UnSOLved: The Competing Policies of SOL, Title IX, and Everything In Between

by Hailey Martin, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

Title IX affords protection to students against educational discrimination. However, this kind of discrimination is not always identifiable at the time it occurs. This creates an issue regarding the statute of limitations, which limits the time for a plaintiff to bring a claim in court. Statute of limitations can potentially bar hundreds of young men from bringing claims of sexual abuse. This article will discuss the recent decision in Snyder-Hill v. Ohio State University by the Sixth Circuit, holding that the district court erred by concluding the plaintiffs’ claim under Title IX was barred by the statute of limitations.¹ Section II will provide background on the case, the court’s holding, it’s application of the discovery rule, and the dissenting opinion. Section III will discuss policy implications as well as other circuits application of the discovery rule to Title IX claims. Finally, Section IV will conclude by stating the Sixth Circuit properly considered the purposes of the statute of limitations, Title IX, and the discovery rule in holding the plaintiffs’ claims were not time-barred.

II. Background

During his time as university physician and athletic team doctor at the Ohio State University, Dr. Richard Strauss allegedly abused hundreds of young men during medical examinations between the years of 1978 and 1998.² Strauss is alleged to have committed at least 1,429 sexual assaults and 47 rapes.³ Plaintiffs, over 110 former Ohio State students, alleged that Ohio State knew about Strauss’s sexual abuse, covered it up, and failed to take action.⁴ The law firm, Perkins Coie, completed an investigation and their report found that Ohio State received complaints from students and took no meaningful action until they quietly suspended Strauss in January 1996.⁵ The plaintiffs relied on this investigation to support their allegations that Ohio State knew about the conduct and failed to take action.⁶

Plaintiffs sued Ohio State under the Title IX statute which was enacted to combat sex discrimination in education programs or activities that receive federal financial assistance.⁷ The central issue in this case was to determine when the plaintiffs’ claims accrued. Given that most plaintiffs were young teenagers at the time of the abuse, combined with the fact that Strauss gave false medical explanations for his actions, they claimed they did not know of Strauss’ abuse until 2018.⁸ However, nine plaintiffs alleged they knew of the abuse at the time it happened.⁹ In contrast, all plaintiffs claimed they could not have known about Ohio State’s involvement in the abuse at the time and therefore the claim started accruing in 2018.¹⁰

Since Title IX does not contain its own statute of limitations, it must borrow from Ohio’s two-year statute of limitations for personal injury claims.¹¹ When Congress does not provide a statute of limitations for a federal cause of action, the court must look to state laws for the length of statute of limitations.¹² However, federal standards govern when the statute begins to run, the question on appeal here.¹³

There are two general approaches courts take when answering this question. The first is the discovery rule which provides that “the statute of limitations begins to run when the reasonable person knows, or in the exercise of due diligence should have known, both his injury and the cause of that injury.”¹⁴ Therefore, a claim accrues when a plaintiff knows the existence and the cause of his injury, hence “discovering” the injury.¹⁵ In a Title IX claim, such as this one, the claim would start accruing not when a plaintiff knows of the sexual abuse, but when the plaintiff knows the University knew about the abuse and failed to take action. The majority held this is the controlling standard in this case and therefore the plaintiffs’ claim was not time-barred.¹⁶

The second approach is the occurrence rule which states the statute of limitations begins to run “when the wrongful act or omission results in damages . . . and the cause of action accrues even though the full extent of the injury is not then known or predictable.”¹⁷ This article will explore later the dissenting opinion which argues this should have been the controlling standard, plaintiffs’ claim accrued when they were abused by Strauss, and therefore their claim should be time-barred.¹⁸

A. Majority Opinion

The Sixth Circuit held that the discovery rule applies to Title IX claims.¹⁹ The court found the discovery rule seeks to protect plaintiffs who lacked the information to bring a claim or when the injury is not apparent.²⁰ The majority held that applying the discovery rule in the Title IX context is consistent with how it is applied in the § 1983 context as well as with the remedial purposes of Title IX.²¹ Since Title IX “provides relief broadly to those who face discrimination” applying the more restrictive occurrence rule would be counter to Title IX’s remedial purpose.²²

The court analyzed the scope of the discovery rule. The Sixth Circuit joins seven other circuits, along with the Supreme Court, which all apply the discovery rule, and that a “plaintiff’s ignorance of his legal rights does not affect the accrual date contrasted to a plaintiff’s ignorance of the fact of his injury or its cause which does affect the accrual date.”²³ In contrast, Ohio State argues that the holding in Rotella v. Wood should control.²⁴ Under Rotella, discovery of the injury, and not the discovery of the other elements of a claim, should determine when the statute of limitations clock begins.²⁵ However, the majority rejects this argument.²⁶ In 2015, the Sixth Circuit held that to determine when a plaintiff discovers the injury that is the basis of their action, courts are to look to what events a typical person would recognize to protect his or her rights.²⁷ Individuals cannot be alerted their rights are in danger without knowledge of the harm’s causation.²⁸ In Snyder-Hill, the students must know their school exposed them to a heightened risk of harassment before they have a viable claim.²⁹

Finally, the court determined that the plaintiffs adequately alleged their claims did not start accruing until 2018.³⁰ Since Ohio State is a vast institution and the investigation took twelve months to conduct, the court contends that it is plausible plaintiffs lacked reason to know that Ohio State knew of Strauss’ abuse.³¹ Additionally, the majority found a plaintiff’s duty to investigate does not trigger accrual of the statute of limitations.³² Therefore, even if the plaintiffs could have investigated when the abuse happened in any given year, the clock does not start ticking if the plaintiff would not have learned that Ohio State injured them.³³

Ultimately, since the plaintiffs plausibly alleged they did not know Ohio State caused their injury, nor that they were abused at the time that sexual abuse happened, these reasons were all legitimate grounds to delay accrual.³⁴

B. Dissenting Opinion

The dissent argues that the majority’s decision “effectively nullifies any statute of limitations for Title IX claims based on sexual harassment.”³⁵ The dissent focuses on the policy considerations behind the statute of limitations.³⁶ Statutes of limitations are intended to “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.”³⁷ Judge Guy, the dissenting judge, acknowledges the seriousness sexual abuse implicates on its victims, but states the court cannot ignore well-established principles regarding when claims accrue.³⁸

Judge Guy argues that the occurrence rule should apply to Title IX claims.³⁹ Under standard tort law, accrual occurs when the plaintiff has a complete and present cause of action when “the plaintiff can file suit and obtain relief . . . and the cause of action accrues even though the full extent of the injury is not then known or predictable.”⁴⁰ Judge Guy compares this situation to the tort of battery in which battery is complete upon “physical contact, even though there may be no observable damage at the point of contact.”⁴¹ Therefore, he contends that each plaintiff’s claim accrued no later than the last sexual abuse by Strauss.⁴²

According to the dissent, the discovery rule only applies in a few well-defined situations.⁴³ The discovery rule originally arose in fraud cases as an exception to the general limitations rule and the Supreme Court held it applies when a plaintiff has been injured by fraud and remains in ignorance of fraudulent conduct.⁴⁴ Additionally, the discovery rule exception applies when the legislature explicitly states in a statute setting limitation periods. Here, Congress does not provide a statute of limitations that expressly includes the discovery rule language. Judge Guy distinguishes two other cases in which the Court applied the discovery rule which stated that Federal Tort Claims Act and Federal Employers Liability Act claims are inherently different than medical malpractice claims and latent injury cases because the plaintiff has little reason to suspect any harm.⁴⁵ He concludes that a Title IX injury is not the result of “accumulated effects of [a] deleterious substance” that only becomes “manifest” decades later.⁴⁶

The dissent next discusses that even if the discovery rule were to apply, the plaintiffs are untimely.⁴⁷ He states there is no other plausible date for the clock to start ticking than when plaintiffs knew Strauss injured them.⁴⁸ He states it is irrelevant whether plaintiffs labeled Strauss’ conduct as sexual abuse as opposed to just being injured, as the discovery rule makes no distinction.⁴⁹ The accrual of a claim, he states, falls back on whether plaintiffs knew they were injured by Strauss.⁵⁰

III. Discussion

The policy considerations behind the statute of limitations guide the discussion behind this decision. Statute of limitations have two competing interests. On the one hand, they “provide plaintiffs with an incentive to bring suit quickly; on the other hand, they allow plaintiffs enough time to vindicate their rights.”⁵¹ Refusing to allow a plaintiff to bring suit even when they failed to know they had a claim goes strictly against the second interest in allowing plaintiffs to vindicate their rights. The statute of limitations was designed to “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.”⁵² Statute of limitations promote repose, peace of mind, reduce uncertainty, and minimize deterioration of evidence.⁵³

However, one must view the purpose of the statute of limitations concurrently with the purpose of Title IX. Title IX was enacted to avoid the use of federal resources to support discriminatory practice as well as provide individual citizens effective protection against those practices.⁵⁴ Title IX is meant to provide relief broadly against educational institutions and its language should be read broadly.⁵⁵ Since courts must rely on state law when applying statutes of limitation to Title IX claims, courts must look to the purpose and nature of the federal right, in addition to policy considerations, when selecting rules to apply.⁵⁶

The discovery rule “comports with basic notions of fairness.”⁵⁷ An amici curiae brief filed by law professors in support of the plaintiffs argues compellingly that it would be inherently unfair for a court to bar a victim from pursuing a remedy when the victim is completely unaware of the right of action. Additionally, the discovery rule helps avoid the situation in which even the most aware and careful victims have not discovered the wrong done onto them.⁵⁸ Here, although Strauss’ abuse may have been obvious at the time, the discovery rule requires that the statute of limitations runs when plaintiffs had reason to know that Ohio State was aware of Strauss’ abuse.

The biggest flaw in the dissenting opinion is the failure to identify the proper “injury.” Plaintiffs are suing the University under Title IX. As stated above, Title IX creates a federal cause of action against an educational institution. Therefore, the injury that Title IX remedies, “is not simply the employee’s sexual abuse, but the injury that flows from the conduct of the defendant institution–its culpable knowledge of, and indifference to, that abuse.”⁵⁹ The dissent focuses solely on when plaintiffs knew they were sexually abused by Strauss. This is irrelevant in this case. Since the claim is against Ohio State, the analysis is on Ohio State’s failure to take action. Therefore, the statute of limitations begins to run when plaintiffs knew of Ohio State’s failure to take action.

The majority argues not applying the discovery rule would result in an “unnecessary circuit split.”⁶⁰ Although, the Sixth Circuit was correct in applying the discovery rule to this case, the cases the majority cites raise interesting issues.

In Doe v. Howe Military School, the Seventh Circuit held that the plaintiff’s actions were time-barred.⁶¹ In Howe, plaintiffs argued that the statute of limitations should begin running from the date that they became aware of their psychological injuries, not at the time of the underlying events.⁶² In Doe v. Shults-Lewis and Family Services, the court held there is nothing to cause a delay in the commencement of the cause of action when the plaintiff retains memories of the events.⁶³ In light of this decision, since both the plaintiffs in Doe v. Howe Mil. Sch. remembered the events of the abuse, nothing prevented them from asserting their claims during the two years after they reached the majority age, and therefore their claim was time-barred.⁶⁴ The fact that plaintiffs had recollection of their injury was enough to start the limitations clock. This is completely contrary to the policy behind Title IX and statutes of limitation, depriving plaintiffs of their right to sue.⁶⁵

Additionally, the majority cites two cases that in fact declined to apply the discovery rule to Title IX cases.⁶⁶ In Twersky v. Yeshiva University, the Second Circuit held that the discovery rule applies in exceptional circumstances such as when a plaintiff is unaware they are being defrauded. ⁶⁷ The court held the plaintiff’s knowledge was sufficient to put them on at least inquiry notice as to the school’s awareness and indifference to the abusive conduct by the teachers.⁶⁸

In Varnell v. Dora Consolidated School District, the Tenth Circuit held that the general rule is that accrual occurs when the “plaintiff can file suit and obtain relief.”⁶⁹ Even though a plaintiff may not have known how harmful abuse was at the time, the accrual starts even when the full extent of the injury is not known or predictable.⁷⁰ In light of the extensive research and findings regarding the effects of sexual abuse, many of which were cited by amici curiae briefs in this case, this holding is concerning. As stated by the plaintiffs in Snyder-Hill, many did not know they were sexually abused. Some were young and had trust that their doctor was only conducting medical practices. Additionally, to reiterate, the analysis lies in the harm by Ohio State, not the sexual abuser. The court in Varnell incorrectly pinpoints when the plaintiffs knew about the sexual abuse, not the school’s failure to take action afterward.

The holding in Snyder-Hill is extremely important in protecting victims’ right to bring suit against their abusers. When dealing with sexual assault, allegations are to be taken seriously and with due care. The majority acknowledges this noting that sexual abuse, especially by a doctor, can be difficult for one to identify and acknowledge.⁷¹ Additionally, recognizing abuse can be even more difficult in the context of college athletics due to the “insular nature of teams, the immense trust and authority placed in coaches, and the culture of college athletics.”⁷² By applying the discovery rule to plaintiffs’ claim, the Sixth Circuit ensures fairness and due process for litigants to properly be heard in court. Although statutes of limitation protect abusers against delayed prosecution, victims must also be able to assert their right to sue. This opinion hopefully can guide future decisions regarding Title IX claims in light of some of the other circuits who fail to acknowledge the discovery rule.

IV. Conclusion

Sexual abuse acts and misconduct, as well higher education institutions hiding these actions by should always be condemned. Title IX was enacted to ensure citizens are protected from this educational discrimination while also promoting a healthy learning environment. Title IX claims can be difficult for potential litigants to identify due to the nature of the harm. Many times, abusers subtly harm their victims while the institutions they work under claim to lack knowledge as well. Consequently, victims may not realize the extent of their harm until much later. Victims of sexual abuse who innocently were unaware of their claim until the evidence presented itself should not be time-barred by the statute of limitations. The Sixth Circuit correctly held plaintiffs’ claim is not barred by the statute of limitations and accrual starts when the plaintiffs had reason to know of the University’s involvement, or failure to act.⁷³

Cover Photo by Agê Barros on Unsplash

Hailey Martin

Hailey Martin grew up in Columbus, Ohio and is a Double Bearcat at UC, majoring in psychology for undergrad. Outside of Law Review, Hailey serves on SBA as the Social Media Chair, on Family and Juvenile Law Club Exec, and is an SSG Leader. Outside of law school, Hailey enjoying cycling and working at Cyclebar, running, and staying active.

References

1
Snyder-Hill v. Ohio State Univ., No. 21-3981, 2022 WL 4233750, at *1 (6th Cir. Sept. 14, 2022).
2
Id.
3
Id. at *4.
4
Id. Students complained to Ohio State and more than fifty members of the Athletic Department Staff knew about the inappropriate conduct.
5
Id. at *6.
6
Id. at *4.
7
20 U.S.C. § 1681.
8
Id. at *9.
9
Id.
10
Id.
11
Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 729 (6th Cir. 1996).
12
Wallace v. Kato, 549 U.S. 384, 388, 394 (2007).
13
Sharpe v. Cureton, 319 F.3d 259, 266 (6th Cir. 2003).
14
Bishop v. Child’s Ctr. For Developmental Enrichment, 618 F.3d at 536 (6th Cir. 2010) (quoting Campbell v. Grand Trunk W. RR. Co., 238 F.3d 772,775 (6th Cir. 2001).
15
United States v. Kubrick, 444 U.S. 111, 113 (1979).
16
Snyder-Hill v. Ohio State Univ., No. 21-3981, 2022 WL 4233750, at *18 (6th Cir. Sept. 14, 2022).
17
Id. at *19 (Guy, J., dissenting) (quoting Wallace, 549 U.S. at 391).
18
Id.
19
Id. at *8.
20
Id.
21
Id. at *9.
22
Id. (citing Doe v. Univ. of Ky., 971 F.3d 553, 557 (6th Cir. 2020) (citing NCAA v. Smith, 525 U.S. 459, 466 n.4 (1999)).
23
United States v. Kubrick, 444 U.S. 111, 122 (1979); see Ouellette v. Beaupre, 977 F.3d 127, 136 (1st Cir. 2020); Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998); Miller v. United States, 932 F.2d 301, 303 (4th Cir. 1991); Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001); In re Copper Antitrust Litig., 436 F.3d 782, 789 (7th Cir. 2006); Bibeau v. Pac. Nw. Rsch. Found. Inc., 188 F.3d 1105, 1108 (9th Cir. 1999); Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003) (all applying the discovery rule).
24
Snyder-Hill, 2022 WL 4233750, at *18.
25
Rotella v. Wood, 528 U.S. 548, 555 (2000).
26
Snyder-Hill, 2022 WL 4233750, at *11.
27
Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 843 (6th Cir. 2015) (emphasis added).
28
Id.
29
Snyder-Hill, 2022 WL 4233750, at *11.
30
Id. at *13.
31
Id.
32
Id. at *14.
33
Id.
34
Id. at *15.
35
Id. at *17 (Guy, J., dissenting).
36
Id.
37
Id. (quoting Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-49 (1944)).
38
Id. at *18.
39
Id.
40
Id. (quoting Wallace v. Kato, 549 U.S. 384, 388, 391 (2007)).
41
Id. (quoting Restatement (Second) of Torts § 899, Comment c (Am. L. Inst. 1979)).
42
Id.
43
Id. at *20.
44
Merck & Co. v. Reynolds, 559 U.S. 633, 644-45 (2010).
45
Snyder-Hill, 2022 WL 4233750, at *21 (Guy, J., dissenting); see Urie v. Thompson, 337 U.S. 163 (1949); United States v. Kubrick, 444 U.S. 111 (1979).
46
Id. (quoting Urie, 337 U.S. at 169-70).
47
Id. at *22.
48
Id.
49
Id. at *23-24.
50
Id.
51
M. Lowenthal et al., Special Project, Time Bars in Specialized Federal Common Law: Federal Rights of Action and State Statutes of Limitations, 65 Cornell L. Rev. 1011, 1030 (1980).
52
Wood v. Elling Corp., 20 Cal. 3d 353, 362 (Cal. 1977).
53
See Tyler T. Ochoa & Andrew Wistrich, The Puzzling Purposes of Statutes of Limitations, 28 PAC. L.J. 453 (1997) (exploring an in-depth analysis of policies favoring and disfavoring limitations of actions).
54
Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).
55
Doe v. Claiborne Cnty., Tenn By & Through Claiborne Cnty. Bd. of Educ., 103 F.3d 495 (6th Cir. 1996).
56
Felder v. Casey, 487 U.S. 131, 139 (1988).
57
Brief for Cleary Gottlieb Steen & Hamilton LLP et al. as Amici Curiae in Support of Plaintiffs-Appellants, Snyder-Hill v. Ohio State, No. 21-3981, 2022 WL 500961 (6th Cir. 2022).
58
Oliver v. Kaiser Cmty. Health Found., 449 N.E.2d 438, 441 (Ohio 1983).
59
Brief for Cleary Gottlieb Steen & Hamilton LLP et al. as Amici Curiae in Support of Plaintiffs-Appellants, Snyder-Hill v. Ohio State, No. 21-3981, 2022 WL 4233750 (6th Cir. 2022).
60
Snyder-Hill, 2022 WL 4233750, at *16.
61
Doe v. Howe Mil. Sch., 227 F.3d 987, 988 (7th Cir. 2000).
62
Id.
63
Doe v. Shults-Lewis Child and Fam. Servs., 718 N.E.2d 747 (Ind. Sup. Ct. 1999).
64
Howe, 227 F.3d at 989.
65
See also Stanley v. Trs. Of Cal. State Univ., 433 F.3d 1129, 1136 (9th Cir. 2006). In Stanley, the Ninth Circuit concluded the plaintiff’s Title IX claim was time-barred focusing on the time of the discriminatory acts, not upon the time at which the consequences of the acts become most painful. However, Stanley made no explicit mention of the discovery rule.
66
Snyder-Hill v. Ohio State Univ., No. 21-3981, 2022 WL 4233750, at *17 (6th Cir. Sept. 14, 2022).
67
Twersky v. Yeshiva Univ., 579 F. App’x, 9 (2d Cir. 2014) (quoting Gabelli v. S.E.C., 185 L.Ed.2d 297 (2013)).
68
Id. at *9-10.
69
Varnell v. Dora Consol. Sch. Dist., 756 F.3d 1208, 1217 (10th Cir. 2014) (quoting Wallace v. Kato, 549 U.S. 384, 388 (2007)).
70
Id. at 1216 (quoting Wallace, 549 U.S. at 391).
71
Snyder-Hill, 2022 WL 4233750, at *26.
72
Id.
73
Id. at *22.