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The three judges on the Kansas Court of Appeals flagged from the start of a decision issued Friday that they didn't approve of the content of a series of tweets by Navid Yeasin, whom the University of Kansas expelled in part on the basis of those remarks about his ex-girlfriend. The tweets were "puerile and sexually harassing," the judges wrote.
But the judges went on to say that doesn't matter. The university never demonstrated that Yeasin made the comments on Twitter while on campus or in connection with any university activity, and the university's student conduct code thus doesn't cover the tweets, the court found.
The case has been closely watched beyond Kansas because of two issues -- only one of which was addressed in Friday's ruling, and that one only in part. That issue is the university's claim that it is required not only by its student conduct code but by Title IX of the Education Amendments of 1972 to punish offensive remarks made by one student to another on Twitter if they create a hostile environment for the second student. The appeals court rejected that argument although it did so largely on the way the university created its code of conduct and punished Yeasin.
The other issue was whether Twitter posts are automatically protected by the First Amendment as free speech. While briefs by the American Civil Liberties Union and others argued that this protection does exist, the appeals court did not address that issue.
At a time when administrators on many campuses are being pressed by some students to punish other students for comments made on Twitter, Yik Yak or other social media sites, the Kansas case may demonstrate how legally difficult that may be.
The Kansas dispute stems from an incident that led to the end of a tumultuous relationship between Yeasin and a female student who is identified only as W in the decision. During the summer of 2013 they had a fight when Yeasin took W to see her therapist and he read Facebook messages on her phone that angered him. When she returned, they argued and, for some time, he refused to let her out of the car or to return her phone. Yeasin was charged with criminal restraint, battery and criminal deprivation of property and entered into a diversion agreement to deal with the charges.
When the next academic year started, W filed a complaint with university authorities, who ordered Yeasin not to contact W. The order banned him "from initiating, or contributing through third parties, to any physical, verbal, electronic or written communication" with W.
Yeasin continued, however, to post on Twitter about her. While he didn't name W, people who knew she was his ex could figure out that he was talking about her. One tweet, for example, said, "Jesus Navid, how is it that you always end up dating the psycho bitches? #butreallyguys." Several other comments on Twitter (some more vulgar than the one quoted in the previous sentence) referenced breast implants. W, who has a rib cage deformity, has breast implants.
The university warned Yeasin not to tweet about W, and raised the possibility of expelling him,some tweaks here. dl but he continued to do so. He at one point denied that some tweets with the hashtag "#crazybitch" were about W, but he admitted the hashtags "#crazyassex" and "#psycho" were about her. Eventually he was expelled. A lower court found that the university lacked the authority to do so, but stayed the ruling until the appeals court ruled.
The appeals court's focus was on the language in the student conduct code. (The code has since been revised in various ways, but the ruling is based on the code as it existed at the time it was used to expel Yeasin.)
The code said this on where it could not be applied: "The university may not institute disciplinary proceedings unless the alleged violation(s) giving rise to the disciplinary action occurs on university premises or at university-sponsored or -supervised events, or as otherwise required by federal, state or local law."
The decision notes other places in the university conduct code that reiterate that it applies to conduct on campus or at university events. And when the judges turned to analyzing the way Yeasin was punished, this created a problem, they wrote.
"Faced with a serious complaint of sexual harassment involving two students, the university took prompt action. It investigated the circumstances, separated as best it could the antagonists and removed the cause of the conflict through expulsion. 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. There is no proof in the record that Yeasin posted the tweets while he was on campus."
Anticipating this analysis, the university argued that it was covered by the reference to being required to follow federal law.
But the Kansas court rejected this argument. The appeals court agreed that the Education Department has warned colleges that they are required to consider whether activity off campus can create a hostile environment for a student on campus, and take action to prevent such an environment. But the court notes that Yeasin was expelled under provisions of the student code that did not reference federal law, but under provisions that covered only conduct on campus. Further, the court notes that noncampus authorities have the right to take action against Yeasin for anything he does off campus that is illegal.
"It seems obvious that the only environment the university can control is on campus or at university-sponsored or -supervised events. After all, the university is not an agency of law enforcement but is rather an institution of learning," the decision said.
Based on the student code language, the decision said, there was no need to address broader questions about Title IX obligations or First Amendment protections.
The university did not respond to a request for comment.
Follow me on Twitter at @ScottJaschik.
