Court Reinstates Sex Harassment Suit Against University of Mary Washington

A federal appeals court ruled Wednesday that University of Mary Washington administrators could have done more to protect students from online harassment and threats.

The ruling from the 4th U.S. Circuit Court of Appeals came in a lawsuit filed by members of a student feminist group who alleged that the university failed to protect them from harassing posts on a now-defunct messaging app.

A federal court judge dismissed the lawsuit in 2017, finding that the complaint did not sufficiently allege the school's deliberate indifference to sexual harassment.

But a three-judge panel of the 4th Circuit disagreed and reinstated some of the suit's claims. The court found that although the school was not entirely unresponsive to the sexual harassment complaints, it did not engage in efforts that were "reasonably calculated" to end the harassment.

"The University faces serious difficulties in its effort to convince us that the Complaint does not sufficiently allege deliberate indifference," Judge Robert King wrote in the 2-1 ruling.

Problems began after the university's student Senate voted to authorize male-only fraternities at the school. During a campus meeting, members of Feminists United questioned the wisdom of having such fraternities at the school.

After the meeting, students debated the vote on the social media app Yik Yak. Members of Feminists United were criticized in offensive terms. Other harassment of the feminists followed, including cyberstalking and threats of sexual assault, they said.

Posts included, “Can we euthanize whoever caused this (expletive),” “Gonna tie these feminists to the radiator and (description of violent sexual act),” and “I (expletive) hate feminists.”

“It was really unfortunate to really see that this university that I’d come to call home now suddenly turned against me in such a vile and horrible way,” said former Feminists United President Paige McKinsey, who was diagnosed with post-traumatic stress disorder after college.

The feminists alleged that university officials did not do enough to try to identify the students responsible or to stop the harassment.

University officials argued that disabling access to a social media app raised free speech concerns.

The 4th Circuit, however, said the university could have done more.

"On the allegations of the Complaint, we are satisfied that the plaintiffs sufficiently alleged that UMW exhibited deliberate indifference to known instances of sexual harassment," the court wrote.

“They’ve ruled on the side of common sense and justice and students rights and safety,” McKinsey said.

“You can’t make these cyberassaults and cyberharassment and get away with it because it’s anonymous,” former student Kelli Musick said.

“It was a very troubling decision for free speech,” said Samantha Harris of the Foundation for Individual Rights in Education.

She doesn’t see the Yik Yak posts as threats.

“Just saying, like, ‘I’m so angry I could kill someone,’ is not necessarily a threat,” she said.

Debra Katz, a lawyer for the students who sued, said the ruling could have broad ramifications for colleges and universities around the country.

"It's going to force universities to come up with policies and practices to confront this kind of behavior," Katz said.

"Universities will understand that if they don't responsibly deal with the way harassment takes place today — which is through cyberspace — they are going to find themselves in court."

In a dissenting opinion, Judge G. Steven Agee said it remains unclear who the harassers were or whether they were even students at the university. He said he agreed with the lower court judge who dismissed all the lawsuit's claims.

In a statement, the university said it plans to thoroughly review the majority and dissenting opinions before determining how to proceed.

"The University remains committed to the safety and well-being of its students," the statement said.

The appeals court sent the case back to the lower court.