Last week, the U.S. Court of Appeals for the Fourth Circuit heard oral arguments in a Title IX sex discrimination complaint brought by the Feminist Majority Foundation against the University of Mary Washington and UMW’s former president Richard Hurley.
FMF’s lawsuit alleges systemic failure to protect students from a sexually hostile school environment, sexual harassment, sex-based cyber assaults, and threats of physical and sexual violence. Co-plantiffs include Feminist United, an on campus women’s rights group affiliated with FMF, as well as five former student members of Feminists United. Dean Erwin Chemerinsky, a preeminent Constitutional law scholar, argued the appellate case on behalf of the students and FMF.
The case involves incidences that took place throughout the 2014-2015 school year on the Virginia university campus, during which time Feminists United, as well as individually named members, were targeted with cyber-stalking, sexual harassment, and threats of rape and murder on the anonymous social media app Yik Yak. The university took no action to shut down the platform or investigate who was responsible, misguidedly citing First Amendment concerns.
“Threatening women with rape and murder is not protected speech; it is blatant sex discrimination intended to silence, harass and intimidate women students who dared to protest and work against sexual violence,” said Eleanor Smeal, president of the Feminist Majority Foundation. “Women cannot enjoy the full benefits of an educational opportunity if they are terrorized and fearful for their physical safety.”
“The University acknowledges that the students were subjected to ‘cyber-bullying,’ harassment in over 700 anonymous online posts, and threats of rape and murder,” said Chemerinsky in a statement. “The campus did virtually nothing and even declared itself powerless to do anything. This deliberate indifference on the part of university officials violates federal civil rights laws and the U.S. Constitution.”
In court last week, two members of the three judge appeals panel stated that anonymous cyber threats of rape and murder are not protected under the First Amendment, and posed an important question to the deputy attorney general representing UMW: If the content of the anonymous Yaks had been bomb threats against the university, would the school not have done everything in its power to find the culprit? They also asked the deputy attorney general what the difference is between anonymous Yaks and flyers that are anonymously posted around campus. Chereminsky argued that just because the threats were delivered online “doesn’t give the university a pass.”
“We feared for our safety and complained numerous times to President Hurley and university administrators, but UMW repeatedly failed to investigate our reports and took no action to address either the threats made against us, or the pervasive rape culture at school that allowed this behavior to go unchecked,” said Julia Michels, former president of Feminists United. “Even worse, when we tried to advocate for ourselves, President Hurley publicly retaliated against us, making us targets for yet another surge of online sex-based harassment.”
In May 2015, the students and FMF filed a Title IX complaint with the Office of Civil Rights at the Department of Education. The next day, UMW issued a public statement denying the allegations and suggesting that the students made false accusations against the university, leading to an increase in anonymous Yik Yak attacks against them. A month later, President Hurley released a hostile letter to the entire campus community and numerous media outlets accusing the women, one of them by full name, of making false claims in their OCR complaint. The letter was published in full by the Washington Post, the Associate Press, and other media outlets, and the Yik Yak attacks against the young women once again escalated.
Two years after filing the Title IX complaint with the Department of Education, OCR had yet to release any resolution. With a two year statute of limitations approaching, the lawyers representing FMF and Feminists United pulled the OCR complaint and filed a federal lawsuit. The appeal was brought after a District Court judge dismissed the case in September 2017, finding that the university had not violated Title IX. A ruling from the appeals court is expected in a few months.
Media Resources: Feminist Majority Foundation 5/8/18; Feminist Newswire 5/11/17; Washington Post 5/8/18