By Mara Rose Williams at Kansas City Star
Kansas’ two biggest universities find themselves in opposite camps in a possibly pivotal case that pits the limits of free speech against educators’ efforts to protect students from sexual harassment.
It holds national implications and tests how far a school can, or must, go in order to police off-campus conduct and the virtual world of social media.
The case, set to play out Tuesday in oral arguments before the state Court of Appeals in Topeka, could determine whether colleges end up in the business of policing students’ Twitter accounts and the like.
Its precedent-setting potential has grabbed the attention of First Amendment watchdogs such as the Foundation for Individual Rights in Education Inc., the Student Press Law Center and the American Civil Liberties Union.
All three, along with Kansas State University, have filed friend-of-the-court briefs opposing the University of Kansas. KU is appealing a lower court’s ruling against the school for expelling a student over off-campus tweets.
“It is an early case and potentially influential for other court cases that might follow,” said Frank LoMonte, executive director of the Student Press Law Center.
Neither KU nor K-State attorneys would comment on the case beyond briefs they already had filed. But officials in Lawrence argue they are following federal law that says they’re obligated to protect students from harassment. In Manhattan, administrators argue that a school’s reach is largely limited to campus.
The case stems from an incident during the summer of 2013. Two KU students – a boyfriend and girlfriend – got into an argument in a vehicle driven by the boyfriend, Navid Yeasin. At the time, he was a petroleum engineering student.
Court documents in Johnson County, where the incident occurred, say the girlfriend accused Yeasin of holding her in the car against her will, refusing to return her cellphone and striking her during a struggle over the phone. Yeasin was charged with criminal restraint, deprivation of property and battery. He pleaded no contest and was found guilty.
When the woman, who would not comment for this story, returned to school in Lawrence that fall, she reported the incident to KU, alleging that her ex-boyfriend sexually harassed her.
KU officials launched a Title IX investigation. Title IX is the federal law focused on gender equity in education that protects students against sexual discrimination, harassment and violence.
The university issued a no-contact order prohibiting Yeasin from making any direct or indirect physical, verbal, electronic or written communication with his ex-girlfriend.
Yeasin, who lived off campus, then posted several derogatory tweets from his phone about his ex-girlfriend, according to court records, but did not name her. The ex-girlfriend had been blocked from his Twitter account but somehow saw the tweets.
KU found that Yeasin had violated the no-contact order and expelled him.
Yeasin appealed the expulsion. A Douglas County District Court judge ruled in his favor last year, saying the university’s student conduct policy did not give it authority to discipline the student for his off-campus behavior.
“No matter how reprehensible the university may find (Yeasin’s) conduct to be,” Judge Robert W. Fairchild wrote, “the university must follow its own rules and regulations in order to impose sanctions.”
The judge said the expulsion should be set aside.
Yeasin, who has been out of school for nearly two years now, has not been reinstated as a student. KU is the only university in the state offering the petroleum engineering program he was enrolled in.
The university appealed Fairchild’s decision. It said that wording in its student conduct policy requires it to follow state and federal regulations. It also contended that the U.S. Department of Education’s explanation of Title IX demands that a university consider a student’s off-campus behavior when making decisions on sexual abuse and harassment complaints.
“The U.S. Office for Civil Rights instructs universities that they must investigate allegations of sexual violence regardless of where the incidents occur and must take action to remediate the on-campus effects of such violence,” KU spokeswoman Erinn Barcomb-Peterson said in an email. “In this case, KU acted consistent with that direction and took appropriate action to address Mr. Yeasin’s conduct and to protect his victim from further violence and retaliation by him.”
The Department of Education’s Office for Civil Rights would not comment on the KU case. But officials at the agency pointed to a Title IX “guidance document” that says, “Even if the misconduct did not occur in the context of an education program or activity, a school must consider the effects of the off-campus misconduct when evaluating whether there is a hostile environment on campus.”
Title IX fears
Officials with the American Association of State Colleges and Universities commended KU for seeking to fully comply with Title IX regulations. Yet they said they worry that as it did so, “due process may have been trampled,” said Barmak Nassirian, the association’s director of policy analysis.
Nassirian said he faulted the environment the Office for Civil Rights has created around Title IX: “No one wants to end up on that list” of schools under investigation for possible Title IX violations.
“There certainly has been a persistent concern in the higher-education community with how to balance due process regulation of American law with some of the demands made on behalf of Title IX,” Nassirian said. “We concede that institutions have significant responsibility, particularly with issues of sexual violence. … But saying it has an obligation to take on police power outside its jurisdiction is problematic.
“To do so in a way that may violate fundamental American rights is doubly alarming.”
Advocates for free speech are keeping a close watch on the case.
“We filed a brief to tell the court that if their ruling is not very tightly drawn, it could loop in a lot of other speech,” said LoMonte of the Student Press Law Center. “A college’s punitive authority over online speech is narrowly limited.”
In the past two years, LoMonte said, colleges have seen only a few cases involving the use of social media and the question of free speech. More have cropped up in secondary schools. A 15-year-old Minnesota student won a $70,000 settlement from her school district last year after she was forced to give school officials her Facebook account information. A district in California and one in Alabama came under fire after school faculty began monitoring or purging students’ posts on social media.
This isn’t KU’s first free-speech dispute involving social media. Two years ago, KU placed associate journalism professor David W. Guth on indefinite administrative leave for tweeting about the 2013 Navy Yard shootings in Washington: “blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters.” Guth returned to teaching at KU in the 2014-15 academic year.
LoMonte expects the current Kansas case to fire up discussions on college campuses across the country.
“Our concern is not so much whether Mr. Yeasin does or does not get expelled, but what we are against is the wholesale censorship of student speech off campus,” LoMonte said.
K-State maintains in its brief that “Title IX does not require schools to take responsibility for instances of off-campus sex discrimination (including sexual violence or sexual harassment) unless the school has substantial control over the context in which the alleged conduct occurs.”
And the Foundation for Individual Rights in Education fears “that we are seeing a pattern of universities giving broad interpretation to sexual harassment policy that indirectly punishes free speech and chills others from engaging in free speech,” said spokeswoman Marieke Tuthill Beck-Coon.
“Our argument is that the university didn’t have authority to have that kind of power over off-campus speech,” Tuthill Beck-Coon said.
Yeasin, now 22, said he had hoped the case would have long been over by now and that he would be back at KU finishing his degree. He was expelled his junior year. Had he not been, he might have graduated last May.
“I recognized that what I did was wrong. … But I think the general consensus is that the university extremely overextended its boundaries,” he said. “My tweets were private.”