Location-Based Protection

The Department of Education's new regulation says colleges aren't responsible for sexual assault or harassment that takes place in study abroad programs or in private, off-campus settings.

May 12, 2020
 

Kate McGunagle, a 2014 Princeton University graduate, didn’t know where to turn for support after she was drugged and raped while studying abroad at Worcester College at the University of Oxford in England.

McGunagle, who was a junior at Princeton at the time of her assault, received little guidance from the university before her travel about the possibility of sexual assault abroad -- a reality she said is still largely minimized -- and the resources provided by Princeton should it happen to her, she wrote in an essay in the university’s alumni magazine published April 22. Limited research on the risk of sexual violence during study abroad programs has found that female college students are more likely to be raped outside the United States than on their domestic campuses, usually by nonstudent, local residents of the area where they are studying.

“My geographic distance from my alma mater, inability to confide in the majority of my Oxonian peers about my assault, and blurred recollections of rape cohered into one belief: Perhaps I had not really been raped after all,” McGunagle wrote in the Princeton Alumni Weekly. “This confused conviction -- a dangerous one many survivors nevertheless hold -- lingered throughout my final year at Princeton, keeping me away from resources I had no idea were mine to use. I did not know, for example, that study-abroad incidents like mine are covered under Title IX policy.”

The legal responsibility for colleges and universities to protect students from such sexual assaults while studying abroad may now be diminished under new regulations issued by the Department of Education last week. The new rules clearly state institutions are not obligated to investigate reports of sexual misconduct in their study abroad programs or provide support to those who report misconduct outside the U.S. Universities and colleges had been encouraged to investigate sexual assaults and support victims abroad under Title IX, the law prohibiting sex discrimination at federally funded institutions.

Advocates for sexual assault survivors consider the rule change "absurd" and say it "undermines the purpose" of Title IX. They worry the new rule reduces the geographic scope of the law, by limiting colleges’ responsibility to incidents that occur only within domestic, campus-affiliated activities, and letting the institutions off the hook whether or not sexual misconduct takes place within programs run or sponsored by the colleges.

"Just because their assault occurs on foreign soil, doesn’t mean they are excused from the effects of violence," said Tracey Vitchers, executive director of It’s On Us, a sexual assault prevention initiative created by the Obama administration that is now a nonprofit organization. ​"It’s saying that if you’re raped in France by a classmate, it doesn’t count."

The law itself states, "No person in the United States shall, on the basis of sex" be excluded from or denied educational opportunities. The law “only applies to persons located in the United States, even when that person is participating in a recipient’s education program or activity outside the United States,” the regulation says, which is an interpretation agreed upon by some federal district courts. As for incidents directly off-campus, colleges will only be required to investigate misconduct if it occurred within an activity or location they control, such as a house owned by a recognized fraternity, sorority or other student group.

While colleges were not legally required under guidance from the Obama administration in 2011 and 2014 to extend Title IX policies to students studying abroad, many institutions chose to do so, according to the Forum on Education Abroad, a nonprofit organization that issues best-practice standards for American study abroad programs. The guidance took a more “holistic” approach to sexual misconduct than the Trump administration’s new rule and considered colleges’ responsibility over all environments where students interact, Vitchers said.

Josh Richards, an attorney and vice chair of the higher education practice for the law firm Saul Ewing Arnstein & Lehr LLP, said the Obama-era guidance encouraged colleges to consider whether sexual harassment -- even if it occurred outside an institution’s defined location or purview -- had an impact on students.

“If you had two students, both in the same major, who took classes together, the fact that the harassment took place between those two students outside the program wouldn’t be the whole analysis,” Richards said. “That harassment could and often would have an impact on their interactions within the program.”

Jordan Draper, assistant vice president of student affairs and dean of students at the College of New Jersey, said it’s “natural” to apply Title IX to incidents involving students off-campus, where a majority of the college’s reported sexual assaults occur.

“It feels very disingenuous to treat a sexual assault on campus differently than off-campus,” said Draper, who previously worked in the conduct offices at the University of Maryland and Rutgers University. “How do you explain that to a student -- your friend was off-campus so they get this process, while you were on campus so you get this process.”

Richards noted that the new rule sets a “floor” for how institutions respond to sexual misconduct and not a “ceiling,” meaning officials are allowed to enforce their own standards through a conduct procedure separate from Title IX for incidents that occur outside the new standard.

This would mean, for example, that Princeton could continue to “support any member of the campus community who has experienced sexual misconduct,” no matter where it occurred, a standard that the university follows, Michele Minter, vice provost for institutional equity and diversity, said in a response to McGunagle's essay. Princeton will review the new rule and implement its requirements “in a way that best preserves our current system’s fairness, thoroughness, and sensitivity to the needs of all parties and witnesses,” Minter said in a statement.

But Vitchers believes colleges will now have the option to reduce their enforcement and resources provided to students under Title IX, if they so choose. Officials will address sexual assault off-campus or abroad with varying degrees of seriousness, she said, and this will put the burden on the parents of students to weigh their child’s safety against other factors, such as cost of attendance and educational offerings, when choosing a college​.

“If you’re 17 and 18 years old and you’re looking at colleges to go to, I don’t know how many college students or their parents think, ‘I’m sending my child to School A or School B because of their misconduct policies and procedures,’” Vitchers said. “These rules would say, because you chose to go to School A over School B because of financial restrictions, you have less rights.”

Draper said the College of New Jersey intends to continue its current processes for handling complaints of sexual assault outside the jurisdiction outlined in the new rule, including providing training and support for students who report incidents while participating in its 17 semester abroad programs. She noted that many of the foreign study centers that partner with the college to host American students do not have staff members trained in student affairs, such as sexual assault prevention and response.

Draper recalled when a student studying abroad at a center in Europe reported to center staff that she had been raped by a nonstudent. The victim complained to College of New Jersey officials about being questioned about her alcohol use and blamed for the incident. While the college wasn’t feasibly able to investigate the report -- and was not asked to -- it did provide academic support and mental health services to the student, who was able to graduate on time as a result, Draper said. Resources such as these should be considered the obligation of institutions that offer study abroad programs, especially those that encourage students to be “global leaders” through international experiences, she said.

“If we’re allowing students to go abroad, their safety should not change depending on where they’re located,” Draper said.

Student-on-student sexual assault or harassment that occurs abroad is where the new rule could become complicated. The final rule notes the difficulty and impracticality of institutions to investigate complaints that come from overseas. Draper said the Title IX office at the College of New Jersey has never received a student-on-student report from abroad but has discussed interim measures if it were to occur, including mandating that the accused student be sent home.

Vitchers, of It’s On Us, said she expects students accused of sexual misconduct while abroad or off-campus, or their lawyers, to use the new rule to claim in court that Title IX does not apply outside domestic campus-based programming.

Few federal district courts, and no circuit courts, have addressed the issue of college sexual misconduct while abroad, according to “Rape Abroad,” a legal analysis of Title IX’s application internationally published in 2017 by the Northwestern University Law Review. The U.S. District Court for the Eastern District of Michigan decided in 2002 that Title IX was applicable to student-on-student harassment and assault that occurred within an Eastern Michigan University study abroad program in South Africa and prompted six female students to go home early. The court decided to uphold the female students’ claims against the university, because they were “continuing students at EMU” when officials did not take their complaints seriously and they were denied access to the program.

The new rule, however, takes its interpretation from a ruling out of the district court in eastern New York, in which a judge concluded that nothing in Title IX indicates it can be applied outside the U.S. Another more recent ruling in Massachusetts district court concluded that Title IX “is directed to the location of the person who is protected by the statute.”

The Department of Education is correct in saying it is not allowed to regulate beyond this plain language of the law, Richards said. It will be up to Congress or the U.S. Supreme Court to determine otherwise, he said.

“But until that happens, the statute says what it says,” Richards said.

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