Students risk suspension for sending too many unwanted social media follow or friend requests, a practice that universities may now consider a violation of student conduct codes prohibiting “stalking”—a sexual misconduct charge.
“Perceived wrong moves, such as too many ‘friend’ or ‘follow’ requests or ‘likes’ could be considered as evidence of violating the student code of conduct, and land students in front of a campus tribunal,” said attorney Kimberly C. Lau, a partner and chair of the College Discipline Practice at Warshaw Burstein, LLP.
Students often refer to these tribunals as “kangaroo courts” because they lack traditional safeguards found in the criminal justice system, such as a right to directly cross-examine your accuser, or the right to have a hearing at all.
“After handling more than 100 Title IX cases across the country, I have witnessed students kicked out of school for accusations ranging from unwelcome pats on the shoulder, to texting about sex, to offensive posts leading to a charge of ‘sexual misconduct,’” Ms. Lau said.
There are signs that the current campus Title IX process could be overhauled.
On July 13, officials from the Education Department, colleges, accused students, victims, and Title IX experts were invited to meet with U.S. Department of Education Secretary Betsy DeVos. All weighed in on the current climate of campus sexual misconduct and the ramifications of the Obama-era guidance advising schools on how to comply with Title IX, a federal law that prohibits sex discrimination at federally funded institutions.
Critics of that guidance, issued in 2011, said it was an executive overreach that set too low a bar for campus administrators to find a student guilty of sexual assault.
Ms. Lau, who was invited to participate in that closed-door meeting in Washington, expressed her concerns that “the current process is unfair and has room for improvement, since the definition of ‘sexual misconduct’ has become too broad and now includes conduct that does not involve physical contact, or contact that does not involve sex, such as texts, posts and friend requests.”
Ms. Lau warned that students continue to get kicked out of school for “posting, texting or messaging with their smart phones without enough emphasis on credibility determinations.”
In the meantime, Ms. Lau believes students should think twice before tweeting or texting about private moments.
“My advice is to just put your phone down and talk to your partner the old-fashioned way — in person — or risk having your texts become misconstrued or taken out-of-context later on by a campus tribunal,” Ms. Lau said.
Warshaw Burstein, LLP is a mid-sized, full-service law firm based in New York City, concentrating in the following practice areas: banking and finance, construction, corporate and securities, creditors’ defense litigation and compliance, entertainment and media, exempt organizations, financial services, intellectual property, litigation, matrimonial and family law, real estate, tax, and trusts and estates. The firm has comprehensive experience representing a wide range of international, national and local businesses of all sizes, as well as governmental authorities and many prominent families and individuals, in an extensive array of litigation and transactional matters.
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