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In Yeasin v. Durham, No. 16-3367, (10th Cir., Jan. 5, 2018), the Tenth Circuit Court of Appeals took on that sticky question.

Dr. Tammara Durham (“Durham”), the Vice Provost for Student Affairs at the University of Kansas, expelled Navid Yeasin (“Yeasin”) from the university after finding he had violated the university’s student code of conduct and sexual-harassment policy. After Yeasin sued 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. The lower court dismissed the case because of Durham’s qualified immunity. Yeasin appealed.

In this case, Dr. Durham predicated her motion to dismiss on her claim of qualified immunity. Qualified immunity protects government officials from liability for civil damages if their conduct does not violate clearly established statutory or constitutional rights. To overcome a government official’s qualified-immunity defense, a plaintiff must demonstrate that the official violated a statutory or constitutional right, and that the right was clearly established. In this case, Yeasin claimed Durham violated his First Amendment rights to free speech, in expelling him for his harassing tweets to an ex-girlfriend.

Even if Yeasin could show that Durham violated his First Amendment rights, the Court concludes that he has failed to show a violation of clearly established law. We don’t decide whether Yeasin had a First Amendment right to post his tweets without being disciplined by the university. Universities are not enclaves immune from the sweep of the First Amendment, but both the Supreme Court and our circuit courts permit schools to circumscribe students’ free-speech rights in certain contexts. Broad legal principles in student free-speech cases provide some guidance on issues Yeasin raises, but they cannot suffice as clearly established law.

The Supreme Court says universities may not restrict university level student speech in the same way secondary public-school officials may restrict their students’ speech. Yeasin argues the established cases clearly establish his right to tweet about his ex without the university being able to place restrictions on, or discipline him for, the contents of his tweets.

However, the cases Yeasin has cited do not have circumstances similar to his own–in those cases no student had been charged with a crime against another student and followed that up with sexually harassing comments. Durham had a reasonable belief that Yeasin’s continued enrollment at the university threatened to disrupt his ex’s education and interfere with her rights. Yeasin did not establish that Durham violated clearly established law when she expelled him. The lower court’s dismissal is affirmed.

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