Document Type

Article

Publication Date

2020

Abstract

Sexual violence proliferates across communities, generally, and is especially prevalent in places like colleges and universities. As quasi-closed systems, colleges and universities are governed by their own internal norms, policies, and federal laws, like Title IX of the Education Amendments of 1972, which address how sex discrimination must be handled in institutions of higher education that are in receipt of federal funds. Title IX focuses on all facets of sex discrimination including reporting, investigation, adjudication, and prevention. When schools are accused of failing to adequately respond to reports of sexual misconduct on their campuses, Title IX has been interpreted by the Supreme Court to provide a private right of action by which victims can hold institutions accountable.

In the most typical cases, one enrolled student accuses another enrolled student of sexual assault. The university investigates, perhaps holds a hearing panel, issues a determination after applying the relevant evidentiary standard, and, where warranted, imposes appropriate sanctions. If a student victim is dissatisfied with the institutional response, they have the right to sue the school in federal court. Not all cases follow this typical example, however, raising the question of who, specifically, is entitled to avail themselves of the protections of Title IX. Sometimes victims are visitors or "outsiders" who have been raped or assaulted on campus by enrolled students. Their right to sue educational institutions has been called into question by courts that have denied them standing to sue the schools in federal court.

Historically, some judges have used the standing doctrine to deny access to the courts to certain minority groups. Victims of sexual violence represent a new addition to this cohort of excluded parties. A growing number of federal district courts have barred this class of victims from pursuing their grievances against colleges and universities based ostensibly on their "outsider" or "non-student" status, and federal appellate courts have, to date, been reluctant to take a stand either way. A new case that has emerged along these same trend lines is currently percolating in the Sixth Circuit, brought by a woman who was sexually assaulted in a dormitory at the University of Kentucky (UK). The plaintiff in this case was not actually enrolled at UK but resided in campus housing while attending a community college per a formal agreement between institutions. When she sued UK under Title IX for its deliberate indifference in responding to her reported rape, the trial court dismissed her case without reaching the merits. Instead, the court used a narrow interpretation of standing, finding that in order to sue a school under Title IX, an individual must be formally enrolled as a student or enrolled in a program or activity of that institution.

This distinction between insider and outsider rape victims is wholly problematic. Colleges and universities, while reliant on the presence of and tuition generated by their enrolled students, cannot entirely depend on insiders to succeed. They actively solicit, depend on, and profit from engagement with outsiders every single day as a means to fulfill their educational mission. This Article will use Doe v. University of Kentucky as a point of contemporary illustration (filled in by the decisions of other similar cases) to argue that individuals who are sexually assaulted on college campuses should be afforded equal access to Title IX protections and, specifically, should be granted standing to sue regardless of their enrollment status.

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