Michigan Court of Appeals Finds That Student-on-Student Sexual Harassment Claims Are Actionable Under ELCRA
On Dec. 22, the Michigan Court of Appeals issued a published decision involving a hostile educational environment claim: Doe v. Alpena Pub. Sch. Dist. In a case of first impression, the Court ruled that student-on-student sexual harassment claims are actionable under the Elliott-Larsen Civil Rights Act (“ELCRA”), Michigan’s state law prohibiting sex discrimination.
In the winter of her fourth-grade school year, “Jane Doe’” approached school officials following an incident with “John Roe” that involved John’s unwanted sexual touching towards Jane. John Roe’s behavior continued into the spring, when John again approached Jane and engaged in unwanted sexual behavior. In response, school administrators communicated to John’s parents that John could no longer have any contact with Jane. Additionally, school administrators took steps to remove John from Jane’s classroom and issued suspensions following each incident, as well as reported both incidents to law enforcement.
The two students did not interact again until sixth grade, when both students were assigned the same school bus. Following Jane’s report to school administrators about another incident involving John, school administrators directed John’s one-on-one school aide to take John through different hallways to avoid Jane and to watch John closely at all times. Eventually, school administrators removed John from Jane’s school bus.
On behalf of Jane, plaintiff filed suit against the school district and school board, alleging that it created a sexually-hostile educational environment when it failed to adequately respond to various incidents of student-on-student sexual harassment.
Michigan Court of Appeals’ Holding
The Court of Appeals held that the trial court erred when it found that a claim for a hostile educational environment based on student-on-student sexual harassment was not actionable under the ELCRA. In its reasoning, the Court examined what degree of “control” schools exercise over their students, concluding that schools could be held vicariously liable for a hostile educational environment arising from student-on-student harassment. Citing authority from a similar federal district case, the Court held that “schools stand in loco parentis to the offending student and can be held vicariously liable.” In other words, schools temporarily assume the responsibilities and duties by acting as a “parent” to the students throughout the school day.
The Court nonetheless affirmed the trial court’s ruling, granting summary disposition to the school district and board, upon determining that plaintiff did not meet her burden to show a genuine dispute of fact that school administrators failed to take “prompt and appropriate remedial action.” The Court acknowledged several actions on the part of the school: issuing suspensions, removing John from classes and the bus, and contacting John’s parents – all demonstrating proper remedial action and dissolving any claims that it should be held vicariously liable for the student’s conduct.
This case offers several key takeaways and reminders for educators and administrators:
- The ELCRA is a separate law from Title IX and defines sexual harassment differently than Title IX; however, both prohibit discrimination and harassment based on sex
- The ELCRA offers a remedy for hostile educational environment claims that arise from student-on-student harassment
- Because of the extent of control schools exercise over students (in loco parentis), they may be held vicariously liable for hostile educational environment discrimination
- A claim for a hostile educational environment under the ELCRA (due to sexual harassment) is a different avenue for sexual harassment claims that do not rise to the level of Title IX sexual harassment and do not involve the “deliberate indifference” standard that may be more familiar to school educators and administrators under Title IX. The school’s investigation procedures for investigating allegations under the ELCRA and Title IX also may differ.
- School educators and administrators should take note of and ensure an understanding of the “prompt and appropriate remedial action” standard that the Court applied in this case.
Even if student-on-student sexual harassment allegations do not rise to the Title IX definition of sexual harassment, the allegations may still constitute sexual harassment as defined under the ELCRA and schools should still promptly investigate the allegations, take appropriate interim and remedial measures and issue appropriate disciplinary consequences, if a violation is determined
If you have any questions or would like to schedule sexual harassment training for your school district, please feel free to contact Kara Rozin, Bailey Kadian, or any other member of Clark Hill’s Education team.
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