Advocates Urge Government to Clarify Title IX's Application to Social Media Sites Like Yik Yak

The Chronicle of Higher Education reported yesterday on recent efforts to clarify Title IX's application to sexual and other forms of harassment perpetrated by anonymous users of social media sites like Yik Yak.  A letter to the Department of Education signed by over 70 advocacy groups presented research and examples to illustrate the problem of social media harassment, where the anonymity of such fora allows users to post comments that range from rude to hostile, including actual threats of bodily harm, without any accountability. The advocates call on the Department of Education to issue guidance that specifically addresses schools' and universities' legal obligation to address harassment that occurs on such forums.

The Department of Education already insists that harassment that utilizes technology such as cell phones and the Internet as actionable as long as it rises to the level of a hostile environment.  According to its 2010 guidance, "Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by the school."

The advocates' letter presented numerous examples of harassment on Yik Yak that rises to this level.  Yet, they argue, many schools have taken the position that there is nothing they can do to address harassment that occurs in this form due to the anonymity of the postings.  They also suggest that the Department of Education address schools' concerns about students' constitutional rights to free speech, by clarifying when online harassment crosses the line from protected to nonprotected conduct, and affirming schools' obligations to address the latter.  The letter contained specific suggestions for the Department of Education to consider including in such guidance, including responses like:

• investigating all reports of online harassment, whether or not perpetrators are “anonymous”;
• initiating campus disciplinary proceedings against individuals engaging in online harassment;
• geo-fencing of anonymous social media applications that are used to threaten, intimidate, or harass students; 
• barring the use of campus wi-fi to view or post to these applications; 
• prompt reporting of anonymous online threats of physical and sexual violence to police and the social media application, as appropriate; 
• monitoring social media applications to ensure immediate response to online harassment and intimidation; providing counseling and appropriate accommodations for targets of online harassment and intimidation and others affected by it; and
• conducting mandatory training or intervention programs for students, faculty, and staff, including Title IX Coordinators and other appropriate administrators, on the use of these social media applications to engage in harassment and intimidation. 

I have no basis for predicting whether or not the Department of Education will respond to the advocates' suggestion and issue the guidance that they request.  But I can say that even in the absence of such guidance, the agency could still take the position that a school or university's indifference to Yik Yak harassment violates Title IX, which is already defined to require a response to actionable harassment  that occurs in cyberspace. So even if the Department does not formally endorse them, schools and universities should consider utilizing recommendations like these in appropriate circumstances. From a compliance standpoint, doing nothing is probably already a risky course of action.

Sexual harassment roundup

Here is a roundup of some recent judicial decisions in Title IX cases alleging institutional liability for sexual harassment. 

A cheerleading coach's teasing of a female student's "saggy boobs" was inappropriate but not sufficiently severe to constitute sexual harassment within the meaning of Title IX.  Nor was the school district deliberately indifferent to the student's complaint, as school officials investigated the matter, suspended the coach for two weeks, and reprimanded her.  Doe v. Georgetown County Sch. Dist., 2015 WL 5923610 (D.S.C. Oct. 9, 2015).

A school district was not liable to a female student for sexual assault by a male student in the same special education program. School officials were not alleged to have notice of any past instances of sexual the male student's sexual misconduct, except one incident in which he had asked a female classmate if he could touch her (and did not, apparently, touch her). Even if this incident could be found to have put school officials on notice that he was a sexual threat to other students, school officials did not respond to that incident with deliberate indifference but instead subjected the student to enhanced supervision and separated him from female student he had propositioned.  Swanger v. Warrior Run Sch. Dist., 2015 WL 5830068 (M.D. Pa. Sept. 30, 2015).

Pervasive bullying that included keying the word "cunt" into a female classmate's car, but that otherwise involved no reference to sex or gender, did not constitute harassment "because of sex" for purposes of Title IX. Hankey v. Town of Concord-Carlisle, 2015 WL 5737136 (D. Mass. Sept. 30, 2015).

A federal judge in Ohio refused to dismiss a Title IX claim against a vocational college after determining material facts were in dispute that could, if proven, give rise to liability for sexual abuse of a student by a culinary arts instructor. The plaintiff, who claims she was seduced by the instructor into a sexual relationship, alleged that the college had notice of the instructor's bad boundaries, including inappropriate comments and touching.  However, a trial is warranted to determine precisely how much of the instructor's earlier bad behavior had been reported, and, consequently, whether the college's response -- which included investigating the instructor and subjecting him to some monitoring, but not removing him from the classroom or limiting his contact with students -- was tantamount to indifference.  Doe v. Springfield-Clark Career Technology Center, 2015 WL 5729327 (S.D. Ohio Sept. 30, 2015).

A university was not deliberately indifferent to a graduate student's report of sexual harassment by a professor, having responded to the student's complaint by conducting an investigation, changing her work assignment and office location, and supervising future meetings between the student and professor.  The student was, however, allowed to continue to litigate her Title VII hostile environment claim, because Title VII does not use a deliberate indifferent standard.  The fact that the professor was the student's supervisor puts the burden on the university to prove to a jury that they exercised "reasonable care" to prevent/address the harassment and that (by quitting just one week after filing her complaint) the complainant herself unreasonably failed to avail herself of preventive or corrective measures adopted by the university. Jenkins v. University of Minnesota, 2015 WL 5521746 (D. Minn. Sept. 18, 2015).

Two More Disciplined Student Suits Dismissed

We've been carefully tracking the efforts of students who are disciplined for sexual assault to use Title IX and other law to challenge their university's disciplinary hearing process and result. Here are two more cases to add to the file.

In the first case, a male student was expelled from the University of Missouri after a disciplinary hearing found him responsible for "nonconsensual sexual contact" and other violations of the code of conduct.  Prior to the hearing, the student fired the attorney he had initially hired to assist him in the process, and the university accommodated his first request to postpone the hearing to allow him to seek a replacement. But the university denied the student's second request, made on the day of the hearing, to postpone yet again.  The student then opted not to participate in the hearing.

The student sued the university, alleging that it had discriminated against him on the basis of sex in violation of Title IX, but the court dismissed this claim after determining he had "unquestionably failed" to allege any facts that suggested gender bias on the part of university officials. His argument appeared to have been that the complainant in his case (and complainants in general), are treated more favorably than he was (and respondents in general). Yet, in addition to vagueness, this argument failed for not being targeted at sex discrimination. As the court noted, "[e]ven if the University treated the female student more favorably than the Plaintiff, during the disciplinary process, 'the mere fact that Plaintiff is male and [the alleged victim] is female does not suggest that the disparate treatment was because of Plaintiff's sex.'"  Nor is "demonstrating that a university official is biased in favor of the alleged victims of sexual assault claims, and against the alleged perpetrators... the equivalent of demonstrating bias against male students." The court also dismissed the plaintiff's due process claim, noting that the plaintiff "was afforded adequate procedural rights by Defendants by way of notice of the charges, identification of the violations charged, and an opportunity to present his case even though he refused to participate."  All other claims in the plaintiffs' complaint were similarly dismissed.

In the second case, a male student was accused of rape by a female classmate at Augustana University in South Dakota.  The university suspended him while it conducted its investigation and hearing process.  The student asked the university to postpone its hearing until the criminal charges he was also facing had been resolved, but the university refused. So the student sued, seeking a preliminary injunction that would force the university to wait to pursue disciplinary action.  But last week the federal court in South Dakota refused to grant the injunction after determining that the plaintiff did not have a "likelihood of success on the merits," which is the key inquiry in  preliminary injunction cases.  The court predicted that his Title IX claims would fail because the plaintiff did not allege an erroneous outcome, as his claims lacked both an "outcome" (because the hearing hasn't happened yet) and specific allegations of gender bias. Like the case discussed above, the court refused to consider arguments about favoritism to complainants as tantamount to discrimination because of sex.  And while the plaintiff alleged that the university's procedures "in practice" only apply to males, the court read this as a disparate impact claim which is not actionable under Title IX. 

The court also predicted that the plaintiff would lose on the merits of his due process claim, because Augustana University is private and not a state actor, as well as his breach of contract claim.  Related to his contract theory, the plaintiff alleged that the university breached its obligation of "good faith and fair dealing" by imposing on him the dilemma that he faces: participate in the disciplinary hearing (and possibly incriminate himself in ways that could be used against him in the criminal matter) or not participate in the disciplinary hearing (and forego the opportunity to defend himself).  The court acknowledged the dilemma, but did not find it to be bad faith on the university's part. As the court has denied the motion for injunction, the plaintiff will now have to choose between participating in the hearing and avoiding the risk of incriminating himself.

Salau v. Denton,  2015 WL 5885641 (W.D. Mo. Oct. 8, 2015).
Tsuruta v. Augustana University, 2015  WL 5838602 (D.S.D. Oct. 7, 2015).