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Mary Washington Ruling Threatens Free Speech on Campus

Dissenting judge warns of "Catch-22 Title IX liability."

Mary WashingtonMorgan RileyOn Wednesday, the Fourth Circuit Court of Appeals largely sided with the feminist students who sued the University of Mary Washington (UMW) for failing to protect them from harassment via the anonymous texting app Yik Yak. If it stands, this outcome will imperil free speech on campuses.

"Make no mistake, the majority's novel and unsupported decision will have a profound effect, particularly on institutions of higher education," writes Judge Steven Agee in a persuasive 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." (Title IX is the federal statute that governs campus sexual misconduct.)

The case is the result of a series of disturbing events that took place during the 2014–2015 school year at Mary Washington, a public university located in Fredericksburg, Virginia. Members of an activist young group, Feminists United on Campus, alleged that male rugby team members had engaged in sexist chanting. Many people vented their frustration with the feminists using the anonymous texting app Yik Yak (which has long since ceased to exist); some of these texts were threatening. The April 17 murder of Grace Mann, a member of the group, seemed to confirm that female students were being targeted—though police never found any evidence that the killer, Steven Vander Briel, had sent, or acted on, the Yik Yak threats.

Feminists United on Campus eventually filed a Title IX complaint against the university alleging that the administration failed to protect students from sexual harassment. In response, UMW President Richard Hurley denied that he possessed either the responsibility or the authority to curb the offensive speech in question.

"[A]s a public university, UMW is obligated to comply with all federal laws—not just Title IX," wrote Hurley. "The First Amendment prohibits prior restraints on speech, and banning Yik Yak is tantamount to a content-based prohibition on speech."

In 2017, a federal district court agreed and dismissed the suit. But the Fourth Circuit has reached a different conclusion—one that should greatly concern supporters of free speech, according to the Foundation for Individual Rights in Education's Samantha Harris:

In a ruling that has far-reaching implications for universities' obligation to monitor and address the off-campus, online speech of its students, the court held that because UMW had the "technical capacity to control the means by which the harassing and threatening messages were transmitted" (that is, the ability to block campus network access to Yik Yak altogether) and because they could have taken other actions (such as "mandatory assemblies" or "anti-sexual harassment training") to make clear that sexual harassment by its student body would not be tolerated, the plaintiffs had sufficiently alleged that UMW had substantial control and thus could be liable for the harassment.

Unfortunately, the opinion does not address one of the most significant issues in the case, which is whether the speech in question even rose to the level of unprotected harassment or true threats in the first place. FIRE strongly believes it did not, and we submitted an amici curiae brief—joined by the Cato Institute, the National Coalition Against Censorship, and law professor (and former ACLU president) Nadine Strossen—on that point, arguing that "[t]his case turns exclusively on the university's response to offensive but constitutionally protected speech." Ultimately, it is almost impossible to conceive of this case being resolved without addressing this enormous elephant in the room; if the speech was constitutionally protected, and was not harassment, then the question of substantial control is irrelevant.

Simply put, Title IX cannot require administrators to violate the First Amendment. (Also of note: Education Secretary Betsy DeVos is currently taking significant steps to clarify that the scope of Title IX is more limited than what the Obama administration dubiously asserted.) I don't expect this decision to stand; if it did, public universities could face renewed pressure to police sexually suggestive speech on campus.

Photo Credit: Morgan Riley / Wikimedia Commons

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  • Fist of Etiquette||

    IX is greater than 1A.

  • Zeb||

    Not if 1A is a hexadecimal number.

  • a ab abc abcd abcde abcdef ahf||

    My hero!

  • Quixote||

    The ruling must, and should, stand. Clearly we cannot have inappropriate "texts" floating around any of our college campuses. Furthermore, not only our female students, but our respectable faculty administrators and professors, whether male or female, must be protected from any kind of "free speech" (ha-ha-ha) that impinges on their interests. A serious problem arose here at NYU when "parodies" were received suggesting that a distinguished department chairman had attempted to justify an act of alleged plagiarism on preposterous grounds. We called in the police to deal with that situation, and we remain fully prepared to take immediate action whenever unwanted communications are received by our distinguished faculty members. Similar measures should be taken everywhere in America. See the documentation of our nation's leading criminal "satire" case at:

    https://raphaelgolbtrial.wordpress.com/

  • ||

    I've just had too much egg nog to figure out if your kidding our not.

    Title IX should not now nor ever trump the 1st amendment....under any circumstances.

  • Longtobefree||

    IX = 0100100101011000
    1A = 0011000101000001

    IX > 1A

    (since X cannot be a hex number, I used the bit configurations.)
    OOPS! time for my meds - - - -

  • Enjoy Every Sandwich||

    This is not just unconstitutional; it's unrealistic. Expecting college administrators to be able to keep up with the myriad of social media platforms which are available today is foolish.

    If college students aren't able to handle negative social interactions on their smartphones, they're sure as hell not qualified to vote or make any other adult decisions.

  • Eddy||

    But, but...the university administration was *repeatedly notified* of the Yik Yak comments, thus they were on notice of the need to Do Something.

  • flyfishnevada||

    You could have stopped at it's Unconstitutional. Not only is it unrealistic to expect universities to monitor social media to protect those that might be offended, the government doesn't have that power and it flies in the face of the 1A. The logistics of such a proposal aren't even worth discussing.

  • BYODB||

    The only possible way for the University to comply is to stop providing internet to their students. Boy, too bad textbooks and coursework already pivoted to being mostly online huh?

  • Brandybuck||

    Wouldn't work. Some unwoke student would just get his internet from a private provider and still have a sexually violent app an there cellphone.

    Nope, the only solution would be to wall of the university and confiscate cellphones at the gate. Sort of like North Korea.

  • BYODB||


    ...the court held that because UMW had the "technical capacity to control the means by which the harassing and threatening messages were transmitted" (that is, the ability to block campus network access to Yik Yak altogether)...

    This is the bit I was commenting on, but you're basically right that the University would need to have total control over all available information sources to be able to comply with the full ruling. Something that is, of course, impossible not to mention unconstitutional for a publicly funded University.

  • bevis the lumberjack||

    "though police never found any evidence that the killer, Steven Vander Briel, had sent, or acted on, the Yik Yak threats."

    I went and looked through a couple of stories related to the murder and it sounds like the killer was simply batshit crazy.

  • Cynical Asshole||

    it sounds like the killer was simply batshit crazy.

    As is usually the case, but murder victims make great political props for whatever agenda anyone may want to push. See: anti-gun self defense zealots after every shooting. And the best part is, the deceased aren't able to object to being used as props because they're dead.

  • fdog50||

    Evidence didn't matter to people like Keith Olbermann and the others who blamed Sarah Palin for inciting Jared Loughner in Arizona, despite no showing that he had ever seen those ads she put up.

  • $park¥ The Misanthrope||

    Feminists United on Campus

    There really needs to be a K in there.

  • Cynical Asshole||

    Feminists Kunited on Campus?

  • Longtobefree||

    Feminists United as Campus Krazies?

  • georgeliberte||

    Feminists United as Campus Krazies Mens Enemies?

  • Quo Usque Tandem||

    Damn I'm too late to this party

  • $park¥ The Misanthrope||

    UMW President Richard Hurley denied that he possessed either the responsibility or the authority to curb the offensive speech in question.

    At least he gave it the ole college try.

  • Old Mexican - Mostly Harmless||

    (Also of note: Education Secretary Betsy DeVos is currently taking significant steps to clarify that the scope of Title IX is more limited than what the Obama administration dubiously asserted.)


    And, it needs to be said, taking a lot of heat for it from feminist and leftists pressure groups, totally unwarranted and unfair, and only because she works for an orange-hued and racist pussy-grabber.

  • Agammamon||

    That's not helping, but she'd be taking the same heat without Trump in office (well, actually, she'd never have been appointed without an iconoclast like Trump in office - no Republican would have had the balls and no Democrat would ever upset the Teacher's Unions).

  • Social Justice is neither||

    don't leave out the Dem activist base.

  • Zeb||

    (Title IX is the federal statute that governs campus sexual misconduct.)

    I think that really deserves a bit more explanation. Nothing in the text of the law says anything about sexual misconduct. It was supposed to be to make sure that women's sports and other programs were funded as well as men's. The sexual misconduct part is a very broad and kind of ridiculous interpretation.

  • Agammamon||

    Its written more broadly than that - its to ensure *parity* between women's and men's programs of all types.

  • Quo Usque Tandem||

    So it could evolve into the "Dear Colleague" miasma of the Obama administration.

  • Zeb||

    I've got an idea, then. There is more than one way to achieve parity. The university just needs to start a program that sends insulting and threatening to non-feminist men. Maybe send some people to frat parties to grope and proposition men. There's your parity!

    But seriously, yes, I've read the text of the law. It's still an absurd stretch to claim that one person getting insulted and threatened online means that there is some disparity in a university program.

  • BYODB||

    Which is why the best solution is to integrate all college programs. It would have the added benefit of destroying college sports, or at least making them almost unrecognizable.

  • Longtobefree||

    Actually, strictly applied to college sports, title 9 would just force the combination of all sports into single programs, open to all. OK, and maybe combining showers.
    Pull up the "ladies" tees from the golf course, and you're done. No changes required for football, basketball, tennis, soccer, and all that jazz; except to allow all students to try out for all sports.
    Since there will be a surplus of coaches for the sports previously segregated, fire the one that generates the least revenue.
    You wind up with a recognizable scene; men dominate based solely on skills and performance. A few women get to make the team in some sports. All is well.

  • Incredulous||

    But "parity" has nothing to do with sexual misconduct.

  • RPGuy16||

    What he said.

  • Rich||

    because UMW had the "technical capacity to control the means by which the harassing and threatening messages were transmitted" (that is, the ability to block campus network access to Yik Yak altogether) and because they could have taken other actions (such as "mandatory assemblies" or "anti-sexual harassment training") to make clear that sexual harassment by its student body would not be tolerated

    Oh, FFS! UMW had the "technical capacity" to cease all campus operations, and "other actions" *could* *always* be taken.

    There's no way this ruling stands.

  • Zeb||

    For fuck's sake. Wouldn't it just be easier not to use YikYak than to get the university to block it?

  • Enjoy Every Sandwich||

    That's the part that puzzles me. It's not as if use of that platform was a requirement to be a student. Apparently, even just being vaguely aware that somebody in the world disagrees with you is too much for today's college student to handle.

  • Incredulous||

    Yeah, it's fucking bizarre.

  • Pathos||

    Got some problems, here; hope someone can explain them...

    First, let's work from the agreement the First Amendment's freedom of speech is not absolute, something the Supreme Court has repeatedly stated; if I've already lost you, no need to read any more.

    The Davis case states, in part: "A private Title IX damages action may lie against a school board in cases of student-on-student harassment,... [when] that harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims..."

    When one reads the definition supplied for "harassment," how could some of the statements made by the "offending" UMW students *not* be considered harassment? Consider: "Gonna tie these feminists to the radiator and [g]rape them in the mouth."

    "Severe?" Check.
    "Pervasive?" Dunno.
    "Objectively offensive?" Check.

    I'm confused how that particular comment doesn't meet the criteria.

    Additionally, FIRE's amicus brief references Virginia v. Black's "intent" requirement. That same message meets that muster, too.

    Ms. Harris is quoted suggesting the ruling hinders "off-campus, online speech of its students;" however, the university was not asked by the litigants to restrict *off-campus* online speech--of which it has absolutely no control nor right to do--but *on-campus* online speech that meets the threshold of "harassment" laid out in Davis and, thus, is not covered by the First Amendment and falls under Title IX.

  • Zeb||

    There is no such thing as objectively offensive.

    And you left out the most important part of the quote from the Davis case. What have the supposed victims been deprived of? Seems to me that the ability to use Yik Yak without having your feelings hurt is the worst of it. The world is full of assholes. People need to learn to cope with that state of affairs because it isn't going to change.

  • Rossami||

    Finish the quote - "deprive the victims of access to the educational opportunities or benefits provided by the school."

    What educational opportunities or benefits were they denied as a result of this speech? If they were not denied any educational opportunities or benefits, then the speech, no matter how offensive (and whether or not barred by other laws) does not trigger Title IX.

    Furthermore, how exactly do you move speech made via an online platform run by a private company on servers that, as near as I can tell, were never even in the school's state into the category of "on-campus" speech that the school therefore has some sort of obligation to censor? The litigants most explicitly did demand that the university restrict off-campus speech.

  • Qsl||

    Actually, numerous aspects.

    At best, you could make the argument that if Yik Yak were being accessed on the school's network to make these kinds of posts, the school had an obligation to maybe block access from their networks.

    That isn't what is being wholly argued.

    It's the "other actions", which is essentially a never ending blackhole of monitoring the entire web for possible offending content made by students, and blocking access.

    Further, per your example, the harassment isn't being directed at women, but to feminist. That is de facto political speech, and has a much, much higher bar for being censored.

    Title IX shouldn't even apply.

  • Agammamon||

    First, let's work from the agreement the First Amendment's freedom of speech is not absolute, something the Supreme Court has repeatedly stated; if I've already lost you, no need to read any more.

    1. No, we can't work from that agreement.

    2. The USSC has said no such thing.

    3. The only 'exceptions' to free speech involve using it to violate other people's rights - fraud and incitement to violence.

    Now, explain how the university is going to be able to police THE ENTIRE INTERNET for sites that fit a definition of 'pervasive harrassment' that doesn't have a set standard so they can block access? And then explain why everyone else in the country wouldn't have the obligation to do the same thing? Anyone who offers wifi access - even a singe-location bed-and-breakfast run by the owners would have to troll the web to find potentially offending sites.

  • Dillinger||

    >>>incitement to violence.

    that ruling still pisses me off. walk away.

  • RoyMo||

    Well Reason is doomed, maybe the yahoos in charge of Tumblr knew this was coming...

  • Eddy||

    In the real world, this ruling will give incentives to colleges to go to the utmost limits of the First Amendment to censor student speech...and in the case of private colleges which aren't bound by the First Amendment they can even go beyond what the First Amendment permits...all for the sake of pre-emptively avoiding liability.

    The incentives applied here go beyond the facts of the specific case...colleges will be looking for a "safe habor" where they can have a censorship policy which protects them from Title IX liability, and only in the case of public institutions will there be legal counterpressure via the 1st Amendment.

    That is to say, many colleges won't wait until the "harassment" gets severe and pervasive, they'll try and stop it at the stage when it's merely annoying...just to show the courts they're doing something about the "problem" and thus avoiding liability.

    Plus the extra incentives from campus pressure groups, student life administrators, etc., to practice censorship - they will be able to cite this decision to support what they wanted done anyway.

  • Qsl||

    If so, you are looking at possibly the most radical reworking of the higher education system in the nation's history (not hyperbole). Cutting off access to questionable sites is one thing, but using the standard of "technical capacity" doesn't just end there. Research libraries are also up for grabs. Historical documents. Anything that is even remotely controversial is up for review. It is the memory hole writ large.

    And even as I think the effects would be devastating, I also think good riddance. It may start with Title IX, but it certainly won't end there.

  • Mickey Rat||

    The university had the technical means to control access to a social media platform...really?

    The only way for students to access the internet is through university controlled systems? That seems unlikely, to understate the issue. And the way to do is simply block access to the whole site? That seems an unreasonable legal expectation.

  • Longtobefree||

    And what would be the reaction of the students to an administrative requirement that they lock up their cell phones in assigned lockers at the edge of campus, and use only administration approved computers to access a limited subset of the web, dealing purely with academic areas?
    Better yet, what if all electronic devices were purged from campus, and all cell services were jammed to prevent unwanted messages?

    What then, Mein Fuhrer?

  • Agammamon||

    You don't need to jam - the university could set up a picocell network and route all traffic (voice and data) through their centers. You can still call 911 and browse a censored selection of websites but you can't receive 'harrassing' texts or calls - at least not unless you choose to leave the 'safe space' the university has provided.

    I can see the possibility of a 'jitterbug' style service coming in to place for sensitive souls where they can subscribe to have their phone company provide the above.

  • RoyMo||

    Your parade of horribles is as dystopian as a Sheri Tepper novel

  • John Thacker||

    So this decision claims that Title IX forces universities to filter campus-wide Internet access to any platform that might have harassing messages? University students are adults, that's ridiculous.

  • Longtobefree||

    University students are adults,

    Fake news.

  • CDRSchafer||

    Are you trying to be funny?

  • Agammamon||

    So, what did they expect the UM's censorship to accomplish?

    1. *They* posted on Yik Yak.

    2. They got nasty responses.

    Is it that they wanted the university to protect them from posting in the first place?

  • Mickey Rat||

    The university must destroy their ability to communicate to protect them from people nastily criticizing what they say.

  • Quo Usque Tandem||

    And now on to the Supreme Court.

    Are there any vacancies on the fucking fourth circuit, by chance?

  • Rossami||

    Yes, there are vacancies on the Fourth Circuit.

    Hopefully, this won't need SCOTUS to fix, though. This was just a panel decision. The Fourth Circuit could fix it themselves en banc.

  • Unicorn Abattoir||

    The idiots who filed this suit desperately want to live under a police state, thinking they'll be the ones making the calls.

    May they find themselves in the basement of the Lubiyanka if the succeed.

  • RoyMo||

    Has this ever not happened to whatever intellectuals and literati actually survive the revolution? Ancient China, modern Russia, Iran, they always turn on them in the end. Scant comfort though to the masses.

  • Unicorn Abattoir||

    ^This

  • BYODB||

    In fact, they'd be the first against the wall since you can't have true believers fucking up your power grab. Socialism and Communism are not known for their ethical treatment of minorities or fringe groups. Usually they just murder them so everyone can be on the same page (or else).

  • Unicorn Abattoir||

    ^This too.

    Once the revolution is over, the revolutionaries are expendable.

  • Jerry B.||

    Wonder if anyone has thought of finding out what social media platforms members of FUC and other campus feminist groups frequent, and then placing misogynistic comments on them so the university will be forced to block them on-campus.

  • Robert||

    though police never found any evidence that the killer


    Whoa, none of the article above that mentioned any killing! I haven't seen such elliptic style since E.R. Burroughs. Were we supposed to read the links in the preceding para. to see there was killing involved?

    Blame Mr. Soave or an editor for this text goof?

  • BYODB||


    The April 17 murder of Grace Mann, a member of the group, seemed to confirm that female students were being targeted—though police never found any evidence that the killer, Steven Vander Briel, had sent, or acted on, the Yik Yak threats.

    Selective editing on your part, or inability to read?

  • Robert||

    I coulda sworn that the words "The April 17 murder of" weren't there at 2:00.

  • BYODB||

    Fair enough! Besides, this is Hit and Run, reading the articles isn't what we're here for!

  • Brandybuck||

    There are articles to read?

  • Quo Usque Tandem||

    Like an old Playboy.

  • wreckinball||

    Too dumb to survive I guess is the new way.

    So you feel threatened by someone Yiking or Yaking in cyberspace and its the U Presidents job to hunt down the Yik Yaker?

    And a bunch of judges actually make a ruling that you must hunt down rogue yikkers and yakkers?

    We've gone batshit crazy

  • Sevo||

    I have only one question:
    Are the 4th Circuit's decisions as liable to 'correction' as the 9th's?

    Well, two:
    If not, why not?

  • Uncle Jay||

    Free speech in our higher re-education camps cannot be tolerated.
    Free speech is an antiquated, racist, sexist, homophobic idea of white slave owners who would openly denounce the wisdom and prudence of Saint Karl Marx.
    Therefore, in the interests of building a perfect socialist utopia, we must terminate all forms of free speech as to not confuse and bewilder the impressionable minds of the malleable students there.
    That way, we can further indoctrinate and brainwash the masses into the correct political beliefs that made the Soviet Union, the Eastern Bloc, North Korea, Cuba and now Venezuela the proletariat paradises they are today. Hopefully, we too can enjoy the joys and wonders of socialist slavery that blesses these wonderful and progressive countries. But to do that, we must not allow the average person to think or speak for themselves lest we miss the wonderful opportunity to terminate all vestiges of freedom in our capitalist hell hole.

  • TJJ2000||

    Everyone should take NOTE to how the world is starting to think.

    Do I hear individual court cases about any harassing comments made by Student X, Y, or Z?????? We have gone from a society of individual crime to a society of group/tool crime and have by-focus dismissed individuals of all crime.

    Why was the University taken to court??? Did the University send 'harassment' messages?

  • Liberty Lover||

    Just shut all higher education down. There no more problems.

  • Incredulous||

    Title IX DOES NOT govern campus sexual misconduct. It's been misused by the lunatics running the asylum to justify such policing but the actual law has nothing to do with sexual misconduct.

  • Longtobefree||

    While Title IX is purportedly for sports equity, some consider sex a sport. You know getting to first base and all that?
    And there you go - - - -

  • Incredulous||

    Title IX DOES NOT govern campus sexual misconduct. It has been bizarrely misused by lunatics running the asylum to justify such policing but it has nothing to do with it.

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