Michigan Supreme Court: No Vicarious-Liability Cause of Action for Student-on-Student Sexual Harassment Under ELCRA

On July 29, 2024, the Michigan Supreme Court held in Doe v. Alpena Public School District that the state’s civil rights law, Elliott-Larsen Civil Rights Act (“ELCRA”), does not provide a cause of action against an educational institution for student-on-student sexual harassment. The Court reversed the 2022 decision of the Michigan Court of Appeals, citing the plain language of the statute and Michigan caselaw.

Case Background

John Roe and Jane Doe were fourth-grade students in the same classroom. Roe repeatedly touched and interacted with Doe in a sexually inappropriate manner. Their elementary school took a variety of actions in response to the harassment, including, but not limited to, suspending Roe, moving him to a different classroom, and assigning him to a different lunch period.

Doe withdrew from the school for her fourth and fifth grade years. She enrolled at the District’s junior high school for her sixth-grade year. Because Doe was going to be in the same school as Roe, her parents met with administrators to discuss ways the school would ensure Roe would not harass Doe again. Despite the school’s actions, Roe continued to harass her. Doe transferred to another school and Roe was expelled for assaulting another female student.

Plaintiff filed suit under the ELCRA against the District, alleging that the District failed to stop a student’s sexual harassment against another student. The trial court granted defendants’ motion for summary disposition because Plaintiff 1) failed to state a claim on which relief can be granted and 2) there was no genuine issue as to any material fact.

Plaintiff appealed. Although the Court of Appeals affirmed, it ruled that “an educational institution may be held vicariously liable under the ELCRA on the basis of the doctrine of in loco parentis.” Nonetheless, it held that summary disposition was proper because Plaintiff failed to show a genuine dispute of fact about whether defendants took prompt and appropriate remedial action. Plaintiffs appealed to the Michigan Supreme Court.

Michigan Supreme Court Holding

The Supreme Court rejected the doctrine of in loco parentis as applied to student-on-student sexual harassment for holding an educational institution vicariously liable. First, the Supreme Court disagreed with the Court of Appeals’ finding that “having some degree of control over a student is sufficient to impute ELCRA liability against a school district for student-on-student sexual harassment. Although the Supreme Court acknowledged that the ELCRA incorporates respondeat superior and agency doctrines – it disagreed that the ECLRA encompassed in loco parentis doctrine. After looking at the language of the ELCRA, the Court found “no indication that the Legislature intended to incorporate the doctrine of in loco parentis in order to make schools liable for student-on-student sexual harassment.”

The Supreme Court’s decision was a based on a majority opinion.  Justice Megan Cavanagh concurred with the majority, rejecting the applicability of in loco parentis to the student’s ELCRA claims but highlighting the need for the Court of Appeals to reconsider the plaintiff’s motion for summary disposition. Justice Richard Bernstein dissented, arguing that the ELCRA does provide for a separate cause of action for hostile-educational-environment claims based on student-on-student sexual harassment. Because school districts “exercise a degree of control over their students via the in loco parentis doctrine,” Justice Bernstein reasoned that “schools may be responsible for how their employees manage student behavior.”

Student-on-student harassment is a difficult issue to manage for the families and school who enroll these students, but the key takeaway from this case is that the ELCRA does not provide a vicarious-liability cause of action against an educational institution for student-on-student sexual harassment.

If you have any questions or would like to schedule sexual harassment training for your school district, please feel free to contact Marshall Grate, Bailey Kadian, Mary Bradley, or any other member of Clark Hill’s Education team.

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