Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Dear colleagues;

Several years ago I had a case against Hofstra involving 
cyber-harassment.  A student there was being harassed via 
JuicyCampus.com which was a site that had a button entitled "Hofstra" 
under which buttons with the actual names of students could then be 
clicked and people could say what they wanted about that individual.

The harassment involved some Hofstra students but it was started by 
people who had nothing to do with the university.

Things got so bad, the student became suicidal.  The victim's mother 
contacted me and I advised her to ask the relevant dean to take steps 
to stop the behavior.  The dean told the mother there was nothing they 
could do because it was "off campus" and the harassers had a free 
speech right to say what they wanted.

I knew Hofstra would say those things because that was what most 
schools were saying at the time about sites like JuicyCampus.  I needed 
to get Hofstra on record before filing an OCR complaint, which we did, 
and we sought emergency relief because of the victim's desperate 
situation.

Within three days of us filing the complaint with OCR, JuicyCampus was 
shut down.  OCR wondered whether our complaint was then "moot" and I 
submitted a memorandum urging them to keep the complaint open because a 
new site could pop up anytime and continue to facilitate the behavior.  
Moreover, the issue was worth addressing because lots of campuses were 
experiencing similar problems and people needed guidance.  I argued 
that OCR should rule on the merits notwithstanding mootness in order to 
provide guidance on the substantive issues.

Sure enough, a new site was up and running a day or so later, and OCR 
did undertake to address the matter in what was at the time an 
unprecedented analysis of cyber-harassment. That new site was also shut 
down quickly, the harassment stopped and the victim thrived.

In a nutshell, OCR said that cyber-harassment IS "on-campus."  This is 
consistent with the trend in federal law where courts have been ruling 
on issues involving jurisdiction of cyber-crimes and have generally 
been holding that cyber action is EVERYWHERE.  Thus, schools cannot 
decline to act on the grounds that cyber-space is not "on-campus."

Moreover, when the words are targeted against a person "based on" a 
protected class category and fit the definition of "severe or 
pervasive," the activity is covered by civil rights laws, (Titles IV, 
VI and IX) thus must be handled with a "prompt, effective and 
equitable" response.

It's hard to imagine that hateful words aimed at a person on campus 
would not be "targeted" - and if derived from a dating relationship, 
surely would fit the definition of "based on sex," (with the caveat 
that sexual orientation-"based on sex" claims are not as broadly 
construed.)

That cyber-space is everywhere is not enough, alone, to require a 
school to respond. There must be a sufficient nexus between the 
activity and the campus to justify imposing a legal obligation on 
school officials.

Key factors that determine whether cyber-harassment requires a 
school-based response include: whether the location on-line where the 
activity is occurring has a connection to the university (such as a 
"button" with the university's name on it); whether the individuals 
involved have ties to the university (easy to find out) and whether the 
harassment is affecting the university environment.  In other words, it 
isn't so much where the conduct is occurring, it's where the EFFECTS 
LAND.

As some of you may know, a school district in California recently began 
active monitoring of students' social media in order to nip in the bud 
the kinds of verbal actions between students that then bubble up to big 
problems. Active monitoring isn't easy but it can be effective 
prevention simply because students who know they are being monitored 
are more likely to restrain themselves.

As we know from the recent Montana OCR decision, schools cannot turn a 
blind eye on the grounds that the activity in dispute doesn't rise to 
the level of "severe or pervasive."  A full civil rights response may 
not be necessary when the activity falls under that standard, but SOME 
response is appropriate.  Students enduring "early stage" harassment 
are encouraged to report the activity, and schools are mandated to at 
least maintain a record.  Taking no action in response to early-stage 
harassment that then becomes "severe or pervasive" will expose a school 
to legal problems.

Thus, the message about cyber-harassment is: Even if a school doesn't 
have a mandatory obligation to intervene fully under civil rights laws, 
officials CAN - thus should - take steps to stop the behavior.

Ways of intervening include blocking certain cites and forbidding 
identifiable individuals from being able to send messages to certain 
locations.  The technology that allows schools to control their 
cyber-life likely provides tools for managing unwanted contacts and 
activities.  And to the extent a school lacks sufficient control over 
the individual or technology, the suggestion someone made about 
obtaining a real-world restraining order is a good one. Either a 
typical restraining order using laws that apply to dating violence, or 
a "civil rights" restraining order in the form of an injunction from a 
court will work.  These can be particularly effective for on-campus 
dating violence or stalking or harassment between students.  My first 
case more than fifteen years ago involved a female who was harassed and 
got a death threat from a love interest via email.  The school tried to 
claim it had no authority over email activities, and declined to 
intervene.  We went to court and got a restraining order that not only 
forbade the offending student to contact the victim, it commanded 
school officials to take specific steps to control him including: 
requiring him to come to school a half-hour before all other students 
and leave a half-hour later.  He had to eat lunch alone and was 
forbidden to attend any school-wide assemblies without a chaperone, 
etc.  The school was upset that they had to provide so much protection 
under court order because the order created a "special relationship" 
that then exposed the school to liability if the victim was harmed.  
Nevertheless, they complied with the court's order and the harassment 
stopped.

Wendy Murphy
New England Law|Boston