Word is that Feminist Majority Foundation, high on its win in the Fourth Circuit, is notifying colleges within the circuit that their failure to end “sexual harassment” on social media will make them liable. GOVERN YOURSELF ACCORDINGLY.
In the first federal decision of its kind, the court ruled that universities have obligations under Title IX and the Equal Protection Clause of the U.S. Constitution to investigate and take action to end sex-based harassment and threats targeting students on campus through social media. The court also ruled that universities cannot hide behind the First Amendment’s free speech protections as an excuse for not taking action.
Rare is the argument that an attenuated interpretation of a statute by second-tier bureaucrat at an executive branch agency trumps the Constitution. Of course, enjoying rhetoric about how the unwoke can’t “hide” behind the First Amendment’s free speech protections has become quite normal. Who cares about constitutional rights when there are feelings at stake, amirite?
“The Fourth Circuit has emphatically stated that it is the legal duty of universities to take action against sexual harassment and threats on social media, and that failure to act amounts to deliberate indifference to gender-based discrimination in violation of Title IX,” said Eleanor Smeal, president of the Feminist Majority Foundation. “Unlike the current Department of Education under Secretary DeVos, the Fourth Circuit is committed to enforcing Title IX and protecting students from sex-based discrimination. The court understands that whether harassment is online or in person, the impact is the same: students are cheated out of a safe learning environment.”
Granted, it’s one appellate court, the Fourth Circuit, and no other court in the nation has come anywhere near a peculiar holding, but it is, for now, the law within that circuit. And to be fair, Feminist Majority’s win was a huge one, and one they will seek to bootstrap into wins in other circuits as well.
More to the point, before another Fourth Circuit panel rules to the contrary, or the decision is reversed either en banc or by the Supreme Court, they will push colleges and universities to comply with this ruling and create a “new normal” of social media where never is any word spoken that doesn’t praise their favored demographic. Once done, it becomes hard to undo, even if colleges might be otherwise inclined (which may not be particularly likely).
What does this threat mean? You know that Facebook, that Twitter, that Instagram where you squander your time and attention? If there’s “sexual harassment and threats on social media,” colleges need to make it disappear or suffer the consequences. What does that mean, exactly? Whatever they want it to mean, really. What’s sexual harassment? What’s threatening? Whatever they decide it is, and then it’s left to colleges to show their fortitude to refusing to accept the Feminist Majority’s characterization and duke it out in court.
But really, what’s in it for colleges to pick the hill of social media to die on? You might like it, but does UVA? What if UVA jammed its campus WiFi so you couldn’t access social media, thus preventing you from uttering any words that might be taken as sexual harassment by some random individual on campus?
Heck, even if your local Feminist United demands that the college eliminate fraternities and require all male students to wear pink ribbons in their hair, your taking to Twitter to express your lack of support might cheat some young lady out of a safe learning environment. You can’t do that, no matter what that nasty First Amendment says.
No matter how silly it all sounds at the moment, and more to the point, how untenable it seems to live in a world where school marms are overseeing your social media use, what’s in it for colleges to defend your right to free speech, to challenge cries of sexual harassment, all so you can instagram a pic of your lunch? It may be that you can circumvent their execution of social media on campus with 4G, until the demand is that they block that too.
While it may well be argued that there’s no opposing contention as to the right or value of misogynistic social media use, why would colleges want to take the risk of liability that some student will utter something that some other student will find offensive? Or maybe there will be a new social media, where the scolds have delete buttons to make sure that nothing is said that will ever hurt the feeling of a co-ed again.