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Feminist Majority Foundation v. Hurley

United States Court of Appeals, Fourth Circuit

December 19, 2018

FEMINIST MAJORITY FOUNDATION; FEMINISTS UNITED ON CAMPUS; PAIGE MCKINSEY; JULIA MICHELS; KELLI MUSICK; JORDAN WILLIAMS; ALEXIS LEHMAN, Plaintiffs - Appellants,
v.
RICHARD HURLEY, Former President of University of Mary Washington; TROY PAINO, Current President of University of Mary Washington; UNIVERSITY OF MARY WASHINGTON, Defendants - Appellees. NATIONAL WOMEN'S LAW CENTER et al.; NATIONAL EDUCATION ASSOCIATION, Amici Supporting Appellant, FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION; CATO INSTITUTE; NATIONAL COALITION AGAINST CENSORSHIP; NADINE STROSSEN; ELECTRONIC FRONTIER FOUNDATION, Amici Supporting Appellee.

          Argued: May 8, 2018

          Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney Jr., District Judge. (3:17-cv-00344-JAG)

         ARGUED:

          Erwin Chemerinsky, UNIVERSITY OF CALIFORNIA SCHOOL OF LAW, Berkeley, California, for Appellants.

          Samuel Thurston Towell, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

         ON BRIEF:

          Debra S. Katz, Lisa J. Banks, Carolyn L. Wheeler, KATZ, MARSHALL & BANKS, LLP, Washington, D.C.; Tim Schulte, SHELLEY CUPP SCHULTE, P.C., Richmond, Virginia, for Appellants.

          Neena Chaudhry, Emily Martin, Sunu Chandy, Alexandra Brodsky, NATIONAL WOMEN'S LAW CENTER, Washington, D.C.; Cathy A. Harris, Daniel Clark, KATOR, PARKS, WEISER & HARRIS, P.L.L.C., for Amici National Women's Law Center, et al.

          Alice O'Brien, Eric A. Harrington, Amanda L. Shapiro, NATIONAL EDUCATION ASSOCIATION, Washington, D.C., for Amicus National Education Association.

          Sophia Cope, Corynne McSherry, David Greene, Adam Schwartz, Aaron Mackey, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for Amicus Electronic Frontier Foundation.

          Charles M. Henter, HENTERLAW PLC, Charlottesville, Virginia, for Amici Foundation for Individual Rights in Education, Cato Institute, National Coalition Against Censorship, and Nadine Strossen.

          Before KING, AGEE, and HARRIS, Circuit Judges.

          KING, CIRCUIT JUDGE

         Plaintiffs Feminist Majority Foundation, Feminists United on Campus, and several Feminists United members appeal from the district court's dismissal of their civil action, filed pursuant to Title IX of the Education Amendments of 1972, as well as 42 U.S.C. § 1983. See Feminist Majority Found. v. Univ. of Mary Wash., 283 F.Supp.3d 495 (E.D. Va. 2017). The plaintiffs seek the reinstatement of three claims: a Title IX sex discrimination claim against the University of Mary Washington ("UMW," or the "University"); a Title IX retaliation claim against UMW; and a § 1983 claim against UMW's former president, Dr. Richard Hurley, for violating the Equal Protection Clause of the Fourteenth Amendment. See Feminist Majority Found. v. Univ. of Mary Wash., No. 3:17-cv-00344 (E.D. Va. June 9, 2017), ECF No. 13 (the "Complaint"). As explained below, we affirm the dismissal of the § 1983 claim and part of the Title IX retaliation claim. We vacate, however, the dismissal of the Title IX sex discrimination claim and the balance of the retaliation claim. We therefore remand for further proceedings.

         I.

         A.

         Because the district court dismissed the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, we accept and recite the alleged facts in the light most favorable to the plaintiffs. See Simply Wireless, Inc. v. T-Mobile US, Inc., 877 F.3d 522, 524 (4th Cir. 2017). Plaintiff Feminists United is a student organization at UMW and a local affiliate of plaintiff Feminist Majority Foundation, a national organization. During the 2014-2015 academic year, plaintiffs Paige McKinsey, Julia Michels, Kelli Musick, Jordan Williams, and Alexis Lehman were UMW students who served on Feminists United's executive board.

         1.

         In November 2014, UMW's student senate voted to authorize male-only fraternities at the University. During a campus town hall meeting following the senate's authorization, Feminists United members questioned the wisdom of having such fraternities at UMW, in light of "research that showed that Greek life on campus increased the number of [on-campus] sexual assaults." See Complaint ¶ 21. Plaintiff McKinsey was particularly troubled by the vote of approval, and she believed that UMW had failed to support victims of sexual assault in the past. Soon after the town hall meeting, UMW students debated the Greek life vote on Yik Yak, a now-defunct social media application. Yik Yak allowed its users within a limited geographic range to create and view anonymous messages known as "Yaks." Within the Yik Yak conversational thread available at UMW, several students expressed - in offensive terms - strong criticism of Feminists United and its members for their opposition to on-campus fraternities.[1]

          On November 21, 2014, several Feminists United members met with UMW's Title IX coordinator, Dr. Leah Cox, to explain their concerns about the University's past failures in responding to student sexual assault complaints. As the Feminists United members walked home from the meeting, other UMW students drove by and screamed, "Fuck the feminists!" See Complaint ¶ 24.

         Two days later, on November 23, a UMW student videotaped members of the UMW men's rugby team performing a chant that glorified violence against women, including rape and necrophilia.[2] Later that month, the student who recorded the rugby team video provided it to the UMW administration and informed plaintiff McKinsey about the video. Members of Feminists United subsequently met with then-President Hurley to discuss the rugby team's offensive chant. They were assured by Hurley that some unspecified "action" was being taken in response thereto. See Complaint ¶ 27.

         Despite President Hurley's assurances, plaintiff McKinsey perceived that UMW's administration was indifferent to the rugby team's chant and other discriminatory acts suffered by female students on campus. On January 29, 2015, McKinsey published an opinion piece in UMW's student newspaper explaining "[w]hy UMW is not a feminist friendly campus." See Complaint ¶ 28. McKinsey therein discussed the rugby team's chant and recent harassing and threatening Yaks aimed at Feminists United members. That article, however, was not well-received by some members of the UMW community and "led to an escalation of verbal assaults and cyber-attacks on members of Feminists United." Id. ¶ 29. For example, various comments of a "derogatory, sexist, and threatening" nature were posted to the school newspaper's website. Id. ¶ 85.

         On February 20, 2015, members of the UMW men's rugby team approached plaintiff McKinsey in the University's dining hall and confronted her about the newspaper article. That same day, McKinsey informed Dr. Cox - UMW's Title IX coordinator - that McKinsey felt unsafe on the UMW campus after her encounter with the rugby team members, particularly in light of the threats lodged against her and other Feminists United members on Yik Yak and the school newspaper's website. McKinsey requested that the UMW administration take "some sort of action." See Complaint ¶ 32.

         Dr. Cox responded to plaintiff McKinsey on February 24, informing McKinsey that Cox did not know what actions UMW would take against the men's rugby team. Cox offered, however, to schedule a mediated discussion between the rugby team and Feminists United. About that time, a UMW professor - concerned with the threatening nature of recent Yik Yak posts - emailed various Feminists United members to request their participation in what the professor called "listening circles." See Complaint ¶ 34. As proposed, UMW students, including Feminists United members, would meet with UMW faculty and administrators in small groups and explain how the offending Yaks were affecting them.

         On March 11, 2015, UMW held an open forum about sexual assault on campus, at which President Hurley downplayed the seriousness of the rugby team's chant. Several days later, plaintiff Michels emailed Hurley and notified him that she planned to release a transcript of the rugby team's chant to UMW's student newspaper because the administration had not yet punished those responsible for it. Michels reiterated that Feminists United members felt unsafe on campus. In response, Hurley disclosed that some students had been sanctioned for their participation in the repulsive chanting and that those sanctions had been appealed. Hurley added that he took student safety concerns "quite seriously." See Complaint ¶ 39.

         About a week after the open forum, President Hurley emailed the UMW student body, "generally discussing UMW's efforts to end sexual assault, violence against women, and others forms of discrimination and harassment." See Complaint ¶ 41. Without referencing the rugby team's chant or any other specific acts, Hurley described certain students' recent behavior as "repugnant and highly offensive." Id. That same day, Hurley met with several Feminists United members, who questioned why Hurley's email to the student body had not mentioned the rugby team's repulsive chant or the sanctions imposed on the students who had participated therein. Hurley responded that he was following his lawyer's advice and that "he would rather rely on the student grapevine to spread the word about what happened with the rugby team and why." Id. ¶ 42.

         On March 19, 2015, after several UMW students expressed outrage on Facebook over the rugby team's chant, President Hurley announced that all rugby activities had been suspended indefinitely and that the rugby players would be required to participate in anti-sexual assault and violence training. Immediately after Hurley's announcement, a flurry of harassing and threatening Yaks were directed at members of Feminists United, blaming them for the rugby team's suspension. The Yaks named plaintiffs McKinsey and Musick, along with Feminists United member Grace Mann, and contained threats of physical and sexual violence. By way of example, the Yaks threatened:

• "Gonna tie these feminists to the radiator and [g]rape them in the mouth";[3]
• "Dandy's about to kill a bitch . . . or two"; and
• "Can we euthanize whoever caused this bullshit?"

See Complaint ¶ 46 (alterations in original). Several of the offending Yaks, as alleged in the Complaint, also referred to Feminists United members by such terms as "femicunts, feminazis, cunts, bitches, hoes, and dikes." Id.

         In addition to naming plaintiff McKinsey, some of the offending Yaks shared her whereabouts so that she could personally be confronted. After McKinsey agreed to speak at the March 24, 2015 meeting of UMW's Young Democrats Club, an anonymous poster shared McKinsey's schedule and outlined a plan to accost her at that meeting. Although McKinsey had already notified UMW administrators about her safety concerns and had not received a satisfactory response, the anonymous Yak revealing the plan to confront McKinsey prompted her to contact UMW's campus police and report that she felt unsafe attending the Young Democrats meeting. The campus police believed the threat serious enough to assign an officer to the Feminists United and Young Democrats meetings that evening.

         On March 25, plaintiff Michels sent an email to President Hurley, Dr. Cox, and UMW's vice president, Douglas Searcy. The email explained that Feminists United members had documented "nearly 200 examples of students using Yik Yak to post either violent, vitriolic hate or threats against [them]," and that they feared for their safety on the UMW campus. See Complaint ¶ 49. Michels therein requested a meeting between Feminists United and the UMW administration to address the Feminists United members' safety concerns. As a result, Cox, Searcy, and other UMW employees met with Feminists United members the next day. The members then requested that the UMW administration take a number of steps. Those requests included: (1) contacting Yik Yak to have the Yik Yak application disabled on UMW's campus;[4] (2) barring access to Yik Yak on UMW's wireless network; (3) communicating "more transparent[ly]" with students; (4) announcing to UMW's student body that Feminists United "had no role in . . . [UMW's] decision [to suspend rugby activities];" and (5) hosting an "assembly to explain rape culture and discuss harassment, cyber bullying[, ] and social media issues." Id. ¶ 50.

         Rather than grant the requests of Feminists United, Dr. Cox sent a schoolwide email on March 27, 2015, addressing the University's recent cyber bullying issues. Cox asserted that nothing could be done, that is, the University had "no recourse for such cyber bullying." See Complaint ¶ 51. Instead, she encouraged UMW students to report any threatening online comments to Yik Yak or other platforms where such comments were made. Disappointed with Cox's approach to the ongoing threats, plaintiff Michels responded and urged Cox and UMW administrators to "take the lead against this problem." Id. ¶ 53.

         On March 30, 2015, following plaintiff Michels's response to Dr. Cox, another member of Feminists United emailed President Hurley and suggested that UMW's hands-off response to the offending Yaks had contravened the statutory mandate of Title IX. By that time, more than 700 harassing and threatening Yaks had been directed at Feminists United and its members. According to the email to Hurley, Feminists United members had reported the offending posts to Yik Yak for several months, but to no avail. The emailer described feeling so unsafe at UMW that she could not concentrate on her classwork.

         A day later, on March 31, Feminists United members held a march on the UMW campus to raise awareness about campus rape. At its conclusion, some UMW students and administrators, including President Hurley, gathered to hear plaintiff McKinsey speak. During her speech, McKinsey discussed the various threatening messages posted on Yik Yak. The following day, McKinsey emailed Hurley and asked whether the University would be taking action on Feminists United's request that students be barred from accessing Yik Yak on UMW's wireless network. Hurley responded that he had discussed the option of banning Yik Yak with "several experts" and was concerned about violating the First Amendment. See Complaint ¶ 59. Dr. Cox echoed Hurley's First Amendment concerns in a subsequent email to a Feminists United member. She added that if any student felt threatened by an "identified member[] of [the] community," the student should contact Cox or the campus police. Id. ¶ 60.

         On April 8, 2015, plaintiffs McKinsey and Michels met with President Hurley and other UMW administrators at the first of two listening circles to discuss the voluminous harassing and threatening posts on Yik Yak. Michels stressed that several Feminists United members felt they were in danger on the UMW campus, especially those students who had been named in the Yaks. Once again, UMW administrators failed to take any action in response to the harassment and threats.

         About a week later, Feminists United members and University administrators, including Dr. Cox, attended the second listening circle. The Feminists United members again expressed concerns about the offending Yaks and requested that UMW address the hostile campus atmosphere. A UMW professor recommended that the University provide "better training" and engage in "more transparency and communication at all levels." See Complaint ¶ 64. Dr. Cox responded, however, that "such solutions would violate privacy rights," and she otherwise failed to offer any plan to address the harassment and threats suffered by Feminists United members. Id.

          On April 17, 2015 - in an event later determined to be unrelated to the offending Yaks - UMW student and Feminists United member Grace Mann was killed by another student who was her roommate. During the immediate aftermath of that terrible event, Feminists United members were unaware that it had no apparent connection to the harassing and threatening Yaks. Mann's demise prompted one Feminists United member to send an email to UMW administrators chastising the University for its failure to respond to the Yik Yak bullying and threats. UMW administrators did not respond to that email.

         2.

         On May 7, 2015, the plaintiffs filed a complaint with the Department of Education's Office of Civil Rights (the "OCR complaint"), alleging that UMW had contravened Title IX by failing to address the hostile environment at the University resulting from the sexually harassing and threatening online posts. The plaintiffs also held a press conference on UMW's campus to announce the OCR complaint. That same day, UMW issued a statement denying the allegations in the OCR complaint. After the University's denials, several messages were posted on Yik Yak that again harassed Feminists United members, and also criticized the filing of the OCR complaint.

         About a month later, on June 8, 2015, President Hurley wrote to the president of the Feminist Majority Foundation addressing the OCR complaint. He promptly distributed copies of his responsive letter to the UMW community and several media outlets. According to the Complaint, Hurley's letter falsely asserted that the OCR complaint drew a connection between Grace Mann's death and the threatening social media posts. Hurley also inaccurately claimed that neither UMW nor its campus police had received any reports of Yik Yak threats directed at Feminists United members. Additionally, Hurley suggested that the safety concerns of Feminists United members were exaggerated because some of the online threats simply derived from "pop culture." See Complaint ¶ 73.

         In the wake of President Hurley's June 2015 letter, additional harassing and threatening messages were directed at Feminists United members on Yik Yak. Similar Yaks continued to be posted throughout the summer of 2015. According to the Complaint, "[t]he [new] posts expressed a sense of validation regarding the earlier posts along with a newfound sense of outrage toward Feminists United for filing their OCR [complaint]." See Complaint ¶ 74. The plaintiffs thereafter amended the OCR complaint to allege retaliatory conduct by UMW.

         B.

         In May 2017, the plaintiffs withdrew the OCR complaint and initiated this lawsuit in the Eastern District of Virginia, alleging, inter alia, the three claims now on appeal. First, the Complaint alleges that UMW contravened Title IX by being deliberately indifferent to student-on-student sex discrimination (the "sex discrimination claim"). In support of the sex discrimination claim, the Complaint specifies that UMW's deliberate indifference served to create and foster a campus atmosphere so hostile that Feminists United members refrained from leaving their homes, attending classes, and participating in campus events. Second, the Complaint alleges that UMW retaliated against the plaintiffs for advocating against sexual assault and reporting sexual harassment, also in violation of Title IX (the "retaliation claim"). According to the Complaint, UMW retaliated against the plaintiffs in two ways: (1) the University was deliberately indifferent to UMW students harassing and threatening members of Feminists United for engaging in protected conduct; and (2) President Hurley prepared and released his June 2015 letter, which made false accusations against - and was intended to disparage - members of Feminists United. Third, under § 1983 of Title 42, the Complaint alleges that Hurley infringed on the plaintiffs' equal protection rights under the Fourteenth Amendment (the "equal protection claim"). The Complaint alleges that Hurley contravened the plaintiffs' equal protection rights by, inter alia, failing to act against those UMW students who had sexually harassed members of Feminists United.[5]

         The defendants promptly moved to dismiss the Complaint under Rule 12(b)(6), asserting that it fails to state a claim upon which relief can be granted. President Hurley also maintained that he is entitled to qualified immunity on the equal protection claim. By its decision of September 19, 2017, the district court granted Hurley qualified immunity and dismissed the Complaint. See Feminist Majority Found., 283 F.Supp.3d at 502-03. The plaintiffs have timely appealed the district court's judgment of dismissal, and we possess appellate jurisdiction pursuant to 28 U.S.C. § 1291.

         II.

         We review de novo a district court's decision to grant a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Rockville Cars, LLC v. City of Rockville, Md., 891 F.3d 141, 145 (4th Cir. 2018). In conducting such a review, we are obliged to accept the complaint's factual allegations as true and draw all reasonable inferences in favor of the plaintiffs. See Singer v. Reali, 883 F.3d 425, 437 (4th Cir. 2018). A district court can properly grant a Rule 12(b)(6) dismissal only if the complaint fails to "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We likewise review de novo a district court's qualified immunity ruling. See Adams v. Ferguson, 884 F.3d 219, 226 (4th Cir. 2018).

         III.

         As heretofore explained, the plaintiffs appeal the district court's dismissal of three claims. We will first address and resolve the Title IX sex discrimination and retaliation claims, respectively. We will then consider and decide the § 1983 equal protection claim, which requires an assessment of President Hurley's assertion of qualified immunity.

         A.

         1.

         Beginning with the plaintiffs' sex discrimination claim against UMW, we recognize that Title IX provides, in relevant part, that "[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." See 20 U.S.C. § 1681(a). The Supreme Court has concluded that a victim of sex discrimination is entitled to pursue a private cause of action against a federally-funded educational institution for a violation of Title IX. See Cannon v. Univ. of Chi., 441 U.S. 677, 709 (1979). Nearly twenty years ago, in Davis v. Monroe County Board of Education, the Court explained that sexual harassment constitutes "discrimination" within the meaning of Title IX. See 526 U.S. 629, 649-50 (1999). The Court also then recognized that a covered institution can be liable under Title IX for its "deliberate indifference to known acts of [student-on-student sexual] harassment in its programs or activities," if that harassment "is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Id. at 633. An educational institution can only be liable for student-on-student sexual harassment, however, when the institution "exercises substantial control over both the harasser and the context in which the known harassment occurs." Id. at 645.

         The Davis Court acknowledged that educational institutions have a great deal of "flexibility" in disciplining students who sexually harass other students. See 526 U.S. at 648. Therefore, an institution is not normally liable for failing to cede to a harassment victim's specific remedial demands. Id. Nor is an institution subject to Title IX liability when it "refrain[s] from a form of disciplinary action that would expose it to constitutional or statutory claims." Id. at 649. That said, when the institution's response - or lack thereof - to known student-on-student sexual harassment is "clearly unreasonable," the institution has contravened Title IX. Id. at 648; see S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cty., 819 F.3d 69, 77 (4th Cir. 2016).

         Consistent with the Supreme Court's Davis decision, we have recognized that, to succeed on a Title IX claim premised on sexual harassment, a plaintiff must satisfy four elements. See Jennings v. Univ. of N.C. , 482 F.3d 686, 695 (4th Cir. 2007) (en banc). Those elements are: (1) that the educational institution receives federal funds; (2) that the plaintiff "was subjected to harassment based on her sex"; (3) that "the harassment was sufficiently severe or pervasive to create a hostile (or abusive) environment in an educational program or activity"; and (4) that "there is a basis for imputing liability to the institution." Id.

         2.

         The University has not disputed the sufficiency of the Complaint on the first, second, and third elements identified in our Jennings decision. That is, the Complaint sufficiently alleges that: (1) UMW receives federal funds; (2) many of the harassing and threatening Yaks targeted the plaintiff Feminists United members on the basis of sex; and (3) those Yaks, along with other online posts and in-person interactions, created a hostile and abusive environment. But UMW maintained below - and the district court agreed - that the Title IX sex discrimination claim fails as a matter of law on the fourth element of Jennings; that is, it lacks a basis for imputing liability to UMW.

         The district court explained that the sexual harassment endured by members of Feminists United "took place in a context over which UMW had limited, if any, control." See Feminist Majority Found., 283 F.Supp.3d at 501. Furthermore, the court concluded that UMW was not deliberately indifferent to such harassment because it "t[ook] some action," including coordinating listening circles and sending a campus police officer to attend two student events. Id. To the extent the plaintiffs faulted UMW for failing to respond to the harassment in their preferred manner, the court observed that "Title IX does not require [a university] to meet the particular remedial demands of its students." Id. The court also emphasized that one of those demands - "banning Yik Yak from the campus wireless network" - might expose the University to First Amendment liability. Id.

         3.

         On appeal, the plaintiffs maintain that the Complaint sufficiently alleges a Title IX claim for sex discrimination, including the fourth element, i.e., a basis for imputing liability to UMW. According to the plaintiffs, their allegations reflect that UMW had substantial control over both the context in which the student-on-student harassment occurred and those students who harassed Feminists United members. The plaintiffs also maintain that the Complaint adequately alleges UMW's deliberate indifference to such sexual harassment and specifies several ways the University could have responded without implicating the First Amendment. We must therefore focus on and resolve the crux of the sex discrimination claim: whether the Complaint sufficiently alleges a basis for imputing liability to UMW.

         a.

         The district court determined that UMW had little - if any - control over the context in which the Feminists United members were harassed, because nearly all of that harassment occurred through Yik Yak. We are satisfied, however, that the court's decision in that regard is undermined by the Complaint's factual allegations. In so ruling, we remain mindful that the Supreme Court's Davis decision limits an educational institution's Title IX liability for student-on-student sexual harassment to those situations where the defendant institution "exercises substantial control over both the harasser and the context in which the known harassment occurs." See 526 U.S. at 645.

         We begin the substantial control analysis by identifying the context in which the sexual harassment occurred and UMW's control over that context. 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. See Davis, 526 U.S. at 646 ("Where . . . the misconduct occurs during school hours and on school grounds[, ] . . . the [educational institution] retains substantial control over the context in which the harassment occurs."); Kowalski v. Berkeley Cty. Sch., 652 F.3d 565, 573 (4th Cir. 2011) (observing "that speech originating outside of the schoolhouse gate but directed at persons in school and received by and acted on by them [may] in fact [constitute] in-school speech").

         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. See 20 U.S.C. § 1094(a)(29)(A) (requiring educational institutions to "develop[] plans to effectively combat the unauthorized distribution of copyrighted material" in exchange for federal funds).

         Beyond the University's technical capacity to control the means by which the harassing and threatening messages were transmitted, the Complaint demonstrates that UMW could have exercised control in other ways that might have corrected the hostile environment. For instance, UMW administrators could have more clearly communicated to the student body that the University would not tolerate sexually harassing behavior either in person or online. The University also could have conducted mandatory assemblies to explain and discourage cyber bullying and sex discrimination, and it could have provided anti-sexual harassment training to the entire student body and faculty. In these circumstances, we are satisfied that the Complaint sufficiently alleges UMW's substantial control over the context in which the alleged harassment occurred.

         The substantial control analysis also requires us to consider the educational institution's control over the harasser, especially its "disciplinary authority." See Davis, 526 U.S. at 647. Under the Complaint, UMW had the ability to punish those students who posted sexually harassing and threatening messages online. Indeed, the Complaint recounts that UMW had previously disciplined students - members of the men's rugby team - for derogatory off-campus speech. If UMW could punish students for offensive off-campus speech that was not aimed at any particular students, the University also could have disciplined students for harassing and threatening on-campus speech targeted at Feminists United members. In fact, according to the Complaint, Dr. Cox actually advised Feminists United members to contact her if they felt threatened by an "identified member[] of [the] community." See Complaint ¶ 60. Viewed in the proper light, Cox's statement demonstrates UMW's capacity to exercise control over students engaging in threatening online behavior.

         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.

         At bottom, in assessing whether UMW - under the Complaint - had sufficient control over the harassers and the context of the harassment, we cannot conclude that UMW could turn a blind eye to the sexual harassment that pervaded and disrupted its campus solely because the offending conduct took place through cyberspace. See Kowalski, 652 F.3d at 572-74 (rejecting student's First Amendment challenge to high school's disciplinary action taken against student who, off campus, created website to bully classmate). Rather, we are satisfied that the Complaint sufficiently alleges that UMW could exert substantial control over the context in which the harassment occurred and could exercise disciplinary authority over those UMW students who sexually harassed and threatened the Feminists United members.[6]

         b.

         The district court also ruled that the sex discrimination claim fails because the Complaint does not sufficiently allege UMW's deliberate indifference to sexual harassment. We again disagree. Simply put, the Complaint demonstrates that - although UMW was not entirely unresponsive to allegations of harassment - the University did not engage in efforts that were "reasonably calculated to end [the] harassment." See Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 669 (2d Cir. 2012). Indeed, the Complaint portrays repeated instances of UMW students targeting and harassing Feminists United members with threats and other sex-based hostility. Those harassing activities were reported to the University on multiple occasions over many months. UMW's administrators, however, merely responded with two listening circles, a generic email, and by sending a campus police officer with a threatened student on one evening after particularly aggressive and targeted Yaks.

         The University faces serious difficulties in its effort to convince us that the Complaint does not sufficiently allege deliberate indifference. The pertinent facts include the following:

• In November 2014, UMW students began harassing Feminists United members through Yik Yak for opposing the creation of fraternities at UMW;
• In February 2015, plaintiff McKinsey informed Dr. Cox that she felt unsafe on the UMW campus because of the harassing and threatening online posts directed at her, as well as her in-person interactions with members of the rugby team;
• In March 2015, McKinsey and plaintiff Michels reported ongoing safety concerns to President Hurley on behalf of themselves and other Feminists United members;
• After Hurley's March 19, 2015 announcement that the rugby team would be suspended indefinitely, a flurry of harassing and threatening Yaks were aimed at Feminists United members;
• The offending Yaks threatened to "euthanize," "kill," and "[g]rape," Feminists United members, named specific members, and reported McKinsey's locations on the UMW campus with the goal that she be confronted. See Complaint ¶ 46. Those Yaks were sufficiently concerning that the UMW campus police assigned an officer to two student events McKinsey attended;
• Additional offending Yaks continued throughout March 2015. By the end of that month, more than 700 harassing and threatening posts had been directed toward members of Feminists United;
• Although Feminists United members notified UMW administrators about those messages and their safety concerns, Cox announced that the University had "no recourse" for such online harassment, see Complaint ¶ 51;
• In April 2015, in two listening circles, Feminists United members again reported to UMW administrators that they felt unsafe on campus as a result of the offending Yaks; and
• Thereafter, offending Yaks continued to be posted throughout the summer of 2015. The University, however, never investigated the harassment and threats, and never asked any ...

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