Fourth Circuit Expands Title IX Liability for Harassment Through Anonymous Online Posts
The Fourth Circuit recently held that universities could be liable for Title IX violations if they fail to adequately respond to harassment that occurs through anonymous-messaging apps.
The case, Feminist Majority Foundation v. Hurley, concerned messages sent through the now-defunct app Yik Yak to the individual plaintiffs, who were students at the University of Mary Washington. Yik Yak was a messaging app that allowed users to anonymously post to discussion threads.
Because of the app’s location feature, which allowed users to see posts within a 5 mile radius, the Court concluded that the University had substantial control over the context of the harassment because the threatening messages originated on or within the immediate vicinity of campus. Additionally, some of the posts at issue were posted using the University’s wireless network, and thus necessarily originated on campus.
The Court rejected the University’s argument that it was unable to control the harassers because the posts were anonymous. It held that the University could be liable if it never sought to discern whether it could identify the harassers.
The dissent encouraged the University to appeal the decision stating that “the majority’s novel and unsupported decision will have a profound effect, particularly on institutions of higher education . . . Institutions, like the university, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid the Catch-22 Title IX liability the majority now proclaims. The university should not hesitate to seek further review.”