from the the-things-to-like-about-this-case-do-not-include-the-plaintiff dept
The Appeals Court of Kansas has upheld a lower court's decision finding it beyond the reach of a university to expel a student for off-campus behavior.
Beneath this logical conclusion are some not-so-pretty facts. The origin of the lawsuit is a "bad breakup" that resulted in criminal charges for the former boyfriend, Navid Yeasin. (h/t That Anonymous Coward)
In Johnson County during the summer of 2013, an argument occurred between Yeasin and his now ex-girlfriend after he saw messages from another man on her phone. The two drove around arguing and she asked Yeasin to let her out, but he refused. He also refused to return her phone.What Yeasin did next did not play a role in this decision, which was ultimately decided on the merits (or lack thereof) of the University of Kansas' interpretation of its own policies. But it does say something about the reach of the school's no-contact order (the school added its own on top of the one handed down by the county court), which was certainly further than it should have been.
She complained to the Johnson County police. Court records show Yeasin was charged with criminal restraint, battery and criminal deprivation of property. To resolve this incident, Yeasin voluntarily entered a no-contact order, meaning he could not contact his ex-girlfriend.
“The Judge who entered the order ruled that it was entered by consent with no findings of abuse,” [attorney Terry] Leibold said. “In order to comply with the no-contact order, Navid removed the ex-girlfriend as a follower of his tweets. His Twitter account was private and could only be accessed by his followers.”Yeasin still used his Twitter account to make disparaging remarks about his ex-girlfriend (referred to simply as "W" throughout the proceedings). But he never directed messages towards her. He tweeted about her but never used her name. This didn't keep the tweets from being mostly despicable and they certainly were "decoded" by those familiar with both parties, but the university's no-contact order went far enough to make even this indirect non-communication a potential violation. From the ruling:
You are hereby informed that this 'no contact' order means that you understand you are prohibited from initiating, or contributing through third-parties, to any physical, verbal, electronic, or written communication with [W.], her family, her friends or her associates. This also includes a prohibition from interfering with her personal possessions. . . . Moreover, retaliation against persons who may pursue or participate in a University investigation, whether by you directly or by your associates, is a violation of University policy.On the same day the university opened its investigation into his off-campus actions, Yeasin tweeted:
On the brightside you won't have mutated kids. #goodriddensAfter being informed of the university's no-contact order, he tweeted:
Jesus Navid, how is it that you always end up dating the psycho bitches?' #butreallyguysOver the next few weeks, he tweeted the following:
Oh right, negative boob job. I remember her.These tweets were reported to the university. (No reports were made to law enforcement.) The university's Office of Institutional Opportunity and Access (IOA) sent Yeasin an email telling him that even though the tweets didn't mention W's name, they were still a violation of the no-contact order, which was expanded to cover even more potential communications.
If I could say one thing to you it would probably be "Go fuck yourself you piece of shit." #butseriouslygofuckyourself #crazyassex
Lol, she goes up to my friends and hugs them and then unfriends them on Facebook. #psycho #lolwhat
Brooks gave Yeasin a second warning that "[g]oing forward, if you make any reference regarding [W.], directly or indirectly, on any type of social media or other communication outlet, you will be immediately referred to the Student Conduct Officer for possible sanctions which may result in expulsion from the University."Seven hours later, Yeasin tweeted:
lol you're so obsessed with me you gotta creep on me using your friends accounts #crazybitchYeasin was summoned by the IOA, where he made conflicting statements about whether or not the tweets referred to W. He also made this concession:
Yeasin told McQueeney that he would not tweet anything that could be perceived as being directed at W. and he recognized doing so was a violation of both the protection order and the no-contact order.The university moved ahead with its investigation and decided Yeasin's tweets had violated the no-contact order and expelled him, along with banning him from the campus until W. had graduated.
Yeasin then sued the university for kicking him out over incidents that had occurred off-campus, including the original confrontation that had resulted in his arrest. The lower court found in favor of Yeasin.
[G]iven its finding that the University erroneously interpreted the Student Code by applying it to off-campus conduct, the district court found that the University's decision that Yeasin violated Article 22 was not supported by substantial evidence because it failed to establish that Yeasin's conduct occurred on campus or at a university-sponsored event.
The district court ordered that the University readmit Yeasin, reimburse or credit Yeasin for his fall 2013 semester tuition and fees that he paid, and pay the transcript fees. However, the court issued a stay order at the University's request.The appeals court agrees. It points out that the sections of the student code the university cited to support its expulsion of the student both contain wording that limits the university's discipline to actions taken on campus or during university-sponsored events.
Through every step of the disciplinary proceedings, the University relied on Article 22 of the Student Code as the basis for Yeasin's discipline. But, on appeal, the University cherry-picks a small phrase from Article 20 to argue that it did indeed have the authority to expel Yeasin for his actions in Johnson County during the summer and for his tweets in violation of the no-contact order.Following this conclusion, the appeals court affirms the lower court's decision and lifts the stay order. Because the case was limited to school policies, the question of whether Yeasin's speech was protected by the First Amendment (almost definitely) isn't addressed.
The University asks us to find that the district court should have interpreted the phrase "or as otherwise required by federal, state or local law" found in Article 20 to mean that the University's jurisdiction to discipline a student for violating Article 22.A. extended to a student's off-campus conduct.
If we construed Article 20 as the University wants, we must insert words to the effect "for conduct wherever committed." The phrase then becomes, "or as otherwise required by federal, state, or local law for conduct wherever committed." If that is what the drafters of the Student Code meant, the article could have been written in that fashion.
While it's hard to conjure up much enthusiasm for an abusive jerk being told he's right by the appeals court, the decision prevents the eruption of negative side effects. For one, Kansas universities will still have to limit their disciplinary efforts to incidents on school property or during school-sponsored events. No one should be in any hurry to allow educational institutions to extend their reach into the private lives (and homes) of their attendees.
On top of that, there's the nature of the tweets themselves. While undeniably unpleasant and misogynistic, they were never aimed directly at W. Also unaddressed by the court's decision is the breadth of the university's no-contact order, which basically forbade Yeasin from engaging in private disparagement of his ex-girlfriend.
From Yeasin's lawyer:
The tweets made their way back to the ex-girlfriend who told the IOA about the tweets claiming the tweets were in violation of the no-contact order issued by the IOA…The tweets were no different than if Yeasin had complained to his friends about his ex-girlfriend and whatever he said ultimately reached the ex-girlfriend.”The ruling here makes sense, even as it protects the unsavory actions and words of an apparently terrible person. But it is very much limited to the policies in place at the University of Kansas. The ruling notes that the school could claim jurisdiction over events occuring off-campus, but it apparently hadn't considered that angle until it was in the middle of a lawsuit. Expanding that reach may be the school's perogative, but any attempts it makes to control off-campus speech will only result in addtional lawsuits -- these ones predicated by the First Amendment.