Brief Summary of Recent Issues Involving Title IX and Social Media

Social Media and Title IX are becoming closely interwoven. At times social medial sites have been used to harass  a student and/or create a hostile environment. Social media has also been used in support of a victim’s claims and the defense of an accused under Title IX.

A social media site like Yik Yak, which is supposedly anonymous,  may make it harder for a school to gather enough information to effectively stop and prevent hostile or harassing  behavior. Yet often times postings are forwarded from one student to another (many times on school email accounts) or photographed or re-posted on another site and do not really disappear from cyber space. Again, often times the harassing content is forwarded on school or campus grounds or looked at on school or campus grounds- something akin to graffiti on the bathroom walls.

“The issue is whether the harassment rises to a level that it denies or limits a student’s ability to participate in or benefit from the school’s program based on sex.” U.S. Department of Education Revised Sexual Harassment Guidance (2001).

“Sometimes harassment of a student by an employee in the school’s program does not take place in the context of the employee’s provision of aid, benefits, or services, but nevertheless is sufficiently serious to create a hostile educational environment. An example of this conduct might occur if a faculty member in the history department at a university, over the course of several weeks, repeatedly touches and makes sexually suggestive remarks to a graduate engineering student while waiting at a stop for the university shuttle bus, riding on the bus, and upon exiting the bus. As a result, the student stops using the campus shuttle and walks the very long distances between her classes. In this case, the school is not directly responsible for the harassing conduct because it did not occur in the context of the employee’s responsibilities for the provision of aid, benefits, or services to students. However, the conduct is sufficiently serious to deny or limit the student in her ability to participate in or benefit from the recipient’s program. Thus, the school has a duty, upon notice of the harassment,  to take prompt and effective action to stop the harassment and prevent its recurrence”. Id.

Likewise, in the social media context, the harassing behavior may not necessarily have been initiated on campus or taken place on campus, but if the harassing behavior interferes with the student’s ability to receive an education, the school can be liable.

When students or faculty act by posting on social media themselves, it can be used as evidence in opposition to dismiss a Title IX court case under Federal  Rule of Civil Procedure 12(b)(6). See ie., Doe v. University of Tennessee, 2016 WL2595795 (M.D.Tenn. 2016) (coach and athletic team posted photo supporting accused perpetrator on social media) and  Rex v. West Virginia School of Osteopathic Medicine, 119 F.Supp.2d 542 (S.D.W.Va. 2015) (students and faculty commented about Plaintiff’s rape on social media making it the subject of ridicule and mockery).

Finally, a student accused of sexual assault attempted to use a Facebook posting by the victim in support of his defense that the incident was consensual. In that case the university did not consider the Facebook posting as exculpatory in the due process hearing. See Yu v. Vassar College, 97 F.Supp.3d 448 (S.D.N.Y. 2015).

Stacey Greinke contributed to this posting.
This posting is not meant for legal advice.
If you believe you have been discriminated against, you should contact a qualified attorney in your state.