Appeals court declines to expand universities’ obligations under Title IX

Last week, the U.S. Court of Appeals for the First Circuit ruled that a Providence College student did not have a Title IX claim against Brown University, even though she was allegedly raped by several Brown students on Brown’s campus. While the facts alleged by plaintiff Jane Doe are harrowing, she sought relief under a novel legal theory that would have dramatically expanded universities’ already-significant obligations under Title IX of the Education Amendments of 1972.

Title IX provides that “[n]o 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.”

For the most part, alleged Title IX violations are matters to be resolved administratively between the university and the Department of Education’s Office for Civil Rights, which enforces Title IX at recipient institutions. The U.S. Supreme Court has held, however, that in some circumstances, an individual who has suffered student-on-student harassment covered by Title IX may be able to sue a university for damages. That’s what Jane Doe did.

If you follow FIRE’s work, you’ve probably seen us write about the U.S. Supreme Court’s decision in Davis v. Monroe County Board of Education (1999). In defining peer-on-peer discriminatory harassment, Davis lays out the conditions under which an individual can sue a university for a Title IX violation. In addition to requiring that harassment be severe, pervasive, and objectively offensive — a standard which properly accounts for protected student expression — Davis also requires that harassment, to give rise to a private cause of action, must “effectively bar[ ] the victim’s access to an educational opportunity or benefit.”

The question facing the First Circuit in this case, Doe v. Brown, stemmed from that latter prong of the Davis standard: Does someone who was not seeking access to a university’s educational opportunities or benefits — that is, a non-student — still have the right to recover damages under Title IX if he or she was sexually assaulted at that university?

Jane Doe, a Providence College student, alleged that she was out socializing with friends at an off-campus bar when she was drugged, taken against her will to the Brown University campus, and raped by three members of Brown’s football team. She filed a complaint with the Providence Police Department, but a grand jury ultimately declined to indict, finding the evidence insufficient to establish probable cause that an assault had occurred. Brown informed Doe that she could file a complaint against the students under Brown’s student conduct code, but did not offer her recourse through the university’s Title IX process. Doe filed a complaint with the Department of Education’s Office for Civil Rights.

Several years later, after learning that Brown had not ultimately disciplined her alleged rapists, Doe also filed a lawsuit against Brown. She alleged that she had withdrawn from Providence College for fear of seeing her assailants in the Providence area — a fear that, she alleged, resulted from Brown’s inaction. This, she argued, had the effect of denying her access to educational opportunities and benefits in violation of Title IX.

In September 2017, a federal district judge dismissed Doe’s lawsuit, holding that as a non-student with no connection to Brown’s educational programs and opportunities, Doe did not have a Title IX claim against Brown.

Doe appealed that ruling to the U.S. Court of Appeals for the First Circuit, which last week upheld the dismissal of her case. The court held that an individual cannot bring a Title IX claim alleging “discrimination under” a university’s educational programs or activities unless they are “participating, or at least attempting to participate, in education programs or activities provided by the defendant institution.” The court noted that an individual need not necessarily be a student in order to have a Title IX claim, but that they must be “either taking
part or trying to take part of a funding recipient institution’s educational program or activity.” So if a non-student suffered a sexual assault while doing research in the university’s library, for example, or if a prospective student was the victim of harassment while on a campus tour, the court suggests that these events would likely give rise to a Title IX claim. Simply being on campus, however, does not.

Sexual assault is a serious crime, best handled by the criminal justice system. Under Title IX, there are certain circumstances under which colleges and universities must adjudicate these claims. But as we’ve seen in recent years, as the federal government has expanded colleges’ obligations under Title IX, there are myriad problems with campuses adjudicating serious felonies. On-campus adjudications of sexual assault are often deeply flawed in ways that harm both victims and the accused. Title IX is not a generally applicable ban on campus sexual assault; sexual assault is already a prosecutable crime under the law of every state, whether it occurs on-campus or off. Because the primary mission of a university is to be an educational institution, not a court, expanding the role of universities in adjudicating sexual misconduct claims would almost certainly have harmed both due process and the ability of universities to fulfill their educational missions.