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Appeals Court Eases Title IX Deliberate Indifference Standard for Universities in Faculty-Student Reports

Wamer v. University of Toledo, 27 F.4th 461; United States Court of Appeals, Sixth Circuit; March 2, 2022

By Dan Fotoples, J.D., M.A., Senior Content Developer, TNG Consulting

Jaycee Wamer, a University of Toledo (“University”) undergraduate student, reported unwelcomed sexual advances and sexual harassment by her instructor, Eric Tyger, to the Title IX Office, resulting in a three-week investigation and no action against Tyger. Following the investigation, Wamer struggled to focus on her studies and feared visiting campus for in-person classes. The University eventually placed Tyger on leave six months later after Wamer sought additional faculty support. Wamer alleged Tyger began to smear her reputation. The University ultimately terminated Tyger.


Wamer sued the University for deliberate indifference to teacher-on-student sexual harassment in violation of Title IX. The District Court granted the University’s motion to dismiss for failure to state a claim, applying the standards outlined by the Sixth Circuit Court of Appeals in Kollaritsch v. Michigan State. Wamer appealed.


In May 2018, Wamer was completing a final project for Tyger’s class at the University’s Media Center when Tyger came from behind and placed his arm around her, resting his arm on Wamer’s chest while touching her hair. Wamer continued working on the project and, upon completion, asked to use Tyger’s office printer to print the project for submission. Tyger gave Wamer permission, but did not move from his seat, so Wamer had to reach across his lap to print the assignment. As Wamer did so, Tyger leaned his head against Wamer and placed his hand on her thigh, telling Wamer that she smelled good. Tyger also asked Wamer about her job at a state park, mentioning he previously worked there and would use empty rooms at the park to have sexual intercourse with women.[1]

That evening and the following day, Tyger sent Wamer text messages requesting information regarding her work schedule, insisting she “better come visit him again,” and eventually texting, “Or don’t answer me. It’s cool,” when Wamer did not respond.[2]

Additionally, Wamer alleged that Tyger frequently made inappropriate comments to students, including referencing his past drug overdose and stating he would not have gotten married so young if his wife had not been pregnant. Tyger also made comments about the #metoo movement, saying that he believed the women were “asking for it.”[3]

Two days after receiving Tyger’s text messages, Wamer contacted another faculty member, Kevin O’Korn, and each submitted a complaint to the University Title IX Office. The Title IX Office contacted Wamer, asking if she would be comfortable attending a face-to-face interview on campus. Wamer responded that she was not comfortable doing so. Wamer alleges that she was afraid of encountering Tyger on campus and feared retribution for making a report. According to Wamer, the University informed her that it would continue to pursue the case against Tyger even if she did not come in for an interview. Wamer asserts that she never indicated that she was choosing not to pursue the complaint against Tyger or that she did not want the University to investigate.

Three weeks later, the University notified Wamer that it was closing its investigation and would be taking no action. Wamer argues she would have attended an interview and otherwise fully participated in the investigation if she had known that the University would end its investigation otherwise.

After the University’s decision to close the investigation, Wamer reported difficulty concentrating on her studies and avoided coming to campus. Eventually, she changed her major and enrolled in online classes.

In October 2018, five months after the University closed its investigation, O’Korn arranged a meeting between Wamer and a senior faculty member, Deloris Drummond, to discuss Wamer’s allegations. Drummond reported the allegations to the department chair, who reported it to the Title IX Office. In response, on November 27, 2018, the University placed Tyger on administrative leave and commenced an investigation, which resulted in a termination recommendation.

Wamer alleged that, while on leave, Tyger “attempted to smear [her] reputation among the campus community” by naming her as the Complainant, publicizing her grades, and accusing her of lying.[4]


The question at issue in this case is whether the Kollaritsch test governing deliberate indifference cases applies to faculty-on-student harassment. The Kollaritsch test includes five elements:

  1. An incident of actionable sexual harassment
  2. Institution has actual knowledge of the harassment
  3. Another incident of actionable sexual harassment occurs, post-notice
  4. The additional incident would have not happened but for the deliberate indifference of the institution’s response to the first incident
  5. The Title IX injury is attributable to the additional harassment[5]

Generally, the Kollaritsch test describes a “post-notice” harassment requirement.

Wamer did not claim post-notice sexual harassment. Therefore, in applying the Kollaritsch test, the district court held that Wamer failed to state a claim of deliberate indifference.

On appeal, the court deviated from Kollaritsch because Kollaritsch addressed claims of peer harassment, whereas this case concerns a claim of employee-on-student harassment. Citing a foundational Title IX case, Davis v. Monroe Cty. Board of Education,  the court explained that the relationship between the harasser and victim is critical to the analysis. As such, the court determined that Kollaritsch did not directly apply.

The court engaged in an extensive caselaw analysis regarding the differences between peer harassment and teacher-on-student harassment. The court stated that when a teacher sexually harasses a student, “it can be more easily presumed that the harassment would undermine and detract from the student’s educational experience” because teachers form the core of educational access and experience.[6] An act of sexual harassment by a teacher or professor undermines the student’s ability to benefit from and participate in the educational program. Considering these factors, the court held that requiring an additional post-notice incident of harassment in teacher-student deliberate indifference cases would undermine Title IX.

The court referred to the Gebser standard for its analysis, stating that a Complainant must demonstrate the following:

  1. Teacher-on-student sexual harassment
  2. An official with authority to take corrective action had notice of the harassment
  3. The institution’s response was clearly unreasonable
  4. The institution’s deliberate indifference was discriminatory

The court focused on the fourth requirement, choosing to adopt a causation test used by other federal appeals courts. A party can satisfy the causation requirement by showing that, following the institution’s unreasonable response:

  1. They experienced an additional instance of harassment, or
  2. An objectively reasonable fear of further harassment caused them to take specific reasonable actions to avoid harassment, which deprived them of the educational opportunities available to other students.

When assuming Wamer’s allegations to be true, which is required when a court hears a motion to dismiss, Wamer satisfied the causation test. The appeals court overturned the district court’s decision to dismiss Wamer’s complaint.


  • When Title IX allegations include employee-on-student harassment, institutions may be subject to different liability standards than those for allegations of peer harassment. Also, given the impact of teacher-on-student harassment on the learning environment, educational institutions should be ready with flexible supportive measures and processes to monitor and address retaliation.
  • Educational institutions must clearly understand and document the complainant’s wishes and expectations regarding resolution and support following a report or formal complaint. The complainant should understand the Title IX process and the impact of their choice to participate or not participate, including whether an investigation could realistically occur without their participation. Investigators should encourage students to participate in investigations and be very clear about what could happen if the student chooses not to participate.
  • Title IX processes should be designed and implemented with flexibility while also maintaining compliance. It’s not clear whether the University offered a remote or virtual interview option in this case but having flexibility to offer remote options is important to allow for full and meaningful process participation.
  • Courts have blended the Davis and Gebser standards for over two decades, to the point where they have become indistinct from each other in practical application. It is notable that this case goes to great lengths to distinguish Gebser from Davis, setting up clearly differing standards for employee-on-student harassment in the Sixth Circuit from those applying to student-on-student harassment. The appeals court makes assumptions about the impact of employee-on-student harassment being distinguishable from the impact of student-on-student harassment. Such generalized conclusions may not be followed by other circuits. If they are, that may prime a future case to go to the Supreme Court to clarify whether Title IX has one liability standard or two, and if two, why protections are higher for employee harassment than peer harassment. Given identical acts of harassment, the reasoning of the Sixth Circuit that the identity of the perpetrator is a differentiator may seem both arbitrary and specious.

Read more Campuses and the Courts blogs here.

[1] Wamer v. University of Toledo, 27 F.4th 461, 463 (6th Cir. 2022).

[2] Id.

[3] Id. at 464.

[4] Id.

[5] Id. at 467.

[6] Wamer at 471.