Will SCOTUS take up the Yik Yak case?

Members of an organization called the Feminist Majority Foundation allege that they were viciously bullied and sexually harassed while attending the University of Mary Washington.  They sued the university under Title IX.  Now the 4th Circuit has held that the university may face liability. What makes the case particularly interesting is that the harassment was done by anonymous people using an app designed to maintain their anonymity.  The app is Yik Yak, which is no longer available. Here’s an interesting article about it from the New York Times: https://www.nytimes.com/2017/05/27/style/yik-yak-bullying-mary-washington.html

The “yaks” that emanated from Yik Yak were disgusting. In a K-12 context we would call it bullying.  But no one knows who sent them.  The app was designed to be used only in a small geographic area around the sender, so we do know that the “yaks” came from the university campus or nearby. Were they from other students?  Probably—but we just don’t know for sure, and neither did the university administrators.  The plaintiffs in the case alleged that the anonymity of the Yakkers was irrelevant, that there were a lot of things the university could have done to stop the harassment.  The majority of the judges on the 4th Circuit agreed.

Consider the implications of this decision for K-12 schools.  We do know that schools have jurisdiction over students who engage in cyber bullying, whether that takes place on campus or not. Certainly, if the school can identify who is doing the bullying it can, and must, take corrective action.  Here, the university did not know who was harassing the students, but the court holds the university responsible for its failure to pursue the identities of the bullies more aggressively. 

The issue comes down to a matter of control.  Title IX liability can be imposed on a school only if the school has “substantial control” over the harasser and the context of the harassment.  Thus a school may face liability if the harassment is done by students on school grounds, on the bus, or at a school event.   But here, the university did not know who was doing it, or where they were doing it.  Moreover, the bullies did not use university facilities or equipment to send these hateful “yaks.” They used their own devices, and only had to be within striking distance of the university campus. The majority of the 4th Circuit judges basically took the position that the school could have and should have done more.

There was a dissenting opinion. The dissenting judge concludes with an invitation for the university to take the matter up with our highest court:

Make no mistake, the majority’s novel and unsupported decision will have a profound effect, particularly on institutions of higher education, until the Supreme Court reaffirms that Davis means what it says. Institutions, like the University, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid the Catch-22 Title IX liability the majority now proclaims.  The University should not hesitate to seek further review. 

It will be interesting to see if SCOTUS takes this one.  It would certainly shine a spotlight on Justice Kavanaugh after the controversy over his confirmation.  This one is Feminist Majority Foundation v. Hurley, decided by the 4th Circuit on December 19, 2018.  We found it at 2018 WL 6625847.


Enjoy the weekend, Readers!