Gender Violence Costs: Schools’ Financial Obligations Under Title IX
abstract. The last two years have witnessed a surge in attention to the issue of sexual assault in higher education. Campus rape has become the subject of new legislation, inspired a White House task force, and dominated news headlines. Yet largely neglected in this growing national conversation is one critical reality: gender-based violence has costs, and these costs constitute a gender-based barrier to student victims’ educational access, one that implicates the equality mandate at the heart of Title IX.
This Feature documents the centrality of these financial harms to the educational barriers women and other student survivors face, arguing that if one hopes to guarantee gender equity in education, Title IX must be understood to allow for recovery of costs attributable to this discrimination. Yet while the administrative agency tasked with enforcing Title IX has long recognized schools’ obligations to do just that, the agency has struggled in practice to enforce them. This Feature identifies these enforcement gaps before concluding with several administrative and congressional proposals for reform.
author. Executive Director, Know Your IX; Amherst College, 2014. Many thanks to Alexandra Brodsky and Alyssa Peterson for their invaluable insight and support, and to Nancy Cantalupo, Fatima Goss Graves, Lisalyn Jacobs, and Cari Simon for their expert guidance, mentorship, and commitment to leveraging the law for good. I am especially grateful to Adam Sitze and Martha Umphrey for first encouraging me to produce scholarship on gender violence, and to Colby Bruno and Amanda Walsh for first introducing me to Title IX. A special thanks to Liz Deutsch, Dahlia Mignouna, and Mike Clemente for being the most patient of editors, to all the participants in the Yale Law Journal’s Title IX Conversation for their valuable feedback and contributions, and to the Yale Law Journal for trusting young people and survivors to be experts in their own right. Finally, thank you to the survivors who generously shared their time and stories for this piece, to those who have spoken up in the hopes of challenging the status quo, and to the many more who have not, recognizing that survival is political and powerful and transformative in its own right.
In August 2014, Wagatwe Wanjuki finally graduated from college.1
She had begun university some ten years earlier, at Tufts, where she was supposed to have graduated in 2008.2 But after she was raped and abused by her then-boyfriend, a fellow Tufts undergraduate, her educational path was thrown off course.3
After reporting her abuser to the Tufts administration, Wanjuki says the university told her it had no obligation to act.4 Without institutional support, she paid out of pocket for transportation to the local rape crisis center, hospital, and courthouse.5 She moved far from campus because she did not want to be nearby and paid extra for the longer commute.6 She took time off “to heal.”7 Her medical and therapy copayments added up to hundreds of dollars.8 Wanjuki ultimately stopped therapy because she was unable to afford it.9 “I feel like I still need to go now. Unfortunately, the situation made it really hard to see someone consistently. The ramifications of the institutional apathy still follow me.”10
Wanjuki’s grades fell as a result of her sexual abuse and the lack of support from the university.11 In response, in 2009, Tufts expelled her.12 She lost the money she had already paid for the semester’s lease.13 Wanjuki was just one year shy of earning her degree.14
Expelled at the height of the recession, Wanjuki was unable to find employment.15 She nearly secured a position with a starting salary of sixty-five thousand dollars, until the employer learned she had not completed her college degree.16 As she recalls, “[T]aking so long to get a degree because I was kicked out made me miss out on a lot of opportunities.”17
Eventually Wanjuki returned to college, this time at Rutgers University.18 She resorted to fundraising to pay for her remaining credits.19 As she explains, “if I didn’t have an expulsion on my record, I might have been able to go to a school that had . . . more scholarship funds.”20
Wanjuki is not alone. One in five women suffer sexual assault or attempted sexual assault in college.21 This violence can limit or preclude a student’s ability to learn.22 Many victims, like Wanjuki, understandably go to great lengths to avoid their perpetrators on campus: some skip shared classes,23 avoid shared spaces like the dining hall or library, hide in their dorm room, transfer, or drop out of college altogether.24 Others struggle with depression, posttraumatic stress disorder (PTSD), eating disorders, anxiety attacks, flashbacks, and nightmares.25 Some attempt suicide or engage in self-harm.26 Typically academically successful students see their grades plunge as they struggle to concentrate on, participate in, or even attend their classes.27
The courts have long recognized that peer-on-peer sexual violence limits or outright denies students’ ability to access education, that schools have obligations under Title IX to address this violence, and that the Department of Education’s Office for Civil Rights (OCR) is responsible for “promulgat[ing] and enforc[ing] requirements that effectuate [Title IX’s] nondiscrimination mandate.”28 And, thanks to student activists’ efforts to raise awareness about Title IX, universities and students alike are increasingly recognizing schools’ obligations as well.29
But often neglected in the growing national conversation around campus gender violence is one critical reality: gender-based violence has costs, and these costs constitute a discriminatory, gender-based barrier to educational access. Part I of this Feature reviews judicial and administrative understandings of campus sexual violence as discrimination, noting in particular that Title IX’s equality mandate requires schools to remove or remedy financial costs attributable to discrimination. Part II highlights the various economic costs that stem from campus gender violence and demonstrates that these gender-based costs create and exacerbate barriers to student survivors’ educations. Part III examines the lackluster administrative enforcement of colleges’ Title IX obligations to remedy such costs, and Part IV offers several policy proposals through which OCR and Congress may more fully realize Title IX’s promises and protections.
Courts have long understood that gender-based violence hinders student victims’ ability to access their right to education under Title IX of the 1972 Education Amendments. Title IX provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”30 In 1977, Alexander v. Yale University became the first case31 to use Title IX to establish that sexual harassment of women students constitutes sex discrimination in education.32 Subsequent court decisions clarified schools’ obligations under Title IX to address and remedy peer-on-peer sexual violence.33 OCR has further defined these obligations using its authority to make policy and enforce school compliance.34
OCR releases periodic administrative guidance clarifying schools’ responsibilities. OCR’s 1997 and 2001 guidance explain that a school is liable under Title IX if the school fails to take “immediate and appropriate corrective action” for sexually harassing conduct about which it knows or should have known and which is “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity.”35 A school must take steps to end harassment, eliminate any hostile environment, prevent its recurrence, and remedy its effects.36 On the last point, OCR suggests several remedies in its 1997 and 2001 guidance: place the accused student and victim in separate classes, change housing arrangements, issue a no-contact directive, provide tutoring, offer reimbursement for counseling, or make tuition adjustments.37
In later guidance, OCR further clarifies the kinds of accommodations that may be necessary to eliminate a hostile environment. Its 2011 Dear Colleague Letter suggests that reasonable remedies might include: providing the victim with counseling and medical services, academic support services, or an escort to and from class.38 In its 2014 “Questions and Answers,” OCR explains that victims should also, as appropriate, be allowed to change transportation, dining, and work situations, as well as receive extensions on assignments, extra time on tests, and the opportunity to re-take or withdraw from a class without penalty.39
OCR recognizes schools’ obligations to provide these accommodations at no cost to survivors. In the 2014 “Questions and Answers,” OCR explicitly states that a school must cover survivors’ counseling costs, should it determine that a survivor requires access to such services.40 Similarly, in a subsequent letter to two student advocacy organizations, OCR explains that survivors cannot be required to pay for any remedies necessary to ensure equal access to education programs and notes that, in the event of a school’s failure to promptly remedy a hostile environment, it must reimburse survivors for the expenses its inaction creates.41 In its enforcement decisions, OCR has, at times, required institutions to reimburse students for a variety of expenses, including unused meal plans, counseling treatment,42 and “[u]niversity-related expenses (tuition, fees, housing, food, and books).”43
OCR’s recognition that Title IX’s equality mandate requires schools to compensate victims for the economic costs of discrimination is consistent with antidiscrimination law more broadly.44 For instance, the Equal Employment Opportunity Commission (EEOC)—which, roughly analogously to OCR,45 handles complaints of discrimination in the employment context—states:
When an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly . . . [and] should take immediate and appropriate corrective action by doing whatever is necessary to end the harassment, make the victim whole by restoring lost employment benefits or opportunities, and prevent the misconduct from recurring.46
The EEOC has routinely found that victims are entitled to reimbursement for the cost of medical services and other expenses attributable to discrimination, in addition to nonpecuniary compensatory damages.47 The nondiscrimination provisions of the Fair Housing Act have similarly protected gender violence victims from paying the costs of eviction, early termination penalties, and property damage48—all financial costs of violence understood to be discriminatory based on sex. In short, agencies enforcing antidiscrimination law have recognized that the financial costs of discrimination can pose continued obstacles to equality and have consequently required compensation for victims.
Sexual violence has costs. A 2008 study placed the total per-offense societal cost of rape and sexual assault at $240,776 in 2008 dollars,49 or $265,400 in 2015 dollars.50 A 1996 study found that, when lost productivity, medical and mental health care, property loss, and lost quality of life were tallied, each rape or sexual assault cost the survivor on average $87,000.51 This “rape tax”52 is $143,678, in 2015 dollars.53
There is little research on the extent and impacts of the financial expenses that student survivors in particular suffer. One study found that campus survivors experience a range of education-related consequences, including academic performance decline54 that jeopardized financial aid and scholarships, resulting in students taking time off, transferring schools, or dropping out.55 The study found that student survivors took varying amounts of time off, ranging from three weeks, to a semester, to an entire year or more.56
Other studies confirm that students’ grades suffer significantly after violence. One study found that women who were raped during their first semester of college saw their GPAs subsequently drop, both at the end of that semester and the following semester.57 Fifteen percent of women who experienced rape in their first semester ended the semester with a GPA below 2.5, compared to six percent of those who were not raped.58 The impacts of rape were long-lasting: eight percent of those who were raped in high school reported that their first-semester college GPA fell below 2.5 (compared to only three percent of those who did not report a high school rape).59 These significant trauma-related GPA declines can contribute to scholarship loss; academic penalties such as probation, suspension, or expulsion; and long-term impacts on employment and graduate school prospects, with significant accompanying financial consequences.60
I surveyed nearly two hundred student survivors to better understand the variety of gender-violence-related expenses that survivors bear, and the ways in which these costs imperil their educations.61 The survivors report costs ranging from mental health services to medical treatment, lost tuition to lost income, transportation costs to housing expenses. These costs are diverse, significant, and have frustrated student survivors’ ability to access their right to education.
As one undergraduate explains:
I no longer felt safe at [my university] after my case was grossly mishandled. I took 3 years off from school. I filed a complaint with the [D]epartment of [E]ducation [in] May 2014 and started school at [another school] this January . . . . I lost around 10k in lost tuition. Then having to transfer lost a semesters [sic] worth of credits, another 20k. The cost of . . . living off campus was 2k. I don’t have an exact figure on consoling [sic] but I wouldn’t [sic] estimate 7k over 3 years.62
She adds that her Department of Education complaint has yet to be resolved: “The complaint was filed a year ago, I haven’t heard anything since December. I was told it would take another year.”63 Her case underscores the need for speedier OCR investigations, as well as the importance of OCR securing interim remedies for Title IX complainants to support them in continuing their educations while the agency investigates their schools’ violations.64
Another survivor reports:
I took a year off from classes following the assault and the Title IX investigation at the school . . . . I was not reimbursed for any costs, although we did request partial reimbursement for tuition and housing costs . . . . I lost a scholarship when I transferred schools, and had to take an entire extra semester of courses at my new institution. I also had to leave the co-ops due to my mental health keeping me from being able to keep up with my work there, which resulted in higher food costs. It has easily cost me and my family an additional $100,000 at least.65
These survivors—whose families appear to have had the resources to support them in transferring schools, fronting additional tuition expenses, and obtaining counseling—are (relatively) lucky. For other survivors, prohibitively costly mental health services have precluded them from obtaining necessary treatment for trauma-related disorders, such as PTSD, depression, and anxiety—and, in many cases, have forced them to withdraw from classes, or school, as a result.66 Still other survivors, unable to afford fronting additional tuition costs, paying course change fees, or losing scholarships, have remained in school, earning poorer grades.67 Some of these survivors, like Wanjuki, report landing on academic probation, or being suspended or expelled.68 For still others, housing and other university-related expenses have added up.69
Violence—and institutional indifference in its wake—changes the courses of survivors’ lives, with educational and employment consequences following them far into the future.70 For example, students who were sexually assaulted in high school report effects that were delayed and long-lasting, impacting their college educations.71 Other survivors report withdrawing from college permanently, suffering long-term penalties to their earning potential.72
Despite OCR’s recognition of schools’ responsibilities to remedy particular costs of violence,73 the agency has, perhaps due to underfunding,74 not instituted the necessary policies or consistently and proactively enforced schools’ obligations. Specifically, OCR has not required individual remedies in the form of free accommodations or compensation to survivors; has neglected to secure remedies for affected non-complainants; and has allowed schools significant discretion in “remedying” their violations even after OCR has found that the school had a hostile environment.
The key guidance upon which schools rely—the 2011 Dear Colleague Letter and the 2014 Questions and Answers document—explain that a school must provide reasonable accommodations, including paying for counseling it deems necessary,75 but do not explicitly outline the other costs an institution should cover.76 As a result, schools at every educational level—elementary, secondary, postsecondary, and graduate—remain undirected as to their obligations to provide free services and accommodations on the one hand and to compensate survivors for a variety of costs on the other.77 As one victims’ rights attorney explained, “The Department of Education should be stepping in when it comes to this [securing free accommodations] because victims don’t have lawyers and schools aren’t going to just offer it.”78
Furthermore, despite its recognition of schools’ obligations, OCR has required financial reimbursement in a surprisingly small number of its enforcement decisions79: indeed, more than two-thirds of OCR’s publicly available voluntary resolution agreements from the last seven years require no financial reimbursement at all.80 In many of its resolution letters, OCR reports findings of hostile environments—but then does not require remedies from the schools, or permits the same schools that violated the survivors’ rights to determine what remedies are appropriate.
For instance, while OCR’s investigation of the Virginia Military Institute (VMI) finds that the school has committed gross Title IX violations against several student survivors, OCR does not require any individual remedies from the school for any of them.81 VMI’s violations range from a failure to offer appropriate remedies to a complainant who reported a sexual assault, to an investigation concluding a full eight months after the reported assault, to lack of notice to a victim of an investigation’s results.82 OCR is clear that, as a result of these failures, the complainants have suffered unabated hostile environments, noting that one complainant resigned from VMI.83 Despite these documented violations, OCR requires no direct remedies, such as reimbursement, for the individual complainants; instead, the agency directs VMI to submit to OCR documentation of all sexual harassment complaints filed during the following academic year for review.84 In other words, OCR does not require VMI to remedy a single past violation against an individual complainant, despite the significant gender-based educational barriers that the institution’s (in)action has created—including, for one survivor, withdrawal from the institution entirely.
In addition, in these publicly available agreements, OCR does not secure financial reimbursement for noncomplainants, except when attorneys, parents, or other students have named them specifically in the complaint. For instance, OCR’s resolution letter to Princeton University makes clear that the individuals who filed the complaint to OCR cited violations committed by Princeton against three specific student survivors;85 accordingly, though these three students were not the complainants, OCR does require reimbursement for them.86 But OCR neglects to require remedies for other student survivors, unnamed in the original complaint, despite finding violations of their rights. The resolution letter provides:
OCR also determined that the University failed to provide prompt and equitable response(s) to complaints of sexual assault/violence of which it had notice (including complaints made by Students 1, 2 and 3, and other students’ complaints/reports) . . . . Thus, OCR concluded that the University did not comply with the applicable Title IX regulations . . . .87
Similarly, in its investigation of Southern Methodist University (SMU), OCR finds that “[m]any [case] files did not show that complainants were offered interim remedies.”88 OCR notes further:
[I]n reviewing SMU’s handling of other complaints filed under the former grievance procedure . . . OCR observed that the file documentation did not support that the University provided prompt and equitable responses to the harassment complaints and reports . . . . Based on the above, OCR concluded that that [sic] SMU did not provide prompt and equitable responses to gender-based harassment and sexual harassment/sexual violence complaints, reports and/or other incidents of which it had notice, and thereby SMU failed to comply with the Title IX regulation . . . .89
In spite of the violations against SMU survivors who had not filed a complaint with OCR, the agency does not secure specific remedies, such as reimbursement, for these students.
OCR’s failure to require reimbursement and other remedies for individual survivors—complainants and noncomplainants alike—appears to be a pattern. None of the nearly two hundred student survivors surveyed for this Feature report receiving financial reimbursement from their school as the result of an OCR investigation, although the vast majority of these survivors report suffering financial costs that, according to OCR, should be covered or reimbursed by the schools.90
Finally, while OCR holds the informational access and authority to explicitly require protections on behalf of student survivors, the agency instead chooses in many of its agreements to defer to noncompliant institutions’ own review processes. For instance, in its agreement with Tufts University, which concludes a nearly four-year investigation and finds Tufts in violation of Title IX, OCR requires the university to conduct “complaint reviews” from the years 2011 to 2014 and to take action as appropriate, “including providing appropriate remedies that may still be available for the parties in these cases, such as referrals to counseling or academic adjustments.”91 In short, despite having the authority to explicitly require protections for the survivors failed by Tufts, OCR instead leaves the rights of victims to the discretion of the same institution that violated those rights in the first place.
In order to address the concerns outlined in Part III, the federal government must take action. Because of the Supreme Court’s failure to grasp the connections between antidiscrimination principles (as articulated in Part I) and the economic costs of gender violence (as documented in Part II),92 it must fall to the other two branches of government—the Executive (through OCR) and Congress—to level the playing field for students of all genders and ensure that Title IX’s equality mandate is achieved.
Central to the operationalization of OCR’s mission is its Case Processing Manual (CPM). The CPM informs OCR staff on how to conduct investigations and resolve complaints to ensure schools’ compliance with Title IX.93
Currently, victims’ rights attorneys report inconsistencies among OCR investigators and regional offices in terms of the quality of investigations and the extent of remedies, including reimbursement, secured in voluntary resolution agreements.94 These inconsistencies may be explained, in part, by the absence in OCR’s CPM of any specific guidance for OCR staff on securing reimbursement for counseling and other university-related expenses in resolution agreements.95 OCR should train its investigators to recognize the various costs that complainants suffer and should update the CPM to ensure responsiveness to these realities. Specifically, OCR should provide explicit direction in the CPM on the kinds of remedies OCR staff should secure, as appropriate, from institutions, including reimbursement for university-related expenses such as counseling, medical treatment, tuition, academic course withdrawal fees, books, housing, transportation, meals, student debt accrued during time off, and scholarships lost because of poor grades due to trauma and lack of accommodations.96
OCR’s frequent practice of instructing a noncompliant university to conduct a review of past complaints—rather than explicitly requiring the university to provide specific remedies in individual cases—inappropriately leaves determination of remedies to the discretion of the very institution that violated survivors’ rights in the first place. OCR should thus add to its CPM a recommendation that its staff review past complaints during an investigation and articulate specific remedies—including reimbursement—the university must provide to individual survivors in order to come into compliance with Title IX.
During its investigations, OCR reviews documentation of a school’s past sexual harassment complaints, conducts onsite campus visits,97 holds open office hours for students to discuss their experiences,98 and conducts one-on-one interviews with students.99 As a result of these efforts, OCR finds violations against individual students beyond those survivors specifically cited in the complaint.100 However, OCR has failed to explicitly require specific remedies, including reimbursement, for these students to address and remedy the hostile environment they endure.101
In order to fulfill its mission to remedy both individual discrimination as well as systemic discrimination,102 OCR should require remedies, including reimbursement, where appropriate, to survivors not cited in the complaint. OCR should be proactive in identifying survivors who may require remedies, including reimbursement, by expanding its student outreach activities. For instance, it should conduct multiple, well-publicized site visits at least once per semester103 throughout the investigation period and at six-month intervals during any postagreement monitoring period.104 Similarly, it should conduct individual, private interviews with any survivors identified through these site visits and through OCR’s case file reviews to learn about the counseling and other university-related expenses that they have incurred. OCR should also conduct regular two-month check-ins during the investigation to identify any additional or ongoing expenses the survivors incurred.
OCR’s CPM states that OCR investigators must determine whether it is appropriate to obtain interim relief for the complainant(s) during the course of the investigation, and, if so, requires that OCR contact the university as early as possible to secure such relief (including while the OCR investigation is ongoing).105 OCR should similarly require its investigators to seek to secure interim remedies, including reimbursement for emergency services, during the investigation for any noncomplainant survivors identified through the investigation process. For instance, OCR might require a high school to secure transportation to a new school district for a student survivor as an interim remedy, or it might require a university to provide a college victim emergency short-term off-campus housing for the victim’s safety.
A clearer, more specific CPM and additional training for OCR staff would help ensure that the agency consistently and comprehensively implements its policy and, accordingly, that student survivors receive the support and protections to which they are legally entitled.
In order to fulfill its mission of protecting equality in education, OCR is responsible for disseminating guidance to schools about their Title IX obligations106 and providing technical assistance to ensure the successful realization of those obligations.107 But the key existing guidance upon which schools rely does not clearly discuss the remedies, aside from counseling, that schools should provide for free. Moreover, recent student activism has made clear that many schools do not provide students the remedies and protections to which they are entitled under Title IX.108 Further, when students are unaware of their rights, they are unable to insist on the vindication of those rights.109
OCR should circulate additional guidance to Title IX coordinators to explicitly clarify schools’ financial obligations and should provide proactive technical assistance to schools, including on-site and telephone consultations, training classes, and conference sponsorship and participation, to ensure they know how to comply. In addition, OCR should proactively educate students about their rights to receive services and accommodations, at no personal cost, in the aftermath of violence through a rights-based awareness campaign for students and parents at the elementary, secondary, and postsecondary levels. OCR should utilize existing channels, such as social networking sites, the White House’s “It’s On Us” campaign,110 and NotAlone.gov,111 to distribute this information to students and their families.
When students are enrolled at university, they receive an in-school deferment for all federal direct student loans; however, when a student withdraws from school for more than six months—as many survivors do—this grace period typically ends and the student is obligated to begin repaying loans. Pursuant to agency regulations, the Secretary of Education encourages lenders to grant a forbearance if the borrower intends to repay the loan but “due to poor health or other acceptable reasons” is currently unable.113 Because sexual violence is linked to a number of negative health impacts, including depression, anxiety, drug and alcohol abuse, and PTSD, the Department of Education should clarify that gender violence qualifies a borrower under the “poor health” justification, thereby encouraging lenders to grant forbearance to student survivors.
OCR is not the only actor that can improve student survivors’ ability to bear the costs associated with abuse. In the wake of the Supreme Court’s decision not to recognize gender-based financial harms as discrimination,114 the task of protecting equality in education also falls to Congress.
First, Congress should increase the repayment grace period for survivors with federal student loans. Specifically, Congress should modify the Higher Education Act to grant an automatic deferment to students involved in pending OCR investigations,115 in order to avoid financially penalizing students for suffering violence and needing to take time off from their educations as a result.
Second, Congress should mandate that institutions of higher education conduct and publish the results of annual climate surveys that measure the financial and academic impacts of gender violence on survivors. On a national level, data gleaned from campus climate surveys would bolster the limited existing data on the academic and financial impacts of gender violence on students’ educational experiences. Campus-specific information would assist individual colleges and universities in recognizing gaps and deficiencies in survivor support services long before an OCR investigation.
More than four decades since its passage, Title IX’s promise of educational equity remains unfulfilled for too many survivors of gender violence. Accounts of victims who move off campus, transfer schools, delay their educations, or drop out of university entirely, serve as powerful reminders that—so long as unaddressed gender violence remains a fact of life for women in school—equality in education cannot exist.
Financial harms of gender violence are central to the enduring educational barriers women and other students face. These harms are both a product of campus sex discrimination and, when left unremedied, a form of discrimination themselves. Unabated, these economic costs represent discriminatory, gender-based financial penalties to (primarily) women students. These costs can be directly financial or may lead to diminished employment opportunities in the future. Notably, these kinds of harms are analogous to those recognized and remedied under Title VII in the employment context—and alleviating them is at the very heart of antidiscrimination principles: if we hope to guarantee gender equity in employment or in education, our laws must be understood to allow for recovery of costs attributable to discrimination.
If schools consistently provided victims like Wanjuki with the reasonable remedies and accommodations (or compensation for such) to which they are legally entitled under Title IX, we would no doubt see fewer survivors drop out of school, forego critical mental healthcare, or land hundreds of thousands of dollars in debt. Victims would write senior theses and graduate with honors, rather than hide in their dorm rooms or withdraw from school. Gender violence would no longer cost students their educations or their futures.