Yeasin v. University of Kansas, No. 113,098 (Kan. Ct. App. Sept. 25, 2015)
Abstract: The Kansas Court of Appeals has ruled that a state university lacked the authority to expel a student for a series of sexually harassing off-campus tweets because pursuant to the student code of conduct the university can discipline students only for conduct that occurs on campus or at university sponsored or supervised events. The appellate court agreed with the trial level (district) court in holding that the university had failed to present any evidence that the conduct forming the basis for the alleged student code violation occurred on campus or at a university sponsored event.
The appellate court rejected the university’s attempt to extend the reach of the student code to off-campus conduct based on the obligations imposed on the university under Title IX of the federal Civil Rights Act. It found that federal agency guidance on the subject of student-on-student sexual harassment “does not direct the school to take action off-campus.” Instead, it “… clearly advises that the school must take steps to prevent or eliminate a sexually hostile environment,” which leads to the conclusion “that the only environment the University can control is on campus or at University sponsored or supervised events.”
Navid Yeasin was a student at the University of Kansas. He had a girfriend, identified as W, who he met in the fall semester of 2012. They dated from November 2012 through May 2013. Their relationship was turbulent.
In late June 2013, Yeasin drove W. to see her therapist. While she was at her therapy session, Yeasin stayed in the car and read text and Facebook messages on W.’s cell phone. When W. returned, Yeasin angrily confronted her about some messages she had sent to another man. The argument continued as they drove around Olathe. W. told Yeasin she did not want to spend the day with him and asked him to take her back to her car. Yeasin became angry again but agreed.
Once at W.’s car, Yeasin took W.’s phone, locked the car doors, and then drove away with W. Yeasin told W. that he was going to make her pay for what she had done. W. repeatedly asked Yeasin to let her out of the car, and he refused. Yeasin also refused to return W.’s phone and physically prevented her from taking her phone back. When W. told Yeasin that she was scared and to take her home, Yeasin responded, “‘[N]o, not until you pay the consequences for what you’ve done and make sure you’ll never do this again.'” Sometime between 5 p.m. and 6 p.m., Yeasin took W. back to the parking lot where her car was parked. W. left when a friend picked her up in the parking lot at around 10 p.m. Yeasin called W. around at 1 a.m. threatening her, and at one point told her he “would make it so that [W.] wouldn’t be welcome at any of the universities in Kansas.”
W. reported this confrontation to the police. The State charged Yeasin with criminal restraint, battery, and criminal deprivation of property. Yeasin subsequently entered into a diversion agreement with the State on the criminal charges in August 2013. In a companion case, the Johnson County District Court issued a final order of protection from abuse directing Yeasin to have no contact with W. for 1 year
Back on campus in August 2013, W. filed a complaint with the Office of Institutional Opportunity and Access. Generally known by the acronym IOA, it is the office responsible for investigating complaints of discrimination and harassment at the University.
On August 8, 2013, an IOA investigator, Jennifer Brooks, interviewed W. regarding her complaint. The IOA opened an investigation. That same day, Yeasin tweeted, “On the brightside you won’t have mutated kids. #goodriddens.” About a week later, IOA Investigator Steve Steinhilber interviewed Yeasin regarding the complaint. Steinhilber advised Yeasin of his rights and responsibilities during the investigation.
After considering the Johnson County District Court’s final protection from abuse order, the IOA decided to issue a no-contact order because Yeasin had engaged in abusive and threatening behavior that made W. afraid to be on campus and continued to post tweets regarding W., which were creating further distress and fear. Specifically, the no-contact order warned Yeasin of possible expulsion.
Navid Yeasin continued to post sexually harassing tweets after the no-contact order had been imposed by the University
IOA subsequently completed its investigation and issued a report to Tammara Durham, Vice Provost of Student Affairs. The report recommended that disciplinary action should be taken against Yeasin. The IOA report concluded that “while some of the conduct in this case occurred off campus this past summer,” the preponderance of the evidence nevertheless showed that Yeasin’s conduct had affected the on-campus environment for W., thus violating the university’s sexual harassment policy.
After receiving the IOA report, the Director of Student Conduct & Community Standards, Nicholas Kehrwald, set a formal hearing and gave notice to Yeasin. Pointing to the IOA’s findings, Kehrwald repeated the allegations against Yeasin and specified that Yeasin’s conduct violated Article 22.A.1 of the Student Code, the University’s sexual harassment policy, and the no-contact order. Kehrwald complained that Yeasin’s conduct off campus was having an effect on campus:
At the student conduct hearing, the hearing panel told Yeasin that the charges against him were for violating Article 22.A.1 of the Student Code and the University’s sexual harassment policy. The hearing panel then reviewed the written documents from the case file and then heard from W., IOA Executive Director McQueeney, IOA Investigators Steinhilber and Brooks, and Yeasin.
The hearing panel found that Yeasin more likely than not had violated both Article 22.A.1 and the University’s sexual harassment policy. In the panel’s view, Yeasin’s behavior threatened the physical health, welfare, and safety of W. Specifically, the panel focused on Yeasin’s off-campus actions: “Yeasin physically restrained [W.] in his car, yelled at her for hours and demonstrated hostile, controlling and unstable behavior, making [W.] afraid for her safety. [W.] repeatedly expressed during the time she was restrained in the car, ‘I am scared. I am scared for my safety. [. . .] I do not feel safe.'”
In concluding that Yeasin violated the University’s sexual harassment policy, the hearing panel found “the behavior of Yeasin is unwelcome, based upon sex or sex stereotypes, and are so severe, pervasive and objectively offensive that they have the purpose or effect of substantially interfering with [W.’s] academic performance or participation in the University’s programs and activities.”
After reviewing the complaint, the evidence presented at the formal hearing, and the hearing panel’s sanction recommendations, Vice Provost Durham agreed with the hearing panel. The University expelled Yeasin and banned him from campus for violating Article 22.A.1 and the University’s sexual harassment policy.
Yeasin appealed his expulsion to the University Judicial Board. The Board denied him any relief. With this denial, Yeasin had exhausted his administrative remedies. He then sought judicial review of the University’s actions.
The district court found that the Student Code, as written, did not apply to off-campus conduct. Specifically, Article 22 of the Student Code stated that the misconduct in question must occur on campus or at University sponsored events. The language relied upon by the University from Article 20—”or as otherwise required by federal, state or local law”—was ambiguous as to providing notice of what conduct was subject to disciplinary action.
The Court found that Article 18, in contrast, provided specific notice of when the University might initiate proceedings for conduct violating federal, state, or local law and that such conduct must occur on campus. Next, given its finding that the University erroneously interpreted the Student Code by applying it to off-campus conduct, the district court found that the University’s decision that Yeasin violated Article 22 was not supported by substantial evidence because it failed to establish that Yeasin’s conduct occurred on campus or at a university sponsored event.
The district court ordered that the University readmit Yeasin, reimburse or credit Yeasin for the fall 2013 semester tuition and fees that he paid, and pay the transcript fees. However, the court issued a stay order at the University’s request.
Ruling/Rationale: The Kansas intermediate appellate court affirmed the district court’s decision and lifted the stay order. It began its analysis pointing out that the university’s student code and sexual harassment policy were controlling with regard to the issues raised by the case. It reviewed the pertinent provisions of the student code, i.e., Article 2.A, Article 2.C, Article 18, Article 20 and Article 22. The court also reiterated the university’s sexual harassment policy.
Stressing that the university took prompt, decisive action to investigate and resolve the conflict by expulsion, the appellate court, nonetheless, concluded that the university acted improperly because “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.” It pointed out that the university had consistently relied on Article 22 of the student code throughout the disciplinary process until reaching the appellate court.
According to the appellate court, the university was now attempting to extract a discreet phrase from Article 20 of the code to argue that the university did have the authority to expel Yeasin for his 2013 summer break conduct. Specifically, it found that the university was contending “that the district court should have interpreted the phrase ‘or as otherwise required by federal, state or local law’ found in Article 20 to mean that the University’s jurisdiction to discipline a student for violating Article 22.A. extended to a student’s off-campus conduct.” It pointed to the lynchpin of the university’s argument that its “interpretation of Article 20 is consistent with the obligations imposed on it under Title IX.”
Citing the U.S. Department of Education Office for Civil Rights April 2011 “Dear Colleague Letter” (DCL), the university pointed out that the DCL “specifically warned that if the recipient to Title IX funds relies on student disciplinary procedures for Title IX compliance, it should have its Title IX coordinator review the recipient’s disciplinary procedures to ensure that the procedures comply with the requirements of Title IX and then the recipient should ‘implement changes as needed.’”
The appellate court conceded that the university’s fear of OCR reprimands resulting from Title IX violations, including the loss of federal funding, had some merit and that one of the examples in the DCL dealt with the effect of off-campus conduct on the campus environment. Nevertheless, it noted the DCL “does not direct the school to take action off-campus.” It stated: “It seems obvious that the only environment the University can control is on campus or at University sponsored or supervised events.”
According to the appellate court, “The University believes that to comply with Title IX requirements it must, and did, extend its jurisdiction to disciplining its students for off-campus misconduct.” It found that to resolve this issue it was not necessary to “address whether Title IX requires a recipient to Title IX funds to discipline off-campus conduct.” The court said, “Instead, the extent that a Title IX recipient believes it exerts jurisdiction over student conduct to comply with its Title IX obligations must be reflected in the language chosen for its student disciplinary procedures or separate procedures to resolve such complaints.”
The appellate court concluded that in order to find “that the University’s jurisdiction to discipline students extended to off-campus misconduct, we must find that power clearly arises from the express framework of the Student Code and not because we simply accept that the authority should be there based on the University’s own interpretation of Title IX.” After reviewing the language in Article 18, Article 20 and Article 22 of the student code, it found that “the University cannot reconcile its interpretation of the language in Article 20 with the language in Article 18 or Article 22.”
Noting that “a student’s conduct in violation of the University’s published sexual harassment policy falls under Article 22,” the appellate court pointed out that Article 22 expressly limits the university to taking disciplinary action, including expulsion, for nonacademic student misconduct that occurs on campus or at a university sponsored event. It stated:
Because Article 18 and Article 22 both concern alleged violations of student conduct the University seeks to discipline, and they contain more specific language directing that the University’s authority only extends to on-campus or at University sponsored events than the general provision in Article 20 that gives no indication as to where the misconduct must occur, the more specific statutes control.
Having concluded that the district court ruled correctly, the appellate court declined to address “the issues of whether Title IX permits the University to extend its jurisdiction to discipline student conduct occurring off campus and whether Yeasin’s tweets were protected speech under the First Amendment to the United States Constitution.”
Yeasin v. University of Kansas, No. 113,098 (Kan. Ct. App. Sept. 25, 2015)
[Editor’s Note: In the September 24, 2015 online edition of Politico, Caitlin Emma reported that Sen. Lamar Alexander (R-TN) grilled U.S. Department of Education (ED) Deputy Assistant Secretary Amy McIntosh during a U.S. Senate Committee on Homeland Security & Governmental Affairs’ Subcommittee on Regulatory Affairs and Federal Management hearing about claims made by ED’s Office for Civil Rights Assistant Secretary Catherine Lhamon that colleges are required to follow federal Title IX guidance during a Senate Committee on Health, Education, Labor and Pensions (HELP) hearing in June 2014. “As she knows and as I know, Title IX is the binding law that applies,” admitted Amy McIntosh, the department’s deputy assistant secretary delegated duties of assistant secretary. “Guidance under Title IX is not binding guidance — it helps the many people who are subject to Title IX understand what they need to do to comply with the law.”
Pressing the point that there is no federal bullying law, Alexander said, “It’s not up to the Office of [sic] Civil Rights to make a law when the federal law doesn’t say anything about bullying and the United States Congress is still debating it.” McIntosh responded that ED did not make any new bullying law or requirements. “Well, [Lhamon] says her edicts are binding and she issued a guidance on bullying and to me that’s not appropriate,” Alexander retorted.
In K-12 off-campus online speech cases, federal courts have relied on the Tinker as controlling precedent. For example, in May 2015 Legal Clips summarized a decision by a federal district court in Oregon in Burge v. Colton Sch. Dist. holding that a school district violated a student’s First Amendment free speech rights by disciplining him for off-campus online speech. The court found that the school district was not justified in suspending the student because his online comments did not cause substantial interference to school operations as required under Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).]