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Nora L. Olsewski

January 22, 2019 Download as PDF

In Feminist Majority Foundation v. University of Mary Washington (UMW), the United States Court of Appeals for the Fourth Circuit ruled that universities have a duty under Title IX[1] to investigate anonymous threats made against students online.[2]  The decision has alarmed many, including the lone dissenter, Judge G. Steven Agee.  Judge Agee believes the decision will compel universities to “venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid the Catch-22 Title IX liability” resulting from the majority’s “novel and unsupported” decision.  As a result, he highly encouraged UMW to seek further review.

During 2014 and 2015, members of the Feminists United student group spoke out publicly against the manner in which UMW handled on-campus sexual assaults, Greek life on campus, and a disturbing sexist chant from members of the rugby team.  UMW later suspended all rugby activities indefinitely.  In response, team supporters took to a social media app, Yik Yak, to comment on the suspension.  Yik Yak, which is no longer in existence, allowed individuals to anonymously post comments and interact with other users within a 1.5-mile radius.  Users within this geographic limit quickly decided Feminists United caused the team suspension.  Several members of Feminists United were then targeted with threats of violence, identified by name, and even had their class schedules and general whereabouts published on Yik Yak.  The threats ranged from, “Can we euthanize whoever caused this bullshit?” to “Gonna tie these feminists to the radiator and [g]rape them in the mouth.”[3]  Some team supporters went so far as to outline a plan on Yik Yak to publicly confront certain members of Feminists United.  In total, over 700 harassing and threatening Yaks were directed at Feminists United and its membership.

Understandably, those students who were targeted reported feeling unsafe on campus.  Several students reported being unable to leave their homes, attend class, or participate in campus events due to ongoing harassment and continued threats.  Members of Feminists United notified professors, administrators, and the campus police of the threats made against them.  UMW’s response to these events, however, was minimal.  In fact, UMW’s Title IX coordinator stated that nothing could be done, as UMW had “no recourse for such cyber bullying.”  Feminists United called on UMW to block access to Yik Yak on its wireless network and/or contact Yik Yak to have the application disabled on campus.  UMW stated that doing so would violate the First Amendment and refused.  Ultimately, UMW’s response consisted of offering to meet with affected students to discuss the posts on Yik Yak during two “listening circles,” sending a generic email discussing the postings, and assigning a campus police officer to attend a single meeting with a threatened student.

While the Court does not imply that UMW was obligated to contact Yik Yak to have the application removed or block access to Yik Yak on its network, the Fourth Circuit reasoned that UMW had an obligation to investigate the violent threats made against specific students.  Although the lower court originally dismissed the lawsuit on First Amendment and other grounds, stating UMW had no control over the anonymous postings on Yik Yak, the Fourth Circuit strongly disagreed.  First, the majority reasoned that true threats are not protected speech and thereby do not implicate the First Amendment.  The majority also felt that UMW had multiple options to investigate the threats without implicating the First Amendment.  Given that many commentators on Yik Yak within a 1.5-mile radius of campus were likely students utilizing UMW’s wireless network, the Court reasoned UMW should have at least attempted to examine its systems to expose the identities of those people posting the harassing commentary and threats on the network.  Furthermore, UMW’s failure to speak out against these acts and its general lack of support for the student victims led the majority to rule that UMW acted with deliberate indifference toward the reported sexual harassment in violation of Title IX.

Little doubt exists that UMW will appeal the majority’s ruling, especially given the dissent’s endorsement.  In the meantime, the decision presents interesting challenges for major universities throughout the country.  Universities should expect courts to scrutinize responses to instances of student-on-student sexual harassment, online or in-person.  Given that so many of our day-to-day interactions occur online, universities without policies addressing harassment in cyberspace would be well served to begin creating such policies.  Setting up support networks and programming for victims of sexual harassment and developing training for staff members on reporting procedures and guidance on how to best respond to these incidents, will put a university on stronger footing to defend potential lawsuits moving forward.  Universities will also need to be creative with internal resources and systems to investigate threats made utilizing campus technology.  As the majority stated, gone are the days when college administrators will be able to turn a blind eye to sexual harassment, throw their hands up in defeat when faced with a challenging or novel Title IX issue, or hide behind the First Amendment.  Fair warning: a significant response is required.

[1] Title IX of the Education Amendments Act of 1972 is a federal law that prohibits sex discrimination under any education program or activity receiving Federal financial assistance.

[2] Civ. No. 17-2220 (4th Cir., Dec. 19, 2018).

[3] “[G]rape” is believed to refer to gang rape.

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