively barred her

access to educational activities.

Kollaritsch v.

Michigan State Univ. Bd. Of Trs., 944 F.3d 613 (6th

Cir. 2019); Kollaritsch v. Michigan State Univ. Bd. Of

Trs., 298 F. Supp. 3d 1089 (S.D. Mich. 2017). This is

sufficient to state a claim under Davis.

Similarly, in Farmer, the plaintiffs adequately

alleged a pattern of deliberate indifference by the

school to allegations of rape that made them “more

vulnerable to rape because it sends a message to

fraternity members that students can rape other

students with no fear of school disciplinary action.”

918 F.3d at 1101. Because the school allowed the

alleged assailants to remain on campus, the plaintiffs

lived in a state of fear that effectively prevented them

from participating in classes or other activities. “In

short, they allege[d] that [the school] created such an

adverse environment for learning for them by its

2 Applying its new rule, the Sixth Circuit held that Kollaritsch did

not allege actionable post-notice harassment. See Kollaritsch, 944

F.3d at 624. Based on Kollaritsch’s pleadings, though, this is not

obvious; she alleged that, after she reported her assailant to

MSU, he “violated the no-contact order and began stalking,

harassing, and otherwise intimidating Kollaritsch.” Kollaritsch,

298 F. Supp. 3d at 1098.

12

dismissive treatment of their complaints of rape that

it was that environment that reasonably prevented

them from accessing the educational opportunities

available to other students.” Farmer, 918 F.3d at

1106.

Likewise, in Williams v. Board of Regents of

University System of Georgia, 477 F.3d 1282, 1298

(11th Cir. 2007), the court concluded that the plaintiff

had adequately pled deprivation to educational

opportunities. After the plaintiff reported sexual

assaults to the university that she and her assailants

attended, “the response to her complaints did nothing

to assuage her concerns of a future attack should she

return to [campus].” Id. As a result, the student

victim decided to drop out of school to protect herself

from further violence. Id. The university’s deliberate

indifference in the wake of her report, then,

undoubtedly

deprived

her

of

educational

opportunities. That her assailants had no further

opportunity to sexually assault her was no credit to the

school’s response, but rather a result of a victim’s

decision to forfeit her opportunity to learn precisely

because of the university’s deliberate indifference.

The Sixth Circuit’s erroneous decision would deprive

these plaintiffs, and all others similarly situated, of

their valid claims.

III. A School’s Deliberate Indifference To Known

Harassment Deprives Students Of Access To

Educational Opportunities Regardless Of

Actionable Post-Notice Harassment.

The Sixth Circuit misapplied the Davis standard by

determining that a school’s deliberate indifference

cannot deprive a student of equal access to education

unless the victim suffers another post-notice act of

13

actionable harassment.

But in addition to

misunderstanding the legal standard, this view is

factually wrong. The vulnerability engendered by a

school’s deliberate indifference to known sexual

harassment, including sexual assault, can preclude a

victim from access to educational opportunities. The

prevalence and severity of such educational harms in

the wake of violence make clear both the error and the

high stakes of the Sixth Circuit’s ruling.

A. Sexual Harassment In Schools Is A

Widespread Problem.

Sexual harassment is prevalent at all levels of

education. In grades seven through twelve, 56% of

girls and 40% of boys are sexually harassed in any

given school year. Catherine Hill & Holly Kearl,

Crossing the Line: Sexual Harassment at School,

AAUW 11 (2011), https://www.aauw.org/app/uploads/

2020/03/Crossing-the-Line-Sexual-Harassment-atSchool.pdf. More than one in five girls ages fourteen

to eighteen are kissed or touched without their

consent. National Women’s Law Center, Let Her

Learn: Stopping School Pushout for Girls Who Have

Suffered Harassment and Sexual Violence 1 (Apr.

2017), https://nwlc-ciw49tixgw5lbab.stackpathdns.com/

wp-content/uploads/2017/04/final_nwlc_Gates_

HarassmentViolence.pdf.

As for higher education, there is little doubt that

“sexual harassment remains a persistent problem in

academia—a chronic stressor that profoundly and

negatively affects the lives of college women” and

studies have found that “sexual harassment can affect

students’ global perceptions of their academic

experience.” Marisela Huerta et al., Sex and Power in

the Academy: Modeling Sexual Harassment in the

Lives of College Women, 32 PERSONALITY AND SOCIAL

14

PSYCHOLOGY BULLETIN 616, 618, 626 (2006). During

college, 62% of women and 61% of men experience

sexual harassment. Catherine Hill & Elena Silva,

Drawing the Line: Sexual Harassment on Campus,

AAUW 17 (2005), https://www.aauw.org/app/uploads/

2020/02/AAUW-Drawing-the-line.pdf.

College-aged

women are the most vulnerable to rape and sexual

assault.

Bureau of Justice Statistics, Rape and

Sexual Assault Victimization Among College-Age

Females, 1995-2013, U.S. DEP’T JUST. 3-4 (Dec. 2014),

https://www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf.

According to a survey conducted by the Association of

American Universities (the “AAU”) in 2015, the

incidence of sexual assault and sexual misconduct by

physical force, threats of physical force, or

incapacitation of undergraduate women was 23.1%.

David Cantor et al., Report on the AAU Climate

Survey on Sexual Assault and Sexual Misconduct,

WESTAT 13-14 (2015), https://www.aau.edu/sites/

default/files/%40%20Files/Climate%20Survey/AAU_

Campus_Climate_Survey_12_14_15.pdf.

The AAU

also found that, by senior year of college, 26.1% of

women and 29.5% of students identifying as

transgender, genderqueer, or another identification

not specified reported nonconsensual sexual contact

through completed penetration or sexual touching by

physical force or incapacitation. Id. at 23.

Historically marginalized and underrepresented

groups are more likely to experience sexual

harassment than their peers. More than half of

lesbian, gay, bisexual, transgender, or queer students

ages thirteen to twenty-one are sexually harassed at

school. Joseph G. Kosciw et al., The 2017 National

School Climate Survey: The Experiences of Lesbian,

Gay, Bisexual, Transgender, and Queer Youth in

Our Nation’s Schools, GLSEN 26 (2018),

15

https://www.glsen.org/sites/default/files/2019-12/Full

_NSCS_Report_English_2017.pdf. Nearly one in four

transgender and gender-nonconforming students are

sexually assaulted during college. Cantor, supra, at

13-14. And students with disabilities are 2.9 times

more likely than their peers to be sexually assaulted.

National Women’s Law Center, Let Her Learn:

Stopping School Pushout for Girls With Disabilities 7

(Apr.

2017),

https://nwlc.org/resources/stoppingschool-pushout-for-girls-with-disabilities.

B. Schools Can Act To Ensure Students Can

Learn In The Wake Of Sexual Harassment.

Following notice of sexual harassment, schools can

provide a range of services and accommodations “to

remediate the on-campus hostile environment that

deprives the plaintiff of educational opportunities.”

Peter Baumann, Deliberate Indifference: How to Fix

Title IX Campus Sex-Assault Jurisprudence, 106 GEO.

L. J. 1139, 1158 (Apr. 2018). Perhaps most important,

they can take steps to eliminate contact between the

student victim and harasser. If both are students, the

school can review their respective schedules to ensure

they are assigned to different classes and meal

periods. See M.D. v. Bowling Green Indep. Sch. Dist.,

No. 1:15-CV-00014-GNS-HBB, 2017 WL 390280, at *6

(W.D. Ky. Jan. 27, 2017). Administrators can also

ensure the two students do not share a dormitory. See

Kathryn J. Holland and Lilia M. Cortina, “It Happens

to Girls All the Time”: Examining Sexual Assault

Survivors’ Reasons for Not Using Campus Supports,

59 AM. J. COMMUNITY PSYCHOL 50, 52 (2017). Where

needed, schools can assign escorts to accompany

victims to ensure their safety. See S.B. ex rel. A.L. v.

Bd. of Educ. of Harford Cty., 819 F.3d 69, 77 (4th Cir.

2016). Of course, schools can also investigate the

16

incident, convene a disciplinary hearing, and, where

appropriate, impose sanctions on the harassers. See

id.; Doe v. Univ. of the Pac., No. civ S-09-764

FCD/KJN, 2010 WL 5135360, at *1 (E.D. Cal. Dec. 8,

2010). And they can institute “no-contact” orders to

prevent contact between the parties. See Pearson v.

Logan Univ., 937 F.3d 1119, 1125–26 (8th Cir. 2019),

reh’g denied (Oct. 10, 2019). 3

Courts accord schools considerable “flexibility” in

choosing exactly how to handle a sexual harassment

report. Davis, 626 U.S. at 648. A victim does not have

the right to the exact remedy of her choosing. Id. But

there is no question that, in designing a response that

is not “clearly unreasonable,” id., schools have at their

disposal a number of ways to help victims feel safe.

C. Without School Intervention, Victims’ Access

To Educational Opportunities Suffers.

When a school fails to provide reasonable

protections and accommodations in the wake of sexual

harassment, victims’ educations suffer.

This is

particularly true when a school does not take even

minimally reasonable steps to separate victims from

their assailants. Such deliberate indifference presents

students with an impossible choice: attend school and

risk further harassment, or give up classes, activities,

and other opportunities, to stay safe. Understandably,

but tragically, many victims choose the latter. As a

result, they miss opportunities to learn and their

GPAs plummet. Deliberate indifference to known

sexual harassment, then, demonstrably leads to

3 MSU provided such an order here, but Kollaritsch alleges it did

not enforce the order despite her assailant’s repeated violations.

See Petition at 6-7.

17

concrete educational injuries, regardless of whether

the victim is ever sexually harassed again.

For obvious reasons, sexual harassment victims

often fear their harassers and seek to avoid any

further contact. Lilia M. Cortina et al., Sexual

Harassment and Assault: Chilling the Climate for

Women in Academia, 22 PSYCHOLOGY OF WOMEN

QUARTERLY 419, 436 (1998); Erica van Roosmalen &

Susan A. McDaniel, Sexual Harassment in Academia:

A Hazard to Women’s Health, 28 WOMEN & HEALTH

33, 44 (1998). Survivors may find any such encounters

deeply upsetting and even terrifying, regardless of

whether the further harassment to which they are

vulnerable actually occurs. Kollaritsch’s allegations

make as much clear: Each time she came across her

assailant in their shared dormitory’s cafeteria, she

“experienced a panic attack, and was forced to leave

the building, often crying, lightheaded, and

significantly distraught.” Kollaritsch, 944 F.3d at 624;

see also Kelly v. Yale Univ., No. 3:01-CV-1591, 2003

WL 1563424, at *3-5 (D. Conn., Mar. 26, 2003) (holding

“further encounters, of any sort, between a rape victim

and her attacker” create a hostile environment for the

survivor); Anonymous, On Assault Narratives, YALE

DAILY NEWS (Feb. 1, 2012), https://yaledailynews.com/

blog/2012/02/01/anonymous-on-assault-narratives/

(describing a victim’s “dizzying nausea” when

“running into [her] assailant” at campus parties).

As explained above, schools can implement

reasonable steps to prevent or reduce the likelihood of

these encounters. But if they do not, survivors must

develop their own strategies to avoid potentially

hostile situations. See van Roosmalen & McDaniel,

supra, at 48. These often come at the cost of victims’

learning. Many skip classes or change educational

programs to avoid their harassers. Id.; see also Hill &

18

Kearl, supra, at 30. Some avoid particular buildings

or places on campus. Hill & Silva, supra, at 3.

Students harassed by professors drop out of work and

research opportunities to avoid further victimization.

van Roosmalen & McDaniel, supra, at 48.

These same patterns emerge in the Title IX cases

brought by student victims. One plaintiff in Farmer—

the Tenth Circuit opinion with which Kollaritsch

conflicts—reported her rape but the school refused to

take any action in response. “[L]iving in fear that she

would run into her attacker,” she “missed classes,

struggled in school,” and “withdrew from [school]

activities in which she had previously taken a

leadership role.” 918 F.3d at 1099-100. The other

Farmer plaintiff, another victim ignored by the school,

“only use[d] campus resources like the library when

she [was] joined by friends or her . . . sorority sisters,

and otherwise stayed home to avoid being alone in a

campus setting.” Id. at 1101. In Kelly v. Yale

University, a student victim was forced to withdraw

from her classes and consequently graduated late

when the defendant denied her repeated requests for

academic and housing accommodations that would

allow her to avoid her assailant, with whom she shared

a class and dormitory. 2003 WL 1563424, at *2.

Another student victim stopped eating lunch because

her school assigned her and the boy who had sexually

assaulted her to the same lunch period. Doe ex rel.

Doe v. Coventry Bd. of Educ., 630 F. Supp. 2d 226, 233

(D. Conn. 2009). After a high school refused to develop

a plan to separate a student from her harassers, the

victim enrolled in its alternative cyber-schooling

program, which did not offer advanced coursework

equivalent to that in which she had previously

enrolled. Goodwin v. Pennridge Sch. Dist., 389 F.

Supp. 3d 304, 319 (E.D. Pa. 2019). And Kollaritsch

19

herself avoided MSU’s dormitories and cafeteria out of

fear that she would encounter her assailant. Petition

at 25.

Other survivors drop out of school altogether to

avoid their harassers when their schools fail to provide

accommodations and protections. In Williams, for

example, the plaintiff left the University of Georgia

because the university’s response to her reported

sexual assaults gave her no faith that it would keep

her safe in the future. 477 F.3d at 1298. Similarly, in

Albiez v. Kaminski, the plaintiff withdrew from school

after her university responded in a clearly

unreasonable manner to her report of sexual assault.

No. 09-CV-1127, 2010 WL 2465502, at *6 (E.D. Wis.

June 14, 2010).

This is, unfortunately, a common story. Student

victims of sexual harassment drop out of school at

disproportionately high rates. According to one 2015

study, over one-third of sexually victimized college

students dropped out of school. Cecilia Mengo &

Beverly M. Black, Violence Victimization on a College

Campus: Impact on GPA and School Dropout, 18 J. OF

COLLEGE STUDENT RETENTION: RESEARCH, THEORY &

PRACTICE 234, 244 (2015); see also Cortina et al.,

supra, at 433 (finding female undergraduate and

graduate students who were harassed were less likely

to return to their universities than those who were not

harassed).

Victims who do remain in school experience “greater

disengagement from the academic environment, which

in turn relates to performance decline (i.e. lower

grades).” Huerta et al., supra, at 624; see also Carol

E. Jordan et al., An Exploration of Sexual

Victimization and Academic Performance Among

College Women, 15 TRAUMA, VIOLENCE, & ABUSE 191,

20

193 (2014) (identifying relationships between sexual

violence, academic disengagement, and decreased

academic performance). As explained above, sexual

harassment victims often miss classes to avoid their

assailants, see van Roosmalen & McDaniel, supra, at

48, and they often have trouble studying, see Hill &

Kearl, supra, at 30. Perhaps unsurprisingly, their

academic and extracurricular performances suffer as a

result—a prime example of a Title IX injury. See

Jennings v. Univ. of N. Carolina, 482 F.3d 686, 700

(4th Cir. 2007). One study found that women who

were sexually assaulted during their first semester of

college ended the year with lower GPAs than women

who were not sexually victimized. See Jordan et al.

supra, at 191. 14.3% of women in that study who

experienced a rape in their first semester of college

ended the year with a GPA below 2.5. Id. at 196.

This data echoes the claim of one of the Farmer

plaintiffs, whose grades “plummeted” such that “she

lost her academic scholarship.” Farmer, 918 F.3d at

1101. Kollaritsch’s GPA dropped, too, during the time

she spent at MSU afraid of further harassment.

Petition at 7. Her story, one of those at the heart of

this case, represents those of so many student victims.

***

These injuries demonstrate two things. First, they

show the significant educational injuries that student

victims may experience as a result of their schools’

deliberate indifference, regardless of whether they

face further harassment. Second, they make clear the

stakes of the question presented in this case. If the

Sixth Circuit’s rule is allowed to remain law, students

who lose their chance to learn and thrive in school as

a result of their schools’ failure to address sexual

harassment will have no remedy. Such a result is

21

contrary to Davis, which holds an institution liable for

causing precisely this injury by its deliberate

indifference.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

SEANNA R. BROWN

Counsel of Record

TRACY L. COLE

VICTORIA L. STORK

DARLEY MAW

BAKER & HOSTETLER LLP

45 Rockefeller Plaza

New York, New York 10111

ADELE P. KIMMEL

ALEXANDRA BRODSKY

PUBLIC JUSTICE

1620 L Street NW, Suite 630

Washington, DC 20036

Counsel for Amici Curiae

Dated: August 10, 2020