In a ruling issued yesterday by Judge Paula Xinis (D. Md.) in Shuma v. Whibley, the court recounts the sequence of events and the subsequent litigation surrounding a controversial campus matter.
During the 2020–21 academic year at Dickinson College, Shane Shuma (the appellant) and Erin Whibley (the appellee) were students who became the center of campus-wide dispute after Shuma posted a YouTube video that ridiculed the idea that the Holocaust could be deemed positive in any sense. The clip circulated widely on campus, provoking significant backlash. University officials publicly denounced the video, it received extensive coverage in the student-run newspaper, and many students voiced strong opposition to Shuma’s actions.
In a class discussion about the incident, one student recounted overhearing Shuma at a club event making remarks that she believed were profoundly inappropriate to say to anyone and mentioning that there were threats connected to his comments. She noted her dismay that his behavior persisted even after others had reported on Shuma, including reports under Title IX guidelines. Another student said she had heard from multiple people that Shuma had authored articles in the student newspaper that expressed racist sentiments. A third student described an article by Shuma arguing that white privilege does not exist.
Reacting to this exchange, Whibley launched an online petition calling for Shuma’s expulsion. The petition characterized Shuma as the subject of several Title IX concerns and asserted that he had written racially charged articles for the campus newspaper, describing him as a serial offender. The petition rapidly gained traction, collecting 811 signatures within the initial days and eventually drawing signatures from more than half of Dickinson’s student body.
Shortly thereafter, Whibley discovered that Shuma had no Title IX complaints filed against him. Within a matter of days, she revised the petition to remove the Title IX reference, clarifying that Shuma had not violated Title IX statutes and explaining that she did not intend to slander him, but merely relay what she had heard from other students.
Shuma brought a defamation action in Pennsylvania state court. After negotiations for a settlement faltered, Whibley declined to participate in the defense, and a default judgment was entered against her. The state court later determined that Shuma could not recover damages, but at Shuma’s urging a damages trial was scheduled for October 31, 2023.
Just days before the trial was set to commence, Whibley filed for bankruptcy in the District of Maryland, which triggered an automatic stay of the Pennsylvania proceedings. In the ensuing adversary proceeding within the bankruptcy case, Shuma argued that any debt Whibley incurred in connection with the Pennsylvania defamation suit should not be dischargeable by bankruptcy—i.e., it could not be wiped out in bankruptcy because her conduct was willful and malicious. The scope of the adversary proceeding focused on whether Whibley defamed Shuma with the intent to injure him, thereby rendering the debt nondischargeable.
Bankruptcy Judge Lori Simpson ruled in Whibley’s favor, and the district court affirmed the decision:
Under the Bankruptcy Act, certain debts are carved out from discharge. Of particular relevance here is 523(a)(6), which provides that a debt arising from willful and malicious injury by the debtor to another is not dischargeable. The statute distinguishes between a deliberate or intentional injury and an intentional act that results in injury; the latter can be discharged.
The appellate court found no error, much less clear error, in the Bankruptcy Court’s determination that Whibley did not have the necessary intent to injure Shuma. The Bankruptcy Court accepted Whibley’s testimony about why she relied on her classmates’ accounts of Shuma and, when those accounts proved inaccurate, corrected the public record. It also accepted that Whibley’s prior experiences with sexual assault influenced her willingness to believe the reports about Shuma, even though that belief ultimately proved mistaken.
Furthermore, the appellate court found no fault in the Bankruptcy Court’s finding that Whibley’s timely correction of the petition supported the conclusion that she did not intend to injure Shuma by defaming him. While Shuma might view the correction as insufficient, mere disagreement with the Bankruptcy Court does not establish clear error in the factual findings about Whibley’s lack of intent.
The weight of the evidence suggested Whibley posted the petition to shield the student body from Shuma’s conduct rather than to harm him. She credibly explained her reasons for believing the statements were true at the time and promptly amended the petition once she learned she had been mistaken. Shuma offered little in the way of evidence to suggest that Whibley had the requisite intent to make the defamation non-dischargeable. Taken together, these factors supported the Bankruptcy Court’s conclusion that the debt remained dischargeable in bankruptcy.
It is not entirely clear what the court meant by the statement that the petition aimed to “protect the student body from Shuma’s opprobrium,” but the following excerpts from the bankruptcy judge’s opinion illuminate the court’s reasoning.
In Dickinson’s parlance, Title IX is often equated with sexual assault. The evidence showed, and there was no dispute, that the classmate’s accusations lacked truth. Perhaps due to the defendant’s naiveté, biases, or the classroom setting lending credibility to the remarks, she did not dismiss them as mere gossip or investigate further; she simply believed them.
The next day, the defendant authored and published an online petition on Change.org urging Dickinson to expel the plaintiff. Beyond criticizing the plaintiff’s video, the petition asserted that he had been reported multiple times for Title IX issues and had written racially charged articles for the campus newspaper.
The phrase “racially charged” can function as a coded way of indicating racism, though it remains ambiguously defined and seems to reflect the speaker’s sensitivities rather than a concrete accusation.
Nevertheless, the petition’s claim that the plaintiff had been repeatedly reported for sexual assault was an objectively false assertion. Following the call for expulsion, the defendant concluded with a call to action: “We can longer accept a slap on the wrist as an acceptable punishment for this serial offender.”
On February 24, 2021, the local ABC affiliate, WHTM, published a piece about the video and the Dickinson community’s response. The article did not reference the petition but included an anonymous student statement condemning the plaintiff for the video and asserting that he had authored numerous inflammatory columns in the college newspaper.
The anonymous statement also suggested that the video was not the plaintiff’s first such remark but simply the first time it was captured on camera. Neither the ABC article nor the anonymous statement mentioned any sexual assault allegations against the plaintiff.
Collectively, reviewing the petition in full along with the broader Dickinson context, it appears the defendant and others believed the plaintiff was a repeat instigator of racial tensions and that the video represented the most egregious example in a series of offenses. Much of the original petition indicated the defendant’s view that the plaintiff repeatedly expressed thoughts and opinions that Dickinson should not tolerate.
In the original petition, the reference to Title IX was merely incidental. The petition’s core message was that the plaintiff should be expelled because the defendant believed he was a bigot and because she did not feel safe with him on campus. The petition did not, elsewhere, label the plaintiff as racist or misogynist. In fact, the defendant stated that her concern for safety stemmed not from gender but from her status as a Jewish student.
The Bankruptcy Judge’s opinion is labeled “Virtual Judge’s Ruling,” which appears to refer to a judge who participates remotely rather than a literal virtual judiciary.
Justin Philip Fasano (McNamee Hosea, P.A.) appears on the behalf of Whibley.
