The Volokh Conspiracy
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The recently amended complaint against University of Mary Washington, filed with the federal Education Department, shows how Title IX has become a tool for people to try to suppress speech they disapprove of. I blogged about one aspect of this campaign—the letter to the Education Department from what I called the national coalition in favor of campus censorship—yesterday. Today, I want to focus on the UMW complaint (filed by some UMW students and professors, as well as the Feminist Majority Foundation), which has been in the news alongside the coalition's letter: just last week, the Education Department was reported to have launched an investigation based on the complaint.
1. The initial complaint: At UMW, various students, mostly in a group called Feminists United on Campus, were condemning sexual assault at fraternities as well as a men's rugby team chant that allegedly referred to rape, murder of women and necrophilia. Those students of course had every First Amendment right to speak out that way. In response, those students apparently were appallingly targeted for threats of rape and other violence, especially on the anonymous Yik Yak social media platform.
What role universities should play in investigating such apparently serious threats of violence against students is an interesting question. Many universities, including UMW, have police departments and can work with prosecutors to get subpoenas and otherwise enforce laws banning crimes (such as threats) against students. To be sure, police departments generally have no legally enforceable duty to protect any particular students. But there are arguments that federal educational antidiscrimination law should be read as imposing a duty on these university departments to protect students against sex-based violence (or face loss of federal education funds if they breach that duty).
What's striking, though, about the UMW complaint is how far it goes beyond criminal threats. Here are some examples of the posts that the complaint complains about:
- "Students posted Yaks about the Greek life issue and Feminists United, including 'this feminist needs to calm the hell down,' and 'these feminists need to chill their tits,' and specifically calling Ms. McKinsey 'scary.'"
- "[M]ore derogatory Yaks were posted about 'the feminists' and Feminists United using insulting and offensive words, such as 'I fucking hate feminists and sour vaginas.'"
- "President Hurley attempted to contrast the rugby team chant with the racist chant by students at a fraternity at the University of Oklahoma, who were expelled. President Hurley remarked that if such a racist chant had happened at UMW, he would have suspended the individuals immediately. His comment made clear that he did not view the sexist and threatening chant by the rugby players at UMW to rise to a similar level even though the chant advocated the rape and murder of women. President Hurley's comments were highly offensive to Complainants and made clear to them that he and other UMW administrators did not understand their legal obligations under Title IX to maintain a campus environment free of sexual harassment and threats of violence."
- "After President Hurley's letter was received by the student body, there was an explosion of posts on Yik Yak, with sexist comments and threats directed at Feminists United, which was being blamed by many for the situation"—note the equation of "threats," which are constitutionally unprotected, with "sexist comments," which are constitutionally protected.
- "Feminists and Feminists United were referred to in various posts as femicunts, feminazis, cunts, bitches, hoes, and dikes."
Most of these statements are vulgar and sophomoric. Reducing debates to terms for people's genitals, whether women's genitals or men's, is both offensive and hardly conducive to thoughtful discussion. But the statements are generally First Amendment-protected speech, and indeed speech on a political and social controversy. What offends the complainants about the speech is precisely its "sexist" and "derogatory" viewpoint—including labeling feminists "feminazis," saying they "need to calm the hell down," viewing the rugby team chant differently from the University of Oklahoma chant, and the like. The federal government has no authority, and no business, requiring universities to shut down the expression of such viewpoints.
2. The allegations of "retaliation": But wait, there's more. After the initial complaint was filed, the UMW president, Richard Hurley, sent a letter to the Feminist Majority Foundation responding to the charges, and publicized the letter more broadly. So the complainants amended the complaint, claiming that the statement itself—the university president's speech defending the university against the charges—was illegal "retaliation."
President Hurley made a number of false statements regarding the allegations in the initial Complaint, in a blatant effort to disparage Complainants and to retaliate against them for filing their charge with OCR. In particular, the letter falsely asserted that the initial Complaint drew a "troubling" connection between Ms. Mann's death and the Yik Yak threats despite Ms. Katz and Feminists United's public statements to the contrary.
Hurley's letter had indeed said, "By far, the most troubling aspect of FUC's and the Feminist Majority Foundation's complaint is the implication that there is a connection between the concerns raised by members of FUC and the murder of Grace Mann. Grace's death was a terrible tragedy, but it is irresponsible for FUC and the Feminist Majority Foundation to opine that it was related to the rise in explicit and offensive comments on Yik Yak. Ms. Mann was killed in her off-campus house, and her housemate has been arrested for the murder. The housemate is a 31-year-old part-time student who returned to UMW to complete his degree after an eight-year absence. And contrary to misinformation in the media, the suspect in Grace's death was not a member of the current rugby club (and had not been a part of that club since 2006), nor does it appear that he was friends with members of the current rugby team. Moreover, prior to Ms. Mann's death, UMW received no reports of threatening or inappropriate behavior by the housemate since his return to campus."
But if you look at the original complaint, it does mention the murder:
63. On April 17, 2015, members of Feminists United, including Grace Mann, attended a "Day of Silence" event, aimed at raising awareness about the bullying of sexual minorities. Shortly after the event, Ms. Mann returned to her home, where she was murdered. Ms. Mann's roommate, Steven Vander Briel, a former member of the University's rugby team, was subsequently arrested and charged with First Degree Murder and Abduction.
64. In an email to President Hurley and Dr. Cox dated April 18, 2015, a Feminists United member expressed the anger and despair that she and other members of Feminists United had about the administration's inaction in the face of threats to Ms. Mann and other members of their group:
"What will it take for the administration to take its students seriously? The murder of one of the most passionate people at this school? Why was nothing done to address the threats directed towards Grace and the rest of [Feminists United] BEFORE THIS TRAGEDY? … You turned away when the members of [Feminists United} showed you 700 bullying and threatening posts…. My friend was murdered today, and you did nothing to protect her even when you were made aware of death and rape threats directed toward her." …
65. University administration never responded to that email.
It seems to me that the complaint mentioned the murder in the statement of facts, precisely to draw some "connection between the concerns raised by members of FUC and the murder," or to "opine that [the death] was related to the rise in explicit and offensive comments on Yik Yak." If there was no connection and no relationship, then the paragraphs would have no business being in the complaint.
Indeed, much press coverage of the original complaint drew such a connection; see, for instance, this Washington Post article, the opening sentence of which said, "A feminist group at the University of Mary Washington is accusing school officials of failing to act on threats against its members—one of whom was killed last month—on the popular and controversial messaging app Yik Yak, an attorney for the group said." It's true that the story went on to say that "Banks and United members said they have no evidence that Mann's activism or the threats on Yik Yak were related to her slaying," though "they said a flood of more than 700 messages—some of which targeted members by name—left them feeling afraid." Yet the discussion of Mann's murder in the complaint made clear that some connection was being drawn, even if no evidence was being presented of a closer relationship.
The supposed illegal "retaliat[ion]" by President Hurley here, then, is simply Hurley's (plausible) characterization of the complaint, which the complainants would instead characterize otherwise.
President Hurley might indeed have erred on some factual points. For instance, the complaint asserts that Hurley's letter "falsely stated that neither the University nor Campus Police ever received any reports from Ms. Mann (or other member[s] of Feminists United) that she or other members of Feminists United were being targeted by Yik Yak threat." The complaint responds that "in late March 2015, Ms. Mann told … her academic advisor [a professor] that Campus Police was aware of these threats. Moreover, at the March 31, 2015, rally to End Campus Rape, with various administrators and campus police present, Ms. McKinsey stated that she received threats on Yik Yak. Based on these facts, it is clear that Feminists United members did report receiving targeted threats on Yik Yak to the University and to Campus Police." This might be an error on Hurley's part, or it might be a difference in what counts as "reported to Campus Police or University administrators." (Relatedly, the amended complaint also states that the "letter also erroneously claimed that Ms. McKinsey was the only individual named in the Yik Yak posts.")
But in any event, errors on such relatively minor factual details are commonplace in public debate. At least so long as they aren't defamatory or otherwise tortious, they are protected against the federal government by the First Amendment. (And these factual errors, if errors they were, aren't tortuously defamatory, because they aren't the sorts of derogatory statements that are likely to expose someone to "throw contumely, shame, or disgrace" upon a living person.)
The same is so of the complaint's statement that "The letter also baselessly accused Complainant Smeal and Feminist Majority Foundation funding the initial Complaint." The letter does say that "we understand the Feminist Majority Foundation funded" the complaint, and Debra Katz (one of the lawyers who signed the letter) told me that she is "representing all complainants on a pro bono basis."
But this sort of error isn't defamatory. I take it that Hurley assumed that, given that the letter was written by lawyers representing a prominent national organization (the foundation owns the publisher of Ms. Magazine, for instance) as well as a smaller group plus several individuals, the lawyers' time was funded by the foundation. It turns out that the lawyers' time was provided by the lawyers themselves, and the foundation provided publicity rather than funding. But this sort of relatively minor factual error doesn't make speech libelous of the complaining students, or otherwise constitutionally unprotected.
Finally, the complaint adds the following allegations of retaliation:
Additionally, the letter minimized the severity of Yik Yak threats involving rape and murder and suggested that the Complainants' concerns were exaggerated and largely baseless. President Hurley stated that the threats should be "placed in context" because they were derived from various pop culture references…. As was his desired effect, the Associated Press, Washington, Post and other media outlets published President Hurley's retaliatory attacks on Complainants, causing them to suffer further fear of reprisal….
In response to President Hurley's letter, individuals began posting hostile comments on Yik Yak directed toward Feminists United. The posts expressed a sense of validation regarding the earlier posts along with a newfound sense of outrage toward Feminists United for filing their OCR charge. They also baselessly criticized Complainants for alleged linking Ms. Mann's death to threatening Yik Yak posts—something they clearly had not done. To the Complainants' knowledge, the University has not investigated these further comments.
And here we get to the heart of the problem with the "retaliation" argument: Here, the claims are that Hurley "retaliated" against the students by (1) expressing his opinions about the severity of the initial allegations and (2) publicizing those opinions widely, which led anonymous parties to further criticize Feminists United (and perhaps to threaten them, though that isn't specifically alleged in those paragraphs).
But all that Hurley was doing was engaging in normal public debate. When officials are accused of something, the accused set forth their side of the story. When complaints are picked up in the national media, the accused respond in ways that are picked up in the national media. Indeed, a recent California case, White v. Edley (Cal. Ct. App. 2015), held that University of California at Berkeley law school dean Christopher Edley actually had categorical immunity from libel law for his responses to an accusation of misconduct: "'Because a public official's duty includes the duty to keep the public informed of his or her management of the public business, press releases, press conferences and other public statements by such officials are covered by the 'official duty' privilege.'" Here, Hurley's discharge of this duty wasn't even libelous to begin with.
To be sure, some such responses by officials might lead to criticism of the complainants—and, on the part of some critics, perhaps even threats against the complainants (which, I stress again, may properly be punished, if they are true threats of violence). But that doesn't impose any obligation on the part of the accused officials to just shut up and let the charges against them spread without response.
Readers might recall the recent attempt to use Title IX to shut down critical speech as retaliation, in the Northwestern University / Prof. Laura Kipnis controversy, see here, here and here. This complaint is yet another such attempt.
The Feminist Majority Foundation, though a publisher of a magazine, doesn't seem to care much about the First Amendment rights of students, or of accused university officials. Its complaint goes far beyond constitutionally unprotected and rightly punishable speech, such as true threats of violence.
Instead, it faults the university for not stopping criticism of feminist arguments and feminist arguers, whether vulgar criticism or other criticism. It faults the university for speaking out, without vulgarities or epithets, in its own defense. And the premise of the complaint thus seems to be that one side of a debate has the right to speak—to condemn and to accuse—but the federal government should step in to stop the other side from responding.