On May 6, the Department of Education released the much-anticipated Title IX Regulations for Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance. The new regulations spell out the scope of schools’ obligation to respond to allegations of sexual violence that occurs within their programs or activities. They also appear to settle a controversial question that federal courts have previously split on: does Title IX apply abroad?
According to the regulations, the answer is a clear and resounding “No.”
Photo of Lauren Schneider in Fall 2008 during her study abroad program in Argentina. Shown with her Argentine host mother, Ester Brun, at the Perito Moreno glacier in Patagonia, Argentina.
The regulations emphasize the law’s language that says, “No person in the United States shall, on the basis of sex, . . . be subjected to discrimination under any education program or activity. . .” In other words, Title IX’s protections stop at the border. But every year, thousands of college and university students study abroad. We know that students abroad are vulnerable to sexual assault. So how should schools prevent and respond to sexual harassment and assault that occurs on their programs abroad, if not under Title IX?
Before the New Regulations: Courts Split on Title IX Abroad
Very few cases previously addressed whether Title IX applies abroad. The federal district courts that have addressed this issue reached different conclusions. In one early case, King v. Bd. of Control of Eastern Michigan University, six students participating in the university’s study abroad program in South Africa alleged they experienced sexual harassment from two other program students and one program assistant. The professor leading the program allegedly failed to take any action to stop the harassment when the students informed him of the incidents. The harassment became so severe that the students left their program one week early. They sued their university under Title IX. The U.S. District Court for the Eastern District of Michigan found that Title IX did apply to schools’ programs and activities abroad. The court said, “study abroad programs are operations of the University, which are explicitly covered by Title IX and which necessarily require students to leave U.S. territory in order to pursue their education.” In the court’s view, the law’s primary objective to protect students outweighed the presumption against applying U.S. laws abroad.
However, in a later case, the U.S. District Court for the Eastern District of New York found the opposite. In Phillips v. St. George’s University, a graduate student attending St. George’s University’s School of Veterinary Medicine in Grenada alleged that a mailroom employee sexually harassed and assaulted her. When the student told the school’s administrators about the incident, she claimed they did not take it seriously or tell the employee to stop. The student subsequently filed a lawsuit in U.S. court, alleging that the school’s apathetic response violated Title IX. Presumed jurisdiction was on the basis of SGU having an office in New York and the student using U.S. federal student loans to pay university tuition, though the court rejected these arguments. The court dismissed the student’s lawsuit, finding that Congress did not intend Title IX to apply outside the U.S. The court cited the law’s plain language and declared there was no evidence of legislative intent for the statute to apply abroad.
Ultimately, the new Title IX regulations agree with the Phillips court. If a case reached the Supreme Court that challenged the regulations’ interpretation of Title IX and its applicability outside the U.S., the Court could side with King and overturn the regulations. Unless and until this happens, the regulations control.
If Title IX Does Not Apply, Do Schools Still Have a Duty to Prevent and Respond to Sexual Violence Abroad?
The regulations agreed with the Phillips court’s reasoning and declared Title IX doesn’t apply abroad. But they also acknowledged the importance of international education programs and activities. Although Title IX may not apply abroad, schools still have a duty to their students abroad when they are in the school’s care. In a recent case, Jane Doe v. Rhode Island School of Design, a student sued her school for negligence and premises liability for housing during a program in Ireland after another student allegedly broke into her bedroom and raped her. The court found that the school had a duty to the student to provide her with safe housing abroad—the school controlled the housing in the program and required all students to live there. Thus, there may be other legal consequences outside of Title IX for schools that do not take proper care.
How Should Schools Prevent and Respond to Sexual Violence Abroad?
Regardless of the legal liability, schools also owe moral and ethical responsibilities to their students. Schools can and should work to prevent sexual violence abroad and respond supportively if it occurs, even though Title IX doesn’t apply. For starters, study abroad offices need to talk about the reality of sexual harassment and sexual assault abroad during their pre-departure meetings and on-site orientations. Education is the best preventative measure. Particularly if a location has specific known risks, schools and study abroad organizations have a duty to mitigate risks, to share information, and to empower their students to make informed choices about their study abroad participation.
Second, schools can still provide supportive measures for students who report experiencing sexual violence abroad. In the new regulations, supportive measures include non-punitive, non-disciplinary individualized services designed to help the student continue in his or her educational program. These can include counseling, extension of deadlines, modification of schedules, changes in housing locations, increased security, etc. The new regulations allow supportive measures to extend to students abroad. So, schools can and should offer them to survivors abroad, though these measures might need to adapt to the local circumstances.
Third, the regulations also make clear that schools can enact policies in their Student and Employee Codes of Conduct to respond to allegations of sexual violence that fall outside the scope of Title IX. Schools may choose to enact grievance procedures for allegations of sexual misconduct abroad that reproduce those mandated by Title IX for incidents within the U.S. Or, schools could create a separate process for incidents that occur abroad. Either way, schools should carefully consider how they will respond to allegations of sexual violence abroad. They should draft policies that consider the kinds of risks to which students may be exposed and imagine how the policies would play out in various scenarios abroad.
Students can be proactive in holding schools accountable too. Before committing to a study abroad program, students should ask their schools and study abroad offices about their safety plans, whether they track data on sexual violence abroad, and how they respond when students abroad report experiencing sexual violence. If a school or study abroad program doesn’t have ready answers to these questions, students should keep asking until they find a program that does.
As international educational programs grow and expand, and more students choose to pursue them, schools have a duty to take as much care in preventing and responding to sexual violence abroad as they do on their domestic campuses. Title IX’s protections may stop at the border, but a school’s duty toward its students does not.
Lauren Schneider is a student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.
