Second Time’s the Harm: The Sixth Circuit’s Deliberately Indifferent Approach to Sexual Harassment

On December 12, 2019, in Kollaritsch v. Michigan State University, the U.S. Court of Appeals for the Sixth Circuit held that plaintiffs must experience post-notice sexual harassment to sustain a Title IX deliberate indifference claim against a university. With this decision, the Sixth Circuit joined the Eighth and Ninth Circuits in reading Davis v. Monroe County Board of Education’s causation statement as requiring post-notice harassment. In contrast, the First, Tenth, and Eleventh Circuits only require plaintiffs to prove that the school’s clearly unreasonable response left them vulnerable to further harassment to sustain a deliberate indifference claim; plaintiffs need not show that further harassment actually occurred. This Comment argues that the Sixth Circuit’s approach is incorrect because it needlessly narrows the holding of Davis to dispose of the vulnerability component and opposes the legislative goals of Title IX.