The Cost of Indifference: Will the Seventh Circuit Bridge the Title IX Divide?

by Brooke Karsteter, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

Each year, millions of students take the transformative step of enrolling in college, motivated by the promise that higher education will open doors to personal and professional opportunity.¹ For many, however, sexual harassment or assault during their time in school disrupts that promise.² Despite decades of prevention efforts and federal oversight, campus sexual misconduct remains pervasive.³ Title IX of the Education Amendments of 1972 (“Title IX”) prohibits sex discrimination in federally funded education programs and activities.⁴ Although the statute imposes an obligation on institutions to protect students from sex-based discrimination, the contours of that duty, and the circumstances that give rise to monetary liability, remain sharply contested.⁵

This lack of clarity was evident in the Seventh Circuit’s recent decision in Arana v. Board of Regents of the University of Wisconsin System.⁶ On July 11, 2025, a divided panel held that a reasonable jury could find that the University of Wisconsin-Madison was deliberately indifferent to student Isabelle Arana’s sexual assault by fellow student and football player Quintez Cephus.⁷ The panel recognized two major expansions of institutional liability: first, that a single incident of student-on-student assault may satisfy the “severe and pervasive” standard; second, that a university’s response may be actionable if it leaves a student “vulnerable” to future harassment, even if there are no subsequent incidents.⁸

Less than three months later, on September 22, 2025, the Seventh Circuit vacated its opinion and granted a rehearing en banc, signaling that the full court will revisit both questions.⁹ The outcome of that rehearing could have sweeping implications, as questions addressed in the vacated panel opinion directly engage two longstanding circuit splits over the scope of Title IX institutional liability.

This article examines the Seventh Circuit’s now-vacated Arana opinion and the issues raised by its upcoming en banc rehearing. Part II outlines the framework established by Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education, summarizes the central facts of the Arana controversy, and details the two circuit splits over “pervasive” harassment and “vulnerability” causation that the Arana panel addressed. Part III analyzes the institutional and policy implications of the court’s pending rehearing for Title IX enforcement across higher education. Finally, Part IV concludes by summarizing the significance of the Arana rehearing and considering how the Seventh Circuit’s ultimate decision could reshape the future of Title IX jurisprudence.

II. Background

This Section traces the evolution of institutional liability under Title IX. It first summarizes how Gebser and Davis established the elements for monetary damages. It then applies those standards to the facts of Arana, focusing on the university’s decision-making process and its tension with the “clearly unreasonable” requirement central to deliberate indifference. Finally, it details the two key circuit splits over single-incident liability and causation that the Seventh Circuit must now address again.

A. Evolution of Institutional Liability Under Title IX

Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”¹⁰ Although Congress did not expressly create a private cause of action, the Supreme Court recognized one in Cannon v. University of Chicago¹¹ and later affirmed the availability of monetary damages in Franklin v. Gwinnett County Public Schools.¹²

In Davis, the Court articulated the modern standard for student-on-student harassment: a school receiving federal funds may be held liable only when it (1) has actual knowledge of sex-based harassment by an official with authority to act (defined as an employee who possesses the power to institute corrective measures on the school’s behalf); (2) the harassment is so severe, pervasive, and objectively offensive that it effectively denies equal access to education; and (3) the school’s response was deliberately indifferent and either causes the student to undergo harassment or makes them vulnerable to it.¹³ Courts generally “refrain from second-guessing” administrative decisions unless they are plainly unreasonable.¹⁴

B. The Arana Controversy

Isabelle Arana, a student at the University of Wisconsin-Madison (“UW-Madison”) alleged that she was sexually assaulted by fellow student and football player Quintez Cephus in April 2018.¹⁵ Following a Title IX investigation by the university, Cephus was found responsible for third-degree sexual assault (sexual intercourse without consent) and sexual harassment and was expelled.¹⁶ Cephus appealed this disciplinary decision to UW-Madison Chancellor Rebecca Blank and then to the Board of Regents; both appeals were denied after more than twelve months of review.¹⁷

Controversy arose after Cephus was acquitted of the single charge of second-degree sexual assault in a state criminal court in August 2019.¹⁸ Shortly after the acquittal, and just weeks before the football season was set to begin, Cephus filed a petition seeking readmission to UW-Madison.¹⁹ Chancellor Blank granted the petition, vacating the finding of third-degree sexual assault while upholding the sexual harassment finding, and readmitted Cephus.²⁰ This readmission occurred even though UW-Madison’s counsel described the trial transcript as “an essential element” for review, but the University declined to obtain it due to time pressures.²¹ UW-Madison also failed to notify or consult Arana before vacating the expulsion, despite Title IX regulations requiring coordination of supportive measures.²²

Arana subsequently filed a Title IX lawsuit alleging deliberate indifference, arguing that the readmission effectively nullified the initial expulsion decision.²³ According to the judicial record reviewed by the three-judge panel of the Seventh Circuit, Chancellor Blank’s decision was influenced by “numerous influential parties,” including donors who had collectively given over one million dollars to the university.²⁴ The panel concluded that a reasonable jury could infer that donor and athletic pressures, rather than an impartial reassessment, drove the readmission decision.²⁵ This finding shaped the panel’s approach to the legal standards at issue, prompting it to apply a broader interpretation of both “pervasiveness” and causation, positions that fall within the two ongoing circuit splits.

C. The First Split: Can a Single Incident be “Pervasive”?

Davis held that actionable harassment must be “severe, pervasive, and objectively offensive.”²⁶ The key question is whether one assault, though isolated, can be “pervasive” in its educational impact.

1. The Restrictive View: A Single Incident Cannot Suffice for Title IX Liability

The Sixth and Eighth Circuits, illustrated by Kollaritsch v. Michigan State University Board of Trustees and Shank v. Carleton College, respectively read Davis narrowly.²⁷ They maintain that “pervasive” denotes repetition: a single event, however serious, cannot be pervasive without ongoing misconduct.²⁸ These circuits emphasize the Supreme Court’s language in Davis, suggesting that Title IX aims to prevent systemic effects, arguing that a solitary act, regardless of severity, is inherently not systemic.²⁹ Consequently, they typically require proof of multiple incidents or further actionable harassment to satisfy the high threshold established for peer harassment liability.³⁰ The Sixth Circuit in Kollaritsch warned that allowing single-incident claims would collapse deliberate indifference into strict liability.³¹

2. The Expansive View: A Single Incident Can Be Sufficient in Certain Situations

The Arana panel aligned with the First, Fourth, Tenth, and Eleventh Circuits in adopting a broader approach.³² These courts reasoned that certain acts are so severe that they effectively deny access to education even if they occur only once.³³ In Williams v. Board of Regents of the University System of Georgia, the Eleventh Circuit held that a single night of sexual assault qualified as “pervasive” given its devastating and ongoing effects.³⁴ Similarly, the First Circuit in Fitzgerald v. Barnstable School Committee found that an act “vile enough” can have the systemic impact of exclusion when coupled with an inadequate institutional response.³⁵

By framing “pervasiveness” functionally rather than numerically, the Arana panel reflected a trauma-informed understanding of Title IX.³⁶ The panel stressed the severity of the incident, noting that Arana presented evidence that she was unconscious throughout the assault and that Cephus allegedly penetrated her vagina with his fingers and then with his penis several times.³⁷ The panel concluded that a single sexual assault of such egregious nature could satisfy the Davis standard if the institution’s response was clearly unreasonable.³⁸ As Professor Nancy Chi Cantalupo, an expert in civil rights and gender-based violence, notes, focusing solely on repetition “ignores the institutional betrayal that occurs when schools prioritize liability avoidance over student safety.”³⁹

D. The Second Split: Causation — “Further Harassment” or “Vulnerability”

Courts also diverge on how to interpret Davis’s causation language: that deliberate indifference must “cause students to undergo harassment or make them liable or vulnerable to it.”⁴⁰ This language establishes the division regarding whether a plaintiff must suffer actual further harassment after the school receives notice, or if merely being left exposed or vulnerable is enough.

1. The Restrictive View: Evidence of Further Harassment is Necessary to Suffice Title IX Liability

The Sixth, Eighth, and Ninth Circuits interpret this language strictly, maintaining that liability attaches only when evidence of a school’s deliberate indifference led to further acts of harassment.⁴¹ Under this standard, plaintiffs who experience fear, anxiety, or avoidance behaviors after their schools fail to act, but who suffer no new incidents, cannot recover damages.⁴² In Kollaritsch, the Sixth Circuit specifically rejected the argument that subjective fear or avoidance alone sufficed.⁴³ Instead, the court viewed the language “liable or vulnerable to it” not as a separate independent ground for liability, but as describing one of two alternative pathways through which a school’s clearly unreasonable response (or failure to act) could result in subsequent actionable harassment.⁴⁴

The Kollaritsch court reasoned that the Davis causation definition presumes that post-notice harassment has taken place.⁴⁵ The language defining “subjects” a student to discrimination means the student must actually experience that harm.⁴⁶ Thus, the school’s response might be: (1) a detrimental action that directly instigates further harassment (conduct by commission); or (2) an insufficient action (or no action at all) that makes the victim vulnerable to, or unprotected from, further harassment (conduct by omission).⁴⁷

In either instance, the student must still undergo further harm. Therefore, the restrictive view sees “vulnerability” merely as a mechanism through which additional harassment may occur, not as an outcome that is actionable on its own.⁴⁸ This interpretation prioritizes predictability but discounts the psychological and educational consequences of institutional indifference.

2. The Expansive View: Vulnerability Can Lead to Loss of Equal Access Sufficient for Title IX Liability

The Fourth, Tenth, and Eleventh Circuits adopted a broader reading that focuses on the state of exposure created by the school’s failure to act reasonably.⁴⁹ In Farmer v. Kansas State University, the Tenth Circuit held that students who reasonably feared encountering their assailants and withdrew from campus activities had adequately alleged educational deprivation, even absent further harassment.⁵⁰ The Fourth Circuit in Doe v. Fairfax County School Board agreed, finding that a university’s failure to ensure safety after an assault can cause lasting exclusion from educational opportunities.⁵¹

The Arana panel sided with this broader interpretation, finding that Arana’s academic decline, delayed graduation, and campus avoidance were concrete harms satisfying the causation requirement.⁵² This “vulnerability” standard aligns with Franklin’s remedial principle that damages compensate for loss of access to education, not merely repetition of physical harm.⁵³

III. Discussion

This Section situates these competing judicial interpretations within the evolving Title IX enforcement landscape and university governance frameworks, assessing how the Seventh Circuit’s forthcoming en banc decision could influence federal oversight and institutional disciplinary practices nationwide. It concludes by arguing that the court should adopt the panel’s broader interpretation of “pervasiveness” and causation.

A. Increased Institutional Exposure: Single Incidents and Egregious Acts

As Part II explained, the vacated Arana panel aligned with circuits that interpret “pervasive” functionally rather than numerically. By recognizing that a single, exceptionally severe sexual assault may meet the Davis threshold, the panel rejected the “one-strike immunity” approach adopted by the Sixth and Eighth Circuits.⁵⁴

If the Seventh Circuit affirms this reasoning, universities can no longer treat the absence of subsequent misconduct as a safe harbor. Instead, they must assume that liability may arise where a severe first incident is followed by a response that is clearly unreasonable, particularly when outside pressures shape disciplinary outcomes. This shift heightens institutional exposure and requires increased transparency and rigor in sanctioning and appeals processes, especially in cases involving high-profile respondents.

B. The Causation Shift: Institutional Responsibility for Vulnerability

The panel’s adoption of the vulnerability standard marks an even more consequential doctrinal shift. Instead of requiring new post-notice harassment, the vulnerability approach asks whether the institution’s response foreseeably undermined the complainant’s educational access. This reframes vulnerability as the actionable harm itself.

If affirmed, this standard would require universities to evaluate not just procedural fairness but the practical effects of disciplinary and reinstatement decisions on survivor safety. As the panel noted in Arana, Chancellor Blank’s readmission decision “effectively nullified” prior protective measures.⁵⁵ Universities would therefore need to consult complainants before major disciplinary reversals, insulate decision-makers from donor or athletic influence, and document how decisions safeguard student safety.

The vulnerability framework also broadens the scope of cognizable injuries under Title IX. Arana’s skipped classes, campus avoidance, course changes, and delayed graduation illustrate the kinds of educational deprivations that may give rise to damages without further harassment. This interpretation aligns with Franklin’s emphasis on access to education and strengthens the legal significance of supportive measures, which must protect complainants’ educational environments, not merely exist on paper.

C. Broader Implications, Tradeoffs, and a Judicial Crossroads

The Arana rehearing occurs against a backdrop of shifting federal policy and heightened scrutiny of university governance. The Seventh Circuit’s decision has the potential to reshape national Title IX compliance frameworks.

Recent federal actions, including the partially vacated 2024 Title IX amendments⁵⁶ and Executive Order 14,201,⁵⁷ emphasize institutional accountability for responses “clearly unreasonable in light of known circumstances.” An expansive ruling would harmonize private damages doctrine with evolving federal initiatives, extending scrutiny to reinstatement decisions, no-contact orders, and donor influence. A restrictive ruling would reinforce the narrower framework and perpetuate a deep circuit divide, one that may ultimately prompt Supreme Court review.

Yet, expansion is not costless. A broader standard may raise due process and fairness concerns for respondents, especially where institutions feel pressure to maintain or reaffirm sanctions to avoid liability. Universities may adopt overly cautious or rigid policies, potentially curtailing case-by-case discretion. Courts, too, will face challenges in drawing principled distinctions between actionable “vulnerability” and the generalized anxiety or discomfort that often follows campus conflict. These concerns underscore the need for clear, administrable guidance that balances institutional accountability with fairness and predictability.

If the Seventh Circuit affirms the panel’s reasoning, universities will need to redesign governance structures to insulate disciplinary processes from external influence, ensure transparent rationales for major decisions, and maintain effective supportive measures throughout disciplinary timelines. These reforms would not merely protect universities from liability, they would further Title IX’s core purpose of ensuring equal educational access.

D. Why the Seventh Circuit Should Affirm the Panel’s Reasoning

Ultimately, the Seventh Circuit should adopt the broader approach reflected in the vacated panel opinion. A functional interpretation of “pervasiveness” and a recognition of vulnerability as a cognizable harm better align with Title IX’s statutory purpose of preserving equal access to education. These standards acknowledge the practical realities of trauma and institutional power dynamics, ensuring liability attaches only where a university’s response is clearly unreasonable in light of known circumstances—the high threshold articulated in Davis. While doctrinal expansion may require courts and institutions to navigate closer scrutiny, it provides a more coherent and administrable framework than the restrictive view, which often turns on whether additional harm happens to occur. By reaffirming the panel’s reasoning, the Seventh Circuit would promote consistency, accountability, and fidelity to Title IX’s remedial objectives, while still preserving discretion for schools whose responses fall within a range of reasonableness.

IV. Conclusion

The Seventh Circuit’s rehearing in Arana v. Board of Regents presents a pivotal opportunity to clarify what constitutes deliberate indifference under Title IX. By vacating the panel’s opinion, the court has acknowledged the ongoing uncertainty surrounding both the “single incident” and “vulnerability” questions that have divided the circuits for more than two decades.

Whatever the outcome, Arana will significantly influence how universities balance fairness, safety, and accountability. Should the court affirm the panel’s expansive view, the decision could mark the most consequential development in Title IX jurisprudence since Davis. It would clarify whether the statute’s guarantee of equal educational access extends fully to survivors whose academic lives are transformed not by repeated misconduct but by a single, devastating act.

Cover Photo by Henry Storck on Unsplash

Brooke Karsteter

References

1
Melanie Hanson, College Enrollment & Student Demographic Statistics, Education Data Initiative (Mar. 17, 2025), https://educationdata.org/college-enrollment-statistics [https://perma.cc/T8RQ-VUUZ].
2
Campus Climate Survey on Sexual Assault and Misconduct, Ass’n of Am. Univs. (2019) https://www.aau.edu/key-issues/campus-climate-and-safety/aau-campus-climate-survey-2019 [https://perma.cc/9G3E-4HSN].
3
Nancy Chi Cantalupo, Title IX and the Civil Rights Approach to Sexual Harassment in Education, 25 Roger Williams U. L. Rev. 225, 250 (2020).
4
20 U.S.C. § 1681(a).
5
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).
6
Arana v. Bd. of Regents of the Univ. of Wis. Sys., 142 F.4th 992 (7th Cir. 2025).
7
Id. at 1009.
8
Id. at 1001–02.
9
Arana v. Bd. of Regents of the Univ. of Wis. Sys., No. 23-1828, 2025 U.S. App. LEXIS 24542 (7th Cir. 2025) (order granting en banc reh’g).
10
20 U.S.C. § 1681(a).
11
Cannon v. Univ. of Chi., 441 U.S. 677, 717 (1979).
12
Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 76 (1992).
13
Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650-51 (1999).
14
Id. at 648.
15
Arana v. Bd. of Regents of the Univ. of Wis. Sys., 142 F.4th 992, 994 (7th Cir. 2025).
16
Id. at 995.
17
Id.
18
Id.
19
Id.
20
Id. at 996.
21
Id.
22
Id.
23
Id. at 997.
24
Id. at 1004.
25
Id. at 1005.
26
Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650 (1999).
27
See Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 621-23 (6th Cir. 2019) (holding that the plaintiffs failed to state a claim because none of them suffered any actionable sexual harassment after the university’s response); Shank v. Carleton Coll., 993 F.3d 567, 574 (8th Cir. 2021) (affirming the dismissal of a claim involving rape and alleged inadequate accommodations, such as failing to promptly relocate the victim or remove posters of the assailant, because the plaintiff failed to show the college’s shortcomings caused her to experience, or be vulnerable to, further harassment or assault, as Title IX requires).
28
Kollaritsch, 944 F.3d at 621.
29
Id.
30
Id.
31
Id.
32
See Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172 (1st Cir. 2007); Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 274 (4th Cir. 2021); Williams v. Bd. Of Regents. of the Univ. Sys. of Ga., 477 F.3d 1282, 1298 (11th Cir. 2007); Hill v. Cundiff, 797 F.3d 948, 973 (11th Cir. 2015).
33
Arana v. Bd. of Regents of the Univ. of Wis. Sys., 142 F.4th 992, 1001 (7th Cir. 2025).
34
Williams, 477 F.3d 1297-98.
35
Fitzgerald, 504 F.3d at 172.
36
Arana, 142 F.4th at 1003.
37
Id.
38
Id.
39
Cantalupo, supra note 3, at 250.
40
Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 645 (1999).
41
Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 620 (6th Cir. 2019)
42
Id. at 625.
43
Id. at 622.
44
Id. at 622.
45
Id.
46
Id. at 628.
47
Id. at 622.
48
Id. at 623.
49
Farmer v. Kan. State Univ., 918 F.3d 1094, 1109 (10th Cir. 2019).
50
Id. at 1103-04.
51
Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 272 (4th Cir. 2021)
52
Arana v. Bd. of Regents of the Univ. of Wis. Sys., 142 F.4th 992, 1004 (7th Cir. 2025).
53
Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75-76 (1992).
54
Arana, 142 F. 4th at 1001–02.
55
Arana, 142 F.4th at 1005.
56
89 Fed. Reg. 33,474 (Apr. 2024) (amending 34 C.F.R. pt. 106).
57
Exec. Order No. 14,201, 90 Fed. Reg. 9,279 (Feb. 11, 2025).