“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Sixth Circuit judges Amul Thapar, John Bush, Joan Larsen, and John Nalbandian cast deciding votes in an 8-6 ruling that, contrary to an earlier 3-judge panel decision in the case, affirmed a grant of summary judgment against a female student at the University of Michigan who contended that the University had not appropriately responded to sexual harassment of her by another student. The December 2020 decision is Foster v Board of Regents.
Rebecca Foster was a student at an executive MBA program run by the University of Michigan in Los Angeles, in which a group of 40 students attended classes three days a month at a hotel, in addition to other work. In response to a complaint from Foster that a male student was sexually harassing her, including grabbing and kissing her and other unwanted physical contact plus some 900 text messages and other communications seeking a romantic relationship that she flatly turned down, the University initially instructed the student to have “no contact” with Foster by any means. Less than a week later, however, he again texted her and she expressed concern for her safety. Although the University then made other accommodations, such as having him stay at another hotel, Foster remained concerned for her safety and wanted to avoid being in the same room with the other student during the program. She pointed out, for example, that she would have to “cross the [student’s] path” if she wanted to go to the restroom during a class break, to which the University responded that while the two “might have some incidental contact during break time,” she could avoid contact by using the bathroom in her own room before and after class.
The accused student strongly protested the University’s investigation of the situation, referring to Foster as a “lying slut whore.” Although it was suggested that he be removed from the classroom, that suggestion was rejected because Foster was in no “imminent danger” and there was a concern that his removal would “escalate the situation.” Foster contended that the student proceeded to violate the interim accommodations through such measures as blocking her exiting the classroom or getting coffee during a break and preventing her from getting lunch. He later posted a “threatening comment” about her boyfriend on her Facebook wall. Foster told a University official that she had literally been “shaking” for a day and the University agreed temporarily not to permit him to re-enter the same class as her. He then sent emails to classmates in which he called Foster a “mean awful person and wackadoo chick”, and claimed falsely that he and she had a good “time” in bed for “a few months,” when she allegedly shared “those world class tatas with me for awhile.”
Foster continued to raise concerns with the University and herself obtained a restraining order from a court against the offender. Despite this, she saw him in a common student lounge area and he “stood up and looked at her.” Based on the restraining order, she was able to get police to remove him from the building.
After graduation, Foster filed a complaint against the University for damages under Title IX of the Education Amendments Act of 1972, contending that it had violated its duty to take appropriate action with respect to the student-on-student harassment she had suffered. A district court granted summary judgment against Foster without a trial, claiming that the University had in fact responded to her complaints and that no jury could find that it had been “deliberately indifferent” to her claims as required under Title IX. A three-judge Sixth Circuit panel reversed, however, finding that there were disputed issues of fact and the case should have gone to a jury. The full Sixth Circuit then decided to rehear the case.
In an 8-6 decision in which Trump judges Thapar, Bush, Larsen, and Nalbandian provided deciding votes, the court effectively reversed the panel decision and affirmed the grant of summary judgment against Foster. Relying heavily on the Supreme Court’s explanation that an educational institution must be “deliberately indifferent” to a student’s “plight” in order to be liable under Title IX for student-on-student harassment, the majority maintained that the record showed that the University “was not” so indifferent. The majority pointed out that the University had “ratcheted up protections” for Foster, starting with the “no-contact order,” and that “as a matter of law” it could not be liable.
Judge Karen Nelson Moore strongly dissented, joined by five other judges. Judge Moore pointed out that in the same decision relied upon by the majority, the Supreme Court explained that in the Title IX context, an educational institution is considered “deliberately indifferent” if its response to sexual harassment was “clearly unreasonable in light of the known circumstances.” Foster was not claiming that the University’s initial “no contact” order was insufficient, Moore explained, but instead contended that its subsequent actions were not “adequate and effective” once it became aware that the harasser was “not complying” and was undertaking other misconduct. The record contains “genuine disputes” of fact as to what happened, Moore went on, and a “reasonable jury” could well find that the University’s subsequent actions were “clearly unreasonable.”
Judge Moore concluded that Foster had clearly presented “sufficient evidence” of the University’s liability under Title IX, and “the case should have been for the jury, not this court, to decide.” As a result of the deciding votes of Trump judges Thapar, Bush, Larsen, and Nalbandian, however, Rebecca Foster will not have the opportunity to present her case to a jury, and other victims of student-on-student harassment in the Sixth Circuit (Ohio, Michigan, Kentucky, and Tennessee) may well face similar problems.