If Courts Can’t Agree on Who an “Appropriate Person,” Is for Notice of Sexual Harassment Under Title IX, How Can We Expect a Student in Crisis to Do So?
Lessons from Kesterson v. Kent State University, No. 18-4200 (6th Cir. 2020)
In 2016, Lauren Kesterson filed suit against Kent State University (KSU), former KSU softball coach Karen Linder, and former interim KSU softball coach Eric Oakley. She asserted that Linder and Oakley violated her free speech and equal protection rights related to retaliation against her for reporting an alleged rape. Kesterson further alleged KSU violated Title IX. The district court granted summary judgment to KSU on all of Kesterson’s claims. Kesterson appealed the district court’s decision in October 2019. The Court of Appeals gave Kesterson a win on some of her claims but upheld the dismissal of others.
SUMMARY OF FACTS:
- Lauren Kesterson was a scholarship student-athlete enrolled at KSU beginning in the fall of 2012. Karen Linder was the softball coach who recruited Kesterson to KSU.
- Linder’s son Tucker was also a KSU student and member of the baseball team. Kesterson met Tucker a few weeks after arriving on campus and the two became friends.
- Kesterson alleged Tucker sexually assaulted her in her residence hall in December 2012.
- In May 2014, Kesterson told Linder about the alleged sexual assault involving Linder’s son Tucker. Linder was the first KSU employee to learn of the alleged incident.
- KSU’s sexual harassment policy designated all employees as mandatory reporters. Linder confirmed she did not notify any other KSU employee of the allegations. “While Linder testified that she believed that Kesterson did not want her to report the assault, she admitted that she was concerned about the fallout and how it would affect her son if he was accused of rape and the matter was investigated” (Kesterson v. Kent State University, 5:16-cv-298).
- Shortly after Kesterson’s disclosure to Linder, another KSU softball player informed Linder that she had been sexually assaulted by another male KSU student-athlete. Linder connected the reporting student with on-campus resources and reported the incident to the senior woman administrator and deputy Title IX coordinator.
- Kesterson alleges Linder’s behavior toward Kesterson changed significantly following her disclosure about the incident involving Tucker. Such changes include limiting Kesterson’s playing time, no longer addressing Kesterson by her nickname, removing her from the starting lineup, and changing her to a less desired position on the field.
- Linder also required members of the softball team to attend events at her home. When Kesterson asked if the events could be held at a different location, Linder responded that Tucker would not be home, so it would not be a big deal. Kesterson reports that it was difficult for her to attend the events because the walls of Linder’s home were adorned with photos of Tucker.
- Kesterson reported Linder’s retaliatory behavior and the underlying sexual assault allegations to a KSU deputy Title IX coordinator in August 2015. KSU subsequently launched an investigation into the allegations against Linder.
- On August 28, 2015, Linder was given the option to either resign or be terminated for her failure to report Kesterson’s allegations of sexual assault, with an aggravating factor being the conflict of interest arising from her son being the respondent to the allegations. She chose to resign, and Oakley was named interim head coach.
- Tucker did not enroll at KSU at any point after his mother’s resignation.
FINDINGS AND SIGNIFICANT ISSUES:
- The district court, citing Ross v. University of Tulsa, 859 F.3d 1280 (2017), determined that as a coach, Linder did not have the “authority to impose discipline upon students who were not softball players,” and as such she was not an “appropriate person” to put the institution on notice of student-on-student sexual harassment under Title IX.
- On appeal, the circuit court majority opinion affirmed the district court’s ruling on this aspect of Kesterson’s lawsuit. Citing Hill, 797 F.3d at 971; Davis, 526 U.S. at 640-41; and Gebser, 524 U.S. at 288, the court stated, “a university employee’s ability to mitigate hardship or refer complaints to does not make them an ‘appropriate person’…Otherwise, every employee would qualify and schools would face a form of vicarious liability that Title IX does not allow.” However, in a dissenting opinion, Judge Jane B. Stranch asserted that her colleagues were too narrowly applying the “still developing” standard for determining a school’s actual knowledge of student-on-student cases, and “A rational juror could find Linder to be an ‘appropriate person’ to satisfy the notice standard…”
- Kesterson’s First Amendment retaliation claim succeeded, while her First Amendment prior restraint claim and her Fourteenth Amendment equal protection claims both failed according to the majority. Citing numerous cases, the court concluded: “a reasonable coach would have known at the time Linder acted that she could not retaliate against a student-athlete for reporting sexual assault.” The court determined that a factfinder, or jury, would be the appropriate entity to assess whether Kesterson can carry the burden of proof to establish that Linder retaliated against Kesterson based on Kesterson making allegations of sexual assault against Tucker, which amounts to free speech.
- This case highlights the sometimes uneven interpretations of courts in determining who an “appropriate person” is under the law for purposes of putting an institution on notice of student-on-student sexual harassment. Who is “appropriate” under the law may be different from who is mandated by institutional policy. Just because an institution deems someone a mandated reporter does not necessarily give rise to a cause of action based upon notice to the institution.
- Higher education institutions should give thought to whether to be intentional in distinguishing between a “mandatory reporter” and an “official with authority” (OWA) in their policies, publications, and education programs. In theory, all instances of notice should be transmitted to the Title IX Coordinator, but as this case and many others show, mandated reporting has the flaws of any system that relies on human consistency and discretion. Perhaps a better-informed student and employee population could avoid unduly relying upon mandated reporters by choosing to go directly to an OWA instead. The same flaws might exist if an OWA chooses to ignore notice, but one would hope that OWAs are significantly better trained than mandated reporters, especially given the institutional liability for an OWA’s failure to report.
- Although this case originated within a higher education setting, it highlights a meaningful distinction between higher education and K-12 made by the 2020 Title IX regulations. The regulations articulate that all employees in the K-12 environment are OWAs and thus would more likely be considered “appropriate persons” by a court for purposes of putting a school or district on notice of alleged student-on-student sexual harassment. Thus, for K-12, mandated reporters (a policy term) and OWAs (a legal designation) is the same thing, but per the regulations, colleges and universities may designate which employees are OWAs, and while all OWAs are mandated reporters, not all mandated reporters are OWAs.
In order to substantiate a claim of prior restraint under the First Amendment, “the alleged restraint must impose a ‘legal impediment.’” (See Alexander v. United States, 509 U.S. 544, 551 (1993)). An employee telling a student not to tell anyone about an alleged assault does not impose a legal impediment, according to the Sixth Circuit.
- With no qualified immunity on the First Amendment claim, this matter will go to a jury to decide whether Linder’s actions amounted to impermissible retaliation against Kesterson. It will probably settle before it gets to a jury.
 OWA is the term used by the 2020 Title IX regulations to identify an employee as an “appropriate person”.
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