A lawsuit against the University of Mary Washington was reinstated by the Fourth Circuit in a case that poses a threat to free speech, according to experts on the issue.

The Fourth Circuit Court of Appeals reinstated a lawsuit by the Feminist Majority Foundation against the University of Mary Washington in Virginia, in which the Foundation suggests that Title IX may allow or require colleges to block student access to so-called harmful material posted anonymously, such as on the now-defunct application Yik Yak.

The issues at the heart of the case date back to 2015 when the group Feminists United on Campus (FUC), a subsidiary of the Feminist Majority Foundation, became the target of hostile messages online, posted anonymously on the app Yik Yak. FUC complained to the university administration and were not satisfied with the response, so they filed a federal lawsuit.

The lawsuit claims that the University of Mary Washington violated Title IX by not responding to the harassment the FUC received on the anonymous app and that the former president, Richard Hurley, retaliated against them by publicly defending the university against claims of sex discrimination.

The lawsuit was reinstated by the Fourth Circuit after initially being dismissed by a federal district court in September 2017 because the court found “the Title IX discrimination claim fails because the harassment took place in a context over which UMW had limited, if any, control—anonymous postings on Yik Yak,” and that “Title IX does not require funding recipients to meet the particular remedial demands of its students.”

The reinstatement has raised concern over the freedom of speech on college campuses.

The Foundation for Individual Rights in Education (FIRE) called the reinstatement a “deeply disturbing ruling” with an “alarming” suggestion “that Title IX may sometimes require colleges to censor or block all students’ access to certain internet sites or services based solely on anonymous statements made in an online forum that the university does not control, by people who may not be on campus, or even affiliated with the university at all.”

Yik Yak was an anonymous, localized messaging app, created in 2013, that quickly earned a reputation among some for bullying, trolling, hurtful speech, and threats of violence. The app allowed other users to “up vote” or “down vote” messages posted to the forum based on content. According to a New York Times article on the app, if a “post received enough negative feedback, it was removed.” No metric for removal was provided. The app was ultimately shut down in April 2017.

According to the New York Times, Yik Yak’s “privacy policy did not allow institutions to identify users who posed a risk without a subpoena, court order or search warrant, or an emergency request from a law-enforcement official with a compelling claim of imminent harm.”

The lawsuit does not name Yik Yak or its creators as defendants but claims that the University of Mary Washington should have responded more forcefully to comments made on the site.

Technology and free speech experts have warned that asking universities to ban social media sites created by off-campus individuals is a slippery slope. Tracy Mitrano, a technology and legal consultant, told Inside Higher Ed that “banning these anonymous apps or having the universities themselves monitor them is probably a bad idea.”


Aryssa is a graduate student at the University of Kentucky, an alumna of the National Journalism Center, and a contributor to the New Guard.