Amicus Curiae Brief — The Ohio State University, Petitioner v. Steve Snyder-Hill, et al.

Supreme Court briefApr 17, 2023

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No. 22-896

IN THE

Supreme Court

of the United States

__________

THE OHIO STATE UNIVERSITY,

Petitioner,

STEVE SNYDER-HILL, ET AL.,

Respondents.

__________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

__________

BRIEF AMICI CURIAE OF THE ASSOCIATION

OF AMERICAN UNIVERSITIES AND TWENTYTHREE INSTITUTIONS OF HIGHER

EDUCATION IN SUPPORT OF PETITIONER

__________

BRYAN H. BEAUMAN

STURGILL, TURNER,

BARKER & MOLONEY PLLC

333 West Vine St., Ste. 1500

Lexington, KY 40507

Counsel for Amici Curiae**

NOEL J. FRANCISCO

Counsel of Record

JONES DAY

51 Louisiana Ave., N.W.

Washington, D.C. 20001

(202) 879-3939

njfrancisco@jonesday.com

STEPHEN J. COWEN

AMANDA K. RICE

ANDREW J. CLOPTON

JONES DAY

150 W. Jefferson, Ste. 2100

Detroit, MI 48226

Counsel for Amici Curiae*

* The Association of American Universities; University of Day-

ton; Eastern Michigan University; Ferris State University;

Grand Valley State University; Iowa State University; The

Board of Regents of the University of Michigan; Michigan Technological University; Oakland University; and Saginaw Valley

State University.

** The Board of Trustees of the University of Arkansas; Bowl-

ing Green State University; Cleveland State University; University of Florida; Indiana University; University of Iowa; University of Minnesota; University of Missouri System; Purdue University; The University of Texas System; The Texas A&M University System; The Texas Tech University System; University

of Toledo; and Troy University.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ............................... 1

INTRODUCTION AND SUMMARY

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

ARGUMENT .............................................................. 5

THE SIXTH CIRCUIT’S RADICAL EXPANSION

OF TITLE IX’S IMPLIED RIGHT OF ACTION

VITIATES IMPORTANT PROTECTIONS FOR

FUNDING RECIPIENTS .......................................... 5

II.

THE SIXTH CIRCUIT’S RULING WILL HAVE

PROFOUND, NEGATIVE EFFECTS ........................ 12

CONCLUSION ......................................................... 20

TABLE OF AUTHORITIES

Page(s)

CASES

Abels v. Braithwaite,

832 F. App’x 335 (5th Cir. 2020) ......................... 10

Alexander v. Sandoval,

532 U.S. 275 (2001) ................................................ 7

Arlington Cent. Sch. Dist. Bd.

of Educ. v. Murphy,

548 U.S. 291 (2006) ................................................ 3

Barnes v. Gorman,

536 U.S. 181 (2002) ............................................ 6–8

Bd. of Regents of Univ. of State

of N.Y. v. Tomanio,

446 U.S. 478 (1980) .............................................. 15

Cannon v. Univ. of Chi.,

441 U.S. 677 (1979) .................................... 3–4, 7–8

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) .................................................. 11

Cummings v. Premier Rehab

Keller, P.L.L.C.,

142 S. Ct. 1562 (2022) .................................... 3, 5–6

Davis ex rel. LaShonda D. v. Monroe

Cnty. Bd. of Educ.,

526 U.S. 629 (1999) ................................ 3, 6, 13–14

Franklin v. Gwinnett Cnty. Pub. Schs.,

503 U.S. 60 (1992) .............................................. 7, 9

Gabelli v. SEC,

568 U.S. 442 (2013) .............................................. 15

iii

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

524 U.S. 274 (1998) .......................... 6–8, 10–11, 13

Gulino v. N.Y. State Educ. Dep’t,

460 F.3d 361 (2d Cir. 2006) ................................. 10

Hernández v. Mesa,

140 S. Ct. 735 (2020) ........................................ 8, 11

Janus Cap. Grp., Inc. v. First

Derivative Traders,

564 U.S. 135 (2011) ............................................ 3, 6

Jennings v. Univ. of N.C.,

482 F.3d 686 (4th Cir. 2007) ................................ 11

Jesner v. Arab Bank, PLC,

138 S. Ct. 1386 (2018) ............................................ 7

McDonough v. Smith,

139 S. Ct. 2149 (2019) ............................................ 5

Order of R.R. Telegraphers v. Ry.

Express Agency,

321 U.S. 342 (1944) .............................................. 15

Pennhurst State Sch. & Hosp. v.

Halderman,

451 U.S. 1 (1981) ................................................ 3, 6

Rodriguez v. United States,

480 U.S. 522 (1987) (per curiam) ........................ 11

Rotkiske v. Klemm,

140 S. Ct. 355 (2019) ........................................ 9–10

Wallace v. Kato,

549 U.S. 384 (2007) ...................................... 5, 9–10

Wood v. Carpenter,

101 U.S. 135 (1879) .............................................. 15

STATUTES

20 U.S.C. § 1681 ........................................................ 10

42 U.S.C. § 1983 ........................................................ 10

42 U.S.C. § 2000d-7 ..................................................... 9

42 U.S.C. § 2000e-5 ................................................... 10

OTHER AUTHORITIES

Zara Abrams, Title IX: 50 Years Later,

Am. Psych. Ass’n (June 28, 2022)........................ 12

Additional settlements reached in cases

involving Strauss, Ohio State News

(July 22, 2022) ...................................................... 16

Russlynn Ali, Dear Colleague Letter,

U.S. Dep’t of Educ. (Apr. 4, 2011)........................ 13

34 C.F.R. subpt. B, ch. I, pt. 106 ........................... 9, 14

34 C.F.R. § 106.8 .................................................. 18

34 C.F.R. § 106.21 ................................................ 19

34 C.F.R. § 106.31 ................................................ 19

Equal Access to Education: Forty Years

of Title IX, U.S. Dep’t of Just.

(June 23, 2012) ..................................................... 13

Rebecca Files & Michelle Liu, The

Importance of Independent Internal

Investigations, Colum. L. Sch. Blue

Sky Blog (Apr. 20, 2022) ...................................... 17

Hervé Gouriage & Elisabeth Riedmueller,

Conducting Internal Investigations

and Preserving the Attorney-Client

Privilege, 47-1 PRAC. LAW. 23 (2001) ................... 17

Samantha Harris & KC Johnson, Campus

Courts in Court: The Rise in Judicial

Involvement in Campus Sexual

Misconduct Adjudications, 22 N.Y.U.

J. LEGIS. & PUB. POL’Y 49 (2019) .......................... 13

Anemona Hartocollis, Colleges

Spending Millions to Deal with

Sexual Misconduct Complaints,

N.Y. TIMES (Mar. 29, 2016) .................................. 13

Candice Jackson, Dear Colleague Letter,

U.S. Dep’t of Educ. (Sept. 22, 2017) .................... 13

Nondiscrimination on the Basis of Sex in

Education Programs or Activities

Receiving Federal Financial Assistance,

87 Fed. Reg. 41,390 (July 12, 2022) .................... 13

OCR Investigations Database, Title IX for All ......... 13

Ohio State announces new settlement

program for survivors in remaining

Strauss cases, Ohio State News

(May 7, 2021) ........................................................ 16

Our Members, Ass’n of Am. Univ................................ 1

Press Release, The U.S. Department of

Education Releases Proposed Changes

to Title IX Regulations, Invites Public

Comment, U.S. Dep’t of Educ.

(June 23, 2022) ..................................................... 13

Emmalena K. Quesada, Innocent Kiss or

Potential Legal Nightmare: Peer

Sexual Harassment and the Standard

for School Liability Under Title IX,

83 CORNELL L. REV. 1014 (1998) ........................... 9

Antonin Scalia & Bryan A. Garner,

Reading Law (2012) ............................................. 11

Strauss Investigation, The Ohio State Univ. ........... 16

Title IX Lawsuits Database, Title IX for All ............ 13

Caryn Trombino & Markus Funk, Report of

the Independent Investigation: Sexual

Abuse Committed by Dr. Richard

Strauss at The Ohio State University,

Perkins Coie LLP (May 15, 2019) ....................... 16

Kenneth L. Wainstain & A. Joseph Jay III,

The Unique Aspects of Independent

Investigations in Higher Education,

39 AM. J. TRIAL ADVOC. 587 (2016) ................ 17–18

Barbara Winslow, The Impact of Title IX,

Gilder Lehrman Inst. of Am. History .................. 12

INTEREST OF AMICI CURIAE 1

Amici Curiae represent public and private universities from across the country. They include the Association of American Universities, which counts sixtythree of America’s leading research universities as

members. See Our Members, Ass’n of Am. Univ.,

https://bit.ly/3mDMFlj (last visited Apr. 16, 2023).

They also include twenty-three individual institutions

of higher education that receive federal funding:

• The Board of Trustees of the University of

Arkansas

• Bowling Green State University

• Cleveland State University

• University of Dayton

• Eastern Michigan University

• Ferris State University

• University of Florida

• Grand Valley State University

• Indiana University

• University of Iowa

• Iowa State University

• The Board of Regents of the University of

Michigan

• Michigan Technological University

• University of Minnesota

• University of Missouri System

• Oakland University

• Purdue University

• Saginaw Valley State University

1 No counsel for a party authored any portion of this brief or

made any monetary contribution intended to fund its preparation or submission. All parties received timely notice of this

brief.

• The University of Texas System

• The Texas A&M University System

• The Texas Tech University System

• University of Toledo

• Troy University

The scope of the implied right of action under Title

IX is an issue of immense importance to institutions

of higher education like Amici. In the decision below,

the Sixth Circuit dramatically expanded that implied

right of action by eviscerating the statute of limitations for Title IX claims and by extending Title IX

remedies to any member of the public who visits a college campus.

Let stand, the decision below will subject federal

funding recipients to near-limitless liability that far

exceeds what they agreed to under Title IX. It will

disincentivize institutions from investigating past

wrongdoing in an attempt to prevent future harms.

And, ultimately, it will divert critically important resources Title IX recipients otherwise could dedicate to

research, teaching, and student support.

Amici who are located within the Sixth Circuit will

be subject to that court’s radical approach to Title IX

absent this Court’s intervention. And Amici who are

located in other circuits have a strong interest in ensuring that the Sixth Circuit’s deeply problematic approach does not spread more broadly.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Title IX is a Spending Clause statute. See Davis ex

rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526

U.S. 629, 640 (1999). That means that institutions

that accept federal funding thereby consent to the obligations—and potential liability—the statute imposes. But funding recipients “cannot ‘knowingly accept’ the deal with the Federal Government unless

they . . . ‘clearly understand . . . the obligations’ that

. . . come along with doing so.” Cummings v. Premier

Rehab Keller, P.L.L.C., 142 S. Ct. 1562, 1570 (2022)

(quoting Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy, 548 U.S. 291, 296 (2006)). “Accordingly, if

Congress intends to impose a condition on the grant

of federal moneys, it must do so unambiguously.”

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.

1, 17 (1981). And while this Court has implied a private right of action under Title IX, Cannon v. Univ. of

Chi., 441 U.S. 677 (1979), the scope of that implied

right “must [be] give[n] ‘narrow dimensions,’” Janus

Cap. Grp., Inc. v. First Derivative Traders, 564 U.S.

135, 142 (2011)—both because Title IX is Spending

Clause legislation and because Congress did not expressly provide any right to sue at all.

The Sixth Circuit’s decision below flouts these foundational principles and deepens a circuit split. Instead of narrowly interpreting Title IX’s private right

of action, the Sixth Circuit dramatically expanded

that right of action in two different ways. First, it held

that the statute of limitations for Title IX claims does

not begin running until a plaintiff discovers not only

his injury but also the funding recipient’s deliberate

indifference to that injury. Pet.App.32a–35a. Second,

it held that the implied right of action under Title IX

extends to “virtually anyone who sets foot on campus,

no matter the reason.” Pet.App.85a (Readler, J., dissenting from denial of rehearing en banc).

The Petition and dissenting opinions below well explain why these holdings bear all the marks of

certworthiness. Amici write separately to underscore

the profound importance of these issues to federal

funding recipients and to further explain the harms

that will transpire if the decision below takes root.

Amici are deeply committed to the ideals of Title IX

and embrace the substantive obligations that come

with accepting federal funding. And they unequivocally condemn the conduct that caused devastating

harm in the case below. Amici acknowledge, moreover, that under Cannon, funding recipients are subject

to suit by injured students for a term of years (set by

state law) after those injuries occur. That, after all, is

the bargain this Court has held they struck in accepting federal funds. What funding recipients did not

agree to, however, is near-limitless liability to any

member of the public who happens to set foot on campus. The Sixth Circuit’s endorsement of that broad

rule turns this Court’s Spending Clause and impliedrights-of-action jurisprudence on its head.

It will also have far-ranging and potentially devastating financial impacts. Even as funding recipients

continually improve their policies and make meaningful strides toward sex equality in education, they face

a growing number of Title IX lawsuits. The Sixth Circuit’s decision will exponentially increase that number, as decades-old allegations and non-student theories of liability inevitably proliferate. And the costs of

that litigation threatens to put funding recipients—

most of which are State institutions funded by taxpayer dollars—in a serious fiscal bind. Even more

troubling, the Sixth Circuit’s statute-of-limitations

ruling creates perverse incentives for institutions to

avoid internal investigations to uncover misconduct.

And its extension of Title IX’s substantive obligations

to all members of the public will overwhelm Title IX

offices and redirect resources away from those whom

the statute was designed to protect.

This Court’s intervention is badly needed. It should

grant the petition, reverse the Sixth Circuit’s judgment, and restore Title IX’s implied right of action to

its proper scope.

ARGUMENT

THE SIXTH CIRCUIT’S RADICAL EXPANSION OF

TITLE IX’S IMPLIED RIGHT OF ACTION

VITIATES IMPORTANT PROTECTIONS FOR

FUNDING RECIPIENTS.

This Court has at least “twice … told courts what to

do when there is no federal statute of limitations at

all”: “appl[y] the occurrence rule.” Pet.App.52a (Guy,

J., dissenting) (citing Wallace v. Kato, 549 U.S. 384,

388–91 (2007)); McDonough v. Smith, 139 S. Ct. 2149,

2155–56 (2019)). The Sixth Circuit’s refusal to abide

that instruction would be problematic in any context.

But it is especially so in this one, where the statute in

question is Spending Clause legislation and the right

of action in question is judicially implied. The decision

below ignores that Spending Clause statutes can support liability only where they provide funding recipients clear notice. See Cummings, 142 S. Ct. at 1570.

And it construes Title IX’s implied right of action

“broad[ly],” Pet.App.25a, rather than “narrow[ly],” Janus Cap. Grp., 564 U.S. at 142. In both respects, the

Sixth Circuit vitiated important protections for funding recipients.

A. Title IX was “enacted pursuant to Congress’ authority under the Spending Clause.” Davis, 526 U.S.

at 640; see also Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274, 287 (1998). “When Congress acts pursuant to its spending power, it generates legislation

‘much in the nature of a contract: in return for federal

funds, the States agree to comply with federally imposed conditions.’” Davis, 526 U.S. at 640 (quoting

Pennhurst, 451 U.S. at 17). The statute, in other

words, “operates based on consent.” Cummings, 142

S. Ct. at 1570. As a result, Title IX suits are permissible “only if the funding recipient is on notice that, by

accepting federal funding, it exposes itself to liability

of that nature.” Id. (quoting Barnes v. Gorman, 536

U.S. 181, 187 (2002)). Courts interpreting Title IX

“thus insist that Congress speak with a clear voice,

recognizing that there can, of course, be no knowing

acceptance of the terms of the putative contract if a

[funding recipient] is unaware of the conditions imposed by the legislation or is unable to ascertain what

is expected of it.” Davis, 526 U.S. at 640 (quotation

marks and alterations omitted); id. at 686 (Kennedy,

J., dissenting) (“[A] watered-down version of the

Spending Clause clear-statement rule is no substitute

for the real protections of state and local autonomy

that our constitutional system requires.”).

Those Spending Clause principles extend not only

to a statute’s substantive reach but also to the remedies available thereunder. See Barnes, 536 U.S. at

187 (explaining that Title IX’s “contractual nature”

must inform “the scope of available remedies”).

“When Congress attaches conditions to the award of

federal funds under its spending power,” this Court

“examine[s] closely the propriety of private actions

holding the recipient liable in monetary damages for

noncompliance with the condition.” Gebser, 524 U.S.

at 287. As a result, a remedy under a Spending

Clause statute “is ‘appropriate relief’ only if the funding recipient is on notice that, by accepting federal

funding, it exposes itself to liability of that nature.”

Barnes, 536 U.S. at 187 (citation omitted).

These principles apply with additional force in the

Title IX context because Congress did not expressly

provide private remedies in Title IX at all. This Court

has all but abandoned its old practice of implying private rights of action under statutes that contain no

express right of action. See Alexander v. Sandoval,

532 U.S. 275, 287 (2001) (“Raising up causes of action

where a statute has not created them may be a proper

function for common-law courts, but not for federal

tribunals.”); id. (“Having sworn off the habit of venturing beyond Congress's intent, we will not accept respondents’ invitation to have one last drink.”); Jesner

v. Arab Bank, PLC, 138 S. Ct. 1386, 1402 (2018) (“The

Court’s recent precedents cast doubt on the authority

of courts to extend or create private causes of action

even in the realm of domestic law[.]”). But it has adhered to older precedents implying rights of action

more freely. One such precedent is Cannon, which implied a private right of action under Title IX. 441 U.S.

677.

The origin of that right in judicial implication, however, necessarily constrains its reach. See Franklin v.

Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 78 (1992)

(Scalia, J., concurring in the judgment) (Because Title

IX’s implied right “came into existence under the ancien regime,” it must be “limited by the same logic that

gave [it] birth.”); accord Gebser, 524 U.S. at 284–85.

Courts must proceed with “caution” when construing

an implied right of action, Hernández v. Mesa, 140 S.

Ct. 735, 742 (2020), and they must be especially careful when “delimit[ing] the circumstances in which a

damages remedy should lie.” Gebser, 524 U.S. at 284–

85 (declining to imply respondeat superior liability or

constructive notice principles); cf., e.g., Barnes, 536

U.S. at 188 (declining to imply a punitive damages

remedy under Title VI).

B. The Sixth Circuit did the opposite. Instead of

construing Title IX’s implied right of action narrowly,

it purported to interpret the statute in light of its

“broad remedial purpose.” Pet.App.25a. The panel

majority did not even mention the Spending Clause or

acknowledge that it was construing an implied right

of action. And it did not even pretend to claim that

funding recipients were somehow “on notice” of the

radical new rules the panel majority created. Barnes,

536 U.S. at 187.

Amici can attest from personal experience that they

were not. Amici and their peer institutions are fully

committed to preventing sexual assault and harassment on campus. And since Cannon, they have been

“on notice” that they might be subject to timely lawsuits by students injured by a violation of Title IX’s

substantive requirements. But they were certainly

not “on notice that, by accepting federal funding, [they

would] expose[] [themselves] to liability” for decadesold claims, see id., let alone for claims brought by anyone who happens to walk onto a college campus, cf.,

e.g., 34 C.F.R. subpt. B, ch. I, pt. 106 (regulating student admissions, recruitment, housing, facilities, classes, benefits, athletics, and employment). Indeed, sexual assault and harassment claims were not widely

accepted as cognizable under Title IX before the early

1990s. See Franklin, 503 U.S. at 75 (holding, for the

first time, that sexual harassment and sexual abuse

constitute sex discrimination under Title IX); Emmalena K. Quesada, Innocent Kiss or Potential Legal

Nightmare: Peer Sexual Harassment and the Standard for School Liability Under Title IX, 83 CORNELL L.

REV. 1014, 1023–26 (1998) (discussing Franklin as the

first “[r]ecogni[tion of] [s]exual [h]arassment as [s]ex

[d]iscrimination [u]nder Title IX”).

Congress itself never could have anticipated the expansive liability the Sixth Circuit endorsed, either. To

the extent Congress contemplated private rights of action under Title IX at all, it surely would have expected that the default “occurrence” rule would govern

claim accrual for such suits. After all, that “standard

rule” applies absent unambiguous statutory text to

the contrary. Wallace, 549 U.S. at 388; see also, e.g.,

Rotkiske v. Klemm, 140 S. Ct. 355, 360 (2019). And

there is zero text to the contrary here. In fact, statutory context confirms that the occurrence rule should

apply, because Congress used “occurrence” language

when it later abrogated certain immunities for claims

under Title IX. 42 U.S.C. § 2000d-7(b) (providing that

the abrogation would “take effect with respect to violations that occur in whole or in part after October 21,

1986” (emphasis added)).

If there were any doubt about what Congress would

have intended with respect to the accrual of claims under Title IX, its use of the accrual rule for charges

brought under Title VII should eliminate it. Title VII,

unlike Title IX, includes an administrative exhaustion

requirement and a private right of action. And Congress could hardly have been clearer that the “occurrence” rule applies to EEOC charges brought under

that Act. See id. § 2000e-5(e)(1) (“A charge under this

section shall be filed within one hundred and eighty

days after the alleged unlawful employment practice

occurred.” (emphasis added)); see also, e.g., Abels v.

Braithwaite, 832 F. App’x 335, 336 (5th Cir. 2020)

(“The discovery rule is inapplicable to [a] discrimination claim” under Title VII.”). This Court has refused

to read Title IX (“where Congress has not spoken on

the subject of either the right or the remedy”) more

broadly than Title VII (where Congress has spoken on

that subject). Gebser, 524 U.S. at 286 (emphasis

added) (looking to Title VII to determine whether Title IX supports respondeat superior liability). And if

the discovery rule cannot be read into a statute like

Title VII that supplies remedies, it surely cannot be

read into a statute like Title IX that merely implies

them. Cf., e.g., Rotkiske, 140 S. Ct. at 361 (no discovery rule under the FDCPA); Wallace, 549 U.S. at 388–

91 (no discovery rule under § 1983).

Nor could Congress have ever contemplated extending Title IX remedies to any “member[] of the public”

who happens to visit a college campus. Pet.App.40a.

The statute covers “discrimination under an[] education program or activity,” not discrimination full-stop.

20 U.S.C. § 1681(a) (emphasis added). And here

again, Title VII is instructive. Just as only employees

or their equivalents can sue to enforce Title VII’s antidiscrimination provision, see, e.g., Gulino v. N.Y. State

Educ. Dep’t, 460 F.3d 361, 370 (2d Cir. 2006) (requiring an “employer-employee relationship”), only those

who “participat[e] in an education program or activity” can sue to enforce Title IX’s anti-discrimination

provision, Pet. App. 107a (Readler, J., dissenting); see,

e.g., Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th

Cir. 2007) (requiring a plaintiff to allege that “she was

a student at an educational institution receiving federal funds”).

In construing Title IX’s implied right of action, the

panel’s “watchword” should have been “caution.” Hernández, 140 S. Ct. at 742. Instead, the panel threw

caution to the wind in a purported attempt to promote

Title IX’s “broad remedial purpose.” Pet.App.25a.

But the idea that “remedial statutes should be liberally construed” has long been considered a “false notion.” Antonin Scalia & Bryan A. Garner, Reading

Law 364 (2012); see, e.g., CTS Corp. v. Waldburger,

573 U.S. 1, 12 (2014) (explaining that “[t]he Court of

Appeals was in error” when it relied on the principle

“that remedial statutes should be interpreted in a liberal manner”). “[A]lmost every statute might be described as remedial in the sense that all statutes are

designed to remedy some problem.” CTS, 573 U.S. at

12. But “no legislation pursues its purposes at all

costs.” Id. (quoting Rodriguez v. United States, 480

U.S. 522, 525–26 (1987) (per curiam)). And a broad,

purpose-based construction is a particularly poor fit

for Spending Clause legislation with no express right

of action at all. See Gebser, 524 U.S. at 285–87 (finding that broad liability under Title IX would “frustrate” the statute’s purposes).

II.

THE SIXTH CIRCUIT’S RULING WILL HAVE

PROFOUND, NEGATIVE EFFECTS.

These issues are of the utmost importance to federal

funding recipients like Amici, as well as to the students they serve. The Sixth Circuit’s evisceration of

Title IX’s statute of limitations and its extension of Title IX’s remedies to the broader public will multiply

Title IX lawsuits, requiring massive expenditures of

resources by funding recipients and disrupting the

federal-state balance. Its decision to tie claim accrual

to the “discovery” of a funding recipient’s deliberate

indifference will discourage internal investigation and

reform efforts. And its endorsement of non-student

claims will increase compliance costs and divert resources from student support, research, and teaching—the very priorities embraced by Title IX and

other regulations governing institutions of higher education.

A. Title IX was “[o]ne of the great achievements of

the women’s movement.” Barbara Winslow, The Impact of Title IX, Gilder Lehrman Inst. of Am. History,

https://bit.ly/3lqK0uB (last visited Apr. 7, 2023). “The

landmark law has helped improve equity, safety, and

wellness on college campuses since its passage in

1972[.]” Zara Abrams, Title IX: 50 Years Later, Am.

Psych. Ass’n (June 28, 2022), https://bit.ly/42kTJDB.

And while there is still much work to be done to ensure sex equality on college campuses, the statute

“has improved access to educational opportunities for

millions of students, helping to ensure that no educational opportunity is denied to women on the basis of

sex and that women are granted equal opportunity to

aspire, achieve, participate in and contribute to society based on their individual talents and capacities.”

Equal Access to Education: Forty Years of Title IX,

U.S.

Dep’t

Just.

(June

23,

2012),

https://bit.ly/3FpnfOI (quotation marks omitted).

Despite that progress, universities have over time

faced a growing number of Title IX lawsuits. See, e.g.,

Samantha Harris & KC Johnson, Campus Courts in

Court: The Rise in Judicial Involvement in Campus

Sexual Misconduct Adjudications, 22 N.Y.U. J. LEGIS.

& PUB. POL’Y 49, 50 (2019); see generally Title IX Lawsuits Database, Title IX for All, https://bit.ly/3TpfIVF

(last visited Apr. 7, 2023); OCR Investigations Database, Title IX for All, https://bit.ly/3yFnLUW (last visited Apr. 7, 2023); Anemona Hartocollis, Colleges

Spending Millions to Deal with Sexual Misconduct

Complaints,

N.Y. TIMES (Mar.

29,

2016),

https://nyti.ms/3FsUh08. This Court’s decisions in

Davis, 526 U.S. 629, and Gebser, 524 U.S. 274, recognized new theories of liability based on a funding recipient’s “deliberate indifference” to harassment. And

the Department of Education’s subsequent guidance

has imposed new and ever-changing obligations on

funding recipients to investigate and combat harassment. See, e.g., Russlynn Ali, Dear Colleague Letter,

U.S. Dep’t of Educ. (Apr. 4, 2011), https://bit.ly/

3YXpfEC; Candice Jackson, Dear Colleague Letter,

U.S. Dep’t of Educ. (Sept. 22, 2017), https://bit.ly/

40aqVM7; Press Release, The U.S. Department of Education Releases Proposed Changes to Title IX Regulations, Invites Public Comment, U.S. Dep’t of Educ.

(June 23, 2022), https://bit.ly/3FuAKMN; Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 87 Fed. Reg. 41,390 (July 12, 2022) (to be codi-

fied at 34 C.F.R. pt. 106). In the wake of these developments, funding recipients have faced an ever-increasing avalanche of Title IX litigation.

The Sixth Circuit’s ruling will exponentially increase the number of these lawsuits, as decades-old

allegations and “any member of the public” theories of

liability inevitably proliferate. Amici and other funding recipients are already struggling to bear the

costs—both in dollars and in institutional resources—

of the current wave of Title IX litigation. And “[t]he

cost of defending against” these additional lawsuits

“alone could overwhelm many school[s]”—to say nothing of the “limitless liability” that could result where

suits are successful. Davis, 526 U.S. at 680–81 (Kennedy, J., dissenting); id. at 686 (recognizing that the

“suits . . . [that] follow” an expansion of Title IX will,

“in cost and number, will impose serious financial burdens on local school districts”). Indeed, “school liability in [just] one … sexual harassment suit could approach, or even exceed, the total federal funding of

many school districts.” Id. at 680.

The proliferation of these lawsuits will have federalism costs, too. See id. at 684 (explaining that Title

IX cases are fundamentally “about federalism,” and

that “[p]reserving our federal system is [both] a legitimate end in itself” and “the means to other ends”).

That is because most federal funding recipients are

state institutions funded at least in part by taxpayer

dollars. Properly applied, the interpretive principles

that govern Spending Clause legislation preserve the

delicate federal-state balance by ensuring that those

funding recipients are on notice of—and voluntarily

assume—the substantive obligations and potential liability imposed by Title IX. See supra Part I.A. But

the barrage of litigation presaged by the decision below threatens to disrupt that delicate balance and

leaves taxpayers footing the bill.

B. The Sixth Circuit’s ruling also puts funding recipients in the difficult position of having to defend

against claims involving decades-old allegations.

Statutes of limitation are fundamental to the operation of courts, “vital to the welfare of society,” and provide “security and stability to human affairs.” Wood

v. Carpenter, 101 U.S. 135, 139 (1879); accord Gabelli

v. SEC, 568 U.S. 442, 448–49 (2013). They “promote

justice by preventing surprises through the revival of

claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Order of R.R. Telegraphers

v. Ry. Express Agency, 321 U.S. 342, 348–49 (1944).

After all, “time is constantly destroying the evidence”

necessary to present an effective defense. Wood, 101

U.S. at 139. And “there comes a point at which the

delay of a plaintiff in asserting a claim is sufficiently

likely either to impair the accuracy of the fact-finding

process or to upset settled expectations that a substantive claim will be barred without respect to

whether it is meritorious.” Bd. of Regents of Univ. of

State of N.Y. v. Tomanio, 446 U.S. 478, 487 (1980).

The practical difficulties of litigating decades after

the fact are on full display in this case. Plaintiffs allege that they were abused in the 1970s, 1980s, and

1990s. See Pet.App.2a–5a. By the time they filed suit

in 2018 and 2021, the passage of time had taken its

toll. The perpetrator, Dr. Strauss, was fired in 1998

and died in 2005. See Pet.6; Pet.App.43a (Guy, J., dissenting). Staffmembers who may have been able to

testify about what happened have also passed away.

Cf. Pet.App.2a. And medical records from decades ago

no longer exist in light of standard record retention

schedules. See Pet.App.8a n.30. The intervening delay has thus profoundly compromised OSU’s ability to

understand what happened and defend itself from liability. That is particularly true given that, under the

Sixth Circuit’s rule, OSU must litigate in each case

not only the facts of the incidents at issue but also the

time at which each individual plaintiff discovered

those facts.

C. To be clear, allegations of sexual misconduct

must be taken with the utmost seriousness—even

when they surface many years after the fact. And

Plaintiffs’ allegations were certainly not taken lightly

here. OSU swiftly launched an independent investigation after a former student reported abuse. See

Caryn Trombino & Markus Funk, Report of the Independent Investigation: Sexual Abuse Committed by

Dr. Richard Strauss at The Ohio State University,

Perkins Coie LLP (May 15, 2019), https://bit.ly/

3yIhwj5. It publicly released not only the results of

that investigation but also 17,500 pages of relevant

records. See Strauss Investigation, The Ohio State

Univ., https://bit.ly/3YWWO9T (last visited Apr. 7,

2023). And it even compensated some claimants notwithstanding its strong limitations defense. See Ohio

State announces new settlement program for survivors

in remaining Strauss cases, Ohio State News (May 7,

2021), https://bit.ly/3zkuWlO; Additional settlements

reached in cases involving Strauss, Ohio State News

(July 22, 2022), https://bit.ly/3lgOnIN.

According to the Sixth Circuit, however, it was

OSU’s responsible decision to investigate allegations

of historical misconduct and share the results publicly

that exposed it to massive new liability.

See

Pet.App.32a–34a. That ruling creates perverse incentives for institutions to refrain from sharing the results of internal investigations and, indeed, from undertaking them in the first place.

Independent internal investigations are the gold

standard for institutions grappling with allegations of

past wrongdoing. Cf., e.g., Rebecca Files & Michelle

Liu, The Importance of Independent Internal Investigations, Colum. L. Sch. Blue Sky Blog (Apr. 20, 2022),

https://bit.ly/3yHAJkN (explaining that “[i]nternal investigations have become a necessity in today’s increasingly complex legal environment” and are “considered standard practice for businesses responding to

serious allegations” of misconduct). For good reason:

Internal investigations can help institutions identify

perpetrators, understand systemic shortcomings that

may have facilitated misconduct, and make policy

changes to prevent future tragedies. See Hervé

Gouriage & Elisabeth Riedmueller, Conducting Internal Investigations and Preserving the Attorney-Client

Privilege, 47-1 PRAC. LAW. 23, 24 (2001) (“If properly

conducted, internal investigations can . . . shape organizational policy for the future[.]”). And sharing the

results of those investigations with the public punishes wrongdoers, fosters healing, and facilitates participation in reform efforts by community stakeholders.

Indeed, “[w]ith the intense public interest that can

surround higher education investigations, it is often

not an option to conclude the investigation without a

public report.” Kenneth L. Wainstain & A. Joseph Jay

III, The Unique Aspects of Independent Investigations

in Higher Education, 39 AM. J. TRIAL ADVOC. 587, 594

(2016). “Though it may well be within a university’s

rights to withhold the investigative findings, it is

practically impossible to do so in light of the intense

pressure that would come from the press and [many]

constituencies.” Id. And in most contexts, that is a

good thing. Publicly releasing the results of an independent investigation can provide “the objective and

authoritative final word on the underlying controversy and give the university the opportunity to address the misconduct allegations, move beyond the

controversy, and look forward to the future.” Id.

But if the cost of these investigations is near-limitless liability, funding recipients will have to think

twice before undertaking them in the future. Title IX

should not be read to put funding recipients to that

kind of choice. And it certainly should not be read to

disincentivize responsible reform efforts.

D. Finally, the extension of Title IX obligations to

all “members of the public” who “access[] university

libraries or other resources, or attend[] campus tours,

sporting members, or other activities,” Pet.App.41a,

threatens to overwhelm Title IX offices and divert attention and resources away from the students Title IX

was designed to protect. Title IX and associated regulations impose numerous reporting, investigative,

procedural, and remedial obligations on funding recipients. See, e.g., 34 C.F.R. § 106.8. As an initial matter, it is difficult to imagine how a funding recipient

could possibly fulfill those obligations with respect to

virtually “anyone who has ever stepped foot on school

grounds.” Pet.App.107a (Readler, J., dissenting from

denial of rehearing en banc). But even assuming that

were theoretically possible, funding recipients do not

have limitless resources. And the up-front compliance

costs of an “any member of the public” Title IX regime

would necessarily divert resources from the students

Title IX was designed to protect. See, e.g., 34 C.F.R.

§ 106.31(b) (prohibiting discrimination “in providing

any aid, benefit, or service to a student” (emphasis

added)); id. § 106.21(b) (prohibiting discrimination

with respect to applications).

The potential consequences of the decision below for

funding recipients and their students are staggering.

With a new school year approaching and funding recipients already grappling with the implications of the

Sixth Circuit’s new rule, this Court’s review is urgently needed.

CONCLUSION

The Court should grant the petition for certiorari

and reverse the decision below.

April 17, 2023

Respectfully submitted,

BRYAN H. BEAUMAN

STURGILL, TURNER,

BARKER & MOLONEY PLLC

333 West Vine St., Ste. 1500

Lexington, KY 40507

NOEL J. FRANCISCO

Counsel of Record

JONES DAY

51 Louisiana Ave., N.W.

Washington, D.C. 20001

(202) 879-3939

njfrancisco@jonesday.com

Counsel for Amici Curiae**

STEPHEN J. COWEN

AMANDA K. RICE

ANDREW J. CLOPTON

JONES DAY

150 W. Jefferson, Ste. 2100

Detroit, MI 48226

Counsel for Amici Curiae*

* The Association of American Universities; University of Dayton; Eastern Michigan University; Ferris State University;

Grand Valley State University; Iowa State University; The

Board of Regents of the University of Michigan; Michigan Technological University; Oakland University; and Saginaw Valley

State University.

** The Board of Trustees of the University of Arkansas; Bowl-

of Toledo; and Troy University.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.