In 1972, Congress passed Title IX,1 a landmark civil rights law seeking to eliminate sex discrimination in education.2 But Congress did not make clear the circumstances under which schools could be held liable for violations.3 Almost thirty years later, in Davis v. Monroe County Board of Education,4 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 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 the Sixth Circuit held that a student-victim must prove that the school’s inadequate response caused further actionable harassment.7 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 Kollaritsch reported the assault, and the university opened an investigation.9 The investigation lasted over six months.10 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 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 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 She reported the violations and then filed a complaint for retaliatory harassment with MSU.14 During its investigation, MSU provided no interim safety measures, and Kollaritsch obtained a protection order from a local court.15 MSU concluded that no retaliatory harassment had occurred.16
Subsequently, Kollaritsch filed a lawsuit against the MSU Board of Trustees and against Vice President of Student Affairs Denise Maybank.17 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 The students claimed violations of Title IX and of equal protection under 42 U.S.C. § 1983.19 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
The district court partially denied the defendants’ motion to dismiss,21 holding that the students had alleged sufficient facts to establish their Title IX claims.22 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 The court then highlighted the students’ injuries, which included multiple leaves of absence, withdrawal from social activities, and academic struggles.24
MSU moved for an interlocutory appeal, and the Sixth Circuit reversed.25 Writing for the panel, Judge Batchelder26 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 She then stressed the high bar for establishing institutional liability in student-on-student sexual harassment.28 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 For the first tort, she explained that an “actionable harassment” is one that is “severe, . . . pervasive, and . . . objectively offensive.”30 While Davis defined “pervasive” to mean systemic or widespread, she stated that pervasive also requires “multiple incidents of harassment; one . . . is not enough.”31
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 She explained that a school’s “knowledge” of the harassment must be actual, not imputed.33 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 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 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 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 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 Either way, Davis “presumes that post-notice harassment has taken place.”39 The court thus rejected the plaintiffs’ interpretation that the phrase “or . . . make [students] . . . vulnerable to [harassment]” established a separate basis for liability.40 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 Similarly, the mere fact that MSU allegedly left the other plaintiffs vulnerable to encountering their assailants was insufficient to establish actionable further harassment.42 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
Judge Thapar joined the opinion in full but also wrote a separate concurrence.44 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 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
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 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 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 Others, including the Eighth and Ninth Circuits, have taken the same approach as Kollaritsch and required students to prove actual subsequent harassment.50
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 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 The phenomenon is particularly evident in employment discrimination cases.53 In Price Waterhouse v. Hopkins,54 Justice O’Connor explicitly referred to Title VII as creating a “statutory employment ‘tort.’”55 In subsequent cases, the Court expanded its project of tortifying employment discrimination law,56 attaching the “federal tort” label57 and adopting tort causation standards such as but-for causation58 and proximate cause.59 Commentators have criticized this development on various fronts, stressing the need for a more principled approach.60 First, the tort label is difficult to square with the text of the statutes.61 Antidiscrimination statutes do not include tort terms of art and do not follow the rigid, element-based structure of tort law,62 where a plaintiff must prove every “element” of the cause of action.63 Second, reflexive tortification may frustrate legislative purpose by eliding key distinctions between the two bodies of law.64 Finally, equating statutory terms with tort analogues prematurely closes off other interpretations.65 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
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 First, the court stated that Davis required a student-victim to prove that the school committed a “deliberate-indifference intentional tort.”68 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 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 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
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 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 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 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
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 In tort law, the causation element requires that the defendant’s wrongful act cause the plaintiff’s alleged injury.77 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 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 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 Critically, the Sixth Circuit further defined “pervasive” to require “multiple incidents,”81 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.