On April 11, 2019, Senators Richard Durbin (D-IL) and Roger Wicker (R-MS) introduced in the Senate the Senator Paul Simon Study Abroad Act (S. 1198/H.R. 455). It is a deep understanding, that Study Abroad is an essential academic component to developing leadership skills for today’s’ global society. However, it must be acknowledged that Study Abroad programs are not traditional programs, they are conducted, physically or online, outside of US territory. Therefore, lawful protection of participants may raise concerns of the ability to apply Congress legislation extraterritorially, including Title IX. This summary offers an overview of previous cases, addresses the language of Title IX, uncertainties and new regulations in order to draft recommendations to prevent and help with sexual abuse and discriminations during Study Abroad.
Learning about sexual abuses and discrimination in Study Abroad from precedents
King v. Board of Control of Eastern Michigan Univ., 221 F. Supp. 2d 783 (E.D. Mich. 2002) is the leading case that exemplifies sexual harassment and discrimination in Study Abroad programs. Six female students at EMU alleged that they were sexually abused by one of the professor’s assistants and other two male students while in a Study Abroad program in South Africa. The plaintiffs decided to leave the program one week early because verbal and in part physical sexual abuse happened on a daily basis, and the professor did not take action when they requested support. The plaintiffs sued the Board of Control of the University based on sex discrimination and violation of Title IX. The court denied defendants’ motion to dismiss the plaintiff’s claims.
In the case Harbi v. Massachusetts Institute of Technology, 1:16-cv-12394 9 (2017) the plaintiff is a French student resident of Montpellier who enrolled in an online course with a professor at MIT. She claims that the professor repeatedly harassed her sexually online which disturbed her daily life and even caused her to self-injure. She pressed charges against the professor and MIT under Title IX 20 U.S.C. § 1681 protections. The court decided that the Title IX protections may be directed to the location where the person is located while needing protection. Another judge from Eastern New York district Court concluded that Title IX language does not support its application outside of U.S.
Other cases may not have been reported to authorities nor universities’ administrations or they did not make it to trial. In Natalie Carlson v. The University of Minnesota the plaintiff accused University of Minnesota that the chaperone did not supervise the students properly while in a Study Abroad Program in Cuba, in 2016. She claims that she was raped by an individual who was hired to be the local guide for the students in the program. The case did not go to trial and the UM did not believe it should be liable for this act. However, in 2018 UM settled the cases at $137, 500.
McGunagle, a former student of Princeton University claims that in 2014 she was raped during a Study Abroad program in England while she was a visiting student at Worcester College, Oxford. She also mentions that delinquency in the street was the only crime brought to attention during Study Abroad orientation. McGunagle did not broadcast her case upon her return to US because she did not know who to approach at Princeton to speak about the rape. After six years, she decided to share her experience through an article published in Princeton Alumni Weekly, in April 2020. She admits that after the assault, along with other victims, she filed a suit overseas against the aggressor. Soon after, she found herself in the middle of international law disputes which ended up with the assaulter being sentenced to 13 yrs. in prison.
Recommendations based on Title IX language, uncertainties, and new regulations.
Title IX language is opened to interpretation. During the trial, King v. Board of Control of Eastern Michigan Univ., 221 F. Supp. 2d 783 (E.D. Mich. 2002), the language of Title IX was dissected. While the defendants focused on the words “No person in the United States…” and claimed that the court had no jurisdiction over this matter because Congress legislation may not be applied to people outside of the United States, the plaintiffs focused on the words “any educational program…”. The court agreed that the 6 plaintiffs were protected under Title IX because they were students in the United States at Eastern Michigan University and they were denied equal opportunity to that particular Study Abroad program based on sexual discrimination.
Therefore, the first recommendation regarding Title IX language is to acknowledge the possible interpretation regarding its jurisdiction. Foley Bros. v. Filardo, 336 U.S. 281, 284-285, 69 S. Ct. 575, 93 L. Ed. 680 (1949) instituted that Congress legislation could be applied outside of the United States if it does not entertain any international discord and it is mentioned towards the exact matter as its statutory language describes. The second recommendation in this unit links to Section 34 CFR 106.31 in The Code of Federal Regulations for Title IX reinforcing the word “any”, which supports the fact that there are no academic, curricular or extracurricular activities on campus premises or outside which are exceptions from Title IX protections. Therefore, according to multiple angles from which the language of Title IX may be interpreted, the Study Abroad programs are no exception from protection against sexual discrimination.
Uncertainties may be eliminated through the legal education of students. According to the examples above, two main reasons for uncertainty were the lack of student’s knowledge of legal protection under Title IX, and the uncomprehensive definition of crimes while in Study Abroad. The first recommendation in this section is to acknowledge, customize and integrate the instituonal response to Ms. McGunagle’s case. The Vice Provost for Institutional Equity and Diversity at Princeton, advises that protections under Title IX would be extended to international programs which include Study Abroad and International Students Services. There should be round the clock access to an on campus sexual harassment hot line with information and advisement on immediate action to be taken after the assault. The second recommendation in this section is for the Study Abroad advisement to be wide opened in clarifying multiple possibilities of crime. While it is impossible to exhaust all possible crimes during Study Abroad orientation, it is advisable to pre-analyze the cultural and social context in which a program would take place. Each Study Abroad program shall have its multiple pre-departure orientations as each program would take place in a different geographical location within a continent and a country. Nonetheless, all Study Abroad orientations should include Title IX advisement.
New regulations in the context of Study Abroad. New regulations for Title IX protections at colleges and universities will be in effect starting August 14th, 2020. According to various institutional advocates, the new regulations disadvantage the survivors while advantaging the aggressors in sexual assaults and discriminations. Those accused of sexual assaults should be considered innocent until institutions provide open hearings and cross-examination of both parties involved in the assault. The new regulations, therefore, may reinforce that Title IX protections are not easy to apply to programs held outside of the US territory since in many cases the assaulters are foreign individuals outside of the educational programs.
The recommendation under this section is to acknowledge that there’s no evidence in so far that restricts the institution from offering protection under Title IX to Study Abroad participants. Current global issues should be also taken in consideration as in the amid of COVID 19 Study Abroad programs have been suspended in the traditional form and are aimed to be offered virtually. The institution, therefore, should make protections under Title IX mandatory for Study Abroad offered at physical locations, as well as for all students, domestic and foreign, who are enrolled in on line classes. Further, to avoid institutional liability related to Title IX for Study Abroad programs, a criminal background check should be conducted to all administrators of the program which include professors and their assistants, local cultural guides, chaperones, language interpreters and students.
Conclusion
In order for the recommendations to become part of the institutional policy and be enforced, the following should be reiterated:
a. the language of Title IX may be perceived broad and opened to interpretations; however, Section 34 CFR 106.31 in The Code of Federal Regulations enforce the fact that no academic program is considered as an exception for protections under this Amendment;
b.Study Abroad programs run by colleges and universities are conducted outside of US territory and crimes committed during such programs may be subjects to international and local laws. However, these programs are administered by a US institution and therefore, students who participate are “persons in the United States”, they shall not be sexually discriminated against equal opportunity to such a program and they shall be protected under Title IX Amendment;
c. Congress legislation may be applied extraterritorially under certain circumstances which may be analyzed on case to case basis.