Wednesday, January 10, 2018
10th Circuit Rejects First Amendment Challenge by Student Expelled for Social Media Comments after Sexual Misconduct
Yeasin v. Durham, 10th Cir., Jan. 5, 2018
Dr. Tammara Durham, the Vice Provost for Student Affairs at the University of Kansas, expelled Navid Yeasin from the university after finding that by physically restraining and later tweeting indirectly but disparagingly about his ex-girlfriend, he had violated the university's student code of conduct and sexual-harassment policy. After Yeasin sued Dr. Durham in Kansas state court, the university reinstated him. Yeasin then sued Dr. Durham in federal court, asserting a claim under 42 U.S.C. § 1983 based on his First Amendment right to freedom of speech and his Fourteenth Amendment right to substantive due process. He argued that Dr. Durham had violated these rights when she expelled him for his off-campus online speech. Dr. Durham successfully moved to dismiss Yeasin's complaint based on qualified immunity. Yeasin appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Yeasin and A.W. dated from the fall of 2012 through June 2013. On June 28, 2013, Yeasin physically restrained A.W. in his car, took her phone from her, threatened to commit suicide if she broke up with him, threatened to spread rumors about her, and threatened to make the University of Kansas's “campus environment so hostile, [that she] would not attend any university in the state of Kansas.” .
For this conduct, Kansas charged Yeasin with criminal restraint, battery, and criminal deprivation of property. On July 25, 2013, A.W. sought and obtained a protection order against Yeasin from the Johnson County District Court. The order was “entered by consent without any findings of abuse.” In August 2013, Yeasin entered a diversion agreement with the state on these charges. Yeasin v. Univ. of Kansas, 360 P.3d 423, 424 (Kan. Ct. App. 2015).
That same month, A.W. filed a complaint against Yeasin with the university's Office of Institutional Opportunity and Access (IOA), alleging that Yeasin had sexually harassed her.... Then, “[a]fter considering the Johnson County District Court's final protection from abuse order,” the IOA decided to issue Yeasin a no-contact order.
The no-contact order informed Yeasin that the university had “received information concerning an allegation that [he] may have violated the University's Sexual Harassment Policy in interactions with University of Kansas student [A.W.].” The letter also put Yeasin on notice that he was “prohibited from initiating, or contributing through third-parties, to any physical, verbal, electronic, or written communication with [A.W.], her family, her friends or her associates.”
After Yeasin received the no-contact order, he tweeted the following messages on August 15, August 23, and September 5 . . . . On September 6, 2013, Brooks e-mailed Yeasin the following warning: While your August 23rd tweet does not specifically state the name of your ex-girlfriend, this communication is in violation of the No Contact Order. I am writing to you to clarify that any reference made on social media regarding [A.W.], even if the communication is not sent to her or [does not] state her name specifically, it is a violation of the No Contact Order.
All told, Yeasin posted fourteen tweets referring to A.W. without specifically naming her; of these, three were posted after the IOA e-mailed Yeasin and told him to stop.
On October 7, 2013, the IOA issued an investigative report concluding that Yeasin had sexually harassed A.W. in violation of university policy by physically restraining her during the June 28, 2013 incident and by posting the fourteen tweets....
Dr. Durham said her decision was based on several facts supported by the preponderance of the evidence, such as the Johnson County protection order and A.W.'s hearing statement that “her grades had slipped significantly during the summer because of the emotional toll her interactions with Mr. Yeasin had taken on her.” Dr. Durham further relied on A.W.'s statement to the hearing panel that her relationship with Yeasin had “affected her day-to-day on-campus activities, since she [couldn't] enter public campus places without receiving glares and remarks from Yeasin's friends telling her she needs to leave and that her presence is unwanted.”
On these bases, Dr. Durham found that Yeasin's June 28, 2013 conduct and his tweets were “so severe, pervasive and objectively offensive that it interfered with [A.W.]'s academic performance and equal opportunity to participate in or benefit from University programs or activities.” She found that his tweets violated the sexual-harassment policy because they were “unwelcome comments about [A.W.]'s body.” And she found that his conduct “threatened the physical health, safety and welfare of [A.W.], making the conduct a violation of Article 22, A. 1 of the Code.”
As a result of his conduct, Dr. Durham decided to expel Yeasin from the university and ban him from campus.
Yeasin contested his expulsion in Kansas state court. The court set aside Yeasin's expulsion, reasoning that the hearing panel's findings, adopted by Dr. Durham, “were not supported by substantial evidence.” The court also determined that “KU and [Dr.] Durham erroneously interpreted the Student Code of Conduct by applying it to off-campus conduct.”
Yeasin's case presents interesting questions regarding the tension between some students' free-speech rights and other students' Title IX rights to receive an education absent sex discrimination in the form of sexual harassment. Department of Education Office for Civil Rights Dear Colleague Letter on Sexual Violence (OCR Sexual Violence DCL), April 4, 2011 (:Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX.”). But even if Yeasin could show that Dr. Durham violated his First Amendment rights, we conclude that he has failed to show a violation of clearly established law. We don't decide whether Yeasin had a First Amendment right to post his tweets without being disciplined by the university.