OCR's Investigation of U. of Mary Washington Raises Free Speech Concerns

Last fall, a controversy arose at the University of Mary Washington (UMW) when several members of the UMW men’s rugby club were recorded participating in a bawdy song at an off-campus party. After members of the UMW student group Feminists United on Campus (FUC) complained about the recording, UMW dissolved the rugby club in March 2015 and ordered its members to sensitivity training.

After the incident, FUC members found themselves the targets of online hostility. As Jezebel’s Erin Gloria Ryan wrote,

FUC members found themselves scapegoated by their fellow students at the small university. Messaging app Yik Yak, which allows college students to relay their mental flotsam to the entire student body anonymously, filled with hostile messages. [Then-FUC President Paige] McKinsey says there were “hundreds” of Yaks, all of them of a similar tone.

Then, tragically, Grace Mann—a UMW student and FUC member—was murdered by her housemate in April 2015. There has been no connection established between Mann’s murder and the hostility on social media. But FUC members were understandably frightened by the murder, coming as it did so soon after all the online venom. This is obviously a sensitive situation, and I in no way mean to downplay how frightening a time that must have been for those students. I’m sure I would have been frightened as well. But it is precisely in times of fear that society often seeks to suppress critical rights—think of McCarthyism, for example, or the daycare abuse cases of the 1980s—and it is necessary to the continuation of a free society that we do not permit that to happen.

In May 2015, a group of students filed a complaint against UMW with the Department of Education’s Office for Civil Rights (OCR), asking the agency to open a Title IX investigation into UMW’s handling of the Yik Yak posts. Last week, OCR announced that it would, indeed, open an investigation. Inside Higher Ed reported the details today:

On Wednesday 72 women's and civil rights organizations urged the U.S. Education Department to tell colleges that they must monitor anonymous apps like Yik Yak—frequently the source of sexist and racist comments about named or identifiable students—and do something to protect those students who are named. The groups said they view anonymous online abuse as an emerging issue under provisions of the Title IX of the Education Amendments of 1972.

There are several very troubling aspects to all of this. First, as my colleague Will Creeley told Inside Higher Ed, requiring universities to monitor anonymous online speech would have “substantial” First Amendment implications, given the First Amendment right to speak anonymously. Indeed, the Supreme Court has ruled that anonymity "exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation ... at the hand of an intolerant society." McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).

Requiring such monitoring would also present universities with a Herculean task, and one that, as Will has explained in the past, is unnecessary given that harassment and threats are already prohibited by law:

The bottom line is that while schools are (correctly) legally required to respond to harassment on campus, whether that harassment be “in the real world,” on university-controlled websites, or with university-controlled e-mail addresses, it’s too much to ask that universities be responsible for the rest of the Web, too. It’s too big a job, it’s too problematic in terms of available remedies, and it’s an invitation to even worse speech abuses and speech codes. And, perhaps most importantly, it’s unnecessary. Again, it’s crucial to remember that students who feel victimized by nasty online speech have recourse to all the legal courses of action I outlined above: filing a criminal complaint against speech that reaches the threshold for incitement, intimidation, criminal harassment, or threat; or bringing a civil action for libel or defamation. Either way, students have methods of protecting themselves from truly harmful speech online without having to resort to asking their universities to intervene—a task for which those universities are thoroughly ill-suited.

Another issue of concern is the fact that, in their OCR complaint, the UMW students are seeking recourse not only for the university’s alleged failure to respond to harassment on social media, but also for the university’s efforts to defend itself against that allegation. According to Inside Higher Ed,

[a]fter the Mary Washington president, Richard Hurley, vociferously refuted those allegations in a letter to the campus community, the two groups amended their complaint, accusing Hurley of retaliating against the students with a “disparaging” letter. In addition to discrimination and sexual harassment, Title IX laws prohibit “retaliation” against anyone who files a complaint.

The idea that any speech critical of the way Title IX is administered on campus is itself cause for a Title IX claim is deeply concerning from a free-speech perspective. We saw this in the case of Northwestern professor Laura Kipnis, who found herself on the receiving end of a university Title IX investigation after she penned an essay for The Chronicle of Higher Education about what she called the “sexual panic” of the “post-Title IX landscape.” According to Kipnis, not only was she subjected to a university Title IX investigation, but a Title IX retaliation claim was even filed against the faculty support person who accompanied Kipnis to that investigation because he expressed concerns about that process to the faculty senate. If simply speaking up in defense of oneself or others on matters pertaining to sex discrimination constitutes retaliation under Title IX, then the law amounts to nothing less than a gag order on students and faculty.

If OCR’s Title IX investigation at UMW leads to new “guidance” on colleges’ responsibility to police students’ social media activity, a great deal of protected speech could find itself under threat on campus. Let’s hope that doesn’t come to pass.

We will keep you posted.