The Traditional Title IX Concern
Title IX of the Education Amendments of 1972 requires high schools receiving federal funding to prohibit sex discrimination in education programs and activities. Typical Title IX concerns involve sexual assault or sexual harassment of students in classrooms or other facilities on school premises during school activities. The high school student whose sexual conduct toward another student creates a severe and pervasive hostile educational environment faces the school's Title IX charges. The student accused of Title IX violations may face suspension or expulsion, costing the student significant educational and career opportunities, causing real and lasting harm. Title IX charges are serious business for the accused student.
A New Online Title IX Concern
The concerns today, though, go well beyond student sexual misconduct in classrooms, hallways, and other physical school facilities, on school grounds. Since the pandemic's onset, and even before the pandemic to a much lesser degree, high schools have conducted significant portions of their education programs and activities online. A lot of high school classwork and non-class–related communications and exchanges take place today through electronic devices in online or virtual forums. Students live in virtual worlds outside of high school, constantly on computers and smartphones. They also live in virtual worlds during high school, using desktop computers, laptop computers, tablets, and even smartphones for school studies and communications. The pandemic instantly accelerated high school use of online technologies. As everyone knows, many high schools have conducted and even continue to conduct virtual options for students committed to remaining at home. The new Title IX concern that the new high school online world raises is how the powerful Title IX law addresses online sexual harassment and cyberbullying.
High School Online Systems and Applications
High schools use a variety of online learning management systems to reach their students online and remotely. Learning management systems help teachers organize online readings, presentations, problems, quizzes, exams, and other study, learning, and assessment activities and resources. Learning management systems, including the popular Schoology, Blackboard, Canvas, Twine, and dozens of others can be highly interactive, too. Learning management systems can not only allow students to access resources but also submit writings, graphic presentations, photographs, and videos, as well as to communicate in writing with the teacher and other students in email, text, or chat-like functions. Learning management systems may also facilitate live virtual online classrooms and discussions, or high schools may simply use online messaging and video-conferencing apps like Zoom Classroom and Google Meet. High schools also use general online systems like Google Suite's Drive, Docs, and Forms. High schools secure their online systems through other apps like ClassLink. The technology certainly exists for high schools to create virtual worlds. High schools are also certainly using that technology since the pandemic.
Title IX's Reach Into Online Programs and Activities
No serious question remains that Title IX reaches the new high school virtual world. Title IX and its implementing regulations make clear that the law applies not just events that occur on school grounds but also events occurring in school programs and activities. A core regulation 34 CFR Section 106.31(a) states Title IX's basic prohibition as “no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives Federal financial assistance.” Title IX addresses education programs or activities rather than buildings and grounds.
The key factor is control over the event rather than the geographic location of the event. Another regulation 34 CFR Section 106.44(a) states that a covered education program or activity “includes locations, events, or circumstances over which the [school] exercised substantial control over both the respondent and the context in which the sexual harassment occurs….” A recent regulatory question-and-answer guide confirms that Title IX violations can occur outside of school grounds, even in places like the student's home, if the school controls the education program or activity in which the Title IX violation occurs. The guide holds that Title IX applies not only to activities in “buildings or other locations that are part of the school's operations” but also to “remote learning platforms.” The guide also concludes that a “school may have substantial control over an incident that occurred in a student's home….” In reaching those conclusions, the guide quoted the preamble to a Department of Education Title IX final rule. There remains no question that Title IX reaches online activities.
Online Conduct Title IX Addresses
What, then, could high school students do to violate Title IX online? Title IX prohibits so-called hostile environment sexual harassment. A hostile sexual environment can arise from words or images posted, shown, shared, linked, attached, or otherwise transmitted online. A single post or comment is not ordinarily enough to create a hostile environment. Sexually offensive conduct must be severe and pervasive to violate Title IX. A violation would usually require multiple posts or comments, depending on the nature and severity. Title IX law judges the educational environment from a reasonable person perspective, meaning that an unusually sensitive victim may not necessarily have a Title IX claim. But high schools can be quite concerned over any sexual content, especially sexual cyberbullying, in their programs and activities. These are some of the online actions through which a high school student could create a hostile environment:
- Sexual advances or requests for sexual favors
- Sexual jokes, slurs, and innuendo
- Sexting, posting personal sexual photographs, or requesting such posts
- Sexual cartoons, representations, or other sexual images
- Sharing links to pornographic content
- References to sexually explicit programs, writings, or forums
- Comments and discussion about personal sexual appearance
Premier Title IX Defense Attorney Available
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