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On April 19, 2024, the U.S. Department of Education released updated Title IX Regulations that clarified schools’ ability to raise incidents of harassment using non-consensual, sexually explicit deepfakes through Title IX action. Title IX is a federal law that bars sex discrimination in education programs and applies to all public and private elementary and secondary schools, school districts, colleges, and universities that receive federal funding (hereinafter “schools”) and includes governance over schools’ responses to complaints of sexual harassment or assault.

What are deepfakes? 

“Deepfakes” are “multimedia that has either been synthetically created or manipulated using some form of machine or deep learning (artificial intelligence) technology.” Sexually explicit deepfake images can be generated using methods like face-swapping, replacing one person’s face with another’s face, or “undressing” a clothed image to look supposedly nude. Deepfakes and the artificial intelligence technologies that generate them are increasingly sophisticated, harder to detect, and widely accessible by anyone with a computer or smartphone app for little to no cost.

In the past two years, numerous incidents have occurred in schools with students creating deepfake media of other students or teachers, as well as school staff, creating them of fellow staff for reasons ranging from impersonating teachers to portray offensive messages to sharing sexually explicit images and videos. Educational institutions have been grappling with how to react to advances in AI, and these deepfake incidents have sparked additional concern about how to protect students, staff, and administrators, while also needing to know how to address incidents when they occur. This blog discusses how the recently updated Title IX Rule applies to deepfake incidents and provides four tips for how schools can prepare to respond.

How might Title IX apply to deepfake incidents in schools? 

The new Title IX Rule updates the definition of “sexual harassment” to include “the nonconsensual distribution of intimate images” including authentic images and those altered or generated by AI. Existing Title IX protections against harassment apply to actions connected to any school-related programs or activities regardless of whether the harassment occurs on or off campus. That is, even if deepfakes are disseminated outside of school, Title IX requires schools to address off-campus behavior that creates a “hostile environment” in the school. Under the new rule, behavior qualifies as sexual harassment when it is objectively and subjectively offensive and so “severe or pervasive” that it limits or denies a person’s ability to “participate in or benefit from the recipient’s education program or activity.” The previous definition of sexual harassment was more limited by requiring that behavior be “so severe, pervasive, and objectively offensive.” Determining whether behavior has created a hostile environment is fact-specific and Title IX stipulates the following considerations: 

“(i) The degree to which the conduct affected the complainant’s ability to access the recipient’s education program or activity; (ii) The type, frequency, and duration of the conduct; (iii) The parties’ ages, roles within the recipient’s education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the conduct; (iv) The location of the conduct and the context in which the conduct occurred; and (v) Other sex-based harassment in the recipient’s education program or activity.”

Additionally, the updated Title IX Rule modified investigation standards. Now, higher education institutions will have a lower bar for adjudicating guilt that is a “preponderance of the evidence” standard rather than the previous “clear and convincing evidence” standard. Universities will still be able to use the higher standard if it has been used in cases with factually similar circumstances. Primary and secondary schools will continue to have the choice of an informal resolution of complaints if “available and appropriate.”    

Four Proactive Practices for Educational Institutions

• • • Update policies to include deepfakes. Educational institutions should routinely review their policies and procedures and update them as needed to ensure their effectiveness in addressing image-based sexual harassment. These policies should convey how to handle instances of deepfakes created by and/or of students, teachers, or other staff in and outside of school and whether policies differ based on the method of distribution (e.g., sharing on an external site like Instagram versus posting on a school forum, in person, etc.). Sexually explicit deepfakes may be created or distributed using online tools outside of school or using products the school has procured. School districts should evaluate procured products that could be used to create or distribute deepfakes and review agreements with those third-party vendors for compatibility with the districts’ own policies on incident response. Lastly, policies should include defined terms that aren’t overbroad (like banning all “AI”) or underinclusive (like defining “deepfakes” as only still images). 
    • Ensure that Title IX procedures are properly implemented. Schools must recognize that Title IX legal obligations and student protections may apply to sexually explicit deepfake incidents. Title IX requires that schools conduct a “prompt, impartial, and thorough investigation” of sexual harassment complaints and take appropriate steps toward resolution. Title IX investigation procedures and policies must be updated in accordance with the Rule’s new “preponderance of the evidence” standard. Legal obligations can include keeping the identity of complainants confidential, informing complainants about available resources, interviewing complainants in an inappropriate manner, and appropriately pursuing a formal hearing when requested by complainants. School leaders should incorporate the definition and handling of deepfake incidents into Title IX policies and ensure that procedures are in place for staff to respond promptly and effectively.
    • Instruction and training for school staff.  Schools are required to communicate Title IX policies to all students and staff which could include highlighting that non-consensual, sexually explicit deepfakes may qualify as Title IX sexual harassment. Institutions should consider staff training to include responsible technology use, ethical uses of AI (in and out of the school), how it impacts others, and what repercussions exist. Districts can share resources to help inform educators of ways to identify deepfake content (like those from the Department of Homeland Security, MIT, and AI for Education).  
    • Education leaders should ensure that staff are properly trained on requirements under the Family Educational Rights and Privacy Act (FERPA) and how it interacts with Title IX complaints. Title IX investigations typically involve maintaining information that directly relates to a student and is personally identifiable, thus creating a FERPA-covered education record and triggering additional privacy protections. Deepfake incidents have been reported to law enforcement, which victims may do of their own accord. However, it is important to inform staff of when schools can legally disclose information to law enforcement, such as with parental consent, a court order or subpoena, or under a FERPA exception. Title IX requires that the identities of a sexual harassment complainant and the alleged perpetrator are kept confidential unless the disclosure is FERPA permitted, it is required by law, or it is necessary to carry out Title IX purposes. See FPF’s guide for more on Law Enforcement Access to Student Records. 
    • Instruction and training for students. Educational institutions must inform students and/or parents of their Title IX policies and should consider educating students and parents on the ethical, and legal, use of AI. This instruction could take many forms, but it should include (1) the appropriate uses of AI in and out of school, (2) the inappropriate uses of AI that would lead to disciplinary action, (3) the process of disciplinary action, and (4) the negative impact that unethical or illegal use of AI could have on the victim, creator, and the community. Communicating to students the seriousness of misusing AI could help prevent further incidents.

The updated Title IX rule clarified that schools should evaluate if a sexually explicit deepfake incident qualifies as an issue of sexual harassment. School leaders should also understand that in addition to Title IX, FERPA, state-specific laws, and privacy policies that apply to the sharing of student information may apply to incidents, even when that information is AI-generated. States are increasingly enacting non-education-specific laws to combat the generation or dissemination of sexually explicit deepfakes. For example, Washington State enacted House Bill 1999 this year which expanded the criminal offenses for non-consensual creation or sharing of sexually explicit, fabricated images of an identifiable minor, similar to laws in Virginia, and New York. Educational institutions should stay informed on applicable statutes and be aware that the legal landscape is quickly evolving to combat deepfake incidents. 

What’s Next? 

The updated Title IX Rule became effective on August 1, 2024, and applies to any complaints of alleged conduct that occurs on or after that date. As of the effective date, 26 states have filed suits against the law and have been granted injunctions blocking its enforcement. Pushback from the states and other organizations largely stems from the updated rule’s expansion of sex discrimination to include “gender identity,” and it is not yet clear how these legal challenges will affect the future of the updated rule.