Where does a public university’s authority to regulate what students say on social media during off-campus personal time begin and end?
Nobody is certain, says a U.S. district judge — and that uncertainty is enough to spare campus disciplinarians from paying money damages for expelling a student for what he posted on Twitter, even if the decision was mistaken.
In a ruling handed down Thursday, U.S. District Judge Julie A. Robinson threw out constitutional claims brought by a University of Kansas student, Navid Yeasin, who was expelled in November 2013 because he posted insulting and profane remarks about an unnamed ex-girlfriend on his personal Twitter account.
The former girlfriend, a KU classmate, obtained a no-contact order after a frightening confrontation in which Yeasin took away her phone and refused to let her out of his moving car. After the university ordered Yeasin to stay away from the woman, he posted a series of comments on Twitter about dating a “psycho” and a “crazy bitch” that were perceived as being about her. When the classmate learned of the Twitter posts and reported them to KU, the university expelled Yeasin for violating the stay-away order.
Yeasin sued, alleging that the university overstepped the First Amendment by punishing speech that was not threatening or otherwise constitutionally unprotected. The university responded that — even when speech takes place off campus — students’ constitutional rights are diminished in the educational setting, where institutions have a legal duty to maintain an environment free from harassment.
In her Dec. 1 ruling, the judge refused to afford Yeasin the full benefit of “real world” First Amendment rights, which would have required the university to overcome a heavy presumption that any content-based punishment was unconstitutional.
Rather, the judge found that colleges have authority over student speech comparable to that recognized in the K-12 school setting in the Supreme Court’s benchmark Tinker case, which permits punishment for speech that substantially disrupts school or invades the rights of others.
But that is as deep into the constitutional analysis as Judge Robinson was prepared to wade.
Regardless of whether Yeasin’s remarks were constitutionally protected — and whether the context of off-campus posts to a personal social media account made a decisive difference in the college’s level of authority — the judge said Yeasin could receive no remedy, because government officials have immunity for the consequences of their decisions if the constitutionality of the decision is unclear. (This legal doctrine, “qualified immunity,” allows government employees to, in effect, guess wrong on the legality of their behavior if the behavior is not clearly unlawful at the time.)
The judge wrote:
The law in this area is constantly developing, and when Plaintiff was expelled in 2013, it was even more unclear what standards applied. This case can hardly be categorized as a clear case of a content-based restriction in violation of the First Amendment. Most importantly, circuit courts have come to conflicting conclusions on whether a school can regulate off-campus, online student speech where such speech could foreseeably cause a material disruption to the administration of the school.
Courts everywhere continue struggling to determine where educational institutions’ authority over their students’ social-media lives begins and ends. A depleted U.S. Supreme Court declined an opportunity to take up the issue earlier this year, and most lower-court rulings have involved K-12 students engaging in speech perceived as imminently threatening violence.
Just last month, a federal appeals court in Minnesota — in a ruling repeatedly cited in the Yeasin opinion — decided that a community college did not violate the Constitution by kicking out a nursing student for angry remarks on his Facebook timeline that a classmate reported as insulting.
This is the second time — in two parallel lawsuits — that a court has declined to address the core issue of whether the First Amendment permits a public university to discipline a college student for posts on off-campus social media that, outside of the college setting, would be constitutionally protected against government sanction.
In a September 2015 ruling, a Kansas appellate court overturned Yeasin’s expulsion, finding that the university’s disciplinary rules applied on their face only to misbehavior on campus property or at campus events. Because the rules did not give KU the authority to regulate students’ personal behavior during their off-hours, making the expulsion unlawful, the court found it unnecessary to decide whether the expulsion was also unconstitutional.
The state-court case was a direct challenge to the expulsion itself, while the federal case decided Thursday was about whether Yeasin can receive money damages from a KU vice provost, Tammara Durham, for the delay in his educational progress and other harms.
While the Supreme Court has given courts license to resort to this easy-way-out approach to avoid difficult constitutional questions by skipping directly to the immunity decision, as Judge Robinson did, the Yeasin case exemplifies the detriments of taking that off-ramp.
Qualified immunity applies where the caselaw is unsettled. The only way to settle a legal issue is to, you know, actually decide it. Postponing a decision on the merits means that the next generation of Navid Yeasins will be stuck with the same “law-is-unclear” outcome a year — or a decade — from now.
Moreover, assuming Yeasin takes the case to the Tenth Circuit U.S. Court of Appeals, it will travel without the benefit of the searching factual inquiry that can most effectively be done at the trial court. Even a favorable resolution for Yeasin could be no more than a remand with directions to decide the constitutional question on its merits, setting back resolution of the case by (at the current pace of appellate rulings) at least 18 months. In a citizen-versus-government civil-rights case, delay always favors the government — and disadvantages not just Yeasin, but everyone else who would benefit from clear judicial guidance on a recurring free-speech issue.