by Harrison Martin, Senior Associate
Title IX of the Education Amendments of 1972 (Title IX) is a federal law enacted to prohibit discrimination on the basis of sex in any educational program receiving federal financial assistance. Congress enacted Title IX to provide protection for student–victims of sexual discrimination and to avoid dispensing federal funds to schools that perpetuate those practices. The overwhelming majority of United States universities receive federal funding and are consequently required to abide by Title IX. Over the course of the 21st century, courts have experienced a spike in Title IX litigation primarily pertaining to sexual harassment in a university setting. In such cases, it is common for a student–victim’s harassment claim against the school to qualify as sexual discrimination, and, in turn, the student–victim invokes Title IX as the basis of a lawsuit.
Bose v. Bea, a 2020 Title IX sexual harassment case, falls within this framework. Bose’s significance lies in its instruction on how to properly approach a student’s Title IX sexual misconduct and retaliation claim against an educational institution. In a unique turn of events, the plaintiff raised an uncommonly asserted “cat’s paw” theory of liability to connect causation from a faculty member to the college. The Sixth Circuit Court of Appeals ruled against the plaintiff, emphasizing that a respondeat superior argument is not applicable in a Title IX case.
II. Unreciprocated Advances and a Well-Laid Trap
Bose v. Bea involved plaintiff Prianka Bose, an organic chemistry student enrolled in Rhodes College, and her chemistry professor, defendant Dr. Roberto de la Salud Bea. After the two parties fostered a professional relationship, Bose began feeling uncomfortable by Dr. Bea’s alleged romantic advances. Meanwhile, throughout the semester, Dr. Bea allowed his students to individually take quizzes and exams in his office at the students’ leisure. During one of the many instances where Bose took a quiz in this context, Dr. Bea briefly left his office. When he returned, the answer key to the quiz that Bose had just completed was atypically displayed on his laptop. Dr. Bea started to suspect that Bose cheated but made no report to the college at the time.
Weeks after the answer key incident, Dr. Bea publicly made an accusatory slight to Bose about her texting a boyfriend. Bose responded to Dr. Bea by voicing her uneasiness from his persistent comments and requesting to keep their relationship strictly professional. Following the confrontation, Dr. Bea began acting coldly towards Bose and vocalizing his suspicions of Bose’s cheating. A colleague suggested Dr. Bea to corroborate his suspicions by displaying a fake answer key on his laptop while Bose took a quiz to see if her answers matched up. With the trap placed, Bose took the next quiz, producing identical results to the fake answer key. The college’s Honor Council then conducted an investigation and hearing to determine whether Bose cheated. It found, through clear and convincing evidence, that Bose used stolen answers to cheat on the last quiz, and the college expelled Bose pursuant to the Honor Code and academic policy guidelines.
Following the expulsion, Bose filed a lawsuit against Dr. Bea and Rhodes College alleging, among other claims, Title IX retaliation. Bose asserted that Dr. Bea violated Title IX by reporting her to the Honor Council as a direct consequence to challenging his romantic advances. The district court granted Rhodes’s motion for summary judgment, reasoning that Title IX does not provide for an individual’s liability, but rather only liability for the educational institution itself. Bose appealed the district court’s Title IX decision to the Sixth Circuit.
III. Analyzing Title IX Retaliation Claims and the “Cat’s Paw” Theory of Causation
The Sixth Circuit had yet to come across a Title IX retaliation claim but analogized it to a Title VII retaliation claim. It required the following four elements for Bose to sufficiently plead her case: (1) the student engaged in protected activity; (2) the college knew of the protected activity; (3) the student suffered an adverse school-related action; and (4) a causal connection existed between the protected activity and the adverse action. The court found issue with Bose’s argument on the fourth element, which failed to connect Bose’s confrontation about the harassment—the protected activity—with the college’s expulsion—the adverse action.
At the Sixth Circuit proceedings, Bose attempted to causally connect Dr. Bea’s retaliatory animus with the Honor Council’s expulsion so that the college could be liable under Title IX. In its investigation and hearing, however, Rhodes College’s Honor Council was tasked as the fact-finder for issues strictly relating to the cheating scandal, making its decision without notice or knowledge of Dr. Bea’s alleged sexual harassment and retaliation. The court found that the Honor Council followed its own procedures by adhering to its governing academic policies independently of Dr. Bea’s alleged retaliatory bias. In doing so, the college was immune to any Title IX claims because Bose could not link the college’s expulsion with her complaints about the harassment. Bose’s Title IX claims against the college were defective because they symbiotically intertwined Dr. Bea’s harassment with the college’s investigation and expulsion. In actuality, the college made a neutral decision absent a discriminatory motive and without Dr. Bea’s involvement. Accordingly, Rhodes College could not be liable as an educational institution under Title IX because any alleged violation of the protected activity was caused by its employee and not the college itself.
In a failed effort to trigger Title IX, Bose sought to link Dr. Bea’s actions to the college’s expulsion by asserting a theory of causation known as the cat’s paw theory of liability. The Sixth Circuit described the cat’s paw theory as follows:
[T]he term “cat’s-paw” refers to “one used by another to accomplish his purposes.” In the employment discrimination context, “cat’s paw” refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.
Courts have applied the cat’s paw theory of liability in a multitude of situations, including a Title VII race discrimination claim and an employment age discrimination claim, but Bose’s assertion that Dr. Bea tainted the Honor Council’s decision-making process was the first time the Sixth Circuit considered applying the cat’s paw theory to a Title IX case.
The court rejected Bose’s argument, primarily on the basis of agency law principles, going so far as to equate the cat’s paw to respondeat superior. Congress specifically drafted Title IX to hold federally funded educational institutions accountable for sexual discrimination, not to create liability regarding the actions of the institution’s lower-level employees. The United States Supreme Court has additionally noted that Title IX only imposes liability on “an official who at a minimum has the authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination” and acts with “deliberate indifference” to the discrimination. Following the Supreme Court’s logic, Rhodes College could only be liable if the Honor Council, in its official capacity, decided to expel Bose despite knowing and acting deliberately indifferent to Dr. Bea’s harassment. Because the Honor Council neither knew nor acted deliberately indifferent to an instance of harassment, Rhodes beat the Title IX claims.
Based on this decision, it would be impossible to use the cat’s paw theory to impute Title IX liability onto an educational institution for the actions of a subordinate in the Sixth Circuit’s jurisdiction. The cat’s paw theory of liability merely requires the discriminatory actor to clandestinely manipulate its superior without the superior having knowledge of its own internal prejudice. In contrast, successful Title IX claims against an educational institution requires the institution to have actual knowledge of the discrimination and to act with deliberate indifference toward the discriminatory act. Under this framework, Bose’s cat’s paw argument could not have prevailed because the college and its decision-making process isolated itself from any potential influence from Dr. Bea. In doing so, the college could not have been subject to covert manipulation, let alone have actual knowledge of being manipulated.
As described, the cat’s paw approach clearly has no place in Title IX litigation. Before killing the thought altogether, however, the Sixth Circuit resurrected the idea by imagining a different argument under the same facts in which a variant on the cat’s paw theory could prevail in a Title IX case.’
IV. The Cat’s Paw Buried in Pet Semetary
Drawing influence from a different Title IX appellate court case, the Sixth Circuit posited what would have happened if Bose argued that the college had actual knowledge of its employee’s discriminatory actions and failed to take action. Rather than limiting her argument to the cat’s paw, Bose should have emphasized that Rhodes College had actual notice and knowledge of Dr. Bea’s retaliation when she reported the sexual harrassment to the school. A connection could have then been drawn between the college’s actual knowledge of Dr. Bea’s retaliation and its decision to act deliberately indifferent to his reactionary reporting to the Honor Council. This argument effectively shifts the legal issue from Dr. Bea’s individual sexual harassment and retaliation to Rhodes’s knowledge and indifference of Dr. Bea’s discrimination, thus imputing Title IX liability onto the college.
Raising this issue spawns a host of Title IX sub-issues, such as whether the notification of misconduct was adequate, whether the report was made to the correct person in the college’s hierarchy, and whether the school acted with deliberate indifference as to the report. This slew of sub-issues regarding the degree of effectivity on reporting an educational institution’s employee is an open-ended question. Similarly, the actionability of a college’s deliberate indifference toward a professor’s retaliation has divided courts. Unfortunately, Bose’s failure to raise these arguments leaves them unsanswered in the Sixth Circuit.
Title IX imputes liability for sexually discriminatory acts onto an educational institution receiving federal funding. For a student to prevail on a Title IX sexual harassment claim, the educational institution must have actual knowledge of the sexual harassment and must act with deliberate indifference to the harassment. In the context of a Title IX suit, the cat’s paw theory of liability, which attempts to impute liability from a subordinate onto the educational institution, cannot succeed because it fails to impute actual knowledge and indifference of the harassment onto the college. Rather than raising the cat’s paw theory, a Title IX plaintiff should assert that the college’s higher-ups were aware of its employee’s retaliatory actions but acted with deliberate indifference toward the subordinate’s actions. This argument focuses not on the retaliatory actions of the subordinate, but rather the school’s reaction to the subordinate’s retaliation, and would potentially open the school up to liability for its mishandling of the situation.
 See 20 U.S.C. §§ 1681–1688 (2018).
 See Overview of Title IX of the Education Amendments of 1972, U.S. Dep’t of Just., https://www.justice.gov/crt/fcs/TitleIX-SexDiscrimination [https://perma.cc/8T7W-YSHK] (last visited Mar. 22, 2020).
 See Pending Cases Currently Under Investigation at Elementary-Secondary and Post-Secondary Schools, Office for Civil Rights, U.S. Dept. of Ed., (Mar. 31, 2020), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/open-investigations/tix.html?perPage=1000 [https://perma.cc/JSZ4-WC8P].
 See Alexander v. Yale, 631 F.2d 178 (2d Cir. 1980). Some of the Alexander plaintiffs alleged that their professors engaged in sexual misconduct; those who were not direct victims of harassment asserted that they were affected by the school’s lack of a reporting mechanism for sexual misconduct. The plaintiffs contended that sexual harassment constituted sexual discrimination and, thus, was a Title IX infringement. Rather than demanding monetary damages, the plaintiffs sought a procedure to report and intervene against sexual misconduct in an educational institution. The Second Circuit upheld the district court’s decision in favor of Yale because of a failure to factually find the alleged occurrence of sexual misconduct. Despite the outcome, Alexander remains a lasting influence on United States law for recognizing that sexual harassment qualifies as a Title IX violation, which encouraged the creation of outlets to report sexual harassment in educational institutions across the country..
 947 F.3d 983 (6th Cir. 2020).
 See generally Bose, 947 F.3d 983.
 The cat’s paw theory of liability, as explained infra, is a method of imputing causation onto an employer by an employee’s actions. It typically arises in an employment law context, where a biased subordinate employee taints a neutral employer’s employment decision, making it a discriminatory action. See EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006).
 See Bose, 947 F.3d at 989.
 Id. at 985–86.
 Of the multiple advances described in the lawsuit, some of them include calling Bose “pretty” and “beautiful,” inquiring about her personal relationships outside of school, and asking her out to dinner. See Bose, 947 F.3d at 985.
 Id. at 986.
 Dr. Bea testified that the answer key displayed on his laptop was “in a larger view or ‘zoom’ level than he typically uses.” Id.
 Specifically, Dr. Bea “leaned over Bose’s shoulder and asked sternly whether she was texting her boyfriend.” When Bose did not answer, “Bea smiled and walked away.” Id.
 Id. at 987.
 The Honor Council explicitly “found clear and convincing evidence that [Bose] had stolen answers, most convincingly on Quiz 5, from Dr. Bea’s computer and used them to cheat.” Id.
 It is common for a Title IX plaintiff to raise a breach of contract for either failing to follow the school’s handbook or failing to properly investigate the alleged misconduct. Here, Bose raised a breach of contract claim for a failing to properly investigate the Title IX claim pursuant to the college’s academic guidelines. Bose eventually dismissed her breach of contract claim and focused on the Title IX claims. See id. at 987.
 The United States Supreme Court has held that Title IX encompasses a private right of action for retaliation. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005). A retaliation claim arises when an educational institution punishes an individual for reporting Title IX misconduct. See Retaliation, U.S. Dep’t of Educ., https://www2.ed.gov/about/offices/list/ocr/frontpage/pro-students/issues/sex-issue05.html [https://perma.cc/Y797-PRS3] (last visited Mar. 6, 2020).
 Bose, 947 F.3d at 987. See also 20 U.S.C. §§ 1681–88.
 Id. (citing Davis v. Monroe Cty. Bd. Of Educ., 526 U.S. 629, 640 (1999); Soper v. Hoben, 195 F.3d 845, 854 (6th Cir. 1999)).
 Id. at 3.
 The Employment Litigation Section enforces Title VII of the Civil Rights Act of 1964, prohibiting employment practices that discriminate because of race, color, national origin, sex, and religion.
 Bose, 947 F.3d at 988 (citing Gordon v. Traverse City Area Pub. Schs., 686 F. App’x 315, 320 (6th Cir. 2017)).
 Id. at 989.
 Id. at 989–90.
 Id. at 989.
 In addition to the confrontation before the alleged Honor Code violation, Bose filed an internal Title IX complaint alleging sexual harassment after her expulsion. See id. at 987.
 The cat’s paw theory is derived from one of Aesop’s Fables, Le Singe et la Chat. In the story, a monkey convinces a cat to steal chestnuts that were roasting above a fire, which burned the cat’s hand. The cat acquires chestnuts to the monkey’s benefit but scorches its paws in the process. The cat is interrupted by a chambermaid and gets nothing in return for its hard work, while the monkey enjoys the fruits of the cat’s labor.
 Bose, 947 F.3d at 989 (citing EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006)).
 Compare Marshall v. The Rawlings Co., 854 F.3d 368, 377 (6th Cir. 2017) and Bose, 947 F.3d at 989 with Papelino v. Albany Col. of Pharmacy of Union Univ., 633 F.3d 81 (2d Cir. 2011). In Papelino, the Second Circuit tolerated an argument akin to the cat’s paw theory. 633 F.3d at 92. Papelino’s facts, however, focused on the university’s deliberate indifference to its subordinate’s retaliation, further explored infra Part IV.
 Bose, 947 F.3d at 994.
 Id. at 989 (citing Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 290–91 (1998)).
 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).
 This notion is in stark contrast to the language of Title VII, which explicitly defines an employer to include “any agent.” Thus, under Title VII, a lower-level employee that does not possess authority to address an allegation of discrimination could be held liable. Bose, 947 F.3d.at 989–90 (quoting 42 U.S.C. § 2000(e)(B)).
 Id. at 994.
 See Gebser, 524 U.S. at 290–91.
 Bose, 947 F.3d at 993–94.
 See Stephen King, Pet Semetary, (1st ed. 1983)
 See Bose, 947 F.3d at 991–92 (citing Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81 (2d Cir. 2011)).
 Id. at 992.
 See, e.g., M.D. ex. rel. Deweese v. Bowling Green Ind. Sch. Dist., 709 F. App’x 775, 779 (6th Cir. 2017); Feminist Majority Found. v. Hurley, 911 F.3d 674, 695 (4th Cir. 2018).
 Bose, 947 F.3d at 992.
 See 20 U.S.C. §§ 1681–88 (2018).
 See Bose, 947 F.3d at 990.