As our digital presence and “real” lives become increasingly intertwined, schools must determine where their obligation to review and investigate harmful student behavior starts and stops. As an example, pursuant to Department of Education guidance, a school is considered to be on notice of a potential Title IX violation if a responsible school employee knew, or in the exercise of reasonable care should have known, about the alleged incident of sexual violence. This encompasses direct complaints from a victim as well as indirect notice from a member of the local community, on a social networking site, or from the media. Most schools now have a presence on social networking sites, and as a result social media has become an increasingly common way for a school to receive notice of allegations, or perhaps even directly observe student or faculty conduct that may fall under the purview of a sexual harassment policy promulgated under Title IX. For example, in Roof v. Newcastle Public School District, No. CIV-14-1123-HE, 2016 U.S. Dist. LEXIS 14886, *11-12 (W.D. Okla. Feb. 8, 2016), the court granted the school district’s motion for summary judgment on a Title IX claim, but indicated that the school arguably had knowledge of a substantial risk of sexual harassment to a student where the school received notice via a Twitter message of a direct allegation of sexual misconduct between an unnamed student and a history teacher. In such cases, it is easy to see that the broadened reach of social media allows additional opportunity for complaints to be brought to the attention of the responsible school officials.
What happens though, when the communications on social media are between students, or between students and third parties? Does a school have an obligation to police, or to intervene? And if the school wants to intervene, how should it do so? Without a clear school policy on point, a school’s intervention is fraught with complications.
