A Title IX Conundrum: Are Campus Visitors Protected from Sexual Assault?
46 Pages Posted: 8 Mar 2018 Last revised: 9 Jan 2019
Date Written: February 28, 2018
Sexual violence is a significant and longstanding problem on college campuses that has been made even more visible by recent media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The U.S. Supreme Court has interpreted the law to contain an implied private right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has knowledge. However, over the past several years, a handful of courts in the United States have rendered opinions that have defined, and effectively narrowed, the class of individuals who are entitled to protection under Title IX. These cases create two separate classes of individuals with different rights: students and non-students, or put another way, insiders and outsiders. This Article seeks to add to the ongoing and complex Title IX conversation by exposing a novel, yet very real conundrum: To whom does Title IX apply? Should universities extend greater safety protections to those who are officially a part of an institution like students, faculty or staff, as opposed to those who are not? Are non-students and other individuals who temporarily interact within the university context simply left out of the spectrum of Title IX protections? What sort of campus safety dynamic exists if certain classes of victims are denied access to Title IX? After extensive analysis, this Article ultimately concludes that facilitating safer campus communities likely demands an extension of Title IX rights to those individuals who participate in campus life, regardless of their official connection to the university.
Keywords: Title IX, sexual violence, standing, rape, closed systems, higher education, Department of Education, campus
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