From Sports to Torts: Using Legislative Reform and Community Action to Improve Campus Responses to Sexual Assault under Title IX
Eliza van Lennep
In 1976, with “Title IX” written on their naked torsos, the women of the Yale rowing team marched in to the administration building to demand equality. They cited deep and vast gender-based disparities in athletics, and an atmosphere of gender-based hostility towards women in athletics at the university. They presented a letter to the school, recited by future two-time Olympian Chris Ernst, as she and her 19 female teammates stood naked, in protest in front of their administrators. The letter read in part: “These are the bodies Yale is exploiting. We have come here today to make clear how unprotected we are, to show graphically what we are being exposed to….”
A similar fight is now being fought at high schools and on college campuses across the country—but not to seek equal athletics opportunities. Now, students seek a fair, timely, and adequate response to reports of sexual assault, sexual harassment, and gender-based retaliation following a formal allegation of sexual misconduct by a peer. Title IX, though powerful in its decisive and broad language, is not precise enough to meet the needs of student-victims. This is because of the highly personal, complex and often disputed facts, and safety-related concerns present in sexual assault cases, as well as the grave outcomes for both parties resulting from the adjudication of such a claim. This Note suggests that a legislative amendment is required to adequately address the “phantom epidemic” of sexual violence in schools and on college campuses. Until legislative action is taken, students must use Title IX to its fullest possible capacity by adopting a community-based activist approach in the spirit of the Yale women’s rowing team.
Legislative reforms to Title IX should include clear and detailed guidance on the form and procedure required of schools’ adjudicatory functions in sexual assault cases. This would require: (1) providing a standard timeline to establish what “timely” means; (2) a standard “process” that every Title IX sexual assault case should use to conduct a hearing; (4) establishing the rights of both parties in access to independent legal counsel, review of evidence, and character witnesses; and (5) establishing a standard of evidence and legal process that would allow parties to retain their rights under the Criminal Rules of Evidence, as well as their Constitutional Due Process rights in the event of an appeal.
Pending these legislative amendments, students must report all threatening incidents of sexual misconduct to administrators, preferably in writing (to create evidence of the report). Such reports provide a means to: (1) impose liability on the school if repeat sexual offenders remain on a campus; (2) notify the school that its sexual assault educational programming may be inadequate; and (3) warn the school that it may harbor an environment that is hostile on the basis of sex. Further, such reporting accomplishes two goals beyond any remedy sought as a direct result of reporting. First, reports put the school “on notice” of the existence or possibility of a threat. Second the reports are culled in the annual Clery Act reporting to help raise national awareness of the problem of sexual violence on campuses.
Importantly, Title IX reporting also triggers processes within a school that may entitle victims to protections and accommodations that can help that individual feel safe in school. Reporting also helps protect future potential victims by notifying the school of a risk and possibly imposing sanctions against the offender. Reporting offenses to a school, even without the occurrence of an adjudicatory process, both alerts the school to the existence of a problem, and stands to notify lawmakers and policymakers to the pervasiveness of sexual violence nationally. Notably, even instances which themselves are not a violation of Title IX (or even state law) may violate a code of conduct and help make clear to administrators that a student poses a real threat to others, requiring the school to take steps to prevent future harm to students by a predatory peer.
Part I of this Note will provide a history of Title IX and its enforcement, as well as landmark cases that have shaped the law in substantial ways. Part II will highlight challenges and shortcomings of the available legal framework and analyzes the current landscape on college campuses to show that no party is served by the loose and irregular adjudicatory standards used by schools in sexual assault complaint hearings. Part III addresses additional barriers, such as the standard for a temporary restraining order or preliminary injunction, and the intersection of criminal law and procedures with campus adjudications. Finally, Part IV will recommend to students that all instances of sexual misconduct be reported to administrators to alert them to the presence of a threat and to potentially impose liability, and will provide recommendations for legislative reform to improve Title IX efficacy and fairness.
 Steve Wulf, Title Waves, ESPN The Magazine (Jun. 14, 2012), http://www.espn.com/espnw/title-ix/article/7985418/espn-magazine-1976-protest-helped-define-title-ix-movement.
 Allie Bidwell, College Sexual Violence Complaints Up 1,000 Percent in 5 Years, US News (May. 5, 2015, 5:03 PM) http://www.usnews.com/news/blogs/data-mine/2015/05/05/college-title-ix-sexual-violence-complaints-increase-more-than-1-000-percent-in-5-years; U.S. Department of Education Releases List of Higher Education Institutions with Open Title IX Sexual Violence Investigations, U.S. Department of Education (May 1, 2014), http://www.ed.gov/news/press-releases/us-department-education-releases-list-higher-education-institutions-open-title-ix-sexual-violence-investigations
 Wendy J. Murphy, Using Title IX’s “Prompt and Equitable” Hearing Requirements to Force Schools to Provide Fair Judicial Proceeding to Redress Sexual Assault on Campus, 40 New Eng. L. Rev. 1007, 1016 (2006); Tyler Kingkade, There Are Far More Title IX Investigations Than Most People Know, Huffington Post (Jun. 6, 2016 4:49 PM), http://www.huffingtonpost.com/entry/title-ix-investigations-sexual-harassment_us_575f4b0ee4b053d433061b3d.
 American Association of University Professors Committee on Women in the Academic Profession (June 2016) The History, Uses, and Abuses of Title IX, 76, https://www.aaup.org/sites/default/files/TitleIXreport.pdf.
 Neil Gilbert, The Phantom Epidemic of Sexual Assault, The Public Interest 0.103, 54 (Spring 1991).
 Grayson Sang Walker, Note, The Evolution and Limits of Title IX Doctrine on Peer Sexual Assault, 45 Harv. C.R.-C.L. L. Rev. 95, 102 (2010).
 James R. Marsh, Title IX on Campus: Understanding Your Right to be Free from Sexual Assault, Marsh Law Firm PLLC (last visited Nov. 14, 2016), http://title9.us/.
 See Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007); Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282 (11th Cir. 2007) (demonstrating that reporting a pattern of sexual misconduct by a student can impose liability on the administration and a duty to act to prevent future assaults).
 Simpson, 500 F.3d at 1183 (holding that anti-sexual assault education was proven to be ineffective, even when responsible employees were aware that repeat sexual offenders remained on campus); Williams, 477 F.3d at 1295 (finding that responsible employees displayed a deliberate indifference to sexual assault).
 Simpson, 500 F.3d at 1182 (holding that administrators had been put “on notice” of an environment that may lead to sexual assault, imposing liability therafter).
 Know Your IX, Clery Act, http://knowyourix.org/clery-act/ (last visited Nov. 14, 2016).
 Know Your IX, Title IX: The Basics, http://knowyourix.org/title-ix/title-ix-the-basics/ (last visited Nov. 14, 2016).
 See Simpson and Williams, supra note 9 (noting that reports of sexual assault lead to Title IX liability for institutions); Know Your IX, Pros and Cons of Filing a Title IX Lawsuit, http://knowyourix.org/title-ix/pros-and-cons-of-filing-a-title-ix-lawsuit/ (last visited Nov. 14, 2016).
 Know Your IX, supra note 13.
 Id.; Walker, supra note 8, at 100-102; Christopher M. Parent, Personal Fouls: How Sexual Assault By Football Players Is Exposing Universities to Title IX Liability, 13 Fordham Intell. Prop. Media & Ent L.J. 617, 644-45 (2003).