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For qualified immunity, a clearly established legal principle is one that clearly prohibits the official's conduct in the particular circumstances before him. Nevertheless, a court need not have previously found the specific conduct at issue to have violated an individual's rights. Indeed, a right may be clearly established if a previously identified general constitutional rule obviously applies to the disputed conduct. 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.
In November 2014, University of Mary Washington (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." 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. 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. 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, "*** the feminists!" 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. 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. 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 friendly campus." 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." 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, and requested “some sort of action” be done in response thereto. 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. 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." 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." Without referencing the rugby team's chant or any other specific acts, Hurley described certain students' recent behavior as "repugnant and highly offensive." 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." 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 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. On March 25, plaintiff Michels sent an email to President Hurley, Dr. Cox, and UMW's vice president, Douglas Searcy, explaining how they documented the violent Yaks against them and how they feared for their safety. They requested for a meeting and for the UMW administration to take several steps in protecting them, pertinent of which was to ban Yik Yak from campus. 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." Instead, she encouraged UMW students to report any threatening online comments to Yik Yak or other platforms where such comments were made. Disappointed, plaintiffs tried to urge multiple times the administration to take further action, and held a march to raise awareness about campus rape. They also tried to be open with their issues and suggestions in “listening circles” conducted by UMW faculty. Still, UMW administrators failed to take any action in response to the harassment and threats. Things came to a head when UMW student and Feminists United member Grace Mann was killed by another student who was her roommate. A Feminist United member sent an email to UMW administrators chastising them for their failure to address the issue, but received no reply. Thus, 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. About a month later, on June 8, 2015, President Hurley wrote to the president of the Feminist Majority Foundation addressing the OCR complaint, essentially dismissing their claims. In May 2017, the plaintiffs withdrew the OCR complaint and initiated this lawsuit in the Eastern District of Virginia, alleging 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. The district court granted Hurley qualified immunity on the equal protection claim and dismissed the complaint.
Did the district court err in granting Hurley qualified immunity on the plaintiffs’ equal protection claim?
Although it was recognized that an equal protection claim can be predicated on a university administrator's deliberate indifference to student-on-student sexual harassment, the court was also satisfied that President Hurley did not have fair warning that his conduct in this case gave rise to such a claim. 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.
First, 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. 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 harassment. The court’s 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. 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. Moreover, although the Jennings decision recognized a general right to be free from sexual harassment at an educational institution, the court must heed the Supreme Court's admonition not to define clearly established law too broadly.
Further, pertinent decisions of the court’s sister circuits affirm the previous discussion. 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. The circuit court’s recent Booker decision, of April 2017, sheds considerable light on what constitutes a robust consensus. 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.'" Based on that "overwhelming consensus," Booker determined that the constitutional right at issue was clearly established. 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. 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, whereas the Seventh Circuit required that such a victim also prove the administrator's "discriminatory purpose." Because of the limited number of relevant decisions that could be persuasive authority, plus their apparent lack of accord on the intent element, the court was not convinced that there was a robust consensus of decisions providing Hurley with fair warning that his challenged behavior was unlawful.
Thus, the persuasive authority did not — at the appropriate time — clearly establish the constitutional right at issue in these proceedings. The circuit court was 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.