For better and sometimes for worse, depending on whom you ask, social media is often relied upon by students as evidence of key facts in either the complaint or defense of a complaint. Regularly playing a critical role in Title IX investigations, social media can provide evidence that bolsters or diminishes one student’s credibility over another’s. For instance, pictures depicting two students together immediately following a sexual encounter may help establish a timeline for events or be used to establish location and names of witnesses. Likewise, ongoing and repeated communications through social media may support allegations of ongoing stalking or violations of no contact directives.
How can students provide social media evidence in Title IX investigations?
There are no formal rules of evidence for campus Title IX cases, so social media posts from any platform will likely be admissible evidence, assuming the content is relevant to the issues being examined in the investigation. Many Title IX investigations involve events that occurred behind closed doors with only two students present, and social media evidence can tip the scale in terms of whether a preponderance of the evidence exists or not. Indeed, students are becoming savvier at preserving those messages that typically disappear once the messages are read. So, many cases are won or lost after all of the social media is reviewed and examined in a case.
With the rise of cancel culture, we have experience representing students outside the context of a Title IX case examining gender-based harassment through social media exclusively. Time and again, we’ve seen social media weaponized to label students with negative gender stereotypes – names like “rapist” or names suggesting certain sexual practices. Recently, St. Olaf College’s Title IX coordinator sent an email to the entire student body regarding a Title IX investigation into a Fizz post containing a screenshot of a spreadsheet describing the appearances and sexual history of many female students on campus. Many times, the social media posts spiral out of control and what was once an isolated incident or even just a rumor gets caught in a social media frenzy and made into patterns that never occurred.
Five Social Media Tips for Students
Because social media evidence can impact the outcome of a Title IX investigation, here are some take-aways for students:
Number 1: When in doubt, preserve social media.
You never know when the content of an account may be important. If something strikes you as important or unusual, take screenshots of posts, ideally showing the date of the post and handle/ID of the poster. There is no subpoena power in campus Title IX cases, so students can’t force social media platforms to provide evidence.
Number 2: Think before you post.
You never know when you may unwittingly incriminate yourself or speak out of emotion rather than being thoughtful.
Number 3: Think before you delete social media accounts or block people.
Instead of deleting an account, just let the account remain inactive with heightened privacy settings. Likewise, before blocking a user and potentially causing all communication with that person to disappear, think about other ways to limit communication.
Number 4: Know your privacy settings.
Everyone loves to be an Internet detective. So, be aware of whether your posts are viewable by anyone on the platform or only certain individuals. However, bear in mind that even posts with setting limiting viewing can be captured by others.
Number 5: Texts live forever, Snaps probably don’t (but not definitely!).
Keep in mind that texts will likely always be available on the recipient’s phone. Forensic analysis can recover massive amounts of data. While Snaps generally have a limited existence, students are becoming increasingly knowledgeable about preserving texts.
For additional questions or to speak with an attorney about issues related to a Title IX investigation, please reach out to Student & Athlete Defense Partners Susan Stone (SCS@kjk.com; 216.736.7220) and Kristina Supler (KWS@kjk.com; 216.736.7217).