Amicus Curiae Brief — Melissa Ing, Petitioner v. Tufts University

NO. 23-1115

In the

Supreme Court of the United States

MELISSA E. ING,

Petitioner,

v.

TUFTS UNIVERSITY,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit

BRIEF OF AMICUS CURIAE

COALITION AGAINST ACADEMIC ABUSE

IN SUPPORT OF PETITIONER

D. James Morgado, Esq.

Counsel of Record

CROSLAND LAW GROUP LLC

1200 Summer St, Ste 202

Stamford, CT 06905

(203) 921-1782

djm@croslandlaw.com

May 8, 2024

SUPREME COURT PRESS

Counsel for Amicus Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICUS CURIAE ................... 1

SUMMARY OF ARGUMENT .................................... 4

ARGUMENT ............................................................... 4

I.

The Standard for Causation Under Title

IX Claims Needs Clarification. ........................ 4

II. Stopping Academic Harassment ..................... 8

CONCLUSION.......................................................... 11

ii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Davis v. Monroe County Board of Education,

526 U.S. 629 (1999) ......................................... 5, 6

Farmer v. Kan. State Univ.,

918 F.3d 1094 (10th Cir. 2019) ........................... 6

Fitzgerald v. Barnstable Sch. Comm.,

504 F.3d 165 (1st Cir. 2007) ................................ 6

Jackson v. Birmingham Board of Education,

544 U.S. 167 (2005) ............................................. 7

Jane Does 1-12 v. Liberty University Inc.,

Case No. 2:21-cv-03964 (2021) ............................ 9

K.T. v. Culver-Stockton Coll.,

865 F.3d 1054 (8th Cir. 2017) ............................. 6

Kollaritsch v. Mich. St. Univ. Bd. of Trs.,

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

Reese v. Jefferson Sch. Dist. No.14J,

208 F.3d 736 (9th Cir. 2000) ............................... 6

Williams v. Bd. of Regents of Univ. Sys. of Ga.,

477 F.3d 1282 (11th Cir. 2007) ........................... 6

STATUTES

20 U.S.C. § 1681, Title IX Education

Amendments of 1972 ......................... 4, 5, 6, 7, 10

26 U.S.C. § 501(c)(3) ................................................... 3

JUDICIAL RULES

Sup. Ct. R. 37.6 ........................................................... 1

iii

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Brown, S. and Mangan, K.

Pass the Harasser Is Higher Ed’s WorstKept Secret. How Can Colleges Stop Doing

It?, THE CHRONICLE OF HIGHER

EDUCATION (2019).............................................. 10

Washington House Democrats,

“Stop Pass the Harasser.”,

https://housedemocrats.wagov/pollet/2023/

06/26/39743/ ....................................................... 10

Young, S. and Wiley, K.,

Ending Faculty Sexual Misconduct in

Academia: An Open Letter From Women

of Public Affairs Education,

ADMINISTRATION & SOCIETY, 53(4) (2021)........... 9

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INTEREST OF THE AMICUS CURIAE1

The Amicus Curiae, the COALITION AGAINST

ACADEMIC ABUSE is a group of individuals and

organizations dedicated to creating employment policy

change across academia and advocating for men’s

and women’s rights to be free of sexual harassment,

retaliation and discrimination in the workplace. The

individuals and organizations associated with it are

keenly aware of the issues facing employees at colleges

and universities across the country. A complete listing

of Coalition members is presented in the Appendix.

Here, we provide a description of three of its members.

REPRESENTATIVE GERRY POLLET, J.D., has represented the 46th District in the Washington State House

of Representatives since December 2011. Gerry currently serves on the House Postsecondary Education,

Education, Appropriations and Rules Committees, and

1 Per Sup. Ct. R. 37.6, no counsel for a party authored this brief

in whole or in part, and no person other than the amicus curiae,

its members, or its counsel made a monetary contribution

intended to fund the preparation or submission of this brief.

The original docketing statement listed the Response due date

as May 15, 2024. On April 30, 2024 Amicus Curiae notified both

Petitioner Ing and Respondent Tufts as well as Supreme Court

Deputy Clerk Laurie Wood of its intent to file an amicus brief.

This is greated than the 10-days notice required by Sup. Ct. R.

37.6. Tufts filed a waiver of response on April 17, 2024 and the

case was distributed for Conference for May 9th, 2024. Amicus

request expedited distribution of the brief and is also informed

by Petitioner that she has requested that the Conference be

rescheduled to allow the Court more time to consider this brief.

Clerk Laurie Wood has suggested to document on the brief the

date we gave notice to Tufts, which is April 30, 2024.

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is the House Democratic lead on the Joint Legislative

Audit and Review Committee. Much of Gerry’s legislative work prioritizes education and higher education,

reflected in his teaching currently serving on the

faculty of the University of Washington School of Public

Health and Western Washington University College

of Environment and urban Planning. He has previously

been an Adjunct Professor of Law at Seattle University

School of Law and served on the faculty of the UW

Evans School of Public Policy and Governance. Gerry

is one of Washington State’s three Commissioners

on the Western Interstate Commission on Higher

Education (since 2016). Gerry’s notable legislative

accomplishments include: developing and passing the

first in nation legislation to end sexual harassment

“pass the harasser” practices in higher education;

groundbreaking legislation increasing access to higher

education opportunities, including for graduate

students. He has been honored as Legislator of the

Year from Washington Student Association (twice)

(higher education); and University of Washington

Graduate and Professional Student Senate. His work

on ending sexual harassment and misconduct in higher

education has been highlighted in numerous higher

education forums, including the National Academy of

Sciences, Engineering and Medicine (NASEM) forum

and reports on addressing sexual harassment in higher

education.

LIFT OUR VOICES, based in New York City, is a

movement dedicated to eradicating silencing mechanisms and transforming toxic workplaces through

education, advocacy, and legislative change. Lift Our

Voices resolve made possible the 2022 Ending Forced

Arbitration of Sexual Assault and Sexual Harassment

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Act and the Speak Out Act, which passed with overwhelming and rare bipartisan support.

COURAGEOUS SURVIVORS INC., an Arizona-based

501(c)(3) nonprofit organization, functions as a support

organization for adult survivors of sexual abuse and

sexual assault. Courageous Survivors supports adult

survivors of sexual trauma on their path to happiness,

empowering them by connecting survivors with others

who understand; offering helpful resources; and providing effective support groups. Courageous Survivors,

Inc. exists because of the pervasive sexual abuses that

take place across every part of our society. In its view,

Dr. Melissa Ing’s situation is unfortunately too common

—for survivors of all forms of sexual assault, their

abuse is often left unvalidated when families and institutions fail to support them and often demand ‘proof’

of the abuse which, by its nature, comes down to the

survivors word against the abuser’s. Survivors of sexual

trauma often convince themselves that they are, in fact,

to blame for the abuse and this prevents many seeking

the support and validation that are the keystones to

recovering from the abuse and the subsequent emotional problems that arise from it. Courageous Survivors

provides the ability for survivors to connect with each

other, who have had similar experiences and can relate

to the stigma and lack of validation from their families

and institutions.

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SUMMARY OF ARGUMENT

Title IX of the Education Amendments of 1972

prohibits discrimination and retaliation based on sex

in any federally funded education program. See, 20

U.S.C. § 1681. There is no clear standard of causation

for adjudicating such claims. The lower courts are

confused, and the circuits are split. This Court should

find that protected conduct like reporting sexual harassment need only be a motivating factor and hold a school

liable if the protected person is now more vulnerable

to further sexual harassment by a school’s actions or

inactions. By doing so it will help put an end to a

national problem of sexual misconduct which proliferates at the university level.

ARGUMENT

I.

The Standard for Causation Under Title IX

Claims Needs Clarification.

This Court should grant writ of certiorari because

Petitioner’s case presents novel legal issues that

have not been definitively addressed by this Court

before, primarily, in the context of a retaliation claims,

and specifically what standard under Title IX should

be applied when judging whether a causal connection

exists between protected conducted and an adverse

action.

Here the District of Massachusetts acknowledged

this unsettled area of law. As it said, on page 17 of

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its October 13, 2022, opinion: “[u]nder Title VII and

chapter 151B, the court as a rule applies a but for

standard of causation, while the standard under Title

IX is undecided.” (emphasis added). See, Ing. v. Tufts

University, Case No. 21-CV-10032 Dkt. # 54, pg. 17.

Courts are currently looking at various factors

and precedents to determine the appropriate standard

of causation in Title IX retaliation claims. Clarity and

guidance from this Court are needed. Indeed, some

courts have applied a “motivating factor” standard,

similar to Title VII, where the protected conduct need

only be one of the motivating factors behind the

adverse action. Others have applied a stricter “but-for”

standard akin to tort law, requiring that the adverse

action would not have occurred “but for” the protected

conduct.

In fact, this Court has also entertained different

standards and multiple factors when considering

Title IX retaliation claims. For example, in Davis v.

Monroe County Board of Education, in 1999, this Court

considered a Title IX retaliation claim. Although the

Court did not explicitly use the term “motivating

factor,” it held that a plaintiff bringing a private

cause of action for retaliation under Title IX need only

show that the retaliation was a foreseeable response

to the protected activity. See, Davis v. Monroe County

Board of Education, 526 U.S. 629 (1999) This standard

is less stringent than the “but-for” causation standard

and aligns more with a motivating factor analysis.

The Court emphasized that the retaliation must be

of such a nature that it would likely deter a person of

ordinary firmness from further exercising her constitutional rights.

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Indeed, the Davis Court went out to explain that

to be liable for damages under a Title IX private right

of action, the school may act with deliberate indifference

that either “cause[s] students to undergo harassment”

or “make[s] them liable or vulnerable to it.” Davis v.

Monroe County Board of Education, 526 U.S. 629, 645

(1999).

Davis’ causation analysis applies upon a showing

that the school had actual knowledge of actionable

sexual harassment and its response was deliberately

indifferent (“clearly unreasonable in light of the known

circumstances”). Id. at 648, 650.

Interpreting Davis, federal circuits have split on

what impact of such deliberate indifference must be

shown to support the Title IX claim. The First, Tenth,

and Eleventh Circuits have held that a school is liable

under Davis if its deliberate indifference causes either

further sexual harassment or vulnerability to further

sexual harassment. Farmer v. Kan. State Univ., 918

F.3d 1094, 1103, 1106 (10th Cir. 2019); Fitzgerald v.

Barnstable Sch. Comm., 504 F.3d 165, 171 (1st Cir.

2007), rev’d and remanded on other grounds, 555 U.S.

246 (2009); Williams v. Bd. of Regents of Univ. Sys. of

Ga., 477 F.3d 1282, 1295-97 (11th Cir. 2007).

By contrast, the Sixth, Eighth, and Ninth Circuits

have held that a school is liable under Davis if its

deliberate indifference causes further sexual harassment. Kollaritsch v. Mich. St. Univ. Bd. of Trs., 944

F.3d 613, 620-23 (6th Cir. 2019), cert. denied., 141

S.Ct. 554 (2020); K.T. v. Culver-Stockton Coll., 865

F.3d 1054, 1058 (8th Cir. 2017); Reese v. Jefferson

Sch. Dist. No.14J, 208 F.3d 736, 740 (9th Cir. 2000).

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Comparing this to the Court’s decision in 2005,

in Jackson v. Birmingham Board of Education, where

the Court was addressing Title IX’s applicability to

retaliation for complaints of sex discrimination, it also

touched upon the causation standard, but this time,

the Court suggested that a plaintiff need only establish

that the alleged retaliation be a substantial or motivating factor behind the adverse action. Jackson v.

Birmingham Board of Education, 544 U.S. 167 (2005)

The District of Massachusetts rightful admission

that “the standard under Title IX is undecided”

which the First Circuit Court of Appeals agreed with

has led to divergent rulings and results. This Court

should settle the questions, eradicate the ambiguity,

and decide the split among the circuits, and it should

do so by accepting this case.

Here, the record demonstrates that on December

13, 2018, Dr. Ing first met with Dr. Zandona. See,

Ing. v. Tufts University, Case No. 21-CV-10032 Dkt.

#54, pg. 7 During this meeting Ing put Dr. Zandona on

notice that she had filed a sexual harassment

complaint against Vanaria. Id. Only “27 days after”

Ing learned that Dr. Zandona would not be supporting

her for promotion. Id. More specifically, Dr. Zandona

told Dr. Ing that reapplying is her only option because

“I most likely am not going to promote you.” Id. Dr.

Ing also wrote an email confirming this statement. Id.

Buttressing her claim that this denial and promotion

were retaliatory are Dr. Zandona’s comments on March

21, 2019, where she asked Dr. Ing how often she was

attending sexual harassment therapy and that

instructing her that she needs to go more often. Id.

The foregoing clearly demonstrates Dr. Ing’s sexual

harassment complaint was at least a motivating factor

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in Dr. Zandona’s, and by extension, Tufts’ decision not

to promote her, despite Dr. Ing’s national and international status, superseding promotion requirements,

winning the national teaching award in dentistry, and

multiple other nominations/awards, holding national

leadership positions, conducting over 18 research

projects, and being a prolific publisher/presenter/

scholar.

Said plainly, Dr. Zandona was motivated, at least

in substantial part, by her knowledge that Dr. Ing

had filed a sexual harassment claim against a fellow

faculty member. This motivation could be felt in her

telling Dr. Ing she should go take more sexual harassment therapy. Furthermore, Dr. Zandona insisted

Dr. Ing attend public sexual misconduct classes. Dr.

Ing sought advice from her physician who requested

that Tufts reconsider providing Dr. Ing alternative,

private training, given the sexual abuse trauma and

anxiety she was subjected to. Dr. Zandona’s actions,

in conjunction with and in context with the timing of

knowledge of the sexual harassment claim and harsh

words are retaliatory and would likely cause any

similarly situated person to think they were being

retaliated against and cause anyone to think twice

about ever applying for a promotion again. But at the

very least, the decision should be made by a jury, and

not appropriate for dismissal by a judge on summary

judgement, especially given the acknowledged

undecided standard under Title IX retaliation claims.

II. Stopping Academic Harassment

Serial sexual misconduct proliferates at the university level due to hierarchical power imbalances,

vulnerable nature of student/professor dynamics, and

because institutions safeguard both perpetrators and

9

reputations. See, e.g., Jane Does 1-12 v. Liberty

University Inc. 2:21-cv-03964 (2021). See also, Young,

S. and Wiley, K., Ending Faculty Sexual Misconduct

in Academia: An Open Letter From Women of Public

Affairs Education, ADMINISTRATION & SOCIETY, 53(4),

491-495 (2021).

This case was no different. Indeed, a closer look

at the facts and materials submitted in the appendix

will reveal that Tufts University concealed multiple

anonymous student and faculty complaints received

about Vanaria’s sexually inappropriate and predatory

behavior. In fact, Tufts Human Resources, Office of

Equal Opportunity (OEO), Dr. Ing’s supervisors,

chairwoman, and administrators tried to intimidate

and belittle her. They accused Ing of lying and let the

conduct persist, even rehiring Vanaria. Ultimately their

actions and inactions created a hostile environment

where Dr. Ing experienced discrimination and retaliation. Dr. Ing was not promoted because she made a

sexual harassment complaint and the school’s decision

to deny her promotions over and over where at least

motivated by her having filed said complaints of

sexual harassment. All the while the OEO and

administration received multiple other faculty and

student complaints from students about Dr. Vanaria

and sexually inappropriate behavior.

Multiple complaints against Vanaria resulted in

an OEO investigation. Yet, no meaningful steps were

taken to stop the hostile work environment against

Dr. Ing, and never an apology.

Similar fact patterns happen all around the

country. Sexual academic predators quietly retire,

go on sabbatical, or transfer from one institution to

another school, one building to another, often

10

negotiating secretive NDAs and confidential monetary

settlements. This Court has an opportunity to help stop

predatory professors, deans, and other administrators

that are not disciplined nor required to disclose their

sexual misdeeds by clarifying the standard of causation

for adjudicating Title IX claims.

This nationwide serial harassing behavior is so

common that it is coined “Pass the Harasser.” Indeed,

it creates cycles of sexual abuse, transfer/dismissal,

rehire, regardless of Title IX law and is called “higher

education’s worst kept secret.” See, Brown, S. and

Mangan, K. Pass the Harasser Is Higher Ed’s WorstKept Secret. How Can Colleges Stop Doing It?, THE

CHRONICLE OF HIGHER EDUCATION (2019)

In 2020, State Representative Gerry Pollet (WAD) sponsored the first law in the nation “Stop Pass the

Harasser.” See, https://housedemocrats.wagov/pollet/

2023/06/26/39743/.

Washington is the first State to enact Stop Pass

the Harasser into law, mandating higher education

institutions to file substantiated sexual misconduct,

retaliation, discrimination findings on employees’

personnel file.

Washington’s law prohibits confidentiality agreements, including NDAs and protective orders, (such as

the silencing protective order that Dr. Ing is forced

under). Silencing orders prevent sexual abuse, retaliation, and discrimination. Lifting the cloak of secrecy,

revealing transparency, allowing public awareness, are

vital to stop academic sexual violence.

This spring the state of California is poised to

pass similar Stop Pass the Harasser legislation. The

hope is that the nation will soon achieve federal

11

reciprocity with it, thereby stopping predatory faculty

from transversing to other schools, finally safeguarding

our students and staff.

CONCLUSION

For the foregoing reasons, the judgment below

should be overturned, the standard for causation should

clarified, and remanded for further consideration.

Respectfully submitted,

D. James Morgado, Esq.

Counsel of Record

CROSLAND LAW GROUP LLC

1200 Summer St, Ste 202

Stamford, CT 06905

(203) 921-1782

djm@croslandlaw.com

Counsel for Amicus Curiae

May 8, 2024

12

APPENDIX TABLE OF CONTENTS

List of Amicus Curiae Members ............................... 1a

App.1a

LIST OF AMICUS CURIAE MEMBERS

● Representative Gerry Pollet, Washington House

of Representatives District 46;

Clinical Instructor, University of Washington,

School of Public Health;

Commissioner, Western Interstate Commission on

Higher Education

● Legal Advocates for Washington 510(c)(3)

● Lift Our Voices, New York City, NY

● Courageous Survivors, Scottsdale, AZ

● Coalition Against Academic Abuse, MA

● Cadeau Boston LLC, Brookline, MA

● Chau Sim Chan, Inc., NY

● Dr. Andrei Barnashe, MDSc., MA

Retired Assoc. Professor,

Harvard University School of Dental Medicine

● Dr. Ronald Birmingham

Private Practice; President University of

Connecticut Alumni Association

● Ms. Amanda Blynn, Brookline, MA

● Ms. Linda and Mr. Gary Ginter, CT

● Dr. Sara Gordon, M.S.

Associate Dean, University of Washington School

of Dentistry, WA

● Dr. Michael Goupil, M. Ed, MBA

Emeritus Faculty, Former Associate Dean,

University of Connecticut, School of Dental

Medicine, IN

2

● Dr. Nika Grigatis, M.S.

Private Practice, CT

● Dr. Julie Hanson

Private Practice, Shrewsbury, MA

● Dr. Chandra Iyer

Prosthodontic Practitioner, Santa Rosa VA, CA

● Mr. Raj Iyer, Santa Rosa, CA

● Dr. Kevin Kalanta

Licensing Dental Board Examiner,

CDCA-WREB-CITA., HI

● Dr. James Kaim

Retired Professor, New York University College of

Dentistry, NY

● Dr. Paul Longo, Lackland, TX

Department Chair, United States Air Force

Graduate Prosthodontics Residency, JBSA● Dr. Jonathan Meiers, MS

Former Chief, Connecticut VA

● Dr. Dawn Mikaitis

Private Practice, CT

● Lynn Douglas Mouden, Kansas, MO

DDS, MPH, FICD, FACD Former Chief Dental

Officer, Centers for Medicare/Medicaid Services,

US Department of Health and Human Services

● Caroline Mrozla-Toscano, PhD

Trauma-Informed Higher Ed Specialist, MN

● Dr. Frank Nichols

Professor, University of Connecticut School of

Dental Medicine, CT

● Nancy Nichols, MS, CT

● Mrs. Kate Schweitzer, Glastonbury, CT