Appellate court finds that UMW officials should have done more to prevent cyber harassment in 2015
By KATE SELTZER
On December 19, the Fourth Circuit Court of Appeals ruled that University of Mary Washington should have done more to protect students from online sexual harassment.
Members of the then-new Feminists United club initially filed suit against the University in 2015 for failing to protect them from and punish those responsible for violent and sexist threats delivered through Yik Yak. A federal trial court dismissed the case last fall, but the 2-1 appeals court ruling sent it back to the lower court.
The school’s position going into the case was that since Yik Yak messages are anonymous, it could not, nor was it under any obligation to respond with disciplinary measures. The court ruling makes clear that the University “cannot escape liability” on these grounds, since UMW did not attempt to see if identifying the harassers was possible.
“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,” the court opinion read. “Nor did the University ever ask Yik Yak to identify those users who had harassed and threatened UMW students.”
Kelli Musick was Vice President of Feminists United from 2014-2015 and is listed as one of the plaintiffs in the lawsuit. Currently, she works as the National Program Coordinator at the Feminist Majority Foundation in Arlington, Virginia. She said that she and other club members initially filed a Title IX complaint with the Department of Education’s Office of Civil Rights, but after being “stonewalled” by officials opted to file suit in the district court.
“The University chose to permit a sexually hostile environment that negatively impacted our ability to access an education,” Musick said. “I chose to remain involved with this process to ensure those in power were held accountable and to shed light on the violence inflicted upon women when we speak out against inequality.”
The harassment began in November of 2014, when the club opposed the creation of official Greek life on campus, citing the correlation between fraternities and increased instances of sexual assault. After a slew of threatening messages and hostile interactions with members of the rugby team, Feminists United reported feeling unsafe to then President Hurley and the Office of Title IX.
The ongoing safety concerns and continued reports to UMW’s administration were met with “two listening circles [and] a generic email” – not enough for the school to credibly assert that it had done all it could to prevent a hostile environment.
The harassment escalated in March of 2015 after President Hurley announced that the rugby team was indefinitely suspended after team members participated in a sexist and violent chant. Following the announcement, a series of Yik Yak messages threatened to “euthanize,” “kill,” and “[g]rape” Feminists United members.
By the end of March, more than 700 harassing posts were aimed at the club, many of which named specific people. Additionally, the schedule and locations of the club’s president at the time, Paige McKinsey, were posted around campus. The threats were deemed credible enough that UMW police officer was assigned to attend both a Feminists United and a Young Democrats meeting where McKinsey was present.
The case is the first of its kind dealing with Title IX discrimination as it pertains to online harassment. Although the school does not immediately have to do anything differently in terms of policy, UMW – and all schools that receive federal funding – will be obligated to respond to similar claims in the future.
“I am thrilled that the Fourth Circuit recognized that the University of Mary Washington had an obligation to protect their students from online sexual harassment and threats of sexual violence,” Musick said. “I hope moving forward no other student has to live through the same trauma that I experienced.”
Current President of Feminists United Lauren Reyes agreed.
“The club members were definitely excited and a bit emotional at the outcome of the lawsuit and are looking forward to how the university will seek to improve itself.”
As a result of the harassment she was facing at the time, Paige McKinsey wrote an op-ed criticizing the school for being hostile to feminists.
“I’m not going to comment on her editorial or what the circumstances were back in 2015,” UMW President Troy Paino said. “That was before I was here, and I think it would be unfair for everyone involved for me to describe.”
Rather, he spoke about his experience at the school and some changes at the Office of Title IX.
“Do we reflect some of the problems that we see in society at large?” he said. “No doubt. We’re not immune to those problems and we experience those here. But what I’ve seen in our students, faculty, staff and administrators is a real willingness to roll up their collective sleeves to try to be the best that we can and respond to these issues in a really thoughtful and aggressive way.”
Since his time at UMW, Paino has formed a standing committee to prevent and respond to sexual assault. In November, that committee recommended the hiring of additional personnel, including a full time sexual assault prevention specialist, a full time victim advocate, and a full time Title IX Clery police officer.
“I’ve asked them to prioritize some recommendations that they’ve made on new personnel, knowing that we probably can’t hire all of them at once for budget reasons,” Paino said. “But if I could have a rank order we could certainly try to focus on highest priority of positions. Those would be a significant expense to the university, and we’re trying to find room to further our investment in this area.”
It is unclear at this moment what the outcome of the trial will be for the University.
“It’s probably could still be months and maybe years before we ultimately know what happens to that case,” said Paino. “So I think we have to keep doing our work while that meanders its way through the court.”