Using Title IX and the model of public housing to prevent housing discrimination against survivors of sexual assaults on college campuses.

• Author: Cleary, Shannon

INTRODUCTION--A BIG BREAK THAT NO ONE WAS WATCHING

At the time of its passage, the vast scope of Title IX of the Education Amendments of 1972 was virtually unknown. (1) Bernice Sandler, a women's rights activist who helped draft Title IX, noted that Oregon congresswoman Edith Green, one of the bill's sponsors, shunned the idea of lobbying for Title IX. (2) Lobbying, she explained, would lead to questions and to people finding out what Title IX could actually do; instead, when Title IX passed, the law became, in Sandler's words, "a big break that no one was watching." (3)

Initially, Title IX was used to require that universities provide athletic opportunities for women and men that are proportionate to their rates of enrollment. (4) Now, over forty years later, Title IX is being utilized in a new way that shows just how big a break its passage really was: Title IX is now a way to sue colleges for not protecting their students from sexual assault and the trauma survivors face during subsequent disciplinary proceedings. Title IX provides that, "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) By late July 2015, the United States Department of Education Office of Civil Rights (OCR) had announced that 124 colleges were under federal investigation for violating Title IX through their handling of sexual assault cases, including such elite institutions as Harvard College, Columbia University, Dartmouth College, and Brown University. (6)

While much of the focus of these investigations has been the reporting mechanisms in place for students and the disciplinary procedures that colleges use to determine whether an alleged perpetrator should be removed from campus, another important reality of college sexual assaults is that survivors and their assailants often both live within the campus community. For survivors of assault, living in close proximity to their assailants and knowing that their assailants could, at any time, swipe their access card and enter the dormitories where survivors live may be debilitating, causing feelings of intense fear, anger, guilt, shame, or panic. (7)

I will therefore argue in this Note that Title IX compliance must include procedures for guaranteed safe housing after an assault. Because so few students do file complaints with their universities, I will argue that these procedures should be available regardless of police involvement or whether a student files a formal complaint. In Part I, I will explain how sexual assaults fit within the Title IX framework of discrimination. In Part II, I will provide a brief history of how Title IX has been used in response to campus sexual assaults in the lead up to the current wave of complaints. I will also give an overview of the OCR guidelines regarding how colleges and universities should handle reports of sexual assaults within their campus communities and what the role of housing has been in complaints thus far. In Part III, I will analyze a campus survey conducted at the Massachusetts Institute of Technology (MIT) to show how current reporting mechanisms are underutilized for a variety of reasons, including the inability of survivors to label their experiences. In Part IV, I will examine how public housing attempts to ensure the safety of residents who are survivors of domestic violence. Lastly, in Part V, I will show how public housing policies can be adapted to fit within a university system, guiding how and when universities can move students accused of assault and ways to move complainants that are not stigmatizing or isolating. Such policies could limit discrimination against survivors who seek safer housing that does not impair their access to education and will give universities more guidance on how to comply with Title IX.

1. Sexual Assault on College Campuses--Gendered Crime

   Underlying any claim that colleges' handling of sexual assault can be a violation of Title IX is the assertion that sexual assaults and the subsequent experience that survivors have are based in part on sex. Though it may seem obvious that sexual assaults are by nature sex-based crimes, it is worth explaining that sexual assault disproportionately affects women and is disproportionately perpetrated by men: In its 2014 report based on statistics from 2011, the Centers for Disease Control and Prevention (CDC) estimated that 19.3% of women in the United States have been raped during their lifetime, compared to 1.7% of men. (8) Among female survivors, 38.3% experienced their first rape between the ages of eighteen and twenty-four, the ages that often align with university attendance. (9) For both male and female rape survivors, the overwhelming majority of perpetrators were male (79.3% of male rape survivors and 99.0% of female rape survivors). (10)

   Sexual assaults are a part of the broader category of offenses called sexual harassment and gender-based harassment. (11) If sexual or gender-based harassment creates a hostile environment, it is a form of sex discrimination prohibited by Title IX. (12) Sexual harassment and gender-based harassment of a student create a hostile environment if the conduct is sufficiently serious that it interferes with or limits a student's ability to participate in or benefit from the university's programming. (13)

   For the purposes of this Note, I will generally use a heteronormative, male- perpetrator and female-victim narrative for two reasons: First, this narrative of assault is statistically the most prevalent, (14) and second, Title IX has most notably been used to protect the rights of women on college campuses. (15) This is not to say, however, that the arguments made could not be applied to men who are survivors of sexual assaults and seek safe housing arrangements after reporting the assault.

   Further, the application of Title IX to victims of crimes based on sexual identity and gender expression is not clear. The OCR has noted that "Title IX does not explicitly cover discrimination based on sexual orientation but it has not yet clarified whether Title IX covers discrimination based on actual or perceived gender identity." (16) Therefore, although throughout this Note I will speak in generally heteronormative, cis-gendered terms, it is my hope that, as the OCR continues to clarify how Title IX can apply to members of the LGBT community, the arguments made will be adaptable to apply to survivors of assaults based on sexual orientation or gender identity. (17)

2. Initial Applications of Title IX to Sexual Assault Cases

   In the years following the passage of Title IX, there were a number of challenges to the law's reach at universities, often because of its effects on college athletics. (18) Title IX required, for the first time, that universities provide athletic opportunities for women and men that are proportionate to their rates of enrollment, which has often resulted in an equal number of athletic teams for men and women. (19) Critics of Title IX sought to limit its applicability to only the spheres of universities that received federal funding, instead of to the university as a whole. The Supreme Court ruled in favor of these critics in Grove City v. Bell, drastically limiting the scope of Title IX by requiring compliance only from specific programs within universities that received federal funding, such as the financial aid offices that may offer scholarships. (20) Universities were again required to comply broadly with Title IX, however, with the passage of the Civil Rights Restoration Act of 1987, which required all programs at an institution to comply with Title IX if any program received federal funding. (21)

   1. First Cases Using Title IX in Response to Sexual Assault

      Just as the text of Title IX does not explicitly mention college athletics, it also does not explicitly indicate how the law may apply to colleges' sexual assault policies and procedures, or lack thereof. However, Title IX's application to these cases is growing in both momentum and scale. Prior to the limits on Title IX imposed by Grove City, five women who were former students at Yale University filed a lawsuit against the university, arguing that Yale violated Title IX by refusing to take any action based on their complaints of sexual harassment by faculty and administrators. (22) These novel arguments were constructed by Catharine MacKinnon, a 1977 graduate of Yale Law School. (23) MacKinnon shared with the counsel representing the Yale students an academic paper, in which she argued that sexual harassment constitutes sexual discrimination. Thus, the Yale students' case became the first forum in which the argument was tested. (24)

      The court eventually ruled that the plaintiffs did not have standing to sue Yale because they had already graduated, so no decision was reached based on the merits of the arguments. Faced with these proceedings, however, Yale established a grievance board to hear complaints, so the legal loss still had a practical benefit. (25)

      Though the full breadth of Title IX was restored in 1987, MacKinnon's arguments did not resurface until over a decade later, when Kathryn Kelly, another young woman from Yale University, brought a claim under Title IX, alleging that Yale's response to her report of being sexually assaulted by a fellow student was inadequate. (26) In this case, the issue of housing took a more prominent role. As part of her complaint, Kelly noted that she had "repeatedly requested alternative housing during the pendency of the grievance procedures" because she and her attacker lived in the same dormitory. (27) Several weeks after Kelly filed her complaint, a professor assisted her in finally receiving an alternate room on campus. (28)

      Kelly did not dispute that Yale followed its internal grievance procedures, which resulted in...