In 1972, Congress passed Title IX,1×1. Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681–1688 (2018). a landmark civil rights law seeking to eliminate sex discrimination in education.2×2. See id. § 1681(a) (“No person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”). But Congress did not make clear the circumstances under which schools could be held liable for violations.3×3. Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 637–38 (1999). Almost thirty years later, in Davis v. Monroe County Board of Education,4×4. 526 U.S. 629. the Supreme Court held that schools may be liable under Title IX if their response to a known act of student-on-student sexual harassment was “deliberately indifferent.”5×5. Id. at 648. Still, Davis left ambiguous whether students must prove that the school’s response failed to protect them against further actual harassment, or whether students merely need to show the response left them vulnerable to harassment that did not materialize. Recently, in Kollaritsch v. Michigan State University Board of Trustees,6×6. 944 F.3d 613 (6th Cir. 2019). the Sixth Circuit held that a student-victim must prove that the school’s inadequate response caused further actionable harassment.7×7. Id. at 618. While the court attempted to bring clarity to institutional liability post-Davis, the ruling introduced a new tort-based test that is itself rife with ambiguity and fails to offer meaningful guidance for future courts.
In 2011, Michigan State University (MSU) student John Doe sexually assaulted fellow student Emily Kollaritsch.8×8. Kollaritsch v. Mich. State Univ. Bd. of Trs., 298 F. Supp. 3d 1089, 1098 (W.D. Mich. 2017). Kollaritsch reported the assault, and the university opened an investigation.9×9. Id. The investigation lasted over six months.10×10. Id. During that time, MSU placed no restrictions on Doe and made no accommodations for Kollaritsch, even though the two lived in the same dormitory.11×11. Id. The school concluded that Doe had violated MSU’s sexual harassment policy, placing him on probation and issuing an order that prohibited him from contacting Kollaritsch.12×12. Kollaritsch, 944 F.3d at 624. Doe proceeded to violate the order on at least nine occasions by “stalking, harassing, and intimidating” Kollaritsch, who had a panic attack on each encounter.13×13. Id. She reported the violations and then filed a complaint for retaliatory harassment with MSU.14×14. Kollaritsch, 298 F. Supp. 3d at 1098. During its investigation, MSU provided no interim safety measures, and Kollaritsch obtained a protection order from a local court.15×15. Id. at 1098–99. MSU concluded that no retaliatory harassment had occurred.16×16. Id. at 1099.
Subsequently, Kollaritsch filed a lawsuit against the MSU Board of Trustees and against Vice President of Student Affairs Denise Maybank.17×17. Id. at 1096. Kollaritsch was joined by three other female students who had similar experiences at MSU, one of whom was assaulted by the same John Doe.18×18. See id. The district court dismissed the claims of one of the students. See id. at 1110. The students claimed violations of Title IX and of equal protection under 42 U.S.C. § 1983.19×19. Id. at 1096. The students filed but then conceded due process claims under § 1983 and state law claims. Id. For their Title IX claims, they argued that MSU’s response was inadequate, leaving them vulnerable to harassment and depriving them of educational opportunities.20×20. Id. at 1100.
The district court partially denied the defendants’ motion to dismiss,21×21. Id. at 1096. holding that the students had alleged sufficient facts to establish their Title IX claims.22×22. See id. at 1102–03. The court also held that one student sufficiently pled a § 1983 claim against Maybank, who had set aside John Doe’s expulsion without providing an explanation. See id. at 1103, 1107. Citing Davis, the court reasoned that MSU exhibited deliberate indifference because, among other problems, its investigations were delayed and it failed to offer safety accommodations or to inform victims of their right to appeal, responses that were “clearly unreasonable in light of the known circumstances.”23×23. Id. at 1100 (quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648 (1999)); see id. at 1102–03. The court then highlighted the students’ injuries, which included multiple leaves of absence, withdrawal from social activities, and academic struggles.24×24. See id. at 1102–03.
MSU moved for an interlocutory appeal, and the Sixth Circuit reversed.25×25. See Kollaritsch, 944 F.3d at 619, 627. Maybank also moved for an interlocutory appeal on the court’s § 1983 ruling. Id. at 619. Writing for the panel, Judge Batchelder26×26. Judge Batchelder was joined by Judge Thapar and joined in part by Judge Rogers. first noted that because the court was reviewing a denial, rather than a grant, of a motion to dismiss, its review was limited to pure questions of law.27×27. Kollaritsch, 944 F.3d at 619. She then stressed the high bar for establishing institutional liability in student-on-student sexual harassment.28×28. Id. (citing Davis, 526 U.S. at 643). Judge Batchelder broke down the Davis formula into two “separate-but-related torts by separate-and-unrelated tortfeasors: (1) ‘actionable harassment’ by a student . . . and (2) a deliberate-indifference intentional tort by the school.”29×29. Id. at 619–20 (quoting Davis, 526 U.S. at 651–52). For the first tort, she explained that an “actionable harassment” is one that is “severe, . . . pervasive, and . . . objectively offensive.”30×30. Id. at 620. While Davis defined “pervasive” to mean systemic or widespread, she stated that pervasive also requires “multiple incidents of harassment; one . . . is not enough.”31×31. Id. For support, Judge Batchelder cited dicta in Davis that “[a]lthough, in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such [systemic] effect, [it is] unlikely that Congress would have thought such behavior sufficient.” Id. (quoting Davis, 526 U.S. at 652–53) (emphasis omitted).
Turning to the second tort, Judge Batchelder set forth the “four elements of a deliberate-indifference-based intentional tort: (1) knowledge, (2) an act, (3) injury, and (4) causation.”32×32. Id. at 621. She explained that a school’s “knowledge” of the harassment must be actual, not imputed.33×33. Id. (citing Davis, 526 U.S. at 650). The “act” in question is a clearly unreasonable response by the school, and the “injury” is the student-victim’s deprivation of access to educational benefits.34×34. Id. at 621–22. For “causation,” Judge Batchelder pointed to language in Davis that a school may not be liable for damages unless its “deliberate indifference ‘subject[ed]’ its students to harassment.”35×35. Id. at 622 (quoting Davis, 526 U.S. at 644 (first emphasis added)). She noted that Davis understood the verb “subject[s]” to mean that “deliberate indifference must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it.”36×36. Id. (quoting Davis, 526 U.S. at 645). In the Sixth Circuit’s view, the fact that Davis linked the verb “subject[s]” to harassment, not injury, was critical; it necessarily meant that a deliberate indifference claim requires further actionable harassment.37×37. Id. Thus, “a plain and correct reading” of causation in Davis dictates two ways the school’s response can result in further harassment: (1) through action that instigates harassment, or (2) through inaction that renders the victim unprotected from harassment.38×38. Id. at 623. Either way, Davis “presumes that post-notice harassment has taken place.”39×39. Id. (quoting Zachary Cormier, Is Vulnerability Enough? Analyzing the Jurisdictional Divide on the Requirement for Post-notice Harassment in Title IX Litigation, 29 Yale J.L. & Feminism 1, 23 (2017)). The court thus rejected the plaintiffs’ interpretation that the phrase “or . . . make [students] . . . vulnerable to [harassment]” established a separate basis for liability.40×40. Id. at 622–23. On these facts, Judge Batchelder concluded that Kollaritsch failed to show that her subsequent encounters with John Doe were severe, pervasive, or objectively offensive.41×41. Id. at 624–25. Similarly, the mere fact that MSU allegedly left the other plaintiffs vulnerable to encountering their assailants was insufficient to establish actionable further harassment.42×42. Id. at 625. The students thus failed to satisfy the causation element under Davis; the school’s response had not caused them to suffer a second instance of actionable harassment.43×43. Id. at 624–25. The court also concluded that Maybank was entitled to qualified immunity, as she did not violate a clearly established right when she set aside MSU’s previous findings and ordered a new investigation by an outside law firm, which ultimately found no sexual assault. Id. at 625–27.
Judge Thapar joined the opinion in full but also wrote a separate concurrence.44×44. Id. at 627 (Thapar, J., concurring). He defended the court’s ruling based on the text of Title IX, its foundation in the Spending Clause, and Davis’s warning against “sweeping liability” under Title IX.45×45. Id. at 628–29 (quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 652 (1999)). Judge Rogers, who joined the court’s opinion only in part, also wrote a separate concurrence to admonish the panel for addressing in dicta what constitutes “actual notice,” an issue not raised in the case.46×46. Id. at 630 (Rogers, J., concurring).
With Kollaritsch, the Sixth Circuit took a side in the judicial disagreement that Davis created over whether a Title IX plaintiff alleging deliberate indifference must plead that further harassment occurred after the reporting. But Kollaritsch didn’t just deepen the circuit split; it added another layer of complications by invoking common law tort principles to fill the gaps Davis left open. The Sixth Circuit’s tangled analysis creates its own ambiguities, demonstrating the risk of importing tort schemes into civil rights statutes.
Davis incited a circuit split over its interpretation of Title IX’s mandate that students must not be “subjected” to discrimination.47×47. 20 U.S.C. § 1681(a) (2018) (“No person . . . shall, on the basis of sex . . . be subjected to discrimination.” (emphasis added)). Citing two dictionary definitions for support, the Davis Court explained that, to subject students to discrimination, a school must “‘cause [students] to undergo’ harassment or ‘make them liable or vulnerable’ to it.”48×48. Davis, 526 U.S. at 645 (first citing Subject, Random House Dictionary of the English Language (1966); and then citing Subject, Webster’s Third New International Dictionary (1961)). This sentence has been the source of considerable confusion and disagreement. Some courts, including the First and Tenth Circuits, have read the disjunctive “or” to create two separate bases for liability; under the second prong, the plaintiff need show only that the school’s response made future harassment more likely.49×49. See, e.g., Farmer v. Kan. State Univ., 918 F.3d 1094, 1103–04 (10th Cir. 2019); Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172–73 (1st Cir. 2007), rev’d on other grounds, 555 U.S. 246 (2009); Fryberger v. Univ. of Ark., No. 16-CV-5224, 2019 WL 6119253, at *9 (W.D. Ark. Nov. 18, 2019). Others, including the Eighth and Ninth Circuits, have taken the same approach as Kollaritsch and required students to prove actual subsequent harassment.50×50. See, e.g., K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1057–58 (8th Cir. 2017); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000).
Compounding the confusion, Kollaritsch went beyond Davis and explicitly invoked tort principles to reach an interpretation that severely restricts who can plead a deliberate indifference claim. To be sure, interpreting an ambiguous statutory term in accordance with its common law definition is not in itself new or problematic.51×51. Courts frequently look to common law for guidance when interpreting statutes. See, e.g., United States v. Shabani, 513 U.S. 10, 13 (1994) (discussing “the settled principle of statutory construction that, absent contrary indications, Congress intends to adopt the common law definition of statutory terms”). But in recent years, the reflexive use of tort principles and terminology to interpret statutes has come under increased scrutiny, enough to earn its own label of “tortification.”52×52. See Sandra F. Sperino, Let’s Pretend Discrimination Is a Tort, 75 Ohio St. L.J. 1107, 1109 (2014). The phenomenon is particularly evident in employment discrimination cases.53×53. See generally Charles A. Sullivan, Tortifying Employment Discrimination, 92 B.U. L. Rev. 1431 (2012) (tracing the Supreme Court’s incorporation of tort law concepts into Title VII and other antidiscrimination statutes). In Price Waterhouse v. Hopkins,54×54. 490 U.S. 228 (1989). Justice O’Connor explicitly referred to Title VII as creating a “statutory employment ‘tort.’”55×55. Id. at 264 (O’Connor, J., concurring in the judgment). In subsequent cases, the Court expanded its project of tortifying employment discrimination law,56×56. See Martha Chamallas & Sandra F. Sperino, Torts and Civil Rights Law: Migration and Conflict: Symposium Introduction, 75 Ohio St. L.J. 1021, 1022 (2014); see also Cheryl Krause Zemelman, Note, The After-Acquired Evidence Defense to Employment Discrimination Claims: The Privatization of Title VII and the Contours of Social Responsibility, 46 Stan. L. Rev. 175, 188, 196 (1993) (noting the “two-decade evolution of Title VII from a public policy–enforcing statute . . . to a compensatory, tort-like statute,” id. at 188). attaching the “federal tort” label57×57. See Staub v. Proctor Hosp., 562 U.S. 411, 417 (2011). and adopting tort causation standards such as but-for causation58×58. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (interpreting the statutory language “because of” in the Age Discrimination in Employment Act (ADEA) to require but-for causation); see also Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013) (extending Gross to impute but-for causation to Title VII from the “because of” language in the statute). and proximate cause.59×59. Staub, 562 U.S. at 419–20 (applying proximate cause to an employment discrimination statute). Commentators have criticized this development on various fronts, stressing the need for a more principled approach.60×60. See William R. Corbett, What Is Troubling About the Tortification of Employment Discrimination Law?, 75 Ohio St. L.J. 1027, 1030 (2014) (“[S]cholarly commentary on the subject . . . has ranged from cautious to suspicious to highly critical.”); see also id. at 1061 (“The Court majority’s approach in Gross, Staub, and Nassar has been to use the tort label to justify the importation of tort law without careful analysis.”); Alex B. Long, Response, What Is Even More Troubling About the “Tortification” of Employment Discrimination, 76 Ohio St. L.J. Furthermore 1, 2 (2015) (“[T]he Court is intent on importing tort principles into employment discrimination law whenever possible, regardless of the appropriateness of that action.”). First, the tort label is difficult to square with the text of the statutes.61×61. Sandra F. Sperino, The Tort Label, 66 U. Fla. L. Rev. 1051, 1053 (2014). Antidiscrimination statutes do not include tort terms of art and do not follow the rigid, element-based structure of tort law,62×62. Id. at 1070–72; see also Corbett, supra note 60, at 1036–37 (suggesting that discrimination statutes are open to a more flexible interpretation). where a plaintiff must prove every “element” of the cause of action.63×63. For instance, the traditional prima facie case of negligence has four elements: duty, breach, causation, and injury. John C.P. Goldberg & Benjamin C. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 Vand. L. Rev. 657, 658 (2001). Second, reflexive tortification may frustrate legislative purpose by eliding key distinctions between the two bodies of law.64×64. See Sperino, supra note 61, at 1052–54. Finally, equating statutory terms with tort analogues prematurely closes off other interpretations.65×65. See id. at 1053. For instance, a more nuanced causation standard may better address discrimination cases, which often involve more complicated mental states than those in typical tort scenarios.66×66. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 190 (2009) (Breyer, J., dissenting) (“It is one thing to require a typical tort plaintiff to show “but-for” causation . . . . But it is an entirely different matter to determine a ‘but-for’ relation when we consider, not physical forces, but the mind-related characterizations that constitute motive.”); see also Martin J. Katz, The Fundamental Incoherence of Title VII: Making Sense of Causation in Disparate Treatment Law, 94 Geo. L.J. 489, 515–17 (2006) (discussing arguments for and against “rejecting the ‘but for’ standard in favor of a more lenient standard” in the context of Title VII, id. at 516).
In Kollaritsch, the court went beyond Davis in terms of tortification by explicitly adopting the tort label and reading in restrictive elements that have their roots in common law.67×67. The Davis Court referred to common law principles only in passing and as supplemental reasoning. Specifically, in the context of the notice requirement for Spending Clause legislation, the Court noted that “[t]he common law, too, has put schools on notice that they may be held responsible under state law for their failure to protect students from the tortious acts of third parties.” Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 644 (1999). Later, when explaining the school’s institutional liability, the Court pointed out that “[t]he common law, too, recognizes the school’s disciplinary authority.” Id. at 646. These asides are a far cry from Kollaritsch, which imported a rigid, element-based tort law test into the Title IX context. First, the court stated that Davis required a student-victim to prove that the school committed a “deliberate-indifference intentional tort.”68×68. Kollaritsch, 944 F.3d at 620 (emphasis added); see id. at 619–20. Expanding upon this tort, the court endorsed a rigid theory of sex discrimination based on a set of requisite elements: knowledge, act, injury, and causation.69×69. Id. at 621; see also Sperino, supra note 61, at 1070 (“Tort law has developed a preference for a small set of central elements that define each cause of action.”). In doing so, it made clear that for the school to be held liable, a student-victim must prove each and every element like a common law tort claim.70×70. See Kollaritsch, 944 F.3d at 621. Second, the court adopted tort law’s cause-in-fact standard by declaring that a plaintiff must prove the subsequent harassment “would not have happened but for the clear unreasonableness of the school’s response.”71×71. See id. at 622 (emphasis added); see also Corbett, supra note 60, at 1038 (arguing that the adoption of “tort law’s most basic causation standard, but-for causation, has made discrimination law look like tort law”).
The tort analysis in Kollaritsch is troubling and reflects many of the concerns raised in the context of employment discrimination law. Title IX is at least as broadly worded as employment discrimination statutes.72×72. See generally Catherine Fisk & Erwin Chemerinsky, Civil Rights Without Remedies: Vicarious Liability Under Title VII, Section 1983, and Title IX, 7 Wm. & Mary Bill Rts. J. 755, 781–85 (1999) (highlighting the indeterminate language of both Title VII and Title IX). Importantly, the statutory language does not include tort terms of art or suggest a required element–based theory of sex discrimination. What the text does make clear, however, is its broader focus on institutional liability.73×73. See Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650 (1999) (“The statute makes clear that, whatever else it prohibits, students must not be denied access to educational benefits and opportunities on the basis of gender.”). As written, Title IX directs educational institutions to guarantee a learning environment free from sex discrimination. Reading this broad mandate as imposing a narrow duty to refrain from committing a “deliberate-indifference intentional tort” undermines the core objective of Title IX.74×74. Cf. Sperino, supra note 61, at 1053. Similarly, the but-for causation standard adopted in Kollaritsch risks undermining the deterrence objectives of Title IX by setting a significantly higher bar for student-victims.75×75. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 263 (1989) (O’Connor, J., concurring in the judgment) (“[T]he law has long recognized that in certain ‘civil cases’ leaving the burden of persuasion on the plaintiff to prove ‘but-for’ causation would be both unfair and destructive of the deterrent purposes embodied in the concept of duty of care.”); see also Katz, supra note 66, at 515–16 (explaining why but-for causation is difficult to prove).
In addition to raising these broad concerns, the tortification in Kollaritsch was problematic in its specific execution. That is, the court applied tort law to Title IX incorrectly by conflating the two analytically separate elements of causation and injury.76×76. See generally Parks Hiway Enters., LLC v. CEM Leasing, Inc., 995 P.2d 657, 667 (Alaska 2000) (“The tort of negligence consists of four separate and distinct elements: (1) duty, (2) breach of duty, (3) causation, and (4) harm.” (emphasis added) (citations omitted)); Saelzler v. Advanced Grp. 400, 23 P.3d 1143, 1153 (Cal. 2001) (“Actual causation is an entirely separate and independent element of the tort of negligence.”). In tort law, the causation element requires that the defendant’s wrongful act cause the plaintiff’s alleged injury.77×77. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26 (Am. Law Inst. 2005). As both Davis and Kollaritsch recognized, an “injury” in the Title IX context means deprivation of “access to the educational opportunities or benefits provided by the school.”78×78. Kollaritsch, 944 F.3d at 622 (quoting Davis, 526 U.S. at 650). The proper causation analysis, then, would require the court to examine whether MSU’s actions caused the plaintiffs’ alleged Title IX injuries, such as their leaves of absence or withdrawal from school activities. Instead, the court asked whether the plaintiffs suffered an entirely different injury: a further actionable harassment. In doing so, it reasoned that “Davis does not link the [school’s] deliberate indifference directly to the injury” but rather asks whether it “‘subject[ed]’ its students to harassment.”79×79. Id. (quoting Davis, 526 U.S. at 644). By construing Davis’s causation analysis as one that does not directly link the wrongful act — deliberate indifference — to the injury — loss of educational opportunities — the court implicitly conceded that tort law and Title IX are an awkward fit. Nevertheless, the Sixth Circuit adopted this framework, further embedding Title IX within principles built for non-discrimination-based tort law.
One might say that the doctrinal mix-up was justified if it offered clarity in this muddled area of law. But the new test under Kollaritsch is neither intuitive nor clear. After Kollaritsch, a victim’s claim against the school for its deliberately indifferent response wholly depends on whether a third-party student commits another “actionable” — that is, a “severe, pervasive, and objectively offensive” — sexual harassment.80×80. Id. at 628. Critically, the Sixth Circuit further defined “pervasive” to require “multiple incidents,”81×81. Id. at 620. suggesting that the student-victim must prove that there was a subsequent sexual harassment, which itself consists of multiple acts. Thus, in lieu of determining whether a student is vulnerable to harassment under Davis, courts are left to decide exactly how many acts of sexual harassment must be ignored before the school can be held liable. Rather than resolving the ambiguity created by Davis, the Sixth Circuit largely reframed the question. Perhaps the only clear lesson that Kollaritsch teaches is a chilling one for students to learn: one assault is not enough.