Deliberate-indifference claim under Title IX of the Education Amendments (20 USC §§ 1681–1688) related to sexual harassment; Davis v. Monroe Cnty. Bd. of Educ.; Vance v. Spencer Cnty. Pub. Sch. Dist.; Patterson v. Hudson Area Schs.; Theno v. Tonganoxie Unified Sch. Dist. No. 464 (D KS); McPherson v. Kelsey; Kollaritsch v. Michigan State Univ. Bd. of Trs.; Whether the defendant-University had “actual knowledge” of the harassment; Whether the University’s course of action was unreasonable; Kelly v. Yale Univ. (Unpub. D CT); Whether there was an “admission of inadequacy” by the University; Pahssen v. Merrill Cmty. Sch. Dist.; Whether the University’s actions “caused” plaintiff to be harassed or made her more vulnerable; Williams v. Board of Regents of Univ. Sys. of GA (11th Cir.); Hartsel v. Keys; Bailey v. Floyd Cnty. Bd. of Educ. By & Through Towler; Soper v. Hoben; Stiles ex rel. D.S. v. Grainger Cnty.

[This appeal was from the ED-MI.] The court held that because plaintiff-Foster established a genuine issue of material fact as to whether the defendant-University was deliberately indifferent to the sexual harassment she suffered from a fellow student (respondent), the University was improperly granted summary judgment on her deliberate-indifference sexual harassment claim. Both Foster and respondent were part of an off-site MBA program in Los Angeles. Foster claimed that despite her repeated rejections, he made several unwanted sexual and romantic overtures towards her, including sending hundreds of text messages. She reported the contacts to the University’s Office of Institutional Equity (OIE) and the business school, who took information and made some arrangements to limit her contact with respondent. She claimed that these actions did not adequately protect her safety where he violated the “no-contact” order and a temporary restraining order. The issue here was the third prong of the Davis test—“whether the University was deliberately indifferent to the respondent’s harassment of Foster after he signaled that he would not comply with the no-contact order.” Although the University did email him a “robust set of conditions by which the respondent was required to abide,” Foster rightly argued that it did not take “any immediate action in response to the respondent’s violation of the no-contact order.” Also, the OIE investigator did not take immediate action when she received Foster’s email about the violation of the no-contact order, “nor did she respond substantively to Foster’s inquiry about making further arrangements for her safety.” In spite of “the crude, threatening content” of respondent’s email to the University, it decided not to remove him from the classroom, and “took no action at all in immediate response to receiving this email.” Additionally, fact question remained whether the University administrators admitted that they lacked “the ‘necessary resources’” in Los Angeles to remove respondent, “and whether they changed their minds only after his next violation of the no-contact order that night. . . . Such an ‘admission of inadequacy’ would support a finding of deliberate indifference.” Fact questions also remained whether the University’s responses to his actions caused Foster to be harassed or made her “liable or vulnerable” to harassment. The court held that a reasonable juror could conclude that the University’s course of conduct was “clearly unreasonable.” Reversed and remanded.