In Friday’s Yeasin v. The University of Kansas, the Kansas Court of Appeals held that KU could not discipline a student (Yeasin) for conduct that otherwise violated its sexual harassment policy because the conduct occurred off-campus. The university expelled Yeasin for off-campus conduct that included a criminal domestic incident and a series of electronic communications, among them tweets, directed at another student. The university found the conduct was unwelcome, based on sex or sex stereotypes, and so severe, pervasive and objectively offensive that it interfered with the other student’s academic performance or ability to participate in KU’s educational programs or activities.
Examining the university’s sexual harassment and student discipline policies, the Yeasin court held that the policies by their own terms did not clearly extend KU’s disciplinary jurisdiction to off-campus conduct like Yeasin’s—as opposed to on-campus conduct or conduct at university-sponsored events.
For this reason, the Yeasin court did not reach the issues of
- Whether Title IX permits institutions to discipline for off-campus conduct and
- Whether Yeasin’s tweets were protected expression under the First Amendment
(despite amicus curiae briefs submitted by the American Civil Liberties Union Foundation of Kansas, the Foundation for Individual Rights in Education, Inc., and Student Press Law Center, and Kansas State University).
The U.S. Department of Education sends a clear message that schools have obligations when it comes to off-campus sexual misconduct—obligations tied to their Title IV, Federal Student Aid program participation. The Department’s April 2011 Dear Colleague Letter demands that schools process complaints of sexual harassment and sexual violence regardless of where alleged misconduct occurred. In its April 2014 Questions and Answers on Title IX and Sexual Violence, the Department clarifies that colleges and universities need to address complaints of alleged off-campus sexual violence. According to the Department, schools must assess such complaints to determine whether any misconduct has continuing effects in educational programs or activities; if so, the Department expects schools to address those effects as if the misconduct occurred on campus.
What this means to you
As the Yeasin court summarized, ”[T]he extent that a Title [IV] recipient believes it exerts jurisdiction over student conduct to comply with its Title IX obligations must be reflected in the language chosen for its student disciplinary procedures or separate procedures to resolve such complaints.” There is debate about whether Title IX does, in fact, permit or require institutions to discipline for off-campus sexual misconduct. Particularly in light of Yeasin, institutions of higher education should examine their sexual misconduct policies and procedures to ensure disciplinary jurisdictional boundaries align with the boundaries the institutions determine are appropriate for addressing sexual misconduct complaints.