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Title IX and Online Education: Ensuring Equality in Virtual Spaces

Online classes had been increasing steadily in number at all levels for years when the COVID pandemic hit in 2020 and pushed the trend into hyperdrive. Then, online education became the only option for a year or more for many students. Once classrooms opened up again, online options remained popular as a way for students and schools to overcome logistical hurdles that limit access to educational opportunities.

While online academic programs might also seem to be a safe option as well, insulating students from the risks of physical life on campus, they are not as safe as some assume. Cyberbullying becomes an increasingly common phenomenon as online student activity increases. Moreover, evidence suggests that the efforts required to ensure equality in online education may need to differ from the steps schools are currently taking to assess and address gender and sex-based equality issues in traditional educational settings. As a legal team devoted to protecting Title IX rights, we know that to fulfill their Title IX obligations to provide equal opportunities, colleges, universities, and K-12 schools may need to take a broader approach and add virtual spaces to their assessment guidelines.

Gender and Racial Bias in Online Education

Observing that many studies demonstrated that traditional classroom practices often discriminate unfairly against female and minority students, the Brookings Institution, a nonprofit research organization, set out to assess the levity of racial and gender equity in online educational programs, which have been touted as the great equalizer in education. Researchers considered that when a student’s identity is not revealed in face-to-face engagement, that could reduce the level of bias, but alternatively, the impersonal digital environment could reduce the social inhibitions that hold bias in check and instead result in greater bias in online learning programs.

They designed a study to evaluate evidence of bias in massive open online courses (MOOCs). These types of courses are taught by faculty from four-year universities, but they are open to the public and free to access. Thousands of students may enroll in a course at one time, so generally, the only interactions between the instructor and students (and between students) occur in online discussion forums. In these forums, students are known only by name, with no pictures or visual clues.

Brookings researchers created eight fictional students with a first and last name designed to indicate a specific race and gender. They had these fictional students post comments in the main course discussion forums. The comments were similar to those posted by real students in other course forums, and they were chosen at random to assign to specific fictional students.

To assess potential bias, researchers observed the number of responses from instructors and other students. Factoring in other issues that could impact response, researchers still determined that white male students had a significantly higher response rate from instructors than all other race and gender combinations. In fact the increased likelihood of response from the instructor was 94% higher when the comment was posted by a student with a name associated with a white male student. 

However, researchers did note that the apparent bias in favor of white male students was centered on comments related to general academics or social pleasantries rather than comments related to the specific course. Moreover, the next highest response rates were held by fictional students with names associated with Chinese and Black female students and the response rate from comments posted by the fictional student with the Indian female name was nearly twice as high as the rate for comments posted under the name of the fictional Indian male student. This seems to indicate that there may not be a bias against all females so much as a bias in favor of white males. 

Based on other findings, researchers concluded that the results most likely indicated implicit bias rather than statistical discrimination or purposeful discrimination. Implicit bias impacts a school’s ability to provide equal educational opportunities, but it can be more difficult to prove and requires different approaches to mitigate.

Cyberbullying and Title IX

When someone uses communication technology to threaten or harm another person in some way, that action is often referred to as cyberbullying. In many situations, instances of cyberbullying involve sexual harassment. Harmful actions might include:

  • Sending offensive messages directly through email, text, or social media
  • Posting words, images, or videos that mock another person on a social media or other shared platform
  • Forwarding intimate photos (“sext” messages) or posting to public platforms

Unlike traditional bullying which might be limited to one or two physical locations, cyberbullying is inescapable because a bully can reach the victim at any time in any place. Moreover, damaging images or words can be shared with incredible speed with a limitless number of people. The perpetrator can hide behind anonymity, making it easier to continue without fear of repercussions.

When cyberbullying in an educational setting demeans a person because of their gender, sexual orientation, or gender identity, it violates Title IX. It can create a hostile environment that deprives a student of equal educational opportunities. Schools at all levels have an obligation to address such a hostile environment. However, proving that an institution had knowledge of sexual harassment that is occurring entirely in the online realm can be a challenge. In particular, under current Title IX rules, off-campus conduct may be considered beyond the scope of Title IX protections. It can be hard to determine whether electronic communications should be treated as occurring on campus or off campus. An attorney can argue that the portable nature of electronic communication devices and their prevalence on campus as well as their use in online academics causes sexually discriminatory cyberbullying to fall under the prohibitions of Title IX and become actionable when a school fails to take adequate steps to address the abuse.

Does Title IX Protect Online Students Abroad?

The language of Title IX specifies that “no person in the United States” can be subjected to discrimination under educational programs receiving federal funding. Courts have held that conduct that occurs outside the U.S. on a school-sponsored trip falls under the purview of Title IX. Those opinions may be difficult to reconcile with current Title IX rules, but when the new rules are released, they are expected to ensure that conduct that occurs off-campus as part of a school program is subject to Title IX protections.

However, what happens when harassing conduct originates in the U.S. but is directed online against a student who remains outside of the U.S. at all times? In Harbi v. Massachusetts Institute of Technology, a professor emeritus at MIT was accused of harassing a student in France who was participating in a massive open online course taught by the professor. According to the student’s complaint, the professor approached her online as the administrator of a social media group associated with the course, and they developed an online relationship that involved exchanging text messages, social media messages, and video calls. The content of messages sent by the professor often included sexually explicit messages and videos that the student objected to, but she was afraid to reject communications for fear of being removed from the class. She alleged that the professor suggested she had to continue corresponding to complete the course successfully. She developed extreme anxiety, insomnia, and other problems that eventually led to her hospitalization.

Despite the fact that the conduct the student alleged clearly violated both Title IX and MIT policies, the court held that the student lacked standing to pursue a Title IX claim because she was not and never had been a student in the United States. However, the court did suggest that ”Title IX might well be outdated” because it did not take online learning into consideration. When the new Title IX rules are put into effect shortly, they may well provide predictable protections for online students outside the U.S. and those protections may extend to foreign students as well.

Enforcing Title IX in Online Learning Situations

When Title IX was enacted in 1972, off-campus learning was limited to paperwork mailed back and forth, and few students engaged in “correspondence school.” With the prevalence of computers and online learning opportunities today, it is important to ensure that online students receive the benefits of Title IX protections against discrimination and harassment.

Since Title IX is often enforced and interpreted in response to legal challenges, it may be up to students who have been subjected to bias or harassment to work with attorneys and file complaints that draw attention to the online situations that have been overlooked. 

At Duffy Law, we firmly believe in the equality ideals Title IX was designed to promote, and we work to protect the rights and opportunities of students, faculty and staff through proceedings on campus and in the courts. If you have questions about an incident or pattern of discriminatory behavior involving online learning at the college level or in a K-12 environment, we invite you to contact our team for a confidential consultation.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.