Out of Bounds: Title IX, Off-Campus Conduct, and Yeasin V. University of Kansas

LR-college-campus_med_rgbThe Kansas Court of Appeals’ decision in Yeasin v. University of Kansas, stands for the proposition that educational institutions must act with both precision and foresight when delineating their disciplinary authority. Of greater interest, Yeasin addresses, at least implicitly, the question of whether Title IX requires colleges and universities to address gender discrimination that occurs solely off school grounds. Although in its decision the appellate court asserted that it did not need to consider this issue, it essentially did.

The case arose from what the court termed the plaintiff, Navid Yeasin’s “reprehensible, demeaning, and criminal behavior” toward another student, identified only as “W.” In June 2013, having dated W. off and on, Yeasin reacted angrily to text and Facebook messages W. had sent another man. He took her phone and initially refused to let her out of his car or take her home, stating: “‘[N]ot until you pay the consequences for what you’ve done.’” After finally returning W. to her car, Yeasin called around 1:00 the following morning, “threatening her.”

Yeasin was charged with various offenses, the county court issued a protective order prohibiting him from contacting W. for one year, and when W. filed a complaint with the University in August 2013, the school investigated and then issued a “no-contact order because Yeasin had engaged in abusive and threatening behavior that made W. afraid to be on campus.” Despite these interventions, Yeasin authored a series of demeaning and profane tweets about W, which, according to the University, “knowingly and purposefully violated the no-contact order.” Although “‘some of the conduct in this case occurred off campus,’” the University concluded that it nonetheless violated the school’s sexual harassment policy because it affected W.’s on-campus environment. Consequently, it permanently expelled Yeasin and banned him from campus until W. graduated.

In adjudicating his subsequent lawsuit, the trial court held that the Student Code expressly limited the University’s disciplinary authority to misconduct that “occurs on University premises or University sponsored or supervised events,” and that the University had failed to establish that Yeasin’s conduct had occurred within those limited parameters. The court therefore vacated his expulsion and ordered his reinstatement as a student, an outcome the Kansas Court of Appeals subsequently affirmed.

The appellate court also rejected the University’s contention that the Student Code expanded the University’s disciplinary authority to the extent “otherwise required by federal, state, or local law,” and that Title IX required it to address off-campus conduct. To bolster its argument, the University cited a 2011 “Dear Colleague” letter from the United States Department of Education’s Office for Civil Rights [“OCR”], which provides in 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

The Kansas Court of Appeals, however, held that OCR’s 2011 “letter does not direct the school to take action off-campus.” Instead, the University’s charge under Title IX is to “take steps to prevent or eliminate a sexually hostile environment,” and that “the only environment the University can control is on campus or at a University sponsored or supervised events.” In other words, in the context of interpreting the University’s Student Code, the court essentially held that in order to implicate Title IX, the “sexually hostile” conduct itself – not just its consequences — must take place on campus or at a school-sponsored or supervised event.

So What Does It Mean?

The University’s argument that Title IX required it to address off-campus behavior is certainly not a perspective shared by its fellow universities. In fact, Kansas State filed an amicus brief, arguing that Title IX does not impose this obligation, a position that finds support in a broader consideration of OCR’s 2011 letter.

For example, immediately preceding the previously quoted passage, OCR wrote: “Schools may have an obligation to respond to student-on-student sexual harassment that initially occurred off school grounds.” The adverb “initially” certainly suggests the necessity of a subsequent, on-campus component to the misconduct. Similarly, directly following this passage, OCR provided a hypothetical that relegates off-campus misconduct to something that a school simply must take “into account” when determining whether subsequent, on-campus behavior constituted unlawful harassment.

In short, although under Title IX a school must factor off-campus behavior into its assessment of on-campus conduct, it would typically not be responsible for addressing actions that occur solely off campus.