Title IX, broadly speaking, prohibits sex discrimination in the educational context. I am grateful to philosopher Heidi Lockwood (So. Conn. State Univ.) for an illuminating recent correspondence about Title IX, which she has given me permission to share.
Prompted by my earlier comments about the "open letter" to Professor McGinn, Professor Lockwood wrote:
Kudos on posting the critique of the open letter from concerned philosophers re: the obligation of the University of Miami to protect the student in question. Critical press is often better than no press; you have effectively done far more to promote discussion on the issue than you would have had you simply signed the letter without further comment.
That said, I want to respectfully call attention to an important fact that you've overlooked.
I agree with your point that McGinn's right to free speech doesn't give him the right to violate a student's privacy, particularly given that students' privacy is protected by FERPA. But the university's obligation to protect the student doesn't end with FERPA. Title IX explicitly prohibits conduct that creates a hostile environment if such an environment is severe, objective, and pervasive enough to undermine a student's educational experience. As I understand it, McGinn is still on the faculty. So if U Miami doesn't address the problem (and this most likely means more than just curbing McGinn's hostilities -- it could also mean, e.g., scheduling some discussions between the department and the Title IX coordinator), they may well find themselves with a Title IX suit on their hands.
Anything you can do to increase awareness about the Title IX obligations of universities in this and similar situations would of course be much appreciated. (I have had some recent and significant experience with the OCR's interpretation of said obligations, and would be happy to draft a post if you don't have time to write this up yourself.)
I expressed uncertainty about whether mere blog postings by a faculty member on leave were enough to raise Title IX issues. Professor Lockwood wrote back:
[A]ccording to the OCR office in Boston, blog posts are in fact enough to warrant Title IX action if they: (1) are written by a member of the university (current student, staff, or employee), (2) can be shown to be directly related to a sexual harassment complaint, and (3) can be objectively determined to be negative.
This is actually a very recent development in the DOE's interpretation of Title IX, and was codified in the form of a "Dear Collegue" letter which explicitly discusses retaliation for filing a sexual harassment complaint (and which carries the same weight as the original act for the purposes of enforcement by the OCR) released on April 24, 2013. Here's the link: http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.html. Note that this letter contains a link with contact information for the local OCR office, and that the OCR offers "technical assistance."
The release of the previous "Dear Colleague" letter of April 4, 2011 marks the point at which the OCR began requiring that grievance procedures use just a "preponderance of evidence" (the "more likely than not" standard used in civil cases, rather than the stricter "clear and convincing" requirement used in criminal cases). The April 2011 Dear Colleague letter is available online here: http://thefire.org/public/pdfs/0559f332d909e0024ac3bc0d07081e60.pdf?direct
And, as footnote 27 of the original 1997 OCR Sexual Harassment Guidance document indicates, there is a long history of educational institutions being held liable under Title IX for knowing failure to take appropriate actions to remedy a hostile environment.
UPDATE: More here from Professor Lockwood on this subject.
Of course neither the Dear Colleague letters nor the guidance document list all of the specific ways in which retaliation might occur (!) -- so I assume your question is really regarding the relevant case law and how the OCR attorneys are reading the parenthetical remark in the sentence that lies at the heart of the April 2013 Dear Colleague letter:
"... once a student... complains formally or informally to a school... the recipient is prohibited from retaliating (including intimidating, threatening, coercing, or in any way discriminating against the individual) because of the individual's complaint or participation."
I can't speak for the OCR team in the Atlanta office, which would handle a Title IX suit in Florida, but I can speak for the OCR office in Boston because I have had a recent conversation with one of the senior attorneys there about the April 2013 Dear Colleague letter, on behalf of a graduate student who is considering filing a retaliation case. According to the OCR Boston attorney, the April 2013 letter is a "game-changer" in the sense that it significantly broadens the scope of what can be counted as retaliation.
In general, what needs to be shown is: (1) that the complainant engaged in "protected conduct" (by, e.g., filing a civil rights complaint); (2) the complainant suffered a "materially adverse" action, which is defined as "any action that is likely to dissuade a reasonable person in the complainant's position from exercising her legal rights"; and (3) that there is sufficient evidence to prove that the materially adverse consequence was related to the protected action.
In other words, any action that would dissuade a reasonable person from complaining would constitute retaliation, assuming that a link between the action and protected conduct can be established. Public blog posts which allege that the student failed to do work ("The student's complaint occurred soon after a disputer between her and me over research work she was supposed to do over the summer (for which she was paid $4000) that she failed to do."), and that the student had affectionate feelings for McGinn ("We... liked each other very much. The relationship was close, reciprocal, and much valued by both parties. She sent me many affectionate and exuberant emails, often of a very personal nature.") strike me as something that would dissuade a reasonable person from filing a similar complaint. Clearly they're related to the graduate student's complaint, which was of course protected conduct.
It is worth noting that, if the graduate student in question can prove that these and other statements are false, they would be regarded as defamation per se given that they harm her reputation. There were also statements in the blog posts, as you have noted, that violated her FERPA rights. (But note that neither of these conditions are required for the Title IX retaliation suit -- the "materially adverse" action bar is set much lower.)
With respect to case law, one of the more interesting recent cases is a Title IX retaliation suit filed by Monica Emeldi, a graduate student in the University of Oregon's Department of Education, who alleged that the faculty chair of her dissertation committee resigned in ostensible retaliation for her complaints about gender equity within the department. The United States Ninth Circuit Court of Appeals ruled in her favor in March 2012, reasoning that she engaged in protected conduct when she sent a memo to the department summarizing graduate students' complaints about gender bias in the department; that the resignation of her dissertation committee chair was an action that "might have dissuaded a reasonable [person] from making or supporting a charge of discrimination"; and that there was sufficient reason to think that the action was related to the conduct, based on the timing of the resignation, the fact that the faculty member knew about her complaint, the fact that he had praised her work in the past, the fact that he did not help her secure a replacement chair, and the fact that he had exhibited gender bias in other contexts. Here's the link to the full opinion: http://cdn.ca9.uscourts.gov/datastore/opinions/2012/03/21/10-35551.pdf