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
SUMMARY

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... (see full summary)

 
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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 ma de even more visible by recent media
attention to the #MeToo movement. Ti tle IX of the Education Amendments
of 1972 addresses discriminatio n (including sexual violence) that impedes
access to education; the law dema nds compliance from federally funded
schools related to their prevention of and response to this problem. The
U.S. Sup reme Court has interpreted the l aw to contain an implied priva te
right of action that can be brought against a schoo l for its deliberate
indifference to severe and pervasiv e sex discrimination about which it has
knowledge. However, over the past sev eral years, a handful of courts in th e
United States have rendered opinions that h ave defined, and effectively
narrowed, the class of individua ls who are entitled to protection u nder Title
IX. These cases create two separate classes of individ uals with different rights:
students and non-students, o r put another way, insiders and outsiders. This
Article seeks to add to the ongoing a nd complex Title IX conversatio n by
exposing a novel, yet very real conundrum: To whom does Title IX apply?
Should universities extend greater sa fety protections to those who are officially
a part of an institution like students, fa culty or staff, as opposed to those who
are not? Are non-students and other individua ls who temporarily interact
within the university context simp ly left out of the spectrum of Title I X
protections? What sort of campus saf ety dynamic exists if certain classes of
victims are denied access to Title IX? After exte nsive analysis, this Article
ultimately concludes that facilitating safer campus communities likely
demands an extension of Title IX rights to those ind ividuals who participate
in campus life, regardless of their officia l 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 ex cellence 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. PREVALENCE AND DYNAMICS .................................................. 103
B. THE STATUS OF INSTITUTIONS ................................................ 106
IV. EXPOSING THE TITLE IX CONUNDRUM: WHOSE RIGHTS ? ........... 109
V. THE EXCLUSION OF CAMPUS VISITORS FROM THE
PROTECTION OF TITLE IX ........................................................... 117
A. EXPLORING THE STANDARD .................................................... 117
B. CASES INVOLVING CAMPUS VISITORS ....................................... 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. TOWARD AN INCLUSIVE RESOLUTION ....................................... 128
1. Statutory Language ...................................................... 129
i. “No Person” ............................................................. 130
ii. “Program or Activity” ............................................... 132
2. Judicial Opinions ......................................................... 133
3. Equal Protection .......................................................... 134
B. ARGUMENTS FOR EXCLUSION .................................................. 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 ext ent and magnitude of the abuse perpetrated by
Nassar is unprecedented. 2 As the physician served the first days of a 40175
1. Carla Correa & Meghan Louttit, M ore 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/spo rts/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 denie d the benefits of, or
be subjected to discrimination un der 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 violen ce 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 groupsstudents and non-studentsfor purp oses 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 rece nt, 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 vis-
a-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 the y experienced, and
3. Zach Schonbrun & Christine Hauser, Larry Nassar, Sentenced in Sexual Abuse Case, Is Back
in Court, N.Y. TIMES (Jan. 31, 201 8), https://www.nytimes.com/2018/01/31/sports/larry-nassar-
sentencing.html. Nassar was separately convicted on child pornography charges, for which he w as
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 Motio n to Dismiss of Defendants at 2224,
Denhollander v. Mich. State Univ., 2018 WL 580692 (W.D. Mich. 2018) (No. 1:17-cv-00029-
GJQ-ESC), 2018 WL 580692 [hereinafter Join t Omnibus Brief].
8. See Doe v. Brown Univ., 270 F. Supp. 3d 556, 560 (D.R.I. 2017), aff’d, D oe v. Brown
Univ., 896 F.3d 127, 128 (1st Cir. 2018); K.T. v. Culver-Stockto n 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 2224.
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 p ublic university
that is the state’s largest, al so sent a loud warning to other col leges about the potentially
devastating cost of ignoring misconduct. Id.

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