OCR, Title IX and Juicy Campus

Colleagues,

Many of you are following the stories on the OCR investigation of Hofstra regarding harassment of a student that occurred on the defunct JuicyCampus website. I've been talking yesterday and today to Wendy Murphy, the lawyer who filed the complaint, to get more insight. I've made a FOIA request for the OCR letter and will share it as soon as I get it. Anyone have a copy already?

The substance concerns whether colleges and universities will be required to remedy gender discrimination of a student occurring on 3rd party Internet sites not owned or controlled by the institution. Wendy's interpretation is that by making a finding on the complaint (no Title IX violation by Hofstra), the OCR believes it has jurisdiction over online harassment of a student. The OCR itself has today declaimed that reading of its finding, instead saying it found no violation, and nothing more. Security-on-Campus, of course, disputes the OCR characterization, and believes this is a landmark ruling.

There is no authority in Title IX for such an action, but OCR does essentially make law with its administrative rulings. Harassment must be within a program of a funding recipient to come under OCR jurisdiction, and 3rd party Internet sites don't meet that requirement. And only the most egregious of Internet harassment could rise to the level of being severe, pervasive and objectively offensive enough to overcome the 1st Amendment rights of the speaker. I could see a requirement to address harassment occurring on a campus network, or by university email, as being within OCR's jurisdiction programmatically. I could see an argument that harassment occurring in a university-sponsored Second Life could be seen as occurring within the programs of a funding recipient. I could even see OCR weighing in on a campus remedy of such discrimination, if the campus exercised its conduct jurisdiction to do so, even if Title IX did not require it to. How OCR saw a nexus between the harassment and Hofstra will hopefully be illuminated by the letter.

I'll share more about this case when I know more...

Here are some relevant articles:

http://www.securityoncampus.org/index.php?view=article&id=2027%3Acampuses-wont-be-so-juicy-this-fall&option=com_content&Itemid=79

August 11, 2009, 10:00 AM ET


And, this article, posted by blog to the Chronicle of Higher Education

Education Dept. Disputes Nonprofit's View of New Internet Harassment Ruling


By Erica Hendry


The nonprofit group Security on Campus (http://www.securityoncampus.org/) issued a news release (http://www.securityoncampus.org/index.php?option=com_content&view=article&id=2027:campuses-wont-be-so-juicy-this-fall&catid=3:sexualassault&Itemid=79) this week about a U.S. Department of Education ruling that it said held institutions responsible under Title IX for responding to sexual harassment on the Internet. But the department says the ruling does not have those implications.

The ruling came out of the department's Office for Civil Rights in New York, which investigated Hofstra University, after a student complained the institution did not "appropriately address" her complaints about peers who made sexually explicit and sexist comments about her on the now-defunct (../../../article/JuicyCampus-Shuts-Down-Bla/1506) gossip Web site JuicyCampus.

According to a letter sent to the student's lawyer, Wendy Murphy, who is also a board member of the nonprofit, the office had "jurisdictional authority to investigate this complaint under Title IX," but found "insufficient evidence to conclude that the university failed to respond appropriately."

Ms. Murphy said the ruling indicated institutions could be similarly investigated or held responsible for violations of Title IX or sexual harassment on the Internet in the future.

Jim Bradshaw, a representative from the Office for Civil Rights (http://www.ed.gov/about/offices/list/ocr/reports-resources.html), said the office "would not characterize this as a "landmark ruling."  He said the office found insufficient evidence of a violation of Title IX, and the findings should not be "interpreted beyond those parameters."

Regards,

Brett Sokolow