The Volokh Conspiracy
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The Sixth Circuit Denies En Banc Rehearing in Ohio State Title IX Case.
Judges on The U.S. Court of Appeals for the Sixth Circuit disagree over when Title IX claims accrue.
Today the U.S. Court of Appeals for the Sixth Circuit denied Ohio State University's petition for rehearing en banc in Snyder-Hill v. Ohio State University. This case arises out of allegations that university physician and athletic doctor Richard Strauss abused hundreds of Ohio State athletes between 1978 and 1998. The abuse did not become public until 2018, raising questions about when relevant Title IX claims accrued.
Earlier this fall, a divided panel of the Sixth Circuit reversed the district court's conclusion that the claims against Ohio State were barred by the statute of limitations. Judge Moore wrote for the court (joined by Judge Clay), and Judge Guy dissented. Ohio State filed a petition for rehearing en banc, which the court denied today, with four judges (Guy, Thapar, Readler, and Bush) noting their dissent.
Judge Readler wrote an opinion dissenting from the denial of rehearing en banc. It begins:
This year marks the 50th anniversary of Title IX's enactment. Over five decades, that groundbreaking law has effectuated many changes in campus life. And with a half-century of history and experience to consider, Congress might fairly contemplate extending the law's reach.
But why wait for Congress? In reversing a decision dismissing a Title IX suit filed against the Ohio State University, our Court took legislative matters into its own hands: it both extended Title IX's scope and effectively lengthened the time a plaintiff has to file suit for purported violations. See generally Snyder-Hill v. Ohio State Univ., 48 F.4th 686 (6th Cir. 2022). Over a vigorous dissent, the majority opinion in Snyder-Hill held that Title IX claims tracing back as far as four decades were nonetheless timely according to the "discovery rule" for claim accrual. In reaching that conclusion, the majority opinion leaned on the discovery "rule's purpose" as well as "Title IX's broad remedial purpose." Id. at 701. The majority opinion then extended Title IX's application to athletics referees, teenagers visiting campus, and others with no intention of being educated or employed by Ohio State. Id. at 708–09.
For many reasons, that decision should not stand. Start with its inattention to Supreme Court precedent. As Judge Guy recognized in dissent, "[n]o less than twice the Supreme Court has told courts what to do" for claim accrual purposes "when there is no federal statute of limitations at all," as is the case for Title IX: apply the occurrence rule, not the discovery rule. Id. at 713 (Guy, J., dissenting); see also Wallace v. Kato, 549 U.S. 384, 388 (2007) (describing the occurrence rule as "the standard rule that accrual occurs when the plaintiff . . . can file suit and obtain relief." (cleaned up)). That command deserves particular attention in the context of an implied cause of action, where separation of powers concerns are at their apex. See Egbert v. Boule, 142 S. Ct. 1793, 1809 (2022) (Gorsuch, J., concurring). Yet the majority opinion ignored the Supreme Court's instructions, an all too common practice in our Circuit. See Shoop v. Cunningham, 598 U.S. — (2022), slip op. at *13 (Thomas, J., dissenting from denial of cert.).
Snyder-Hill next distorted Title IX in ways no other circuit has licensed. First, it crafted an accrual rule unique to Title IX deliberate indifference claims. 48 F.4th at 703–04 (majority op.). Then, it read Title IX to cover virtually anyone who sets foot on campus, no matter the reason. Id. at 708–09. Even the 100,000 fans attending a Buckeyes football game, it appears. In that respect, the majority opinion is less a "construction of a statute" than it is "an enlargement of it by the court." See Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019) (quotations omitted).
Those errors are likely to multiply. Cases arising out of any federal statutory scheme lacking an explicit accrual date risk being tainted by the majority opinion's adoption of the wrong default rule. And if this case is any indicator, those cases may reach back to conduct over 40 years old, older than some members of our Court. Regrettably, the majority opinion has saddled the federally funded educational institutions in our circuit with this distorted application of Title IX. It is thus no surprise that amici universities with a collective enrollment of over 200,000 students—the University of Michigan, Purdue University, and others—asked us to hear the case en banc. That is on top of the Ohio State University, which itself enrolls 65,000 students. In that way, the majority opinion brought together in shared opposition collegiate rivals that rarely see eye to eye. To those universities' minds, to mine, and, most importantly, to the Supreme Court's, we are to apply the occurrence rule in this and similar settings. As that message was lost on the majority opinion, the Supreme Court should say so yet again, before more jurisprudential damage is done.
Judge Bush joined Judge Readler's dissent. Judge Thapar noted he would have granted en banc rehearing due to "tension between Sixth Circuit and Supreme Court precedent about when a claim accrues," and Judge Guy noted he dissented from the denial based upon the arguments in his panel dissent.
Judge Moore, author of the initial panel opinion, authored an opinion concurring in the denial of the petition. It begins:
The dissent from denial of rehearing recycles the same arguments put forth in the panel dissent to accuse this court of ignoring Supreme Court precedent in order to expand the scope of Title IX when, in fact, the panel's decision was firmly rooted in both this court's and the Supreme Court's long-standing precedents. Despite the en banc petition's and the dissent's claims to the contrary, the panel's opinion did not eliminate the statute of limitations for Title IX claims, nor did it improperly broaden the reach of Title IX. Instead, this court straightforwardly applied the discovery rule to the plaintiffs' claims, in line with both our precedent and the plain language of Title IX. The panel correctly decided this case for the reasons explored at length in our original opinion. I write separately to reiterate that our decision conformed with Supreme Court precedent, our precedent, the precedents of our sibling circuits, and the text of Title IX.
Given the issues involved, and the composition of the Sixth Circuit, I wonder whether this is a case in which some of the court's judges believe the initial panel opinion was wrong, but not en banc worthy.