Over the past few years, there have been a number of debates and legal fights concerning questions around Title IX and due process. Title IX of the Education Amendments Act of 1972 is supposed to protect people in educational settings from sex discrimination. It has been interpreted in some questionable ways, lately, with regards to the due process of anyone accused. But, now it's also impacting some other areas as well. The folks at FIRE highlight a fairly horrific appeals court ruling in the 4th Circuit, overturning a lower court ruling (that had dismissed the case), saying that a university might be required to ban access to certain websites under Title IX.
The case was filed against the University of Mary Washington, claiming Title IX violations from some students/student groups. While the court leaves some of the claims dismissed, it reinstates a specific Title IX claim that is quite worrying. As FIRE's Samantha Harris explains first the background of the case:
The case, Feminist Majority Foundation v. University of Mary Washington, stems from a series of events that roiled UMW’s campus back in 2015. At the time, members of the UMW student group Feminists United on Campus (a local affiliate of Feminist Majority Foundation) were speaking out about several issues on campus, including the student senate’s decision to authorize fraternities as well as a bawdy rugby chant that several members of UMW’s men’s rugby team were recorded singing at an off-campus party. Following their advocacy, FUC members found themselves the targets of online hostility, particularly on a now-defunct platform called Yik Yak that allowed users within a certain geographic radius to post anonymous messages. FUC complained about this repeatedly to the UMW administration, and after they found UMW’s response to their complaints to be lacking, they first filed a complaint with the U.S. Department of Education’s Office for Civil Rights and then, ultimately, a federal lawsuit.
The lawsuit claims that UMW discriminated against the plaintiffs, in violation of Title IX, by responding with deliberate indifference to their claims of peer harassment, and by allowing UMW students to retaliate against the plaintiffs for filing an OCR complaint. The suit also alleges that former UMW president Richard Hurley retaliated against the plaintiffs by publicly defending the university against their allegations of discrimination.
The lower court dismissed the case, but here the 4th Circuit brings back a large component of it in a very troubling manner. Basically, by saying that since the University provided internet access to sites where harassing content could be found (on the third party app Yik Yak), the University was potentially liable:
The Complaint alleges that much of the harassment occurred through Yik Yak. Although that harassment was communicated through cyberspace, the Complaint shows that UMW had substantial control over the context of the harassment because it actually transpired on campus. Specifically, due to Yik Yak’s location-based feature, the harassing and threatening messages originated on or within the immediate vicinity of the UMW campus. In addition, some of the offending Yaks were posted using the University’s wireless network, and the harassers necessarily created those Yaks on campus. Moreover, the harassment concerned events occurring on campus and specifically targeted UMW students....
Furthermore, to the extent the sexual harassment was communicated through UMW’s wireless network, the Complaint alleges that the University could have disabled access to Yik Yak campuswide. The Complaint also alleges that the University could have sought to identify those students using UMW’s network to harass and threaten Feminists United members. If the University had pinpointed the harassers, it could then have circumscribed their use of UMW’s network. Indeed, it is widely known that a university can control activities that occur on its own network. A university may, for example, bar a student caught downloading music or movies in violation of copyright laws from accessing its network.
Ah, there's that copyright creep situation again. It's annoying when the average clueless joe says something along the lines of "well, if you can kick people offline for copyright, why not x..." but having a Federal Appeals Court Judge say it is really frustrating.
But think about what the court is saying here. Because this happened via the university's network (even on an app totally unrelated and out of the control of the university), the university can still be blamed for not blocking it. That's... crazy. That means that a university would need to proactively police the entire internet to stop anyone from saying anything harassing -- and if they come across anything or are told of anything, they'd be required to block access to that site or app entirely for all students. How is that reasonable?
The court also rejects the fact that the university had no way of figuring out who posted the "offending Yaks." Yik Yak (which went out of business last year) was always entirely anonymous. But the court doesn't seem to care:
To the extent the University contends it was unable to control the harassers because the offending Yaks were anonymous, we readily reject that proposition. The Complaint alleges that the University never sought to identify the students who posted the offending messages on Yik Yak, even though some of those messages were facilitated by (i.e., posted through the use of) UMW’s network. Nor did the University ever ask Yik Yak to identify those users who had harassed and threatened UMW students. The University cannot escape liability based on facially anonymous posts when, according to the Complaint, UMW never sought to discern whether it could identify the harassers.
The dissenting opinion in the ruling clearly sees the problematic impact of all of this:
Make no mistake, the majority’s novel and unsupported decision will have a profound effect, particularly on institutions of higher education, until the Supreme Court reaffirms that Davis means what it says. 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. The University should not hesitate to seek further review.
The case is far from over (and FIRE also notes that there's a separate issue of whether or not the content was even harassing in the first place, that hasn't even been considered yet). But the implications here are huge and really damaging.