Feminist Majority Found. v. Univ. of Mary Wash.

• Decision Date: 19 September 2017
• Docket Number: Civil Action No. 3:17–cv–00344–JAG
• Citation: 283 F.Supp.3d 495
• Court: U.S. District Court — Eastern District of Virginia
• Parties: FEMINIST MAJORITY FOUNDATION, et al., Plaintiffs, v. UNIVERSITY OF MARY WASHINGTON, et al., Defendants.

283 F.Supp.3d 495

FEMINIST MAJORITY FOUNDATION, et al., Plaintiffs,

v.UNIVERSITY OF MARY WASHINGTON, et al., Defendants.

Civil Action No. 3:17–cv–00344–JAG

United States District Court, E.D. Virginia, Richmond Division.

Signed September 19, 2017

Tim Schulte, Shelley & Schulte PC, Richmond, VA, Carolyn Leah Wheeler, Pro Hac Vice, Debra S. Katz, Lisa J. Banks, Katz Marshall & Banks LLP, Washington, DC, for Plaintiffs.

John Godfrey Butler, III, Rita Poindexter Davis, Office of the Attorney General, Richmond, VA, for Defendants.

OPINION

John A. Gibney, Jr., United States District Judge

This case arises from the cyberbullying of a student-run feminist organization at the University of Mary Washington ("UMW"). The cyberbullying occurred primarily through a social media smartphone application called Yik Yak. Yik Yak allowed users to anonymously share messages—called "yaks"—with other users within a certain radius (e.g., with users at or around UMW). Other users could then anonymously comment on yaks or could vote up or down on the yaks. During the 2014–2015 school year, users on Yik Yak harassed the plaintiffs by posting insulting, derogatory, and threatening yaks. The plaintiffs complained to UMW about the harassment, and eventually filed a complaint against UMW under Title IX.

The plaintiffs have now sued UMW, along with its current and former presidents, for violations of Title IX and the Equal Protection Clause. The defendants have moved to dismiss. Because UMW has limited, if any, control over Yik Yak, the plaintiffs' Title IX discrimination claim fails. Their Title IX retaliation claim fails because UMW took no retaliatory action against the plaintiffs. Finally, because no constitutional violation occurred, let alone a clearly establish or continuing violation, the plaintiffs have not stated claims under the Equal Protection Clause. Accordingly, the Court will grant the defendants' motion to dismiss.¹

I. BACKGROUND

During the 2014–2015 school year, the five individual plaintiffs were students at UMW, a public university that receives federal funds. The individual plaintiffs served on the executive board of Feminists United on Campus ("Feminists United"), a student-run organization "dedicated to educating the student body about gender issues and fighting for gender equality." (Am. Compl. ¶ 11.) Feminists United is an affiliate of the Feminist Majority Foundation (the "FMF"), an organization "dedicated to women's equality, reproductive health, and non-violence." (Am. Compl. ¶ 10.)

In late 2014 and early 2015, members of Feminists United spoke out about different campus happenings that implicated issues important to their organization, such as sexual assault and violence against women.² After Feminists United spoke out, users on Yik Yak began posting insulting and derogatory yaks about Feminists United and its individual members.³ These posts, together with a handful of in-person encounters, made members of Feminists United feel unsafe on campus. Feminists United reported the posts and encounters to the UMW administration, including then-president Richard Hurley, multiple times. The members also reported feeling unsafe multiple times.

Waves of cyberbullying against Feminists United and its members continued throughout the spring of 2015. In some instances, the yaks included threats of physical and sexual violence,⁴ and some mentioned members of Feminists United by name. Some yaks included a member's location on campus so that people could confront her in person. These posts frightened members of Feminists United. One member reported her discomfort to campus police, who sent a police officer to attend both a Feminists United meeting and another meeting a yak had identified as one that the member planned to attend.

UMW organized some "sharing circles" to discuss Yik Yak at UMW. In addition to the yaks directed at Feminists United and its members, other students and student groups at UMW were experiencing cyberbullying through Yik Yak, including African American, Islamic, and Latino students.

Unhappy with UMW's responses both to the posts and to other events on campus, Feminists United asked to meet with the administration to express their concerns and to explain their increasing fear for their personal safety. Feminists United requested that UMW, among other things, disable Yik Yak on campus and ban Yik Yak from UMW's wireless network. UMW told Feminists United that they could not consider disabling Yik Yak because of First Amendment concerns.

In May 2015, Feminists United and its members, joined by the FMF, filed an administrative complaint with the Department of Education's Office of Civil Rights ("OCR"), alleging that UMW violated Title IX "by failing to adequately address the sexually hostile environment created by persistent online harassment and threats." (Am. Compl. ¶ 68.) The plaintiffs held a press conference at UMW the next day. After the press conference, UMW issued a public statement that allegedly denied the allegations in the OCR complaint and suggested that the plaintiffs made false accusations about UMW and its actions. In the days that followed, anonymous users posted more disparaging and harassing statements against Feminists United on Yik Yak.

On June 8, 2015, President Hurley sent a letter to the FMF (the "June 8 Letter"), responding to some of the allegations in the OCR complaint. Hurley published this letter with various news outlets. In the letter, Hurley detailed UMW's actions in response to Feminists United's concerns and explained the First Amendment concerns involved with banning Yik Yak. He commented that some of the yaks "were certainly offensive and alarming in isolation, but must be placed in context." (See Am. Compl. ¶ 73.)⁵ Anonymous Yik Yak users continued to post hostile and harassing comments about Feminists United and its members after the publication the June 8 Letter and throughout the summer of 2015.

II. DISCUSSION ⁶

The plaintiffs⁷ allege four counts in their complaint: (1) sex discrimination in violation of Title IX, brought against UMW; (2) retaliation in violation of Title IX, brought against UMW; (3) violation of the Equal Protection Clause, brought against President Hurley in his individual capacity pursuant to 42 U.S.C. § 1983 ; and (4) violation of the Equal Protection Clause, brought against Troy Paino, current president of UMW, in his official capacity pursuant to § 1983. The defendants have moved to dismiss all counts.

A. Title IX

Title IX prohibits sex-based discrimination in certain educational institutions that receive federal funds. 20 U.S.C. § 1681(a).⁸ For violations, the Supreme Court has recognized an implied private right of action against the funding recipient. Cannon v. Univ. of Chicago , 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979).

The plaintiffs have sued UMW for both Title IX discrimination and retaliation.

1. Discrimination

To establish a Title IX claim, a plaintiff must show that a funding recipient acted with deliberate indifference to known acts of sexual harassment so severe, pervasive, and offensive that the harassment deprived the plaintiff of access to educational opportunities or benefits. Davis v. Monroe Cnty. Bd. of Educ. , 526 U.S. 629, 650, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). This standard focuses on the funding recipient's actions or inactions—not the actions of third parties. Id. at 640, 119 S.Ct. 1661. Further, the Supreme Court has limited a funding recipient's liability under Title IX to circumstances where the recipient can take action—that is, to circumstances where the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs. Id. at 645, 119 S.Ct. 1661.⁹ Liability attaches only where the recipient's response, or lack of response, to the harassment "is clearly unreasonable in light of the known circumstances." Id. at 648, 119 S.Ct. 1661.

When considering actions taken by a funding recipient in response to known harassment, "courts should refrain from second-guessing the disciplinary decisions made by school administrators." Id. at 648, 119 S.Ct. 1661. The plaintiff cannot make particular remedial demand. Id. Overall, the Supreme Court describes the standard for liability under Title IX as "sufficiently flexible to account both for the level of disciplinary authority available to the school and for the potential liability arising from certain forms of disciplinary action." Id. at 649, 119 S.Ct. 1661. "A university might not, for example, be expected to exercise the same degree of control over its students that a grade school would enjoy, and it would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims." Id.

In this case, the Title IX discrimination claim fails because the harassment took place in a context over which UMW had limited, if any, control—anonymous postings on Yik Yak.¹⁰ Nevertheless, UMW attempted to take some action, such as holding sharing circles to discuss the issue of cyberbullying.¹¹ Further, when a yak targeted a member of Feminists United specifically and made her feel unsafe attending meetings on campus, a UMW police officer attended the meetings. While UMW did not take the specific action requested by the plaintiffs, Title IX does not require funding recipients to meet the particular remedial demands of its students. This holds true especially where some of the actions requested—such as banning Yik Yak from the campus wireless network—may have exposed the university to liability under the First Amendment. For these reasons, the plaintiffs have failed to state a plausible Title IX discrimination claim.

2. Retaliation

The Supreme Court has recognized that retaliation constitutes a form of discrimination under Title IX. Jackson v. Birmingham Bd. of Educ. , 544 U.S. 167, 174, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). To state a claim for Title IX retaliation, the...