In a recent decision, the U.S. Court of Appeals for the Tenth Circuit held that expelling a student for his off-campus tweets did not violate clearly established law under the First Amendment. The court’s flawed analysis unduly shields colleges from the consequences of violating students’ speech rights.
At the center of the case lies University of Kansas student Navid Yeasin, who was expelled in part for tweeting about his ex-girlfriend. Yeasin got his expulsion overturned in state court with help from an amici curiae (friend-of-the-court) brief by FIRE and the Student Press Law Center, in which we argued that the First Amendment forbids public colleges from invoking Title IX to punish students for their off-campus social media comments. Yeasin then sued a KU administrator under 42 U.S.C. § 1983 for expelling him in violation of his First Amendment right to free speech.
After losing at the district court level, Yeasin appeal to the Tenth Circuit, which upheld the lower court’s dismissal of his claims. The court ratified the administrator’s defense of qualified immunity — a legal doctrine shielding government officials from liability unless the plaintiff proves: 1) the official violated his statutory or constitutional rights, and 2) that right was clearly established at the time of the violation.
The decision hinged on the second prong, which required the court to determine whether the KU administrator violated clearly established law by expelling Yeasin for his off-campus tweets. The court began by discussing several Supreme Court cases ruling that the First Amendment applies in full force at state universities. Since these decisions involved different circumstances than Yeasin’s case — mostly because they were decided decades before Twitter existed — the court reasoned that the law here is undecided, holding that “[a]t the intersection of university speech and social media, First Amendment doctrine is unsettled.” Thus, the KU administrator was protected by qualified immunity.
By effectively requiring Yeasin to present a previously decided case with a fact pattern virtually identical to his own, the court disregards binding Supreme Court precedent on qualified immunity. In a law review article by my colleague Azhar Majeed, he explains why state college officials should seldom, if ever, be protected by qualified immunity when they violate students’ First Amendment rights:
The Supreme Court has cautioned that, with respect to what constitutes clearly established law, it is not necessary that the very action in question [has] previously been held unlawful . . . . In addition, even if there is no closely analogous case law, a right can be clearly established on the basis of common sense. (Internal citations and quotations omitted.)
The article discusses how the Supreme Court instructs lower courts to deny qualified immunity when “[t]he contours of the right . . . [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” It cites case after case rejecting the approach of the Tenth Circuit here, where courts have pierced qualified immunity and held administrators liable. By requiring Yeasin to prove that a court had ruled on a case substantially similar to his own, the court misconstrues the appropriate standard to the detriment of Yeasin’s valid claim.
Not only is the court’s logic faulty — it’s completely backward. Older cases, while factually dissimilar, establish the longevity of the right’s existence, making it easier for plaintiffs to prove that any reasonable officials should have known the law. This is especially pertinent when it comes to First Amendment rights at state colleges, which the Supreme Court has consistently affirmed for decades. The Tenth Circuit’s inapposite approach is apparent from the wealth of precedent denying qualified immunity to repressive college officials.
The Tenth Circuit’s distorted analysis allows administrators to violate students’ free speech rights with impunity. Instead of properly denying qualified immunity to “the plainly incompetent or those who knowingly violate the law,” the court paves the way for more college administrators to escape liability for flagrant First Amendment transgressions.
FIRE will keep readers apprised of any further developments on this case. In the meantime, we will continue to work to ensure that administrators are held accountable for violating the rights of students and professors.