Can an Online Threat Trigger the Need for An Emergency Removal Under Title IX?

By: Brett A. Sokolow, Esq., ATIXA President

Tip of the Week

It’s unlikely that online threats could be immediate threats to physical health or safety, unless the threatening individual is in close physical proximity to those being threatened, or the threat is pretty detailed and coupled to a reasonable ability to carry it out.

As for social media, we’re in the free speech space, so we need to reference the limits the Supreme Court has placed on threatening speech (especially now that the Title IX regulations apply the First Amendment to all schools), and add the regulatory requirement of immediacy or imminence to them (that’s a seriously high bar).

In our experience, we may be able to meet the bar to act on an emergency basis, but by the time the emergency action is heard, the threatener has calmed down and the threat is no longer immediate. In fact, the fact that the threat hasn’t transpired within the 48 or so hours between the emergency removal and the informal “show cause” hearing on the emergency removal may be proof that it isn’t that immediate.

Of course, if the threat falls outside the definitions of section 106.30 of the regulations, the argument can and should be made that it is not governed by the high bar set for emergency removal, and can be addressed through other policies and procedures on interim action/suspension.

Now that the First Amendment is being applied through Title IX, it’s implications for emergency removal decisions are worth a refresher. The protections the First Amendment affords speech and expressive conduct are not absolute. Courts have long recognized that the government may regulate certain categories of expression consistent with the Constitution (Chaplinsky v. New Hampshire315 U. S. 568, 571-572).

The First Amendment permits a state actor to prohibit or punish “true threats,” (Watts v. United States394 U. S. 705), those statements where the speaker “means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

However, the immediacy of the threat and its intent to be carried out can be separated for emergency removal purposes. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur. (R. A. V. v. City of St. Paul).

Intent to make the threat and intent to carry it out may be distinguishable. “Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death” (Elonis v. United States). Whether a reasonable person would interpret it as threat is not enough; the subjective intent of the threatener must be considered.

All of this makes it incredibly difficult and complex for school and college administrators to navigate in the context of the fear that a threat engendering the need for an emergency removal may provoke, and on all such questions, ATIXA members are best served by consulting their legal counsel and/or ATIXA’s free speech experts.