Feminist Majority Foundation v. Richard Hurley

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-2220

FEMINIST MAJORITY FOUNDATION; FEMINISTS UNITED ON CAMPUS;

PAIGE MCKINSEY; JULIA MICHELS; KELLI MUSICK; JORDAN

WILLIAMS; ALEXIS LEHMAN,

Plaintiffs – Appellants,

v.

RICHARD HURLEY, Former President of University of Mary Washington;

TROY PAINO, Current President of University of Mary Washington;

UNIVERSITY OF MARY WASHINGTON,

Defendants – Appellees.

------------------------------

NATIONAL WOMEN’S LAW CENTER et al.; NATIONAL EDUCATION

ASSOCIATION,

Amici Supporting Appellant,

FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION; CATO

INSTITUTE; NATIONAL COALITION AGAINST CENSORSHIP; NADINE

STROSSEN; ELECTRONIC FRONTIER FOUNDATION,

Amici Supporting Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at

Richmond. John A. Gibney Jr., District Judge. (3:17-cv-00344-JAG)

Argued: May 8, 2018 Decided: December 19, 2018

Before KING, AGEE, and HARRIS, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge King wrote

the opinion, in which Judge Harris joined. Judge Agee wrote an opinion dissenting in

part and concurring in part.

ARGUED: Erwin Chemerinsky, UNIVERSITY OF CALIFORNIA SCHOOL OF LAW,

Berkeley, California, for Appellants. Samuel Thurston Towell, OFFICE OF THE

ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON

BRIEF: Debra S. Katz, Lisa J. Banks, Carolyn L. Wheeler, KATZ, MARSHALL &

BANKS, LLP, Washington, D.C.; Tim Schulte, SHELLEY CUPP SCHULTE, P.C.,

Richmond, Virginia, for Appellants. Neena Chaudhry, Emily Martin, Sunu Chandy,

Alexandra Brodsky, NATIONAL WOMEN’S LAW CENTER, Washington, D.C.; Cathy

A. Harris, Daniel Clark, KATOR, PARKS, WEISER & HARRIS, P.L.L.C., for Amici

National Women’s Law Center, et al. Alice O’Brien, Eric A. Harrington, Amanda L.

Shapiro, NATIONAL EDUCATION ASSOCIATION, Washington, D.C., for Amicus

National Education Association. Sophia Cope, Corynne McSherry, David Greene, Adam

Schwartz, Aaron Mackey, ELECTRONIC FRONTIER FOUNDATION, San Francisco,

California, for Amicus Electronic Frontier Foundation. Charles M. Henter,

HENTERLAW PLC, Charlottesville, Virginia, for Amici Foundation for Individual

Rights in Education, Cato Institute, National Coalition Against Censorship, and Nadine

Strossen.

2

KING, Circuit Judge:

Plaintiffs Feminist Majority Foundation, Feminists United on Campus, and several

Feminists United members appeal from the district court’s dismissal of their civil action,

filed pursuant to Title IX of the Education Amendments of 1972, as well as 42 U.S.C.

§ 1983. See Feminist Majority Found. v. Univ. of Mary Wash., 283 F. Supp. 3d 495

(E.D. Va. 2017). The plaintiffs seek the reinstatement of three claims: a Title IX sex

discrimination claim against the University of Mary Washington (“UMW,” or the

“University”); a Title IX retaliation claim against UMW; and a § 1983 claim against

UMW’s former president, Dr. Richard Hurley, for violating the Equal Protection Clause

of the Fourteenth Amendment. See Feminist Majority Found. v. Univ. of Mary Wash.,

No. 3:17-cv-00344 (E.D. Va. June 9, 2017), ECF No. 13 (the “Complaint”). As

explained below, we affirm the dismissal of the § 1983 claim and part of the Title IX

retaliation claim. We vacate, however, the dismissal of the Title IX sex discrimination

claim and the balance of the retaliation claim. We therefore remand for further

proceedings.

I.

A.

Because the district court dismissed the Complaint pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure, we accept and recite the alleged facts in the light

most favorable to the plaintiffs. See Simply Wireless, Inc. v. T-Mobile US, Inc., 877 F.3d

522, 524 (4th Cir. 2017). Plaintiff Feminists United is a student organization at UMW

3

and a local affiliate of plaintiff Feminist Majority Foundation, a national organization.

During the 2014-2015 academic year, plaintiffs Paige McKinsey, Julia Michels, Kelli

Musick, Jordan Williams, and Alexis Lehman were UMW students who served on

Feminists United’s executive board.

1.

In November 2014, UMW’s student senate voted to authorize male-only

fraternities at the University. During a campus town hall meeting following the senate’s

authorization, Feminists United members questioned the wisdom of having such

fraternities at UMW, in light of “research that showed that Greek life on campus

increased the number of [on-campus] sexual assaults.” See Complaint ¶ 21. Plaintiff

McKinsey was particularly troubled by the vote of approval, and she believed that UMW

had failed to support victims of sexual assault in the past. Soon after the town hall

meeting, UMW students debated the Greek life vote on Yik Yak, a now-defunct social

media application. Yik Yak allowed its users within a limited geographic range to create

and view anonymous messages known as “Yaks.” Within the Yik Yak conversational

thread available at UMW, several students expressed — in offensive terms — strong

criticism of Feminists United and its members for their opposition to on-campus

fraternities. 1

1

Although the Yaks discussed herein were posted anonymously, the Complaint

alleges — and we accept — that UMW students created the Yaks. See Complaint

¶¶ 22, 84, 88; Simply Wireless, Inc., 877 F.3d at 524. According to the Complaint, a Yik

Yak user could only view and respond to Yaks created by other users within a 1.5-mile

radius. The Complaint alleges that, because the offending Yaks were created within the

(Continued)

4

On November 21, 2014, several Feminists United members met with UMW’s

Title IX coordinator, Dr. Leah Cox, to explain their concerns about the University’s past

failures in responding to student sexual assault complaints. As the Feminists United

members walked home from the meeting, other UMW students drove by and screamed,

“Fuck the feminists!” See Complaint ¶ 24.

Two days later, on November 23, a UMW student videotaped members of the

UMW men’s rugby team performing a chant that glorified violence against women,

including rape and necrophilia. 2 Later that month, the student who recorded the rugby

team video provided it to the UMW administration and informed plaintiff McKinsey

about the video. Members of Feminists United subsequently met with then-President

Hurley to discuss the rugby team’s offensive chant. They were assured by Hurley that

some unspecified “action” was being taken in response thereto. See Complaint ¶ 27.

Despite President Hurley’s assurances, plaintiff McKinsey perceived that UMW’s

administration was indifferent to the rugby team’s chant and other discriminatory acts

suffered by female students on campus. On January 29, 2015, McKinsey published an

opinion piece in UMW’s student newspaper explaining “[w]hy UMW is not a feminist

geographic range of the University’s campus and concerned events thereon, it is clear that

the Yaks were authored by UMW students.

2

Necrophilia generally refers to sexual intercourse with, or attraction towards,

dead bodies. The repulsive rugby team chant included the following: “Finally found a

whore/she was right and dead/well God damn son of a bitch we’re gonna get it in. . . .

Finally got it out/it was red and sore/moral of the story is never fuck a whore.” See

Complaint ¶ 25.

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friendly campus.” See Complaint ¶ 28. McKinsey therein discussed the rugby team’s

chant and recent harassing and threatening Yaks aimed at Feminists United members.

That article, however, was not well-received by some members of the UMW community

and “led to an escalation of verbal assaults and cyber-attacks on members of Feminists

United.” Id. ¶ 29. For example, various comments of a “derogatory, sexist, and

threatening” nature were posted to the school newspaper’s website. Id. ¶ 85.

On February 20, 2015, members of the UMW men’s rugby team approached

plaintiff McKinsey in the University’s dining hall and confronted her about the

newspaper article. That same day, McKinsey informed Dr. Cox — UMW’s Title IX

coordinator — that McKinsey felt unsafe on the UMW campus after her encounter with

the rugby team members, particularly in light of the threats lodged against her and other

Feminists United members on Yik Yak and the school newspaper’s website. McKinsey

requested that the UMW administration take “some sort of action.” See Complaint ¶ 32.

Dr. Cox responded to plaintiff McKinsey on February 24, informing McKinsey

that Cox did not know what actions UMW would take against the men’s rugby team.

Cox offered, however, to schedule a mediated discussion between the rugby team and

Feminists United. About that time, a UMW professor — concerned with the threatening

nature of recent Yik Yak posts — emailed various Feminists United members to request

their participation in what the professor called “listening circles.” See Complaint ¶ 34.

As proposed, UMW students, including Feminists United members, would meet with

UMW faculty and administrators in small groups and explain how the offending Yaks

were affecting them.

6

On March 11, 2015, UMW held an open forum about sexual assault on campus, at

which President Hurley downplayed the seriousness of the rugby team’s chant. Several

days later, plaintiff Michels emailed Hurley and notified him that she planned to release a

transcript of the rugby team’s chant to UMW’s student newspaper because the

administration had not yet punished those responsible for it. Michels reiterated that

Feminists United members felt unsafe on campus. In response, Hurley disclosed that

some students had been sanctioned for their participation in the repulsive chanting and

that those sanctions had been appealed. Hurley added that he took student safety

concerns “quite seriously.” See Complaint ¶ 39.

About a week after the open forum, President Hurley emailed the UMW student

body, “generally discussing UMW’s efforts to end sexual assault, violence against

women, and others forms of discrimination and harassment.” See Complaint ¶ 41.

Without referencing the rugby team’s chant or any other specific acts, Hurley described

certain students’ recent behavior as “repugnant and highly offensive.” Id. That same

day, Hurley met with several Feminists United members, who questioned why Hurley’s

email to the student body had not mentioned the rugby team’s repulsive chant or the

sanctions imposed on the students who had participated therein. Hurley responded that

he was following his lawyer’s advice and that “he would rather rely on the student

grapevine to spread the word about what happened with the rugby team and why.” Id.

¶ 42.

On March 19, 2015, after several UMW students expressed outrage on Facebook

over the rugby team’s chant, President Hurley announced that all rugby activities had

7

been suspended indefinitely and that the rugby players would be required to participate in

anti-sexual assault and violence training. Immediately after Hurley’s announcement, a

flurry of harassing and threatening Yaks were directed at members of Feminists United,

blaming them for the rugby team’s suspension. The Yaks named plaintiffs McKinsey

and Musick, along with Feminists United member Grace Mann, and contained threats of

physical and sexual violence. By way of example, the Yaks threatened:

• “Gonna tie these feminists to the radiator and [g]rape them in the

mouth”; 3

• “Dandy’s about to kill a bitch . . . or two”; and

• “Can we euthanize whoever caused this bullshit?”

See Complaint ¶ 46 (alterations in original). Several of the offending Yaks, as alleged in

the Complaint, also referred to Feminists United members by such terms as “femicunts,

feminazis, cunts, bitches, hoes, and dikes.” Id.

In addition to naming plaintiff McKinsey, some of the offending Yaks shared her

whereabouts so that she could personally be confronted. After McKinsey agreed to speak

at the March 24, 2015 meeting of UMW’s Young Democrats Club, an anonymous poster

shared McKinsey’s schedule and outlined a plan to accost her at that meeting. Although

McKinsey had already notified UMW administrators about her safety concerns and had

3

In reciting the Yak that threatens to “[g]rape them in the mouth,” the Complaint

places brackets around the “g” in “[g]rape” and does not define or describe the term. In

context and viewed in the light most favorable to the plaintiffs, however, the Yak

constituted a threat to rape Feminists United members. According to one of the amicus

submissions, the word “grape” as used in the Yak means “gang rape.”

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not received a satisfactory response, the anonymous Yak revealing the plan to confront

McKinsey prompted her to contact UMW’s campus police and report that she felt unsafe

attending the Young Democrats meeting. The campus police believed the threat serious

enough to assign an officer to the Feminists United and Young Democrats meetings that

evening.

On March 25, plaintiff Michels sent an email to President Hurley, Dr. Cox, and

UMW’s vice president, Douglas Searcy. The email explained that Feminists United

members had documented “nearly 200 examples of students using Yik Yak to post either

violent, vitriolic hate or threats against [them],” and that they feared for their safety on

the UMW campus. See Complaint ¶ 49. Michels therein requested a meeting between

Feminists United and the UMW administration to address the Feminists United members’

safety concerns. As a result, Cox, Searcy, and other UMW employees met with

Feminists United members the next day. The members then requested that the UMW

administration take a number of steps. Those requests included: (1) contacting Yik Yak

to have the Yik Yak application disabled on UMW’s campus; 4 (2) barring access to Yik

Yak on UMW’s wireless network; (3) communicating “more transparent[ly]” with

students; (4) announcing to UMW’s student body that Feminists United “had no role in

. . . [UMW’s] decision [to suspend rugby activities];” and (5) hosting an “assembly to

4

According to the Complaint, disabling Yik Yak at UMW was “possible because

of [Yik Yak’s] geographic function.” See Complaint ¶ 50. In other words, UMW could

have asked Yik Yak to create a virtual boundary around its campus that blocked users

from accessing the application.

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explain rape culture and discuss harassment, cyber bullying[,] and social media issues.”

Id. ¶ 50.

Rather than grant the requests of Feminists United, Dr. Cox sent a schoolwide

email on March 27, 2015, addressing the University’s recent cyber bullying issues. Cox

asserted that nothing could be done, that is, the University had “no recourse for such

cyber bullying.” See Complaint ¶ 51. Instead, she encouraged UMW students to report

any threatening online comments to Yik Yak or other platforms where such comments

were made. Disappointed with Cox’s approach to the ongoing threats, plaintiff Michels

responded and urged Cox and UMW administrators to “take the lead against this

problem.” Id. ¶ 53.

On March 30, 2015, following plaintiff Michels’s response to Dr. Cox, another

member of Feminists United emailed President Hurley and suggested that UMW’s hands-

off response to the offending Yaks had contravened the statutory mandate of Title IX. By

that time, more than 700 harassing and threatening Yaks had been directed at Feminists

United and its members. According to the email to Hurley, Feminists United members

had reported the offending posts to Yik Yak for several months, but to no avail. The

emailer described feeling so unsafe at UMW that she could not concentrate on her

classwork.

A day later, on March 31, Feminists United members held a march on the UMW

campus to raise awareness about campus rape. At its conclusion, some UMW students

and administrators, including President Hurley, gathered to hear plaintiff McKinsey

speak. During her speech, McKinsey discussed the various threatening messages posted

10

on Yik Yak. The following day, McKinsey emailed Hurley and asked whether the

University would be taking action on Feminists United’s request that students be barred

from accessing Yik Yak on UMW’s wireless network. Hurley responded that he had

discussed the option of banning Yik Yak with “several experts” and was concerned about

violating the First Amendment. See Complaint ¶ 59. Dr. Cox echoed Hurley’s First

Amendment concerns in a subsequent email to a Feminists United member. She added

that if any student felt threatened by an “identified member[] of [the] community,” the

student should contact Cox or the campus police. Id. ¶ 60.

On April 8, 2015, plaintiffs McKinsey and Michels met with President Hurley and

other UMW administrators at the first of two listening circles to discuss the voluminous

harassing and threatening posts on Yik Yak. Michels stressed that several Feminists

United members felt they were in danger on the UMW campus, especially those students

who had been named in the Yaks. Once again, UMW administrators failed to take any

action in response to the harassment and threats.

About a week later, Feminists United members and University administrators,

including Dr. Cox, attended the second listening circle. The Feminists United members

again expressed concerns about the offending Yaks and requested that UMW address the

hostile campus atmosphere. A UMW professor recommended that the University provide

“better training” and engage in “more transparency and communication at all levels.” See

Complaint ¶ 64. Dr. Cox responded, however, that “such solutions would violate privacy

rights,” and she otherwise failed to offer any plan to address the harassment and threats

suffered by Feminists United members. Id.

11

On April 17, 2015 — in an event later determined to be unrelated to the offending

Yaks — UMW student and Feminists United member Grace Mann was killed by another

student who was her roommate. During the immediate aftermath of that terrible event,

Feminists United members were unaware that it had no apparent connection to the

harassing and threatening Yaks. Mann’s demise prompted one Feminists United member

to send an email to UMW administrators chastising the University for its failure to

respond to the Yik Yak bullying and threats. UMW administrators did not respond to

that email.

2.

On May 7, 2015, the plaintiffs filed a complaint with the Department of

Education’s Office of Civil Rights (the “OCR complaint”), alleging that UMW had

contravened Title IX by failing to address the hostile environment at the University

resulting from the sexually harassing and threatening online posts. The plaintiffs also

held a press conference on UMW’s campus to announce the OCR complaint. That same

day, UMW issued a statement denying the allegations in the OCR complaint. After the

University’s denials, several messages were posted on Yik Yak that again harassed

Feminists United members, and also criticized the filing of the OCR complaint.

About a month later, on June 8, 2015, President Hurley wrote to the president of

the Feminist Majority Foundation addressing the OCR complaint. He promptly

distributed copies of his responsive letter to the UMW community and several media

outlets. According to the Complaint, Hurley’s letter falsely asserted that the OCR

complaint drew a connection between Grace Mann’s death and the threatening social

12

media posts. Hurley also inaccurately claimed that neither UMW nor its campus police

had received any reports of Yik Yak threats directed at Feminists United members.

Additionally, Hurley suggested that the safety concerns of Feminists United members

were exaggerated because some of the online threats simply derived from “pop culture.”

See Complaint ¶ 73.

In the wake of President Hurley’s June 2015 letter, additional harassing and

threatening messages were directed at Feminists United members on Yik Yak. Similar

Yaks continued to be posted throughout the summer of 2015. According to the

Complaint, “[t]he [new] posts expressed a sense of validation regarding the earlier posts

along with a newfound sense of outrage toward Feminists United for filing their OCR

[complaint].” See Complaint ¶ 74. The plaintiffs thereafter amended the OCR complaint

to allege retaliatory conduct by UMW.

B.

In May 2017, the plaintiffs withdrew the OCR complaint and initiated this lawsuit

in the Eastern District of Virginia, alleging, inter alia, the three claims now on appeal.

First, the Complaint alleges that UMW contravened Title IX by being deliberately

indifferent to student-on-student sex discrimination (the “sex discrimination claim”). In

support of the sex discrimination claim, the Complaint specifies that UMW’s deliberate

indifference served to create and foster a campus atmosphere so hostile that Feminists

United members refrained from leaving their homes, attending classes, and participating

in campus events. Second, the Complaint alleges that UMW retaliated against the

plaintiffs for advocating against sexual assault and reporting sexual harassment, also in

13

violation of Title IX (the “retaliation claim”). According to the Complaint, UMW

retaliated against the plaintiffs in two ways: (1) the University was deliberately

indifferent to UMW students harassing and threatening members of Feminists United for

engaging in protected conduct; and (2) President Hurley prepared and released his June

2015 letter, which made false accusations against — and was intended to disparage —

members of Feminists United. Third, under § 1983 of Title 42, the Complaint alleges

that Hurley infringed on the plaintiffs’ equal protection rights under the Fourteenth

Amendment (the “equal protection claim”). The Complaint alleges that Hurley

contravened the plaintiffs’ equal protection rights by, inter alia, failing to act against

those UMW students who had sexually harassed members of Feminists United. 5

The defendants promptly moved to dismiss the Complaint under Rule 12(b)(6),

asserting that it fails to state a claim upon which relief can be granted. President Hurley

also maintained that he is entitled to qualified immunity on the equal protection claim.

By its decision of September 19, 2017, the district court granted Hurley qualified

immunity and dismissed the Complaint. See Feminist Majority Found., 283 F. Supp. 3d

at 502-03. The plaintiffs have timely appealed the district court’s judgment of dismissal,

and we possess appellate jurisdiction pursuant to 28 U.S.C. § 1291.

5

The Complaint also advanced a fourth claim, an equal protection claim against

UMW’s current president, Troy Paino. The district court’s dismissal of that claim is not

challenged on appeal.

14

II.

We review de novo a district court’s decision to grant a motion to dismiss pursuant

to Federal Rule of Civil Procedure 12(b)(6). See Rockville Cars, LLC v. City of

Rockville, Md., 891 F.3d 141, 145 (4th Cir. 2018). In conducting such a review, we are

obliged to accept the complaint’s factual allegations as true and draw all reasonable

inferences in favor of the plaintiffs. See Singer v. Reali, 883 F.3d 425, 437 (4th Cir.

2018). A district court can properly grant a Rule 12(b)(6) dismissal only if the complaint

fails to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We likewise review de novo a district

court’s qualified immunity ruling. See Adams v. Ferguson, 884 F.3d 219, 226 (4th Cir.

2018).

III.

As heretofore explained, the plaintiffs appeal the district court’s dismissal of three

claims. We will first address and resolve the Title IX sex discrimination and retaliation

claims, respectively. We will then consider and decide the § 1983 equal protection claim,

which requires an assessment of President Hurley’s assertion of qualified immunity.

A.

1.

Beginning with the plaintiffs’ sex discrimination claim against UMW, we

recognize that Title IX provides, in relevant part, that “[n]o person . . . shall, on the basis

15

of sex, be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal financial

assistance.” See 20 U.S.C. § 1681(a). The Supreme Court has concluded that a victim of

sex discrimination is entitled to pursue a private cause of action against a federally-

funded educational institution for a violation of Title IX. See Cannon v. Univ. of Chi.,

441 U.S. 677, 709 (1979). Nearly twenty years ago, in Davis v. Monroe County Board of

Education, the Court explained that sexual harassment constitutes “discrimination”

within the meaning of Title IX. See 526 U.S. 629, 649-50 (1999). The Court also then

recognized that a covered institution can be liable under Title IX for its “deliberate

indifference to known acts of [student-on-student sexual] harassment in its programs or

activities,” if that harassment “is so severe, pervasive, and objectively offensive that it

effectively bars the victim’s access to an educational opportunity or benefit.” Id. at 633.

An educational institution can only be liable for student-on-student sexual harassment,

however, when the institution “exercises substantial control over both the harasser and

the context in which the known harassment occurs.” Id. at 645.

The Davis Court acknowledged that educational institutions have a great deal of

“flexibility” in disciplining students who sexually harass other students. See 526 U.S. at

648. Therefore, an institution is not normally liable for failing to cede to a harassment

victim’s specific remedial demands. Id. Nor is an institution subject to Title IX liability

when it “refrain[s] from a form of disciplinary action that would expose it to

constitutional or statutory claims.” Id. at 649. That said, when the institution’s response

— or lack thereof — to known student-on-student sexual harassment is “clearly

16

unreasonable,” the institution has contravened Title IX. Id. at 648; see S.B. ex rel. A.L. v.

Bd. of Educ. of Harford Cty., 819 F.3d 69, 77 (4th Cir. 2016).

Consistent with the Supreme Court’s Davis decision, we have recognized that, to

succeed on a Title IX claim premised on sexual harassment, a plaintiff must satisfy four

elements. See Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (en banc).

Those elements are: (1) that the educational institution receives federal funds; (2) that the

plaintiff “was subjected to harassment based on her sex”; (3) that “the harassment was

sufficiently severe or pervasive to create a hostile (or abusive) environment in an

educational program or activity”; and (4) that “there is a basis for imputing liability to the

institution.” Id.

2.

The University has not disputed the sufficiency of the Complaint on the first,

second, and third elements identified in our Jennings decision. That is, the Complaint

sufficiently alleges that: (1) UMW receives federal funds; (2) many of the harassing and

threatening Yaks targeted the plaintiff Feminists United members on the basis of sex; and

(3) those Yaks, along with other online posts and in-person interactions, created a hostile

and abusive environment. But UMW maintained below — and the district court agreed

— that the Title IX sex discrimination claim fails as a matter of law on the fourth element

of Jennings; that is, it lacks a basis for imputing liability to UMW.

The district court explained that the sexual harassment endured by members of

Feminists United “took place in a context over which UMW had limited, if any, control.”

See Feminist Majority Found., 283 F. Supp. 3d at 501. Furthermore, the court concluded

17

that UMW was not deliberately indifferent to such harassment because it “t[ook] some

action,” including coordinating listening circles and sending a campus police officer to

attend two student events. Id. To the extent the plaintiffs faulted UMW for failing to

respond to the harassment in their preferred manner, the court observed that “Title IX

does not require [a university] to meet the particular remedial demands of its students.”

Id. The court also emphasized that one of those demands — “banning Yik Yak from the

campus wireless network” — might expose the University to First Amendment liability.

Id.

3.

On appeal, the plaintiffs maintain that the Complaint sufficiently alleges a Title IX

claim for sex discrimination, including the fourth element, i.e., a basis for imputing

liability to UMW. According to the plaintiffs, their allegations reflect that UMW had

substantial control over both the context in which the student-on-student harassment

occurred and those students who harassed Feminists United members. The plaintiffs also

maintain that the Complaint adequately alleges UMW’s deliberate indifference to such

sexual harassment and specifies several ways the University could have responded

without implicating the First Amendment. We must therefore focus on and resolve the

crux of the sex discrimination claim: whether the Complaint sufficiently alleges a basis

for imputing liability to UMW.

a.

The district court determined that UMW had little — if any — control over the

context in which the Feminists United members were harassed, because nearly all of that

18

harassment occurred through Yik Yak. We are satisfied, however, that the court’s

decision in that regard is undermined by the Complaint’s factual allegations. In so ruling,

we remain mindful that the Supreme Court’s Davis decision limits an educational

institution’s Title IX liability for student-on-student sexual harassment to those situations

where the defendant institution “exercises substantial control over both the harasser and

the context in which the known harassment occurs.” See 526 U.S. at 645.

We begin the substantial control analysis by identifying the context in which the

sexual harassment occurred and UMW’s control over that context. The Complaint

alleges that much of the harassment occurred through Yik Yak. Although that

harassment was communicated through cyberspace, the Complaint shows that UMW had

substantial control over the context of the harassment because it actually transpired on

campus. Specifically, due to Yik Yak’s location-based feature, the harassing and

threatening messages originated on or within the immediate vicinity of the UMW

campus. In addition, some of the offending Yaks were posted using the University’s

wireless network, and the harassers necessarily created those Yaks on campus.

Moreover, the harassment concerned events occurring on campus and specifically

targeted UMW students. See Davis, 526 U.S. at 646 (“Where . . . the misconduct occurs

during school hours and on school grounds[,] . . . the [educational institution] retains

substantial control over the context in which the harassment occurs.”); Kowalski v.

Berkeley Cty. Sch., 652 F.3d 565, 573 (4th Cir. 2011) (observing “that speech originating

outside of the schoolhouse gate but directed at persons in school and received by and

acted on by them [may] in fact [constitute] in-school speech”).

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Furthermore, to the extent the sexual harassment was communicated through

UMW’s wireless network, the Complaint alleges that the University could have disabled

access to Yik Yak campuswide. The Complaint also alleges that the University could

have sought to identify those students using UMW’s network to harass and threaten

Feminists United members. If the University had pinpointed the harassers, it could then

have circumscribed their use of UMW’s network. Indeed, it is widely known that a

university can control activities that occur on its own network. A university may, for

example, bar a student caught downloading music or movies in violation of copyright

laws from accessing its network. See 20 U.S.C. § 1094(a)(29)(A) (requiring educational

institutions to “develop[] plans to effectively combat the unauthorized distribution of

copyrighted material” in exchange for federal funds).

Beyond the University’s technical capacity to control the means by which the

harassing and threatening messages were transmitted, the Complaint demonstrates that

UMW could have exercised control in other ways that might have corrected the hostile

environment. For instance, UMW administrators could have more clearly communicated

to the student body that the University would not tolerate sexually harassing behavior

either in person or online. The University also could have conducted mandatory

assemblies to explain and discourage cyber bullying and sex discrimination, and it could

have provided anti-sexual harassment training to the entire student body and faculty. In

these circumstances, we are satisfied that the Complaint sufficiently alleges UMW’s

substantial control over the context in which the alleged harassment occurred.

20

The substantial control analysis also requires us to consider the educational

institution’s control over the harasser, especially its “disciplinary authority.” See Davis,

526 U.S. at 647. Under the Complaint, UMW had the ability to punish those students

who posted sexually harassing and threatening messages online. Indeed, the Complaint

recounts that UMW had previously disciplined students — members of the men’s rugby

team — for derogatory off-campus speech. If UMW could punish students for offensive

off-campus speech that was not aimed at any particular students, the University also

could have disciplined students for harassing and threatening on-campus speech targeted

at Feminists United members. In fact, according to the Complaint, Dr. Cox actually

advised Feminists United members to contact her if they felt threatened by an “identified

member[] of [the] community.” See Complaint ¶ 60. Viewed in the proper light, Cox’s

statement demonstrates UMW’s capacity to exercise control over students engaging in

threatening online behavior.

To the extent the University contends it was unable to control the harassers

because the offending Yaks were anonymous, we readily reject that proposition. 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. Nor did the University ever ask Yik

Yak to identify those users who had harassed and threatened UMW students. The

University cannot escape liability based on facially anonymous posts when, according to

the Complaint, UMW never sought to discern whether it could identify the harassers.

21

At bottom, in assessing whether UMW — under the Complaint — had sufficient

control over the harassers and the context of the harassment, we cannot conclude that

UMW could turn a blind eye to the sexual harassment that pervaded and disrupted its

campus solely because the offending conduct took place through cyberspace. See

Kowalski, 652 F.3d at 572-74 (rejecting student’s First Amendment challenge to high

school’s disciplinary action taken against student who, off campus, created website to

bully classmate). Rather, we are satisfied that the Complaint sufficiently alleges that

UMW could exert substantial control over the context in which the harassment occurred

and could exercise disciplinary authority over those UMW students who sexually

harassed and threatened the Feminists United members. 6

b.

The district court also ruled that the sex discrimination claim fails because the

Complaint does not sufficiently allege UMW’s deliberate indifference to sexual

harassment. We again disagree. Simply put, the Complaint demonstrates that —

although UMW was not entirely unresponsive to allegations of harassment — the

6

In his opinion dissenting in part, our distinguished colleague Judge Agee asserts

that the University does not have sufficient control over the context of the harassment and

the harassers. This assertion highlights, however, that his dissent pays only lip service to

the Rule 12(b)(6) standard and entirely fails to adhere to it. That is, our good friend

refuses to view the facts in the light most favorable to the plaintiffs and to draw all

reasonable inferences in their favor. In fact, the dissent draws the inferences against the

plaintiffs and goes well beyond the Complaint’s allegations, venturing outside of the

record on appeal in an effort to actually disprove those allegations. See post at 66-67, 78.

And — without recognizing the irony — the dissent makes unwarranted accusations of

results-oriented decisionmaking with respect to our faithful recitation of the Complaint’s

allegations. See id. at 66.

22

University did not engage in efforts that were “reasonably calculated to end [the]

harassment.” See Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 669 (2d Cir. 2012).

Indeed, the Complaint portrays repeated instances of UMW students targeting and

harassing Feminists United members with threats and other sex-based hostility. Those

harassing activities were reported to the University on multiple occasions over many

months. UMW’s administrators, however, merely responded with two listening circles, a

generic email, and by sending a campus police officer with a threatened student on one

evening after particularly aggressive and targeted Yaks.

The University faces serious difficulties in its effort to convince us that the

Complaint does not sufficiently allege deliberate indifference. The pertinent facts include

the following:

• In November 2014, UMW students began harassing Feminists

United members through Yik Yak for opposing the creation of

fraternities at UMW;

• In February 2015, plaintiff McKinsey informed Dr. Cox that she

felt unsafe on the UMW campus because of the harassing and

threatening online posts directed at her, as well as her in-person

interactions with members of the rugby team;

• In March 2015, McKinsey and plaintiff Michels reported ongoing

safety concerns to President Hurley on behalf of themselves and

other Feminists United members;

• After Hurley’s March 19, 2015 announcement that the rugby team

would be suspended indefinitely, a flurry of harassing and

threatening Yaks were aimed at Feminists United members;

• The offending Yaks threatened to “euthanize,” “kill,” and “[g]rape,”

Feminists United members, named specific members, and reported

McKinsey’s locations on the UMW campus with the goal that

she be confronted. See Complaint ¶ 46. Those Yaks were

23

sufficiently concerning that the UMW campus police assigned an

officer to two student events McKinsey attended;

• Additional offending Yaks continued throughout March 2015.

By the end of that month, more than 700 harassing and threatening

posts had been directed toward members of Feminists United;

• Although Feminists United members notified UMW administrators

about those messages and their safety concerns, Cox announced that

the University had “no recourse” for such online harassment,

see Complaint ¶ 51;

• In April 2015, in two listening circles, Feminists United members

again reported to UMW administrators that they felt unsafe on

campus as a result of the offending Yaks; and

• Thereafter, offending Yaks continued to be posted throughout the

summer of 2015. The University, however, never investigated the

harassment and threats, and never asked any law enforcement

agencies to investigate them.

On the allegations of the Complaint, we are satisfied that the plaintiffs sufficiently

allege that UMW exhibited deliberate indifference to known instances of sexual

harassment. Although the Complaint acknowledges that UMW took limited steps in

response to the harassing and threatening Yaks, those actions do not preclude Title IX

liability at this stage. See Davis, 526 U.S. at 649 (recognizing that court may determine,

in appropriate situation, that institution did not act with deliberate indifference as matter

of law). UMW’s decision to have a campus police officer at two student meetings was a

short-term countermeasure — a one-off — that failed to address the more than six-month

harassment campaign directed at Feminists United and its members. See Zeno, 702 F.3d

at 669. Moreover, viewed in the proper light, UMW’s position is undermined by the fact

24

that its campus environment was such that a police officer’s presence was necessary at

two student meetings.

As for the listening circles, we agree that university administrators listening to

students’ reports of harassment and threats is an important step in seeking to rectify a

sexually hostile environment. But the mere act of listening to students is not a remedy in

and of itself. See S.B. ex rel. A.L., 819 F.3d at 77 (observing that “half-hearted

investigation or remedial action” is insufficient to shield school from Title IX liability).

Significantly, after the Feminists United members placed the UMW administration on

notice of the hostile environment permeating the campus, the University made no real

effort to investigate or end the harassment and threats contained in the Yaks. See Davis,

526 U.S. at 654 (recognizing that deliberate indifference can be shown through failure to

investigate or failure to attempt to remedy harassment); Jennings, 482 F.3d at 701

(explaining that a “[u]niversity’s failure to take any action to remedy the [harassment]

would allow a rational jury to find deliberate indifference to ongoing discrimination”);

Vance v. Spencer Cty. Pub. Sch. Dist., 231 F.3d 253, 261 (6th Cir. 2000) (recognizing

that educational institution “must respond” to report of sexual harassment); Murrell v.

Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1248 (10th Cir. 1999) (observing that

failure to investigate complaint of sexual assault constitutes deliberate indifference).

Rather than seeking to end the online harassment and threats, Dr. Cox — as

UMW’s Title IX coordinator — simply advised the Feminists United members that the

University was powerless to address the offending conduct. President Hurley likewise

declined to take any meaningful action to curtail the online harassment and publicly

25

downplayed the seriousness of the threats aimed at the Feminists United members. See

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998) (recognizing that school

is deliberately indifferent where it makes “official decision” not to remedy Title IX

violation). Under the Complaint, we are therefore unable to conclude at the pleading

stage that UMW’s response to the sexual harassment of Feminists United members was

not “clearly unreasonable.” See Davis, 526 U.S. at 648.

c.

In its deliberate indifference analysis, the district court also agreed with the

University that the First Amendment circumscribed UMW’s ability to respond to the

online harassment and threats suffered by the plaintiffs. On appeal, the University

maintains that two actions requested by the plaintiffs implicate the First Amendment,

namely that students be punished for their speech, and that students be barred from

accessing Yik Yak on UMW’s wireless network. As explained below, 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.

(1)

We first address the University’s expressed apprehension about punishing students

for their speech. Put simply, we are satisfied that its First Amendment concerns about

penalizing speech lack a proper basis. The University could have vigorously responded

to the threatening Yaks without implicating the First Amendment because “true threats”

26

are not protected speech. See Virginia v. Black, 538 U.S. 343, 359 (2003) (recognizing

that “true threats” are not constitutionally protected and describing them as “statements

where the speaker means to communicate a serious expression of an intent to commit an

act of unlawful violence to a particular individual or group of individuals”). 7

The Supreme Court and our Court have consistently recognized the principle that

threatening speech is not protected by the Constitution. See, e.g., Watts v. United States,

394 U.S. 705, 707 (1969) (upholding constitutionality of statute making it illegal to

threaten president with physical violence); United States v. Maxton, 940 F.2d 103, 105-06

(4th Cir. 1991) (“Threats to kidnap or injure persons are legislatively proscribable, falling

within that group of expressions, such as fighting words, which are not constitutionally

protected pure speech.” (internal quotation marks omitted)). Moreover, both federal law

and Virginia law criminalize the communication of threats to kill or injure others. See 18

U.S.C. § 875(c) (prohibiting transmission through interstate commerce of threat to injure

another); Va. Code Ann. § 18.2-60(A)(1) (criminalizing electronic communication of

threat to kill or injure another if threat recipient is placed “in reasonable apprehension of

death or bodily injury”).

7

Although we focus on the University’s ability to punish threatening speech, we

do not foreclose the possibility that UMW could also punish students for harassing

speech that was nonthreatening. See Giboney v. Empire Storage & Ice Co., 336 U.S. 490,

502 (1949) (“[I]t has never been deemed an abridgement of freedom of speech . . . to

make a course of conduct illegal merely because the conduct was in part initiated,

evidenced, or carried out by means of language, either spoken, written, or printed.”).

27

Our 2007 decision in United States v. Bly is instructive on the unprotected and

criminal nature of threatening speech. See 510 F.3d 453 (4th Cir. 2007). In Bly, the

grand jury charged the defendant with contravening 18 U.S.C. § 876(b), which makes it

illegal to mail a letter containing a threat of violence in an effort to extort something of

value from another. Bly — a disgruntled former doctoral student at the University of

Virginia — mailed a letter to persons affiliated with that great institution, including its

President, demanding that the university create a specific engineering program for Bly

and remedy perceived improprieties in its doctoral degree process. Bly’s letter detailed

his purported proficiency with firearms, and he therein threatened to injure specific

faculty members. We affirmed Bly’s § 876(b) conviction and sentence, explaining that

true threats, such as those in Bly’s letter, are not constitutionally protected. In assessing

whether Bly’s statements constituted true threats, we emphasized that Bly targeted

specific individuals and that he “implicitly and explicitly promised violent retribution.”

Id. at 459.

The threats described in the plaintiffs’ Complaint are similar to the threats made in

Bly: specific targets are identified and violent actions are vowed. For example, the

Complaint alleges that threatening Yaks named Feminists United members and identified

plaintiff McKinsey’s locations on campus. The Complaint asserts that some of the Yaks

threatened to “euthanize,” “kill,” and “[g]rape” Feminists United members. See

Complaint ¶ 46. Although the University contends that the Yaks quoted in the Complaint

do not constitute “true threats” because many of them reference “pop culture,” we are

entirely unpersuaded. A reasonable person would not be assuaged by the fact that a

28

threat of violence included a popular culture reference. See Maxton, 940 F.2d at 106

(explaining that reasonable person standard applies in considering whether

communication is “true threat”). That is particularly true here, where the backdrop of the

threatening messages is a campus environment purportedly conducive to sexual assault,

and those messages target persons by name and location. In any event, the Complaint

also alleges that there were other “potentially criminal” threatening Yaks, see Complaint

¶ 83, and “[g]enerally, what is or is not a true threat is a jury question,” see United States

v. Roberts, 915 F.2d 889, 891 (4th Cir. 1990).

Moreover, although the student culprits in these proceedings made their threats

through an anonymous messaging application, the anonymity of the threats does not

excuse UMW’s deficient response. We are satisfied that the University was obliged to

investigate and seek to identify those students who posted the threats and to report the

threats to appropriate law enforcement agencies. See Abbott v. Pastides, 900 F.3d 160,

173 (4th Cir. 2018) (observing that “this court has made clear, universities have

obligations not only to protect their students’ free expression, but also to protect their

students”). 8 Put succinctly, the threats described in the Complaint appear to constitute

criminal conduct. Steps should have been promptly taken by the University to solve the

“whodunnits,” in that the only remaining unknowns with respect to those offenses were

8

As the plaintiffs’ counsel posited at oral argument, if an anonymous bomb threat

aimed at UMW’s campus had been posted to Yik Yak, the University’s administrators

would have done anything possible to investigate the bomb threat. And they would have

promptly reported the threat to law enforcement agencies. We discern no reason why the

University should have treated the threats identified in the Complaint any differently.

29

the identities of the culprits. If UMW or a law enforcement agency had successfully

identified the students who posted threatening messages, the offenders could have been

disciplined or prosecuted without infringing on the First Amendment. See Black, 538

U.S. at 359; Bly, 510 F.3d at 458. It should go without saying that the Feminists United

members deserved as much protection from threats as the University of Virginia’s faculty

in the Bly case.

(2)

Furthermore, the Complaint alleges that UMW could have taken other steps in

response to the harassment that would not have implicated any First Amendment

concerns. 9 For example, the University could have more vigorously denounced the

harassing and threatening conduct, clarified that Feminists United members were not

responsible for the rugby team’s suspension, conducted a mandatory assembly of the

student body to discuss and discourage such harassment through social media, or hired an

outside expert to assist in developing policies for addressing and preventing harassment.

Additionally, UMW could have offered counseling services for those impacted by the

targeted harassment. To be sure, Title IX required none of those specific actions. See

Davis, 526 U.S. at 648. Consideration of an educational institution’s remedial options,

however, inheres in the deliberate indifference analysis. See S.B. ex rel. A.L., 819 F.3d at

9

Because the Complaint alleges that the University could have taken responsive

actions outside of barring access to Yik Yak on UMW’s wireless network, it is

unnecessary for us to decide whether UMW blocking Yik Yak might have contravened

the First Amendment.

30

77. In other words, when an educational institution claims that it has done all it can to

address instances of sexual harassment and threats, a reviewing court should consider

whether the institution failed to take other obvious and reasonable steps. The Complaint

thus adequately alleges that UMW could have addressed the harassing and threatening

Yaks without exposing itself to First Amendment liability.

d.

At bottom, we are satisfied that the plaintiffs have sufficiently alleged a sex

discrimination claim under Title IX, predicated on UMW’s deliberate indifference to the

specified student-on-student harassment. We will therefore vacate the dismissal of that

claim.

B.

1.

Turning to the retaliation claim against UMW, the Supreme Court recognized

more than ten years ago that “the private right of action implied by Title IX encompasses

claims of retaliation.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 171 (2005).

In Jackson, the Court explained that when a federally-funded educational institution

“retaliates against a person because he complains of sex discrimination, this constitutes

intentional discrimination on the basis of sex, in violation of Title IX.” Id. at 174

(internal quotation marks omitted). The Court, however, has never spelled out the

specific elements of such a retaliation claim. Like our sister circuits, we thus apply

familiar Title VII retaliation concepts to the requirements of a Title IX retaliation claim.

See Preston v. Commonwealth of Va. ex rel. New River Cmty. Coll., 31 F.3d 203, 207

31

(4th Cir. 1994) (recognizing that “Title VII, and the judicial interpretations of it, provide

a persuasive body of standards to which we may look in shaping the contours of a private

right of action under Title IX”); see also Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545,

564 (3d Cir. 2017); Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 867 (9th

Cir. 2014); Milligan v. Bd. of Tr. of S. Ill. Univ., 686 F.3d 378, 388 (7th Cir. 2012);

Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 91 (2d Cir. 2011).

At the pleading stage, the plaintiffs are required to sufficiently allege two elements

to state a Title IX retaliation claim. First, they must allege that they engaged in protected

activity under Title IX, and second, they must allege that — as a result of their protected

activity — they suffered an adverse action attributable to the defendant educational

institution. See Coleman v. Md. Court of Appeals, 626 F.3d 187, 191 (4th Cir. 2010); see

also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015)

(recognizing, in the context of Title VII, that “for a retaliation claim to survive . . . a

motion to dismiss, the plaintiff must plausibly allege that: (1) defendants discriminated

— or took an adverse employment action — against him, (2) because he has opposed any

unlawful employment practice” (internal quotation marks omitted)).

To be actionable, the retaliatory conduct must be “materially adverse”; that is, it

must suffice to “dissuade[] a reasonable [person] from making or supporting a charge of

discrimination.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (internal

quotation marks omitted). We have recognized — in the Title VII context — that

“retaliatory harassment” may constitute a materially adverse action. See Von Gunten v.

Maryland, 243 F.3d 858, 865 (4th Cir. 2001), abrogated on other grounds by Burlington

32

N. & Santa Fe. Ry., 548 U.S. at 64. A clear majority of our sister circuits have similarly

held that retaliatory harassment, including coworker harassment, can rise to the level of

material adversity. See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 345-47 (6th Cir.

2008) (collecting similar decisions of First, Second, Third, Seventh, Ninth, and Tenth

Circuits). But see Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657-58 (5th Cir.

2012) (ruling that coworker retaliatory harassment is not adverse employment action in

Title VII context).

2.

The University has not challenged the proposition that the plaintiffs engaged in

protected activities under Title IX. Those protected activities included advocating against

and reporting sexual harassment, plus filing the OCR complaint. The University did,

however, maintain that the plaintiffs failed to allege that UMW took any “retaliatory

action” against them, and the district court agreed. See Feminist Majority Found., 283 F.

Supp. 3d at 502. To the extent the retaliation claim relies on harassing and threatening

Yaks directed at members of Feminists United after they engaged in protected activity,

the court ruled that such student-on-student retaliatory harassment cannot legally be

attributed to UMW. Id. at 502 n.14. Insofar as the plaintiffs predicated their retaliation

claim on President Hurley’s June 2015 letter, the court deemed the letter not actionable

because it “simply responded to the OCR complaint.” Id. at 502.

3.

On appeal, the plaintiffs contend that UMW can be liable for student-on-student

harassment that is retaliatory in nature. Additionally, the plaintiffs maintain that

33

President Hurley’s June 2015 letter itself constitutes a materially adverse retaliatory

action. We address those contentions in turn.

a.

The district court ruled that the aspect of the retaliation claim predicated on

student-on-student retaliatory harassment fails as a matter of law. We are compelled to

disagree, in light of the principles enunciated by the Supreme Court in its Davis and

Jackson decisions, along with our recognition that retaliatory harassment can be a

materially adverse action. Applying those principles, we are satisfied that an educational

institution can be liable for acting with deliberate indifference toward known instances of

student-on-student retaliatory harassment. Pursuant to Davis, however, the institution

can only be liable for such retaliation if it “exercises substantial control over both the

[student engaged in retaliatory harassment] and the context in which the known

[retaliatory harassment] occurs.” See 526 U.S. at 645.

The Complaint alleges that Feminists United members engaged in protected

activity in three ways: (1) by advocating against “sex-based violence at UMW”; (2) by

reporting instances of sexual harassment to the University; and (3) by filing the OCR

complaint. See Complaint ¶¶ 68, 98. The Complaint further alleges that, in response to

those protected activities, other UMW students harassed and threatened them in a manner

that would deter a reasonable person from “making or supporting a charge of [sex]

discrimination.” See Burlington N. & Santa Fe Ry., 548 U.S. at 68.

The Complaint demonstrates that, after plaintiff McKinsey published her

newspaper article speaking out against sex discrimination at the University, her fellow

34

UMW students harassed and threatened her on the newspaper website and on Yik Yak.

In addition, members of the UMW men’s rugby team confronted McKinsey in a manner

that rendered her extremely unsettled. Shortly thereafter, in response to President

Hurley’s announcement that the men’s rugby team would be suspended indefinitely,

UMW students ramped up their harassing and threatening Yaks against the Feminists

United members. Some of the Yaks named specific members of Feminists United, and

other Yaks revealed plaintiff McKinsey’s locations on UMW’s campus. As of March

2015, more than 700 harassing and threatening Yaks had been directed at Feminists

United members. When the plaintiffs filed their OCR complaint two months later, they

were subjected to another barrage of harassing and threatening Yaks. The Complaint

specifies that those types of Yaks continued well into the summer of 2015.

As the Complaint illustrates, Feminists United members promptly reported the

foregoing retaliatory conduct to UMW on several occasions. The Complaint alleges that

UMW had the ability to control both the students who engaged in retaliatory harassment

and the context in which that harassment occurred. See supra Section III.A.3.a. The

University took little or no action, however, to address and curtail the retaliatory

activities. See supra Section III.A.3.b. Instead, Dr. Cox actually asserted that the

University had “no recourse” for the harassing and threatening behavior of UMW

students. See Complaint ¶ 51. Because an educational institution can be liable under

35

Title IX for its deliberate indifference to student-on-student retaliatory harassment, we

are satisfied that the Complaint sufficiently alleges a retaliation claim against UMW. 10

As UMW would have it, the retaliation claim merely restates and duplicates the

sex discrimination claim. That contention does not acknowledge, however, the propriety

of pleading multiple or alternative claims based on the same facts. See Fed. R. Civ. P.

8(d)(2). And, in any event, the sex discrimination claim and the retaliation claim are not

duplicative. Although both claims rely on student-on-student harassment that occurred

after the plaintiffs engaged in protected activities, the sex discrimination claim differs

from the retaliation claim because, to prove the latter, the plaintiffs must show a

retaliatory motive. See, e.g., Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216

(4th Cir. 2016).

The University also argues on appeal that the retaliation claim seeks to hold UMW

liable for its students’ instantaneous retaliatory conduct, and the University contends that,

practically speaking, it could not reasonably be expected to control such conduct. In that

regard, we disagree with the University’s characterization of the retaliation claim. The

Complaint plainly faults UMW for its failure — over several months — to address and

10

Five years ago, in University of Texas Southwestern Medical Center v. Nassar,

the Supreme Court held that “a plaintiff making a retaliation claim under [Title VII] must

establish that his or her protected activity was a but-for cause of the alleged adverse

action by the employer.” See 570 U.S. 338, 362 (2013). Neither the Supreme Court nor

our Court has resolved the question of whether Nassar’s ruling applies to a Title IX

retaliation claim, and the parties have not pursued that issue. But see Burton v. Bd. of

Regents of Univ. of Wis. Sys., 851 F.3d 690, 695 (7th Cir. 2017) (asserting, without

explanation, that Nassar applies to Title IX retaliation claim). We need not resolve that

issue today because the Complaint sufficiently alleges “but-for” causation.

36

seek to eliminate retaliatory harassing conduct. Furthermore, as explained in our analysis

of the sex discrimination claim, the Complaint alleges UMW’s control over the context

and the harassers during that period of time. In other words, the retaliatory harassment

engaged in by UMW students spanned a sufficient period for the University to have taken

reasonable steps to address it.

In sum, if an educational institution can be liable for student-on-student sexual

harassment, see Davis, 526 U.S. at 646-47, it can also be liable for student-on-student

retaliatory harassment, see Doe v. Univ. of Tenn., 186 F. Supp. 3d 788, 811 (M.D. Tenn.

2016). And that principle applies even though the institution’s administrators did not

personally participate in the harassment. See Doe, 186 F. Supp. 3d at 811. Our

conclusion comports with the Supreme Court’s “repeated holdings construing . . . Title

IX broadly,” see Jackson, 544 U.S. at 174, as well as the Court’s recognition that, for

antidiscrimination laws to function effectively, retaliation victims must enjoy expansive

legal protections, see Burlington N. & Santa Fe Ry., 548 U.S. at 67. We are therefore

satisfied that the district court erred in dismissing the retaliation claim, insofar as it is

predicated on UMW’s deliberate indifference to student-on-student retaliatory

harassment.

b.

Turning to the part of the retaliation claim that is predicated on President Hurley’s

June 2015 letter, we observe that the letter was never filed in the district court.

Consequently, that letter is not part of the record on appeal. See Fed. R. App. P. 10(a)

(providing that the record on appeal includes, inter alia, “the original papers and exhibits

37

filed in the district court”). Additionally, although either party could have sought to

correct or modify the record on appeal to include Hurley’s letter, they have not done so.

See Fed. R. App. P. 10(e)(2). In these circumstances, we are constrained to consider only

the Complaint’s description of the letter. 11

With that caveat, we agree with the district court that President Hurley’s letter —

as described in the Complaint — does not constitute a materially adverse action that, in

and of itself, can support the retaliation claim. Put simply, an educational institution and

its administrators are entitled to defend against accusations of discrimination. See Dixon

v. Int’l Bhd. of Police Officers, 504 F.3d 73, 84 (1st Cir. 2007) (“[T]he person or entity

accused of discrimination must be allowed to defend himself or itself.”). Furthermore, an

institution and its administrators can explain their denials of discrimination allegations

without fear that those denials might create additional liability. Although we

acknowledge that “[t]here is an important difference between defending oneself . . . and

threatening, intimidating, or otherwise interfering with someone’s right to pursue a

11

Although President Hurley’s June 2015 letter was not in the record, the district

court apparently obtained it from the internet and considered the letter in dismissing the

retaliation claim. Thereafter, the parties included the letter in the Joint Appendix filed on

appeal. Rule 30(a)(1) of the Federal Rules of Appellate Procedure, however, limits the

joint appendix to “(A) the relevant docket entries in the proceeding below; (B) the

relevant portions of the pleadings, charge, findings, or opinion; (C) the judgment, order,

or decision in question; and (D) other parts of the record to which the parties wish to

direct the court’s attention.” See Fed. R. App. P. 30(a)(1) (emphasis added); see also 4th

Cir. R. 30(b)(1) (“The appendix should . . . contain the final order or order appealed from,

the complaint . . . , as well as all other parts of the record which are vital to the

understanding of the basic issues on appeal.” (emphasis added)). Hurley’s letter does not

fall within any of those provisions.

38

discrimination claim,” the Complaint does not sufficiently allege that Hurley’s letter falls

within the latter category. See id.; cf. Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 687

(4th Cir. 2000) (recognizing, in context of First Amendment retaliation claim, that public

official’s retaliatory speech is actionable where speech constitutes “threat, coercion, or

intimidation intimating that punishment, sanction, or adverse regulatory action will

imminently follow”). 12

According to the Complaint, three aspects of President Hurley’s letter support a

standalone retaliation claim. First, the Complaint alleges that Hurley falsely asserted that

the OCR complaint “drew a ‘troubling’ connection between [Grace] Mann’s death and

the Yik Yak threats despite Feminists United’s and its counsel’s public statements to the

contrary.” See Complaint ¶ 72. The Complaint acknowledges, however, that at least one

member of Feminists United claimed that the Mann incident and the Yik Yak posts were

related. Consequently, Hurley’s assertion in his letter about Mann’s death must be

12

The standard for proving a materially adverse action in the Title VII retaliation

context — which we apply to a Title IX retaliation claim — is similar to the standard for

demonstrating an adverse action in the First Amendment retaliation context. Compare

Burlington N. & Santa Fe Ry., 548 U.S. at 68 (explaining that, to be actionable under

Title VII, retaliatory action must be severe enough to dissuade reasonable person from

reporting discrimination), with Constantine v. Rectors & Visitors of George Mason Univ.,

411 F.3d 474, 500 (4th Cir. 2005) (“[F]or purposes of a First Amendment retaliation

claim under § 1983, a plaintiff suffers adverse action if the defendant’s allegedly

retaliatory conduct would likely deter a person of ordinary firmness from the exercise of

First Amendment rights.” (internal quotation marks omitted)).

39

viewed as a permissible response to a student’s effort to blame UMW for that terrible

event. 13

Second, the Complaint faults President Hurley’s letter for downplaying certain

Yik Yak threats by emphasizing their use of “pop culture references.” See Complaint

¶ 73. We agree with UMW, however, that this part of Hurley’s letter sought to

contextualize those Yaks and, in so doing, served as an assessment of actual danger on

the UMW campus. School administrators are entitled to communicate freely with

students and faculty regarding the existence and severity of potential safety risks on the

school’s campus without fear of creating future liability.

Third, the Complaint accuses President Hurley’s letter of erroneously asserting

that neither UMW nor its campus police had received reports of Yik Yak threats against

Feminists United members. Hurley’s assertion, however, amounts to little more than a

denial of the allegations of discrimination made in the OCR complaint. That is, Hurley

again sought to characterize the seriousness of the Yaks and explained his belief that no

actual threats against particular students were reported to the University. Even if

Hurley’s characterization of the Yaks was misguided, he was entitled to defend against

the allegations of sex discrimination without running afoul of Title IX anti-retaliation

13

Even now, the Complaint does not unambiguously foreclose a connection

between Mann’s death and the actions underlying the sex discrimination claim. Although

the Complaint appears to disclaim such a connection, it also alleges that Mann’s killer is

a former member of UMW’s rugby team. See Complaint ¶ 65. The only apparent reason

for including that detail is to connect the rugby team events alleged in the Complaint with

Mann’s tragic death.

40

principles. See Dixon, 504 F.3d at 84 (explaining that entity is permitted to defend itself

against accusations of discrimination).

In sum, as with any denial of a discrimination claim, President Hurley’s response

to the OCR complaint might have cast doubt on the veracity of that complaint and those

who filed it. The fact that a response to a discrimination complaint calls into question the

credibility of the complainants, however, does not make the response a materially adverse

retaliatory action. A person who charges an institution and its administrators with

discrimination — particularly in a highly publicized way — should reasonably expect

that the institution and its administrators may deny the claim in a publicized response.

We are therefore satisfied that, to the extent the Complaint alleges retaliation based solely

on President Hurley’s letter of June 2015, the claim fails because the letter alone does not

constitute a materially adverse retaliatory action. See S.B. ex rel. A.L., 819 F.3d at 78 n.7

(determining that certain alleged retaliatory actions were not materially adverse as matter

of law).

c.

In these circumstances, we will vacate the dismissal of the retaliation claim insofar

as it is premised on UMW’s deliberate indifference to student-on-student retaliatory

harassment. We will affirm, however, the dismissal of the aspect of the retaliation claim

that relies exclusively on President Hurley’s June 2015 letter. We do not decide the

probative value of Hurley’s letter to the deliberate indifference part of the retaliation

claim. We leave that issue for the remand proceedings.

41

C.

Finally, we turn to the equal protection claim pursued against President Hurley in

his individual capacity under 42 U.S.C. § 1983, for his own deliberate indifference to

student-on-student sexual harassment suffered by the plaintiff Feminists United members.

In dismissing the equal protection claim, the district court rejected the premise of the

plaintiffs’ sexual harassment theory, i.e., that deliberate indifference to student-on-

student harassment contravenes the Equal Protection Clause. The court further ruled that

— because “UMW did not act with deliberate indifference in response to the plaintiffs’

complaints” — the sexual harassment theory fails on the merits alongside the Title IX sex

discrimination claim. See Feminist Majority Found., 283 F. Supp. 3d at 502 n.15.

Alternatively, the court ruled that Hurley is entitled to qualified immunity against the

equal protection claim on the ground that “the constitutional right that Hurley allegedly

violated was not clearly established.” Id. at 502. 14

On appeal, the plaintiffs challenge the district court’s award of qualified immunity

to President Hurley and its related dismissal of the equal protection claim, contending

that Hurley’s deliberate indifference to student-on-student sexual harassment violated a

clearly established constitutional right. We begin our discussion of the equal protection

claim by describing the qualified immunity standard. We then address whether that claim

14

In addition to the sexual harassment theory of the equal protection claim, the

district court considered and dismissed a disparate treatment theory. See Feminist

Majority Found., 283 F. Supp. 3d at 502; see also King v. Rubenstein, 825 F.3d 206, 220

(4th Cir. 2016) (explaining disparate treatment equal protection claim). The plaintiffs do

not pursue the disparate treatment theory on appeal.

42

exists and whether the plaintiffs have sufficiently alleged it against Hurley. Lastly, we

consider whether the constitutional right that Hurley allegedly contravened was clearly

established at the time of his challenged conduct.

1.

We have explained that “[q]ualified immunity shields government officials

performing discretionary functions” from personal liability for damages under § 1983,

“insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Ridpath v. Bd. of Governors

Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006) (internal quotation marks omitted).

Government officials “are entitled to qualified immunity under § 1983 unless (1) they

violated a federal statutory or constitutional right, and (2) the unlawfulness of their

conduct was clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct.

577, 589 (2018) (internal quotation marks omitted).

We retain discretion to address the separate qualified immunity inquiries in the

order of our choosing. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014); see also

Pearson v. Callahan, 555 U.S. 223, 241 (2009) (relying, in part, on constitutional

avoidance doctrine in concluding that court has discretion to first address clearly

established prong (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)

(Brandeis, J., concurring))). We acknowledge, however, that “it is often the better

approach to determine first whether the plaintiff has alleged a deprivation of a

constitutional right at all.” E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 178 (4th Cir. 2018)

(internal quotation marks omitted). Indeed, the Supreme Court has explained “that

43

following the two-step sequence — defining constitutional rights and only then

conferring immunity — is sometimes beneficial to clarify the legal standards governing

public officials.” Camreta v. Greene, 563 U.S. 692, 707 (2011). Thus, we first assess

and decide whether there can be a constitutional claim for deliberate indifference to

student-on-student sexual harassment and whether the plaintiffs have sufficiently pleaded

such a claim. 15

2.

a.

(1)

The plaintiffs primarily rely on two decisions — one from the Supreme Court and

one from our Court — in contending that President Hurley contravened their equal

protection rights. First, the plaintiffs point to Fitzgerald v. Barnstable School Committee,

555 U.S. 246 (2009). In Fitzgerald, the plaintiffs alleged both a Title IX sex

15

Our distinguished colleague also disagrees with our decision to reach the

constitutional violation prong of the qualified immunity inquiry. See post at 86-88.

Contrary to the Supreme Court’s Camreta decision, the dissent would prefer to “leave

[the] standards of official conduct [in these circumstances] permanently in limbo.” See

563 U.S. at 706; see also Jones v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir. 2016)

(explaining that constitutional violation inquiry prevents perpetual uncertainty regarding

standards for official conduct). For support, our friend relies on the Court’s Pearson

decision, but fails to consider the factors specified therein that inform when it is

appropriate to first address and resolve the constitutional issue. See 555 U.S. at 236-42.

Put simply, however, the relevant Pearson factors are satisfied in this appeal. Indeed, the

constitutional question has been fully briefed, see id. at 239, and the inquiry is not “so

factbound that the decision provides little guidance for future cases,” see id. at 237.

Finally, we are not aware of any case in which the Supreme Court has granted certiorari

on the question presented here. See id. at 238.

44

discrimination claim and a § 1983 equal protection claim based on student-on-student

sexual harassment. The First Circuit had dismissed the Fitzgerald plaintiffs’ equal

protection claim on the premise that “Title IX [i]s the sole means of vindicating the

constitutional right to be free from [sex] discrimination perpetrated by educational

institutions.” Id. at 251.

The Supreme Court reversed the court of appeals and determined that a victim of

sex discrimination by a government official at an educational institution can pursue a

§ 1983 equal protection claim. The Court reasoned that the reach of Title IX and the

Equal Protection Clause differ, observing that Title IX allows for lawsuits against only

educational institutions and programs, but Ҥ 1983 equal protection claims may be

brought against individuals as well as municipalities and certain other state entities.”

Fitzgerald, 555 U.S. at 257. The Fitzgerald Court also recognized that “the standards for

establishing liability” under Title IX and § 1983 are similar but not “wholly congruent.”

Id. The Court elaborated that a “Title IX plaintiff can establish . . . liability by showing

that a single school administrator with authority to take corrective action responded to

harassment with deliberate indifference”; in contrast, “[a] plaintiff stating a similar claim

via § 1983 for violation of the Equal Protection Clause by a school district or other

municipal entity must show that the harassment was the result of municipal custom,

policy, or practice.” Id. at 257-58. In light of those distinctions, the Court held “that

§ 1983 suits based on the Equal Protection Clause remain available to plaintiffs alleging

unconstitutional [sex] discrimination in schools.” Id. at 258.

45

The Fitzgerald Court did not address, however, whether a victim of student-on-

student sexual harassment can pursue an equal protection claim against a school

administrator based on his deliberate indifference to such harassment. See 555 U.S. at

259-60. The Court had no occasion to decide that question because the Fitzgerald

plaintiffs disclaimed any deliberate indifference theory of their equal protection claim in

the Supreme Court. They instead argued the claim based on the sexually discriminatory

manner in which school administrators investigated and responded to complaints of

harassment. Because the inferior courts had not addressed the merits of the equal

protection claim, the Supreme Court remanded.

The second decision on which the plaintiffs rely for their equal protection claim is

our 2007 en banc Jennings decision. There, prior to the Supreme Court’s Fitzgerald

decision, we recognized that the Equal Protection Clause secures a university student’s

“right to be free from sexual harassment in an educational setting.” Jennings, 482 F.3d at

701. Under Jennings, that right encompassed an equal protection claim against a

university administrator predicated on a theory of supervisory liability. 16

The plaintiff in Jennings produced evidence that the university administrator had

the “authority to take action against” a school coach who sexually harassed some of his

players, but the administrator failed to do so and thereby allowed the harassment to

16

In a context somewhat like that in Jennings, we have explained that “the equal

protection clause confers on a public employee a federal constitutional right to be free

from gender discrimination,” including sexual harassment. See Beardsley v. Webb, 30

F.3d 524, 530 (4th Cir. 1994).

46

continue. See 482 F.3d at 701. In vacating the summary judgment award to the

administrator, we explained that — on the plaintiff’s evidence — a jury could find that

the administrator “had actual knowledge of [the coach’s] misconduct; that [the

administrator’s] response was so inadequate as to show deliberate indifference to or tacit

authorization of [that misconduct]; and that there exists an affirmative causal link

between [the administrator’s] inaction and [the plaintiff’s] constitutional injury.” Id. at

701-02 (internal quotation marks omitted). We therefore ruled that the district court had

erroneously awarded summary judgment on the equal protection claim.

(2)

Although the plaintiffs do not rely on any decisions from other circuits, we are

aware that several of our sister courts of appeals have ruled — consistent with Jennings

— “that sexual harassment in an educational setting can violate the [Equal Protection

Clause], and that an administrator’s ratification of that conduct could also violate [that]

Clause.” See T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010); see also, e.g., Stiles ex

rel. D.S. v. Grainger Cty., Tenn., 819 F.3d 834, 851-52 (6th Cir. 2016). Because the

issue was not presented therein, our Jennings decision did not decide whether a victim of

student-on-student sexual harassment may pursue a constitutional claim against a school

administrator who is deliberately indifferent to such harassment. But five other courts of

appeals have concluded that a school official can be liable under the Equal Protection

Clause for his deliberate indifference to student-on-student sexual harassment. See Stiles

ex rel. D.S., 819 F.3d at 851-52 (6th Cir.); Hill v. Cundiff, 797 F.3d 948, 978-79 (11th

Cir. 2015); Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1135-38 (9th Cir.

47

2003); Murrell, 186 F.3d at 1250 (10th Cir.); Nabozny v. Podlesny, 92 F.3d 446, 454 (7th

Cir 1996). 17

(3)

Our review of the foregoing authorities leads us to conclude that a victim of

student-on-student sexual harassment can pursue an equal protection claim predicated on

a school administrator’s deliberate indifference to such harassment. This ruling is

consistent with and compelled by the Supreme Court’s Fitzgerald decision and the

principles we enunciated in Jennings. As our distinguished departed colleague Judge

Michael carefully explained in Jennings, the Equal Protection Clause of the Fourteenth

Amendment secures a student’s “right to be free from sexual harassment in an

educational setting.” See 482 F.3d at 701. Pursuant to Jennings, that Clause not only

guards against sexual harassment perpetrated by a school administrator against students,

it also protects students from a school administrator’s deliberate indifference that allows

such harassment to occur and persist. See id. at 701-02 (sustaining causal link that

supports liability arising from, inter alia, administrator’s deliberate indifference).

Although the equal protection claim in Jennings was premised on supervisory

liability, there are compelling parallels between that claim and an equal protection claim

premised on a school administrator’s deliberate indifference to known student-on-student

17

In addition to the five courts of appeals referenced above, the Second Circuit has

ruled — with respect to student-on-student racial harassment — that a school official can

be liable under the Equal Protection Clause for his deliberate indifference. See DiStiso v.

Cook, 691 F.3d 226, 241 (2d Cir. 2012).

48

sexual harassment. In each circumstance, the school administrator has the power and

opportunity to both address and rectify the sexual harassment. And, in each situation, the

administrator’s failure to exercise that power can result in the harassment victim suffering

further injury. Lastly, each scenario directly impacts a student’s right to be free from

sexual harassment in an educational setting.

We are not alone in appreciating those parallels. When confronting a school

administrator’s deliberate indifference to student-on-student sexual harassment, our sister

circuits have relied on the principle that a government official can be liable for a

subordinate’s sexually harassing behavior. See Hill, 797 F.3d at 978; Murrell, 186 F.3d

at 1251. We are persuaded by the logic of those and other decisions that recognize an

equal protection claim predicated on a school administrator’s deliberate indifference to

student-on-student sexual harassment. See Stiles ex rel. D.S., 819 F.3d at 851-52; Hill,

797 F.3d at 978-79; Flores, 324 F.3d at 1135-38; Murrell, 186 F.3d at 1250; Nabozny, 92

F.3d at 454.

b.

To state an equal protection claim for deliberate indifference to known student-on-

student sexual harassment, a plaintiff must first allege that she “was subjected to

discriminatory peer harassment.” Stiles ex rel. D.S., 819 F.3d at 852. Secondly, the

plaintiff must allege that the school administrator “responded to the discriminatory peer

harassment with deliberate indifference, i.e. in a manner clearly unreasonable in light of

known circumstances.” Id.; see also Flores, 324 F.3d at 1135 (same). In other words,

the plaintiff must allege that the school administrator knew about harassment of the

49

plaintiff “and acquiesced in that conduct by refusing to reasonably respond to it.”

Murrell, 186 F.3d at 1250; see also Hill, 797 F.3d at 978 (same). Third, the plaintiff

must allege that the school administrator’s deliberate indifference was motivated by a

discriminatory intent. See Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009) (explaining

that, to allege equal protection claim based on supervisory liability, plaintiff must

plausibly demonstrate supervisor’s discriminatory purpose); Grindle, 599 F.3d at 588

(“Because there is no theory of respondeat superior for constitutional torts, a plaintiff

must plead that each . . . defendant has violated the Constitution. In the equal protection

context, this means showing that the supervisor . . . intended to discriminate on the basis

of a protected class.” (citation and internal quotation marks omitted)).

Applying the foregoing legal principles to this situation, we are satisfied that —

largely for the reasons set forth in our discussion of the Title IX sex discrimination claim

— the plaintiffs have sufficiently alleged an equal protection claim against President

Hurley. See Hill, 797 F.3d at 979 (referring to Title IX analysis in discussing equal

protection claim); Williams ex rel. Hart v. Paint Valley Local Sch. Dist., 400 F.3d 360,

369 (6th Cir. 2005) (recognizing “substantial[]” similarity between standards for

deliberate indifference claims under Title IX and § 1983). In sum, the Complaint alleges

that UMW students harassed and threatened the plaintiffs based on their sex. The

Complaint further alleges that Hurley responded to that harassment with deliberate

indifference, in that he had the authority to address and curtail the harassment but failed

to do so over a period of months. See Jennings, 482 F.3d at 701-02 (explaining that

district court erred in awarding summary judgment to university administrator who

50

ignored students’ complaints of subordinate’s sexually harassing behavior, thereby

allowing subordinate to engage in further sexual harassment of students); see also, e.g.,

Flores, 324 F.3d at 1135-36 (concluding that plaintiffs sufficiently alleged equal

protection claim against individual school employees who failed to locate or discipline

student harassers).

Additionally, with respect to President Hurley’s discriminatory intent, the

Complaint alleges that he “ratified the ‘right’ of angry students to target female

classmates with hateful, sexist, threatening harassment, free from any disciplinary

consequences.” See Complaint ¶ 93. Indeed, according to the Complaint, Hurley sought

to downplay the harassment and threats, and he made no effort to stop them. Those

allegations are sufficient to state the intent element of the equal protection claim. See

Grindle, 599 F.3d at 589 (concluding that jury could infer intent to discriminate from

principal’s failure to attempt to stop harassment and by her downplaying harassment).

With the constitutional violation sufficiently alleged, we must turn to the other

qualified immunity prong. That is, we analyze and decide whether the right to be free

from a university administrator’s deliberate indifference toward known student-on-

student sexual harassment was clearly established at the time of President Hurley’s

conduct.

3.

a.

In assessing a claim of qualified immunity — which President Hurley has

interposed here — the Supreme Court has explained that “[a] clearly established right is

51

one that is sufficiently clear that every reasonable official would have understood that

what he is doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)

(internal quotation marks omitted). To be clearly established, a legal principle “must be

settled law, which means it is dictated by controlling authority or a robust consensus of

cases of persuasive authority.” Wesby, 138 S. Ct. at 589-90 (citations and internal

quotation marks omitted).

Additionally, a clearly established legal principle is one that “clearly prohibit[s]

the [official’s] conduct in the particular circumstances before him.” Wesby, 138 S. Ct. at

590 (internal quotation marks omitted). Nevertheless, a court need not have “previously

found the specific conduct at issue to have violated an individual’s rights.” E.W. ex rel.

T.W., 884 F.3d at 185. Indeed, a right may be clearly established if a previously

identified general constitutional rule obviously applies to the disputed conduct. Id. Even

under novel factual circumstances, a government official “‘can still be on notice that [his]

conduct violates established law . . .’ so long as the law provided ‘fair warning’ that [his]

conduct was unconstitutional.” See Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 538 (4th

Cir. 2017) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

When performing the clearly established assessment, we first analyze “cases of

controlling authority in this jurisdiction — that is, decisions of the Supreme Court, this

court of appeals, and the highest court of the state in which the case arose.” Booker, 855

F.3d at 538 (internal quotation marks omitted). If there is no controlling authority, “we

may look to a consensus of cases of persuasive authority from other jurisdictions, if such

exists.” Id. at 538-39 (internal quotation marks omitted).

52

b.

Although we recognize today that an equal protection claim can be predicated on a

university administrator’s deliberate indifference to student-on-student sexual

harassment, we are also satisfied that President Hurley did not have fair warning that his

conduct in this case gave rise to such a claim. We reach this conclusion because neither

controlling authority nor a robust consensus of persuasive authority clearly established

the pertinent right at the time of the wrongful conduct alleged in the Complaint.

(1)

We first observe that — when President Hurley failed to adequately respond to the

harassment and threats lodged against the plaintiff Feminists United members —

controlling authority did not clearly establish the right to be free from a university

administrator’s deliberate indifference to student-on-student sexual harassment. As

discussed heretofore, the Supreme Court recognized in its 2009 Fitzgerald decision that a

victim of student-on-student sexual harassment can pursue an equal protection claim

against an individual school employee under § 1983. See 555 U.S. at 257-58. The

Fitzgerald Court, however, did not define the applicable standard for an equal protection

claim premised on deliberate indifference, in that the only theory presented to the Court

concerned disparate treatment. Consequently, Fitzgerald did not itself provide fair

warning that Hurley’s response to student-on-student harassment was unconstitutional.

As for the plaintiffs’ reliance on our 2007 Jennings decision, although we

observed therein that a university administrator can be liable under § 1983 for his

deliberate indifference to sexual harassment, Jennings did not involve student-on-student

53

harassment. See 482 F.3d at 701-02. Our discussion of deliberate indifference to sexual

harassment in Jennings occurred solely in the context of a supervisory liability equal

protection claim. As explained above, an equal protection claim predicated on a

university administrator’s deliberate indifference to school-official-on-student sexual

harassment parallels an equal protection claim based on a university administrator’s

deliberate indifference to student-on-student sexual harassment. But the similarities

between those two types of claims did not provide fair warning, i.e., “obvious clarity,”

that an insufficient response to student-on-student harassment violates established law.

See E.W. ex rel. T.W., 884 F.3d at 185. A reasonable administrator could well have

perceived that a constitutionally impermissible response to harassment by a subordinate

employee differed from a constitutionally impermissible response to harassment by a

student. See Henry v. Purnell, 652 F.3d 524, 534 (4th Cir. 2011) (en banc) (delineating

that the relevant inquiry for qualified immunity is “whether it would be clear to a

reasonable [government official] that his conduct was unlawful in the situation he

confronted” (internal quotation marks omitted)).

Moreover, although the Jennings decision recognized a general right to be free

from sexual harassment at an educational institution, we must heed the Supreme Court’s

admonition not to define clearly established law too broadly. See Kisela v. Hughes, 138

S. Ct. 1148, 1152 (2018) (“This Court has repeatedly told courts . . . not to define clearly

established law at a high level of generality.” (internal quotation marks omitted)).

Consequently, despite the fact that Jennings compels us to recognize the equal protection

54

right alleged in the Complaint, that decision failed to give President Hurley fair warning

of his potential liability for violating that right.

(2)

Having examined controlling authority without discerning a clearly established

right at the time of the events alleged in the Complaint, we will also consider the

pertinent decisions of our sister circuits. Such persuasive authority clearly establishes a

legal principle only when there was a robust consensus of decisions by the time of the

allegedly wrongful actions. See Wesby, 138 S. Ct. at 589-90. Our recent Booker

decision, of April 2017, sheds considerable light on what constitutes a robust consensus.

See 855 F.3d at 543-45. In Booker, Chief Judge Gregory acknowledged that binding

precedent did not clearly establish an inmate’s First Amendment right to be free from

retaliation for filing a grievance. Accordingly, Booker then reviewed persuasive

authority available from the other circuits. Invoking decisions of ten of the thirteen

courts of appeals, Booker observed that “[t]he unanimity among our sister circuits

demonstrates that the constitutional question is ‘beyond debate.’” Id. at 544-45. Based

on that “overwhelming consensus,” Booker determined that the constitutional right at

issue was clearly established. Id. at 545.

In contrast with Booker, by the time of President Hurley’s challenged conduct,

only three circuits — the Seventh, Ninth, and Tenth — had rendered decisions of

persuasive authority recognizing the general right of a student to be free from a school

administrator’s deliberate indifference to student-on-student sexual harassment. See

Flores, 324 F.3d at 1135-38 (9th Cir.); Murrell, 186 F.3d at 1250 (10th Cir.); Nabozny,

55

92 F.3d at 454 (7th Cir.). And those courts of appeals adopted and applied different

intent standards for such a claim. More specifically, the Ninth and Tenth Circuits

authorized a student-on-student sexual harassment victim to proceed on the basis of an

administrator’s deliberate indifference alone, see Flores, 324 F.3d at 1135; Murrell, 186

F.3d at 1250, whereas the Seventh Circuit required that such a victim also prove the

administrator’s “discriminatory purpose,” see Nabozny, 92 F.3d at 454; see also Grindle,

599 F.3d at 588. Because of the limited number of relevant decisions that could be

persuasive authority, plus their apparent lack of accord on the intent element, we are not

convinced that there was a robust consensus of decisions providing Hurley with fair

warning that his challenged behavior was unlawful. See McClendon v. City of Columbia,

305 F.3d 314, 331 (5th Cir. 2002) (concluding that, although three other circuits

recognized constitutional right, their differing “mental state” requirements did not fairly

warn government official of what conduct would contravene that right). We are therefore

satisfied that the persuasive authority did not — at the appropriate time — clearly

establish the constitutional right at issue in these proceedings. 18

18

It bears mentioning that, by the time of President Hurley’s challenged conduct,

the Sixth Circuit had acknowledged — by way of a nonbinding unpublished opinion —

the constitutional right to be free from a school administrator’s deliberate indifference to

student-on-student sexual harassment. See Shively v. Green Local Sch. Dist. Bd. of

Educ., 579 F. App’x 348, 356-57 (6th Cir. 2014) (No. 13-3423). We have ruled,

however, that unpublished opinions “cannot be considered in deciding whether particular

conduct violated clearly established law for purposes of adjudging entitlement to

qualified immunity.” See Booker, 855 F.3d at 543 (quoting Hogan v. Carter, 85 F.3d

1113, 1118 (4th Cir. 1996) (en banc)).

56

We are thus constrained to conclude that, at the time of President Hurley’s

challenged conduct, the equal protection right to be free from a university administrator’s

deliberate indifference to student-on-student sexual harassment was not clearly

established by either controlling authority or by a robust consensus of persuasive

authority. Consequently, Hurley is entitled to qualified immunity, and the dismissal of

the equal protection claim by the district court must be affirmed.

IV.

Pursuant to the foregoing, we affirm the dismissal of the § 1983 equal protection

claim against President Hurley and that part of the Title IX retaliation claim against

UMW predicated solely on Hurley’s June 2015 letter. We vacate, however, the dismissal

of the Title IX sex discrimination claim against UMW and the balance of the retaliation

claim. We remand for such other and further proceedings as may be appropriate.

AFFIRMED IN PART,

VACATED IN PART, AND REMANDED

57

AGEE, Circuit Judge, dissenting in part and concurring in part:

The Information Age revolutionized how people communicate. With the click of a

mouse, individuals can communicate across the globe, participate in virtual classrooms,

and harass strangers and peers alike under a cloak of anonymity. These rapid changes

brought by online technology have not caused Congress to amend Title IX to change the

circumstances in which federal education funding recipients can be held liable for online

harassment affecting the recipients’ students. Consequently, plaintiffs pursuing such a

claim are subject to the same strict requirements the Supreme Court set out in Davis v.

Monroe County Board of Education, 526 U.S. 629 (1999), two decades ago. Davis held

that Title IX narrowly limits a funding recipient’s potential liability only to those

situations where the recipient exercises substantial control over both the harassers and the

context of the harassment. Id. at 645.

In 2014 and 2015, unknown individuals in the vicinity of the University of Mary

Washington campus posted hundreds of crude and sometimes vulgar messages on a

social media app criticizing “feminists” (and various unflattering derivatives), and in

particular members of the Feminists United on Campus, an affiliate organization of the

Feminist Majority Foundation. This anonymous online harassment spurred the

Appellants’ (collectively “FMF”) suit against the University of Mary Washington (“the

University”) and its former president, Richard Hurley. FMF’s Complaint alleges that the

University and Hurley are liable under Title IX and 42 U.S.C. § 1983 for failing to do

more “to eliminate this sexually hostile environment, prevent its recurrence, and address

its effects.” J.A. 11, ¶ 1.

58

The majority opinion agrees and would hold a public university and its officers

liable for an allegedly inadequate response to anonymous messages posted by unknown

persons on a third-party social media app unrelated to the university. The district court

dismissed all of the claims and that judgment should be affirmed in whole. In particular, I

disagree with the majority’s conclusion that the FMF’s Title IX claims—which are based

on deliberate indifference to peer harassment—adequately alleged that the University

exercised substantial control over the harassers and the context of the harassment, so as to

show either a sex discrimination or a retaliation claim. However, I concur with the

majority’s decision to affirm the district court’s dismissal of FMF’s Title IX claim

alleging the University retaliated by disseminating a letter responding to FMF’s

administrative complaint. Further, while I concur with the majority’s decision to affirm

the district court’s dismissal of FMF’s § 1983 equal protection claim against President

Hurley, the qualified immunity analysis is unnecessarily overbroad. The only holding

necessary, and prudent under the circumstances, is that qualified immunity is appropriate

because FMF’s claim is not based on a clearly established violation of protected rights.

I. Title IX: Deliberate Indifference to Peer Discrimination

The majority opinion contorts the cause of action recognized in Davis, 526 U.S.

629, beyond recognition. In Davis, the Supreme Court held that a recipient of federal

education funds may be liable under Title IX for peer harassment that occurs in a context

controlled by the funding recipient only when its response to actual notice of that

harassment is clearly unreasonable. Id. at 648. But the majority’s unprecedented view of

59

a Title IX Davis claim exposes a funding recipient to liability even when the allegations

show that neither the student victims nor their school knows who the harassers are, much

less has control over them, and the school has no control over the environment in which

the harassment occurred. Because a faithful application of Davis requires affirming the

district court’s dismissal of the Complaint’s Title IX sex discrimination claim, I

respectfully dissent.

A.

With certain exceptions not applicable here, Title IX prohibits recipients of federal

education funds from discriminating on the basis of sex. See 20 U.S.C. § 1681(a) (“No

person in the United States shall, on the basis of sex, . . . be subjected to discrimination

under any education program or activity receiving Federal financial assistance[.]”).

Unlawful discrimination “on the basis of sex” can include sexual harassment. Gebser v.

Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281 (1998). Although Title IX does not

expressly authorize a private right of action to enforce its prohibitions, the Supreme Court

has recognized an implied private right of action exists under the statute. Jackson v.

Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005).

The Supreme Court described such a private right of action in Davis, holding that

Title IX allows an implied private cause of action for money damages “where [a] funding

recipient acts with deliberate indifference to known acts of [student-on-student, or peer,]

harassment in its programs or activities.” 526 U.S. at 633. In examining when such a

claim may proceed, however, the Supreme Court articulated certain threshold

60

requirements that are essential conditions precedent to a Title IX Davis claim before the

claimant’s burden of showing deliberate indifference arises. Id. at 647–49. 1

Of particular importance here, the Court repeatedly noted the “limited

circumstances” in which such a claim may be brought, id. at 643, cautioning that funding

recipients can be held liable only for their own misconduct, id. at 640—that is, where

recipients decide “to remain idle in the face of known student-on-student harassment in

[their] schools,” id. at 641. The Court explained that

both the deliberate indifference standard and the language of Title IX

narrowly circumscribe the set of parties whose known acts of sexual

harassment can trigger some duty to respond on the part of the funding

recipients. Deliberate indifference makes sense as a theory of direct liability

under Title IX only where the funding recipient has some control over the

alleged harassment. A recipient cannot be directly liable for its indifference

where it lacks the authority to take remedial action.

Id. at 644 (emphasis added). 2 In sum, a funding recipient’s liability must exercise

“substantial control over both” the harasser (“the harasser inquiry”) and “the

environment in which the harassment occurs” (“the context inquiry”) before the recipient

can be held liable under Title IX. Id. at 645 (emphasis added). If these threshold

1

The University did not challenge several aspects of a Title IX deliberate

indifference claim as part of its motion to dismiss. It does not dispute, for example, that it

is a recipient of federal funding or that it had actual notice of the alleged peer harassment.

Moreover, it does not contest for present purposes that the harassment occurred “on the

basis of sex” or that it was “so severe, pervasive, and objectively offensive that it

effectively bar[red] the victim’s access to an educational opportunity or benefit.” Davis,

526 U.S. at 633. Because the University did not press these points as a basis for

dismissing the claim under Rule 12(b)(6), I do not address them either.

2

I have omitted all internal quotation marks, alterations, and citations here and

throughout this opinion, unless otherwise noted.

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requirements are not met, a funding recipient cannot “be said to expose its students to

harassment or cause them to undergo it under the recipient’s programs” so as to violate

Title IX. Id. at 645. If a claimant fails to plead facts that would be sufficient to prove

these conditions precedent, then the complaint must fail as a matter of law. See In re

Total Realty Mgmt., LLC, 706 F.3d 245, 250, 255 (4th Cir. 2013) (explaining the Federal

Rule of Civil Procedure 12(b)(6) standard).

In short, as the Court has previously explained, “Davis sets the bar high for

deliberate indifference. . . . [A] school may not be held liable under Title IX . . . for what

its students do, but only for what is effectively an official decision by the school” to act in

a “clearly unreasonable [manner] in light of the known circumstances.” S.B. ex rel. A.L.

v. Bd. of Educ. of Harford Cty., 819 F.3d 69, 76 (4th Cir. 2016).

B.

The district court dismissed FMF’s deliberate indifference claim under Rule

12(b)(6) for failure to state a claim. To survive a motion to dismiss, the Complaint had to

“plead[] factual content that allows . . . the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And in

reviewing de novo whether the Complaint adequately alleges a claim, a court must

“accept as true all of the factual allegations contained in the complaint, and draw all

reasonable inferences in favor of the plaintiff.” Owens v. Balt. City State’s Attorneys

Office, 767 F.3d 379, 388 (4th Cir. 2014).

Under the familiar pleading standards, a complaint must contain “[f]actual

allegations [sufficient] to raise a right to relief above the speculative level.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[N]aked assertion[s] devoid of further

factual enhancement” do not suffice. Iqbal, 556 U.S. at 678. Instead, the complaint must

allege “sufficient factual matter, accepted as true, to state a claim to relief that is plausible

on its face.” Id.

Bound by this settled standard to compare the allegations in the Complaint to

Davis and subsequent cases, the district court correctly dismissed FMF’s claim. With

respect to the threshold requirements for a Title IX Davis claim, the Complaint does not

allege that the University exercised substantial control over either the harassers or the

context of the harassment. Indeed, a failure to satisfy either the harasser inquiry or the

context inquiry is sufficient to dismiss the claim. As the Complaint fails both inquiries,

the district court’s decision is irrefutable.

1.

The harasser inquiry is an essential prerequisite to establishing liability because

both the deliberate indifference standard and Title IX’s plain language “narrowly

circumscribe the set of parties whose known acts of sexual harassment can trigger some

duty to respond on the part of the funding recipients.” Davis, 526 U.S. at 644; see also

Doe-2 v. McLean Cty. Unit Dist. No. 5 Bd. of Dirs., 593 F.3d 507, 512 (7th Cir. 2010)

(“The [harasser inquiry] is essential for Title IX liability because [an educational

institution] cannot be liable for its indifference to harassment that it lacks the authority to

prevent.”). Liability thus hinges on “the harasser [being] under the school’s disciplinary

authority.” Davis, 526 F.3d at 647. True peer harassment satisfies this requirement when

a student attending the defendant school complains that another student attending that

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school—who has either been individually identified or specifically associated with that

school—has harassed her. For example, in Davis, this inquiry was satisfied because a

parent alleged that her daughter’s school board and related defendants had been

deliberately indifferent to complaints that an identified classmate was sexually harassing

her daughter. 526 U.S. at 633–34, 645.

Viewed in the light most favorable to FMF, the Complaint does not plausibly

allege that the University exercised substantial control over the harassers. In sum, the

harassing statements were anonymous and untethered to the University’s geographic

footprint, and thus could have been communicated by students and non-students alike so

long as they were in the general vicinity of the campus. See infra n. 6. 3

The Complaint does not identify the harassers or provide a factual basis for

inferring whether they were students or nonstudents. And even if assumed to be a

University student, the Complaint also fails to identify who—of the over 5,000

University students—they were. See Marty Morrison, UMW Board of Visitors Announces

Tuition Fees for 2014–15, UMW Voice (May 9, 2014),

https://www.umw.edu/news/2014/05/09/umw-board-of-visitors-announces-tuition-fees-

3

In reaching its decision, the district court extended FMF the “reasonabl[e]

inference that many of the [Y]aks came from students because of the location-based

nature of Yik Yak.” J.A. 57. In so doing, it made the same mistake the majority opinion

does, transforming general allegations about vicinity into assumptions of unstated

specificity. But neither supports finding that the funding recipient exercised substantial

control over the harasser. Under the pleadings of this Complaint, any “inference” that the

alleged harassers were University students is purely speculative and not reasonably found

in the allegations.

64

for-2014-15 (saved as ECF Opinion Attachment). The Complaint alleges that “Yik Yak is

an anonymous social media app,” J.A. 16 ¶ 22, meaning that posts on the app, “Yaks,”

are anonymous: the authors are unnamed. The Complaint also repeatedly acknowledges

that the identity of the harasser or harassers was unknown. E.g., J.A. 31 ¶ 63 (recounting

one individual plaintiff’s fear was exacerbated because “she did not know if those who

threatened and harassed [her] were sitting with [her] in class”); 35 ¶ 78 (describing that

the “anonymous nature of the harassment intensified” the individual plaintiffs’ “concerns,

as they had no way of knowing which students harbored animosity against them”).

Unlike the circumstances that occurred in Davis—and indeed most Title IX Davis

cases—the harasser inquiry has not been satisfied here by alleging either the names of the

harassers or facts to support their affiliation with the funding recipient. E.g., K.T. v.

Culver-Stockton Coll., 865 F.3d 1054, 1056 (8th Cir. 2017) (identifying college fraternity

member); Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1288–90 (11th

Cir. 2007) (involving named student); Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1243–

44 (10th Cir. 1999) (same). By contrast, although the Complaint claims that “[s]tudents

posted Yaks,” J.A. 16 ¶ 22, it contains no factual basis for drawing that conclusion. See

Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (reiterating that

although courts must “draw[] all reasonable factual inferences from [a complaint’s] facts

in the plaintiff’s favor, . . . it need not accept legal conclusions couched as facts or

unwarranted inferences, unreasonable conclusions, or arguments” ).

Nor does the Complaint plausibly allege facts that otherwise narrow the universe

of potential anonymous harassers to the University’s student body. To the contrary, the

65

Complaint’s allegations about Yik Yak’s geographic limits open the universe of possible

harassers to the general population who are not students. Based on the Complaint’s

allegations of how Yik Yak operated, Yaks visible to University students on the app

could have been sent by anyone who was within a 1.5-mile radius (3-mile diameter) of

the viewer. J.A. 16 ¶ 22 (“Yik Yak . . . allows people to create and view messages . . .

within a 1.5 mile radius.”). The majority accepts FMF’s invitation to draw the inference

that since the geographic range includes the University’s campus and the topic of the

Yaks concerned University matters and University students, the senders were University

students. In so doing, the majority goes beyond permissible inference to pure speculation

to reach a desired result.

Each Yak could have been sent by any Yik Yak user located within Yik Yak’s

geographic range. And that range, even from the center of campus, extends well beyond

the University’s roughly 0.3-square-mile territory in every direction. Compare [a place

to] Distinguish Yourself, Univ. of Mary Washington 3,

https://documents.umw.edu/document/umw-a-place-to-distinguish-yourself/ (last visited

Dec. 4, 2018 and saved as ECF Opinion Attachment) (stating the campus contains “176

acres of stately buildings and beautiful woodlands”), with University of Mary

Washington, U.S. News & World Report, https://www.usnews.com/best-colleges/mary-

washington-3746 (last visited Dec. 4, 2018 and saved as ECF Opinion Attachment)

66

(listing the campus size as 234 acres). 4 Given that there are no allegations about where

the students were on campus, the geographic range of possible posters extends far off

campus.

The University’s campus is located in the city of Fredericksburg. Within the 1.5-

mile Yik Yak coverage radius surrounding the campus are populated areas, including

residential neighborhoods, apartment complexes, and numerous shopping and dining

establishments. In addition, Yaks posted by individuals located at Mary Washington

Hospital, James Monroe High School, the Central Rappahannock Regional Library, as

well as downtown Fredericksburg state and municipal buildings would all be within Yik

Yak’s geographic range on the University’s campus. Yik Yak’s limited geographic range

thus cannot serve as a basis for inferring that the anonymous harassers were University

students. 5

4

Geographical information such as distance and size are “especially appropriate

for judicial notice.” United States v. Johnson, 726 F.2d 1018, 1021 (4th Cir. 1984).

5

To determine the general location of the University’s campus in Fredericksburg,

I have relied on Google maps (maps.google.com) and its “Distance Measurement Tool.” I

have also cabined the points described above to locations safely within Yik Yak’s range.

The relative location of the University and the cited off-campus buildings is undisputed

and properly subject to judicial notice. See Fed. R. Evid. 201(b); Pahls v. Thomas, 718

F.3d 1210, 1216 n.1 (10th Cir. 2013) (collecting cases supporting taking judicial notice of

content gleaned from Google maps and its features given that geographic facts and

distances are “peculiarly susceptible to judicial notice”); see also Livingston Christian

Schs. v. Genoa Charter Twshp., 858 F.3d 996, 1008 (6th Cir. 2017) (taking judicial

notice of Google “maps showing the distances between” cities and properties);

McCormack v. Hiedeman, 694 F.3d 1004, 1008 n.1 (9th Cir. 2012) (same).

67

Coupled with the overbreadth of Yik Yak’s geographic limitation is the equally

problematic fact that it only reflects where the person was at the moment the Yak was

sent. Thus, each of the hundreds of Yaks FMF complained of could have been sent by an

ever-shifting and fluid number of senders based on who was in that range, much of which

was not part of the University campus. The potential body of harassers is characterized

by a persistent transience that makes it even more difficult to know with any level of

confidence who sent each Yak, much less that they were a student. And, of course, even if

a student, their identity was still unknown.

These deficits in the Complaint’s factual allegations are fatal to FMF’s deliberate

indifference claim. Merely labeling something as student harassment does not make it so.

And because no facts support the conclusion that the University exercised substantial

control over the harassers, the Complaint fails on its face to plausibly show that FMF

would be entitled to the relief requested. See Iqbal, 556 U.S. at 678 (explaining that

“[w]here a complaint pleads facts that are merely consistent with a defendant’s liability, it

stops short of the line between possibility and plausibility of entitlement to relief”);

McCleary-Evans v. Md. Dep’t of Transp., State Hwy. Admin., 780 F.3d 582, 587 (4th Cir.

2015) (noting that in Twombly and Iqbal, the Supreme Court “reject[ed] a standard that

would allow a complaint to survive a motion to dismiss whenever the pleadings left open

the possibility that a plaintiff might later establish some set of undisclosed facts to

support recovery”).

The majority fails to meaningfully grapple with Davis’ harasser inquiry and how

“the language of Title IX narrowly circumscribe[s] the set of parties whose known acts of

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sexual harassment can trigger some duty to respond on the part of the funding recipients.”

526 U.S. at 644. The fleeting one-page discussion of the harasser inquiry by the majority

simply presupposes that the harassers were students. See Maj. Op. 21. To the extent that

it purports to engage in analysis, the majority opinion embraces considerations that are

not properly part of Davis’ harasser inquiry. For example, the majority generally

discusses whether the University can punish students for sexually harassing other

students. The answer to that question is clear: it can. But that simplistic conclusion has

nothing to do with analyzing the pleadings in the Complaint and ignores the correct

Davis inquiry: does the University have control over the harassers?

To avoid that necessary inquiry, the majority misdirects the focus to the fact that

the targets of the harassment were University students under the University’s care. But

that fact, of course, has nothing to do with the Davis-mandated inquiry that “the harasser

[be] under the school’s disciplinary authority.” See 526 U.S. at 647 (emphasis added); see

also id. at 646 (reiterating that liability exists only where the funding recipient “exercises

significant control over the harasser” (emphasis added)). Whether the school has any

authority over the victim is not the proper inquiry under Davis.

In sum, FMF fails to adequately allege the threshold requirement of control over

the harasser. Because the Yaks were anonymous, they could have been posted by anyone

within a geographic area that extended well beyond the University’s campus. The

Complaint contains only the “naked assertion,” Iqbal, 556 U.S. at 678, that students

posted them and that allegation is insufficient as a matter of law to plead a cognizable

69

Title IX claim. Consequently, the district court’s dismissal of the deliberate indifference

to discrimination claim should be affirmed on this basis alone.

2.

Even if FMF’s Complaint had adequately alleged substantial control over the

harassers, that would not end the threshold control inquiry necessary to hold a funding

recipient liable. Davis separately requires that the funding recipient also exercise

substantial control over the context of the harassment. 526 U.S. at 645. FMF’s allegations

do not plausibly claim that the University exercised such control over Yik Yak or the

offensive Yaks. This deficiency independently supports the district court’s dismissal of

FMF’s deliberate indifference claim. 6

Davis explained that both the plain language of Title IX and the standard of

deliberate indifference require proof that “the harassment [took] place in a context subject

to the [funding recipient’s] control.” Id. at 645. The Supreme Court went on to elaborate

that the context inquiry exists because Title IX only redresses harassment that occurs

“under” “the operations of” federal education funding recipients. Id.

As a general principle, then, Title IX does not hold funding recipients liable for

peer harassment that occurs outside of an environment subject to the recipients’

substantial control. E.g., Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d

1114, 1117–18, 1121 n.1 (10th Cir. 2008) (observing that the requisite level of control

6

Although the Complaint also references other events that occurred on campus,

FMF’s claim as advanced in the district court and on appeal is based on the University’s

alleged indifference to requests to address harassment on Yik Yak. See Maj. Op. 18–20.

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over the context did not exist where the harassment occurred off campus save for “an

oblique and general reference to harassment or teasing on the school bus or in the halls at

school”); Ostrander v. Duggan, 341 F.3d 745, 750 (8th Cir. 2003) (concluding that the

university was not liable under Title IX where assault occurred off campus). The

substantial control principle necessarily means that Title IX does not hold schools liable

for all peer harassment. The majority runs afoul of this basic premise by reasoning that

the University controlled the harassment because it “concerned events occurring on

campus and specifically targeted UMW students”—an empty standard that eviscerates

Davis’ context inquiry. See Maj. Op. 19. That context inquiry must require substantially

more than just allegations that students are the victims of harassment or that school

events provide a backdrop for the reported harassment. Otherwise, it would be

meaningless and Title IX’s plain language would be routinely ignored.

Because true peer harassment necessarily involves student harassers and student

victims, the harassment will always implicate the funding recipient’s operations to some

degree. This fact alone does not engender liability. See Roe v. St. Louis Univ., 746 F.3d

874, 884 (8th Cir. 2014) (rejecting the argument that a university’s “disciplinary control

over the rapist”—“because he was a student”—satisfied the Davis context inquiry, or that

the inquiry was satisfied by “the nature of the relationship between the students and the

institution” alone). Instead, the harassment must occur in an environment over which the

funding recipient can reasonably exercise substantial control. Davis, 526 U.S. at 645

(stating that only when a funding recipient “exercises substantial control over . . . the

71

context in which the known harassment occurs . . . can the recipient be said to expose its

students to harassment or cause them to undergo it under the recipient’s programs”).

Davis’ context requirement is most readily satisfied when the harassment occurs

on a school’s campus. That was the case in Davis: a student harassed another student

“during school hours and on school grounds,” and principally “in the classroom.” Id. at

646. Drawing on Davis’ directive, circuit courts have held that “[w]hen conduct occurs at

a school in another district or off school grounds entirely, the [defendant school does not

have control] over . . . the context.” Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356,

366 (6th Cir. 2012); see also Roe, 746 F.3d at 884 (holding that a university could not be

held liable for a rape that occurred at an off-campus party because “there was no

evidence that [it] had control over the student conduct” there); Doe-2, 593 F.3d at 512–13

(holding that a school lacked the requisite control over the “context” of a former teacher’s

harassment of the plaintiff because it occurred in a different school district, at a school

“where the defendants had no supervisory authority”).

This is not to say that a school never has substantial control over the context of

harassment when the underlying events occur off campus. See Rost, 511 F.3d at 1121 n.1

(“We do not suggest that harassment occurring off school grounds cannot as a matter of

law create liability under Title IX. Davis suggests that there must be some nexus between

the out-of-school conduct and the school.”). But there must be some additional proof that

the school exercised dominion over the environment in which the alleged harassment

occurred. For example, relying on Davis, a funding recipient may be found to have

exercised substantial control when the underlying harassment occurred on other property

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controlled by the defendant, such as a school bus, or during a school-supervised activity

off campus. E.g., Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 668 (2d Cir. 2012)

(applying the Davis standard to a Title VI claim and concluding the requisite level of

control existed over the context where the underlying conduct “occurred on [school]

grounds or its property (such as the buses to [an off-campus vocational program run by

the school])”); see also Davis, 526 U.S. at 646 (citing favorably a Seventh Circuit case

stating that a school could be held liable when the harassment took “place while the

students are involved in school activities or otherwise under the supervision of school

employees”); Rost, 511 F.3d at 1121 n.1 (discussing the requisite nexus between the

context of the harassment and the school). In all events, the essential hook under Davis is

that the school has “substantial control” over where the harassment occurred such that it

has authority to take remedial action in that place. 526 U.S. at 644.

Davis did not provide an exhaustive list of characteristics that are relevant to the

context inquiry. But the language the Supreme Court used to describe the inquiry—

“environment,” “where it [has] the authority to take remedial action,” “under the

operations of,” and “during school hours and on school grounds”—demonstrates the

strong connection necessary to the setting and timing of cognizable peer harassment. 7 Id.

at 644, 645, 646.

7

Davis references as part of the context inquiry that the harassment occurred

“during school hours,” 526 U.S. at 646, though the phrase is always connected to “on

school grounds.” The timing of the discriminatory conduct is more relevant to the

structured environment of grade-school education because it further informs whether the

funding recipient had control over the harassers. One can imagine a scenario where

(Continued)

73

Applying these principles here, FMF’s Complaint does not adequately allege that

the University exercised substantial control over the context of the harassment. As an

initial matter, looking to the physical location of the harassment is not a proper fit. In

typical Davis cases, courts have used the funding recipient’s school grounds or campus as

a basis for determining whether the school exercised substantial control over that

environment. But because FMF’s claim arises from alleged harassment that occurred in

the ether, on a social media app, the location of the harassment is several degrees

removed from the traditional geographic consideration: the funding recipient’s real

property. Thus, at a basic level, the context of the harassment in this case is markedly

different from prior Davis claims. 8 Online harassment will never, by its nature, occur on a

harassment occurs on high school property during the weekend or summer when the

school is not open and students are on the grounds for their own reasons unrelated to

school or any extracurricular event. In those circumstances, both the location and the

timing of the harassment may be relevant to the context inquiry.

But the significance of the harassment’s time of day is not as readily apparent in

cases involving college and university students, whose classes occur throughout the day

and in a less structured form, and who may be living on campus. The online nature of the

harassment further strains its applicability to this case. So, although FMF does not allege

timing in its Complaint, I also do not base my analysis on this sometimes-relevant factor.

8

To date, no circuit court has held a funding recipient liable for deliberate

indifference under Title IX based on online peer harassment, and only one circuit court

has addressed allegations of this kind. In an unpublished opinion, the Sixth Circuit held

that the plaintiff student failed to demonstrate that the school exercised substantial control

over the context of harassment when high school “students posted hurtful comments on

[the plaintiff’s] Facebook page, with many others ‘liking’ the post.” Gordon v. Traverse

City Area Public Schs., 686 F. App’x 315, 324 (6th Cir. 2017). The court observed that

the plaintiff “offer[ed] no evidence that students ‘liked’ the offending Facebook posts

during school hours, and he [failed] to explain how [the defendant school] retained

control over its students’ off campus internet use.” Id.

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school’s grounds or other physical location controlled by a funding recipient in the same

way that in-person harassment will. In short, the manner in which in-person harassment

can be found to satisfy the context inquiry will necessarily differ from the way in which

online harassment could be found to satisfy that inquiry. Even so, Davis’ context inquiry

must be satisfied before a funding recipient can be said to incur any liability.

The Complaint does not plausibly allege that the act of posting harassment

occurred on the University’s campus. The majority opinion grounds its de minimis

context inquiry in its atextual conclusion that “due to Yik Yak’s location-based feature,

the harassing and threatening messages originated on or within the immediate vicinity of

the UMW campus.” Maj. Op. 19. This conclusion presents at least two factual problems:

First, as discussed in the context of the harasser inquiry, there are no allegations in the

Complaint that permit a non-speculative inference that the messages originated on

campus. Although the Complaint alleges that Yik Yak allowed only individuals within a

1.5 mile radius to post messages to each other, no allegations further narrow that range to

the University’s campus. Second, being on or off campus matters to the inquiry because

messages posted “in the vicinity of” the campus do not—without more—have a sufficient

connection to satisfy Davis’ context inquiry. Being near an environment that the

University controls cannot demonstrate that the University controls the harassment’s

origination point. To the contrary, it leads to the conclusion that the University does not

control the harassment environment. Davis simply does not permit the majority to deem

“vicinity” to be close enough to state a claim.

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For example, in Ostrander, a university student alleged that her school should be

held liable for its deliberate indifference to her sexual assault by a fellow university

student. 341 F.3d at 747. The assault occurred at an on-campus house that was owned by

two private individuals who had leased the property to students who were fraternity

members and their parents. Id. at 748. The Court held that the university could not be

held liable under Title IX because “[t]he record [was] clear [that it] did not own, possess,

or control the . . . premises” where the assault occurred and thus it did not occur “in a

context subject to the [university’s] control.” Id. at 750. Over a decade later, the Eighth

Circuit reiterated that Davis “made it clear . . . that to be liable for deliberate indifference

under Title IX, a University must have had control over the situation in which the

harassment or rape occurs.” Roe, 746 F.3d at 884. In this later case, the plaintiff alleged a

fellow university student raped her “during a private party in an off campus apartment”

leased by three students, including two members of a university fraternity. Id. The Eighth

Circuit rejected her argument that the university controlled the context of her assault as a

result of controlling “its students and fraternities” and that “universities may control

certain off campus behavior due to the nature of the relationship between students and the

institution.” Id.; see also Samuelson v. Oregon State Univ., 725 F. App’x 598, 599 (9th

Cir. 2018) (memorandum op.) (observing that the plaintiff’s “sexual assault occurred off

campus . . . at a location that had no sponsorship by or association with” the funding

recipient, meaning that she “ha[d] failed to allege how [the funding recipient] exercised

any control over the environment of her sexual assault”).

76

That the alleged harassment occurred online is not necessarily dispositive,

however, because Davis’ physical location requirements may have virtual counterparts.

For example, a funding recipient may own or otherwise have a property interest in the

online forum where the harassment occurred or the means the harasser used to access that

forum. But neither circumstance has been alleged here. Specifically, the Complaint does

not allege that the University owned Yik Yak or otherwise exercised any control over its

content or operation. From all that can be reasonably inferred from the Complaint, Yik

Yak was a third-party social media app that was unrelated to the University and open to

students and non-students alike. Hence, nothing in the Complaint allows the conclusion

that the University had any authority to control what happened on Yik Yak.

Nor does the Complaint allege that the University exercised control over other

aspects of the environment where the harassment occurred. The Complaint does not

allege that the University ever directed its students to access or use Yik Yak for any

school business or activities. Individuals accessed the forum on their own initiative

totally unrelated to any University relationship or business. Put differently, this is not

alleged to be a situation where the harassment occurred on a University-hosted social

media account or as part of online coursework, circumstances where the alleged

harassment could satisfy Davis’ context inquiry. In addition, nothing in the Complaint

supports the conclusion that the University facilitated access to the forum where the

alleged harassment occurred. That is to say, the Complaint does not allege that the

University owned or controlled the electronic devices on which the harassers accessed

Yik Yak. Further, the Complaint does not allege facts demonstrating that any of the

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harassing Yaks were posted using the University’s wireless network. The Complaint

simply offers no facts connecting the University to the forum in which the harassment

occurred (Yik Yak) or alleging that a University-controlled means was used to access that

forum (University computers or wireless network).

The absence of allegations concerning the wireless network merits a brief

additional discussion because the majority opinion asserts otherwise, claiming that “some

of the offending Yaks were posted using the University’s wireless network, and the

harassers necessarily created those Yaks on campus.” Maj. Op. 19. This is baseless

speculation without support in the Complaint. At no point does the Complaint allege any

facts that connect any of the Yaks to the University’s wireless network. See J.A. 6–27.

To be sure, the Complaint alleges the Yaks had to be created within the

geographic parameters of the app because of how Yik Yak operated. But, as already

discussed, that range extended well off campus into the Fredericksburg community at

large. Furthermore, as the Complaint recognizes, students and nonstudents alike could

access Yik Yak within those geographic parameters through non-University network

capabilities on their own personal devices; they had no need to use the University’s

wireless network to do so. See J.A. 26, ¶ 50. In sum, the allegations fail to plausibly

associate even one harassing Yak to the University’s wireless network.

With one exception, all of the Complaint’s references to the University wireless

network occur in the context of discussing that students asked the University to ban Yik

Yak from being accessible on the University network. See J.A. 26–27, 29–30, 39.

Students’ repeated requests to the University to ban Yik Yak obviously do not correlate

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to whether anyone had ever used the University’s wireless network to access Yik Yak in

the first instance, let alone that anyone had done so to post a harassing Yak. 9 The one

exception occurs in the Complaint’s preliminary statement and introduction to the

underlying events, which postulates that the “Defendants failed to report the threats of

violence to law enforcement authorities or even to attempt to identify the assailants, even

though the University’s wireless internet was used to access Yik Yak, thereby facilitating

the cyber assaults and threats, and the assailants’ conduct violated Virginia law.” J.A. 12,

¶ 5 (emphasis added). Such a conclusory characterization, utterly unsupported by any

factual development or allegations in the statement of the underlying facts anywhere in

the Complaint, does not satisfy FMF’s minimal pleading burden under Twombly and

Iqbal. See, e.g., Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011). For these

reasons, the Complaint does not contain allegations that allow for a connection between

9

FMF’s persistent requests to ban Yik Yak use for all students demonstrates their

indifference to the need to balance their Title IX claims against the First Amendment

rights of their peers. To stop speech FMF doesn’t want to hear, it wishes to close the

public forum to all speech and all speakers. Just as universities have a duty to fulfill their

obligations under Title IX, they also have a duty not to trample on the First Amendment

rights of their students. See IOTA XI Chapter of Sigma Chi Fraternity v. George Mason

Univ., 993 F.2d 386, 393 (4th Cir. 1993) (stating that “the manner of [a public

university’s] action cannot consist of selective limitations upon speech”). And “a bedrock

principle underlying the First Amendment . . . is that the government may not prohibit the

expression of an idea simply because society finds the idea itself offensive of

disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). This means that adults may

both express and encounter speech that is “vehement, caustic, and sometimes

unpleasant.” Snyder v. Phelps, 562 U.S. 443, 458 (2011). And it also means that

universities cannot “restrict expression because of its message or its ideas” such as by

“silencing speech on the basis of its viewpoint.” IOTA XI, 993 F.2d at 393. Blocking Yik

Yak from the University’s wireless network would have run afoul of these principles

without any apparent effect given that—at least as alleged—nothing connected the

University’s wireless network to any of the reported Yaks in the first place.

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the University’s wireless network—over which the University does have control—and

Yik Yak or the offensive Yaks—over which the University has no control.

The Complaint simply fails to plead a fundamental part of a Davis claim: that the

University substantially controlled the context where the harassment occurred. When

comparing the hallmarks of the context inquiry under Davis against the Complaint’s

allegations, the Complaint fails to plausibly allege facts sufficient to satisfy this threshold

requirement. As such, the University cannot be held liable under Title IX.

Nothing in the majority opinion’s scant analysis alters this conclusion. To the

contrary, after mentioning that Davis requires a showing of substantial control over the

context of the harassment, the majority ignores the principles set out by the Supreme

Court. Added to the errors already discussed, a few more examples illustrate how far the

majority’s analysis strays from Davis’ explanation of the context inquiry.

The majority opinion cites this Court’s decision in Kowalski v. Berkeley County

School, 652 F.3d 565, 573 (4th Cir. 2011), for the observation that “speech originating

outside of the schoolhouse gate but directed at persons in school and received by and

acted on by them [may] in fact [constitute] in-school speech.” Maj. Op. 19. That

observation, made in the context of a First Amendment challenge and school-disruption

analysis under Tinker v. Des Moines Independent Community School District, 393 U.S.

503 (1969), says nothing about the Title IX Davis context inquiry. While both Tinker and

Davis direct courts to look to certain aspects of the school environment, the underlying

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principles, objectives, and analyses in each case are markedly different. 10 What is more,

the record in Kowalski showed that although Kowalski created the website off campus,

other students used both school and personal computers to access and comment on it. 652

F.3d at 567–68, 574. No similar allegations establishing the necessary nexus concerning

on-campus conduct exist here.

The majority opinion also conjures up that the University controlled the context of

the harassment because it could have “control[led] activities that occur on its own

[wireless] network” such as by blocking any person on the University’s network from

accessing Yik Yak or banning the harassers (once identified) from using the University’s

network for any purpose. Maj. Op. 20. Such analytical sleight of hand substitutes obvious

areas over which the University could have exercised control (its wireless network and

10

Kowalski is a First Amendment case brought by a student who alleged a school

district violated her free speech rights when it suspended her for “creating and posting to

a MySpace.com webpage” that “was largely dedicated to ridiculing a fellow student.”

652 F.3d at 567. Analyzing that issue required the Court to apply the principles set out in

Tinker about whether student speech created a sufficient classroom disruption to warrant

school discipline. Consistent with a long line of circuit court precedent applying Tinker,

the Court held that although Kowalski created the website off-campus outside of school

hours, her “speech caused the interference and disruption described in Tinker as being

immune from First Amendment protection.” 652 F.3d at 572.

While Tinker directs courts to consider disruption of the school’s educational

objectives, classroom management, and the rights of other students as part of its analysis,

Davis contains no corollary discussion. The Supreme Court could have drawn on Tinker

and related students’ rights cases in crafting the context inquiry under Title IX, but it did

not do so. Instead, consistent with Title IX’s language, the Supreme Court looked to

when a funding recipient could be held liable and articulated the context inquiry under

the “substantial control” over the context nexus. In doing so, the Court declined to frame

the inquiry in terms of the disruption the harassment caused on campus, regardless of

where it originated.

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students) as proof that the University controlled the context of the harassment. But by

itself, the University’s ability to control its own wireless network says nothing about the

University’s ability to control the harassment on Yik Yak, a third-party app. Clearly, even

if the University closed any access to Yik Yak via its network (a First Amendment error

described above), Yik Yak would still be readily available and easily accessed anywhere

on campus via the student’s own electronic devices.

Using similar misdirection, the majority opinion suggests that the University could

have controlled the context of the harassment by communicating its anti-harassment

policies more effectively, or by holding assemblies or training to oppose cyberbullying

and sexual harassment. See Maj. Op. 20. The notion of doing more to raise awareness and

combat harassment—while a laudable goal—is irrelevant to Davis’ context inquiry. To

state the obvious, before delving into whether a funding recipient was deliberately

indifferent or whether its response was clearly unreasonable, courts must first look at

whether the funding recipient is appropriately subjected to a deliberate indifference claim

under Title IX. That threshold requirement is satisfied only where the recipient exercised

substantial control over the context of the known harassment, that is, the environment

where it occurred. The efforts identified by the majority ignore that instruction.

Because the Complaint failed to plausibly allege facts that the University

exercised control over Yik Yak or the means the harassers were using to access Yik Yak,

the Complaint fails to meet the minimal pleading requirement that the University

controlled the context of the harassment at issue in this case. And because a litigant must

satisfy Davis’ context inquiry in order to bring suit, the district court appropriately

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granted the University’s motion to dismiss for failure to state a deliberate indifference

claim.

****

Only by distorting and ignoring the original principles set out in Davis can the

majority reach its preferred result, holding that the Complaint states a plausible claim of

deliberate indifference against the University. The majority has repositioned the once

high bar for a Davis claim to a new low. See S.B., 819 F.3d at 76. As demonstrated, the

Complaint does not contain factual allegations that satisfy Davis’ harasser or context

inquiries. And because the Complaint does not survive 12(b)(6) review concerning these

threshold requirements for a deliberate indifference claim, there’s no need to proceed

further and consider whether the University’s response was clearly unreasonable. The

district court’s decision to dismiss this claim should be affirmed.

II. Title IX: Retaliation

FMF’s retaliation claim relies on two distinct acts: first, the University’s alleged

deliberate indifference to peer retaliatory harassment on Yik Yak, and, second, its alleged

direct retaliation in disseminating a letter responding to FMF’s administrative complaint

(President Hurley’s June 2015 letter). Neither ground pleads a viable claim, and I would

affirm the district court’s judgment dismissing them.

A.

First, FMF asserts the University is liable under a Title IX retaliation claim based

on its alleged deliberate indifference to retaliatory peer harassment. This type of imputed

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retaliation claim has never been recognized by either the Supreme Court or any circuit

court. The Supreme Court has recognized only that Title IX implicitly authorized a

private right of action for the University’s own retaliatory conduct. Jackson, 544 U.S. at

173–74 (holding that Title IX implicitly authorizes a private right of action against

funding recipients who retaliate against a person for complaining of sex discrimination).

Lacking binding authority or even persuasive circuit-court authority to support the

viability of such a claim, the majority must instead cite a district court decision to hold

that a plaintiff can pursue a retaliation claim based on a funding recipient’s deliberate

indifference to peer retaliation. See Maj. Op. 37. That recourse reflects the frailty of the

majority’s goal-oriented analysis. 11

11

Allowing a retaliation claim to proceed under the circumstances alleged in this

case—where the later online harassment is largely part and parcel of the initially reported

discriminatory online harassment—is problematic on several fronts. At the same time it

recognized a cause of action for deliberate indifference to peer harassment, the Supreme

Court disclaimed the argument that its decision meant that “recipients can avoid liability

only by purging their schools of actionable peer harassment.” Davis, 526 U.S. at 648.

And it reiterated that funding recipients are not expected to “remedy peer harassment [or]

ensure that students conform their conduct to certain rules.” Id.. Recognizing new

environments in which funding recipients can be held liable for deliberate indifference to

ongoing harassment increases the circumstances in which their conduct may be deemed

clearly unreasonable, and thus brings a court closer to ignoring Davis’ limits on potential

liability. In addition, recognizing a new cause of action distorts the “clearly

unreasonable” analysis, increasing the risk of either over- or underemphasizing the

recipient’s response to particular peer conduct, rather than allowing one analysis of a

recipient’s response based on the totality of the circumstances it faced. There may be

circumstances where the alleged retaliation looks substantially different from the initial

reported discrimination, but when, as here, the conduct bleeds into each other, restraint is

warranted.

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Unlike the majority, however, it is unnecessary to conclusively determine when, or

if at all, a retaliation claim based on deliberate indifference to retaliatory peer harassment

could be recognized

This text is long and has been trimmed here. Open the source document for the complete record.