6th Circuit Returns Title IX To Its Davis Root (Updated)
You might have read about the Supreme Court’s decision in Davis v. Monroe County Board of Education. It’s been discussed here numerous times. But it’s never mentioned in anything written by a Title IX activist group or article about “survivors” or the rape epidemic on campus. No college dean ever refers to it, although the lawyers for universities know it very well when their school is sued by an alleged victim.
The reason for this is plain: the law from which the Title IX campus sex industry was born fails to support its existence and, by its explicit words, contradicts the existence of the unlawful scheme forced upon colleges by the bureaucrats in control of the Department of Education’s Office of Civil Rights in their “Dear Colleague Letters.”
They desperately want to push their bastardization of the law, purported “guidance” with denial of federal funding as the club to beat schools into submission, even though it never went through the regulatory process required by the Administrative Procedures Act and was created out of whole cloth to push and normalize a radical anti-male sexual agenda. And over time, Davis was ignored and forgotten.
Sixth Circuit Judge Alice Batchelder, however, remembers.
A victim of “student-on-student sexual harassment” has a private cause of action against the school under Title IX of the Education Amendments of 1972 (Title IX), 86 Stat. 373, codified as 20 U.S.C. § 1681, et seq., based on the formula first set out in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Under that formula, the sexual harassment must meet a certain standard and the evidence must satisfy the elements for an intentional tort. Our particular focus in this appeal is on the requirements that the harassment must be “pervasive” and the school’s response must “cause” the injury.
Title IX does not prohibit peer-on-peer sexual harassment. Note the words “sexual harassment,” as it has nothing to do with rape or sexual assault, per se, but only to the extent those words related to sexual harassment. Rather, Title IX relates only to the school’s duty not to discriminate on the basis of sex. It can’t refuse to field a women’s fencing team if it has a men’s team, as that would be discriminatory. But nothing in the law has ever required a college to become intimately embroiled in the ordinary student-on-student interactions and relationships.
In Davis, the Supreme Court laid it out in a clear test.
It is not necessary to show an overt, physical deprivation of access to school resources to make out a damages claim for sexual harassment under Title IX, but a plaintiff must show harassment that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities. (Emphasis added.)
Notably, these three prongs, set forth in the conjunctive, appeared nowhere in the DCL. Catherine Lhamon, then head of the OCR, decided that she, an unelected bureaucrat, got to make up her own test, unbound by the Supreme Court, whose test was too stringent for her tastes.
This not only gave rise to colleges creating policies and procedures the law neither required nor sanctioned, but created a false belief in the entitlement of female students to have Big Brother oversee their every sexual encounter and punish male students when, and whenever, they felt it wasn’t to their satisfaction. Nothing in Davis gave rise to this “right” of female students to demand colleges vindicate their sexual choices and feelings with other students. Yet, it’s taken for granted that women can turn to their school to punish any male against whom they raise a grievance.
But what if the harassment complained of is as bad as the Davis test requires?
In short, we hold that a student-victim plaintiff must plead, and ultimately prove, that the school had actual knowledge of actionable sexual harassment and that the school’s deliberate indifference to it resulted in further actionable sexual harassment against the student-victim, which caused the Title IX injuries.
This is a critical aspect of a university’s duty, that assuming the harassment rose to the level that implicated any Title IX duty at all, it was not the one-time act of sex which was subsequently regretted, but only sexual harassment that occurred afterward, after the student-on-student encounter, after the school was alerted and after the school was “deliberately indifferent” to that particular accuser’s complaint.
In other words, unless there was substantive reason to believe that a student would persist in “severe, pervasive and objectively offensive” conduct after the university was alerted to a complaint, and then was deliberately indifferent, Title IX wasn’t implicated at all. The vast majority of Title IX complaints fail to meet the stringent criteria for sexual harassment, and almost none of them involve conduct that went beyond a one-time sexual encounter.
In other words, there was no on-going conduct to address and nothing more than “don’t do it again” needed to satisfy the deliberate indifference prong. Expelling male students for sex where a woman enthusiastically consented to, if not initiated, sex when she was moderately drunk (though not incapacitated) finds no justification in the law whatsoever. This was never a requirement of Title IX. Not even close.
A student-victim’s subjective dissatisfaction with the school’s response is immaterial to whether the school’s response caused the claimed Title IX violation. Because none of the plaintiffs in this case suffered any actionable sexual harassment after the school’s response, they did not suffer “pervasive” sexual harassment as set out in Davis and they cannot meet the causation element.
Colleges have long hidden behind the DCL from OCR as justification for destroying the lives of male students in order to “fulfill” their duties under the law. As the Sixth Circuit holds, this is a lie, a falsehood perpetuated by “survivor” activists and their friends in media, who have created a mythology on campus of entitlement to punishment of males for sexual encounters between students.
It’s not the law. It was never the law. And schools’ claims that the law required them to manufacture procedures to protect their female students and ruin their male students has no greater basis in law than did Lhamon’s Dear Colleague Letter.
Update: At Inside Higher Ed, Title IX activist Laura Dunn is not happy with the decision.
“What judges should keep in mind is that it’s a choice,” Dunn said. “There’s an ability to interpret the law and you have to decide what perspective you’re coming from. A lot of conservative ones think, ‘We’re going to be close to the law.’ I really suggest you think about the effect on social issues … That’s a horrible ruling and a horrible reality to subject victims to. This judge has no understanding beyond the law of how her words will impact survivors.”
But there’s more:
“Sexual assault does not need to be pervasive — it can happen once and that’s enough,” Dunn said. “You’re not only narrowing the law, you’re pretty flagrantly narrowing it so far to render it almost useless.”
Except the Supreme Court held that if it’s not “pervasive,” Title IX doesn’t apply, and as of this point in time, Dunn has no vote on SCOTUS. Rarely has anyone so clearly argued that their position is wholly unsupported by law, but they want courts to ignore the law and rule to achieve their preferred social policy.
