Court of Appeals Rules that Kansas University Cannot Expel Accused Student for Off-Campus Sexual Misconduct

To what extent can an institution discipline a student for off-campus behavior directed at another student vis-à-vis the Internet? This issue was addressed in a recent case involving the University of Kansas (the “University”).

By way of brief background, the University of Kansas expelled a male student, Navid Yeasin (“Yeasin”), for sexually harassing his ex-girlfriend, “W” in violation of the Student Code and Sexual Harassment Policy (the “Code”), and for “reprehensible, demeaning and criminal behavior” that occurred off-campus. In June 2013, Yeasin allegedly drove “W” around with the doors locked, refusing to open the doors despite her demand to be released from the vehicle. Johnson County law enforcement officials charged Yeasin with criminal restraint, battery and criminal deprivation of property. “W” also filed a complaint with the University, and the University imposed a no-contact order, a directive ordering Yeasin not to contact W through any means including electronic or written communication. However, despite this no contact order, Yeasin allegedly continued to post vulgar and offensive statements on Twitter directed at “W”.

Yeasin was thereafter expelled from the University pursuant to a provision in the Code which allowed the University to expel students for misconduct that occurred “while on University premises or at University sponsored or supervised events.” The Code further allowed the University to immediately take action against any form of sexual harassment when the alleged conduct “occurs on University grounds or at University sponsored or supervised events, or as otherwise required by federal, state, or local law.” However, the Code, at that time, did not directly address off-campus behavior.

Following his expulsion, Yeasin challenged the University’s disciplinary determination. In the complaint, Yeasin alleged that the University violated his right to free speech since neither the car incident nor the tweeting incidents occurred on “University premises or at University sponsored or supervised events.” The American Civil Liberties Union of Kansas, the Student Press Law Center and the Foundation for Individual Rights in Education all filed “friend of the court” briefs in support of Yeasin’s First Amendment argument that his tweets constitute protected speech. Kansas State University also filed a “friend of the court” brief arguing that the University did not have an obligation to address the off-campus misconduct under Title IX.

The district court reversed the expulsion and ordered the University to readmit Yeasin. In doing so, the Court found that the University presented no evidence that the alleged Code misconduct occurred on campus or at a university-sponsored event, and that the Code, as written, did not apply to off-campus conduct. The University was also ordered to reimburse Yeasin’s costs for his “fall 2013 semester tuition and fees he paid, and pay the transcript fees.”

On appeal, the University did not dispute the fact that Yeasin’s actions took place off-campus. Instead, it took issue with the district court’s interpretation of the Code. As noted, the Code allows the University to address misconduct that “occurs on University grounds or at University sponsored or supervised events, or as otherwise required by federal, state, or local law." The University argued that it was required to address off-campus misconduct in order to comply with Title IX, a federal anti-discrimination law. In making this argument, the University cited the 2011 “Dear Colleague Letter” issued by the U.S. Department of Education’s Office of Civil Rights (OCR), which states in relevant part,

If a student files a complaint with the school, regardless of where the conduct occurred, the school must process the complaint in accordance with its established procedures. Because students often experience the continuing effects of off-campus sexual harassment in the educational setting, schools should consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus.

On the basis of this language, the University claimed that it was required to address Yeasin’s offensive tweets and actions because they created a hostile environment for “W”.

The Kansas Court of Appeals rejected this argument and affirmed the district court’s decision. However, the three-judge panel did not answer the question of whether Yeasin’s tweets constitute constitutionally protected free speech or whether Title IX permits institutions to address off-campus conduct. Instead, the Court of Appeals focused on the actual language set forth in the Code. Judge Stephen Hill wrote for the panel,

Faced with a serious complaint of sexual harassment involving two students, the university took prompt action. It investigated the circumstances, separated as best it could the antagonists and removed the cause of the conflict through expulsion. The trouble is, the Student Code did not give the University authority to act when the misconduct occurred somewhere other than its campus or at University sponsored or supervised events. There is no proof in the record that Yeasin posted the tweets while he was on campus.

In sum, because the Code did not discuss off-campus conduct or discipline for off-campus conduct, the school had “erroneously interpreted the student code as giving it jurisdiction to discipline Yeasin for off-campus conduct.”

The question still remains whether Title IX permits institutions to monitor and discipline for off-campus conduct and whether Yeasin’s tweets constitute protected speech under the First Amendment. In any event, in light of Yeasin, we urge both public and private colleges and universities to review and, if necessary, revise their policies and codes of conduct to ensure disciplinary jurisdiction boundaries are consistent with the institution’s disciplinary intentions. Institutions must also stay abreast to the ever-changing Title IX climate, as it has the ability to have practical as well as legal implications for all colleges and universities.

If you have any questions or concerns regarding employment or education-related issues, please contact James G. Ryan at jryan@cullenanddykman.com or at 516-357-3750.