Gender violence costs: schools' financial obligations under Title IX.

• Author: Bolger, Dana
• Position: A Conversation on Title IX

FEATURE CONTENTS INTRODUCTION I. CAMPUS GENDER VIOLENCE AND ITS COSTS: AN EQUALITY ISSUE II. CAMPUS GENDER VIOLENCE'S FINANCIAL COSTS AS GENDER-BASED BARRIERS TO EDUCATION III. OCR'S FAILURES TO ENFORCE SCHOOLS' OBLIGATIONS TO ADDRESS GENDER-BASED FINANCIAL COSTS IV. PROPOSALS FOR REFORM A. Update OCR Case Processing Manual B. Conduct Outreach and Educational Efforts C. Encourage Granting of Discretionary Forbearance to Victims of Gender Violence D. Additional Avenues for Reform CONCLUSION INTRODUCTION

In August 2014, Wagatwe Wanjuki finally graduated from college. (1)

She had begun university some ten years earlier, at Tufts, where she was supposed to have graduated in 2008. (2) But after she was raped and abused by her then-boyfriend, a fellow Tufts undergraduate, her educational path was thrown off course. (3)

After reporting her abuser to the Tufts administration, Wanjuki says the university told her it had no obligation to act. (4) Without institutional support, she paid out of pocket for transportation to the local rape crisis center, hospital, and courthouse. (5) She moved far from campus because she did not want to be nearby and paid extra for the longer commute. (6) She took time off "to heal." (7) Her medical and therapy copayments added up to hundreds of dollars. (8) Wanjuki ultimately stopped therapy because she was unable to afford it. (9) "I feel like I still need to go now. Unfortunately, the situation made it really hard to see someone consistently. The ramifications of the institutional apathy still follow me." (10)

Wanjuki's grades fell as a result of her sexual abuse and the lack of support from the university. (11) In response, in 2009, Tufts expelled her. (12) She lost the money she had already paid for the semester's lease. (13) Wanjuki was just one year shy of earning her degree. (14)

Expelled at the height of the recession, Wanjuki was unable to find employment. (15) She nearly secured a position with a starting salary of sixty-five thousand dollars, until the employer learned she had not completed her college degree. (16) As she recalls, "[T]aking so long to get a degree because I was kicked out made me miss out on a lot of opportunities." (17)

Eventually Wanjuki returned to college, this time at Rutgers University. (18) She resorted to fundraising to pay for her remaining credits. (19) As she explains, "if I didn't have an expulsion on my record, I might have been able to go to a school that had ... more scholarship funds." (20)

Wanjuki is not alone. One in five women suffer sexual assault or attempted sexual assault in college. (21) This violence can limit or preclude a student's ability to learn. (22) Many victims, like Wanjuki, understandably go to great lengths to avoid their perpetrators on campus: some skip shared classes, (23) avoid shared spaces like the dining hall or library, hide in their dorm room, transfer, or drop out of college altogether. (24) Others struggle with depression, posttraumatic stress disorder (PTSD), eating disorders, anxiety attacks, flashbacks, and nightmares. (25) Some attempt suicide or engage in self-harm. (26) Typically academically successful students see their grades plunge as they struggle to concentrate on, participate in, or even attend their classes. (27)

The courts have long recognized that peer-on-peer sexual violence limits or outright denies students' ability to access education, that schools have obligations under Title IX to address this violence, and that the Department of Education's Office for Civil Rights (OCR) is responsible for "promulgat[ing] and enforcing] requirements that effectuate [Title IX's] nondiscrimination mandate." (28) And, thanks to student activists' efforts to raise awareness about Title IX, universities and students alike are increasingly recognizing schools' obligations as well. (29)

But often neglected in the growing national conversation around campus gender violence is one critical reality: gender-based violence has costs, and these costs constitute a discriminatory, gender-based barrier to educational access. Part I of this Feature reviews judicial and administrative understandings of campus sexual violence as discrimination, noting in particular that Title IX's equality mandate requires schools to remove or remedy financial costs attributable to discrimination. Part II highlights the various economic costs that stem from campus gender violence and demonstrates that these gender-based costs create and exacerbate barriers to student survivors' educations. Part III examines the lackluster administrative enforcement of colleges' Title IX obligations to remedy such costs, and Part IV offers several policy proposals through which OCR and Congress may more fully realize Title IX's promises and protections.

1. CAMPUS GENDER VIOLENCE AND ITS COSTS: AN EQUALITY ISSUE

   Courts have long understood that gender-based violence hinders student victims' ability to access their right to education under Title IX of the 1972 Education Amendments. Title IX provides: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." (30) In 1977, Alexander v. Yale University became the first case (31) to use Title IX to establish that sexual harassment of women students constitutes sex discrimination in education. (32) Subsequent court decisions clarified schools' obligations under Title IX to address and remedy peer-on-peer sexual violence. (33) OCR has further defined these obligations using its authority to make policy and enforce school compliance. (34)

   OCR releases periodic administrative guidance clarifying schools' responsibilities. OCR's 1997 and 2001 guidance explain that a school is liable under Title IX if the school fails to take "immediate and appropriate corrective action" for sexually harassing conduct about which it knows or should have known and which is "sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from an education program or activity." (35) A school must take steps to end harassment, eliminate any hostile environment, prevent its recurrence, and remedy its effects. (36) On the last point, OCR suggests several remedies in its 1997 and 2001 guidance: place the accused student and victim in separate classes, change housing arrangements, issue a no-contact directive, provide tutoring, offer reimbursement for counseling, or make tuition adjustments. (37)

   In later guidance, OCR further clarifies the kinds of accommodations that may be necessary to eliminate a hostile environment. Its 2011 Dear Colleague Letter suggests that reasonable remedies might include: providing the victim with counseling and medical services, academic support services, or an escort to and from class. (38) In its 2014 "Questions and Answers," OCR explains that victims should also, as appropriate, be allowed to change transportation, dining, and work situations, as well as receive extensions on assignments, extra time on tests, and the opportunity to re-take or withdraw from a class without penalty. (39)

   OCR recognizes schools' obligations to provide these accommodations at no cost to survivors. In the 2014 "Questions and Answers," OCR explicitly states that a school must cover survivors' counseling costs, should it determine that a survivor requires access to such services. (40) Similarly, in a subsequent letter to two student advocacy organizations, OCR explains that survivors cannot be required to pay for any remedies necessary to ensure equal access to education programs and notes that, in the event of a school's failure to promptly remedy a hostile environment, it must reimburse survivors for the expenses its inaction creates. (41) In its enforcement decisions, OCR has, at times, required institutions to reimburse students for a variety of expenses, including unused meal plans, counseling treatment, (42) and "[u]niversity-related expenses (tuition, fees, housing, food, and books)." (43)

   OCR's recognition that Title IX's equality mandate requires schools to compensate victims for the economic costs of discrimination is consistent with antidiscrimination law more broadly. (44) For instance, the Equal Employment Opportunity Commission (EEOC)--which, roughly analogously to OCR, (45) handles complaints of discrimination in the employment context--states:

   When an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly ... [and] should take immediate and appropriate corrective action by doing whatever is necessary to end the harassment, make the victim whole by restoring lost employment benefits or opportunities, and prevent the misconduct from recurring. (46) The EEOC has routinely found that victims are entitled to reimbursement for the cost of medical services and other expenses attributable to discrimination, in addition to nonpecuniary compensatory damages. (47) The nondiscrimination provisions of the Fair Housing Act have similarly protected gender violence victims from paying the costs of eviction, early termination penalties, and property damage (48)--all financial costs of violence understood to be discriminatory based on sex. In short, agencies enforcing antidiscrimination law have recognized that the financial costs of discrimination can pose continued obstacles to equality and have consequently required compensation for victims.

2. CAMPUS GENDER VIOLENCE'S FINANCIAL COSTS AS GENDER BASED BARRIERS TO EDUCATION

   Sexual violence has costs. A 2008 study placed the total per-offense societal cost of rape and sexual assault at $240,776 in 2008 dollars, (49) or $265,400 in 2015 dollars. (50) A 1996 study found that, when lost productivity, medical and mental health care, property loss, and lost quality of life...