On December 12, 2019, the United States Court of Appeals for the Sixth Circuit held that a sexual misconduct complainant’s fear of further contact with the respondent was not enough to support a claim against the university for deliberate indifference under Title IX of the Education Amendments of 1972.

In Kollaritsch v. Michigan State University Board of Trustees, No. 17-2445, the court diverged from other circuit courts by narrowing the scope of conduct for which a university can be held liable in connection with its Title IX responsibilities.


In the case, several female students brought suit against the university under Title IX alleging the university was deliberately indifferent in responding to their separate reports of sexual misconduct by the same male student.

Although the university found the male student responsible for violating its Title IX policy, one of the complainants alleged that the male student continued to stalk or intimidate her. The university investigated but was unable to substantiate her retaliation allegation. The court noted that the complainant alleged nothing more than “just seeing” the male student and failed to describe the encounters as something sexual, severe, pervasive, or objectively offensive.

The university did not find the male student responsible as to the two remaining complainants who argued that the male student’s continued presence on campus created a hostile environment.

All three complainants alleged claims of deliberate indifference under Title IX, contending that the university violated the law in its handling of their cases.

The Sixth Circuit’s Decision

In its decision, the court stated that for a student-victim to prevail on a “deliberate indifference” claim against a university, the student-victim must plead and ultimately prove the following:

  1. There was an actionable incident of sexual assault and the university knew about it.
  2. The same student-victim suffered some “further incident of actionable sexual harassment.”
  3. This further incident of actionable sexual harassment “would not have happened but for the objective unreasonableness (deliberate indifference) of the school’s response” to the original instance of actionable sexual harassment.
  4. The student-victim suffered an injury that is attributable to the further incident of actionable harassment.

The court rejected the argument that a university may be liable for its response if the student is “vulnerable” to further harassment but did not actually experience further harassment. The court recognized that a university’s inaction could be problematic but held that a deliberate indifference claim must still be premised on a “further incident of actionable sexual harassment.” The decision is at odds with other courts that have arrived at different conclusions, teeing up a circuit split for potential appeal to the Supreme Court of the United States.

In rejecting the claims, the court held that a student-victim’s fear that he or she may encounter the respondent was not enough to support a deliberate indifference claim under Title IX. Rather, the complainants would need to show that they suffered a further incident of actionable sexual misconduct in order to hold the university responsible.