Does Sexting Violate Title IX?
| | Title IX
Parents may not understand it, but sexting has been a popular phenomenon with high school and college students for well over a decade now and it raises some challenging legal problems that often catch students and their families by surprise. Most of the discussion has centered around possible violations of criminal law, but sexting has the potential to violate Title IX and campus codes of conduct as well, and these violations would be investigated and adjudicated in a very different way than criminal cases.
If you or a student in your family has been sending or receiving sexual images or messages, it is important to understand the likelihood of legal problems on campus and how to minimize potential negative consequences. Whether you are dealing with an accusation of a code of conduct or Title IX violation, or you need to pursue justice due to a violation of Title IX rights caused by sexting, an attorney experienced in handling Title IX and campus disciplinary proceedings can help protect students’ rights, reputation, and future.
What Does Sexting Involve?
While the word “sexting” indicates sexual content sent via text message, the term actually includes more. Nude photos or even merely suggestive photos can be involved, as well as messages that are explicitly sexual in nature or more evocative. Sexting frequently involves video images with sound.
Moreover, the messages can be sent not only through text messaging services but also social media, email, or other electronic means. While sexting is often (but not always) considered permissible under the law between consenting adults, it can violate the law when a minor is involved or when someone involved objects to the content. Even when allowed by law, sexting can violate policies at high schools and colleges, including Title IX policies.
Understanding Title IX Prohibitions
Title IX prohibits schools that receive federal funding from discriminating against students, faculty, or staff on basis of sex. How do these prohibitions apply to individual students? Over time, the regulations and guidelines interpreting this federal law have expanded the definition of discrimination to include harassment and other forms of sexual misconduct. Colleges and universities as well as schools that serve grades K-12 must have policies in place to prevent discrimination in all forms and to investigate allegations of discriminatory conduct raised against students as well as employees.
Students and employees of educational institutions that receive federal funding—which amounts to all public K-12 schools and private schools that accept federal student loans—can file complaints when they believe either the institution or a private individual has harassed, discriminated, sexually assaulted, or otherwise violated their rights under Title IX. Schools are then required to investigate the issue promptly and hold proceedings to determine whether the accused should be found responsible for a violation.
The investigation and adjudication process moves much more quickly than a criminal investigation and court case. Both those bringing complaints and those trying to defend themselves against accusations of violations often find themselves overwhelmed and uncertain how to proceed. The disciplinary process can be over before either party develops a strategy to ensure that their side of the story is fully taken into consideration.
As a result, students filing complaints often find that their accusations are not taken seriously or students responding to complaints learn that they have been found responsible for a violation and have lost rights on campus, scholarships, or even the ability to continue their education. Students can be branded for years based on Title IX proceedings, so it is wise to work with an experienced Title IX attorney as soon as the potential for a complaint arises.
How Sexting Can Violate Title IX
One type of discrimination that violates Title IX is sexual harassment in educational programs or activities. Although the definition fluctuates somewhat according to political agendas, generally harassment involves actions such as:
- Unwelcome conduct that is severe, pervasive, and offensive to the point that it jeopardizes a student’s equal access to educational opportunities.
- Dating violence or sexual assault
- Stalking
- Quid pro quo harassment by a school employee
Depending on the situation, instances of sexting could be considered harassment under most of these standards. When messages are sent to an unwilling recipient or shared without consent, this can easily create a hostile environment that prevents a student from enjoying equal access to education. Sexting messages could also be part of a pattern of conduct treated as stalking or serve as part of a quid pro quo scheme where an employee promises some type of benefit in exchange for sexual favors.
If one student is a minor, they may not be considered capable of legally consenting to share or receive sexually explicit images, so even if the conduct was not unwelcome, it could still potentially be a Title IX violation.
Violations of Campus Codes of Conduct
Students need to be concerned not only with the potential for Title IX violations but also violations of policies and codes of conduct that govern their behavior on campus. Schools generally have considerable leeway in establishing their own policies, and in many cases, courts have held that students are contractually bound to follow policies when they agree to enroll in the school. If a school policy prohibits practices that constitute sexting in various forms, the student could be subject to sanctions for a violation.
However, students have rights and schools do not have unlimited authority. An experienced student defense attorney can often demonstrate how a school has exceeded the boundaries of their authority or violated a student’s rights so that sanctions and disciplinary proceedings must be removed from a student’s record, protecting their future educational opportunities.
Get the Right Legal Team Working for You When There is the Potential for a Title IX Violation
Having any kind of disciplinary action on a student’s record can have far-reaching negative consequences. To protect future prospects for education and career, it is important to defend against allegations on campus effectively and to minimize negative repercussions. When a student’s rights have been violated, the experienced team at Nesenoff & Miltenberg, LLP understands how to effectively pursue a complaint for justice or defend against excessive accusations. What happens in campus proceedings matters tremendously, and we know how to protect students, faculty, and staff both on campus and in court when necessary.
If sexting or other issues raise the potential for a Title IX complaint, we invite you to contact us to schedule a confidential consultation to discuss the ways our dedicated attorneys can safeguard the future.