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.
