Michigan Supreme Court Grants Leave to Appeal on Student-on-Student Sexual Harassment Issue Under Elliot-Larsen Civil Rights Act

In December 2022, in a case of first impression, the Michigan Court of Appeals held that the Elliott-Larsen Civil Rights Act (ELCRA) supported a claim for student-on-student sexual harassment. The Michigan Supreme Court has now granted an application for leave to appeal.

In Doe v Alpena Public School District, 2022 WL 17868146, a female fourth grade student’s mother brought action against the school district and board of education claiming that they created a sexually hostile educational environment in violation of ELCRA by not adequately responding to several incidents of student-on-student sexual harassment by a male fourth grade student. The trial court, recognizing that determining whether schools exercise sufficient control over students to be vicariously liable for their conduct was an issue of first impression, dismissed the case on summary disposition under MCR 2.116(C)(8), finding that the plaintiff had not cited any authority extending student-on-student harassment to an ELCRA claim.

ELCRA prohibits gender-based discrimination, including sexual harassment, by educational institutions. Traditionally, hostile environment claims involve workplace discrimination in which employers are held vicariously liable for the acts of employees. The determinative issue was whether an educational institution is vicariously liable for a student’s conduct under the doctrine of respondeat superior.

On appeal, the Michigan Court of Appeals found that the trial court erred in finding that the plaintiff failed to state a claim under ELCRA, noting that schools stand in loco parentis to the offending student and can be held vicariously liable for student-on-student harassment. Based on the principle that the right result can be reached for the wrong reason, the Court affirmed the trial court’s decision since it also found that the plaintiff failed to show a genuine dispute of fact that the school district and board of education did not take prompt and appropriate remedial action upon learning of the alleged harassment so as to avoid summary disposition on the hostile environment claim under ELCRA.

The Michigan Supreme Court has now granted leave to appeal, asking the parties to file supplemental briefs addressing whether the plaintiff stated a cause of action under ELCRA and, if so, whether the plaintiff established a genuine issue of material fact as to that claim.

Joel Ashton, a partner in our Livonia office, focuses his practice on insurance defense, including Michigan No-Fault claims (PIP, automobile negligence, uninsured/underinsured motorist), as well as premises liability and general negligence. His practice also includes the defense of contract and liability claims, contract interpretation issues, subrogation claims involving automobile, fire and casualty, commercial and related coverage. Mr. Ashton maintains an AV Preeminent Rating from Martindale-Hubbell, which is the highest possible rating an attorney can achieve for both ethical standards and legal ability. He may be reached at (734) 261-2400 or jashton@cmda-law.com.