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Decision in Tweeting Case Leaves Students None the Wiser About Online Speech Rights

By December 12, 2016

Earlier this month, a federal district court dismissed the constitutional claims of Navid Yeasin, who was expelled from the University of Kansas (KU) in 2013 based in part on Twitter comments about his ex-girlfriend. The disappointing decision raises concerns and perpetuates uncertainty over a public college or university’s ability to punish students for off-campus online speech.

Yeasin was expelled from KU after his ex-girlfriend filed a sexual harassment complaint against him in fall 2013. Her complaint was based on a disturbing incident the previous summer that ended the relationship, during which Yeasin refused to let the woman out of his moving car. KU issued a no-contact order while it investigated her complaint, prohibiting Yeasin from contacting the complainant directly or through anyone else.

During the investigation, Yeasin posted a number of crude and insulting comments about the complainant to Twitter without naming her directly. Although he had blocked her from viewing his Twitter feed, she complained about the comments to KU after learning of them from friends. KU sent Yeasin an email stating that it interpreted the no-contact order to include social media posts about the complainant, even if directed at third parties. Yeasin sent several more Tweets about his ex after receiving the email.

After an investigation and hearing, KU expelled Yeasin, finding that he had sexually harassed the complainant and violated the no-contact order. Yeasin appealed the decision through the university, without success, and ultimately to state court. His expulsion was reversed by the county district court, reasoning that KU erroneously applied its student code of conduct to off-campus conduct. The decision was upheld by the Kansas Court of Appeals, which did not reach Yeasin’s argument that KU’s actions violated his First Amendment rights.

In this latest federal case before U.S. District Judge Julie A. Robinson, Yeasin brought claims for damages against KU’s Vice Provost for Student Affairs Tammara Durham, alleging a violation of his First Amendment and substantive due process rights. In a December 1 decision, Judge Robinson dismissed both claims.

Several aspects of the federal court’s decision are deeply concerning for college students’ online speech rights. Judge Robinson ruled that Durham was entitled to immunity for the decision to expel Yeasin based in part on his social media posts. Government actors are entitled to immunity from civil liability for their decisions if their conduct does not violate clearly established law of which a reasonable person would be aware, a legal concept known as “qualified immunity.” Despite decades-old precedent from the U.S. Supreme Court holding that college students enjoy the full protection of the First Amendment even on campus, Judge Robinson ruled that the law is unsettled, and was even more so when Yeasin was expelled in 2013, as to a university’s authority to regulate student off-campus online speech.

The first problem is that a ruling on qualified immunity grounds helps ensure that the law will remain unsettled regarding college students’ right to speak freely on social media. As Frank LoMonte of the Student Press Law Center (SPLC) recently wrote about the ruling:

This is the second timein two parallel lawsuitsthat a court has declined to address the core issue of whether the First Amendment permits a public university to discipline a college student for posts on off-campus social media that, outside of the college setting, would be constitutionally protected against government sanction.

While the Supreme Court has given courts license to resort to this easy-way-out approach to avoid difficult constitutional questions by skipping directly to the immunity decision, as Judge Robinson did, the Yeasin case exemplifies the detriments of taking that off-ramp.

Qualified immunity applies where the case law is unsettled. The only way to settle a legal issue is to, you know, actually decide it. Postponing a decision on the merits means that the next generation of Navid Yeasins will be stuck with the same “law-is-unclear” outcome a yearor a decadefrom now.

A second problem is why the court found the law to be unsettled. Despite the fact that the Supreme Court has long held, “[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large,” Healy v. James, 408 U.S. 169, 180 (1972), Judge Robinson found the law unclear as to whether college students enjoy less-than-full First Amendment protections. Citing predominantly to cases in the K-12 setting, she reasoned that, “circuit courts have come to conflicting conclusions on whether a school can regulate off-campus, online student speech where such speech could foreseeably cause a material disruption to the administration of the school.”

As FIRE and the SPLC argued in an amicus brief to the Kansas Court of Appeals in Yeasin’s parallel state proceedings, limitations permitted on student speech in the K-12 context should not be applied in similar fashion to college students. Many of the policy reasons to allow such limitations in the context of compulsory attendance by minors in an educational environment simply do not apply to a setting predominantly made up of adult students attending voluntarily.

Circuit courts have certainly struggled over recent years with the question of when K-12 students’ online speech has a sufficient impact on the school environment to fall within the less-than-full First Amendment protection minor students enjoy while in school. However, a university should perform a traditional First Amendment analysis when considering if it may regulate the online speech of adult students. For example, is the speech an unprotected true threat against the campus? Or does the university have an interest sufficient to justify a particular regulation of speech?

Judge Robinson’s focus on K-12 standards as the relevant body of law in her qualified immunity analysis is disappointing and imposes an unnecessary uncertainty regarding college student online speech rights.

FIRE will continue to follow and report back if Yeasin’s case is appealed.

Schools: University of Kansas