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OCR's Investigation of U. of Mary Washington Raises Free Speech Concerns
Last fall, a controversy arose at the University of Mary Washington (UMW) when several members of the UMW men鈥檚 rugby club were recorded participating in a bawdy song at an off-campus party. After members of the UMW student group Feminists United on Campus (FUC) complained about the recording, UMW dissolved the rugby club in March 2015 and ordered its members to sensitivity training.
After the incident, FUC members found themselves the targets of online hostility. As Jezebel鈥檚 Erin Gloria Ryan ,
FUC members found themselves scapegoated by their fellow students at the small university. Messaging app Yik Yak, which allows college students to relay their mental flotsam to the entire student body anonymously, filled with hostile messages. [Then-FUC President Paige] McKinsey says there were 鈥渉undreds鈥 of Yaks, all of them of a similar tone.
Then, tragically, Grace Mann鈥攁 UMW student and FUC member鈥攚as in April 2015. There has been no connection established between Mann鈥檚 murder and the hostility on social media. But FUC members were understandably frightened by the murder, coming as it did so soon after all the online venom. This is obviously a sensitive situation, and I in no way mean to downplay how frightening a time that must have been for those students. I鈥檓 sure I would have been frightened as well. But it is precisely in times of fear that society often seeks to suppress critical rights鈥攖hink of McCarthyism, for example, or the 鈥攁nd it is necessary to the continuation of a free society that we do not permit that to happen.
In May 2015, a group of students filed a complaint against UMW with the Department of Education鈥檚 Office for Civil Rights (OCR), asking the agency to open a Title IX investigation into UMW鈥檚 handling of the Yik Yak posts. Last week, that it would, indeed, open an investigation. the details today:
On Wednesday 72 women's and civil rights organizations urged the U.S. Education Department to tell colleges that they must monitor anonymous apps like Yik Yak鈥攆requently the source of sexist and racist comments about named or identifiable students鈥攁nd do something to protect those students who are named. The groups said they view anonymous online abuse as an emerging issue under provisions of the Title IX of the Education Amendments of 1972.
There are several very troubling aspects to all of this. First, as my colleague , requiring universities to monitor anonymous online speech would have 鈥渟ubstantial鈥 First Amendment implications, given the First Amendment right to speak anonymously. Indeed, the Supreme Court has ruled that anonymity "exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation ... at the hand of an intolerant society." McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).
Requiring such monitoring would also present universities with a Herculean task, and one that, as Will has explained in the past, is unnecessary given that harassment and threats are already prohibited by law:
The bottom line is that while schools are (correctly) legally required to respond to harassment on campus, whether that harassment be 鈥渋n the real world,鈥 on university-controlled websites, or with university-controlled e-mail addresses, it鈥檚 too much to ask that universities be responsible for the rest of the Web, too. It鈥檚 too big a job, it鈥檚 too problematic in terms of available remedies, and it鈥檚 an invitation to even worse speech abuses and speech codes. And, perhaps most importantly, it鈥檚 unnecessary. Again, it鈥檚 crucial to remember that students who feel victimized by nasty online speech have recourse to all the legal courses of action I outlined above: filing a criminal complaint against speech that reaches the threshold for incitement, intimidation, criminal harassment, or threat; or bringing a civil action for libel or defamation. Either way, students have methods of protecting themselves from truly harmful speech online without having to resort to asking their universities to intervene鈥攁 task for which those universities are thoroughly ill-suited.
Another issue of concern is the fact that, in their OCR complaint, the UMW students are seeking recourse not only for the university鈥檚 alleged failure to respond to harassment on social media, but also for the university鈥檚 efforts to defend itself against that allegation. ,
[a]fter the Mary Washington president, Richard Hurley, vociferously refuted those allegations in a letter to the campus community, the two groups amended their complaint, accusing Hurley of retaliating against the students with a 鈥渄isparaging鈥 letter. In addition to discrimination and sexual harassment, Title IX laws prohibit 鈥渞etaliation鈥 against anyone who files a complaint.
The idea that any speech critical of the way Title IX is administered on campus is itself cause for a Title IX claim is deeply concerning from a free-speech perspective. We saw this in the case of Northwestern professor Laura Kipnis, who found herself on the receiving end of a university Title IX investigation after she penned about what she called the 鈥渟exual panic鈥 of the 鈥減ost-Title IX landscape.鈥 According to Kipnis, not only was she subjected to a university Title IX investigation, but a Title IX retaliation claim was even filed against the faculty support person who accompanied Kipnis to that investigation because he expressed concerns about that process to the faculty senate. If simply speaking up in defense of oneself or others on matters pertaining to sex discrimination constitutes retaliation under Title IX, then the law amounts to nothing less than a gag order on students and faculty.
If OCR鈥檚 Title IX investigation at UMW leads to new 鈥済uidance鈥 on colleges鈥 responsibility to police students鈥 social media activity, a great deal of protected speech could find itself under threat on campus. Let鈥檚 hope that doesn鈥檛 come to pass.
We will keep you posted.
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