Blog Post | 114 KY. L. J. ONLINE | October 2, 2025
Unreasonable Behavior or Unreasonable Results: The Seventh Circuit’s Approach to Deliberate Indifference and Its Implications
By: Austin Phillips, Staff Editor, Vol. 114
Every year, nearly two million students take the important step of enrolling in college, driven by the hope that earning a degree will open doors to future success.[1] Unfortunately, more than forty percent of these students will have their college experience marred by sexual harassment.[2] This is not a recent trend.[3] Universities have known about the prevalence of sexual harassment since at least the mid-nineties.[4] Despite this longstanding awareness, courts remain sharply divided over how far universities must go to combat sexual harassment under Title IX.[5] With its recent Arana opinion, the Seventh Circuit has thrust itself into the heart of this debate, correctly asserting that universities must be held accountable for unreasonable responses to known instances of sexual harassment.[6] Although the opinion has since been vacated for rehearing, the Seventh Circuit’s reasoning remains central to the ongoing discussion about Title IX claims.[7]
The significance of Arana’s analysis becomes clear when viewed alongside the precedent it interprets, Davis v. Monroe County Board of Education, and the circuit split that ensued.[8] In Davis, the Supreme Court established that students could bring a claim for “deliberate indifference” against their universities when the university responds unreasonably to known instances of sexual harassment.[9] Although the Court acknowledged that universities have some duty to protect their students from sexual harassment, it sought to limit liability to only circumstances where the university “has some control” over the harassment.[10]
Thus, under Davis, a student can only bring an action for deliberate indifference if three elements are met: (1) the university must have actual notice that harassment has taken place; (2) the harassment must be “so severe, pervasive, and objectively offensive that it can be said to deprive the victim of access to educational opportunities or benefits[;]” and (3) the university’s response must be “deliberately indifferent.”[11] In short, Davis seeks to balance a university’s obligation to protect students from known sexual harassment with realistic constraints on its control over students outside the classroom.[12]
Davis’s shortcoming is that it is backward-looking. Simply put, the Court did not address how the deliberate indifference standard applies in situations where a university’s indifference could lead to future instances of sexual harassment.[13] This oversight allowed the circuits to independently interpret when a university has acted with deliberate indifference.[14] The divide between circuits specifically concerns the point at which the causal link between the university's indifference and the student’s deprivation of access to educational opportunities manifests.[15]
For example, the Sixth Circuit has held that the causal link between a university’s actions and the deprivation of a student’s access to educational benefits can only be proven if the student suffers post-notice harassment.[16] In other words, if a student is sexually harassed and, after being notified of the harassment, their university does nothing to address the situation, the student must still suffer a second instance of sexual harassment by the same perpetrator in order to even bring a claim, much less succeed on that claim. To support its position, the Sixth Circuit points to Davis’s pervasiveness requirement, arguing that a single instance of sexual harassment cannot be pervasive.[17] The obvious flaw in this logic is that the post-notice harassment standard does not incentivize universities to prevent future harassment; instead, it insulates them from liability until a subsequent incident of harassment occurs.[18]
The Seventh Circuit’s analysis, by contrast, holds the university to a higher standard, requiring the university to show that it did not act with deliberate indifference.[19] Under Arana, a university must still be notified of the sexual harassment and respond with deliberate indifference to be liable, but, critically, the university’s indifference need only make a student more vulnerable to harassment.[20] Thus, Arana would allow a student to hold their university accountable for deliberate indifference before being sexually harassed a second time.[21]
The Seventh Circuit’s reasoning is a more faithful interpretation of Davis for two distinct reasons. First, Arana instructs courts to consider deliberate indifference claims under a totality of circumstances approach.[22] The Davis Court did not intend, as the Sixth Circuit has interpreted it, to create a bright-line standard for barring claims simply because the university's deliberate indifference has not sufficiently exposed the student to subsequent harassment.[23] Under Arana, courts can properly weigh the severity and pervasiveness of the harassment against the university’s response to determine whether the university has acted reasonably given the circumstances.
Second, the Seventh Circuit’s approach does not enable universities to use the courts as a means to shield themselves from liability.[24] The Davis Court intended for deliberate indifference claims to incentivize universities to be proactive in responding to known instances of student-on-student harassment, without exposing universities to frivolous litigation.[25] Davis’s three-element test strikes a balance between protecting students from harm and universities from liability. Of course, a university cannot be expected to protect students against harassment it is not aware of.[26] Likewise, students must be able to trust that when egregious harassment occurs on campus, their university will step in to protect them. Arana’s approach maintains equilibrium by allowing students to bring claims for unreasonable behavior, rather than requiring an unreasonable result.[27]
Even if the Seventh Circuit reaffirms Arana’s deliberate indifference standard, it would not be binding in every state. Only the Supreme Court has the authority to dictate the proper interpretation of Davis. In other words, Kentuckians are stuck with the Sixth Circuit’s Kollaritsch analysis until the Supreme Court decides to act. Nevertheless, Arana’s reasoning remains a crucial contribution to the ongoing discourse on how deliberate indifference claims are evaluated. The federal circuits remain sharply divided on when universities can be held liable for deliberate indifference, with three circuits requiring post-notice harassment and three allowing pre-notice harassment claims.[28] Thus, Arana’s analysis provides the Supreme Court with a template for resolving this divisive split and establishing a uniform standard that reinforces the guiding principles of Davis.[29]
Regardless of whether the Supreme Court decides to act, Arana bolsters the claims of students in Kentucky who suffered from their university’s deliberate indifference to known sexual harassment. Its framework recognizes that sexual harassment deprives students of educational opportunities well before a second incident occurs and encourages universities to act promptly when they become aware of such conduct.[30] Perhaps Arana’s perspective will finally persuade the Sixth Circuit to allow students to bring deliberate indifference claims for unreasonable behavior, rather than forcing them to wait for unreasonable results.
[1] See Figure 1. Immediate College Enrollment Rate of High School Completers, by Level of Institution, 2012 - 2022, Nat’l Ctr. Educ. Stat. (2024), https://nces.ed.gov/fastfacts/display.asp?id=51.
[2] David Cantor, Bonnie Fisher, Susan Chibnall, Shauna Harps, Reanne Townsend, Gail Thomas, Hyunshik Lee, Vanessa Kranz, Randy Herbison & Kristin Madden, Report on the AAU Campus Climate Survey on Sexual Assault and Misconduct 79 (Westat, 2020) https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/Campus-
Safety/Revised%20Aggregate%20report%20%20and%20appendices%201-7_(01-16-2020_FINAL).pdf.
[3] See Roberta J. Ogletree, Sexual Coercion Experience and Help-Seeking Behavior of College Women, 41 J. Am. Coll. Health, 149 (1993).
[4] See generally Id. (discussing the prevalence of sexual coercion and consensual sex on college campuses, emphasizing the importance of informed staff to support victims of sexual coercion). In the early nineties, Congress passed the Clery Act, which required universities to track harassment statistics on their campuses. See Jeanne Clery Campus Safety Act, 20 U.S.C. § 1092.
[5] Jacob R. Goodman, Note, Deliberately Indifferent: Institutional Liability for Further Harassment in Student-on-Student Title IX Cases, 75 Vand. L. Rev. 1273, 1284–86 (2022).
[6] See Arana v. Bd. of Regents of the Univ. of Wis. Sys., 142 F.4th 992, 1001–02 (7th Cir. 2025). Under Arana the Seventh Circuit would join the First, Fourth, and Eleventh Circuits in holding that a Title IX claim against a university can be supported by a single instance of pre-notice harassment. See id. at 1001–02, 1009.
[7] Arana v. Bd. of Regents of the Univ. of Wis. Sys., 142 F.4th 992 (7th Cir. 2025) (order granting apellees’ petition for rehearing).
[8] See Id. at 1000–02.
[9] See Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 651 (1999). In Davis, the Court explained that a university’s response could be unreasonable if a student notified administrators that a peer’s physically threats prevented her from using a school resource, like a computer lab, and the university ignored the students request for aid. Id. at 650–51. In applying Davis’s deliberate indifference standard, courts have typically held that a university’s behavior could be unreasonable when the university knows that harassment has deprived a student of an educational resource or benefit but makes the deliberate choice to supervise that particular resource or benefit. See e.g., Williams v. Bd. of Regents of Univ. Sys. Of Ga., 477 F.3d 1282, 1295 (11th Cir. 2007).
[10] Davis, 526 U.S. at 644–45. Although Davis did not explicitly identify such an affirmative duty, it acknowledges universities can be held responsible for failing to protect students from sexual harassment under Title IX and at common law. Id. at 644. Moreover, Davis’s analysis relies on that of Gebser v. Lago Vista Indep. Sch. Dist., which held that universities have a “duty not to discriminate on the basis of sex,” and that when a “supervisor sexually harasses a [student] . . . that supervisor discriminates on the basis of sex.” 524 U.S. 274, 281–82 (1998). Davis extended this analysis to include instances where a university’s deliberate indifference to known student-on-student sexual harassment “effectively ‘caused’ the discrimination.” See Davis, 526 U.S. at 642–43 (citing Gebser, 524 U.S. at 291).
[11] Davis, 526 U.S. at 650. In instances where a student is the victim of severe student-on-student sexual harassment, the second element of the claim is met, because Title IX specifically intended to protect against sexual harassment. See id. at 651; Gebser, 524 U.S. at 281.
[12] Davis, 526 U.S. at 645–46.
[13] See Goodman, supra note 4, at 1282.
[14] Id. at 1283–86.
[15] See Gabrielle Brown, Second Time’s the Harm: The Sixth Circuit’s Deliberately Indifferent Approach to Sexual Harassment, 65 B.C. L. Rev. 2183, 2189–90, 2192–94 (2024).
[16] See Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 623–24 (6th Cir. 2019) (holding that a plaintiff must show some further incident of “post-actual-knowledge harassment” to bring a deliberate indifference claim).
[17] See id. at 620–22 (“‘pervasive’ means . . . multiple incidents of harassment; one incident of harassment is not enough.”). The Sixth Circuit also requires a student to prove that the subsequent harassment would not have happened but for the university’s deliberate indifference. Id. at 622 (holding that “Davis requires a showing the school’s ‘deliberate indifference “subject[ed]” its students to harassment,’ necessarily meaning further actionable harassment.”). “Actionable harassment” refers to harassment that is “so severe, pervasive, and objectively offensive that it [deprives] victims of access to the educational opportunities.” Brown, supra note 11, at 2187 (citing Davis, 526 U.S. at 650).
[18] See Brown, supra note 11, at 1293–94.
[19] See Arana v. Bd. of Regents of the Univ. of Wis. Sys., 142 F.4th 992, 1001–02 (7th Cir. 2025).
[20] Id. at 1002. The Davis Court stated that deliberate indifference must “‘cause [students] to undergo’ harassment or ‘make them liable or vulnerable’” to it.” Davis, 526 U.S. at 645 (citing Random House Dictionary of the English Language 1415 (1966)). The Davis Court’s acceptance for claims in instances where a universities deliberate indifference merely made the student more vulnerable to future harassment is supported by legislative intent. Title IX was intended to prevent the deprivation of educational benefits, which typically occurs long before an instance of post notice harassment occurs. See Brown, supra note 11, at 2192–2193, n.64; see also, Arana, 142 F.4th, at 1004–05 (holding that when harassment leaves a student unable to “enjoy the full panoply of educational opportunities that made [their] classmates' experiences enriching,” they have deprived of “educational opportunities because, after all, education is more than academics”).
[21] Arana, F.4th at 1001–02. While the Seventh Circuit’s approach allows for a single instance of pre-notice harassment to serve as the basis for a Title IX claim, the harassment suffered must be egregious, and the university’s response must be “unreasonable.” Id.
[22] Id. at 1002.
[23] See Davis, 526 U.S. at 649.
[24] See Arana, 142 F.4th at 1001–02; see also Brown, supra note 11, at 1293–94 (explaining that a post-notice sexual harassment requirement allows universities to “remain idle and wait for its students to experience further harm before facing any consequences for that decision”).
[25] Davis, 526 U.S. at 648–49.
[26] See id.
[27] See Arana, 142 F.4th at 1002 (explaining that allowing egregious pre-notice harassment to support a deliberate indifference claim “promotes the appropriate balance between Davis's twin aims of preventing students from being ‘denied access to educational benefits and opportunities on the basis of gender’ and only holding institutions liable for their ‘own failure to act.’” (citing Davis, 526 U.S., at 645, 650)).
[28] See Goodman, supra note 4, at 1282–83; Arana, 142 F.4th at 1001–02.
[29] See Arana, 142 F.4th at 1002 (explaining the twin aims of Davis).
[30] See id. at 1002, 1004–05.