The Fourth Circuit majority opinion described it as a “a chant that glorified violence against women, including rape and necrophilia,” and “repulsive.” The University of Mary Washington rugby team, at an off-campus party, was chanting, or more likely singing, the bawdy 1920’s drinking song, “Walking Down Canal Street.” It set into motion a series of events that included the dissolution of the rugby team and led to the local chapter of Feminist Majority Foundation suing the school under Title IX.
The suit was dismissed on a motion to dismiss in the District Court, but the majority reversed.
The plaintiffs appealed to the Fourth Circuit, and this morning, in an opinion that was shockingly dismissive of the profound implications of this case for free speech, that court reinstated several of their claims. The bulk of the court’s decision turned on whether UMW “exercise[d] substantial control over both the harasser and the context in which the known harassment occurs,” as required to establish Title IX liability under the Supreme Court’s 1999 decision in Davis v. Monroe County Board of Education.
In reaction to the complaints of Feminists United, there were a great many offensive responses on Yik Yak, a now-defunct app that allowed anonymous “Yaks” within a group for UMW. As passionate as the leaders of Feminists United were about the discriminatory nature of the rugby team’s song, and the school’s inadequate response to it, other students expressed their disagreement on Yik Yak.
The gravamen of the discrimination cause of action in the complaint was that UMW failed to deal with these Yaks. The majority agreed that, if proven, it would suffice.
The district court determined that UMW had little — if any — control over the context in which the Feminists United members were harassed, because nearly all of that harassment occurred through Yik Yak. We are satisfied, however, that the court’s decision in that regard is undermined by the Complaint’s factual allegations. In so ruling, we remain mindful that the Supreme Court’s Davis decision limits an educational institution’s Title IX liability for student-on-student sexual harassment to those situations where the defendant institution “exercises substantial control over both the harasser and the context in which the known harassment occurs.”
As the geographical area of Yik Yak was 1.5 miles, within which UMW was situated (but extending beyond the campus’ area), and it was transmitted over the school’s WiFi, the court inferred that the unknown people making the Yaks, or in terms of the Davis calculus, the “harassers,” were students and the “context” was UMW’s transmission of Yik Yak.
The Complaint also alleges that the University could have sought to identify those students using UMW’s network to harass and threaten Feminists United members. If the University had pinpointed the harassers, it could then have circumscribed their use of UMW’s network. Indeed, it is widely known that a university can control activities that occur on its own network.
To the extent the University contends it was unable to control the harassers because the offending Yaks were anonymous, we readily reject that proposition. The Complaint alleges that the University never sought to identify the students who posted the offending messages on Yik Yak, even though some of those messages were facilitated by (i.e., posted through the use of) UMW’s network. Nor did the University ever ask Yik Yak to identify those users who had harassed and threatened UMW students. The University cannot escape liability based on facially anonymous posts when, according to the Complaint, UMW never sought to discern whether it could identify the harassers.
Whether this is technically accurate, as the court drew an analogy to illegal music downloading, that UMW failed to try to identify the Yakkers or remove the Yik Yak from its wireless network was sufficient to establish liability.
In dissent, Judge G. Steven Agee ripped the majority’s exposure of UMW for failure to assert control over the internets.
Make no mistake, the majority’s novel and unsupported decision will have a profound effect, particularly on institutions of higher education, until the Supreme Court reaffirms that Davis means what it says. Institutions, like the University, will be compelled 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 the majority now proclaims. The University should not hesitate to seek further review.
On the one hand, had UMW “shut down” Yik Yak because Feminists United demanded it do so, what of the other students on campus who might wish to use it for other purposes? On the other hand, even if it was banned on the UMW system, it would remain available regardless, just not on their system. And while the plaintiffs conceded that the “harassers” were anonymous, the UMW Yik Yak extended beyond the campus, so that it could have been anyone and, even if it was students,they were beyond the school house gate.
But as FIRE’s Sam Harris notes, there remained an “elephant” on the WiFi that the court ignored.
Unfortunately, the opinion does not address one of the most significant issues in the case, which is whether the speech in question even rose to the level of unprotected harassment or true threats in the first place. FIRE strongly believes it did not, and we submitted an amici curiae brief — joined by the Cato Institute, the National Coalition Against Censorship, and law professor (and former ACLU president) Nadine Strossen — on that point, arguing that “[t]his case turns exclusively on the university’s response to offensive but constitutionally protected speech.” Ultimately, it is almost impossible to conceive of this case being resolved without addressing this enormous elephant in the room; if the speech was constitutionally protected, and was not harassment, then the question of substantial control is irrelevant.
Much as the women of Feminist United demanded that UMW eliminate offensive speech, it came in response to their speech, from their complaints about the rugby team to a subsequent student newspaper op-ed and lectures by Paige McKinsey, including her arguing against allowing “Greek Life” on campus because it would increase rapes.
Not only did this start with an attack on the rugby team for singing a “repulsive” song, but Feminists United didn’t care for a great many things happening on campus that others wanted. And they let Feminists United know their views in whatever language they chose, anonymously and wirelessly. The Fourth Circuit has now held that there is liability for UMW for free speech on the internet in response to feminist demands for control of thought and campus life.