Uncle Sam Comes to the UK: Title IX Compliance in Study Abroad Programs

Today, I'm giving the keynote address at the Annual General Meeting of the Association of American Study Abroad Programs in the UK. I'll be talking to a group of university administrators in London about the challenges they face in having to comply with US laws like Title IX and the Clery Act, which apply to the programmes US universities run abroad.

When the Higher Education Amendments were signed into law by Richard Nixon in 1972, few people foresaw how much they would alter the landscape of higher education. Bernice Sandler, dubbed the "godmother of Title IX", told ESPN: "We had no idea how bad the situation really was - we didn't even use the word sex discrimination back then - and we certainly had no sense of the revolution we were about to start."

They certainly would not have predicted that the waves of Title IX are now being felt across the Atlantic. As US universities expand their operations in other countries, opening satellite campuses and building bigger study abroad programs, they have to make sure that their overseas campuses comply with the standards set out in US law. Title IX applies to "any program or activity receiving federal financial assistance", including those that operate overseas.  Recently, the University of Connecticut was sued by a woman student who was sexually assaulted during her study abroad year, after administrators failed to take action to support her.  The University settled for $1.3 million.

It’s an area where risks for universities are significant. One study showed that the risk of rape on a semester abroad was five times higher than the risk during a semester at the home campus; the risk of sexual assault was more than three times higher.  Students are in new countries where they may not know the language or customs and lack friends or other support systems who can guide them away from risky situations.  Drinking laws, dating rituals, and the ability of local police and prosecutors to handle sexual assault may all be significantly different from what the student has experienced back home.

Just on human grounds, study abroad programs will want to have good procedures and trained staff to help students who are raped or sexually assaulted an ocean away from home.  The students will need to know who to turn to in crisis, and what support they can expect, possibly including professional counselling and advice on how to keep themselves safe after the fact.

But the additional truth is that universities are liable for fines and damages if they don't comply with the rules of Title IX, and other federal laws, like the Clery Act which set out minimum standards for universities in handling sexual assault and harassment cases - even if the incident happens abroad. Lawmakers have signalled that there will likely be penalties for universities that don't comply, with the potential for schools to lose up to one percent of their budget for certain violations. Title IX litigation is a more active field than ever, with universities frequently held to account with awards of millions of dollars. 

We see from our clients that universities are often not up to scratch in their investigation and disciplinary processes: sometimes they don't investigate the complaint promptly, or ignore crucial evidence, or fail to give a meaningful punishment when one of their own students is  the perpetrator. A recent analysis by a reporter at the Huffington Post found that less than a third of campus sexual assault cases end in expulsion.

Despite the risk of fines, litigation and reputational damage, universities are still not doing enough to prepare their staff and students to deal with sexual violence, harassment and stalking. Many staff still aren't trained on their obligations to report incidents up the chain of command, and don't understand how to communicate with a survivor of sexual violence in a constructive way; many students aren't told what options are available to them when something goes wrong. The Department of Education announced recently that as many as 55 colleges were under investigation for potential violations of Title IX.

Because the enforcement of federal laws on study abroad programs is a relatively new legal issue, I suspect that most administrative staff running these programs don't have the resources they need to support victims of sexual violence. I don't blame them - they are thousands of miles away from their Title IX Coordinator or General Counsel, and if the US-based central campuses are still struggling to comply with the law, it’s hard to imagine that they're training and supporting staff working in other countries.

But this is how law can be an agent of reform.  As universities wake up to their responsibilities, we can expect to see changes in London, Paris and Dubai as well as in Chicago and New York.  The crucial thing is for study abroad programs to get the training and support they need to comply with the law.