The Sixth Circuit Court of Appeals reversed a lower court decision Wednesday that prohibited victims and their families from suing the university on the grounds that the statute of limitations on Title IX cases had passed. The court did not, however, accept survivors’ claims of Title IX retaliation, nor did it rule that the lower judge who originally dismissed the cases should recuse himself for his affiliation with Ohio State.
In the opinion, Judge Joan Larsen wrote that it was beyond the scope of the court to decide the truth among factual disagreements about when exactly survivors should have known that what Strauss did to them was abuse. Rather, extensive evidence produced chiefly by a 2019 investigation showed that key Ohio State officials not only knew about Strauss’ abuse, but they also concealed that abuse from students and athletes for decades — enough evidence to warrant survivors’ lawsuits.
“Just when the plaintiffs knew or should have known that Strauss’s conduct was abuse, and when they knew or should have known about Ohio State’s role in causing their injuries are questions of fact that we cannot resolve on a motion to dismiss,” Larsen wrote.
An Ohio State spokesperson declined to comment, while attorneys for survivors did not immediately respond to requests for comment.
Strauss was an Ohio State physician and varsity team sports doctor from 1978-98. During his tenure, he sexually abused and harassed hundreds of victims — nearly all men — under the guise of medical exams.
Strauss died by suicide in 2005. Since 2018, more than 530 victims and their families have filed nearly 40 lawsuits against Ohio State for its failure to prevent and address the abuse, which an independent investigation found in 2019 that university officials were aware of as early as 1979.
The Sixth Circuit court ruled last fall that another lawsuit filed by Strauss victims could proceed, remanding the case to the lower court for litigation. After the appeals court denied a motion by Ohio State for a full-panel, en banc review of the decision, the university filed its intent to appeal the case to the Supreme Court this spring.
But the Sixth Circuit stopped short of granting all of the survivors’ claims. Survivors said after making their complaints, Ohio State employees and affiliates retaliated against them through “public comments on the radio and private statements via phone, email or text, in a retaliatory attempt to ‘silence’ plaintiffs.'” The court rejected this claim, ruling that comments made by individual employees or benefactors didn’t constitute “official decisions” by the university and thus were not institutional retaliation.
The court also found that the judge who originally heard Strauss survivors’ lawsuits did not need to recuse himself from Strauss-related lawsuits, something survivors had called for since before the judge dismissed their lawsuits in 2021.
The judge, Michael Watson, told both the university and survivors at the outset of lawsuits that he teaches at Ohio State’s law school, a fact which neither party flagged at the time. Just weeks before dismissing the lawsuits, he disclosed that his wife has a licensing agreement with Ohio State to sell branded merchandise from her store.
Survivors sought Watson’s recusal, arguing that his salary as an adjunct professor and his wife’s licensing agreement with the university constituted “financial interest in the university” and affected Watson’s impartiality. But the court disagreed, finding that Watson’s affiliation with Ohio State did not satisfy judicial requirements for recusal — the law school is in no way connected to Strauss or survivors, and his wife’s sales to Ohio State constituted less than 1% of the store’s revenue.
“Judge Watson, who sits in Columbus, Ohio, undoubtedly had a number of points of contact with Ohio State, its affiliates, and hangers-on. That is neither surprising, nor necessarily undesirable,” Larsen wrote. “The Judicial Code of Conduct counsels that the ‘complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives.'”
Survivors’ cases, including those the appeals court previously ruled to let continue, will be remanded to the lower court, where Watson will hear them.
Since 2020, Ohio State has settled with 296 survivors for more than $60 million. About 100 men and their families joined the federal appeal. Ohio State has until March 14, 2023 to file a petition of writ of certiorari in the Supreme Court. At least four justices must vote to accept the case.