By Peter Hancock at Lawrence Journal-World
TOPEKA — The Kansas Court of Appeals ruled Friday that Kansas University cannot expel a student for misconduct that occurs off campus, and it ordered Navid Yeasin to be reinstated as a student.
But the three-judge panel declined to answer one of the larger questions in the case: whether tweets and other forms of social media communication are forms of free speech protected by the U.S. and state constitutions.
Instead, the three-judge panel based its ruling on KU’s own Student Code, which generally applies only to conduct that occurs on campus or at university-sponsored events.
“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,” Judge Stephen Hill wrote for the panel. “There is no proof in the record that Yeasin posted the tweets while he was on campus.”
Joining Hill in the decision were Judges Henry Green and Timothy Lahey, a Sedgwick County judge who was assigned to the case.
Yeasin was expelled in 2013 after posting a series of derogatory tweets about his former girlfriend.
The university had previously issued a no-contact order prohibiting him from having “any physical, verbal, electronic, or written communication with (the victim), her family, her friends or her associates,” either directly or indirectly.
The case has drawn national attention because it comes at the same time universities are facing increasing pressure to deal with sexual harassment and assault against students.
KU is one of more than 70 universities currently under investigation by the U.S. Department of Education for possible violations of federal law over the handling of sexual violence and harassment complaints.
But the case also raised questions about free speech and the extent to which universities can restrict what students say or write through social media.
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 the case.
KU had argued that it was required to extend the code to off-campus behavior to comply with Title IX of the federal Civil Rights Act, which prohibits discrimination based on sex, including sexual harassment, at educational institutions that receive federal funds.
As evidence, KU referred to a “Dear Colleague” letter that the U.S. Department of Education sent to several universities in 2011 advising them that off-campus conduct can affect the campus environment and that “schools should consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus.”
But the court rejected that argument, pointing out that Kansas State University had filed a friend of the court brief arguing that Title IX does not require schools to sanction students for off-campus behavior.
“It seems obvious that the only environment the University can control is on campus or at University sponsored or supervised events,” the panel wrote. “After all, the University is not an agency of law enforcement but is rather an institution of learning.”
ACLU attorney Doug Bonney said he understood KU’s concerns about Title IX compliance, but said he believes the university was addressing the issue the wrong way.
“To police stuff that doesn’t have any connection with the university is a waste of resources,” he said. “And to police speech — no matter how (offensive) that speech is — is a waste of resources. KU needs to focus on real sexual assault on campus.”
KU has not yet said whether it plans to appeal the decision to the Kansas Supreme Court.