Every year, high school and college students across the country become the victims of sexual abuse and misconduct through dating violence. When domestic violence happens between intimate partners it can cause real emotional abuse, physical harm, and all too often ends in death. But does that make dating violence on campus gender discrimination? A new federal policy says it is.
Student track star Lauren McCluskey had reported her boyfriend Melvin Rowland to the University of Utah campus police several times for dating violence, according to her parents’ lawsuit. She had reported that he was harassing her, threatening to release revenge porn after she ended their relationship on October 9, 2018. However, according to the lawsuit, the investigators assigned to the case did not take those threats seriously, even though Rowland was more than 15 years older than her and a registered sex offender on parole.
According to one local news article, two of Lauren’s friends had also gone to the university’s dorm staff saying they were afraid he was controlling her, talked about guns, and often stayed in her dorm room. In spite of the reports, no work happened on her case, allegedly because the detective assigned to the case was off on vacation. By the time he came back, McCluskey was dead. She had been shot by Rowland outside her dorm on October 22. He later killed himself.
McCluskey’s parents sued the school saying that the campus police’s failure to respond was a violation of Title IX of the federal Civil Rights Act and state anti-discrimination laws. But the school says it wasn’t required to respond because Rowland wasn’t a student or employee of the school. There was also some question as to whether dating violence counts as gender discrimination under federal law.
Until 2011, high schools and college campuses didn’t have much guidance on how to respond to reports of dating violence and sexual abuse happening on or around their campuses. Many assumed those behaviors were prohibited under federal law or state criminal codes, but enforcement was erratic. Then, the Obama administration sent out a “Dear Colleague” memo providing instructions on preventing gender discrimination and sexual harassment on campus and involving students. That standard included several protections for the victims of sexual assault and dating violence, including a lower standard of proof and prohibiting the use of face-to-face mediation that often perpetuates power dynamics in abusive relationships.
However, in November 2018, Education Secretary Betsy DeVos, a Trump appointee, rescinded that guidance. She issued new regulations narrowing the definition of sexual harassment, tightening reporting requirements, limiting investigations into off-campus behavior, and stripping many of the protections for victims. In announcing the regulations, DeVos claimed the changes were designed to balance the rights of victims and their accused perpetrators:
“Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined. . . . We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas.”
However, these new rules created a gray area around the issue of dating violence. Under the 2018 regulations, Title IX only applies if the dating violence is “so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” Cari Simon, former director of the Congressional Victims’ Rights Caucus and Title IX lawyer told the New York Times that this narrower definition of sexual harassment was a deterrent to students reporting the danger:
“If we’re essentially saying to  stalking and dating violence victims, ‘Sorry, this isn’t pervasive enough, severe enough or objectively offensive enough,’ they’re not going to come back.”
In response to these concerns, DeVos’s Education Department has now issued another new rule, correcting some of the weaknesses created under the 2018 policy. These new rules specifically say that domestic violence, dating violence, and stalking are gender discrimination and trigger a school’s investigation obligations under Title IX. This supplements guidance specific to sexual assault.
Victims’ advocates are praising the new rule, saying it puts schools and universities on notice that they must take steps to train their staff and protect their students from harm on campus. Sage Carson, manager of Know Your IX, a victims’ rights advocacy group, told the New York Times:
“There’s still a lingering idea that dating violence is an interpersonal issue that two folks need to work on, something that just happens between men and women, rather than seeing it as a form of violence that has an impact on education.”
They would also help students like Lauren McCluskey and their parents when schools ignore their concerns. Ultimately, these tougher regulations could give victims advocates the tools they need to prevent more victims’ deaths when schools don’t take their reports of dating violence seriously.
At Eisenberg & Baum, LLP, we have a team of attorneys who know what to do when dating violence and sex abuse threaten students in high school or college. We work with students and parents to enforce their rights under Title IX as well as state and local laws, and will help you and your child and get the justice and compensation you need to move on. Contact us today to schedule a free consultation.