Recently, the federal government sided with two Title IX plaintiffs in ongoing litigation against Kansas State University that challenges the institution’s failure to respond to reports of sexual assault committed at off-campus fraternity houses.
The federal court’s eventual decision in two pending cases will address an important issues of Title IX’s scope. So it is noteworthy that the Department of Justice and the Department of Education submitted amicus briefs to challenge the university’s contention that its obligations under Title IX do not apply to off-campus conduct. The government argues that when Title IX uses the word “programs” in describing the statute’s reach, it includes the house and events of a school-recognized fraternity, just like it applies to other off-campus activities like study-abroad programs and extracurricular activities that are still subject to the university’s control. Moreover, the government argues that the university itself claims that its fraternities are part of the university in its marketing to prospective students, and exerts the requisite “substantial control” to prevent and respond to sexual assault that occurs at fraternities, in that the accused are students who are subject to the university disciplinary process and the fraternity itself relies on the university for ongoing recognition. In fact, the university demonstrates this control by sanctioning the accused student for alcohol violations, but not rape.
Clearly the government is watching this case closely, as we are as well.