Lawsuit against U. of Mary Washington alleges defending free speech violates Title IX

Earlier this month, the Feminist Majority Foundation — along with its University of Mary Washington campus affiliate Feminists United and five former UMW students — filed a lawsuit against the Virginia public university and its president. They alleged that the university’s response to offensive speech by other UMW students was inadequate and perpetuated a hostile environment based on sex in violation of Title IX and the Fourteenth Amendment. Like the group’s 2015 complaint to the Department of Education’s Office for Civil Rights (OCR) concerning the same allegations, this lawsuit demonstrates a misunderstanding of the relationship between freedom of expression and harassment, and of FIRE’s work defending individual rights on campus.

Echoing Feminists United’s complaint to OCR, this lawsuit largely focuses on a surge of posts made to the smartphone app Yik Yak, which — prior to being shut down a few weeks ago — allowed users to post and read anonymous comments in their geographical vicinity. According to Feminists United, there were over 700 comments about group members, “many of which were overtly sexist and/or threatening.” Yet out of these hundreds of messages, most of those quoted in the complaint are plainly not serious threats of violence, but instead derogatory remarks or even invitations for students to engage in debate with members of Feminists United.

Universities should respond to true threats and to serious allegations of sexual harassment, and they can provide non-punitive resources to people who encounter offensive speech. But to the extent that remarks are merely sexist or offensive, a public university must recognize that such language is protected under the First Amendment and decline to take unlawful steps to censor it. Throughout their complaint, the plaintiffs conflate alleged threats and a pattern of conduct that they claim deprived them of educational benefits with remarks or behavior that made them uncomfortable.

Worryingly, the complaint further alleges that the university unlawfully retaliated against the students when university president Richard Hurley explained in a public statement that First Amendment considerations limited the steps UMW, as a public institution, could take in response to student expression. As my colleague Samantha Harris explained back in 2015 when the same allegation was made to OCR, this remark by Hurley is a correct statement of law. Campus administrators should not be subjected to investigations, lawsuits, or punishment for publicly responding to accusations against them with an accurate statement of constitutional law.

Most likely prompted by references Hurley made to FIRE in his defense of free speech, Feminists United’s lawsuit goes on to mischaracterize FIRE as “an organization that essentially defends verbal harassment on campus based on free speech grounds.” To the contrary, we advocate for a clearer line between prohibited harassment and protected speech, which allows harassment to lawfully be treated with the seriousness it warrants. If institutions adopt the Supreme Court’s definition of student-on-student harassment as FIRE urges them to do, they can adequately respond to conduct that interferes with students receiving their education without infringing on students’ First Amendment rights.

That definition sheds light on the problems throughout Feminists United’s complaint. In the 1999 case Davis v. Monroe County Board of Education, the Supreme Court defined student-on-student harassment as discriminatory conduct “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Two important components of this standard are that the harassment’s effect on the victim must go far beyond mere offendedness, and the requirement that the harassment be objectively — not just subjectively — bad enough to have this effect.

With respect to at least some of the complained-of expression, the plaintiffs acknowledge that it does not appear on its face to be problematic, a practical admission that the speech could not satisfy the Davis standard. For example, the lawsuit asserts that one student complained to the Title IX coordinator about the president of the men’s rugby team and other team members approaching her and “tr[ying] to engage her in a dialogue” about an op-ed she wrote. She wrote that the team members “didn’t do anything threatening” and conceded that “this does not seem concerning at face value.” Yet because she did not know if these men had also posted on Yik Yak, she felt “deeply unsafe.”

The complaint also notes that some “Yaks” revealed plaintiffs’ locations, arguing that this gave them reason to fear for their safety. But the example cited in the complaint was a Yak that “report[ed a plaintiff’s] whereabouts on campus so that posters could ‘call her out in person.’” Influencing someone to “call out” a peer is not the same, morally or legally, as inciting someone to find a particular student and harm her, and a public university cannot, consistent with the First Amendment, subject a student to an investigation or punishment for encouraging students to criticize each other.

Members of Feminists United requested that the app be blocked on the university’s wi-fi and disabled on campus. Thankfully, the university declined to take this step. Shutting down an entire forum for speech is not an acceptable response to that forum being used to communicate offensive expression, as we’ve written about before.

Aside from the posts to Yik Yak, plaintiffs demanded an institutional response to a chant — telling the story of having sex with a dead prostitute — allegedly performed by some members of the men’s rugby team at a party in November 2014. The chant did not contain threats to any groups or individuals, was not an incitement to imminent lawless action, and did not rise to the level of punishable harassment. Nevertheless, the following spring, the rugby team was dissolved. FIRE reported at the time on our concern that the public university took action against students for constitutionally protected expression, seemingly without due process.

The plaintiffs have argued that the many comments they received over a period of many months created a hostile environment based on sex that impeded their “ability to participate in or benefit from the school’s educational programs.” This is an accusation that should be taken seriously. In investigating claims of hostile environment harassment and retaliation, however, public institutions and courts evaluating their responses must not conflate speech that creates a hostile environment with mere attempts to engage in dialogue or speak on the issue of First Amendment rights.

The complaint in the lawsuit is embedded below: