Thursday, October 22, 2015

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.