Title IX’s ‘Deliberate Indifference’ Hurdle

By James A. Johnson and Julie A. Gafkay

March 28, 2022

Title IX’s ‘Deliberate Indifference’ Hurdle


By James A. Johnson and Julie A. Gafkay

Imagine you are a college student who believes that campus officials aren’t taking your sexual harassment complaint seriously. You go to court to seek justice, confident the law is on your side, only to find the court doesn’t see your case your way. Or, as one court said in ruling against a plaintiff, “You can’t always get what you want.”

That case, which involved the State University of New York at Stony Brook, is indicative of the hurdle that college students across the nation encounter when they sue campus administrators who they believe have turned a blind eye toward their claim of sexual harassment or assault. This article examines that hurdle at both the New York and national level.

The New York State Experience

Title IX protects all students in New York at federally funded colleges and universities, whether they are part-time or full-time. It also protects foreign students regardless of race, sex, national origin, gender identity, sexual orientation or religion.

New York courts apply the deliberate indifference standard in Title IX claims involving sexual harassment and assault. The Second Circuit has held that a defendant acts with deliberate indifference both when its response to known harassment “is clearly unreasonable in light of the known circumstances, and when remedial action only follows after a lengthy and unjustified delay.”[1] “Deliberate indifference must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it.”[2] “Only actual notice by an ‘appropriate person’ who can rectify a violation of Title IX can support a claim under Title IX.”[3]

A plaintiff must establish that the school was “on actual notice that their specific policies and responses to sexual assault were deficient, and their subsequent failure to remedy these policies was the proximate cause of her sexual assault.”[4] In Tubbs, the district court held the plaintiff had not established the university officials acted with deliberate indifference even though the procedures for addressing her complaint were in conflict with a guidance letter from the office of civil rights, which included the university allowing the perpetrator to question directly the complainant.[5] In so holding, the district court crudely stated the following, which underscored the challenges faced by complainants in demonstrating deliberate indifference: “Although the court is sympathetic to plaintiff’s difficulties, unfortunately, the law in this area repeatedly sings the same tune: ‘You can’t always get what you want.’”[6]

The National Experience

Colleges and universities over the past several years have experienced a plethora of litigation involving student-on-student sexual assaults.[7] The majority of these suits assert Title IX causes of action.[8] Typically, at the college level, a student-complainant alleges that he or she was sexually assaulted by a fellow student-respondent. University investigators determine if the respondent violated school policy. This student-conduct investigation is separate from a criminal investigation. If it is determined by a preponderance of evidence, after a hearing, that the student-respondent violated university policies, sanctions are issued. In most cases, the respondent can appeal the decision at the university level. As of August 14, 2020, under Title IX regulations promulgated by the U.S. Department of Education, attorneys are now allowed to question witnesses at hearings during the investigative process by the university.[9] A complaint of sexual harassment under Title IX may be filed with the Department of Education, Office of Civil Rights (OCR), within 180 days of the last act of discrimination. Regardless of the outcome of the OCR complaint, the victim can file a federal lawsuit. Indeed, a victim of sexual harassment can file a Title IX lawsuit without filing with the OCR first. The statute of limitations depends on the state in which the school is located.[10]

Under Title IX, when there is peer-to-peer sexual harassment, to hold a college or university liable, the victim must demonstrate the school acted with deliberate indifference. The United States Supreme Court held in Davis v. Monroe County Board of Education[11] that a recipient of federal education funds, such as a college or university, may only be liable for student-on-student harassment where it is a deliberate indifference claim. The crux of these suits is that the university had an official policy of deliberate indifference creating a heightened risk of sexual harassment to the plaintiff.[12] For liability to attach, the university response must be unreasonable and deliberately indifferent; the respondent-student must be found to be under the university’s control; and it must be found that the university had effectively precluded the student-complainant access to an education and had actual notice of the alleged harassment or assault.[13]

After the United States Supreme Court decision in Davis case, the secretary of education amended the regulations implementing Title IX. The amendment adopted, but adapted, the deliberate indifference standard set forth in Davis.[14] Under the amended regulations,[15] a university must provide supportive measures to complainants, which include:

Supportive measures means non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the recipient’s educational environment, or deter sexual harassmentSupportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The recipient must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the recipient to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.[16]

If a respondent is found to be responsible for sexual harassment, the recipient (university) must effectively implement remedies for the complainant, designed to restore or preserve the complainant’s equal educational access, and may impose disciplinary sanctions on the respondent.[17]

Sixth Circuit – Deliberate Indifference

The Sixth Circuit in Foster v. Bd. of Regents is a recent Title IX case involving the sexual assault of a student by another student. The court found the University of Michigan was not liable under Title IX because the court concluded the university was not deliberately indifferent.[18]

In Foster, the plaintiff-student was part of an off-site MBA program based in Los Angeles, California. The program occasionally obligated weekend educational sessions at a hotel in the Los Angeles area, requiring students to stay at the hotel overnight on Thursday and Friday. The plaintiff became friends with another student (respondent) in the program. From September 2013 through February 2014, the respondent began expressing his interest in a romantic relationship. On multiple occasions he made unwanted physical contact, including grabbing her butt, rubbing her leg, kissing her forcefully and, more than once, climbing into her bed and attempting to force himself on top of her.[19]

On March 13, 2014, the plaintiff first reported to the university’s Office of Institutional Equity the sexual harassment and assaults. After the initial report, the respondent was only instructed not to have contact with the plaintiff and not to retaliate against her in any way. In addition, the plaintiff and respondent were required to stay at different hotels and respondent could not eat in the same dining room; however, respondent was still allowed to attend class with plaintiff, although he was not allowed to attend social activities. The plaintiff complained the accommodations were not sufficient to address her safety concerns.[20]

On April 3, 2014, during the residency program, the respondent sent a crude email to various university administrators, which referred to the plaintiff as “psycho” and a “lying slut whore.” The respondent was allowed to attend class with the plaintiff the next day, despite the email. During the next day’s breaks, the respondent stood in her way when she exited the class and when she went to get a beverage, and then he blocked her when she tried to go back to her desk. The plaintiff requested that security be called and for the respondent to be disallowed to attend class the next morning. While the respondent did not attend the class the next morning as directed by the university, he sent several classmates messages calling the plaintiff “a mean awful person,” a “wackadoo chick,” and stating, “my, what a time we had in her bed and mine for a few months there.”[21]

After the April residency program, the respondent sent several more emails to university administrators generally criticizing the investigation, using aggressive language and making various demands. For instance, one email said he would be graduating with his class in person. The respondent was barred by the university from commencement and the plaintiff was advised to “exercise caution.” Despite being barred, respondent flew to Ann Arbor and appeared at a graduation function.[22]

The plaintiff brought a lawsuit under Title IX, which was dismissed on summary judgment by the court, which held the university responded “promptly, compassionately, and effectively” to Foster’s complaints. The plaintiff appealed the decision to the Sixth Circuit, who initially reversed the summary judgment,[23] but after a rehearing en banc, the Sixth Circuit affirmed the district court.

The Sixth Circuit held that to prevail in a Title IX action, the victim must establish the school was “deliberately indifferent to sexual harassment, of which [it had] actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”[24] The Sixth Circuit relied on the U.S. Supreme Court decision of Davis v. Monroe Cnty. Bd. of Ed, which held a school’s response to sexual harassment is deliberatively indifferent if it is “clearly unreasonable in light of the known circumstances.”[25] The standard neither requires that the school purge its school of actionable peer harassment nor does it require courts to conclude that “minimal, ineffective, or belated efforts to respond to sexual harassment are not clearly unreasonable as a matter of law.”[26]

In Foster, the Sixth Circuit did not find that the school engaged in deliberate indifference despite inadequate and ineffective action by the school once it knew about the sexual harassment and assault. The university knew that the initial “no-contact” order to the respondent was violated when the respondent texted “Really” and when the university got the erratic email calling the plaintiff names. Afterwards, the plaintiff detailed an escalating campaign of harassment by the respondent and ineffective responses by the university. Instead of the court finding there was a factual dispute for the jury regarding whether the university engaged in deliberate indifference, the court dismissed the plaintiff’s action, finding as a matter of law that the university did not engage in deliberate indifference. By doing so, the court created an unreasonably high bar for a plaintiff-victim to meet in instances of sexual harassment by another peer on campus, even when it includes sexual assault. The egregious nature of the harassment should demand swift, serious disciplinary action against the student-perpetrator.[27] However, under the deliberate indifference standard, the court has removed a factfinder’s ability to review the effectiveness of the university’s action, thereby failing to address adequately the sexual harassment, and making the victim vulnerable, as in Foster, to further harm and retaliation.

Overcoming Deliberate Indifference in the First, Tenth, and Eleventh Circuits

Following Davis, the Circuits have been divided on what is necessary to find a school subjected a student to discrimination under the deliberate indifference standard.[28] The First, Tenth and Eleventh Circuits “read this language to mean that students must demonstrate only that a school’s deliberate indifference made harassment more likely, not that it actually led to any additional post-notice incidences of harassment.”[29] To prevail in actions against public schools where peer-on-peer harassment occurs by overcoming the deliberate indifference standard, courts have found the following to be relevant: reasonableness of the school’s response, control by the school over context and the respondent, and notice of the alleged harassment or assault. The Tenth Circuit found that a university was liable under Title IX, where its deliberate indifference to reports by students of rape caused the victims to be more vulnerable to sexual harassment.[30] In the Tenth Circuit case, the plaintiffs alleged that the university’s deliberate indifference caused them to have to continue attending school with the student-rapists, who were then potentially emboldened, causing the plaintiffs to withdraw from participation in educational opportunities because of fear of encountering the unchecked student-rapists and other students who knew of the rapes.

In a case out of the Eastern District of Michigan, the Hon. Terrence G. Berg found the student plaintiffs had a claim under Title IX because the school’s deliberate indifference left the students more vulnerable to future abuse.[31] In that case, respondent sexually touched the victim at school on numerous occasions (both 12 and 13 years old at the time and receiving special education services); despite this, the school wanted to place the victim back in the same classroom as the respondent, which exposed the victim to the same risk of abuse. In a subsequent decision out of the Sixth Circuit, the Sixth Circuit reaffirmed the standard for overcoming deliberate indifference in that Circuit required a showing of additional harassment.[32] In Kollaritsch, the Sixth Circuit reversed the district court’s ruling denying the university’s motion to dismiss in a Title IX case involving student-on-student sexual harassment. The court found the sexual harassment was not pervasive enough and found there was no additional harassment after the university took action. The case involved reports by four female students who were sexually assaulted by male students. The four female students sued Michigan State University’s administration because they believed the administration responded inadequately to the complaints. After their complaints, the complainants encountered their perpetrator several times. The Sixth Circuit found that, to hold a university liable for deliberate indifference,

the plaintiff must plead, and ultimately prove, an incident of actionable sexual harassment, the school’s actual knowledge of it, some further incident of actionable sexual harassment, that the further actionable harassment would not have happened but for the objective unreasonableness (deliberate indifference) of the school’s response, and that the Title IX injury is attributable to the post-actual-knowledge further harassment.[33]

Fourth Circuit

In a Fourth Circuit case, the court found there was deliberate indifference in a Title IX claim brought by a campus feminist group who were being sexually harassed through online posts on a university-maintained social media site.[34] The court found the university acted with deliberate indifference because its efforts were not reasonably calculated to end the harassment since it only created two listening circles, a generic email and, on one occasion, sent campus police to be with a threatened student.

In Karaseck v. Regents of the Univ. of Cal.,[35] the Ninth Circuit held deliberate indifference can be found in a pre-assault claim in order to survive a motion to dismiss, when the following is shown: (1) a school maintained a policy of deliberate indifference to reports of sexual misconduct; (2) which created a heightened risk of sexual harassment; (3) in a context subject to the school’s control; and (4) the plaintiff was harassed as a result. The court found that actual knowledge or acting with deliberate indifference to a particular incident of harassment was not necessary for a pre-assault claim if the four elements were established. The court found persuasive a report issued by the state auditor finding the mishandling of complaints was putting students at risk and the university’s failure to address those concerns adequately.


A bevy of student-complainants in federal court are asserting a heightened risk claim under Title IX, alleging that institutions had an official policy of deliberate indifference to reports of sexual misconduct. Thus, the plaintiff was harassed as a result. A university that receives federal funds may be liable for its response to student-on-student sexual harassment or assault. However, actual notice and deliberate indifference by the university must be proven for liability to attach constituting intentional Title IX violation.

Title IX protects all students in New York at federally funded colleges and universities, whether they are part-time or full-time. It also protects foreign students regardless of race, sex, national origin, gender identity, sexual orientation or religion. New York courts apply the deliberate indifference standard in Title IX claims involving sexual harassment and assault.

The U.S. Department of Education regulations, effective August 14, 2020, set out university procedures in cases involving student-on-student sexual assault.[36] Also, attorneys are now permitted to question witnesses at university hearings and in some cases conduct cross examination.

It is important that counsel read the cases in his or her jurisdiction to glean the application of Title IX litigation. This area of law is developing rapidly.

James A. Johnson is a trial lawyer with a concentration on serious personal injury, insurance coverage under the commercial general liability policy, sports and entertainment law and federal criminal defense. He is an active member of the Massachusetts, Michigan, Texas and federal court Bars.

Julie A. Gafkay of Gafkay Law is an employment discrimination lawyer. She is a member of the SBM Labor and Employment Law Section and has served on numerous professional boards and committees. Gafkay was president of the Women Lawyers Association of Michigan in 2017–2018 and is a current board member for the International Action Network for Gender Equity and Law.


[1] Hayut v. State Univ of N.Y. 352 F. 3d 733, 751 (2d Cir. 2003) (internal quotation marks & citations omitted).

[2] Davis v. Monroe County Bd. of Education, 526 U.S. 629, 645 (internal quotation marks, alterations & citations omitted).

[3] Bliss v. Putnam Valley Cent. Sch. Dist., No. 7:06-cv-15509, 2011 U.S. Dist. LEXIS 35485 (S.D.N.Y. March 24, 2011 (citing Gebser v. Lago Vista Ind. Sch. Dist, 524 U.S. 274, 290 (1988)).

[4] Tubbs v. Stony Brook Univ., 343 F. Supp. 3d 292, 319 (S.D.N.Y. 2018).

[5] Id.

[6] Id. at 317.

[7] Doe v. Brown Univ., 166 F. Supp. 3d 177, 180 (D.R.I. 2016); Doe v. Univ. of Ky., 971 F.3d 553 (6th Cir. 2020), standing to bring an alleged deliberate indifference claim although not technically enrolled. Decision limited to the unique facts in this case.

[8] Title IX, 20 U.S.C. § 1681.

[9] 34 C.F.R. § 106.

[10] In Michigan, the statute of limitations for a Civil Rights Claim, like Title IX, is three years. Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 729 (6th Cir. 1996).

[11] Davis v. Monroe County Bd. of Education, 526 U.S. 629 (1999).

[12] Karasek v. Regents of Univ. of Calif., 956 F. 3d 1093, 1112 (9th Cir. 2020); Lozano v. Baylor Univ., 408 F. Supp. 3d 861, 882-883 (W.D. Tex.2019), denying a motion to dismiss on heightened risk claim; Davis, 526 U.S. 629.

[13] Lopez v. Regents of Univ. of Calif., 5 F. Supp. 3d 1106, 1122 (N.D. Cal. 2013); Kollaritsch v. Michigan State Univ. Bd. of Trustees, 994 F. 3d 613, 619-24 (6th Cir. 2019) (student must plead and ultimately prove that school had actual knowledge of actionable sexual harassment that was not found here).

[14] 85 FR 30044.

[15] 34 C.F.R. § 106.44(a).

[16] 34 C.F.R. § 106.30.

[17] 34 C.F.R. § 106.45(b)(1)(i); see also Brian Bardwell, No One Is an Inappropriate Person: The Mistaken Application of Gebser’s “Appropriate Person” Test to Title IX Peer Harassment Cases, 68 Case W. Res. L. Rev. 1343, 1364–65 (2018).

[18] Foster v. Bd. of Regents, 982 F. 3d 960 (6th Cir 2020).

[19] Id. at 972.

[20] Id. at 972.

[21] Id. at 976–77.

[22] Id. at 978–79.

[23] Foster v. Bd. of Regents, 952 F.3d 765 (6th Cir. 2020).

[24] Foster, 982 F. 3d at 981.

[25] 526 U.S. 629, 647 (1999).

[26] Id.

[27] Lack of disciplinary action against respondent-harassers by schools may be in part due to a school’s concern that the respondent-harasser will take action for selective enforcement or assert an erroneous outcome claim. Klocke v. Univ of Tex. at Arlington, 938 F.3d 204, 210 (5th Cir. 2019); Plummer v. Univ of Houston, 860 F. 3d 767, 777 (5th Cir. 2017). Erroneous outcome claims require a plaintiff to prove: (1) the disciplined student was innocent and wrongfully found to have committed the offense and (2) that gender was a motivating factor in imposing discipline. Plummer v. Univ. of Houston, 860 F. 3d 767, 777 (5th Cir. 2017).

[28] Wamer v. Univ. of Toledo, No. 20-4219, 2022 U.S. App. LEXIS 5511, at *16-17 (6th Cir. Mar. 2, 2022) (the court held there is a less stringent standard for providing teacher-student sexual harassment under Title IX than student-student harassment under Title IX).

[29] Id., citing Farmer v. Kan. State Univ., 918 F.3d 1094, 1103–05 (10th Cir. 2019).

[30] Id.

[31] C.R. v. Novi Cmty. Sch. Dist., 2017 U.S. Dist. LEXIS 18394 (E.D. Mich. 2017).

[32] Kollaritsch v. Michigan State Univ. Bd of Trustees, 944 F 3d 613 (6th Cir. 2019).

[33] Id. at 623–24.

[34] Feminist Majority Foundation v. Hurley, 911 F.3d 674 (4th Cir. 2018).

[35] 948 F.3d 1150, 1169 (9th Cir. 2020).

[36] See C.F.R. § 106.

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