The issue comes up all too frequently—a student shows up to an administrator’s office to report that they found something terrible about them online. Sometimes it’s sexually harassing language and bullying. Or it’s a person sharing photos or videos of their ex online after a breakup. Or, on the other end of the spectrum, perhaps it’s an account on which people can anonymously “expose” accused perpetrators of sexual harassment, including sexual violence and assault—and the alleged perpetrators report that it’s just not true. How do educational leaders distinguish between sexual harassment and more benign activity on Instagram, Snapchat, (the newly reemerging) Yik Yak, and the like?

As an initial matter, I hope that everyone knows by now how important it is to report concerns about sexual misconduct on social media to your institution’s Title IX Coordinator. All K-12 employees must report, and other “officials with authority” as designated in an institution’s policies must do so, as well. Even if an administrator is not required to report, unless they are a specifically-designated confidential reporter, there is often more risk in holding onto information about this kind of conduct than reporting it to the Title IX Coordinator.

When the conduct makes its way to the Title IX Coordinator, however, what do they do? Two questions often stump administrators when they face this type of challenge: Is the conduct in the educational program or activity, and is it pervasive.

Program or Activity

OCR’s June 2021 Title IX Sexual Harassment Q&A reminds us that for conduct to fall under Title IX’s new sexual harassment umbrella, the conduct must occur within the educational program or activity of the school. Under the regulations, that standard is met if the school exercises substantial control over both the alleged perpetrator and the context in which the sexual harassment occurred. The preamble recognized no per se distinction between sexual harassment “occurring in person versus online.” As the 2021 Q&A explains, the school must make a fact-specific determination to decide whether it has substantial control over the respondent and the context of the harassment.

It is much more likely that the conduct will be sufficiently within the control of the school to fall under its program or activity where the conduct occurs through one of the three following circumstances:

• Through personal electronic devices and accounts on school grounds
• Through personal accounts on school-issued networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of, the school, or
• During remote learning.

Even when the conduct occurs entirely on the respondent’s own time and through personal devices and networks, there are circumstances where Title IX may cover the conduct. In analyzing whether the school has sufficient control, it can often be helpful to look at how the school would handle a complaint of non-sex-based conduct of a similar nature to see if there is sufficient control to justify the use of Title IX. If a school would discipline non-sex-based speech occurring online and off-campus, it arguably has sufficient control to do so for sex-based speech, as well—a level of control that might trigger Title IX.

Pervasiveness

Even if the conduct is sufficiently within the school’s control, questions of pervasiveness often arise. What if there is just one post on Instagram—is that sufficiently pervasive to bring the conduct under the Title IX sexual harassment definition?

The short answer is: “It may be.” Take the 2019 case of T.C. v. Metro Government of Nashville, a K-12 case from a federal court in the Middle District of Tennessee. The case dealt with conduct arising well before the new Title IX rules went into effect, but the court applied the same “severe, pervasive, and objectively offensive” standard subsequently adopted in the rules. Specifically, in 2016 and 2017, at least four female Metropolitan Nashville Public School students, all minors, were videotaped by other students while engaged in sexual encounters with male students on the premises of their respective MNPS schools. The resulting video files were circulated among the students’ peers electronically. The female students’ parents sued the school district for failing to respond adequately to the reported behavior. Among other arguments, the school claimed the behavior was pervasive because there was no evidence of how widely the videos had been circulated within the school community.

In discussing the pervasiveness prong of the sexual harassment definition, the court noted that it is not always necessary for conduct to occur more than once to be pervasive. Specifically, in cases involving rape, courts have repeatedly held that such severe conduct does not need to happen more than once to be “pervasive.” The court noted that “while the cases currently before the court do not include allegations of forcible rape, they do involve substantial violations of the students’ sexual autonomy, which is relevant to just how pervasive the ensuing conduct needed to be to rise to the level of actionable harassment.”

The court also noted that it was inaccurate “to characterize these cases as involving simple, isolated events. Being taped during sexual activity without permission would be an isolated event. The video’s being sent to another person is a second event. The next transmission is a third. Although the evidence does not (and likely never could) show how widely the plaintiffs’ videos were circulated, there is ample evidence that the circulation, or at least the availability, of the videos was widespread. Indeed, the impossibility of knowing how widely the videos were disseminated is part of why the conduct was so serious. In a contemporary high school, there is little that is more ‘pervasive’ than electronic communication.”

The takeaway: Perhaps we don’t need to wait for evidence that something posted online has hit the community like a bomb to determine that a pervasive impact has occurred under Title IX. There is much room for courts to disagree about the reach of Title IX, but most schools understandably don’t want to be a test case on these issues.

Moreover, it’s always important to remember that the Title IX rules can be used for conduct that is not “Title IX sexual harassment” in a program or activity or against a person in the United States. You must use the rules for conduct that does meet those jurisdictional threshold requirements, but you can use them for conduct that does not. By contrast, if you fail to use the Title IX process for conduct that does meet the definition of Title IX sexual harassment, you run a greater risk of being found to have responded with deliberate indifference to a report. Perhaps, for this reason, many schools will err on the side of overinclusively interpreting the “Title IX sexual harassment” definition rather than underinclusively doing so.

There will always be the need for a close review of the specifics of a case to determine if Instas, Snaps, or Yik Yaks are Title IX Sexual Harassment. But hopefully, this post will give some initial guidance on this often tough decision. And it’s always important to remember that just because conduct does not fall under the Title IX sexual harassment grievance process does not mean you should ignore it. If you need further assistance determining if off-campus, online conduct falls under Title IX, contact our team at titleIX@thlaw.com.