Another legal headache at Penn State: Title IX

Among the legal questions still swirling around Penn State, one has drawn little attention but could pose a threat to the university: Did the school's handling of sex abuse allegations against assistant football coach Jerry Sandusky violate the federal Title IX gender discrimination law?

Title IX could be in play because the 40-year-old law — most commonly associated with access for girls and women to sports teams — has become the main framework governing how colleges and universities must respond to reports of sexual assault and ensure a safe learning environment for students.

As Penn State tries to move past the scandal after Sandusky's trial, the devastating Freeh Report and unprecedented NCAA penalties — the football team opens play Saturday —Title IX is potentially more than a legal afterthought. The reason: Not only have Title IX lawsuits produced some of the most expensive judgments against universities in recent years, but the law allows for the possibility — however unlikely — that a university's access to all federal dollars could be cut off.

In reality, experts say, it's unimaginable the feds would impose what some call the "academic death penalty" available under Title IX to shut down research and cripple a university that educates and employs tens of thousands of people — in an election-year battleground state, no less — who had no involvement with the scandal. Nor is Penn State's accreditation, also required for receiving federal funds, considered in jeopardy despite a recent warning from its accrediting agency.

But while the Department of Education Office for Civil Rights (OCR) has never cut off a college's access to federal dollars over Title IX compliance, it's also never seen a case like Penn State, with an alleged conspiracy by top university officials to conceal evidence of sexual assault, and with such destructive consequences.

The Obama administration has been aggressively using Title IX to push colleges and universities to take sexual violence on their campuses more seriously, and laid out detailed requirements on compliance last year. At the very least, OCR faces a tough question: If it won't make at least partial use of the hammer Congress handed it to enforce Title IX — in a case alleging such flagrant, longstanding and consequential misconduct by top university officials — is it sending a message to other colleges that it never will?

The strong sanctions imposed on Penn State by the NCAA could also pressure the Department of Education to follow with strong medicine.

"In practice, I don't see how (the NCAA penalty) couldn't influence their thinking," said Terry Hartle, senior vice president at the American Council on Education. The NCAA's unprecedented sanctions combined with devastating details of Sandusky's serial abuse in the Freeh Report "probably raised the stakes for the other actors who will be looking at Penn State."

Federal student aid (grants and loans) contributed about $700 million to Penn State's $4.3 billion operating budget last year, and federal research more than $470 million. Losing those annual funds would dwarf the $60 million penalty imposed by the NCAA and even Penn State's likely bill from civil lawsuits.

The Education Department has not yet opened a formal Title IX inquiry as part of its broad-based investigation into Penn State, but hasn't ruled it out, said spokesman Justin Hamilton. He confirmed it is evaluating a request, from legal groups including the Women's Sports Foundation and the ACLU, to open a Title IX inquiry. Hamilton said the department, which is already investigating possible violations of the Clery Act for failing to report campus crimes, would investigate "all potential sexual offense issues" at Penn State, including the university's response to sexual assault cases unrelated to Sandusky's.

"I think there's a significant chance (the department) will act at some point, but my best instinct is they will most likely wait to see how some of the criminal investigations unfold first," said Peter Lake, an expert in higher education law at Stetson University College of Law in Florida. He added the department would do its own investigation and wouldn't rely on the Freeh Report, which was commissioned by the university, and whose findings have been vehemently criticized by former Penn State president Graham Spanier.

The circumstances of the Penn State case would make it an unusual Title IX case — notably because Sandusky's victims weren't students or employees. But that doesn't get the university off the hook, says Nancy Hogshead-Makar, a professor at Florida Coastal School of Law and senior director of advocacy at the Women's Sports Foundation, one of the groups requesting the Title IX investigation. The law's language protects any "person" from harassment and seems to apply to anyone on campus (such as visiting sports teams), though the guidance is fuzzy.

But if the case is atypical in some ways, Hogshead-Makar and others argue that Title IX's purpose is to forestall the kind of atmosphere described in the Freeh Report: A janitor afraid to report witnessing a sexual assault, administrators quietly handling misconduct reports on their own, and an athletic program addressing discipline outside the normal university procedures. She contends the actions of Penn State's top administrators amount to precisely the kind of "deliberate indifference" that's a key legal standard in Title IX cases.

Lake, the Stetson professor, who had no involvement in the request to OCR, agreed that if the allegations in the Freeh report are true "there's enough evidence to suggest you had a culture that was at least ripe with the potential to do the kinds of things Title IX is designed to prevent."

Furthermore, the groups' request for a Title IX inquiry goes beyond the Sandusky case, for instance referencing a 2002 incident in which a Penn State football player suspended for two semesters was still allowed to play in a January bowl game. The group is asking Penn State to investigate if the university violated civil rights law by treating athletes differently from other students — acceptable for most infractions but explicitly prohibited by Title IX in sexual assault cases.

Penn State spokeswoman Lisa Powers said the university wouldn't speculate on any possible future investigation. She said the university was cooperating with and awaiting the results of a Clery Act audit by the department.

While possible Clery Act violations at Penn State have attracted more attention, Title IX packs a greater potential financial punch. Clery Act fines have reached as high as $350,000 but are capped at $27,500 per infraction. Clery Act violations can also cost schools access to federal financial aid, but in Title IX all federal dollars could be at risk.

Typically, however, OCR Title IX investigations end with resolution agreements in which colleges agree to policy changes — designating Title IX coordinators, publicizing Title IX resources to students. OCR has shown little inclination to punish schools.

But plaintiffs may feel differently. Title IX claims could be attached to civil lawsuits, and judgments in such cases have exploded in recent years. The University of Colorado faced a $2.85 million Title IX verdict stemming from the rape of two students by football recruits and players in 2001, with a court holding the university's program created a dangerous culture for sexual assault. That case stemmed from a single incident and victim; Sandusky was convicted in June of sexually abusing 10 boys. The verdict in a California State University-Fresno Title IX discrimination case ran to $19.1 million, though later reduced to $6.6 million.

University of Pittsburgh law professor Deborah Brake said it's unclear whether Penn State litigants would include Title IX claims or that Penn State will take any kind of financial hit stemming from Title IX. But to avoid such a penalty, the university could be forced to make major changes dictated by the OCR, perhaps even accepting outside oversight of sexual assault procedures.

As with the $60 million penalty imposed on Penn State by the NCAA — which the university can't cut sports teams to pay for — any Title IX penalties would come at least indirectly out of the academic side of the university.

"I would like to see it considered," Hogshead-Makar said when asked if she would like to see OCR at least partly deprive Penn State of access to federal dollars. "I would like a serious investigation. If the OCR feels the school has not done enough to comply with federal law then they should do it."

She says Penn State proves the multi-million dollar Title IX verdicts in the Colorado case, plus settlements in other cases such as one involving the University of Georgia's football program, haven't sufficiently scared universities into reining in their athletic programs and taking seriously their obligations to prevent sexual assault.

"I want the message to be strong enough that it sends a message to the entire school," she said. "I want the physics department to make sure they have an investment in making sure athletics is on the straight and narrow."

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