Fourth Circuit Backs Feminists Suing Virginia College

The Randolph-Mason Hall dorm complex at the University of Mary Washington, photographed on Aug. 23, 2012. (Photo by Norm Shafer via University of Mary Washington)

RICHMOND, Va. (CN) – A Virginia liberal arts college that was embroiled in a year-long clash with campus feminists must face discrimination and retaliation claims, the Fourth Circuit ruled.

It was a student government vote authorizing male-only fraternities that triggered the unrest here four years ago at the University of Mary Washington, a public school of just 4,400 undergrads located halfway between the capital of Richmond and Washington, D.C.

When the student-run Feminist United on Campus highlighted data showing that Greek life increases sexual violence on campus, the November 2014 debate turned hostile on Yik Yak, a now-defunct anonymous chat app that was popular with students at the time.

Beyond online threats, members of Feminists United complained to the administration about fellow students who screamed obscenities at them in the street, and about video that surfaced of the school’s rugby team chanting about rape and necrophilia.

Well into spring 2015, the feminist group complained that the administration demonstrated deliberate indifference and was responsible for its members facing retaliatory harassment.

Though a federal judge dismissed their ensuing lawsuit, the Fourth Circuit reversed 2-1 on Wednesday.

“To the extent the university contends it was unable to control the harassers because the offending Yaks were anonymous, we readily reject that proposition,” U.S. Circuit Judge Robert King wrote for the majority.

A Clinton appointee, King emphasized that a school still has a responsibility to respond to electronic harassment, “because it actually transpired on campus.”

“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,” the lead opinion states.

King also said the university failed to recognize the context of the harassment as “true threats,” citing one Yak specifically where someone said he would “tie these feminists to the radiator and [g]rape them in the mouth.” King added the brackets to the quote in question, explaining in a footnote how an amicus brief defined “grape” as shorthand for gang-rape.
While UMW highlighted a pop culture reference in at least one threat  — specifically a sketch from the short-lived comedy show “Whitest Kids You Know” — King found the argument unavailing.

“A reasonable person would not be assuaged by the fact that a threat of violence included a popular culture reference,” he wrote. 

U.S. Circuit Judge Steven Agee wrote in dissent, however, that anonymity of the actors is fatal to suit.

“The complaint does not identify the harassers or provide a factual basis for inferring whether they were students or nonstudents,” wrote Agee, who was appointed by former President George W. Bush.

Noting that users of the app need only be within a 1.5 mile range of campus to participate in the school’s chat channel,” Agee said “each of the hundreds of Yaks complained of could have been sent by an ever-shifting and fluid number of senders based on who was in that range, much of which was not part of the university campus.”

“Merely labeling something as student harassment does not make it so,” Agee wrote. “And because no facts support the conclusion that the University exercised substantial control over the harassers, the complaint fails on its face to plausibly show that FMF would be entitled to the relief requested.”

FMF is an abbreviation for the parent organization Feminist Majority Foundation, which led the underlying suit.

University of Mary Washington spokesman Marty Morrison said in a statement that the school will look to the state Attorney General’s Office for guidance going forward.  

“The university remains committed to the safety and well-being of its students,” he said.

Erwin Chemerinsky, the dean of Berkeley Law, argued the case for the feminists before the Fourth Circuit in May of this year. He called the ruling a “very important decision” about the duty colleges have to protect students from online harassment.  

“The court holds that a university cannot be deliberately indifferent to sexual harassment by students against other students, even when it is over anonymous social media,” Chemerinsky said in a statement. “The students here were threatened with rape and murder and subjected to serious sexual harassment. The Fourth Circuit applied well established law that a campus cannot be deliberately indifferent.”

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