{"id":632,"date":"2020-09-19T00:26:18","date_gmt":"2020-09-19T00:26:18","guid":{"rendered":"http:\/\/blogs.luc.edu\/edlawinstitute\/?p=632"},"modified":"2020-09-19T00:26:18","modified_gmt":"2020-09-19T00:26:18","slug":"international-incidents-the-new-title-ix-regulations-and-study-abroad","status":"publish","type":"post","link":"https:\/\/blogs.luc.edu\/edlawinstitute\/international-incidents-the-new-title-ix-regulations-and-study-abroad\/","title":{"rendered":"International Incidents: The New Title IX Regulations and Study Abroad, by Lauren Schneider"},"content":{"rendered":"

On May 6, the Department of Education released\u00a0<\/span>the<\/span>\u00a0<\/span>much-anticipated<\/span>\u00a0<\/span>Title IX Regulations for Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance<\/span><\/a>.\u00a0<\/span>The new\u00a0<\/span>r<\/span>egulations spell out the scope of schools\u2019 obligation to respond to allegations of sexual\u00a0<\/span>violence<\/span>\u00a0that occurs within\u00a0<\/span>their<\/span>\u00a0programs or activities. They also\u00a0<\/span>appear to\u00a0<\/span>settle a controversial question that federal courts have\u00a0<\/span>previously split on: does Title IX apply abroad?\u00a0<\/span><\/span><\/span><\/p>\n

According to the\u00a0<\/span><\/span>r<\/span><\/span>egulations, the answer is a clear and resounding\u00a0<\/strong><\/span><\/span>\u201cNo.\u201d<\/span><\/span><\/strong><\/span><\/p>\n

\"\"

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.<\/p><\/div>\n

The\u00a0<\/span>r<\/span>egulations emphasize the law\u2019s language that says,<\/span>\u00a0\u201cNo person\u00a0<\/span>in the United States<\/span><\/i><\/b>\u00a0shall,\u00a0on the basis of\u00a0sex, . . .\u00a0 be subjected to discrimination under any education program or activity. . .\u201d<\/span>\u00a0<\/span>In other words,\u00a0<\/span>Title IX\u2019s protections stop at the border.\u00a0<\/span>But\u00a0<\/span>every year<\/span>,\u00a0<\/span>thousands of\u00a0<\/span>college and university\u00a0<\/span>students study abroad<\/span><\/a>. We know that\u00a0<\/span>s<\/span>tudents abroad are vulnerable to sexual assault<\/span><\/a>. So how should schools prevent and respond to<\/span>\u00a0sexual\u00a0<\/span>harassment and assault<\/span>\u00a0that occurs on their programs abroad, if not under Title IX?<\/span>\u00a0<\/span><\/p>\n

Before the\u00a0<\/span><\/b>New\u00a0<\/span><\/b>Regulations<\/span><\/b>: Courts Split on Title IX Abroad<\/span><\/b>\u00a0<\/span><\/p>\n

Very few\u00a0<\/span>cases\u00a0<\/span>previously<\/span>\u00a0addressed whether Title IX applies abroad. The federal district courts that\u00a0<\/span>ha<\/span>ve<\/span>\u00a0addressed this issue reached different conclusions.\u00a0<\/span>In one early case,\u00a0<\/span>King v. Bd. of Control of Eastern Michigan University<\/span><\/i><\/a>, six students participating in the university\u2019s study abroad program in South Africa alleged they experienced sexual harassment from two other\u00a0<\/span>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\u00a0<\/span>did<\/span><\/i>\u00a0apply to schools\u2019 programs and activities abroad. The court said, \u201cstudy 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.\u201d In the court\u2019s view, the law<\/span>\u2019<\/span>s primary objective to protect students outweighed the presumption against applying U.S. laws abroad.\u00a0<\/span>\u00a0<\/span><\/p>\n

However, in a<\/span>\u00a0later\u00a0<\/span>case, the U.S. District Court for the Eastern District of\u00a0<\/span>New York<\/span>\u00a0found the opposite.\u00a0<\/span>In\u00a0<\/span>Phillips v. St. George\u2019s University<\/span><\/i><\/a>, a graduate student attending St. George\u2019s University\u2019s School of Veterinary Medicine in Grenada alleged that a mailroom employee sexually harassed and assaulted her. When the student told the school\u2019s 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\u2019s 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\u2019s lawsuit, finding that Congress did not intend Title IX to apply outside the U.S. The court cited the law\u2019s plain language and declared there was no evidence of legislative intent for the statute to apply abroad. <\/span><\/p>\n

Ultimately, the <\/span>new Title IX r<\/span>egulations agree<\/span>\u00a0with the\u00a0<\/span>Phillips<\/span><\/i>\u00a0court<\/span>.<\/span>\u00a0<\/span>I<\/span>f a case reached\u00a0<\/span>the Supreme Court that challenged<\/span>\u00a0<\/span>the regulations\u2019 interpretation of Title IX and its applicability outside the U.S.<\/span>, the Court could side with <\/span>King <\/span><\/i>and overturn<\/span>\u00a0the regulations.<\/span>\u00a0Unless and until this happens, the\u00a0<\/span>r<\/span>egulations control.<\/span>\u00a0<\/span><\/p>\n

If Title IX Does Not Apply, Do Schools Still Have a Duty to Prevent and Respond to Sexual Violence Abroad?<\/span><\/b>\u00a0<\/span><\/p>\n

The regulations agreed with the\u00a0<\/span>Phillips<\/span><\/i>\u00a0court\u2019s reasoning and declared Title IX doesn\u2019t 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\u00a0<\/span>duty<\/span><\/b>\u00a0to their students abroad when they are in the school\u2019s care. In a recent case,\u00a0<\/span>Jane Doe v. Rhode Island School of Design<\/span><\/i><\/a>, a student sued her school for negligence and premises liability for housing during a program in Ireland\u00a0<\/span>after<\/span>\u00a0another 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\u2014the school controlled the housing\u00a0<\/span>in<\/span>\u00a0the 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.<\/span>\u00a0<\/span><\/p>\n

How Should Schools\u00a0<\/span><\/b>Prevent and\u00a0<\/span><\/b>Respond to Sexual Violence Abroad?<\/span><\/b>\u00a0<\/span><\/p>\n

Regardless of the legal liability, schools also owe moral and ethical responsibilities to their students.\u00a0<\/span>S<\/span>chools\u00a0<\/span>can and should<\/span><\/i>\u00a0work to prevent sexual violence abroad and respond\u00a0<\/span>supportively if it occurs<\/span>, even though Title IX doesn\u2019t apply<\/span>. For starters,\u00a0<\/span>study abroad offices need to\u00a0<\/span>talk about<\/span><\/b>\u00a0the 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\u00a0<\/span>and study abroad organizations have<\/span>\u00a0a duty\u00a0<\/span>to mitigate risks,\u00a0<\/span>to share information<\/span>,<\/span>\u00a0and\u00a0<\/span>to\u00a0<\/span>empower their students\u00a0<\/span>to make informed choices about their study abroad participation<\/span>.<\/span>\u00a0<\/span><\/p>\n

Second,\u00a0<\/span>schools can still provide\u00a0<\/span>supportive measures<\/span><\/b>\u00a0for students who report experiencing sexual\u00a0<\/span>violence<\/span>\u00a0abroad. In the new\u00a0<\/span>r<\/span>egulations, 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<\/span>, extension of deadlines, modification of schedules, changes in housing locations, increased security, etc.\u00a0<\/span>The new regulations allow s<\/span>upportive measures to<\/span>\u00a0extend to<\/span>\u00a0students abroad.\u00a0<\/span>S<\/span>o<\/span>,<\/span>\u00a0s<\/span>chools\u00a0<\/span>can and\u00a0<\/span>should\u00a0<\/span>offer them<\/span>\u00a0to survivors<\/span>\u00a0abroad<\/span>, though these measures might need to adapt to the local circumstances.<\/span>\u00a0<\/span><\/p>\n

Third<\/span>, the\u00a0<\/span>r<\/span>egulations also make clear that schools can enact\u00a0<\/span>policies<\/span><\/b>\u00a0in their Student and Employee Codes of Conduct to respond to allegations of sexual\u00a0<\/span>violence<\/span>\u00a0that fall outside the scope of Title IX<\/span>. Schools may choose to\u00a0<\/span>enact<\/span>\u00a0grievance procedures for allegations of sexual misconduct abroad that reproduce th<\/span>ose<\/span>\u00a0mandated by Title IX for incidents within the U.S. Or, schools\u00a0<\/span>could<\/span>\u00a0<\/span>create<\/span>\u00a0a separate\u00a0<\/span>process<\/span>\u00a0for incidents that occur abroad. Either way, schools should carefully consider how they will respond to allegations of sexual violence abroad. They should\u00a0<\/span>d<\/span>raft policies that consider the kinds of risks\u00a0<\/span>to which\u00a0<\/span>students may be exposed and imagine how the policies would play out in various scenarios abroad.<\/span>\u00a0<\/span><\/p>\n

S<\/span>tudents can be\u00a0<\/span>proactive<\/span><\/b>\u00a0in\u00a0<\/span>holding schools accountable<\/span>\u00a0too<\/span>.<\/span>\u00a0<\/span>Before committing to a study abroad program,\u00a0<\/span>students<\/span>\u00a0should\u00a0<\/span>ask their schools\u00a0<\/span>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 viol<\/span>ence.<\/span>\u00a0<\/span>If a school or study abroad program doesn\u2019t have ready answers to these questions,\u00a0<\/span>students should\u00a0<\/span>keep asking until\u00a0<\/span>they<\/span>\u00a0find a program that does.<\/span>\u00a0<\/span>\u00a0<\/span><\/p>\n

As international\u00a0<\/span>educational programs<\/span>\u00a0grow and expand, and more students choose to pursue them, schools have a duty to take as much care in preventing and responding to sexual\u00a0<\/span>violence<\/span>\u00a0abroad as they do on their domestic campuses.<\/span>\u00a0<\/span>Title IX\u2019s protections may stop at the border, but a school\u2019s duty toward its students does not.<\/span>\u00a0<\/span><\/p>\n

Lauren Schneider is a student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

On May 6, the Department of Education released\u00a0the\u00a0much-anticipated\u00a0Title IX Regulations for Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.\u00a0The new\u00a0regulations spell out the scope of schools\u2019 obligation to respond to allegations of sexual\u00a0violence\u00a0that … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[85,86,95,102],"class_list":["post-632","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-sexual-assault","tag-sexual-harassment","tag-study-abroad","tag-title-ix"],"_links":{"self":[{"href":"https:\/\/blogs.luc.edu\/edlawinstitute\/wp-json\/wp\/v2\/posts\/632","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.luc.edu\/edlawinstitute\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.luc.edu\/edlawinstitute\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/edlawinstitute\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/edlawinstitute\/wp-json\/wp\/v2\/comments?post=632"}],"version-history":[{"count":0,"href":"https:\/\/blogs.luc.edu\/edlawinstitute\/wp-json\/wp\/v2\/posts\/632\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.luc.edu\/edlawinstitute\/wp-json\/wp\/v2\/media?parent=632"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.luc.edu\/edlawinstitute\/wp-json\/wp\/v2\/categories?post=632"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.luc.edu\/edlawinstitute\/wp-json\/wp\/v2\/tags?post=632"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}