Sidestepping the Statute of Limitations in Title IX Class Actions and Mass Tort Actions
In Snyder-Hill v. Ohio State Univ., the Sixth Circuit, in a 2-to-1 decision, resurrected Title IX claims by more than 100 alleged victims who asserted that they were abused decades ago by a former Ohio State athletic department physician. The issue before the court was whether the district court correctly applied the statute of limitations to dismiss victims’ Title IX claims against Ohio State. The court sided with plaintiffs, holding that, although the abuse that formed the basis of their complaint occurred between 1978 and 1998, the claims did not accrue until 2018, when Ohio State publicly announced that Perkins Coie was conducting an investigation into former student athletes’ allegations of sexual misconduct by the physician dating back to the late 1970s.
***
In 2019, Ohio State released the Perkins Coie report, which revealed in its findings that the physician, who died by suicide in 2005, had sexually abused at least 177 students when performing medical examinations and that the university knew about, facilitated and concealed that abuse. The report detailed, for the first time, the university’s failures in responding to “persistent, serious, and regular” complaints about the physician’s conduct.
Among its additional findings were that the university repeatedly gave the physician positive performance reviews even while investigating abuse allegations and lied to students who raised concerns that no other students had come forward with similar allegations. The report further described a “perfunctory” investigation by the university in 1996, and that the school merely terminated the physician’s work in the athletics department. It indicated that the university later vested the physician with emeritus status and stood by while the physician set up a clinic to treat students next to campus. The report also stated that the university did not disclose the reason the physician had been investigated, declined to investigate many students’ similar claims, and discarded medical records and other files related to the abuse.
Ohio State’s announcement of the internal investigation in 2018, and the subsequent publicity, made plaintiffs aware for the first time of the potential role of the university in their abuse. Most plaintiffs also claimed this was the first time they learned that persons with authority viewed the physician’s medical examinations not as uncomfortable but necessary care—which, as victims, they had supposed and, in many cases, had also been told by coaches and athletic staff were normal—but that the examinations constituted sexual abuse.
Plaintiffs filed Title IX suits against Ohio State asserting that the university had been deliberately indifferent to their heightened risk of abuse. To make out this claim, plaintiffs must show that they were subject to sexual harassment that was “so severe, pervasive, and objectively offensive” that it deprived them of equal access to educational opportunities and that Ohio State administrators with the power to take corrective action knew about the misconduct and failed to do so.
The suits took a variety of forms, including class and mass plaintiff actions. In 2021, the district court, after having consolidated several of these actions, dismissed them in a series of decisions on the basis that they were barred by a two-year statute of limitations. Plaintiffs in two of the actions then appealed to the Sixth Circuit.
***
In assessing whether the district court erred in dismissing these claims, the Sixth Circuit first asked what rules govern Title IX claims. Because Title IX does not include its own statute of limitations, it must “borrow” from Ohio’s two-year statute of limitations for personal injury claims. But federal law, the court explained, not state law, determines when claims under the statute accrue. Under federal law, the general rule is 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.” This approach is often described as the “discovery rule.” It contrasts with the “occurrence rule,” a different approach to computing accrual that says a “claim accrues at the moment of the injury.”
Despite an earlier Sixth Circuit decision in which the court remarked that the Supreme Court’s decision in Rotkiske v. Klemm, 140 S.Ct. 355 (2019) might call for the court’s application of the occurrence rule, the Snyder-Hill court explained that those statements were dicta issued too hastily. Although the Supreme Court in Rotkiske disfavored the discovery rule, it did so because that rule contradicted the statutory text of the Fair Debt Collections Act. The Supreme Court never suggested that the rule should not be applied when, as in Snyder-Hill, there was no statutory text that conflicted with the discovery rule.
In deciding whether to apply the discovery rule to the Title IX claims in Snyder-Hill, the court observed that the discovery rule would be consistent with Title IX’s broad remedial purpose. The discovery rule would protect plaintiffs, like the victims there, who often lack the information necessary to bring a claim. The court explained: “To say to one who has been wronged, ‘You had a remedy but before the wrong was ascertainable to you, the law stripped you of your remedy,’ makes a mockery of the law.”
Under this approach, a claim accrues when a plaintiff knows or has reason to know that he was injured and that the defendant caused the injury. This way, the court concluded, the rule ensures that the law does not reward bad actors for covering up bad acts. In this context, plaintiffs’ claims do not accrue until plaintiffs knew or had reason to know that the “defendant institution injured them.”
The Snyder-Hill court thus concluded that plaintiffs’ claims were not barred by the statute of limitations because they did not accrue before 2018.
In reaching this result, the court reasoned that it would have been incredibly difficult for laypersons to know the facts about Ohio State’s indifference to their claims given its decades-long cover-up. Further, the court explained, for those students who did not realize they had been abused until 2018, that fact alone was sufficient to prevent the clock from running. The court noted that this approach accounted for research that indicates that victims, like those in that case, are dependent on abusers and may not recognize their own abuse.
***
The dissent argued that the majority’s decision “effectively nullifies any statute of limitations for Title IX claims based on sexual harassment.” Although it acknowledged that “the sexual abuse and alleged failure of the university to take corrective action are egregious and reprehensible,” the dissent contended that they “[are] not license to ignore well-established principles regarding when claims accrue.” (emphasis in original). The dissent disputed that the discovery rule governs Title IX claims and argued that, even if it does, plaintiffs’ claims are still untimely.
The dissent asserted that the weight of authority supports the application of the injury occurrence rule. According to the dissent, aside from “the historical exception for suits based on fraud,” the Supreme Court has only “imputed to Congress an injury-discovery rule” for latent medical injuries suffered by employees exposed to toxic substances, where the injury manifests after many decades. The dissent argued that the denial of educational opportunities resulting from severe and pervasive sexual harassment bears no resemblance to a latent medical injury.
It also argued that, even if the injury discovery rule applies, plaintiffs’ claims are untimely. The injury here is the physician’s conduct, and thus, plaintiffs’ knowledge of the physician’s conduct—not their knowledge that the conduct constituted sexual abuse—would start the clock. According to the dissent, the tension between alleging that the abuse was so severe and pervasive it deprived plaintiffs of educational opportunities, on one hand, and that plaintiffs only discovered their injury decades later, on the other, is fatal to the majority’s position.
The dissent also argued that, given the Supreme Court’s rejection of the less demanding “injury and pattern of discovery rule” in a civil RICO context whereby “a claim accrues only when the claimant discovers, or should discover, both an injury and a pattern of RICO activity” in Rotella v. Wood, 528 U.S. 549 (2000), the other elements of a deliberate indifference claim, including when the university was on notice of the abuse, have no bearing on when the clock starts. That a university allegedly concealed its deliberate indifference to prior misconduct is thus irrelevant—and a difficulty inherent to such a claim.
However, the dissent did not say that deliberate indifference claims by victims of past abuse, such as plaintiffs here, will always be foreclosed. It hinted that if victims can show that an institution misled them into not pursuing a claim against the institution, they may be able to rely on equitable tolling to pause the clock.
***
The Sixth Circuit’s decision in Snyder-Hill is important because it reflects the first instance where a circuit court has held expressly that the discovery rule dictates when the statute of limitations accrues in the Title IX context.
The decision also signals courts’ potential open-mindedness, whether in the Title IX context or otherwise, to apply the “discovery rule” to account for the nature of abuse victims’ claims and claims that arise from institutional failures that have impacted victims’ ability to come forward.
How other courts examining similar claims approach these issues remains to be seen, but the implications could be profound. The application of the discovery rule to Title IX claims may significantly extend liability for past instances of known abuse for institutions that receive federal funding. Given these implications, the Supreme Court may ultimately weigh in.
Most importantly, this decision underscores the importance of proper, timely investigation and, if warranted, disclosure of the misconduct.
