Ohio State appeals Strauss survivors' cases to U.S. Supreme Court over Title IX issues

Ohio State University is petitioning the U.S. Supreme Court to hear a Title IX case related to those sexually abused by former university doctor Richard Strauss.

The university on Tuesday filed a writ of certiorari with the Supreme Court, asking the justices to review a divided decision by the Sixth U.S. Circuit Court of Appeals regarding the statute of limitations and the scope of federal education protections under Title IX.

"Unless the Supreme Court intervenes, the Sixth Circuit’s ruling will negatively impact educational institutions that accept federal funds and are subject to Title IX of the Education Amendments, as well as students of these institutions," the university said in a news release.

What legal questions is Ohio State asking the Supreme Court to consider?

Ohio State is asking the court to consider two legal questions related to Title IX claims, which have been at the heart of the university's argument against the Strauss survivors' legal case. The questions are:

• Whether, or to what extent, a Title IX claim accrues after the date on which the alleged injury occurred; and

• Whether, or to what extent, Title IX’s implied private right of action extends to individuals who are not current or prospective students or employees.

Title IX prohibits discrimination on the basis of sex in educational programs or activities that receive federal financial assistance. While Title IX doesn't express a private right of action (meaning individuals could seek damages for certain actions), previous Supreme Court cases have implied one exists.

Title IX actions do not have their own statute of limitations, and thus defer to the state statute of limitations for personal injuries, which in Ohio is two years. The length of the limitations period is determined by state law, whereas the date by which the limitations period begins to run — or when the Title IX claim accrues — is a question of federal law.

Ohio State argues there is a "circuit split" between three federal appeals courts "over the proper accrual rule for Title IX claims," according to the petition.

The university alleges that the Sixth Circuit, which is based in Cincinnati and covers federal appeals arising from Ohio, Kentucky, Michigan and Tennessee, introduced "an extreme new position" in determining statutes of limitations that allowed Strauss survivors to sue on "claims that are decades old."

Ohio State's petition also alleges that the Sixth Circuit court broadened Title IX’s private right of action to beyond current students, prospective students and employees "to essentially anyone who steps foot on a college campus — even the 100,000 visitors to a football stadium on game day." Several survivors involved in the lawsuit were not Ohio State students or employees at the time they were abused by Strauss.

Why is Ohio State petitioning the Supreme Court?

The legal battle between Ohio State and Strauss survivors has been a long and winding road.

In September 2021, U.S. District Court Judge Michael H. Watson in Columbus dismissed multiple civil lawsuits involving more than 100 plaintiffs against Ohio State, ruling that the statute of limitations in their cases had expired and therefore could not be tried in court.

Ohio State holds that the statute of limitations for each survivor had expired two years after they left the university. Survivors and their attorneys, on the other hand, have argued that many didn’t know the extent of Strauss' sexual abuse until spring 2018, when Ohio State announced an investigation into the former university doctor.

Therefore, the plaintiffs argue, their clock on the statute of limitations didn't begin until they became aware of their abuse and the university's alleged cover-up for Strauss.

A series of back-and-forth appeals court decisions last fall ultimately ruled in favor of the Strauss survivors, reviving their lawsuit against Ohio State and allowing them to move forward in the courts.

Ohio State filed an unusual court request called an "en banc" review, asking that all 16 judges of the Sixth Circuit take another look at the case, hoping to reverse in its favor the decision made by a panel of the court's judges.

When that request was denied, Ohio State requested in late December that the Sixth Circuit delay its order allowing the Strauss lawsuits to move forward. The university had until today to file its petition.

There are 235 current plaintiffs included in the survivors' lawsuit against Ohio State.

How are the Strauss survivors responding to Ohio State's petition?

In a brief statement, attorneys with Emery Celli Brinckerhoff Abady Ward & Maazel LLP; Scott Elliot Smith, LPA; and Public Justice who are representing the survivors expressed contempt for Ohio State's decision: "OSU’s petition for Supreme Court review is yet another attempt to delay justice for the abuse survivors and avoid accountability for its wrongdoing."

Steve Snyder-Hill, a former Ohio State student and one of the more vocal Strauss survivors, said he wasn't surprised to see his alma mater appeal to the Supreme Court. After more than five years of court hearings and appeals, Snyder-Hill said he doesn't believe that this is a move by Ohio State to protect students.

"They're forgetting that they're getting sued because they hid and covered up sexual assaults," he said.

Strauss survivors are "1000% planning to appeal" the petition, Snyder-Hill said, and their lawyers have 30 days to do so. "We're not going to stop fighting this ... (Ohio State) is not getting sued under Title IX for no reason."

Who is Richard Strauss?

Strauss was hired by Ohio State in September 1978 as an assistant professor in the college of medicine. Investigators found that university officials began receiving complaints and had knowledge of Strauss’ misconduct as early as 1979, months after he arrived.

Strauss’ abuse went on for years and ranged from subtle acts under the pretext of medical purpose to more-overt actions. He fondled patients’ genitals and conducted genital or rectal exams even when they were medically unnecessary.

An independent investigative report released by Ohio State University in May 2019 said Strauss sexually abused at least 177 students throughout his 20-year tenure as an athletics and student health doctor at the school.

He died by suicide in 2005, more than a decade before Ohio State would begin publicly investigating his abuses.

Gregory Garre — a lawyer who previously served as U.S. Solicitor General and a current partner at Latham & Watkins in Washington, D.C. — is representing Ohio State in its petition.

Garre said the university's petition doesn't question the survivors’ accounts and doesn't diminish Ohio State’s commitment to supporting survivors.

"The petition specifically and explicitly condemns the reprehensible conduct by Strauss, and (Ohio State has) committed substantial resources to preventing and addressing similar conduct on campus," Garre said. "It's a different institution today than it was 25 years ago."

But the questions raised in Ohio State's petition have widespread ramifications, Garre said, which is why the university wants the court to hear its case.

"Ohio State going forward now has to live with this extreme claim rule as well as the ruling on the scope of Title IX ... and every educational institution accepting funding will have to live with it," he said. "We can all agree that the underlying abuse here was reprehensible. But the Supreme Court has to resolve its fundamental legal issues for everybody going forward without regard to the underlying allegations or facts here."

What are Ohio State's chances of its case being selected by the Supreme Court?

The Supreme Court receives more than 7,000 petitions each year, but it agrees to hear only a fraction of them — about 150 cases.

At least four Supreme Court justices must vote to accept the case for it to move forward. This term, the court heard several higher education cases: two cases related to affirmative action and two cases related to President Joe Biden's student loan forgiveness plan.

Last year, seven universities joined Ohio State in petitioning the Sixth Court to reconsider its decision and preserve the two-year statute of limitations and Title IX’s narrow focus on students and employees.

Those schools included Bowling Green State University, Cleveland State University, Eastern Michigan University, Oakland University, Purdue University, University of Michigan and Michigan State University.

"By effectively eviscerating the statute of limitations for Title IX claims, the panel’s opinion puts schools in the impossible position of being forced to defend against claims where the only evidence remaining may well be the plaintiff’s say-so," the schools wrote in an amici curiae brief.

The court could announce its decision to hear Ohio State's case by June. If it does, the Supreme Court wouldn't hear arguments on the case though until its next term, which begins in October. It would then likely issue a ruling in 2024.

If the Supreme Court does not review the case, it will go back to the Sixth Circuit for further legal proceedings.

Sheridan Hendrix is a higher education reporter for The Columbus Dispatch. Sign up for her Mobile Newsroom newsletter here and Extra Credit, her education newsletter, here.

shendrix@dispatch.com

@sheridan120

This article originally appeared on The Columbus Dispatch: Ohio State petitions U.S. Supreme Court to hear Title IX case