According to a Court of Appeals decision issued on December 19, 2018, Universities may now face Title IX liability for offensive communications from anonymous online trolls whose messages reach their campus. In Feminist Majority Foundation v. Hurley, 4th Cir. No. 17-2220, the Court reinstated claims against University of Mary Washington brought by students who asserted that the University had not done enough to respond to a series of outrageous comments posted anonymously on the now-defunct Yik Yak platform. In its 2-1 ruling, the majority opens colleges and universities to potential liability for conduct by unknown actors who maliciously use technology that has proven impossible to police in virtually every other context.

Yik Yak was a service that combined complete anonymity with geographic proximity – by design, users could not be traced and their messages (“Yaks”) could only be viewed within three miles of where the user was located. Plaintiffs’ Complaint asserted that UMW students were sending sexually harassing messages via Yik Yak and that plaintiffs notified the University that those messages made them feel unsafe. They claim that the University failed to respond adequately by sanctioning the harassers and/or by preventing the messages from being sent or received on campus.

The majority acknowledges that Title IX requires University action only when there it has “substantial control” over the harassers as well as the context of the harassment. (at 22). Yet in this case, the harassers’ identities were unknown, and the context of the harassment was online communications. How did plaintiffs know that the messages were being sent by UMW students, when the messages were anonymous? And how was the University to exercise “substantial control” over the internet?

Plaintiffs relied on the hyper-local nature of Yik Yak, as well as the content of the messages, in support of their allegation that the harassers were UMW students. Further plaintiffs asserted that the University could have prevented exposing students to the harassing messages by modifying its own network to prevent traffic to and from Yik Yak.[1] Neither of these assertions is terribly persuasive, however, since (a) even the hyper-local range encompassed far more than the UMW campus, and included a good bit of the town where it is located; and (b) students (or others) would be able to access Yik Yak using any cell service or wifi provider, despite what UMW might do to put filters on its own networks.

The 4th Circuit decision comes at an interesting time, since the Department of Education recently proposed significant changes in the regulations governing Title IX. And while Yik Yak is a thing of the past, the internet is here to stay. If we have learned nothing else since the 2016 elections, we have surely learned that anonymous online communications are often not what they purport to be. Yet according to this new ruling, Universities are now facing potential liability if they fail to protect students from harassment by online speakers who may well not be students, or on campus, or in any way connected to the school. If that is the new standard, then good luck finding a solution that has evaded all but the most extreme totalitarian regimes that only permit the use of state-authorized technology and scrutinize all their citizens’ internet traffic all the time. If there is a silver lining, it can be found in the last line of the dissenting opinion: encouraging UMW “to seek further review.” (at 89) In the meantime, institutions of higher education should consider re-assessing their internal policies and practices for monitoring and addressing content posted across the various online social media platforms.

You can see the full ruling here.