Title IX's reproductive remedies.

• Author: Cocuzza, Francesca

Abstract

Despite the rich public debate surrounding sexual assault at colleges and universities, the problem of pregnancy among survivors has received little attention. At the same time, institutions of higher education continue to resist compliance with federal law mandating insurance coverage of reproductive health care for their students and employees. For students learning and growing in college environments where rape is far too common, access to contraception and emergency contraception is critical. This Note argues that Title TX, the civil rights law prohibiting sex discrimination in federally funded educational programs, requires colleges and universities to make contraception and emergency contraception available on campus to student survivors of sexual assault. When pregnancy resulting from rape is conceptualized as an injury, Title TX obliges schools to remedy that injury and prevent its recurrence by ensuring contraceptive access on campus. In this light, Title TX emerges as a vehicle to address both sexual assault and unwanted pregnancy--dual barriers to the equal educational opportunity envisioned by Title TX. Finally, this reading of Title TX presents an opportunity not only to make common sense health care and education policy reforms, but also to revisit broader doctrinal implications for reproductive justice as an issue of sex equality.

INTRODUCTION

Many voices--administrators, legal scholars, student survivors, and the accused--are participating in the ongoing national conversation about campus sexual assault. Yet little attention has been paid to the occurrence of pregnancy among survivors and their choices with respect to their pregnancies. Colleges and universities are under federal obligation to confront the prevalence of sexual violence on their campuses, to remedy its effects, and to accommodate survivors in various ways. While many schools are taking increasing steps to comply with this mandate, others remain under federal oversight for what reformers have identified as an enabling culture of sexual assault. At the same time, many educational institutions in both camps resist compliance with existing federal laws requiring the provision of contraceptive coverage to their students.

Rape can have a number of lasting consequences--among them, an unwanted pregnancy. Despite the interrelatedness of rape and pregnancy, even many campus sexual assault reformers have not emphasized the importance of student survivors' reproductive autonomy. Likewise, the prevalence of campus rape has not been significantly considered in policymaking debates about the role colleges and universities should perform in meeting their students' reproductive health needs. Without access to reproductive options--namely, contraception and emergency contraception (1)--student survivors can experience a twofold deprivation of control over their own bodies, all while entrusted to the care of their educational institutions.

Title IX, (2) the federal civil rights statute that prohibits sex discrimination in education, is the legal mechanism for ensuring that schools respond to incidents of sexual assault on campus. Department of Education guidance interprets the statute to require federally funded schools to make accommodations for survivors, remedy the harmful effects of sexual assault, and prevent their recurrence. (3) But the guidance does not expressly require schools to ensure survivors' access to contraception and emergency contraception, crucial tools in remedying rape's potential effects. If pregnancy that results from rape is considered an injury--in the same category as bodily harm, emotional trauma, missed semesters, and other injuries for which Title IX can create institutional liability--then Title IX requires schools to help student survivors prevent and remedy that harm.

This Note argues that by requiring federally funded schools to take action to redress and prevent harm that results from a hostile environment of sex discrimination, Title IX guarantees student survivors a right to reproductive health care access on campus--namely, no-cost access to contraception and emergency contraception. (4) Part I provides background on the campus sexual assault epidemic, discusses research on rape-related pregnancy and the importance of emergency contraception, and explores the scarce attention given to students' reproductive health on many college and university campuses. Part II presents the Title IX framework, argues for a conceptualization of pregnancy as an injury, and proposes that schools' obligation to remedy their students' rape-related injuries includes a duty to provide access to prophylactic and emergency contraception. This Part proposes a number of mechanisms for potential reform, including support for new federal administrative guidance, litigation, and state-level legislative action. Part III addresses potential limitations of the suggested mechanisms, including Title IX's religious exemption provision, and proceeds to situate this Note's thesis in a broader legal landscape of equality-based theories of reproductive justice.

1. Reproductive Risks for Survivors at College

   1. Sexual Assault on Campus

      The nationwide epidemic of sexual assault and harassment on college and university campuses is by now well-documented. A 2015 survey of twenty-seven institutions of higher education prepared for the Association of American Universities (AAU) revealed that about one-fourth of female college seniors participating in the study had experienced "nonconsensual sexual contact involving force or incapacitation" since entering college. (5) The results of the survey confirmed and expanded upon the estimates of previous, smaller studies, (6) and marked a step toward ascertaining the true scope of a problem that often goes underreported. (7) Other research has revealed that students raped on campus experience a range of injuries related to their assaults--posttraumatic stress, (8) depression, (9) and economic harm (including lost tuition and medical and psychological health care costs). (10)

      Although the problem is not new, media attention to campus sexual assault and activism surrounding the issue have grown in recent years, with a particular focus on the role of colleges and universities in preventing and managing sexual assault on their campuses. The Obama Administration emphasized the campus sexual assault crisis beginning in 2011 and throughout its second term." The Department of Education's Office for Civil Rights (OCR) is currently investigating over two hundred institutions of higher education for possible violations of their obligations to address sexual assault. (12) But perhaps the most significant participants in the growing activism combating campus sexual assault have been students themselves, such as the young advocates behind Know Your IX, "a survivor- and youth-led organization that aims to empower students to end sexual and dating violence in their schools." (13) Many student survivors have organized on their campuses in protest against what they see as their schools' mishandling of their sexual assault complaints, some filing complaints with the Department of Education or taking legal action against their universities. (14)

      Legal and academic communities have also engaged in dialogue and debate on the issue. Law professors and students, social scientists and feminist scholars continue to engage in lively conversation about reform and the scope of schools' responsibility. Scholars, students, and policymakers have published research illuminating a variety of related concerns: the relevance of evolving definitions of rape and consent, (15) schools' capacity to provide due process for students accused of sexual misconduct and the necessity for procedural changes in disciplinary hearings, (16) issues of reporting and the role of law enforcement, (17) the wisdom of particular campus codes of conduct and response protocols, (18) and the phenomenon of the activism itself. (19) Yet amidst this growing wealth of literature, there has been an absence of scholarship focusing on survivors' experiences with pregnancy or their ability to access reproductive health care.

      Here, an important clarification is in order: survivors within the scope of this Note are those who might have become pregnant from the unwanted sexual contact they experienced--that is, most often female students who experienced nonconsensual vaginal penetration. (20) The AAU survey found that 10.8% of female undergraduate students experienced penetration by force or incapacitation since enrolling in college, (21) while 11.4% of undergraduate females reported contact "involving penetration or oral sex without [their] active, ongoing voluntary agreement," or affirmative consent. (22) In other words, more than one in ten undergraduate women who participated in the survey had been penetrated without their permission. (23) For those women who experienced unprotected vaginal penetration, pregnancy was one considerable risk.

      The AAU survey asked respondents whether they became pregnant as a result of the experiences they reported. (24) The results of this question were not included in the national report, but participating institutions had the option of reporting their own results. Columbia University (the only school that elected to disclose the results of the question concerning pregnancy) reported that, among female students who confirmed experiencing penetration by force, about 2% became pregnant. (25) Columbia's figure necessarily excludes students who did not become pregnant because they or their assailants were using contraception at the time of the assault, as well as students who were able to obtain emergency contraception after the assault. Many of the other institutions that have disclosed their own survey results have omitted responses to the question directed at pregnancy. (26) Consequently, it is difficult to compare the...