Federal Appeals Court Addresses Student-On-Student Harassment On Social Media

Feminist Majority Foundation, et al. v. Hurley, et al. (4th Circuit Court of Appeals Case No. 17-2220, decided Dec. 19, 2018)

While many schools were out on holiday break, the Fourth Circuit Court of Appeals made an important ruling under Title IX. The case, Feminist Majority Foundation, et al. v. Hurley, is a split decision in which the Fourth Circuit Court of Appeals addresses the degree to which educational institutions have an obligation to curtail the use of online social media that constitutes student-on-student harassment. The facts of the case are extreme, involving several student members of an on-campus feminist organization speaking out against egregiously inappropriate remarks allegedly made by members of the school's rugby team. The female whistleblowers received hundreds of retaliatory comments—including threats of physical violence—in anonymous social media posts believed to be made by students. Like the defendants in this case, schools often find themselves grappling with how to control vile comments posted anonymously by students. Accordingly, the principles analyzed by the court could have far-reaching implications for just about any educational institution.

Citing the well-worn standards of "deliberate indifference" for institutional liability under Title IX established in the 1999 Supreme Court case of Davis v. Monroe County Board of Education, the Fourth Circuit held that the school in this case failed to take sufficient action to shut down use of a social media website (known as "Yik Yak") by persons on campus. Specifically, the court compared students' use of the school's network for harassment via social media to students' use of the school's network to download pirated music, noting that if the school can prevent piracy, it exercises sufficient control over its network to stop harassment via social media. The court "readily reject[ed]" the school's contention that the harassing students' online anonymity prevented the school from disciplining them, basing its conclusion on the allegation that the school "never sought to discern whether it could identify the harassers." This suggests an affirmative duty on the part of schools to at least inquire with social media sites about the identities of "anonymous" persons making harassing or threatening comments using such sites. Importantly, the court concluded that the school was not relieved of such duties by the First Amendment implications of curtailing public speech.

Perhaps most alarming to schools, the court roundly rejected the adequacy of the steps that the school took in response to the allegations, noting "administrators … 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 [social media posts]." Many school administrators may well assume that such actions would inoculate them from liability under the "deliberately indifferent" standard that governs Title IX complaints. Such assumptions are false hopes, according to the Fourth Circuit.

Picking apart the school's inadequate "remedial" measures, the court noted (1) the need for a police protection of students was itself evidence that a sufficiently hostile environment existed that should warrant further corrective measures, and (2) "the mere act of listening to students [via listening circles] is not a remedy in and of itself." The court then went on to suggest possible remedial measures that the school could have taken, which would have at least factored into the court's analysis and militated against a finding of deliberate indifference: "[1] more vigorously denounc[ing] the harassing and threatening conduct, [2] clarif[ying] that Feminists United members were not responsible for the rugby team's suspension, [3] conduct[ing] a mandatory assembly of the student body to discuss and discourage such harassment through social media, [4] hir[ing] an outside expert to assist in developing policies for addressing and preventing harassment … [and 5] offer[ing] counseling services for those impacted by the targeted harassment." In a passage sure to find its way into plaintiffs' lawsuits in the future, the court noted: "when an educational institution claims that it has done all it can to address instances of sexual harassment and threats, a reviewing court should consider whether the institution failed to take other obvious and reasonable steps." This language effectively requires second-guessing of schools' actions by courts with the benefit of hindsight.

Critically, the same allegations that supported a claim of deliberate indifference by the school also supported a claim of retaliation. In short, retaliatory harassment by students in response to a complaint of harassment can be attributed to the school if the school fails to take sufficient remedial measures to stop it. The court noted, "In sum, if an educational institution can be liable for student-on-student sexual harassment, … it can also be liable for student-on-student retaliatory harassment."

Notably, the court also held that the school president's deliberate indifference to student-on-student harassment was sufficient to state a claim under both Title IX (against the school) and under the Equal Protection Clause of the Fourteenth Amendment (against the president). This is the first time that the Fourth Circuit Court of Appeals has recognized that an administrator's deliberate indifference to student-on-student conduct could give rise to an equal protection claim.

The full opinion is well worth a read, if only as a cautionary tale to understand the facts that gave rise to the lawsuit. It is available for review here.