Feminist Majority Found. v. Hurley (P)

A complaint for Title IX sex discrimination and retaliation sufficiently alleges a basis for imputing liability to the University of Mary Washington.

The university couldn’t turn a blind eye to the sexual harassment that pervaded and disrupted its campus solely because the offending conduct took place through cyberspace. The complaint alleges that the university had substantial control over the context of underlying harassment against members of a college feminist group because the harassment transpired on campus. Specifically, due to Yik Yak’s location-based feature, the harassing and threatening messages originated on or within the immediate vicinity of campus. Some offending Yaks were also posted using the university’s wireless network. The complaint alleges that the university could have disabled access to Yik Yak campuswide, sought to identify those students using its network to harass and threaten other students, clearly communicated to the student body that sexually harassing behavior wouldn’t be tolerated, and provided anti-sexual harassment training to the entire student body and faculty. These allegations sufficiently describe the university’s substantial control over the context in which the alleged harassment occurred.

The university contends it was unable to control the harassers because the offending Yaks were anonymous. But according to the complaint, the university never sought to identify the students who posted the offending messages on Yik Yak or asked Yik Yak to identify those users. Harassment was reported to the university multiple times over many months, but administrators responded merely with listening circles, a generic email, and police protection at a one-off student event. The university’s Title IX coordinator advised the Feminists United members that the university was powerless to address the offending conduct.

First Amendment concerns do not render the university’s response sufficient because (1) true threats are not protected speech, and (2) it had several options that did not present First Amendment concerns. The threats described in the complaint appear to constitute criminal conduct. Steps should have been promptly taken by the University to identify the perpetrators. When an educational institution claims that it has done all it can to address instances of sexual harassment and threats, a reviewing court should consider whether the institution failed to take other obvious and reasonable steps. The plaintiffs have sufficiently alleged a sex discrimination claim under Title IX, based on deliberate indifference to specified student-on-student harassment.

Similarly, an educational institution can be liable for acting with deliberate indifference toward known instances of student-on-student retaliatory harassment. If an educational institution can be liable for student-on-student sexual harassment, it can also be liable for student-on-student retaliatory harassment.

Five other appellate courts have concluded that a school official can be liable under the Equal Protection Clause for his deliberate indifference to student-on-student sexual harassment. Here, the plaintiffs have sufficiently alleged an equal protection claim against President Hurley. Hurley allegedly sought to downplay the harassment and threats and made no effort to stop them. However, Hurley is nevertheless entitled to qualified immunity because he lacked fair warning that his conduct gave rise to such a claim.

Accordingly, the 42 U.S.C. § 1983 equal-protection claim against President Hurley was properly dismissed. But the district court erred in dismissing the Title IX sex discrimination and retaliation claims.

Affirmed in part, vacated in part, reversed and remanded. Judge Agee dissented.

Feminist Majority Found. v. Hurley (P), No. 17-2220, Dec. 19, 2018. 4th Cir. (King) from EDVA at Richmond (Gibney).

Categories: 4th U.S. Circuit Court of Appeals, Opinions, Published

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