Cyberbullying is nothing new. A majority of teens have experienced the phenomenon and college campuses certainly are not immune. Just because something is common does not make it simple to deal with, however. And this is especially true with cyberbullying when it is sex-based, because the complications of Title IX come into play. What are the key Title IX requirements to keep in mind when faced with a sex-based cyberbullying complaint?
Use The Right Policy
It may seem obvious that you should use your sexual harassment policy and procedures to respond to complaints of sex-based cyberbullying. But many schools, colleges, and universities have a separate policy governing bullying, and it can sometimes be confusing as to which policy is the appropriate one to use.
Our rule of thumb? Your bullying policy should be used for conduct that does not implicate a civil right. That mean if what someone is alleging would be discrimination (including harassment) or retaliation based on sex, race, color, national origin, age, or disability, you should use the policy or procedure that addresses the type of discrimination or retaliation alleged.
So when is Title IX implicated in a cyberbullying case? Under the current OCR standard, if the conduct alleged (1) is based on sex; and (2) is sufficiently severe persistent, or pervasive that it adversely affects a student’s education or creates a hostile or abusive educational environment, you should pull out your sexual harassment policy and procedure to investigate. Remember that under the current OCR standard, even a single incident of sex-based conduct, if severe enough, could constitute sexual harassment. And did you notice that we highlighted “alleged” above? When deciding which policy to use, it is irrelevant what evidence exists to prove an allegation. All that matters is what is alleged. If what the reporting party said occur would, if true, implicate Title IX, your bullying policy is probably not the right place to land.
Why does any of this matter? Because the procedures required under the bullying policy will often be different from those described in your sexual harassment procedure. Even if you conduct a thorough investigation into sex-based cyberbullying, OCR could still find a technical violation of Title IX (and drag you into a lengthy monitoring period) if you do not check all the procedural boxes in your Title IX policy for every sexual harassment complaint.
But It Happened Off Campus!
Many administrators are troubled by the thought of applying a sexual harassment policy or procedure to off-campus online misconduct. In the public K-12 realm, we often think of the theories of “nexus” and “material and substantial disruption” in discipline situations involving off-campus misconduct, and it is quite common to find that a school lacks the authority to discipline a student for off-campus online speech that does not have a sufficient negative impact on the school environment. In the higher education realm, students are often living on campus and so misconduct often occurs within the clear disciplinary jurisdiction of the school. But students move and spend time off campus, leading to similar questions of jurisdiction in some discipline cases under theories of due process.
The analysis of off-campus online misconduct that would, if true, rise to the level of sexual harassment is a little different—and arguably more lenient—than our normal discipline analysis for off-campus online speech. Under Title IX, there does not need to be a disruption to the whole campus or school for there to be sufficient on-campus effects to justify a response. Instead, under Title IX, a school must respond if the online conduct creates a hostile environment for the alleged victim. Students can and will sometimes experience on-campus effects of off-campus, sex-based cyberbullying, so there is no black or white rule that conduct is outside of a school’s reach just because it occurred off school grounds.
That does not mean that a school will always be able to discipline a student found to have engaged in cyberbullying in violation of the sexual harassment policy. Based on the First Amendment and due process issues that come into play in all off-campus discipline cases, there may be limits on whether discipline can be imposed. But that does not mean that a school can refuse to investigate. And even if discipline cannot be imposed against a responding party, current OCR guidelines may require other responses to sex-based conduct that violates a school’s sexual harassment policy.
The clear takeaway: Respecting a student’s freedom of speech or due process rights is not an excuse for failure to promptly, thoroughly, and adequately respond to sexual misconduct that has an on-campus effect on a reporting student, even if that conduct occurred off campus and online.
Prevention is Key
As with any issue involving Title IX, an ounce of prevention is worth a pound of cure. Students can have difficulty understanding when text and other electronic messages cross a line. As the UK Anti-Bullying Alliance explains:
Knowledge is power. All children need support to understand about puberty and sexual development; to recognise harmful sexual behaviour; to learn about consent, and to communicate concerns about sexual bullying.
This need for knowledge and reinforcement of norms and expectations does not stop when a student graduates from high school or legally becomes an adult. Schools, colleges, and universities have an important role to play in preventing sexual harassment online.
We know this can be a tricky analysis, which is why we always encourage our clients to call us for help as they work their way through reports of sex-based (or really any type of) cyberbullying. For more information about the distinctions regarding bullying and sexual harassment, contact the authors of this post or any member of our Franczek Title IX team.