Title IX Doesn't Protect Students Against Off-Campus Sexual Harassment or Assaults

WASHINGTON - Sept. 26, 2015 - PRLog -- WASHINGTON, D.C. (September 26,  2015): Despite a determination to the contrary by the Department of Education, Title IX - the federal statute now being used to require colleges and universities to crack down on date rapes among students as well as to punish sexual harassment - doesn't apply beyond the boundaries of the campus, the Kansas Court of Appeals has just determined.

        This means that universities are not required to provide protection from rape or sexual harassment for students if the acts in question occur beyond its boundaries even if, as in the case just decided, the impact is campus wide, says public interest law professor John Banzhaf.  This case involved a student who “engaged in reprehensible, demeaning, and criminal behavior,” towards his ex-girl friend, but could not be punished in the absence of proof that any of his actions occurred at the school, the court ruled.

        The Department of Education had determined, in letters sent to all colleges and universities that "schools may have an obligation to respond to student-on-student sexual harassment that initially occurred off school grounds, outside a school's education program or activity. If a student files a complaint with the school, regardless of where the conduct occurred, the school must process the complaint in accordance with its established procedures."

        But in a case involving the University of Kansas, the court ruled that "it seems obvious that the only environment the University can control is on campus or at University sponsored or supervised events. After all, the University is not an agency of law enforcement but is rather an institution of learning."

        Interestingly, Kansas State University reached the same conclusion, contending in a friend-of-the-court brief that "Title IX does not require a school to sanction students for off-campus conduct."

        The court did not have to rule definitively on how far Title IX's mandates extended, nor on whether a school may go beyond its purview and punish conduct beyond its boundaries on its own initiative, since the student code at the University of Kansas by its terms applied only to acts on its own campus.

        It ruled "the Student Code, the rules by which the University can impose discipline upon its students, deals only with conduct on campus or at University sponsored or supervised events. We therefore hold that the University had no authority to expel Yeasin.”

        Despite arguments that his continued presence on campus "created an imminent threat of danger to [the female student] on campus and unreasonably obstructed and interfered with her learning environment,” the University was required to reinstate the male student and refund his tuition and fees.

        This case may provide a new argument and additional precedent for students found guilty of sexual harassment or sexual assault, argues attorney Banzhaf.  In four very recent cases, courts have shot down findings of date rape under Title IX because the procedures either were fundamentally unfair or even unconstitutional, says Banzhaf.

        If colleges are not required to investigate and adjudicate sexual assaults or sexual harassment which occur beyond their boundaries, or which involve complainants who attend different colleges or are not even students, it could substantially lighten this burden on them, and reduce their exposure to legal liability in law suits by both complainants and respondents, Banzhaf notes.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf