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

93

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 40–175

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 groups—students and non-students—for 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 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 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 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 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.