Introduction

In the landmark case 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, the United States Court of Appeals for the Fourth Circuit addressed significant issues surrounding Title IX compliance within an educational institution. Decided on December 19, 2018, the case revolves around allegations of sex discrimination, retaliation, and equal protection violations against the University of Mary Washington (UMW) and its former president, Dr. Richard Hurley.

Summary of the Judgment

The plaintiffs, representing feminist organizations and individual members, filed a civil action against UMW and its administrators, asserting that the university failed to adequately address and remediate a hostile environment characterized by online harassment and threats against feminist groups on campus. Central to the plaintiffs' claims were:

• A Title IX sex discrimination claim alleging the university's deliberate indifference to known student-on-student harassment.
• A Title IX retaliation claim alleging the university's adverse actions following the plaintiffs' advocacy against sexual assault and harassment.
• A § 1983 equal protection claim against Dr. Richard Hurley for violating the plaintiffs' Fourteenth Amendment rights through deliberate indifference.

The district court dismissed several of these claims, particularly regarding the § 1983 equal protection allegation and parts of the retaliation claim. However, upon appeal, the Fourth Circuit affirmed some dismissals while vacating others, particularly upholding the viability of the Title IX sex discrimination and retaliation claims, and remanding the case for further proceedings.

Analysis

Precedents Cited

The Fourth Circuit's analysis heavily referenced foundational cases that define the scope and application of Title IX, particularly Davis v. Monroe County Board of Education and Jackson v. Birmingham Board of Education.

• Davis v. Monroe County Board of Education (1999): Established that Title IX prohibits discrimination based on sex, including sexual harassment, and outlined the criteria under which educational institutions can be held liable for not addressing such harassment. It emphasized the need for "deliberate indifference" and substantial control over both the harasser and the context of harassment.
• Jackson v. Birmingham Board of Education (2005): Recognized the private right of action under Title IX for retaliation claims, asserting that institutions cannot retaliate against individuals for opposing unlawful sex discrimination.
• Other cases, such as JENNINGS v. UNIVERSITY of North Carolina and Simply Wireless, Inc. v. T-Mobile US, Inc., were cited to support the court's interpretations of procedural dismissals and the standards for evaluating Title IX claims.

Legal Reasoning

The court's legal reasoning centered on whether UMW had substantial control over the context and harassers involved in the reported student-on-student harassment. Key points include:

• Substantial Control: The court concluded that UMW had substantial control because the harassment occurred on campus and through the university's wireless network, even if the harassers used a third-party app like Yik Yak. This control is a prerequisite for Title IX liability.
• Deliberate Indifference: The plaintiffs demonstrated that UMW failed to take adequate measures despite being aware of the harassment, fulfilling the requirement of deliberate indifference.
• First Amendment Considerations: While the university cited First Amendment rights as a limitation, the court found that the threatening nature of the harassment (e.g., true threats of violence) falls outside protected speech, justifying the university's interventions.
• Qualified Immunity: In addressing the § 1983 equal protection claim against Dr. Hurley, the court affirmed his qualified immunity, determining that the right to be free from such deliberate indifference was not clearly established at the time of his actions.

Impact

This judgment has considerable implications for higher education institutions nationwide:

• Title IX Compliance: Universities are reminded of their responsibilities under Title IX to actively address and remediate hostile environments, especially those facilitated by digital platforms.
• Online Harassment: The case underscores the legal accountability of institutions in managing and mitigating online harassment, a growing concern in the digital age.
• Retaliation Protections: Affirming retaliation claims under Title IX reinforces protections for student advocates and whistleblowers, deterring institutions from punitive actions against those addressing discrimination.
• Legal Strategy: The decision provides a framework for initiating similar claims, emphasizing the importance of demonstrating substantial control and deliberate indifference.
• Policy Development: Educational institutions may need to develop more robust policies and responses to online harassment to ensure compliance and protect their student bodies.

Complex Concepts Simplified

Title IX Deliberate Indifference

Under Title IX, deliberate indifference occurs when an educational institution knows about discriminatory harassment and fails to take reasonable steps to address it. This standard requires evidence that the institution had substantial control over the environment and harassers.

Substantial Control

Substantial control refers to the institution's authority and ability to manage both the individuals committing harassment and the environment in which it occurs. In this case, UMW's control was evidenced by the harassment taking place on campus and through its wireless network.

Qualified Immunity

Qualified immunity protects government officials from liability in civil lawsuits unless they violated clearly established statutory or constitutional rights of which a reasonable person would have known. Dr. Hurley was granted qualified immunity because the right to be free from such deliberate indifference was not clearly established at the time.

True Threats

True threats are statements where the speaker intends to communicate a serious expression of intent to commit an act of unlawful violence against a particular individual or group. Such threats are not protected under the First Amendment and can justify institutional intervention.

Conclusion

The Fourth Circuit's decision in Feminist Majority Foundation v. Hurley serves as a critical reminder of the active role educational institutions must play in combating and preventing sex-based harassment and discrimination. By affirming the viability of Title IX claims based on deliberate indifference and retaliation, the court emphasizes the importance of proactive measures in fostering a safe and equitable educational environment. Additionally, the affirmation of qualified immunity for institutional officials underlines the boundaries of legal responsibility and the necessity for clearly established rights. As online platforms become increasingly integral to campus life, universities must adapt their Title IX policies and enforcement mechanisms to address the complexities of digital harassment effectively.

This judgment not only impacts how universities handle internal harassment complaints but also influences future litigation strategies and policy formulations across the higher education landscape, ensuring that students are protected from discrimination and retaliation in both physical and virtual realms.