Feminist Majority Foundation v. Richard Hurley
911 F.3d 674
4th Cir.2018Background
- Feminist Majority Foundation and a campus group, Feminists United, plus student leaders, alleged extensive sexist harassment and violent threats posted anonymously on Yik Yak and other forums after they criticized campus fraternities and publicized a rugby team chant glorifying violence against women.
- Plaintiffs reported the harassment repeatedly to UMW administrators (Title IX coordinator Dr. Cox and President Hurley); UMW convened two “listening circles,” sent campus police to two events, and declined to ban Yik Yak from campus networks.
- Plaintiffs filed an OCR complaint (then withdrew it) and sued UMW under Title IX for sex discrimination (deliberate indifference) and retaliation, and sued Hurley under § 1983 for denial of equal protection; district court dismissed all claims.
- On appeal the Fourth Circuit (King, J.) affirmed dismissal of the § 1983 claim (qualified immunity) and part of the Title IX retaliation claim (Hurley’s letter), but vacated dismissal of the Title IX sex-discrimination claim and the remainder of the retaliation claim (deliberate indifference to student-on-student retaliatory harassment), remanding for further proceedings.
- Judge Agee partially dissented: argued the complaint failed to plead Davis’s required “substantial control” over harassers and context (Yik Yak’s geographic range was broader than campus; posts were anonymous), and would have affirmed dismissal of all claims; majority applied Rule 12(b)(6) in plaintiffs’ favor and found plausible claims of control and deliberate indifference.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether UMW can be liable under Title IX for deliberate indifference to student-on-student sexual harassment (sex-discrimination) | Plaintiffs: Yik Yak posts and in-person harassment occurred on/near campus, targeted female students, UMW had substantial control over context and harassers (could disable Yik Yak on campus, identify users, hold trainings), and was deliberately indifferent. | UMW: Much harassment occurred off-campus/anonymously via third-party app; UMW lacked substantial control over harassers/context; its limited responses were reasonable and constrained by First Amendment concerns. | Vacated dismissal — complaint plausibly alleged substantial control and deliberate indifference; Title IX sex-discrimination claim survives pleading stage. |
| Whether UMW can be liable under Title IX for deliberate indifference to student-on-student retaliatory harassment (retaliation theory) | Plaintiffs: Harassing conduct escalated after protected activity (articles, OCR filing); UMW had control and responded unreasonably, so retaliation claim via deliberate indifference is actionable. | UMW: Student-on-student retaliatory harassment cannot be attributed to the university as a retaliatory action and is not a materially adverse action by the institution. | Vacated dismissal — complaint plausibly alleges retaliation via deliberate indifference to student-on-student retaliatory harassment (but subject to Davis control principles). |
| Whether President Hurley’s public June 2015 letter constituted materially adverse retaliatory action under Title IX | Plaintiffs: Hurley’s letter falsely disparaged Feminists United and intensified harassment; letter was intended to retaliate. | Hurley/UMW: Letter was a permissible public defense/response to OCR complaint; not materially adverse or intimidating. | Affirmed dismissal — letter alone not a materially adverse retaliatory action. |
| Whether Hurley is individually liable under § 1983 (Equal Protection) for deliberate indifference and whether qualified immunity applies | Plaintiffs: Hurley’s inaction/denials ratified and tolerated sex-based harassment, violating equal protection; similar supervisory-liability precedents support individual claims. | Hurley: Either no constitutional violation or, alternatively, qualified immunity because the constitutional right was not clearly established. | Affirmed dismissal — although an equal protection claim for deliberate indifference to student-on-student harassment is cognizable, qualified immunity applied because at the time law was not clearly established by controlling or a robust consensus of persuasive authority. |
Key Cases Cited
- Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999) (establishes Title IX deliberate indifference standard and requires substantial control over harasser and context)
- Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) (Title IX private right includes retaliation claims)
- Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009) (§ 1983 equal protection claims for school sex discrimination remain available and standards differ from Title IX)
- Jennings v. Univ. of N.C., 482 F.3d 686 (4th Cir. 2007) (recognizes right to be free from sexual harassment in educational settings; supervisory-equal-protection theory)
- Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) (limits on institutional liability under Title IX; deliberate indifference by official with authority can give rise to liability)
- Virginia v. Black, 538 U.S. 343 (2003) (true threats are unprotected speech)
- Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006) (standard for materially adverse action in retaliation claims)