It’s happening across the country at all levels of education. Students from schools, colleges, and universities are taking to Twitter, Instagram, and other social media and online platforms to call out other students or employees for alleged sexual harassment and abuse. A recent situation involving the University of Utah is just one example. The university suspended Greek activity after two students reported sexual assault and others posted anonymously about their experiences online. A similar account at Atascadero High School in California raised similar issues (pages 4-5) and drew significant attention. Of course, call-outs are not limited to the online sphere; there are plenty of cases in which steps are taken to call out or cancel individuals alleged of sexual harassment in the brick and mortar schoolhouse. There is no doubt that a call-out can put a school in a difficult predicament, especially when social media magnifies the reach. How can—and should—schools respond when an alleged perpetrator believes call-ous or cancel posts cross the line into harassment or bullying?

Often, individuals alleging sexual assault take to social media seeking vigilante justice for conduct they believe their schools will not address adequately. On the other end of the spectrum, activists for respondent rights see call-out culture as a way to destroy the lives of innocent people—usually, but not always, young men—without any due process. Assessing what response, if any, is required when such a post is reported to a school, college, or university will require a case-specific analysis. Nonetheless, there are some fundamentals that school leaders can keep in mind. Here are some of those factors:

Knock Knock. Who’s There? If a call-out is truly anonymous, the ability of a school to regulate or discipline the speech may be much more limited. If someone reports bullying based on an anonymous post that, if true, would violate policy, the educational institution should make a good faith effort to identify the alleged perpetrator. Involving law enforcement where reported conduct could break the law may be helpful.

But, in many cases, the poster will not be identifiable. In some rare cases, a school can investigate and issue a finding, even if there is no one against whom to impose consequences if a violation is found. Whether or not an investigation occurs, schools should lean on supportive measures to address the reporting party’s concerns. Supportive measures like counseling, academic assistance, and broad community responses not aimed at a particular individual do not usually implicate First Amendment concerns. They can and should be used liberally in any case in which an investigation cannot be conducted, including those involving a truly anonymous source.

Evaluate Before You Investigate. Suppose you receive a complaint against an identifiable student, employee, or third party who is part of your program or activity. In that case, you should consider whether the First Amendment protects the speech alleged before you do anything, including investigate. Schools are limited in how they respond to First Amendment protected speech. However, the First Amendment does not protect all speech from discipline.

The analysis required to determine if the First Amendment applies is challenging. For student-on-student speech occurring off-campus, for example, schools must first contend with the newest Supreme Court decision addressing free speech in schools, Mahanoy Area School District v. B.L. As my colleague, Chris Gibert explained over at his fabulous First Amendment blog The Oldest Rule, although Mahanoy is a K-12 case, it likely applies to higher education, as well, so this analysis should be a first step at any educational level. It does not so much set forth a test for when off-campus conduct can be addressed, but rather “simply recognizes that schools should have authority to discipline students for at least some categories of off-campus (and online) speech,” but not all or even maybe much. Mahanoy specifically recognized that severe bullying or harassment targeted at particular individuals and threats aimed at teachers or students are among the types of off-campus speech that are at least potentially subject to school regulation.

Even speech that meets Mahanoy’s  “not-nexus-nexus” requirement, as I have taken to calling it, must create a sufficient disruption or reasonably foreseeable risk thereof to be regulated. When considering whether conduct is severe bullying or harassment that would create such a disruption under this Tinker test, schools can look to the standards for harassment defined under relevant federal law. Title IX prohibits unwelcome conduct based on sex that is “so severe, pervasive, and objectively offensive” that it effectively denies the target equal access to the school’s education program or activity. If a call-out or cancel post meets that relatively high standard or a similar recognized standard for discrimination or harassment based on another protected status, the First Amendment may allow a school to impose consequences for the speech.

For allegations against an employee, schools should first determine whether the employee has any academic freedom rights that must be addressed. Academic freedom is almost exclusively an issue in higher education; the theory allows faculty great latitude when engaging in teaching and scholarship. For other conduct, most courts deem speech by an employee speaking as a private citizen on a matter of public concern protected by the First Amendment. Under this Pickering-Connick + Garcetti test, even protected speech can be restrained if the employer’s interest in an efficient, harmonious workplace outweighs the pubic employee’s right to speak as a private citizen on a public concern. Like under the Tinker test, conduct prohibited by federal civil rights laws could overcome academic freedom and First Amendment free speech protections for public employees

Only once it is determined that the conduct, as alleged, is not protected by the First Amendment would an investigation begin. And even then, the Title IX Coordinator or their designee should continue to assess the potential application of the First Amendment to the case throughout, dismissing if facts ever establish that the First Amendment protections apply. Remember, any allegation of “Title IX Sexual Harassment” in an education program or activity and against a person in the U.S. must be addressed using the Title IX grievance process required by the 2020 Title IX regulations. That would include a report that a call-out or cancel post was sexual harassment.

What’s in a Name? For student-on-student harassment, likely a lot. At least one court has addressed a brick-and-mortar call-out situation suggested that a lot depends on whether a student is being called out by name when deciding whether a school can impose consequences for a call-out. In a 2019 case, M. v. Cape Elizabeth School District, the U.S. Court of Appeals for the First Circuit held that a school violated the First Amendment by suspending a student who posted a sticky note in the girl” bathroom stating, “There’s a rapist in our school and you know who it is.”. The school believed it had the right to discipline the female student because a male student reported feeling the note referred to him and that he was being bullied. The court disagreed. It pointed out that the female student had not posted the male student’s name and that the note was not clearly about him. The court also noted that the note arguably focused on the school—saying the “you” in the note was the school, which the female student believed had not done enough to address a rape of which it arguably was aware. Accordingly, the court found that the school violated the First Amendment by disciplining the female student based on bullying concerns.

Of course, as with anonymous posts, even if the First Amendment protects a poster’s speech, the school, college, or university should consider ways to support the target of a post. Consider whether broad communications to the relevant community should be undertaken in addition to supportive measures focused on the individual target of a post.

These and other factors can help schools navigate the murky First Amendment waters around call-outs, cancel culture, and Title IX. Particularly where a call-out or cancel post aims to highlight a school’s purported failure to address sexual harassment complaints, the speech is likely to be seen as a political statement and not defamatory, harassing, or bullying speech that can lead to consequences. As the court in A.M. explained, such speech is on “a topic that is decidedly political.” If, by contrast, the call-out or cancel post calls out an individual and subjects them to ongoing, serious, and impactful harassment that a reasonable person would find offensive, the school will have more leeway to respond.

For more information on how to properly respond when a member of your community reports a call-out or cancel culture post, contact Thompson & Horton’s Title IX team at titleIX@thlaw.com.