Yeasin v. Durham, 010518 FED10, 16-3367

Docket Nº:16-3367
Opinion Judge:Gregory A. Phillips Circuit Judge.
Party Name:NAVID YEASIN, Plaintiff-Appellant, v. TAMMARA DURHAM, Defendant-Appellee.
Judge Panel:Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.
Case Date:January 05, 2018
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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NAVID YEASIN, Plaintiff-Appellant,

v.

TAMMARA DURHAM, Defendant-Appellee.

No. 16-3367

United States Court of Appeals, Tenth Circuit

January 5, 2018

(D.C. No. 2:16-CV-02010-JAR-TJJ) (D. Kan.)

Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.

ORDER AND JUDGMENT [*]

Gregory A. Phillips Circuit Judge.

Dr. Tammara Durham, the Vice Provost for Student Affairs at the University of Kansas, expelled Navid Yeasin from the university after finding that by physically restraining and later tweeting indirectly but disparagingly about his ex-girlfriend, he had violated the university's student code of conduct and sexual-harassment policy. After Yeasin sued Dr. Durham in Kansas state court, the university reinstated him. Yeasin then sued Dr. Durham in federal court, asserting a claim under 42 U.S.C. § 1983 based on his First Amendment right to freedom of speech and his Fourteenth Amendment right to substantive due process. He argued that Dr. Durham had violated these rights when she expelled him for his off-campus online speech. Dr. Durham successfully moved to dismiss Yeasin's complaint based on qualified immunity. Yeasin appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

BACKGROUND

A. Yeasin's Expulsion

Yeasin and A.W. dated from the fall of 2012 through June 2013. On June 28, 2013, Yeasin physically restrained A.W. in his car, took her phone from her, threatened to commit suicide if she broke up with him, threatened to spread rumors about her, and threatened to make the University of Kansas's "campus environment so hostile, [that she] would not attend any university in the state of Kansas." Appellee's Suppl. App. at 19.

For this conduct, Kansas charged Yeasin with criminal restraint, battery, and criminal deprivation of property. On July 25, 2013, A.W. sought and obtained a protection order against Yeasin from the Johnson County District Court. The order was "entered by consent without any findings of abuse." Appellee's Suppl. App. at 3. In August 2013, Yeasin entered a diversion agreement with the state on these charges. Yeasin v. Univ. of Kansas, 360 P.3d 423, 424 (Kan.Ct.App. 2015).1

That same month, A.W. filed a complaint against Yeasin with the university's Office of Institutional Opportunity and Access (IOA), alleging that Yeasin had sexually harassed her. Jennifer Brooks, an IOA investigator, interviewed A.W. about her complaint. Yeasin, 360 P.3d at 424. Another IOA investigator, Steve Steinhilber, "interviewed Yeasin regarding the complaint" and "advised Yeasin of his rights and responsibilities during the investigation." Id. at 425. Then, "[a]fter considering the Johnson County District Court's final protection from abuse order, " the IOA decided to issue Yeasin a no-contact order. Id.

The no-contact order informed Yeasin that the university had "received information concerning an allegation that [he] may have violated the University's Sexual Harassment Policy in interactions with University of Kansas student [A.W.]." Appellant's App. at 49. The letter also put Yeasin on notice that he was "prohibited from initiating, or contributing through third-parties, to any physical, verbal, electronic, or written communication with [A.W.], her family, her friends or her associates." Id.

After Yeasin received the no-contact order, he tweeted the following messages on August 15, August 23, and September 5: • Oh right, negative boob job. I remember her. (August 15, 2013);2

• If I could say one thing to you it would probably be "Go fuck yourself you piece of shit." #butseriouslygofuckyourself #crazyassex (August 23, 2013); and

• Lol, she goes up to my friends and hugs them and then unfriends them on Facebook. #psycho #lolwhat (September 5, 2013).

Id. at 51; Appellee's Suppl. App. at 11-13.

Shortly thereafter, A.W.'s friend showed her Yeasin's tweets. A.W. couldn't see the tweets first-hand because Yeasin had removed her from his approved followers when they stopped dating. A.W. then complained to Brooks that Yeasin had tweeted about her despite the no-contact order. On September 6, 2013, Brooks e- mailed Yeasin the following warning: While your August 23rd tweet does not specifically state the name of your ex-girlfriend, this communication is in violation of the No Contact Order. I am writing to you to clarify that any reference made on social media regarding [A.W.], even if the communication is not sent to her or [does not] state her name specifically, it is a violation of the No Contact Order.

Appellant's App. at 51. The e-mail further stated, "Going forward, if you make any reference regarding [A.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." Id. Yeasin then tweeted the following messages:

• #lol you're so obsessed with me you gotta creep on me using your friends accounts #crazybitch (September 7, 2013);

• 30 Reasons to Love Natural Breasts totalfratmove.com/30-reasons-to-… via @totalfratmove #doublenegativeboobjob (September 13, 2013).

Id. at 54; Appellee's Suppl. App. at 14-16 (alteration in original).

Concerned Yeasin's behavior was escalating, IOA Executive Director Jane McQueeney conducted a follow-up interview with Yeasin on September 17. Yeasin, 360 P.3d at 425. She reiterated to him that the no-contact policy applied to his indirect tweets. Id. at 425. Shortly thereafter, Yeasin posted the following tweet: • "At least I'm proportionate." #NDB #boobs @MorganLCox (October 23, 2013). Appellee Suppl. App. at 16.

All told, Yeasin posted fourteen tweets referring to A.W. without specifically naming her; of these, three were posted after the IOA e-mailed Yeasin and told him to stop.

On October 7, 2013, the IOA issued an investigative report concluding that Yeasin had sexually harassed A.W. in violation of university policy by physically restraining her during the June 28, 2013 incident and by posting the fourteen tweets. The report concluded that "'while some of the conduct in this case occurred off campus this past summer, ' the preponderance of the evidence nevertheless showed that Yeasin's conduct had affected the on-campus environment for [A.W.], thus violating the University's sexual harassment policy." Yeasin, 360 P.3d at 426 (quoting the IOA's report). The IOA also determined that Yeasin had violated the no-contact order "by continually 'harassing' [A.W.] on social media." Id. (quoting the IOA's report).

Later that month, Nicholas Kehrwald, the university's director of student conduct and community standards, received the IOA's report and scheduled a formal hearing for November 4, 2013, to adjudicate A.W.'s complaint against Yeasin. Id. Kerhwald notified Yeasin of the hearing and "specified that Yeasin's conduct violated Article 22.A.1 of the Student Code, the University's sexual[-]harassment policy, and the no-contact order."3 Id. Kerhwald outlined the following evidence against Yeasin: that Yeasin had posted demeaning tweets about [A.W.]; that Yeasin had physically restrained [A.W.] and held her against her will for three hours in his car; that he had called her demeaning names; that he had threatened suicide when she tried to break-up with him; and that Yeasin's behavior had on-campus effects. Id.

On November 4, 2013, the IOA held the formal hearing. A university student, a university staff member, Kerhwald, and Jamie Kratky4 constituted the hearing panel. The panel reviewed the written documents in the case and then heard from A.W., Yeasin, IOA Executive Director Jane McQueeny, and IOA investigators Steinhilber and Brooks. Yeasin, 360 P.3d at 426. Following the hearing, the panel prepared a recommendation and submitted it to Dr. Durham so she could make her final decision regarding whether and how to sanction Yeasin's conduct. In their recommendation, the panel explained that "there was no information presented at any time to dispute the actions set forth in [A.W.'s] complaint or to demonstrate Yeasin did not violate[] Article 22, A and the University's Sexual Harassment policy." Appellee's Suppl. App. at 20. Moreover, they observed, "Yeasin admitted that some tweets that appeared to indirectly target [A.W.] were, in fact, direct references to [A.W.]." Id.

Two days after receiving the panel's recommendation, Dr. Durham informed Yeasin of her decision by letter. In the letter, Dr. Durham explained that she reviewed the student code, the complaint brought by A.W., the evidence presented at the hearing, and the hearing panel's recommendation before making her decision. She informed him that "[b]ased on a preponderance of [i]nformation, the hearing panel [found him] in violation of Article 22. Section A. 1 and the University's Sexual Harassment Policy" and she outlined the language of both policies. Appellant's App. at 52 (emphasis in original); see supra n.3.

Dr. Durham said her decision was based on several facts supported by the preponderance of the evidence, such as the Johnson County protection order and A.W.'s hearing statement that "her grades had slipped significantly during the summer because of the emotional toll her interactions with Mr. Yeasin had taken on her." Appellant's App. at 54. Dr. Durham further relied on A.W.'s statement to the hearing panel that her relationship with Yeasin had "affected her day-to-day on-campus activities, since she [couldn't] enter public campus places without receiving glares and remarks from Yeasin's friends telling her she needs to leave and that her presence is unwanted." Appellee's Suppl. App. at 19. She indicated that Yeasin admitted during the formal hearing that when he was tweeting about "negative...

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