In March 2022, an anonymous group of New York University (NYU) students published a Google spreadsheet, known as the “Blacklist,” accusing several NYU students of sexual misconduct. The spreadsheet contained three anonymously submitted entries about John Doe, a senior at NYU. One entry labeled John Doe a narcissist and two entries accused him of sexual misconduct. Posters containing a QR code linked to the spreadsheet were posted around the NYU campus, primarily in women’s restrooms.
Doe became aware of the spreadsheet on April 5, 2022, about one month before classes ended at NYU and roughly six weeks before Doe’s graduation, when a friend notified him of rumors arising from the spreadsheet’s circulation. Doe alleged that the spreadsheet was created with the purpose of enabling female and non-binary NYU students to post unfounded sexual misconduct against male students.
Doe made failed attempts to reach out to the purported creators of the spreadsheet to request them to remove the entries about him. Doe reported the spreadsheet to several NYU faculty and staff. Thereafter, a Lieutenant from Investigations and Victim Services at NYU Campus Safety contacted Doe and the two met to discuss the accusations lodged against Doe and the effect it had on his mental health. The Lieutenant referred Doe to various resources for mental health assistance and said she would continue to monitor the situation. The Lieutenant also looked into the spreadsheet and told Doe that NYU Campus Safety was unable to shut it down.
On April 11, NYU issued a statement to the student body, advising students against using the spreadsheet as a means of reporting sexual misconduct. The statement cautioned that “public anonymous claims” of sexual misconduct made via the spreadsheet meant that all parties involved were deprived of impartiality and the process to which they should be entitled. The statement urged accusers to instead use NYU’s official channels to report misconduct. In late April, the spreadsheet was taken down.
Doe claimed that as a result of the spreadsheet, during his final weeks at NYU, he was removed from a classmate’s film shoot and no longer booked to work on professional gigs. Doe claimed that he suffered bullying, harassment, and ostracism by other students, including students pretending not to hear him when he spoke, ignoring his messages, changing seats if he sat near them, and walking the other way to avoid him. In response, NYU provided Doe with academic accommodations for the remainder of the school year, and after graduation, provided him with a letter stating that he had never been subject to an investigation at the School.
Doe filed suit under two Title IX theories. First, Doe alleged that NYU discriminated against him on the basis of his sex by failing to adequately address his complaints of harassment, which Doe claimed amounted to deliberate indifference, and which would make the University liable for his peers’ sexual harassment. Second, Doe alleged that as a result of NYU’s inaction, he was subject to a hostile educational environment.
For a school to be liable under Title IX for peer harassment, the plaintiff must demonstrate that a federally funded educational institution was deliberately indifferent to and had actual knowledge of sexual harassment that was so severe, pervasive, and objectively offensive that it could be said to have deprived the plaintiff access to the educational opportunities or benefits of attending the institution. A plaintiff must also show that the school exercised substantial control over both the harasser and the context in which the known harassment occurs.
Doe argued that even though he repeatedly reported the harassment, NYU took no action to investigate the origins of the Blacklist or pursue disciplinary action against its creators. Instead, Doe argued, NYU encouraged the female students to report the potential misconduct.
NYU argued, as a threshold matter, that Doe’s peer harassment claim should be dismissed because Doe failed to show that either that the students published the spreadsheet out of a desire to harass him for being male (i.e., on the basis of sex) or that he was subject to a systemic deprivation of educational opportunities.
The Court agreed with NYU. The Court further reasoned that even assuming that Doe met the threshold requirements to state a Title IX claim, NYU’s response was not unreasonable. The Court found that NYU took the steps it could to respond to Doe’s reports, including referring Doe to mental health assistance and victim’s support services; investigating whether it could unilaterally shut down the list (and determining that it could not); providing academic accommodations to Doe; providing Doe with a letter stating that he had never been subject to a Title IX investigation; and issuing a public statement that encouraged individuals to report concerns to NYU through official channels.
The Court considered that NYU could not easily demand the students to identify themselves and take disciplinary action against them because it would have been disciplining students for online speech on non-university accounts.
The Court also considered that Doe had not sufficiently alleged that NYU exercised “substantial control” over the alleged harassment. There was no evidence that the spreadsheet was created using NYU resources; shared or administered by any NYU account or device; hosted on NYU services; or otherwise within NYU’s ability to edit or delete it. NYU Campus Safety looked into the spreadsheet and told Doe there was nothing it could do to shut down the page. The mere fact that the spreadsheet was created by NYU students and could be accessed by a QR code displayed on posters around campus was not enough to establish substantial control. Therefore, the Court dismissed the peer harassment claim.
For Doe’s hostile educational environment claim, Doe argued that NYU failed to promptly and adequately respond to Doe’s repeated complaints about the Blacklist and resulting fallout.
To establish a hostile educational environment claim under Title IX, a plaintiff must show that he subjectively perceived the environment to be hostile or abusive and that the environment objectively was hostile or abusive, that is, that it was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of his educational environment. For an educational institution to be liable, however, the plaintiff must show that the school had actual knowledge of the discrimination and failed to adequately respond, which occurs when the school provides no response or if it provides a response that amounts to deliberate indifference or discrimination.
Here, the Court found that Doe may have pled facts that established that he was subject to a hostile environment, but he failed to show that NYU failed to adequately respond. As the Court established for the first claim, Doe failed to show that NYU’s response to the spreadsheet and resulting harassment amounted to deliberate indifference. Therefore, the Court dismissed the hostile environment claim.
Doe v. Sacks (S.D.N.Y. Feb. 2, 2024) 2024 U.S.Dist.LEXIS 18687.
Note: While Title IX only applies to recipients of federal funds, the facts in this case are instructive for schools navigating similar situations. Important takeaways from this case include that there was no evidence that the student spreadsheet was created using school resources or email addresses, and that the school was somewhat limited in how it could respond to the spreadsheet due to their lack of control over the spreadsheet and the free speech rights of students.