Title IX's Reproductive Remedies

Abstract

Abstract Despite the rich public debate surrounding sexual assault at colleges and universities, the problem of pregnancy among survivors has received little attention. At the same time, institutions of higher education continue to resist compliance with federal law mandating insurance coverage of reproductive health care for their students and employees. For students learning and growing in college environments where rape is far too common, access to contraception and emergency contraception is critical. This Note argues that Title TX, the civil rights law prohibiting sex discrimination in federally funded educational programs, requires colleges and universities to make contraception and emergency contraception available on campus to student survivors of sexual assault. When pregnancy resulting from rape is conceptualized as an injury, Title TX obliges schools to remedy that injury and prevent its recurrence by ensuring contraceptive access on campus. In this light, Title TX emerges as a vehicle to address both sexual assault and unwanted pregnancy--dual barriers to the equal educational opportunity envisioned by Title TX. Finally, this reading of Title TX presents an opportunity not only to make common sense health care and education policy reforms, but also to revisit broader doctrinal implications for reproductive justice as an issue of sex equality. INTRODUCTION Many voices--administrators, legal scholars, student survivors, and the accused--are participating in the ongoing national conversation about campus sexual assault. Yet little attention has been paid to the occurrence of pregnancy among survivors and their choices with respect to their pregnancies. Colleges and universities are under federal obligation to confront the prevalence of sexual violence on their campuses, to remedy its effects, and to accommodate survivors in various ways. While many schools are taking increasing steps to comply with this mandate, others remain under federal oversight for what reformers have identified as an enabling culture of sexual assault. At the same time, many educational institutions in both camps resist compliance with existing federal laws requiring the provision of contraceptive coverage to their students. Rape can have a number of lasting consequences--among them, an unwanted pregnancy. Despite the interrelatedness of rape and pregnancy, even many campus sexual assault reformers have not emphasized the importance of student survivors' reproductive autonomy. Likewise, the prevalence of campus rape has not been significantly considered in policymaking debates about the role colleges and universities should perform in meeting their students' reproductive health needs. Without access to reproductive options--namely, contraception and emergency contraception (1)--student survivors can experience a twofold deprivation of control over their own bodies, all while entrusted to the care of their educational institutions. Title IX, (2) the federal civil rights statute that prohibits sex discrimination in education, is the legal mechanism for ensuring that schools respond to incidents of sexual assault on campus. Department of Education guidance interprets the statute to require federally funded schools to make accommodations for survivors, remedy the harmful effects of sexual assault, and prevent their recurrence. (3) But the guidance does not expressly require schools to ensure survivors' access to contraception and emergency contraception, crucial tools in remedying rape's potential effects. If pregnancy that results from rape is considered an injury--in the same category as bodily harm, emotional trauma, missed semesters, and other injuries for which Title IX can create institutional liability--then Title IX requires schools to help student survivors prevent and remedy that harm. This Note argues that by requiring federally funded schools to take action to redress and prevent harm that results from a hostile environment of sex discrimination, Title IX guarantees student survivors a right to reproductive health care access on campus--namely, no-cost access to contraception and emergency contraception. …