University Cannot Discipline Student for Off-Campus Tweets

October 7, 2015 · by Venkat Balasubramani · in Content Regulation

photo credit: Shutterstock/Memo Angeles – “Internet Troll Using a Computer”

Yeasin was involved in a relationship with W while both were University of Kansas students. In June 2013, Yeasin drove W to see her therapist and while she was in the session, read (and became incensed by) Facebook messages W was exchanging with someone else. When she returned, he confronted her, locked the car doors and would not let her out or give her back her phone. He finally did so later that evening. He later called W and threatened her at one point telling her that

He would make it so that [W] wouldn’t be welcome at any of the universities in Kansas.

Yeasin was charged with criminal restraint, battery, and criminal deprivation of property. These charges were resolved via a diversion agreement with the state. Separately, W obtained a protection order directing Yeasin to have no contact with W for one year. W also filed a complaint with the University, and it opened an investigation. The same day, Yeasin tweeted:

On the Brightside you won’t have mutated kids. #goodriddens.

The University issued a no-contact order against Yeasin and warned Yeasin of possible expulsion for further violations. The order broadly prohibited him from communicating with W or her friends or associates, including through electronic means.

Subsequently, Yeasin made a series of disparaging tweets that seemed to be about W without using her name. For example, Yeasin tweeted:

Jesus Navid, how is it that you always end up dating the psycho bitches? #butreallyguys.

… [the next day:]

Oh right, negative boob job, I remember her.

… [the following week, on August 23]

If I could say one thing to you it would probably be “Go fuck yourself you piece of shit.” #butseriouslygofuckyourself @crazyassex

… [a few weeks later]

LOL, she goes up to my friends and hugs them and then unfriends them on Facebook. #psycho #lolwhat

The University claimed the August 23 tweet violated the no-contact order. It gave Yeasin a second chance and let him know that if he “ma[d]e any reference regarding [W] directly or indirectly, on any type of social media . . . [he would be] immediately referred to the Student Conduct Officer [and sanctions could include expulsion].” Following the warning, Yeasin tweeted again, apparently in reference to W:

Lol you’re so obsessed with me you gotta creep on me using your friends accounts #crazybitch

A week later, he tweeted a “30 reasons to love natural breasts” article from the “Total Frat Move” website.

The University scheduled a follow up interview with Yeasin. He said (as to one of the tweets) that “the twitter thing was a lapse on [his] part” but he denied posting about W after being warned about doing so. (He claimed the tweets from September 7th and 13th were not about W, despite admitting that he knew she had breast enhancement surgery and a spinal deformity).

The University concluded that some of the conduct occurred off-campus, but Yeasin’s conduct nevertheless affected the campus environment and violated its no-harassment policy. The University also found that Yeasin violated the no-contact order. The next step in the disciplinary process was a hearing on November 4, 2013. (Interestingly, Yeasin continued to tweet, with one tweet that appeared to obliquely reference W.)

The hearing panel found that Yeasin more likely than not violated a provision of the code of conduct which covers threats and physical safety, and also violated the University’s anti-harassment policy. After Yeasin sued, the district court set aside the disciplinary measures, and the Kansas appeals court affirmed.

The University code of conduct guarantees the right to free expression and also recognizes the right of a student to be free from harassment. The code also says that the university can hold a student accountable for possible violations of federal or state law but need not wait for the outcome of any prosecution. A specific prohibition from the code of conduct involves threats or physical violence effected against another person, and classifies this as an offense:

“[t]hreatens the physical health, welfare, or safety of another person, places another person in serious bodily harm, or uses physical force in a manner that endangers the health, welfare or safety of another person; or willfully, maliciously and repeatedly follows or attempts to make unwanted contact, including but not limited to physical or electronic contact, with another person. This prohibition includes, but is not limited to, acts of sexual assault.”

Finally, a section under the heading of “privacy” says that:

“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.” [emphasis added]

The court interprets the code of conduct to only authorize discipline for acts taken on university premises or university-sponsored events. The university argued that the inclusion of “or as otherwise required by federal, state or local law” broadened the reach of the code of conduct. The court (applying principles of statutory interpretation) disagrees.

This is another in a series of disputes involving social media and no-contact orders, which also raised the question of whether talking about someone is the same as talking to them. (See, e.g., Chan v. Ellis and US v. Cassidy.) The court dodged the First Amendment question of whether the university could discipline Yeasin on the basis that his conduct constituted harassment. Outside the school context, I think it would have a tough, uphill battle, but one open question is whether its obligations under Title IX alter the analysis. (Interestingly, Kansas State University submitted an amicus brief on behalf of Yeasin, arguing that Title IX does not require universities to police off-campus conduct.)

The case highlights the tricky position universities are in. On the one hand, they face liability for not taking action against speech or conduct that has an adverse effect on a student (such as W’s) educational opportunities. On the other hand, they also face risk of claims from students they discipline. As this case illustrates, navigating between these two risks can be tricky. Although I have not checked, I assume the university has since modified its policy to broadly authorize discipline for both on and off-campus conduct, but this could be open to a First Amendment challenge.

(It’s also worth mentioning that W could have brought civil claims against Yeasin, among other things for false imprisonment and invasion of privacy. Since the court only mentions W seeking a no-contact order, it’s likely she did not pursue these claims.)

Yeasin v. University of Kansas, No. 113,098 (Kansas Ct. App. Sept. 25, 2015) [pdf]

Other coverage: State Court Says University Can’t Punish Student For Off-Campus Tweets

Teacher Who Blogged Pseudonymously About Students Being “Rat-Like” or “Dunderheads” Loses Appeal

School District Wrongly Disciplined Student for a Two Word Tweet

First Amendment Bars School Discipline For Student’s Rap Video About School Coaches

When Is It Appropriate For Teachers To Call Students “Rat-Like” or “Dunderheads” in a Pseudonymous Blog? Never.

Two Student Threat Cases Illustrate Gross Disparity in Treatment of Student Speech

Ill-Advised Student YouTube Video Leads to Conviction For Misusing Computerized Communication System–In re Kaleb K.

Organizing an “Internet Safety” Presentation? Don’t Troll Through Students’ Facebook Accounts Looking for Bikini Photos

University May Be Liable for Improper Access to Student’s Facebook Photos – Rodriguez v. Widener Univ.

Crass and Offensive Tweets by Student May not Justify Suspension — Rosario v. Clark County School Dist.

Misguided Catfishing Scheme Leads to Discipline of College Students — Zimmerman v. Ball State