Matthew T. Nelson of Warner Norcross + Judd.

In Foster v. Board of Trustees of the University of Michigan, the U.S. Court of Appeals for the Sixth Circuit ruled that a university could be deliberately indifferent to sexual harassment when it fails to take immediate action that effectively ends the harassment and does not expel the alleged harasser. Public colleges and universities must walk a fine line between failing to address appropriately all complaints of sexual harassment and failing to afford due process to the alleged harassers.

To date, failing to walk that line has exposed colleges and universities to liability to one side or the other. But in Foster, the dissent cautions that the Sixth Circuit's new standard portends that a university can be simultaneously liable to the victim for not preventing harassment and the harasser for not providing due process.

The case arose from student-on-student sexual harassment in the University of Michigan's off-campus executive MBA program. Plaintiff Rebecca Foster and a male student became friends during the monthly two-and-a-half days of classes in Los Angeles, to the extent that they spent time together away from the program. But in September 2013, the male student wanted a romantic relationship—feelings Foster did not reciprocate. Unknown to the university, the male student began to sexually harass Foster at the monthly class sessions. In March 2014, two weeks before the final class session and about 45 days before graduation, Foster reported the harassment to the university.

The university's response was recognizable to any Title IX coordinator. It investigated the incident, reviewed hundreds of text messages between Foster and the male student and required the male student have no further contact with Foster. A few days before the start of the April class session, the male student sent Foster a one-word text message, "really" to Foster. The university verbally warned the male student and explained that the message had been intended for another student.

At the April session, the male student violated the restrictions that the university put in place.  On the second day of that session, the university barred him from attending classes. All the while, the male student stridently protested his treatment and referred to Foster with various sexist terms in emails with university officials and in social media.

The university then barred him from attending commencement. He responded by sending harassing emails to university administrators investigating the situation. The male student's attorney informed the university that he would not attend, but Foster learned from social media that he planned to attend commencement in Ann Arbor, Michigan.

Foster obtained a personal-protection order against the male student from a California court. The university took various safety measures, including posting plain clothes police officers in the lobby of the hotel hosting the executive MBA program. Foster noticed the male student at a university event before commencement and notified the police officers. The university police officers removed the male student and arrested him for violating the California protective order. The university police ultimately took him to the airport and ensured he took a plane back to California. He did not attend commencement and had no interactions with Foster during the commencement weekend.

Foster was not pleased with how the university handled the issue and sued under Title IX of the Education Amendments Act of 1972. Foster claimed that in the 45 days between when she reported the male student's harassment and graduation, the university displayed deliberate indifference to her plight. The district court disagreed, and granted summary judgment to the university.

In a split decision, the Sixth Circuit agreed with Foster. The court faulted the university for failing to take harsher measures throughout. The majority said the university could be viewed as deliberately indifferent to the text-message violation of the no-contact order because all the university did was give the male student a verbal warning.

The majority also faulted the university for not barring the male student from the April classes immediately instead of waiting for an additional violation of the no-contact order. Finally, the majority said the university could be said to be deliberately indifferent to the harassment Foster suffered because it did not immediately bar the male student from commencement activities and did not entirely bar the male student from campus during the commencement activities. Taken together, the majority concluded that a jury could conclude that the university's response was "clearly unreasonable" in light of the known circumstances.

In dissent, Judge Jeffrey Sutton faulted the majority for watering down the deliberate-indifference standard for liability under Title IX. He emphasized that the program was not held on the university's campus and that all of the relevant events occurred over a little more than a month-and-half. The dissent opined the university proportionately elevated its sanctions against the male student at each stage of the process and was not deliberately indifferent as a matter of law.

Sutton's dissent predicts two results from the Sixth Circuit's decision. First, colleges and universities will "expel first and ask questions later." Second, because colleges and universities must protect the accused harasser's due process rights and the alleged victim's right to be free from sexual harassment, the Sixth Circuit's decision makes it more likely that a school could be liable to both the harasser and the victim. At the very least, the Sixth Circuit's decision makes the job of Title IX administrators even more fraught with risk.

Matthew T. Nelson is a partner at Warner Norcross + Judd where he serves as chair of the firm's appellate and Supreme Court practice.