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

By Brenner, Hannah | Iowa Law Review, November 2018 | Go to article overview

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


Brenner, Hannah, Iowa Law Review


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 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 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 nonstudents 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 standing to sue a school for its alleged deliberate indifference under Title IX. At the core of this question is how to determine if someone belongs-are they an insider or outsider-for purposes of securing the protection of this federal law.

At a recent faculty talk, a respected colleague shared a story that illustrates the impact of the status differential at issue in these cases. …

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