A Title IX Conundrum: Are Campus Visitors Protected from Sexual Assault?

• Author: Hannah Brenner
• Position: Associate Professor of Law, California Western School of Law. J.D., University of Iowa, 1998
• Pages: 93-138

A Title IX Conundrum: Are Campus Visitors Protected from Sexual Assault? Hannah Brenner * ABSTRACT: Sexual violence is a significant and longstanding problem on college campuses that has been made even more visible by recent media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The U.S. Supreme Court has interpreted the law to contain an implied private right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has knowledge. However, over the past several years, a handful of courts in the United States have rendered opinions that have defined, and effectively narrowed, the class of individuals who are entitled to protection under Title IX. These cases create two separate classes of individuals with different rights: students and non-students, or put another way, insiders and outsiders. This Article seeks to add to the ongoing and complex Title IX conversation by exposing a novel, yet very real conundrum: To whom does Title IX apply? Should universities extend greater safety protections to those who are officially a part of an institution like students, faculty or staff, as opposed to those who are not? Are non-students and other individuals who temporarily interact within the university context simply left out of the spectrum of Title IX protections? What sort of campus safety dynamic exists if certain classes of victims are denied access to Title IX? After extensive analysis, this Article ultimately concludes that facilitating safer campus communities likely demands an extension of Title IX rights to those individuals who participate in campus life, regardless of their official connection to the university. * Associate Professor of Law, California Western School of Law. J.D., University of Iowa, 1998. I am grateful to my colleagues at California Western School of Law for their feedback on this Article, and especially to Professor Daniel Yeager for his comments and encouragement along the way. Thanks to George Kunthara for exceptional research assistance and to the Iowa Law Review staff for their professionalism and excellence throughout the editing process. 94 IOWA LAW REVIEW [104:93 I. INTRODUCTION ............................................................................. 94 II. TITLE IX OF THE EDUCATION AMENDMENTS OF 1972 ................... 99 III. SEXUAL VIOLENCE IN THE QUASI-CLOSED INSTITUTIONAL SETTING OF HIGHER EDUCATION ................................................ 102 A. P REVALENCE AND D YNAMICS .................................................. 103 B. T HE S TATUS OF I NSTITUTIONS ................................................ 106 IV. EXPOSING THE TITLE IX CONUNDRUM: WHOSE RIGHTS? ........... 109 V. THE EXCLUSION OF CAMPUS VISITORS FROM THE PROTECTION OF TITLE IX ........................................................... 117 A. E XPLORING THE S TANDARD .................................................... 117 B. C ASES I NVOLVING C AMPUS V ISITORS ....................................... 120 1. K.T. v. Culver-Stockton College ........................................ 120 2. Jane Doe v. Brown University ........................................... 122 3. Appeals to the Federal Courts ..................................... 124 VI. RESOLVING THE TITLE IX CONUNDRUM ..................................... 128 A. T OWARD AN I NCLUSIVE R ESOLUTION ....................................... 128 1. Statutory Language ...................................................... 129 i. “No Person” ............................................................. 130 ii. “Program or Activity” ............................................... 132 2. Judicial Opinions ......................................................... 133 3. Equal Protection .......................................................... 134 B. A RGUMENTS FOR E XCLUSION .................................................. 135 1. Judicial Opinions ......................................................... 135 2. Statutory Language and Related Guidelines .............. 136 VII. CONCLUSION .............................................................................. 137 I. INTRODUCTION Dr. Larry Nassar, an osteopathic physician at Michigan State University (“MSU”), was convicted of sexually abusing numerous young girls, college students, gymnasts and other athletes over the course of his decades-long medical career. 1 The extent and magnitude of the abuse perpetrated by Nassar is unprecedented. 2 As the physician served the first days of a 40–175 1. Carla Correa & Meghan Louttit, More Than 160 Women Say Larry Nassar Sexually Abused Them. Here Are His Accusers in Their Own Words , N.Y. TIMES (Jan. 24, 2018), https://www.nytimes.com/ interactive/2018/01/24/sports/larry-nassar-victims.html. 2 . Id. 2018] ARE CAMPUS VISITORS PROTECTED . . .? 95 year sentence, 3 lawyers representing the victims filed civil lawsuits against MSU on a number of grounds, including allegations that the university violated Title IX of the Education Amendments of 1972, the federal civil rights law that addresses sex discrimination in federally funded education programs. 4 The law 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.” 5 The damages suits brought against MSU alleged that the university had knowledge of, and acted with deliberate indifference to an ongoing pattern of sexual violence perpetrated by the employee doctor. 6 As a threshold matter in these civil cases, lawyers defending MSU argued that the girls and women who were violated by the physician should be divided into two discrete groups—students and non-students—for purposes of determining who has the right to access the protections of Title IX. 7 At the crux of this argument, which is supported by the holdings in recent, but admittedly limited judicial opinions, is the idea that non-students who experience the same kinds of harm as those who were actually enrolled at the school lack standing to sue the university for money damages under Title IX. 8 It is on these grounds that the MSU lawyers asked the court to dismiss the cases brought by the non-students. 9 The net effect of this motion to dismiss, if granted, would have been to deny access to the civil legal system, at least visa-vis Title IX, to numerous sexual assault victims. However, months after the filing of these lawsuits, MSU agreed to a five hundred-million-dollar settlement with 332 victims. 10 While a win for the victims, at least insofar as receiving monetary relief for the egregious harms they experienced, and 3. Zach Schonbrun & Christine Hauser, Larry Nassar, Sentenced in Sexual Abuse Case, Is Back in Court , N.Y. TIMES (Jan. 31, 2018), https://www.nytimes.com/2018/01/31/sports/larry-nassarsentencing.html. Nassar was separately convicted on child pornography charges, for which he was sentenced to 60 years in prison. Id. 4 . See First Amended Complaint, John F1 Doe ex rel. Jane F1 Doe v. Michigan State Univ., 2017 WL 4679022 (W.D. Mich. Aug. 24, 2017)(No. 1:17-cv-00029-GJQ-ESC), 2017 WL 4679022, at *13. 5. 20 U.S.C. § 1681(a) (2012). 6 . Id. 7 . See, e.g. , Brief in Support of Joint Omnibus Motion to Dismiss of Defendants at 22–24, Denhollander v. Mich. State Univ., 2018 WL 580692 (W.D. Mich. 2018)(No. 1:17-cv-00029-GJQ-ESC), 2018 WL 580692 [hereinafter Joint Omnibus Brief]. 8 . See Doe v. Brown Univ., 270 F. Supp. 3d 556, 560 (D.R.I. 2017), aff’d , Doe v. Brown Univ., 896 F.3d 127, 128 (1st Cir. 2018); K.T. v. Culver-Stockton Coll., No. 4:16-CV-165, 2016 WL 4243965, at *1, aff’d , K.T. v. Culver-Stockton Coll., 865 F.3d 1054 (8th Cir. 2017). 9. Joint Omnibus Brief, supra note 7, at 22–24. 10 . Mitch Smith & Anemona Hartocollis, Michigan State’s $500 Million for Nassar Victims Dwarfs Other Settlements , N.Y. TIMES (May 16, 2018), https://www.nytimes.com/2018/05/16/us/ larry-nassar-michigan-state-settlement.html. The settlement by Michigan State, a public university that is the state’s largest, also sent a loud warning to other colleges about the potentially devastating cost of ignoring misconduct. Id. 96 IOWA LAW REVIEW [104:93 avoiding lengthy litigation proceedings, the settlement nonetheless precluded the opportunity for a court to weigh in on the non-student standing issue. Recently, however, two federal district courts have ruled on point and their holdings have begun to refine the definition of the class of individuals entitled to protection from sex discrimination under Title IX. 11 Specifically, Doe v. Brown University and K.T. v. Culver-Stockton College precluded non-students from bringing successful Title IX claims for money damages under a theory of the schools’ deliberate indifference to their allegations of sexual abuse. 12 These decisions, both of which were affirmed by the First and Eighth Circuit Courts, respectively, appear to represent an emerging development in the evolution of Title IX jurisprudence. Title IX was designed to ensure equal access to education. 13 Subsequent to the passage of this federal law, a series of U.S. Supreme Court cases defined the parameters of institutional liability. 14 These cases complement the Department of Education’s Office for Civil Rights’ regulations that clarify the requirements Title IX imposes on schools. 15 What remains unclear despite this legislative, judicial, and administrative guidance, however, is whether an individual must be a student or official member of a particular institution where the discrimination takes place to benefit from protection of the statute and ultimately have...