The University of Mary Washington Lawsuit and the Creation of a Standard of Care

March 8, 2019

In 2014 and 2015 on the campus of the University of Mary Washington, Feminists United received harassment after students in the group publicly decried several politically charged campus issues. Feminists United is a campus student group affiliated with the Feminist Majority Foundation. The harassment (threats) came via Yik Yak, a now-defunct social media platform, that allowed users to post their thoughts anonymously. The threats were specific and targeted and included statements of murder, assault, and rape.

Students complained to the school’s administration and later alleged in a lawsuit that the university did not take their concerns seriously and failed to protect them from online harassment. Support for their argument came from a US Court of Appeals, Fourth Circuit, ruling that entitled the students to pursue their lawsuit. The decision reversed a lower court ruling dismissing the suit on First Amendment and other grounds. The lawsuit could change how school districts, colleges, and universities are responsible for and respond to online threats.

Condemning the harassment, the University took steps to understand the impact of the threats on the students and campus community by way of listening sessions. At the heart of the lawsuit, however, is the institution’s refusal to block Yik Yak on the campus. They believed it would violate the First Amendment of the United States Constitution. The appeals court found enough evidence that the University was “deliberately indifferent” towards the students’ concerns. According to the Court, the case has enough merit to move forward. The ruling states, “First Amendment concerns do not render the University’s response to the sexual harassment and threats legally sufficient for two sound reasons: (1) true threats are not protected speech, and (2) the University had several responsive options that did not present First Amendment concerns.”

The lawsuit could change how school districts, colleges, and universities are responsible for and respond to online threats.

The appeals court decision points out that the University didn’t try to identify the students engaged in the harassing behavior of the campus feminists, didn’t make forceful statements condemning what was happening, and didn’t offer enough support to the victims. Listening circles, a generic email, and providing a single police escort for one victim for one specific threat, didn’t go far enough.

The dissenting opinion on the court warned of consequences of the decision to allow the suit to proceed. Judge G. Steven Agee believed that universities, “will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability….”

Like prior cases involving security technology liability (e.g., access control, security cameras and mass notification), this suit has the potential to create a duty of care for schools. It may create a standard requiring schools to know what is being shared on social media, and digital platforms, that affect the safety, security, and wellness of their community and then requiring them to take related action. Regardless of the outcome of this case, a bar is being created; this won’t be the last such lawsuit.

As with the evolution of security cameras and other safety technology, as services like Social Sentinel become more ubiquitous, effective, simple and cost-effective, schools will do the right thing and limit liability by effectively and easily employing them to meet this standard and duty of care.

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