On Petition for Rehearing En Banc
United States District Court for the Eastern District of Michigan at Detroit.
No. 2:17-cv-10781—Bernard A. Friedman, District Judge.
Argued En Banc: October 7, 2020
Decided and Filed: December 11, 2020
Before: COLE, Chief Judge; MOORE, CLAY, GIBBONS, SUTTON,
GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR,
BUSH, LARSEN, and NALBANDIAN, Circuit Judges.
SUTTON, Circuit Judge. Rebecca Foster suffered peer-on-peer sexual harassment while
enrolled in the University of Michigan’s Executive MBA program. At issue in this Title IX case
is whether the University was “deliberately indifferent” to her plight. Davis v. Monroe Cnty. Bd.
of Educ., 526 U.S. 629, 647 (1999). It was not. At each stage, the University ratcheted up
protections for her: from a no-contact order after the first complaint to a requirement that the
harasser stay in a separate hotel for the program’s last three-day session to a removal from the third
day of the session to an order that he not attend graduation. That does not constitute deliberate
indifference as a matter of law, and accordingly we affirm the district court’s summary judgment
decision in favor of the University.