360 P.3d 423 (Kan.App. 2015), 113,098, Yeasin v. University of Kansas
|Citation:||360 P.3d 423, 51 Kan.App.2d 939|
|Opinion Judge:||Hill, J.|
|Party Name:||NAVID YEASIN, Appellee, v. UNIVERSITY OF KANSAS, Appellant|
|Attorney:||Sara L. Trower, associate general counsel and special assistant attorney general, for appellant. Terence E. Leibold, of Petefish, Immel, Heeb & Hird, LLP, of Lawrence, for appellee. Stephen Douglas Bonney, for amicus curiae ACLU Foundation of Kansas. Don Saxton, for amici curiae Student Press Law...|
|Judge Panel:||Before GREEN, P.J., HILL, J., and TIMOTHY G. LAHEY, District Judge, assigned.|
|Case Date:||September 25, 2015|
|Court:||Court of Appeals of Kansas|
Appeal from Douglas District Court; ROBERT W. FAIRCHILD, judge.
BY THE COURT
1. Parties in an agency action before the district court under the Kansas Judicial Review Act may appeal the district court's decision to the appellate courts, just as parties do in other civil cases. An appellate court then exercises the same statutorily limited review as though the petition for review had been directly filed in the appellate court.
2. Appellate courts no longer apply the doctrine of operative construction or extend deference to an agency's or board's statutory interpretation.
3. An appellate court exercises unlimited review on questions of statutory interpretation without deference to a university's interpretation of its student code.
During the summer break of 2013, Navid Yeasin engaged in reprehensible, demeaning, and criminal behavior with W., who is also a University of Kansas student. In addition, Yeasin posted a series of puerile and sexually harassing tweets on his account. None of this conduct occurred on campus or at a University [51 Kan.App.2d 940] sponsored or supervised event. The Student Code, the rules by which the University can impose discipline upon its students, deals only with conduct on campus or at University sponsored or supervised events. We therefore hold that the University had no authority to expel Yeasin. We affirm the district court's similar ruling and dissolve the stay order issued in this case.
The dating relationship of two students deteriorates.
Yeasin and W. met during the fall semester of 2012 when both students were enrolled in the same geology class at the University of Kansas. They dated off and on from November 2012 through May 2013. Their relationship was turbulent.
In late June 2013, Yeasin drove W. to see her therapist. While she was at her therapy session, Yeasin stayed in the car and read text and Facebook messages on W.'s phone. When W. returned, Yeasin angrily confronted W. about some messages she had sent to another man. The argument continued as they drove around Olathe. W. told Yeasin she did not want to spend the day with him and to take her back to her car. Yeasin became angry again but agreed.
Once at W.'s car, Yeasin took W.'s phone, locked the car doors, and then drove away with W. Yeasin told W. that he was going to make her pay for what she had done. W. repeatedly asked Yeasin to let her out of the car, and he refused. Yeasin also refused to return W.'s phone and physically prevented her from taking her phone back. When W. told Yeasin that she was scared and to take her home, Yeasin responded, " '[N]o, not until you pay the consequences for what you've done and make sure you'll never do this again.'" Sometime between 5 p.m. and 6 p.m., Yeasin took W. back to the parking lot where her car was parked. W. left when a friend picked her up in the parking lot around 10 p.m. Yeasin called W. around 1 a.m. threatening her, and at one point told her he " would make it so that [W.] wouldn't be welcome at any of the universities in Kansas."
W. reported this confrontation to the police. The State charged Yeasin with criminal restraint, battery, and criminal deprivation of property. Yeasin subsequently entered into a diversion agreement [51 Kan.App.2d 941] with the State on the criminal charges in August 2013. In a companion case, the Johnson County District Court issued a final order of protection from abuse directing Yeasin to have no contact with W. for 1 year.
Yeasin's victim complains to the University authorities.
Back on campus in August 2013, W. filed a complaint with the Office of Institutional Opportunity and Access. Generally known by the acronym IOA, it is the office responsible for investigating complaints of discrimination and harassment at the University.
On August 8, 2013, an IOA investigator, Jennifer Brooks, interviewed W. regarding her complaint. The IOA opened an investigation. That same day, Yeasin tweeted, " On the brightside you won't have mutated kids.
After considering the Johnson County District Court's final protection from abuse order, the IOA decided to issue a no-contact order because Yeasin had engaged in abusive and threatening behavior that made W. afraid to be on campus and continued to post tweets regarding W., which were creating further distress and fear. Specifically, the no-contact order warned Yeasin of possible expulsion:
" You are hereby informed that this 'no contact' order means that you understand you are prohibited from initiating, or contributing through third-parties, to any physical, verbal, electronic, or written communication with [W.], her family, her friends or her associates. This also includes a prohibition from interfering with her personal possessions. . . . Moreover, retaliation against persons who may pursue or participate in a University investigation, whether by you directly or by your associates, is a violation of University policy.
" A violation of this ruling could result in . . . formal removal from the premises and a recommendation for further conduct sanctioning; including, but not limited to, suspension and expulsion from the University."
That same evening, Yeasin tweeted, " 'Jesus Navid, how is it that you always end up dating the psycho bitches?' #butreallyguys." The next day, on August 15, 2013, Yeasin tweeted, " 'Oh right, negative boob job. I remember her.'" A week later on August 23, 2013, [51 Kan.App.2d 942] Yeasin tweeted, " 'If I could say one thing to you it would probably be " Go fuck yourself you piece of shit." #butseriouslygofuckyourself #crazyassex.'" Then, on September 5, 2013, Yeasin tweeted, " 'Lol, she goes up to my friends and hugs them and then unfriends them on Facebook. #psycho #lolwhat.'"
On September 6, 2013, W. told Brooks about the August 23, 2013, tweet Yeasin posted. That same day, Brooks sent Yeasin an email to clarify that even though the August 23, 2013, tweet Yeasin posted did not identify W. by name, the tweet was a form of communication in violation of the no-contact order. Brooks gave Yeasin a second warning that " [g]oing forward, if you make any reference regarding [W.], directly or indirectly, on any type of social media or other communication outlet, you will be immediately referred to the Student Conduct Officer for possible sanctions which may result in expulsion from the University." (Emphasis added.)
Some 7 hours later, on September 7, 2013, Yeasin tweeted, " lol you're so obsessed with me you gotta creep on me using your friends accounts #crazybitch." Then, on September 13, 2013, Yeasin tweeted, " 30 Reasons to Love Natural Breasts totalfratmove.com/30-reasons-to-. . .via@totalfratmove #doublenegativeboobjob."
On September 17, 2013, the IOA Executive Director Jane McQueeney, concerned that Yeasin's " behavior was escalating" and that he did not understand the no-contact order, conducted a follow-up interview with Yeasin.
At that interview, McQueeney reiterated to Yeasin that both the protection order and no-contact order forbade direct and indirect contact with W. Yeasin acknowledged understanding the no-contact order as meaning he was not to contact W. and stated, " 'the twitter thing was a lapse on my part.'" Yeasin expressed that it had not occurred to him that a tweet would be a violation of the protection order or no-contact order and that he had not intended his tweets to reach W. Yeasin stated that he did not post any other tweets about W. after receiving the September 6, 2013, email from Brooks. Yeasin did admit to posting the August 8, 2013, and August 23, 2013, tweets and confirmed they were both about W. However, he claimed that the September 7, 2013, tweet using the hashtag [51 Kan.App.2d 943] " crazybitch" referred to someone else, not W., and that only the...
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