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.