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Court Rules Colleges Can Be Held Liable For Gender Discrimination If An Accused Student Isn’t Removed From Campus
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A recent ruling from the Sixth Circuit Court of Appeals has drastic consequences for students accused of sexual assault, putting a fear in colleges that if they don’t suspend or expel an accused student, they could be held liable for anything that student may or may not do in the future.

Criminal Defense attorney Scott Greenfield explains what happened. A female student at the University of Michigan (UM) said she was sexually harassed by a fellow male classmate in the university’s Michigan Ross School of Business executive MBA program in Los Angeles, California. UM instituted a no-contact and no-retaliation order against the accused student while it investigated the woman’s complaint. The woman later sued the university, arguing that it didn’t adequately respond to the accused student breaking those orders. For the record, the accused student in this case blocked the accuser in doorways, texted her, wrote threats on Facebook and detailed her Title IX allegations in emails to fellow students. When the accuser told the school about these incidents, UM banned the accused student from a class and didn’t allow him to attend commencement events. He was eventually arrested for showing up at a commencement event anyway.

The Sixth Circuit ruled that UM’s remedies for the accused student’s continued harassment of the accuser were not enough to say the school wasn’t “deliberately indifferent.”

“In other words,” Greenfield wrote, “even though the school took deliberate action, it could still be liable for deliberate indifference if the court, in retrospect, deemed the action inadequate.”

Greenfield pointed to another ruling from a different panel of the Sixth Circuit that made clear that the mere presence of an accused student on campus was not enough for an accuser to sue the school and claim they created a hostile environment. This new ruling, even though it involves an accused student that continued to harass a female student, will have consequences for all accused students going forward, even those who likely didn’t commit the underlying assault and who followed the no-contact order. Greenfield explained:

What’s a college to do? As much as Judge Batchelder’s opinion concluded that the mere sight of an accused male student didn’t constitute harassment, such that the university was under no duty to suspend or expel every male accused lest it be liable under Title IX if the female student complained, the liability is contingent not on the university’s deliberate response to the complaint, but hinges on the male student’s compliance, the female student’s subjective satisfaction with the remedy and, of course, the validity of the subsequent complaints that the male student continued to engage in conduct that the female student felt was harassment.

The only safe way for a college to avoid Title IX liability, then, is to suspend or expel the male student, since they can’t be positive that the male student left on campus won’t engage in conduct that either is, or could be deemed, harassment. Indeed, even if the male student tries his best to comply with the school’s directives, there is no assurance that the students won’t cross paths at times, particularly when they’re both in the same educational program. And there is never an assurance that the sensitivity of the accuser won’t give rise to exaggerated claims of trauma and suffering by otherwise benign and harmless action.

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