If campus feminists complain about speech that harasses them for their speech and action, how far must a college go in trying to suppresses it under Title IX? Very far was the answer given by the Fourth Circuit Court of Appeals in a recent decision involving the University of Mary Washington in Fredericksburg, VA.
I discuss the case in today’s Martin Center article.
The interesting feature of the case is that the speech the feminist group complained about consisted of an anonymous post on the now-defunct social media platform Yik Yak. The school did not have control over Yik Yak and that fact was crucial in the district court’s dismissal of the case. But the Fourth Circuit, on appeal, reinstated the complaints (except for the attempt to hold the school’s then-president personally responsible for not having done everything that the plaintiffs demanded).
FIRE, Cato, and other groups concerned about the erosion of free speech have registered their opposition to this decision. So did one judge on the three-judge panel, G. Steven Agee, who wrote:
Make no mistake, the majority’s novel and unsupported decision will have a profound effect, particularly on institutions of higher education, until the Supreme Court reaffirms that Davis means what it says. 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.
He’s referring to a 1999 Supreme Court ruling on the scope of “harassment” under Title IX, Davis v. Monroe County School Board. The Fourth Circuit has pushed far beyond that decision, cutting away at the First Amendment. Let’s hope that the Fourth Circuit’s view of the law is short-lived.