High school student athletes are routinely recruited by colleges of all sizes, and a campus visit is often a part of that recruitment process. However, according to a ruling this week from the Eighth Circuit Court of Appeals, if you are sexually assaulted while you are on that recruitment trip, you have no recourse against the college that brought you there.
In K.T. v. Culver-Stockton College, K.T., who was 16 years old when she visited Culver-Stockton in Missouri as part of the recruitment process for the school’s soccer team, was served alcohol and then sexually assaulted by a member of the Lambda Chi Alpha fraternity. Even though she was a minor and an invited guest of the college, she says no one supervised her or any members of the college interacting with her during the visit.
K.T. sued the college under Title IX of the Education Amendments of 1972, which bans sex-based discrimination in schools. While Title IX is typically associated with requiring equal access to athletics or academics, under the Obama administration, the U.S. Department of Education’s Office of Civil Rights issued a letter explaining that an educational environment that is free from discrimination must also be free of sexual harassment and assault. This created a much more expansive set of protections for people on college campuses, as it required institutions to take steps to prevent sexual assault or face the consequences of a lawsuit.
Here, K.T.’s Title IX suit was based on a theory of student-on-student, or peer, harassment. The U.S. Supreme Court has previously held that a college can be liable under Title IX if it displays “deliberate indifference” to known acts of peer harassment that result in denying the victim access to educational opportunities at the school.
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However, in upholding the federal district court decision dismissing K.T.’s lawsuit, the Eighth Circuit Court of Appeals held that the student-on-student harassment doctrine only applies when a student sues their own school over sexual assault or harassment by a fellow student at the same school.
This line of reasoning is problematic. Title IX, by its very language, isn’t limited to student-on-student actions. Title IX is broadly written to bar any actions that, on the basis of sex, exclude people from participation in or benefits of an educational activity—which includes college athletics. The Obama-era Department of Education understood Title IX to have this broad reach as well, stating that the statute doesn’t just protect students, but rather “employees, applicants for admission and employment, and other persons from all forms of sex discrimination.”
To read the statute, as the court did here, to only protect students from the depredations of other students is poor public policy, flies in the face of existing guidance from the Department of Education, and does nothing to motivate colleges to create the safest environments possible. If invited guests and employees fall outside the scope of Title IX coverage, the statute is meaningless, as colleges are therefore not obliged to keep campuses free of discrimination for the large groups of people who regularly visit.
Additionally, K.T. was able to show an immediate denial of access to educational or programmatic opportunities at Culver-Stockton, which is key to a Title IX lawsuit. When she reported her sexual assault to the college, the school responded by canceling a scheduled conference with K.T. and her parents. (It is unclear as to whether the school rescinded her recruitment invitation entirely.) That’s an action that, arguably, affected K.T.’s future access to the benefits of the Culver-Stockton athletic program, though the court here failed to acknowledge that. The court also glossed over the fact that although K.T. immediately reported the assault to the college, it took no other actions whatsoever. That response does not speak well of its concern about campus sexual assault. The Eighth Circuit acknowledged this in its opinion, but only in passing to note it did not matter because K.T. wasn’t a student.
The Eighth Circuit was also skeptical of K.T.’s claim that Culver-Stockton had been deliberately indifferent to the possibility of sexual harassment on its campus. K.T. alleged that the fact that the college didn’t even supervise her—a 16-year-old—during her visit constituted deliberate indifference. The Eighth Circuit based its decision on finding that K.T. didn’t properly allege that someone at the Culver-Stockton had knowledge of any similar previous incidents of sexual harassment.
That isn’t really the right—or at least the only—metric, however. Campus sexual assault occurs at epidemic levels and colleges are notoriously bad at responding to it, particularly where student athletes are involved. Alcohol abuse is also rampant on college campuses, with drinking fueling an estimated 100,000 sexual assaults. In light of these known risks, allowing a 16-year-old girl to attend social events at the college unsupervised is foolish and dangerous and shows a callous indifference to her safety and, presumably, the safety of other student athletes the college is trying to recruit.
This decision comes at a calamitous time when Title IX protections are also under siege in the executive branch. K.T. could appeal the decision to the Supreme Court, but it isn’t clear at this point if she will. The Trump administration almost immediately made clear it will consider rollbacks of Title IX protections with regard to sexual assault and sexual harassment. Indeed, Education Secretary Betsy DeVos couldn’t even provide a straight answer when asked whether she’d uphold the Obama-era guidance saying that colleges must address campus sexual assault under Title IX. Even more alarming, Candice Jackson, the Department of Education’s top civil rights official, stated that 90 percent of campus rape accusations “fall into the category of ‘we were both drunk.’”
If neither the administration nor the courts choose to protect victims of on-campus sexual assault thanks to cramped readings of the statute like the Eighth Circuit’s, the future of Title IX in this setting looks very grim indeed.