The University of Kansas is pushing back against a court ruling that determined the institution incorrectly expelled a student for posting derogatory tweets about his ex-girlfriend. While the university said its legal obligation to keep students safe from harassment extends to social media, the court found the institution's student conduct policy, as written, did not give it the authority to do so.
Court documents show the university last fall expelled Navid Yeasin, a petroleum engineering major, after he violated the terms of a university no-contact and anti-retaliation order. Yeasin and his ex-girlfriend returned to campus following a summer during which he was charged with battery, criminal restraint and criminal deprivation of property after an argument. The ex-girlfriend obtained a restraining order that banned Yeasin from contacting her.
Once back on campus, Yeasin received another no-contact order, this one from the university’s office of institutional opportunity and access. The order prohibited him from “initiating ... any physical, verbal, electronic or written communication,” whether directly or indirectly. In the following days, however, Yeasin posted a number of tweets referencing his ex.
“If I could only say one thing to you it would probably be ‘Go fuck yourself you piece of shit.’ #butseriouslygofuckyourself #crazyassex,” Yeasin tweeted on Aug. 23. His account now appears to have been deleted.
The tweets continued even after the office warned Yeasin that he was violating the no-contact order, and after a hearing in November, the university expelled him. After an unsuccessful appeal, Yeasin took the case to court.
Yeasin sued the university for limiting his First Amendment rights and for incorrectly interpreting the Code of Student Rights and Responsibilities. The code states the university can punish students for their actions “[w]hile on University premises or at University sponsored or supervised events, or as required by city, state, or federal law.”
In a September ruling, U.S. District Judge Robert W. Fairchild agreed with Yeasin on the second point. While he acknowledged Yeasin’s conduct was “reprehensible,” Fairchild said the university failed to establish that his conduct occurred while on campus or at a university-sponsored event -- especially because Yeasin lived off campus.
“No matter how reprehensible the university may find [Yeasin’s] conduct to be, the university must follow its own rules and regulations in order to impose sanctions,” Fairchild wrote in the ruling, which did not get into the First Amendment issue.
This is not the first time social media has been at the center of a campus conflict at Kansas. Also last fall, the university placed a tenured professor on indefinite leave after a controversial tweet about the Washington, D.C., Navy Yard massacre. Since then the Kansas Board of Regents has pushed for stricter social media guidelines for faculty and staff.
The university has filed a motion to reconsider the case against Yeasin, describing him in its response to the lawsuit as a “boorish, sexually harassing cad,” and it is insisting that the federal government has granted it the responsibility to punish online harassment.
“Title IX [of the Education Amendments of 1972], a federal law, requires the university to address student misconduct that creates a hostile educational environment,” Sara L. Trower, associate general counsel, said in an email. “Mr. Yeasin’s conduct created a hostile educational environment for his victim. The university, consistent with its disciplinary authority under the Student Code, disciplined Mr. Yeasin.”
The university believed it had already taken the appropriate steps to be able to deal with such a case. The student code is reviewed every other year by the Student Senate, according to a university spokeswoman, and in 2011, just before the U.S. Education Department’s Office of Civil Rights sent out a “Dear Colleague” letter about sexual harassment, the university made several tweaks to the code’s language.
It added a reference to “city, state or federal law,” a provision “specifically rewritten to authorize the university to take disciplinary action for off-campus conduct,” Trower said.
It also expanded the scope of offenses against persons with the phrase “including but not limited to physical or electronic contact," which Marlesa A. Roney, vice provost for student success, in a letter to provost Jeff Vitter, explained was in response to “the rise in cyber bullying.”
“This case is not about tweeting, but ongoing sexual harassment and retaliation perpetrated by Mr. Yeasin against the young woman he had criminally battered and unlawfully restrained,” Trower said in the email. “Twitter was simply the instrument Mr. Yeasin chose to continue to perpetrate the harassment and retaliation against his victim on returning to the university in fall 2013. In so doing, he created a hostile educational environment for his victim at KU.”
Matt Gregory, president of the Association for Student Conduct Administration, said the case presents an interesting example in the midst of a national conversation on sexual assault.
“In light of the reauthorization of [the Violence Against Women Act] and the national dialogue surrounding coercive sexual behavior on campus, also of importance are the expectations of universities to effectively address the effects of a potentially hostile environment,” Gregory said in an email. “In short, harassment may occur in a variety of ways to include verbal acts. The acts must be ‘sufficiently severe, pervasive, or persistent so as to interfere with or limit a student's ability to participate in or benefit from the services, activities, or opportunities offered by a school’ to constitute discriminatory harassment.
“There appears to be an expectation of OCR for universities to swiftly remedy the existence of a hostile environment, retaliation, and/or discriminatory harassment,” Gregory added.
Yeasin’s lawyer, Terence E. Leibold, has described the university’s response to the lawsuit -- and in particular the name-calling -- as a “smokescreen behind which it can hide its blatant violations of the Constitution, the law and its own procedures.”
“As part of the government, KU must respect the rule of law and its own policies and procedures and follow them to the letter,” Leibold wrote. “KU’s total lack of regard for its own policies and procedures and even for state law and the Constitution is simply inexcusable.”
Leibold has also asked the court to award Yeasin the money he paid in tuition last fall. The case is awaiting further action.