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Feminist Majority Foundation v. University of Mary Washington

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

September 19, 2017



          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 nonviolence." (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 plaintiffs[7] 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 ...

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