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Last week, the Kansas Court of Appeals handed down its decision in , affirming a district court ruling reversing the expulsion of a student for purely off-campus conduct, namely, tweets about another student. The court’s decision was based on narrow grounds, thus avoiding lurking questions regarding free speech and the scope of Title IX. But it may have set the stage for those unanswered issues to become front and center the next time similar facts arise.

The case dealt with the expulsion of University of Kansas (KU) student Navid Yeasin, whom the university found guilty of sexually harassing his ex-girlfriend, also a KU student, in violation of KU’s student code of conduct. The evidence supporting the expulsion included an off-campus encounter between the then-couple over a summer break and a number of vulgar, mean-spirited tweets Yeasin authored about his ex.

The district court reversed the expulsion, ruling that KU presented no evidence that the alleged conduct code violation took place on campus or at a university-sponsored event, and that the code, as written, did not apply to off-campus conduct.

On appeal, KU did not contest that all of Yeasin’s conduct and speech occurred off campus. Instead, it disagreed with the district court’s interpretation of the conduct code, reading it to allow punishment of off-campus conduct where required to do so by state or federal law. In order to comply with the federal anti-discrimination law Title IX, KU argued that it was required to extend disciplinary jurisdiction to off-campus misconduct. As evidence, KU pointed to the 2011 “” (DCL), guidance issued by the Department of Education’s Office for Civil Rights (OCR), which states in relevant part:

If a student files a complaint with the school, regardless of where the conduct occurred, the school must process the complaint in accordance with its established procedures. Because students often experience the continuing effects of off-campus sexual harassment in the educational setting, schools should consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus.

In an interesting development that I discussed here on The Torch back in June, Kansas State University (KSU) weighed in on the case, filing an amicus curiae brief opposing KU’s view of its Title IX duties. It argued that Title IX requires institutions to address only the conduct over which they actually exercise control. The DCL, KSU argued, simply asks schools to evaluate the on-campus impact of off-campus conduct. KU’s expansive interpretation of its jurisdiction, according to KSU, is “absurd and illogical” and would turn universities into “de facto police departments with worldwide jurisdiction.”

FIRE and the Student Press Law Center also filed a joint amici curiae brief before the Court of Appeals, raising the significant First Amendment concerns involved in punishing Yeasin for his speech on social media, particularly where that speech occurred off-campus. Among other points, we argued that public universities cannot constitutionally infringe on a student’s First Amendment rights in the name of compliance with Title IX obligations. We also noted the increasing and dismaying national trend of schools like KU using their sexual harassment policies as a basis to punish protected speech, signalling to students and professors that their thoughts and opinions are not safe in any venue, whether on campus, off campus, in class, or on social media.

In its September 25 opinion, the Court of Appeals affirmed the district court’s decision, agreeing that the conduct code did not extend disciplinary jurisdiction to off-campus misconduct. Because the code did not give KU the authority to punish Yeasin’s conduct and tweets, his expulsion was invalid.

As the court noted, its interpretation of the code made it unnecessary to answer the questions raised about the scope of Title IX jurisdiction or Yeasin’s First Amendment rights. However, the court did hint at how the panel would have ruled had it reached the issue. Specifically, the court gave its view on the proper interpretation of the DCL, echoing KSU’s concern that KU’s interpretation would turn universities into 24/7 police departments:   

Note the letter does not direct the school to take action off-campus. Instead, the letter clearly advises that the school must take steps to prevent or eliminate a sexually hostile environment. 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. [Emphasis added.]

We may see before very long whether KU changes its position on its Title IX duties in the wake of this hint from the Yeasin panel. In November 2014 (shortly after the district court’s ruling), KU to explicitly extend its disciplinary jurisdiction off campus. The current jurisdictional statement reads as follows:

The University may institute disciplinary proceedings when the alleged violation(s) occurs on University premises or at University sponsored or supervised events or as otherwise required by federal, state, or local law. For purposes of clarification, with respect to federal law this means and includes violations of the University’s nondiscrimination and sexual harassment policies, regardless of the location of the conduct.

In other words, the student conduct code does in fact now give KU the authority to bring disciplinary proceedings based on off-campus conduct.

That brings us back to the arguments and questions raised by the parties and amici this time around: Does KU still believe it has to punish off-campus conduct when no discrimination occurs on campus? Does it believe that enforcement of its sexual harassment policy trumps student First Amendment rights? We will keep watching KU and institutions across the country, as we wait to find out.