October 07, 2015
Higher Education Alert
Colleges and universities must evaluate carefully whether and to what extent that they should address off-campus conduct as part of their Title IX compliance. A recent decision by the Kansas Court of Appeals held that a university lacked jurisdictional support in its code provisions to expel a student for his sexually harassing social media postings directed at another student. This alert analyzes the ruling and its message that institutions must define clearly the boundaries of their investigative and disciplinary processes.
Vexing issues often arise regarding the extent to which a college or university must investigate and address reports of off-campus sexual harassment and violence. Such issues were at the forefront of judicial proceedings challenging the University of Kansas’ expulsion of a male student for posting sexually harassing tweets clearly directed at another student who was his former girlfriend. Recently, the Kansas Court of Appeals affirmed a trial court’s ruling that the University of Kansas wrongfully expelled the male student under Student Code provisions that applied only to conduct occurring on campus or at a university sponsored event. Navid Yeasin v. University of Kansas, No. 113,098, 2015 Kan. App. Lexis 64 (Sept. 25, 2015).
Navid Yeasin and a female student referenced as “W.” met at the University and dated periodically during the 2012–13 academic year. Over the summer break, Yeasin provoked a violent, off-campus altercation with W., resulting in criminal charges against him and a judicial no-contact order to stay away from W. for one year. Concerned about her safety upon returning to campus for the 2013–14 academic year, W. filed a complaint against Yeasin with the University’s Office of Institutional Opportunity and Access (“IOA”), which is responsible for investigating complaints of discrimination and harassment.
The IOA commenced a prompt investigation and ordered Yeasin to have no contact with W. During the IOA’s investigation, Yeasin posted lewd and vulgar tweets on his Twitter account apparently demeaning W. without mentioning her by name. The University warned Yeasin that its no-contact order covered any direct or indirect reference to W. on social media. Undeterred, Yeasin continued to post puerile and sexually harassing tweets. The IOA’s report concluded that “‘while some of the conduct in this case occurred off-campus this past summer,’ the preponderance of the evidence nevertheless showed that Yeasin’s conduct had affected the on-campus environment for W., thus violating the University’s sexual harassment policy.” The IOA found that Yeasin knowingly and purposefully violated the University’s no-contact order by continually harassing W. on social media.
The disciplinary process against Yeasin proceeded under Article 22 of the Student Conduct Code, governing nonacademic student misconduct “while on University premises or at University sponsored or supervised events.” The disciplinary hearing evidence focused on both the summer altercation and Yeasin’s harassing tweets. The hearing panel issued a recommendation that Yeasin be expelled permanently and banned from the campus until W. graduated, which the Vice Provost accepted. The University Judicial Board denied Yeasin’s appeal of the expulsion ruling.
Yeasin sued the University in Kansas state court to challenge his expulsion. A district court judge concluded that the University erroneously applied its Student Code. Specifically, there was insufficient evidence showing that Yeasin’s conduct occurred on campus or at a university sponsored event, even though his actions impacted W. on campus. The judge ordered the University to readmit Yeasin, but stayed the result pending the University’s appeal. The appeal garnered significant attention leading to the filing of amicus (friend of the court) briefs by the ACLU Foundation of Kansas, the Foundation for Individual Rights in Education, the Student Law Center and Kansas State University.
Before the Kansas Court of Appeals, the University acknowledged that it conducted its investigation and disciplinary process under its Student Code, “instead of some separate grievance procedures to resolve Title IX complaints regarding sexual harassment grievances.” This fact was dispositive to the appellate court because Article 22 of the Student Code did not expressly reach off-campus conduct. To justify its actions, the University cited to a provision elsewhere in the Student Code with general language that it may conduct a disciplinary process as “required by federal, state or local law.” The court of appeals still found no support for the University’s actions, concluding that the specific jurisdictional scope authorized under Article 22 controlled over this more generalized language.
Beyond the court of appeals’ strict focus on the wording of the Student Code, the most interesting aspect of its ruling concerns its analysis of the Office for Civil Rights’ Dear Colleague Letter dated April 4, 2011. The court of appeals acknowledged the Dear Colleague Letter’s guidance that a school may have a Title IX obligation to respond to student-on-student harassment that initially occurred off school grounds and has a continuing effect on the educational setting on campus. Nonetheless, the court concluded that the Dear Colleague Letter does not direct the school to take action off-campus, stating that it “seems obvious that the only environment that 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 higher learning.”
The court of appeals applied a narrow prism in its ruling. Specifically, it declined to address whether Title IX permits the University to extend its jurisdiction to discipline student conduct occurring off campus or whether Yeasin’s tweets were protected speech rights under the First Amendment to the United States Constitution. Instead, the court held that to the extent that the University regulates student conduct, its policies must expressly define the school’s disciplinary reach. Although the University believed that its disciplinary actions against Yeasin complied with its Title IX obligations, it lacked properly stated jurisdictional support under its Student Code to expel him.
Colleges and universities should define expressly and clearly the intended jurisdictional scope of their investigative and disciplinary processes. In fact, the University of Kansas revised its Student Code after the district court’s ruling, but the court of appeals addressed the expulsion decision based upon the provisions in effect when it was made. As part of the evaluative process to ensure Title IX compliance, schools should not lose sight of the potential impacts and relationship dynamics that can arise from students’ use of social media, which, of course, has no precise jurisdictional boundaries. Code provisions should be written and implemented to empower a school to be able to investigate and respond to scenarios where one student’s repeated sexually harassing posts adversely impact another student’s educational environment or reach the level of retaliation against the student for filing a complaint.
Also, in our continuing review of lawsuits filed nationally, we have seen an evolving dichotomy in how federal and state courts adjudicate claims challenging disciplinary proceedings. In federal court lawsuits filed under Title IX, the predominant focus concerns whether the student has shown that gender bias motivated the allegedly erroneous result. Federal courts have been reluctant to second-guess disciplinary procedures in Title IX lawsuits, especially where a student fails to prove gender discrimination and relies upon a subjective disagreement with the school’s disciplinary action. As in the University of Kansas case, state courts have shown a greater willingness to reverse disciplinary actions when applying state law claims such as breach of contract or misrepresentation. While each lawsuit will be fact-specific, claims pled under state law theories may pose greater evidentiary challenges than Title IX claims in a school’s defense of its investigative and disciplinary processes.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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