University of Mary Washington officials could have done more to protect students from online harassment, a federal appeals court said Wednesday in a ruling with implications for free speech and anonymous social media messages on college campuses.
In a 2-to-1 decision, the court said it could not “conclude that UMW could turn a blind eye to the sexual harassment that pervaded and disrupted its campus solely because the offending conduct took place through cyberspace.”
The case reached the U.S. Court of Appeals for the 4th Circuit after members of a student-run feminist group sued the public liberal arts university in Virginia for fostering a hostile environment and failing to protect them from threatening, sexist posts on the now-defunct messaging app, Yik Yak.
The case attracted national attention from a diverse group of organizations that raised concerns in court filings about censorship of campus speech on the one hand and the duty of colleges to respond to cyberbullying of students on the other.
Mary Washington officials had argued that blocking access to a private social media app risked violating the free speech rights of other students at the Fredericksburg school, which has about 4,400 undergraduates and 400 graduate students.
But the court said Wednesday that school officials, including retired president Richard Hurley, did not take meaningful action to deal with the threats.
“Rather than seeking to end the online harassment and threats, Dr. Cox — as UMW’s Title IX coordinator — simply advised the Feminists United members that the University was powerless to address the offending conduct,” according to the majority opinion written by Judge Robert B. King and joined by Judge Pamela Harris.
“President Hurley likewise declined to take any meaningful action to curtail the online harassment and publicly downplayed the seriousness of the threats aimed at the Feminists United members,” the court said.
University officials are obligated, the court said, to investigate and identify students who post threatening messages and to report them to law enforcement. Anonymous online threats are no different from other types of threats that are not protected by the Constitution.
“If UMW or a law enforcement agency had successfully identified the students who posted threatening messages, the offenders could have been disciplined or prosecuted without infringing on the First Amendment,” according to the 57-page ruling.
Attorney Debra S. Katz, representing the students who sued, called the ruling “a huge decision” with national significance. Too often, Katz said, college students suffer harassment from peers and others who hide in the anonymity of cyberspace.
“If you think about it, it’s sort of the coward’s way out to harass,” Katz said. Universities must now update their enforcement practices, she said, “to deal with the realities of how students are being harassed and mistreated on campus today.”
University of Mary Washington President Troy D. Paino, who took office in July 2016, said he and other senior officials have not yet had a chance to review the ruling.
“At this point in time, we really don’t have any comment,” Paino said when reached by telephone Wednesday afternoon.
Writing in dissent, Judge G. Steven Agee faulted the majority for reaching a decision without evidence of exactly who harassed the plaintiffs. Agee wrote that it was not clear that the perpetrators were students at the university.
“The Complaint does not identify the harassers or provide a factual basis for inferring whether they were students or nonstudents,” he wrote. “And even if assumed to be a University student, the Complaint also fails to identify who — of the over 5,000 University students — they were.”
Agee said the ruling could wreak havoc among colleges and universities. “Make no mistake, the majority’s novel and unsupported decision will have a profound effect, particularly on institutions of higher education,” he wrote, unless the Supreme Court intervenes. He wrote that 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 initial complaint was filed with the U.S. Education Department in 2015 by members of the student group Feminists United. The students were subjected to threats of sexual assault and cyberstalking, they said, after they spoke out on campus about Greek life and against a lewd chant by the rugby team. They felt threatened and unsafe and pressed university officials to take steps to disable the app on campus.
A U.S. district court judge last fall dismissed the lawsuit, finding that the university had not violated Title IX’s ban on sex discrimination on college campuses, and the students appealed.
The appeals court ruling sends the case back to the lower court.