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    4. Do colleges and universities have an obligation to investigate anonymous harassment via social media?

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    Alert / Higher Education Law Alert

    Do colleges and universities have an obligation to investigate anonymous harassment via social media?

    Nov 9, 2015

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    By Steven Richard

    With the rise of anonymous social media apps like Yik Yak, colleges and universities may be required to investigate and respond to reports of anonymous online harassment to comply with Title IX and other federal and state anti-discrimination laws. But investigative limitations and free-speech considerations may complicate institutions’ responses. This alert discusses a recent letter from a coalition of advocacy groups to the Department of Education requesting that it clarify colleges’ and universities’ obligations to address anonymous harassment and suggests steps that institutions can take when they receive reports of such harassment.

    Colleges and universities increasingly face reports of harassment perpetrated via social media, and some institutions have struggled to define and properly exercise their jurisdiction to address such reports—even when they know the identity of the alleged harasser. But what happens when allegations of harassment stem from anonymous posts on social media? As several recent incidents have illustrated, the rise of Yik Yak and other anonymous social-media applications has further complicated institutions’ obligation to respond to and investigate such allegations when they implicate federal or state anti-discrimination laws.

    Growing concern over colleges and universities’ responses to online harassment recently prompted a coalition of 72 women’s and civil-rights advocacy groups to call on the U.S. Department of Education’s Office for Civil Rights (“OCR”) to issue guidance on this vexing issue. In a letter to the Department, the groups urged it to remind colleges and universities of their obligations under Title IX of the Education Amendments of 1972 and Title VI of the Civil Rights Act of 1964 to promptly and effectively respond to harassment and threats based on sex, race, color or national origin—even when such harassment or threats are carried out anonymously online.

    Yik Yak and anonymous social media apps as tools of harassment

    The advocacy groups’ letter focuses on applications like Yik Yak, which have taken hold on many campuses and allow users to send anonymous messages to others within their school communities. According to the letter, Yik Yak use on campuses has exploded in the last two years, and is now found on about 1,600 college campuses. In contrast to apps like Facebook and Twitter, Yik Yak’s geolocation feature—which allows users to post and view comments, or “Yaks,” within a 1.5-mile radius—simultaneously cloaks users in anonymity and underscores their physical proximity.

    As the groups’ letter points out, these twin features of Yik Yak make it an especially problematic forum for threats and harassment: while those who are harassed anonymously over social media cannot identify their harasser, they are faced with the unsettling reality that their harasser is a nearby member of their campus community. Further, the anonymity afforded by apps like Yik Yak may embolden users to behave egregiously without accountability. Under extreme circumstances, this may lead to the creation of a hostile environment that requires institutional action under Title IX, Title VI or other state or federal laws. And in states where harassment via written or electronic communication is prohibited by law, it may even lead to criminal prosecution—if law enforcement officials can identify the perpetrator.

    Given Yik Yak’s potentially toxic effect on campus culture, some institutions have even considered banning the app by barring its use on campus Wi-Fi or by creating a “geofence” to restrict access based on a user’s location on campus. Others, however, argue that colleges and universities ought not to focus on restricting use of the app, but rather on addressing the campus cultural issues that may be raised by its use or misuse. And some have even pointed out that Yik Yak can also encourage community on campus and provide a forum for marginalized students—benefits that would vanish if schools blocked the app’s use altogether.

    Advocacy groups request OCR guidance on colleges and universities’ obligation to address anonymous online harassment

    In their letter to the Department of Education, the advocacy groups urge OCR to encourage action, rather than inaction, in the face of anonymous online harassment, and to “provide concrete examples of what kinds of actions might be appropriate.” They submit that schools’ obligation to address sexual and racial harassment is not suspended simply because such harassment takes place in a virtual forum, or even because the perpetrator may be difficult (if not impossible) to identify. Indeed, OCR previously noted in an October 26, 2010 “Dear Colleague” letter that harassing conduct over the Internet based on race, color, national origin, sex or disability may violate civil rights laws that OCR enforces. And as with other types of severe harassment on these bases, a school may be responsible for addressing online harassment when it knows or reasonably should have known about it.

    But online harassment—and especially anonymous online harassment—poses unique challenges for institutions, whose responses may be constrained by such factors as jurisdictional limitations, free-speech concerns and complications inherent in addressing an unknown perpetrator. The advocacy groups’ letter charges that “[m]any schools have shirked [their] legal obligations” to address actionable harassment “by citing vague First Amendment concerns.” Yet for public institutions, which courts consider state actors for purposes of First Amendment challenges, such concerns are very real. And even private colleges whose actions may fall outside of constitutional freedom-of-speech protections may be wary of cracking down on the exchange of ideas on campus, which many view as antithetical to their educational missions.

    Thus, where the advocacy groups’ letter urges OCR to “make clear that the First Amendment does not prevent schools from taking action to eliminate sex-and race-based harassment, whether that harassment occurs in-person or online,” it arguably oversimplifies the issue. While it may be true that actionable harassment or threats are not protected speech, the line between what is actionable and what is merely an offensive or unpopular opinion is sometimes difficult to draw. The groups’ letter itself unwittingly illustrates this challenge, as even some of the examples it cites of supposed unprotected harassment may fall into the latter category.

    “Doing nothing is always the wrong response”

    As the advocacy groups’ letter to the Department suggests, the challenges inherent in addressing anonymous speech do not excuse colleges and universities from their obligation to investigate and respond to allegations of harassment based on sex, race and/or national origin. In this regard, the written guidance from OCR that the advocacy groups’ letter seeks might help to clarify institutions’ roles in identifying and addressing harassment via social media. Yet even that guidance may not be conclusive—particularly for public institutions—until courts further develop a body of law that considers the appropriate parameters for schools’ responses.

    But whether or not OCR accepts the advocacy groups’ invitation to issue guidance on responding to anonymous online harassment based on sex or race, institutions should include such conduct within the scope of their investigation and disciplinary processes (see below for the link to our previous alert) and take appropriate action in response. Given OCR’s previous indication that a hostile environment may arise from discriminatory harassment via social media—and its repeated admonitions that schools must address harassment based on sex, race, color, national origin or disability when sufficiently serious to create a hostile environment—schools need not await further guidance to apply their existing processes to such conduct when it is reported.

    So even if a school’s response to such reports is constrained by a poster’s anonymity, it should nonetheless investigate and take any available steps to respond to all reports of online threats or harassment based on sex, race, color, national origin or disability. This may include requesting that the app remove, and provide information to help identify the author of, a threatening or unlawfully harassing message; interviewing witnesses who have information about the threats or harassment; connecting victims to on- or off-campus counseling, support and other appropriate resources; initiating disciplinary proceedings when circumstances warrant; and engaging law enforcement when appropriate. Schools can also respond to anonymous online harassment more generally through awareness and bystander intervention training for students, faculty and staff to educate users about the issues raised by such uses of social media.

    In their recent letter to the Department of Education, the advocacy groups asked OCR to reiterate its statement from its January 19, 2001, Revised Sexual Harassment Guidance that “if harassment has occurred, doing nothing is always the wrong response.” But OCR’s enforcement activities over the past few years leave little doubt that this is so. Unless and until OCR and the courts further clarify colleges and universities’ role in responding to severe harassment or threats based on sex, race or another protected characteristic via anonymous social media, schools should view such conduct as triggering their obligations under Title IX, Title VI and other relevant laws.

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    The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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