Omar escaped Somalia’s brutal civil war as a child and spent four years in a Kenyan refugee camp before coming to the United States. She has worked as a political activist in Minnesota, and with a nonprofit aimed at promoting civic engagement among East African women. Refinery29 featured Omar’s moving story as part of our Behind The Headlines series earlier this year. You can watch that piece below:
How to Help if Someone Is Being Harassed – The New York Times <!–
In honor of the National Day of Action to End State Violence Against Black Women, Girls and Femmes, lawyer, researcher and activist Andrea J. Ritchie presents some policy ideas to eliminate police sexual violence, gendered racial profiling and other ways officers target Black girls, women and gender nonconforming people.
Groups sponsoring the National Day of Action to End State Violence Against Black Women, Girls and Femmes include BYP100, Black Lives Matter Network, Project South and Ferguson Action.
Along with the collective call to #SayHerName, we also need policies that prevent and remedy the specific forms of police violence, racial profiling and criminalization that impact Black girls and women—cis and trans—and gender nonconforming people. In other words, we need to answer the call of Sandra Bland’s mother, Geneva Reed-Veal, who last month told the Congressional Black Caucus on Women and Girls:
I don’t come to sit and be a part of a caucus where we talk and do nothing. …Movements move. Activists activate. We have got to stop talking and move. …[I]t is time to wake up, get up, step up or shut up.
I have been studying how we can answer the call for an action agenda around Black women and policing over the past two years, as a Soros Justice Fellow. What follows is a list of seven starting points based on what I’ve found in a range of sources including my survey of 35 police departments, President Obama’s Task Force on 21st Century Policing, reports like “A Roadmap for Change: Federal Policy Recommendations for Addressing Criminalization of LGBT People and People Living With HIV,” and The New York Young Women’s Initiative‘s criminal justice recommendations released this week. I’ve also drawn from changes police departments have made due to public pressure and litigation.
This list is by no means definitive. Rather, it’s a starting point for an agenda that focuses on the particular ways that Black girls, women and gender-nonconforming people experience police violence. Each point represents an area where legislators and policymakers should take action, and where advocates can put pressure on them to act.
1. Problem #1: Black girls, women and gender nonconforming people experience gendered racial profiling.
Racial profiling takes on gender-specific forms including the policing of prostitution, pregnancy and motherhood. Officers particularly profile Black women as being engaged in prostitution based on the age-old jezebel stereotype. They perceive them as bad mothers based on stereotypes similarly rooted in slavery and the more recent “welfare queen” trope.
Statues such as “loitering for purposes of prostitution” also aid gender-based racial profiling. In many cases, police cite condoms they’ve found in women’s purses or pockets as evidence of prostitution. The combination of vague laws, dangerous police policies and entrenched stereotypes can make Black women who are simply walking down the street late at night carrying condoms grounds for arrest. These patterns of policing demand gender-specific and -inclusive responses.
New York City has led the way in adopting broad protections against multiple forms of racial profiling. Its End Discriminatory Profiling Act of 2013 is the most comprehensive, enforceable ban in the United States. The President’s Task Force on 21st Century Policing and the NAACP recommend similar measures for departments nationwide.
- State and local lawmakers should adopt and enforce policies as comprehensive as New York City’s. On the federal level, Congress should pass the End Racial Profiling Act of 2015, which would prohibit profiling based on gender, gender identity and sexual orientation alongside race, religion and ethnicity.
- State lawmakers should repeal of vague “loitering for the purposes of prostitution” laws, and ban the use of condoms as evidence of prostitution-related offenses. Local police departments should independently prohibit their officers from criminalizing condoms as well.
Problem #2: Police are doing strip- and body cavity-searches of Black women in public.
In August 2015 at a Harris County, Texas, gas station, one male and two female police deputies overpowered and held down Charnesia Corley, a Black 21-year-old they suspected of marijuana possession. One female deputy pulled down her pants. Another sat on her back and cavity-searched her in full view of passersby. The horrific treatment of a Black woman is not unique. Public strip- and body-cavity searchers are experienced as sexual assaults, and should be addressed as such.
- Shortly after Corley was strip- and cavity-searched, Texas legislators passed a law specifically banning body cavity searches during traffic stops unless the officer obtains a warrant. All of the other states should follow suit to bring search practices in compliance with the requirements of the U.S. Constitution.
Problem #3: Police sexual violence goes unreported, ignored and unpunished.
Although there is currently no official data collection on the issue, study after study by law enforcement leaders, former police officials, academics and community groups demonstrate that police sexual misconduct is a systemic problem. In 2010, the Cato Institute found that sexual violence was the second most frequently reported form of police misconduct, after excessive force. Other research shows that officers disproportionately target women who are young, of color, trans and gender-nonconforming. Police also single out women who are criminalized through the war on drugs and prostitution enforcement. In surveys of 35 police departments across the country, I found that 52 percent don’t have any policy that specifically addresses police sexual violence against the public.** An investigation by Al-Jazeera America found similar results.
Additionally, the investigation and prosecution of police sexual misconduct is largely left to the police themselves, along with local prosecutors. Survivors are already reluctant to report sexual assault to authorities, but they are particularly hesitant to tell the police departments that employ their assailants. This is especially true for women who are—or are profiled as—involved with drugs or prostitution. Daniel Holtzclaw’s serial rape and sexual assault of scores of Black women made this plain.
- The U.S. Department of Justice (DOJ) should collect national data about police sexual violence against civilians through the Police-Public Contact Survey and other national surveys.
- The DOJ should develop and disseminate a model policy as recommended by the President’s Task Force and deny federal funding to police departments that refuse to ban all forms of police sexual misconduct, create prevention strategies and ensure accountability for officers who sexually abuse civilians.
- The DOJ should mandate, expand and audit police departments’ compliance with the 2003 Prison Elimination Act. This legislation and accompanying regulations set standards for the prevention and detection of sexual misconduct in all places of detention, including holding cells.
- Civilian oversight bodies and special prosecutors appointed to address police misconduct should be equipped and required to receive complaints of sexual violence. They should be able to support survivors, investigate police, and impose discipline up to and including firing guilty officers.
Problem #4: Police officers conduct illegal “gender searches” on trans people of color.
Transgender and gender nonconforming people are all too often subject to officers searching their bodies because they are curious, want to assign them a gender based on anatomy, or degrade them. These searches plainly run afoul of the Constitution. With the passage of HB2 in North Carolina, police could very well begin conducting such searches outside public bathrooms. Because they come into frequent contact with police due to racial profiling and discriminatory enforcement, gender searches disproportionately impact trans and gender nonconforming people of color.
- The President’s Task Force on 21st Century Policing unequivocally calls for explicit bans on gender searches.
- In partnership with advocacy organizations, the DOJ should develop, disseminate and monitor how model policies are implemented to ensure that authorities respect the rights and dignity of LGBTQ people
5. Police are beating and using TASERS on pregnant Black people.
While the idea of a police officer punching a pregnant woman or shocking her with 50,000 volts of electricity is shocking but not uncommon. The cases of Raven Dozier, Nicola Robinson, Tiffany Rent, Lucinda White, Malaika Brooks illustrate the need for clear and strong policies banning the use of TASERS, chokeholds, pepper spray, forcible takedowns and other forms of excessive force against pregnant people. Yet, fewer than half of the 35 police departments I surveyed around the country over the past year had a policy limiting this kind of force.
- Police departments should impose and enforce strict bans on use of force against pregnant people.
Problem #6: Black women are dying in police custody due to neglect, refusal of medical care and use of force.
All too often, Black women and women of color are perceived as deceptive, undeserving of medical care and incapable of feeling pain or illness. In July 2015, at least five Black women—Sandra Bland, Kindra Chapman, Joyce Curnell, Ralkina Jones and Raynette Turner—died in police custody. This January, 16 year-old Gynnya McMillen died in an Elizabethtown, Kentucky, juvenile facility after staffers took her down using a so-called aikido restraint. Staff members failed to check on McMillen overnight, a policy violation. When they found her unresponsive in her cell the next morning, they waited for more than 10 minutes to act.
- Keep girls and women out of police custody by minimizing enforcement and detention for traffic and low-level offenses.
- Use independent monitoring to ensure that staff are following detention policies.
- Demand accountability from law enforcement personnel who fail to provide medical treatment to individuals in police custody.
Problem #7: Police are searching people without identifying themselves or the reason for the encounter.
Regulation of consent searches is particularly important to Black women because they are so often sites of sexual harassment, abuse, unlawful gender searches and drug patdowns. It is hard enough to hold an officer accountable for profiling and violence. It’s even harder when you don’t know the officer’s name and you aren’t empowered to exercise your rights during an encounter.
- Police departments should adopt the President’s Task Force recommendation that officers be required to identify themselves and explain why they’ve stopped, detained and arrested a civilian.
- Officers should be required to advise people of their right to refuse a search without legal basis. They should also be required to show proof of voluntary, informed consent to searches. These common-sense policies that are already in place in cities, from Cincinnati to Pittsburgh to Denver.
Of course, changing police policies is not a panacea to police violence against Black girls, women and gender nonconforming people. In order to to strike at the root of the issue, we need to transform our responses to poverty, violence and mental health crises in ways that center the safety and humanity of Black women and our communities. Still, taking action in these seven areas would go a long way to reducing harm while we work toward deeper systemic change.
Andrea J. Ritchie is a Black lesbian police misconduct attorney, organizer and co-author of “SayHerName: Resisting Police Brutality Against Black Women.” She was a 2014 Soros Justice Fellow, a member of INCITE! and co-author of “Queer (In)Justice: The Criminalization of LGBT People in the United States.” She has been organizing, advocating, litigating, writing and agitating about police violence against women and LGBT people of color for the past two decades. Ritchie is currently at work on“Invisible No More: Racial Profiling and Police Brutality Against Women of Color,” and is a contributor to “Who Do You Serve? Who Do You Protect?, books coming out in 2017.
**Post has been updated since publication for precision. Fifty two percent of police departments surveyed didn’t have any policy that specifically addresses police sexual violence against the public, not just women.
Schools’ Obligations Under Title IX and Title VI to Address Sex- and Race-Based Harassment Occurring on Yik Yak and Other Anonymous Social Media Applications
The National Organization for Women, NOW-Oregon Chapter, Central Oregon Coast NOW, PFLAG Oregon Central Coast, and Lincoln County Oregon Democratic Central Committee joined many other organizations as signatories to this important letter. Feminist Majority Foundation had a press conference today, Wednesday, October 21 at the National Press Club, with several organizations located in DC that have signed onto the letter, to publically announce our call for colleges and universities (as well as the social media platforms themselves) to take action to protect students from this type of targeted harassment and intimidation. This letter was published at that time.
By Electronic Mail
October 20, 2015
Secretary Arne Duncan
U.S. Department of Education
Lyndon Baines Johnson Department of Education Bldg
400 Maryland Avenue, SW
Washington, DC 20202-1100
Assistant Secretary Catherine Lhamon
U.S. Department of Education
Office for Civil Rights
Lyndon Baines Johnson Department of Education Bldg
400 Maryland Avenue, SW
Washington, DC 20202-1100
Re: Request for Guidance Reminding Schools of Obligations Under Title IX and Title VI to Address Sex- and Race-Based Harassment Occurring on Yik Yak and Other Anonymous Social Media Applications
Dear Secretary Duncan and Assistant Secretary Lhamon:
As organizations working to advance women’s equality and civil rights, we are writing to request that the Office for Civil Rights (OCR) promptly issue guidance to universities and colleges reminding them of their legal obligations under Title IX of the Education Amendments of 1972 and Title VI of the Civil Rights Act of 1964 to protect students from harassment and threats based on sex, race, color, or national origin carried out via Yik Yak and other anonymous social media applications.
The undersigned organizations represent a broad constituency of U.S. women’s rights and civil rights organizations in diverse fields. Many of our organizations work directly on college campuses with faculty and student groups. We write jointly to express grave concern regarding pervasive sex- and race-based online harassment and intimidation on college campuses around the country.
The use of anonymous social media to engage in this type of discriminatory behavior was widely reported in the news media in the 2014-2015 academic year, including incidents at the University of Mary Washington, where female students were threatened with rape, murder and other abuse via Yik Yak, and at Clemson University where racially abusive Yaks appeared after a student march protesting the failure to indict the police officer responsible for the death of unarmed African-American teenager Michael Brown in Ferguson, Missouri. These events underscore the urgent need for OCR to remind schools of their obligation to address all forms of sex- and race-based harassment, including cyber threats and harassment, which violate federal civil rights laws.
Title IX prohibits sex discrimination, including sexual harassment of students, in education programs or activities that receive federal financial assistance (hereby referred to as
“academic institutions” or “schools”). Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment can also take the form of gender-based harassment, including against LGBTQ students, which “may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex stereotyping, even if those acts do not involve conduct of a sexual nature.” Title IX prohibits discrimination and harassment “based on gender identity or failure to conform to stereotypical notions of masculinity or femininity,” and “prohibits sexual harassment and gender-based harassment of all students regardless of the actual or perceived sexual orientation or gender identity of the harasser or target.”
Similarly, Title VI prohibits discrimination on the basis of race, color, or national origin in federally-funded education programs or activities. Acts prohibited by Title VI may include overtly racist behavior, such as the use of racial slurs, or targeted harassment based on actual or perceived race, ancestry, or ethnic characteristics. Students who are harassed based on their actual or perceived faith may also be protected by Title VI if the harassment is based on the faith group’s actual or perceived shared ancestry/ethnic characteristics.
Schools have a legal obligation to remediate harassment, whether in-person or online, that creates a hostile environment. Once a school knows, or reasonably should know, that harassment has created a hostile environment, both Title IX and Title VI require the school to take “immediate and appropriate action to investigate or otherwise determine what occurred” and take “prompt and effective steps” to eliminate the hostile environment, prevent its recurrence, and address its effects.
In its October 2010 Dear Colleague Letter, OCR clarified that prohibited harassment may take many forms, including verbal acts and name‐calling; graphic and written statements, which may include use of cell phones or the Internet; or other conduct that may be physically threatening, harmful, or humiliating. The 2010 Dear Colleague Letter takes an important step in clarifying that prohibited harassment can occur through the use of technology such as cell phones or the Internet.
Since the 2010 Guidance was published, however, the technology used by students to communicate with their peers has expanded to include anonymous social media applications. Students have used these applications to harass, threaten, and attack their peers while hiding behind a perceived shield of anonymity. So far, academic institutions have not adequately responded to this new phenomenon, essentially allowing students to engage in sex- and race-based harassment that would otherwise be prohibited by Title IX and Title VI.
We request that the Office for Civil Rights issue guidance reminding academic institutions of their legal obligations to prevent and remedy all forms of prohibited harassment, including harassment through anonymous social media applications.
- Online Harassment Disproportionately Affects Women and People of Color and is a Significant Problem Among Young Adults
Online harassment – including name-calling, doxing (revealing someone’s personally identifiable information, such as their home address, to encourage others to engage in harassment of that individual), threatening others, and efforts to humiliate, embarrass, or intimidate – is a significant problem among young adults. A 2014 study conducted by the Pew Research Center found that around 70 percent of young adults aged 18-24 years have been the target of some form of online harassment, and young women in this age range experience disproportionately higher levels of severe online harassment compared to their male counterparts. For example, 26 percent of young women aged 18-24 years, versus seven percent of young men in this same age range, have been cyberstalked, and 25 percent of young women aged 18-24 years have been the target of online sexual harassment versus 13 percent of men.
People of color are also particularly impacted by online harassment. Around 51 percent of African-Americans who use the internet, and 54 percent of Hispanics, reported experiencing online harassment, compared to 34 percent of whites. African-American and Hispanics were also more likely to have witnessed online harassment than whites, and in particular, were more likely to have witnessed physical threats, purposeful embarrassment, and cyber-stalking.
Although the Pew study did not analyze the impact of online harassment specifically on LGBTQ adults, research conducted by Campus Pride indicates that LGBTQ college students are more likely to experience harassment than their heterosexual peers. There is good reason to believe that much of this harassment occurs online. A recent study conducted by the Gay, Lesbian & Straight Education Network (GLSEN) of online harassment of youth ages 13-18 years found that 42 percent of LGBT youth had experienced harassment online. The vast majority of targeted students, 71 percent, reported being harassed or bullied because of their sexual orientation, gender expression, or both, and 32 percent reported being sexually harassed online.
Victims of online harassment have suffered from anxiety, posttraumatic stress disorder, depression, and other forms of emotional distress, and can incur financial and other costs as a result of the harassment. Communities also suffer. Among all internet users aged 18-29 years, over 90 percent have witnessed harassment online, with 44 percent witnessing physical threats, 42 percent witnessing sustained harassment, 39 percent witnessing sexual harassment, and 36 percent witnessing cyber-stalking.
Most online harassment, especially of women, occurs through social networking sites or applications. Sixty-six percent of all internet users, and 73 percent of women in the Pew study who reported experiencing online harassment, reported that their most recent incident occurred in this manner. Much of this harassment is anonymous. Around half of those who had experienced online harassment reported in the Pew study that they did not know the identity of the perpetrator of their most recent incident.
Anonymous cyber-harassment can be just as, or even more, threatening as harassment from readily identifiable individuals. Anonymous users on Yik Yak, for example, targeted members of the University of Mary Washington student group, Feminists United, with online harassment and threats of violence. One member of the group later explained its impact on her:
People gave out the locations of our members, and threatened to rape and kill us. I was terrified. I did not know if the person sitting next to me in class had just threatened to hurt me anonymously, and I had no way to gauge the seriousness of these threats. I began strategically carrying my key and [rape] whistle when I walked the thirty feet between my apartment and my car, and I began to seek help for the psychological and emotional damage I was feeling.
Studies show that individuals are more likely to act injuriously when they believe they are acting anonymously. “When people have the opportunity to separate their actions on-line from their in-person lifestyle and identity they feel less vulnerable about . . . acting out.” Lack of perceived accountability only adds to the problem. In addition, the internet also allows for formation of cyber-mobs, groups of individuals who target victims for online abuse. Individuals within the cyber-mob may be strangers to one another, but the collective impact of the harassment and abuse can be profound.
- Anonymous Social Media Applications, such as Yik Yak, are Frequently Used as a Platform for Sex- and Race-Based Harassment Prohibited by Title IX and Title VI
Anonymous social networking applications are becoming increasingly popular on college campuses and have given perpetrators an easy platform for online harassment, including cyber-stalking, cyber-threats, and other forms of cyber-assault. Applications such as Yik Yak, 4chan, BurnBook, After School, Fess, and others specifically allow students to send anonymous messages to other users within their academic communities. Some users of these applications have then exploited the perceived shield of anonymity to engage in sustained harassment of their peers.
The severity of this problem on college campuses is exemplified by recent news stories covering the emergence of Yik Yak and other anonymous social media applications as a vehicle to intimidate, harass and threaten individual students and student groups. Much of this abusive harassment is sex- and/or race-based and therefore prohibited under Title IX and Title VI.
At the University of Mary Washington in Fredericksburg, Virginia, for example, Yik Yak users sexually harassed a feminist student group by threatening sexual assault and physical harm after individual members spoke out against rape culture and incidents of sexual assault on campus. At Eastern Michigan University, students posted dozens of demeaning, crude, and sexually explicit comments and imagery about three female professors on Yik Yak. Student activists who spoke out against sexual assault, racism and homophobia at Dartmouth College became the target of anonymous online posts declaring that they would be raped, lynched and shot, and at Kenyon College in Ohio, several Yik Yak posts were made threatening violence, and even sexual assault, against the women who lived and worked at the campus’ center for women.
Anonymous race-based harassment through Yik Yak is also pervasive on college campuses. At American University in Washington, DC, for example, Yakkers posted successive invidious comments targeting African-Americans, such as “Their entire culture just isn’t conducive to a life of success. It just isn’t. The outfits. The attitudes. The behavior.” Another comment read, “Slavery was the worst thing to happen to this country, bringing them over here…ugh.” African-American students have also been targeted at Clemson University in South Carolina. One Yakker wrote, “I would be completely ok with Clemson being an all white school. Except for football.” Another said, “The only thing niggers are good for is making Clemson better at football.” Still another, “Jesus I hate black people.” At Clemson, hateful Yaks also targeted Indian students and East Asians, referred to as “chinks,” in addition to LGBT students, Mormons, and women.
The use of Yik Yak to threaten and harass students is of particular note because the application is so pervasive on college campuses. Yik Yak is designed to allow users within a 1.5 mile radius of each other to post and view anonymous “Yaks.” This geo-locating feature means that users know that those posting and viewing “Yaks” are in close proximity, within the same geographic community – usually a college campus.
Yik Yak has grown quickly since launching in 2013. Using a business model focused on marketing to college students, Yik Yak now has millions of users. It is on about 1600 college campuses with around 50 to 80 percent of each student body using the application. In the fall of 2014, Yik Yak experienced about 100,000 downloads per day, and was downloaded more times than Facebook, Twitter, or Pinterest. The company continues to focus on expansion at college campuses and employs over 350 college campus reps.
Despite its popularity, not all college students have embraced Yik Yak given its use as a forum for cyber-harassment, intimidation, and threats. The student government at the University of Michigan-Dearborn passed a resolution calling on the school administration to ban the use of Yik Yak on campus. The resolution noted that the application had “become a venue for anonymous hate speech, sexual harassment, and other impermissible forms of discrimination and Yik-Yak users on the University of Michigan-Dearborn campus and surrounding areas have begun targeting specific groups based on ethnicity, sexual orientation, gender, appearance, religion, and culture. . . .”
Although not going as far as the Dearborn resolution, Emory College’s student government also passed a resolution last year denouncing the use of Yik Yak as a forum for hate speech and harassment. The author of the resolution, a sophomore at the school, stated that it was “a symbolic statement that says that the University is going to be consistent in its application of the discriminatory harassment policy across all media. The same anonymous hate speech written in a physical forum is subject to all this disciplinary action … [but] no disciplinary action in a digital forum. That is an unacceptable inconsistency.” A college junior who supported the resolution suggested that the anonymous nature of Yik Yak contributed to a hostile environment at the school: “These people are behind a screen, we have no idea who they are and I know people who have been personally victimized by this who do feel harassed. . . .I know many people who do not feel comfortable being on Emory’s campus at this time.”
- Schools Have Failed to Respond Appropriately to Harassment Occurring Through Yik Yak and Other Anonymous Social Media Applications
Academic institutions have not responded consistently or appropriately to the growing use of anonymous social media applications as a tool for harassment, threatening behavior, and intimidation. Given the use of these applications to create sexually and racially hostile environments, institutions that fail to take immediate and appropriate action to end and prevent the recurrence of sex- and race-based online harassment and cyber-violence are in violation of their legal obligations under Title IX and Title VI.
Many schools have shirked these legal obligations by citing vague First Amendment concerns. At the University of Mary Washington, for example, administrators and lawyers for the University repeatedly stated that, as a public university, they were bound by the First Amendment to permit threatening posts on Yik Yak and could not disable the application. The school’s Title IX coordinator also sent an email to students informing them that the university has “no recourse for such cyber bullying” and instructed students to file a report with Yik Yak if they became the subject of threatening or abusive comments on the social media application.
A similar approach was taken by Duke University whose Vice President of Student Affairs told the student newspaper that the university would not restrict use of Yik Yak. Instead of university action, he explained, “Individuals who feel that they have been harmed in any way [by harassing or threatening posts on Yik Yak] are always free to consult with their own legal advisors” in order to take action against Yik Yak.
Likewise, administrators at Clemson University and Kenyon College refused to ban Yik Yak out of fear it would infringe on students’ freedom of speech. Administrators at Eastern Michigan University and Dartmouth have also declined to address known sexual harassment occurring on Yik Yak and other anonymous posting sites.
The Office for Civil Rights made clear in its October 2010 Dear Colleague Letter that harassing student conduct triggers responsibilities on the part of a school under civil rights statutes, including Title IX and Title VI, when the harassment is based on sex, race, color, and/or national origin and is “sufficiently serious that it creates a hostile environment.” Failure to respond to or adequately address this harassment, even if it occurs online, is a violation of schools’ legal obligations.
Students, however, are using anonymous social media applications like Yik Yak to intimidate, harass, and threaten individuals based on sex and race, creating a hostile environment for students.
At the University of Mary Washington, for example, Yakkers posted hundreds of abusive comments on Yik Yak, including one that read “Gonna tie these feminists to the radiator and grape them in the mouth,” a reference to a Whitest Kids You Know skit that clearly insinuates threatening physical and sexual violence. At Kenyon College, a Yakker proposed a gang rape at the women’s center, and at Middlebury College, a Yakker targeted a female student with name-calling and posted a sexual reference about her.
At Syracuse University, Yakkers, in a series of comments, ridiculed African-American students participating in a step show, calling them “monkeys.” Yakkers also targeted African-American students at Clemson, posting comments using racial slurs, degrading African-Americans, and bemoaning their very presence at the school. At Emory, one Yakker told other posters, “Guys stop with all this hate. Let’s just be thankful we arn’t black.”
Incidents like these clearly fall into the category of sex- and race-based harassment that is likely prohibited discrimination under Title IX and Title VI. Schools therefore have the obligation to investigate and remediate these types of harassing incidents, as appropriate. As explained in the October 2010 Dear Colleague Letter:
Harassment does not have to include intent to harm, be directed at a specific target, or involve repeated incidents. Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by the school.
Students who have been targeted by anonymous cyber harassment and assault – especially through Yik Yak, where the perpetrators, because of the geo-location feature of the application, are within the campus community – have reported that the harassment has interfered with their academic studies and that they have had to seek therapy, change their extra-curricular activities, and even take extra security precautions.
Nonetheless, academic institutions, many mistakenly citing the First Amendment, have not been quick to take action to properly investigate anonymous online harassment and cyber-violence. Many schools have taken the stance that they have no recourse for students experiencing harassment on these sites. Students are therefore left to fend for themselves against vicious threats and harassment simply because it is conducted on a new platform.
Other schools, however, have taken action to stop online harassment and attacks, eliminate the hostile environment, and prevent harassment from recurring. Several universities have banned Yik Yak from their wireless networks. Other academic institutions have assigned staff members to monitor the applications for threats or harassing conduct and have distributed campus-wide emails denouncing the harassment.
- Request for Guidance Reminding Schools of Their Legal Obligations Under Title IX and Title VI to Address Sex- and Race-Based Harassment, Including Harassment Occurring on Anonymous Social Media Applications
In order to ensure that Title IX and Title VI continue to protect students from discrimination that creates a sexually or racially hostile environment, the Office for Civil Rights must remind schools of their legal obligation to promptly investigate and address sex- and race-based harassment, including harassment that occurs online. OCR must also provide clarification to schools on their obligations surrounding anonymous online harassment and intimidation.
Academic institutions currently have no explicit guidance on how to respond to sex- and race-based harassment occurring through Yik Yak and other anonymous social media applications. Although the October 2010 Dear Colleague Letter generally recognizes that harassment prohibited by Title IX and Title VI may include the use of cell phones or the Internet, it should explicitly specify schools’ obligations to respond to the emerging trend of anonymous harassment through social media.
OCR should also make clear that the First Amendment does not prevent schools from taking action to eliminate sex- and race-based harassment, whether that harassment occurs in-person or online. The definition of actionable harassment provided by OCR does not infringe on protected speech. Rather, it prohibits conduct that interferes with a student’s ability to participate or benefit from a school’s activities or educational programs. This standard complies with U.S. Supreme Court jurisprudence on the First Amendment and student speech. Once a verbal act “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school,” institutions may regulate or restrict student speech. Student speech may be regulated if it “substantially interfere[s] with the work of the school or impinge[s] upon the rights of other students.”
Severe, pervasive, or persistent anonymous online-harassment and cyber-attacks that are based on sex, race, color, or national origin impinge on the civil rights of students, as defined in Title IX and Title VI. OCR guidance must make clear that once speech reaches this threshold, whether or not through an anonymous social media application, schools, including public schools, are legally bound to take “immediate and appropriate action” to investigate what occurred, and if “discriminatory harassment” has occurred, to take “prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring.” This action is consistent with the balance struck by the U.S. Supreme Court between students’ First Amendment rights and the need to ensure that schools can function appropriately and protect the rights of others.
As the perpetrators of harassment and intimidation on applications like Yik Yak are anonymous, OCR should also clarify the steps an academic institution can take to satisfy its civil rights obligations. OCR should reiterate that “if harassment has occurred, doing nothing is always the wrong response,” and also provide concrete examples of what kinds of actions might be appropriate. These examples could include, but are not limited to:
- investigating all reports of online harassment, whether or not perpetrators are “anonymous”;
- initiating campus disciplinary proceedings against individuals engaging in online harassment;
- geo-fencing of anonymous social media applications that are used to threaten, intimidate, or harass students;
- barring the use of campus wi-fi to view or post to these applications;
- prompt reporting of anonymous online threats of physical and sexual violence to police and the social media application, as appropriate;
- monitoring social media applications to ensure immediate response to online harassment and intimidation;
- providing counseling and appropriate accommodations for targets of online harassment and intimidation and others affected by it; and
- conducting mandatory training or intervention programs for students, faculty, and staff, including Title IX Coordinators and other appropriate administrators, on the use of these social media applications to engage in harassment and intimidation.
As the popularity and use of anonymous social media applications grows on college campuses, it is important that schools do not abdicate their responsibilities under Title IX and Title VI to protect students from discrimination, including harassment and intimidation based on sex, gender, sex stereotypes or race, color, or national origin, simply because that harassment finds a new home. Additional OCR guidance on this issue is necessary to help schools fulfill their legal obligations and help ensure that discrimination on the basis of sex and/or race does not become a barrier to students pursuing educational opportunities.
We thank you for your leadership and look forward to an opportunity to meet with you at your earliest convenience to discuss this urgent issue. Please contact Gaylynn Burroughs, Director of Policy & Research at the Feminist Majority Foundation at email@example.com or by phone at (703) 522-2214 with any questions, or for additional information.
Feminist Majority Foundation
Advocates for Youth
American Association of University Women
Association of Reproductive Health Professionals
Black Women’s Blueprint
Black Women’s Health Imperative
Center for Partnership Studies
Center for Women Policy Studies
Clearinghouse on Women’s Issues
End Rape on Campus
Human Rights Campaign
Institute for Science and Human Values
Jewish Women International
Leadership Conference on Civil and Human Rights
Media Equity Collaborative
National Alliance for Partnerships in Equity
National Black Justice Coalition
National Center for Lesbian Rights
National Coalition Against Domestic Violence
National Council of Jewish Women
National Council of Women’s Organizations
National Disability Rights Network
National Domestic Violence Hotline
National LGBTQ Taskforce
National Organization for Women
National Women’s Law Center
The Andrew Goodman Foundation
Turning Anger into Change
WMC Speech Project
Women’s Media Center
Atlanta Women for Equality
Collective Action for Safe Spaces
DC Coalition Against Domestic Violence
DC Rape Crisis Center
Democratic Women’s Club of Northeast Broward
Empowerment Center – Maryland
Lincoln County Oregon Democratic Central Committee
National Organization for Women – Akron Area, Ohio Chapter
National Organization for Women – Beaver Valley, Pennsylvania Chapter
National Organization for Women – Boulder, Colorado Chapter
National Organization for Women – Brevard, Florida Chapter
National Organization for Women – Central Oregon Coast Chapter
National Organization for Women – Florida Chapter
National Organization for Women – Greater Orlando, Florida Chapter
National Organization for Women – Indiana Chapter
National Organization for Women – Maryland Chapter
National Organization for Women – Middlesex County, New Jersey Chapter
National Organization for Women – Ni-Ta-Nee, Pennsylvania Chapter
National Organization for Women – Oregon Chapter
National Organization for Women – Palm Beach County, Florida Chapter
National Organization for Women – Pennsylvania Chapter
National Organization for Women – Rhode Island Chapter
National Organization for Women – Shore Area, New Jersey Chapter
National Organization for Women – Tacoma, Washington Chapter
National Organization for Women – Tampa, Florida Chapter
National Organization for Women – Thurston County, Washington Chapter
National Organization for Women – Virginia Chapter
National Organization for Women – Washington Chapter
National Organization for Women – Washington, DC Chapter
Network for Victim Recovery of D.C.
PFLAG Oregon Central Coast
Women’s Production Network (Florida)
 42 U.S.C. § 1681; see also United States Department of Education Office for Civil Rights, April 4, 2011 “Dear Colleague” letter concerning sexual harassment of students and sexual violence (“2011 Dear Colleague Letter”) at 1, available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.
 See United States Department of Education Office for Civil Rights, “Revised Sexual
Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties” (January 2001) (“2001 Guidance”) at vi, available at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf.
 2011 Dear Colleague Letter, supra note 1, at 3 n.4; see also U.S. Department of Education Office for Civil Rights, October 26, 2010 “Dear Colleague” letter concerning harassment and bullying (“2010 Dear Colleague Letter”) at 7-8, available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf.
 United States Department of Education Office for Civil Rights, April 29, 2014, “Questions and Answers on Title IX and Sexual Violence” (“2014 Sexual Violence Q&A) at 5, available at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf; see also 2010 Dear Colleague Letter, supra note 3, at 7-8.
 2010 Dear Colleague Letter, supra note 3, at 8; see also 2014 Sexual Violence Q&A, supra note 4, at 5-6.
 42 U.S.C. § 2000d et seq; 34 C.F.R. § 100.3
 Although Title VI does not specifically prohibit harassment motivated solely by religion, students who are members of a religious group that shares, or is perceived to share, ancestry or ethnic characteristics are protected by Title VI if the harassing behavior is based on both perceived or actual shared ancestry/ethnicity and religion. See 2010 “Dear Colleague Letter, supra note 3, at 5-6. “[G]roups that face discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics may not be denied protection under Title VI on the ground that they also share a common faith.” Id. at 5. Recognizing and emphasizing the shared ancestry and ethnicity triggers for Title VI is particularly important to protect the civil rights of students from religious minority communities, such as Muslim, Sikh, Jewish, and Hindu students, among others.
 See id. at 4-5.
 Id. at 2-3.
 See id. at 2.
 The Office for Civil Rights is also responsible for enforcing Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) and Title II of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12131 et seq.), which prohibit discrimination the basis of disability. OCR recently issued guidance, on October 21, 2014, concerning bullying of students with disabilities. See “Dear Colleague” letter concerning disability discrimination (“2014 Dear Colleague”), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-bullying-201410.pdf. This guidance built upon OCR’s 2010 Dear Colleague letter on harassment and bullying, supra note 6, but did not include any information on online harassment based on disability or any examples of this form of disability-based discrimination at institutions of higher education. In issuing the requested guidance, OCR should make clear, once again, that online harassment based on disability is prohibited by federal laws, and that colleges and universities are under a legal obligation to investigate any such discrimination, including through anonymous social media applications, to determine whether it has created a hostile environment that requires action to end the discrimination, eliminate the hostile environment, remedy its effects, and prevent its recurrence.
 Maeve Duggan, Online Harassment, Pew Research Center (Oct. 22, 2014), available at http://www.pewinternet.org/2014/10/22/online-harassment (last visited 5/21/15).
 Id. Of those surveyed, 88 percent of Hispanics and 84 percent of African-Americans witnessed at least one kind of online harassment, compared to 69 percent of whites.
 2010 State of Higher Education for LGBT People, 10 (2010), available at http://www.campuspride.org/research/projects-publications/ (last visited 9/1/15).
 Out Online: The Experiences of Lesbian, Gay, Bisexual and Transgender Youth on the Internet, 7-8 (2013), available at http://www.glsen.org/learn/reasearch/national/out-online (last visited 9/1/15).
 Id. at 8.
 Id. at 10.
 See generally Danielle Keats Citron, Hate Crimes in Cyberspace, 6-11 (2014). Victims of online abuse who experience trauma may develop disabilities as a result of the abuse and are entitled by law to receive long term care, support and services. Persons with disabilities have civil, human and disability rights that are protected under the Americans with Disabilities Act of 1990 and other disability laws that assist them with living independent lives.
 Duggan, supra note 13.
 Julia Michels, We’re Being Threatened on Yik Yak – And Our University Isn’t Protecting Us, Feminist Campus Blog (May 14, 2014), http://feministcampus.org/were-being-threatened-on-yik-yak-and-our-university-isnt-protecting-us/.
 See Citron, supra note 21, at 58-60.
 John Suler, The Online Disinhibition Effect, 7 CyberPsychology & Behavior 322 (2004), available at http://www.academia.edu/3658367/The_online_disinhibition_effect (last visited June 23, 2015).
 As journalist Amanda Hess, who has been targeted with cyber-abuse and is a victim of cyber-stalking, explains, “Today, a legion of anonymous harassers are free to play their ‘games’ and ‘pranks’ under pseudonymous screen names, but for the women they target, the attacks only compound the real fear, discomfort, and stress we experience in our daily lives.” Why Women Aren’t Welcome on the Internet, Pacific Standard (Jan. 6, 2014), http://www.psmag.com/health-and-behavior/women-arent-welcome-internet-72170
 Yik Yak is an anonymous messaging application that allows users to create and view posts, called Yaks, within a 1.5 mile radius. See Yik Yak, http://www.yikyakapp.com/legal/ (last visited 5/14/2015).
 After School is an “anonymous and private message board for your school.” According to their website, “when [students] post, your message is created and available for everyone at the school to see. However, no one will be able to tell who posted it unless you put identifying information in your message.” See After School, http://afterschoolapp.com/app/ (last visited 5/14/2015).
 Fess is a mobile application that “allows high school students to anonymously post thoughts, ideas, or secrets to the rest of the students within their high school. Fess is a place for high schoolers to express themselves, and share content within a closed community. Only students are allowed in, and none of what’s posted is allowed out. Students can access what their peers have posted, and comment, like, or flag the content and the anonymous posters.” See Fess, http://www.fessapp.com/fessfaq (last visited 5/14/2015).
 See e.g. Jonathan Mahler, Who Spewed That Abuse? Anonymous Yik Yak App Isn’t Telling, New York Times, (Mar. 8, 2015), http://www.nytimes.com/2015/03/09/technology/popular-yik-yak-app-confers-anonymity-and-delivers-abuse.html
 See Shaila Dewan & Sheryl Gay Stolberg, University of Mary Washington, Where Woman Was Killed, Faces Scrutiny, New York Times (May 6, 2015), http://www.nytimes.com/2015/05/07/us/university-of-mary-washington-where-woman-was-killed-faces-scrutiny.html.
 Mahler, supra note 36.
 Tyler Kingkade, Dartmouth May Punish Protesters Subjected to Rape, Death Threats, Huffington Post (Apr. 29, 2013), http://www.huffingtonpost.com/2013/04/29/dartmouth-rape-death-threats_n_3157298.html.
 Ryan Chapin March, Why Your College Should Ban Yik Yak, Huffington Post (Oct. 3, 2014), http://www.huffingtonpost.com/ryan-chapin-mach/why-your-college-campus-should-ban-yik-yak_b_5924352.html.
 Stephen Tschida, Racist Comments on Mobile App Disturb American U. Students, WJLA.com (Mar. 19, 2015), http://www.wjla.com/articles/2015/03/racist-comments-on-mobile-app-disturb-american-u-students-112437.html.
 Alyson Shontel, How 2 Georgia Fraternity Brothers Created Yik Yak, A Controversial App that Became a ~$400 Million Business in 365 Days, Business Insider (Mar. 12, 2015), http://www.businessinsider.com/the-inside-story-of-yik-yak-2015-3
 Courtney Morrison, Student Government Poses Yik Yak Resolution, The Michigan Journal (Jan. 20, 2015), http://michiganjournal.org/2015/01/20/student-government-poses-yik-yak-resolution/
 SGA Passes Amended Yik Yak Resolution, The Emory Wheel (Oct. 7, 2014), http://emorywheel.com/sga-passes-amended-yik-yak-resolution/
 See Erin Gloria Ryan, Entire College Rugby Team Suspended Over Recorded ‘Fuck a Whore’ Chant, Jezebel (Mar. 23, 2015), http://jezebel.com/entire-college-rugby-team-suspended-over-recorded-fuck-1692488876.
 Will Walker, Duke Stands by Yik Yak as Other Schools Move to Restrict It, The Chronicle (Feb 4, 2015), http://www.dukechronicle.com/articles/2015/02/04/duke-stands-yik-yak-other-schools-move-restrict#.Vae4HflViko.
 See Mahler, supra note 36; Sean Decatur, Respectful Difference, Inside Higher Ed (Oct 6, 2014), https://www.insidehighered.com/views/2014/10/06/essay-how-one-college-responded-anonymous-offensive-postings-yik-yak.
 See Mahler, supra note 36; see also John Lauerman, Dartmouth, USC Probes for Sexual Misconduct Responses, Bloomberg (Jul. 22, 2014), http://www.bloomberg.com/news/articles/2013-07-22/dartmouth-usc-in-probes-for-sexual-misconduct-responses.
 2010 Dear Colleague Letter, supra note 3, at 1.
 David Goldman, Campus Uproar Over Yik Yak App After Sex Harassment, Murder, CNN Money (May 7, 2015), http://money.cnn.com/2015/05/07/technology/yik-yak-university-of-mary-washington/.
 Mahler, supra note 36.
 Meghan Mistry, Racist Yik Yak Posts Considered “Hate Speech” by Syracuse, USA Today (May 6, 2015), http://college.usatoday.com/2015/05/06/racist-yik-yak-posts-considered-hate-speech-by-syracuse/.
 See Clemson Yik Yaks!, supra note 44.
 Mahler, supra note 36.
 2010 Dear Colleague Letter, supra note 3, at 2.
 See Citron, supra note 21, at 39-45 (recounting a law student’s experience with sex-based online harassment and cyber-stalking); Lindley Estes, UMW Feminists United File Title IX Complaint Against University, Fredericksburg Free Lance-Star (May 8, 2015), http://www.fredericksburg.com/news/education/umw-feminists-united-file-title-ix-complaint-against-university/article_68f62dce-a46a-5be8-8eec-df8ecddba50b.html
 Mahler, supra note 36 (reporting that John Brown University in Arkansas banned the app after “its Yik Yak feed was overrun with racist commentary”); Wilson Ring, Norwich University Blocks Yik Yak App on Campus, Huffington Post (Sept 14, 2014), http://www.huffingtonpost.com/2014/09/24/norwich-yik-yak-block_n_5878658.html; Julia Rose, Popular App Banned at Utica College After Reports of Cyber Bullying, CNY Homepage (WUTR) (Nov. 13, 2014), http://www.cnyhomepage.com/story/d/story/popular-app-banned-at-utica-college-after-reports/91812/WzLmyl_nbkGEdRtfLcFiJw; Anna Webb, Yik Yak: Online Bullying or Free Speech? College of Idaho Tries to Ban Controversial App, Idaho Statesman (May 14, 2014), http://www.idahostatesman.com/2015/05/14/3802467_yik-yak-online-bullying-or-free.html?rh=1 (reporting that the College had requested that Yik Yak “geo-fence” its campus). Many high-schools have also “geo-fenced” Yik Yak, making it unavailable on their campuses. AJ Dellinger, All The Threats, Petitions, and Bans against Yik Yak, Daily Dot (Dec. 10, 2014), http://www.dailydot.com/technology/yik-yak-bans/.
 See Dellinger, supra note 69.
 Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 509 (1969) (quoting Burnside v. Byars, 363 F.2d 744, 749 (1966)).
 Id. (emphasis added).
 2010 Dear Colleague Letter, supra note 3, at 2-3.
 2001 Guidance, supra note 2, at iii.