Welcome! An Introduction to Our Blog and an Update on Milligan v. Board of Trustees of Southern Illinois University

Michael Porter
Miller Nash LLP
Portland, OR

Welcome to the first entry of our blog facilitated by the Higher Education Council of the Employment Law Alliance.  This blog will have thoughts and updates from ELA firm attorneys who work regularly on higher education issues.  We hope it sparks a thought or discussion with you and your colleagues, and we welcome comments below.

On with the first post—our friends Ian Cooper and Kate Nash at Tueth Keeney recently obtained a decision out of the Seventh Circuit, Milligan v. Board of Trustees of Southern Illinois University, affirming summary judgment in favor of Southern Illinois University (“SIU”).  Taking the plaintiff’s facts as true at summary judgment (as a blogger must), the plaintiff—a student and employee—said that when he reported alleged same-sex sexual harassment by an emeritus professor to a department chair, the department chair brushed him off by stating that the professor was “an old man with a compromised mental state” who had once been a great scientist and done great things for the school (such as donate $2.5 million).  As a result, the professor “could not be held accountable for his actions.”

Regardless of whether the department chair actually said this (and he may well not have), it raises this question:  Who is wandering around campus whose “value” comes down to simply having been around for a long time and being a recognizable campus institution?  I’ve worked directly on four campuses, and on each, a person or persons come to mind about whom everyone wonders:  What is this person doing around here?  The former student life employee who just “hangs out” at a residence hall, the Super Fan at sporting events who also gets a small stipend for firing up the crowd, or, as in Milligan, the emeritus professor who has an institute on campus named after him for his former contributions and now makes a harassing comment or two from time to time.

This case turned out well for SIU because SIU acted reasonably as a matter of law after the report of harassment.  (The case contains a number of helpful nuggets related to Title VII and Title IX, by the way, so the decision is worth reading.)  But the case does beg the question:  Who is on our campuses?  Does our campus wanderer or hall roamer have a purpose?  If so, has the purpose been weighed against the fact that the person’s actions could be attributed to the school?  If they could be, has the school ensured that it has a vehicle to address any conduct concerns that might arise?  Or will someone who complains about this person just be told, “Don’t worry—he [or she] is harmless”?  In such cases, we may ultimately prevail on the claim, but it may take going to an appellate court to do so.

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