OSU is calling for an en banc review, which is rare. This review asks that all 16 judges in the Sixth Circuit review the case to prevent it from moving forward.

Background on the case

The amicus brief supporting OSU, which was signed by six other midwest universities and filed on Oct. 3, came after a years-long legal battle between OSU and survivors of sexual abuse by former university physician Richard Strauss. A 2019 investigation found Strauss sexually abused at least 177 male student patients.

In September 2021, a judge dismissed one of the cases, citing the statute of limitations. But this past September, the U.S. Court of Appeals for the Sixth District Court of Ohio determined the judge had erred.

According to attorney Rocky Ratliff, who is representing one of the other survivor groups and is a survivor himself, the university is arguing in favor of the occurrence rule, which would give survivors two years after the injury to file a lawsuit.

However, many of the survivors did not realize they had been abused until 2018 because they had been told the abuse was just a medical procedure. Because of this, Ratliff and the other survivors are arguing in favor of the discovery rule, which would mean that the time to file a lawsuit began when the survivors first became aware of the abuse.

Ratliff was surprised by MSU’s involvement in the brief, as he has met with survivors of sexual abuse at MSU and the University of Michigan. He believed the universities were trying to improve after their previous mishandlings of sexual abuse cases, such as MSU's case with ex-doctor Larry Nassar.

“I was (in Michigan) meeting some of these brave women that are like our heroes at Michigan State,” Ratliff said. “Obviously, if they had never came out, none of us would be here trying to fight this thing at all. They are truly our heroes … and then when I looked at this list, and the two universities on here are the University of Michigan and Michigan State, I was appalled. (The universities) told these survivors how sorry they were … and here they are backing another institution (Ohio State, that) has maybe been more concealing and has more cover-up going on.”

OSU and other universities in support of this review want to stop the survivors from extending the time to file a lawsuit, so in response, it asked for a rehearing.

Why MSU signed the brief

So, the brief filed by MSU and six other midwest universities, including the University of Michigan, supports OSU’s rehearing.

“Michigan State University joined the brief because there is now confusion and uncertainty among the courts and universities within the Sixth Circuit regarding Title IX’s rules and scope,” University Spokesperson Emily Guerrant said in a statement. “Clarification is needed not just for Ohio State in this particular case, but for all universities subject to Title IX.”  

In regards to defining the scope of Title IX, the brief argues the decision to allow the survivors’ cases to go to trial extended Title IX's implied right of action and extends it to the "members of the public." It argues this extension could be harmful to the university and anyone who comes on campus, including people “on a college visit or attending a football game” could file Title IX complaints if the survivors' case succeeds.

Guerrant said MSU’s involvement in the brief was a decision made by the Office of General Counsel.

The brief also states that the original court decision “puts schools in the impossible position of being forced to defend against claims where the only evidence remaining may well be the plaintiff’s own say-so.” 

Reaction from the plaintiffs

The brief came as a shock to Ratliff, an attorney for the survivors. He first heard about the brief from a Facebook group with other survivors. He said he couldn't believe the brief had actually been filed. It took Ratliff several phone calls with other group members to realize that the brief was real, and he immediately went to his office to read it. 

“My initial reaction was shock that any institution would do this," Ratliff said. "Once I found out that it was correct, I was instantly disgusted that other institutions would think this behavior was O.K., because in our case, at Ohio State ... had tons of knowledge about what happened, and they… concealed it and covered it up from everybody.”

Ratliff believes that the request for the review will be unsuccessful as a minuscule amount of cases make it to en banc rehearings. 

If the request for the en banc review is denied, the case will go to trial and the plaintiffs will have access to the notes from the university’s investigation. Ratliff said these unreleased notes will strengthen the survivors’ case and possibly lead to revelations that high-profile figures at the university were involved in the cover-ups, which he believes is exactly why the university doesn’t want them to have the records.

Ratliff said although the rehearing will likely be unsuccessful, the universities' decisions to file the brief are still harmful, inflicting more trauma on survivors.

“I felt insult and disgust,” Ratliff said. “...It's like they just spit in our face, like they don't really care—and not just my face, (but also) the face of about every other survivor, including those (in Michigan) that have fought very valiantly and hard in their cases.”