Expulsion for Off-Campus Offense Hits Speed Bump

October 7, 2015

By Bob Unruh at WND

Just as Congress has begun taking an interest in how universities handle sexual-assault charges, a state court in Kansas has ruled that schools are not law-enforcement agencies, and if an offense takes place off-campus, it stays off-campus.

WND reported Rep. Jared Polis, D-Colo., declared at a congressional hearing that colleges should expel students even if they are only suspected of misbehaving.

“If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people,” he said during the hearing. “It certainly seems reasonable that a school for its own purposes might want to use a preponderance of evidence standard, or even a lower standard.

Now, the Kansas Court of Appeals has issued a ruling that curbs the authority of universities in the state.

“It seems obvious that the only environment the university can control is on campus or at university sponsored or supervised events,” the judges wrote. “After all, the university is not an agency of law enforcement but is rather an institution of learning.”

The decision came in the case of a student, Navid Yeasin, who, according to the court, subjected his former girlfriend to “deplorable treatment.”

Included were shouting matches, an episode in which he refused to let her out of his car and obscene social media postings, the opinion explained.

The Johnson County prosecutor brought a successful case against Yeasin. Then the university expelled him for the same.

But the court said the incidents all happened off-campus, and the university didn’t have the authority to regulate behavior everywhere it might occur.

“[The law] specifically directs that the only nonacademic misconduct subject to disciplinary action or expulsion is misconduct that occurs on campus or at a university sponsored event,” the court’s ruling said.

The court said the university “erroneously interpreted the student code as giving it jurisdiction to discipline Yeasin for off-campus conduct and does not dispute that Yeasin’s conduct giving rise to his expulsion did not occur on campus or at university sponsored events.”

The Foundation for Individual Rights in Education noted the decision was on narrow grounds, so it did not directly address the related question of free speech or whether the federal Title IX demands on-campus prosecution.

“But it may have set the stage for those unanswered issues to become front and center the next time similar facts arise,” said the organization, which defends free speech on campuses.

The organization noted that the federal Department of Education’s Office for Civil Rights did give instructions: “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.”

But a court brief from another party explained schools only must “evaluate the on-campus impact of off-campus conduct.”

FIRE said it had filed a brief, along with the Student Press Law Center, arguing “public universities cannot constitutionally infringe on a student’s First Amendment rights in the name of compliance with Title IX obligations.”

“We also noted the increasing and dismaying national trend of schools like KU using their sexual harassment policies as a basis to punish protected speech, signaling to students and professors that their thoughts and opinions are not safe in any venue, whether on campus, off campus, in class, or on social media.”

WND reported colleges and universities in recent years have paid out $36 million in lawsuits for improperly handling sexual-assault accusations.

A surge in lawsuits by men wrongly accused of and punished for claims of sexual assault on campus came immediately after the 2011 change in the Department of Education’s sexual assault policy to a “preponderance of evidence” standard.

The controversial federal mandate also required all allegations of sexual assault to be heard by campus disciplinary panel.

In addition, the policy removed a number of due-process protections.

It was a result of an effort by the Obama administration to crack down on campus sexual assaults by lowering the standard of evidence needed by university and college panels to convict suspects, but the policy change has provoked a backlash as accused students fight back with lawsuits.

Instead of “beyond a reasonable doubt,” as practiced in criminal courts, the new standard of “preponderance of evidence” means it’s more likely than not that an assault occurred.

While only four lawsuits were filed against universities in response to their handling of allegations from 2008 to 2010, between 2012 and 2014 there were 18 cases, representing a four-fold increase, according to a report by Stop Abusive and Violent Environments that is touted as the “most comprehensive listing of campus sex lawsuits ever.”

“Nearly all charge the university failed to comply with fundamental due process requirements in adjudicating the claim,” the organization said.

WND reported the claims are expensive.

According to EduRisk, a university insurance company, the average loss for accused students exceeds $183,000 per claim. In one case against Brown University, the school agreed to a $1 million settlement for a student who charged he had been wrongfully expelled.

One case handled by a tribunal at Gonzaga University in Spokane, Washington, was cited for criticism.

There, an elementary-education student had an intimate relationship with a fellow student. The woman later told a classmate she was sexually assaulted. A school office assistant overheard the claim and reported it.

The state launched an investigation, during which the woman refused to make a statement. Consequently, a Gonzaga dean decided not to sign a moral character affidavit for the plaintiff’s teaching certificate.

Throughout the case, the suspect had not been informed of the investigation, and a jury awarded him $1.1 million, a decision affirmed by the state Supreme Court.

WND columnist Thomas Sowell asserted Obama’s Justice Department is encouraging the denial of constitutional protections on campuses.

“There seem to be a dangerously large number of people who think that the law exists to give them whatever they want – even when that means denying other people the same rights that they claim for themselves,” he wrote. “Nowhere is this self-centered attitude more common than on college campuses. And nowhere are such attitudes more encouraged than by the Obama administration’s Justice Department, which is threatening colleges that don’t handle rape issues the politically correct way – that is, by presuming the accused to be guilty and not letting constitutional safeguards get in the way.”

Schools: Brown University Gonzaga University