Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance and the Persistent Problem of Campus Peer Sexual Violence

Abstract

This Article discusses why two laws that seek to prevent and end sexual violence between students on college campuses, Title IX of the Educational Amendments of 1972 ("Title IX") and the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act ("Clery Act'), are failing to fulfill this goal and how these legal regimes can be improved to reach their objectives. It explicates how Title IX and the Clery Act ignore or exacerbate a series of "information problems" that create incentives for schools to "bury their heads in the sand" with regard to campus peer sexual violence. These information problems include: (1) the damage to a school's public image that can come from increased reporting of the violence; (2) the persistent myth that such violence is committed mainly by strangers; (3) the lack of awareness by most school officials about the violence and a school's legal obligations with regard to preventing the violence; and (4) the prohibitively expensive broad-based education and training that correcting such information problems would require. Several legal deficiencies emerge from this examination, including: (1) problems arising from the "actual notice" prong of the test created by the Supreme Court in Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education; (2) problems related to the Department of Education's ("DOE's") administrative enforcement of Title IX; and (3) problems with the campus crime reporting provisions of the Clery Act. This Article discusses each deficiency in turn, how each serves to enable schools' lack of knowledge and avoidance of knowledge about peer sexual violence and how each either fails to solve or exacerbates the information problems faced by schools, students, and parents. Finally, this Article concludes with a series of recommendations for changes that should be made to Title IX, the Clery Act, and their enforcement regimes to address these information problems and ultimately to prevent and end the persistent problem of campus peer sexual violence.

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