Thursday, January 3, 2019

University Liability Under Title IX for Anonymous Internet Harassment?

In a remarkable ruling, the Fourth Circuit held that a university may be liable for anonymous posts on a third party app - Feminist Majority Fdn. v. Univ. of Mary Washington.

Students generally alleged that they were harassed and threatened on Yik Yak because of their involvement in a feminist organization. Not familiar with Yik Yak? The now defunct app allowed anonymous posts from anyone within a certain geographic radius. It quickly devolved into something like Mos Eisley from Star Wars - "You will never find a more wretched hive of scum and villainy."

Title IX imposes liability on educational institutions that fail to adequately respond to sex-based harassment. Supreme Court precedent requires, however, that the university "exercises substantial control over both the harasser and the context in which the known harassment occurs." Davis v. Monroe County Board ofEducation.

Mary Washington was decided on a 12(b)(6) motion (i.e. under a very deferential standard at the initial pleadings stage). There are several truly remarkable components of the decision:
Not official use.
  • A university may have an obligation under Title IX to police a third party app that has no real connection to education (we're not talking about a forum used in courses or for any other university purpose);
  • The harassers might not even be students - the app was open to literally anyone who was within the geographic zone;
  • The geographic zone included nearby Fredericksburg, and was not limited to just the university campus.
Put more bluntly, and quoting from a blistering dissent: 
The majority . . . would hold a public university and its officers liable for an allegedly inadequate response to anonymous messages posted by unknown persons on a third-party social media app unrelated to the university.
The majority opinion stretches the boundaries of Title IX liability. It also creates significant First Amendment concerns as some of the proposed solutions included censoring or blocking access to certain online forums. Another quote from the dissent:
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 majority opinion maintained that the university had other reasonable steps that it could have taken to address the harassment without infringing on anyone's First Amendment rights. The dissent concluded by expressly advising the university to "seek further review."