The case of the day is Harbi v. MIT (D. Mass. 2017). Faïza Harbi, who lived in France, was enrolled in MIT’s online course, “For the Love of Physics,” taught by Professor Emeritus Walter Lewin. She alleged that Lewin sexually harassed her online, and she sued him and MIT in Boston, asserting common law tort claims, claims under Massachusetts anti-discrimination statutes, and claims under Title IX, 20 U.S.C. § 1681, the federal statute that provides:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance …

The university moved to dismiss the Title IX claims (I do not consider the state law claims here). The argument was that the statute does not apply extraterritorially.

The answer to the case was easy, because the statute expressly protects only persons “in the United States,” and Harbi was in France. Harbi argued that this construction of the statute frustrated its purpose, but them’s the breaks. The court dismissed the Title IX count for failure to state a claim.

But let’s take a closer look at extraterritorially generally. The extraterritorial application of US law is a hot topic. The basic principle of law is from Morrison v. National Bank of Australia, 561 U.S. 247 (2010), in Justice Scalia’s memorable style:

When a statute gives no clear indication of an extraterritorial application, it has none.

So even if Title IX didn’t have the limiting language, there still would have been at least an argument about extraterritorial application. (I’m not saying that the argument would have succeeded: the presumption against extraterritoriality “is not self-evidently dispositive,” especially if the conduct at issue occurred, as it did here, in the United States.

Another twist: there are many criminal statutes, including well-known ones such as the RICO statute, where Congress has enacted ancillary statutes creating civil causes of action for violations of the criminal statutes. Post-Morrison precedent shows that even if the criminal statute applies extraterritorially, the ancillary civil statute won’t apply extraterritorially unless it’s clear that Congress intended that it should.

I’d like to add a word about Lewin himself, and MIT. Whatever else he may be, Lewin is a master teacher. A few years ago I watched and worked through his online lectures on mechanics and electromagnetism. They were terrific! In the light of the scandal that arose after Lewin was accused of sexual harassment, MIT removed the lectures from the web. I think that was a mistake. We are adults; we can learn something from Lewin without approving how he lives his life. Happily, the lectures are still available online, thanks I think to the magic of Creative Commons licensing, which didn’t allow MIT to prevent folks who had downloaded them from distributing them later.