The Problem Isn’t Title IX; It’s Institutions like LSU

It wasn’t until 1979 that schools recognized that Title IX encompassed sexual harassment and sexual violence. Astonishingly, college campuses were behind in imposing campus liability for sexual assault and sexual violence. In 1987, Congress passed the Civil Rights Restoration Act, which overturned the Supreme Court’s Grove City College decision. In Grove City College, the Supreme Court limited the scope of Title IX to only the specific program receiving federal financial assistance. As pressure against this limitation began to mount, in Gebser, the Supreme Court, in a 5-4 decision, held that schools were liable for private damages only if they knew of an employee’s harassment and then consciously chose to ignore it.

During the next decade, campuses passed stricter sexual misconduct policies, created sexual assault response teams, and added victim/survivor resources. Campuses started to be plagued by sexual misconduct, especially among the athletic departments. However, deliberate indifference is difficult to prove and highly prejudicial to victims of sexual abuse. So, in 2001 the Education Department’s Office for Civil Rights (“OCR”) published a guidance document that elaborated that its enforcement efforts would apply a lesser standard than actual knowledge or deliberate indifference. Colleges could violate Title IX’s regulatory demands if they knew or should have known about sexual harassment. Also, colleges have a duty to eliminate the harassing conduct and ensure the survivor/victim full participation in any education program or activity. This allowed the OCR to enforce that duty through compliance requirements and “resolution agreements,” with the ultimate penalty being its ability to cut off federal aid to the institution. Id.

Image Credit: Saturday Down South / Les East

Knock, Knock, Louisiana State University, its sexual violence survivors. Louisiana State University administrators and coaches have come under immense fire after a USA TODAY investigation found systemic mishandling of sexual misconduct and dating violence complaints.

The investigation found that LSU’s athletic department and broader administration continually ignored complaints against abusers, denied victims’ requests for protection, and subjected them to further harm by known perpetrators. There have been several complaints filed against LSU football players, complaints the highest levels of LSU administration were aware of, including specifically several complaints about LSU’s prized running back, Derrius Guice. Several students and student-athletes filed complaints against the running back in 2016. A student-athlete told her coach and an athletic department administrator that the running back had raped her friend after she passed out drunk at a party. Id. Soon after, another female student told two senior athletics administrators that the running back took partially nude photographs of her without her permission and shared them with the team equipment manager and possibly others. Months later, the athletic department received reports of a second rape allegation against the running back.

 Federal laws and LSU’s policies require that the university officials take these allegations seriously and report them to the Title IX office for investigation. However, in most cases, that didn’t happen. They were prioritizing the importance of someone who can carry a football over the sexual violence survivors. In fact, in these circumstances, LSU either doubted the women, didn’t investigate or didn’t call the police. While the women suffered in isolation and silence, the running back was allowed to continue his football career.

Elizabeth Taylor, a Temple University Professor who studies sexual assault and harassment within athletic organizations, said with respect to LSU: “I don’t assume that any of these coaches don’t understand that what’s happening is wrong . . . I think they’re making decisions that are best for the success of the program, and they’re making the decision to put the safety and well-being of other students behind a player’s ability to play on a Saturday afternoon.” As mentioned above, LSU campus officials are required to report the allegation to the Title IX office to conduct an initial investigation. However, the Title IX office never reach out to one of the survivors, Samantha Brennan.

Students and community members gather in protest over the school’s handling of sexual assault, Friday, November 20, 2020, on LSU’s campus.
Image Credit: Hilary Scheinuk / Mark Ballard

Further, as USA TODAY continued its investigation, it filed a public records request with LSU seeking all police reports involving the running back. However, at first, LSU stonewalled the request and claimed that since the case was still active, the statute of limitations to prosecute the alleged crime had not expired.  However, the specific documents that Brennan was seeking showed no activity or investigation in the case since the initial complaints were filed in 2016. Scott Sternberg, the attorney representing Brennan, stated that “this level of evasion to protect any person – football player or not – who is accused of a crime is reprehensible.” In reaction to LSU withholding Brennan’s initial complaints, Sternberg said, “to deny a victim the right to review her investigation file is inhuman . . . LSU’s callous institutional behavior must have consequences—and we will seek attorneys’ fees, costs, and arbitrary and capricious damages against LSU to the fullest extend of the law.

Representatives from more than a dozen LSU student groups called for the resignation of anyone who mishandled Title IX complaints. Thomas Galligan, LSU’s interim president, released a statement that acknowledged the failings and promised a review of its policies. Following the outcry, there is a protest scheduled today for “LSU to take responsibility for covering up sexual assault cases.”

Since head football coach Ed Orgeron took over the team four years ago, at least nine football players have been reported to police for accusations of sexual misconduct. Of these nine football players, only two received any discipline. Further, one football player, Drake Davis, was not expelled from the school until four months after he was convicted of physically abusing his former girlfriend. However, LSU’s problem is systemic and it involves mishandling of cases involving not just student-athletes, but the student body generally. There are at least three cases where LSU, instead of expelling or suspending male students accused of sexual misconduct, allowed the men to stay on campus receiving “deferred suspensions.” Olivia James, an opinion columnist for LSU’s student newspaper, stated, “. . . it’s not even just about football: Rape culture is the culture at LSU. Silencing women to protect the interests of the university has always been the main priority and students have just about had enough.”

LSU has hired law firm Husch Blackwell to do an “independent, comprehensive review of [their] Title IX policies and procedures. The review is likely to be completed in the spring. However, the USA TODAY investigation found that LSU’s problem was not its policies, but rather the officials and administrators who chose to ignore the policies. A spokesman from LSU, Jim Sabourin, stated that the review will look at specific cases and whether they were handled correctly or not. He said, “if there are patterns evident in why certain allegations don’t make it to the Title IX process, then we need to know why.”

When handling Title IX cases, schools often hire outside law firms to conduct independent investigations. Typically, though, this is only done when the school has been accused of widespread Title IX violations. However, these investigations often don’t provide much clarity or change. This lack of action highlights the need for proactive intervention in sexual misconduct cases. Administrators and coaches must be educated on handling sexual misconduct cases. They need to be advised on how to communicate with a survivor who reports misconduct. They also need to know what the next steps are in reporting. Potentially the most critical link in the chain is the administrators at the highest levels. The allegations need to be taken seriously and investigated to the fullest extent by the university. Maybe then, Title IX can protect individuals in the way that it was designed to.

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'21 J.D. Candidate at the University at Buffalo School of Law

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