A Title IX lawsuit is a cause of action against an educational institution, not against an individual or group of individuals. Sexual assault is considered to be discrimination on the basis of sex, and individuals who experience sexual assault may bring a Title IX claim against the educational institution if the institution is deliberately indifferent to the assault.
However, at least three different courts have narrowed the protections available under Title IX, narrowly interpreting the word “person” to mean a student enrolled at the educational institution where the sexual assault actually occurred. These decisions may provide persuasive precedent to deny a victim of sexual assault a private right of action under Title IX.
Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex. The text of Title IX is disarmingly simple:
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.
In K.T. v. Culver-Stockton College (CSC), the Eighth Circuit Court of Appeals affirmed the ruling of the Missouri district court that a sixteen-year-old high school student could not sue the college where she was sexually assaulted after becoming intoxicated at a fraternity party. K.T. was at the college at the invitation of CSC, as a potential recruit for the college’s women’s soccer team. Stating that K.T. was a non-student of the college, the appellate court dismissed her Title IX claim.
In Doe v. Brown University, both she and her alleged rapists were college students, but not at the same school. Jane Doe was a freshman student at Providence College when she was drugged at a bar in Providence Rhode Island, taken by taxi to a Brown University dormitory, and sexually assaulted by three Brown University football players.
Upon Doe’s request, Brown University agreed to investigate the incident under the school’s Code of Student Conduct, but refused to conduct a Title IX investigation. Brown later abandoned their investigation, and took no disciplinary action against the perpetrators. As a result, Doe withdrew from Providence College alleging that, since her perpetrators and their friends had free range of Providence, she feared for her safety in Providence and at Providence College.
The court cited to the language of Title IX’s author, Senator Birch Birch E. Bayh, stating that Title IX prevents discrimination in admission to an educational institution, and concluded that Congress meant to protect only students admitted to, and actually attending, the school where the Title IX violation occurred. The court also cited to the K.T. decision. The First Circuit Court of Appeals affirmed the district court decision. Doe was left without a private right of action under Title IX.
Most recently, in Doe v. University of Kentucky, both Doe and her harasser were present at the same college at the time of the assault. Plaintiff Doe was raped in her dormitory room at the University of Kentucky by a student of the University of Kentucky (UK).
Doe was a freshman enrolled in Bluegrass Community and Technical College (BCTC), located on the UK campus.
Doe resided in the UK dormitory, was obligated to pay various fees and costs such as the dining plan, and was also obligated to pay mandatory student fees such as the student activities fees, health plan costs, technology fees, and use of student recreation facilities fees. The university also issued Doe a university ID number and card, as well as a university email account. BCTC classes were also conducted in UK buildings on the UK campus, leased to BCTC.
After the UK student raped Doe, UK scheduled a student disciplinary hearing for the alleged perpetrator, and found that Doe’s alleged rapist, Student B, was responsible for sexual misconduct and that the penalty was expulsion. After Student B’s appeal, various additional disciplinary hearings were held until a fourth hearing panel exonerated him on procedural grounds. Doe filed a Title IX lawsuit, dropped out of her classes at BCTC, and left UK.
The court phrased the threshold question as whether or not the plaintiff was protected by Title IX, and concluded she was not. The court cited to the K.T. decision, and looked carefully at Doe’s claim that she was a “direct beneficiary of educational programs and activities of UK through BCTC’s partnership with the university.”
However, the court noted that all the UK activities and associations Doe shared in, including her use of UK’s library and computers, were activities and associations open to any member of the public. Therefore, as a non-student of UK, Doe lacked standing to bring a Title IX claim against UK.
So What Does This Mean for Your College or University?
In each of the court decisions described, female students suffered student-on-student sexual assaults on college campuses. The courts denied personhood under Title IX to the female students because they were “non-students” at the colleges where they were assaulted. That each of the student plaintiffs was disadvantaged educationally, and perhaps also psychologically and emotionally, was never considered.
Legal counsel for any student victims of sexual violence and their potential clients must be aware of this potentially narrow definition of person under Title IX, and seek other areas of redress.
If you have any questions, please consult with your legal counsel or one of the higher education attorneys at KingSpry.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.