Most commonly known for its athletic gender equity requirements, Title IX is becoming extremely relevant in sexual misconduct law suits on college campuses across the country, a paper by a law firm focusing on higher education said.
In sexual misconduct cases, it is apparent “that we are in ‘Three Little Bears’ territory … we cannot be too hot or too cold, or the courts will rapidly remind us we are off course. We have to be just right,” said a paper entitled, Gamechangers: Reshaping Campus Sexual Misconduct Through Litigation, by the National Center for Higher Education Risk Management (NCHERM).
The paper shows some major failures of higher education—“universities and schools bury legitimate complaints, fail to take action and refuse to address environments rife with gender bias and sexual discrimination,” a press release by the NCHERM said.
An example given by the paper was an incident where two female student “ambassadors” for the University of Colorado at Boulder football recruitment alleged that they were raped.
The two female ambassadors, Anne Gilmore and Lisa Simpson, planned an evening at Simpson’s apartment. Simpson agreed to have four football players over, though “twenty football players and recruits showed up at the apartment. At least one of the players was lead to understand that the purpose of going to Simpson’s apartment was to provide the recruits a chance to have sex,” it said.
“Simpson, who was intoxicated, went to her bedroom to sleep and locked her door,” the paper said. She and Gilmore, who was also intoxicated, were both sexually assaulted by the football players and recruits—“that night, three other women were sexually harassed by players in the apartment and a fourth had non-consensual sex with two players after leaving the apartment,” the NCEHRM claims.
Simpson and Gilmore did not report the assaults to the university, but filed a Title IX lawsuit alleging that the university athletic department was aware of past incidents and “created a known risk of sexual harassment, assault and discrimination against female students,” the NCHERM paper said.
The court found that the head football coach had knowledge of the risk of harassment and assault, knew about past incidents, and even with that knowledge maintained an unsupervised setting for the recruiting program, the paper said.
“The university chose to settle the lawsuit, agreeing to pay $2.5 million to Simpson and $350,000 to Gilmore,” it added.
This case and others like it show the university officials need to pay more attention to the students and athletes they recruit.
“Officials will have civil rights-based obligations to exercise appropriate control, issue appropriate warnings, provide training, explain policies and behavioral expectations … [or] stop recruiting athletes with known violent histories, especially histories of violence against women,” the paper said. “Maybe that’s what has the courts so fed up [with universities],” it added.
While there are many incidents, like the University of Colorado at Boulder example, there are also occurrences of universities being too strict, the paper said.
In a 2008 decision by the 3rd Circuit Court of Appeals, the court “struck down a campus sexual harassment policy as being unconstitutionally overboard, prohibiting more speech than the constitution allows … [Temple University’s] sexual harassment policy restricted speech that had the intent or effect of creating a discriminatory environment,” the paper said.
When dealing with sexual harassment incidents, it is important for institutions to have the right balance, not to be too lenient or too restrictive, the paper said.
The NCHERM advises institutions to: “investigate every complaint; provide prompt [30-60 day] and equitable remedies for discriminatory conduct;” and engage the university campuses in “strategic prevention and comprehensive education on sexual harassment, campus policies, sexual assault and other high risk issues,” the paper said.
In addition, higher education institutions “need comprehensive reconsideration of student-athlete and coach-as-god cultures,” the paper added.