FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 5, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court NAVID YEASIN,
Plaintiff - Appellant,
v. No. 16-3367 (D.C. No. 2:16-CV-02010-JAR-TJJ) TAMMARA DURHAM, (D. Kan.)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT _________________________________
Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges. _________________________________
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
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 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
1 We are entitled to take judicial notice of Yeasin’s prior Kansas Court of Appeals case, just as the district court was entitled to do so, because it is a public record that “bear[s] directly upon the disposition of the case at hand.” United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007).
2 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
2 Yeasin would later admit that he and his friends referred to A.W. as “negative double boob job” or “negative boob job” because of A.W.’s genetic condition and subsequent reconstructive surgery. Appellant’s App. at 53.
3 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).
4 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).
5 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.
3 At the time of Yeasin’s discipline, Article 22, which was titled, “Non- Academic Misconduct,” stated the following: “While on University premises or at University sponsored or supervised events, students . . . are subject to disciplinary action . . . .” Appellant’s App. at 65. And Article 22.A.1 specifically prohibited students from “maliciously and repeatedly follow[ing] or attempt[ing] to make unwanted contact, including but not limited to physical or electronic contact, with another person.” Id. The university’s sexual-harassment policy stated that “sexual harassment is a form of illegal discrimination in violation of . . . Title IX . . . .” Id. at 52. The policy defined sexual harassment to include: conduct, including physical contact, advances, and comments in person, through an intermediary, and/or via phone, text message, email, social media, or other electronic medium, that is unwelcome; based on sex or gender stereotypes; and is so severe, pervasive and objectively offensive that it has the purpose or effect of substantially interfering with a person’s academic performance.
Id. at 53.
6 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
4 Kratky was only identified in the record as the hearing panel chair.
7 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 double
boob job” or “negative boob job”, he was referring to A.W. Appellant’s App. at 53.
On these bases, Dr. Durham found that Yeasin’s June 28, 2013 conduct and his
tweets were “so severe, pervasive and objectively offensive that it interfered with
[A.W.]’s academic performance and equal opportunity to participate in or benefit
from University programs or activities.” Id. at 54. She found that his tweets violated
the sexual-harassment policy because they were “unwelcome comments about
[A.W.]’s body.” Id. And she found that his conduct “threatened the physical health,
safety and welfare of [A.W.], making the conduct a violation of Article 22, A. 1 of
the Code.” Id. (emphasis in original).
8 As a result of his conduct, Dr. Durham decided to expel Yeasin from the
university and ban him from campus.
B. Court Proceedings
Yeasin contested his expulsion in Kansas state court. See Yeasin, 360 P.3d at
427. The court set aside Yeasin’s expulsion, reasoning that the hearing panel’s
findings, adopted by Dr. Durham, “were not supported by substantial evidence.”
Appellant’s App. at 10. The court also determined that “KU and [Dr.] Durham
erroneously interpreted the Student Code of Conduct by applying it to off-campus
conduct.” Id.
The university then appealed. It argued that Article 20 of the student code was
a jurisdictional statement that modified the scope of Article 22’s language to include
the ability to punish students for off-campus conduct that violates federal, state, or
local law. Yeasin, 360 P.3d at 432. Article 20 provides, “The University may not
institute disciplinary proceedings unless the alleged violation(s) giving rise to the
disciplinary action occurs on University premises or at University sponsored or
supervised events, or as otherwise required by federal, state, or local law.”
Appellant’s App. at 64. The university argued that its interpretation of Article 20 was
“consistent with the obligations imposed on it under Title IX.” Yeasin, 360 P.3d at
429.
But the Kansas Court of Appeals concluded that Article 20 wasn’t a
jurisdictional statement and that its plain language supported disciplinary actions
only against students who violate federal, state, or local law on-campus or at school-
9 sponsored activities. Yeasin, 360 P.3d at 431–32. Similarly, the court determined that
Article 22’s plain language didn’t give Dr. Durham authority to expel him because
his conduct had occurred off campus. Yeasin, 360 P.3d at 432. So the court upheld
the order requiring Yeasin’s re-enrollment. Id. at 432.
Yeasin then brought this suit in federal court, claiming that Dr. Durham had
violated his First and Fourteenth Amendment rights by expelling him for the content
of his online, off-campus speech. Under Federal Rule of Civil Procedure 12(b)(6),
Dr. Durham moved to dismiss both of Yeasin’s claims on qualified-immunity
grounds. The district court granted the motion after concluding that Dr. Durham
hadn’t violated Yeasin’s clearly established rights.
DISCUSSION
“We review de novo a district court’s dismissal under Federal Rule of Civil
Procedure 12(b)(6). We assume the truth of all well-pleaded facts in the complaint,
and draw all reasonable inferences therefrom in the light most favorable to the
plaintiffs.” Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011)
(quoting Dias v. City and Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)). In
First Amendment cases, we independently examine “the whole record in order to
make sure that the judgment does not constitute a forbidden intrusion on the field of
free expression.” Id. at 723 (quoting Thomas v. City of Blanchard, 548 F.3d 1317,
1322 (10th Cir. 2008)).
“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must
contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its
10 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A plaintiff states a facially plausible claim by
pleading “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. But a
pleading based on only “labels and conclusions” or “formulaic recitation[s]” of a
claim for relief’s elements is insufficient. Twombly, 550 U.S. at 555.
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 of which a reasonable person would have known.” White v.
Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308
(2015)); accord A.M. v. Holmes, 830 F.3d 1123, 1134 (10th Cir. 2016). Qualified
immunity “protects ‘all but the plainly incompetent or those who knowingly violate
the law.’” Mullenix, 136 S. Ct. at 308 (quoting Malley v Briggs, 475 U.S. 335, 341
(1986)).
To overcome a government official’s qualified-immunity defense, a plaintiff
must “demonstrate ‘(1) that the official violated a statutory or constitutional right,
and (2) that the right was ‘clearly established.’” Holmes, 830 F.3d at 1134 (quoting
Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015)) (emphasis in original). We can
analyze either prong of the qualified immunity test first and can resolve the case
solely on the clearly established prong. See Panagoulakos v. Yazzie, 741 F.3d 1126,
1129 (10th Cir. 2013).
11 A clearly-established right exists if “existing precedent . . . place[s] the
statutory or constitutional question beyond debate.” Mullenix, 136 S. Ct. at 308
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). “The dispositive question is
‘whether the violative nature of particular conduct is clearly established.’” Mullenix,
136 S. Ct. at 308 (quoting al-Kidd, 563 U.S. at 742). A plaintiff needn’t supply a case
directly on point from our circuit or the Supreme Court but must do more than cite
case law announcing a legal rule “at a high level of generality.” White, 137 S. Ct. at
552 (quoting Al-Kidd, 563 U.S. at 742). The relevant case law “must be
‘particularized’ to the facts of the case” currently before the court. Id. at 552 (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
For the reasons set forth below, we conclude that Yeasin has failed to show
that Dr. Durham violated his clearly established rights under either the First
Amendment or the Fourteenth Amendment. As a result, we needn’t resolve whether
Yeasin could meet the first prong of the qualified-immunity analysis for either issue.
A. First Amendment
The First Amendment states, “Congress shall make no law . . . abridging the
freedom of speech[] . . . .” U.S. Const. amend. I. But what happens when one
student’s off-campus speech interferes with another student’s education on a
university campus?
Yeasin’s case presents interesting questions regarding the tension between
some students’ free-speech rights and other students’ Title IX rights to receive an
education absent sex discrimination in the form of sexual harassment. Department of
12 Education Office for Civil Rights Dear Colleague Letter on Sexual Violence (OCR
Sexual Violence DCL), April 4, 2011, at 1,
https://www2.ed.gov/print/about/offices/list/ocr/letters/colleague-201104.html
(“Sexual harassment of students, which includes acts of sexual violence, is a form of
sex discrimination prohibited by Title IX.”).5 But even if Yeasin could show that Dr.
Durham violated his First Amendment rights, we conclude 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.
“[C]olleges and universities are not enclaves immune from the sweep of the
First Amendment.” Healy v. James, 408 U.S. 169, 180 (1972). But both the Supreme
Court and our circuit permit schools to circumscribe students’ free-speech rights in
certain contexts.6 Broad legal principles in student free-speech cases provide some
guidance on issues Yeasin raises, but they cannot suffice as clearly established law.
5 This guidance is no longer in effect. See OCR DCL, Sept. 22, 2017, at 1, www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf (“The purpose of this letter is to inform you that the Department of Education is withdrawing the statements of policy and guidance reflected in the . . . Dear Colleague Letter on Sexual Violence, issued by the Office for Civil Rights at the U.S. Department of Education, dated April 4, 2011.”). 6 See, e.g., Morse v. Frederick, 551 U.S. 393, 397, 408 (2007) (allowing school to discipline a student for flying a banner reading “BONG HiTs 4 JESUS” at an off-campus, school-approved activity because the banner could reasonably be viewed as promoting drug use); see also Axson-Flynn v. Johnson, 356 F.3d 1277, 1285 (10th Cir. 2004) (holding that the Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1988) framework for free-speech analysis is applicable in a university setting for speech that occurs in a classroom as part of a class curriculum).
13 Tinker v. Des Moines Independent Community School District, 393 U.S. 503,
513 (1969), announced that secondary-school students retain free-speech rights but
that schools can still prohibit actions that “would materially and substantially disrupt
the work and discipline of the school.” The Supreme Court has announced three
additional exceptions to First Amendment doctrine in public schools. Secondary
public schools may restrict student speech even absent a forecast of disruption in
cases involving lewd, vulgar, or indecent speech, Bethel School District No. 403 v.
Fraser, 478 U.S. 675, 685 (1986), school-sponsored speech, Hazelwood School
District v. Kuhlmeier, 484 U.S. 260, 273 (1988), and speech advocating illegal drug
use, Morse v. Frederick, 551 U.S. 393, 408 (2007). But Yeasin contends that Tinker
and its progeny are inapplicable in the university setting.
Yeasin argues that Papish v. Board of Curators of the University of Missouri,
410 U.S. 667, 670 (1973) (per curiam), Widmar v. Vincent, 454 U.S. 263, 268–69
(1981), and Healy, 408 U.S. at 180, clearly establish the “underlying principle[]” that
universities may not restrict university-student speech in the same way secondary
public school officials may restrict secondary-school student speech. Appellant’s
Opening Br. at 11–12. Yeasin also argues that Reed v. Town of Gilbert, 135 S. Ct.
2218, 2226 (2015), clearly establishes that content-based restrictions “are disfavored
and presumptively invalid under the law.” Appellant’s Opening Br. at 12. Taken
together, Yeasin argues, these cases clearly establish his right to tweet about A.W.
without the university being able to place restrictions on, or discipline him for, the
contents of his tweets.
14 But none of the above cases present circumstances similar to his own. Papish,
Healy, and Widmar don’t concern university-student conduct that interferes with the
rights of other students or risks disrupting campus order.
In Papish, a university expelled a graduate student for distributing a
newspaper on campus allegedly “containing forms of indecent speech” in violation of
university by-laws. 410 U.S. at 667. The Supreme Court explained that because the
newspaper’s content didn’t interfere “with the rights of others” or disrupt “the
University’s functions,” the sole question “was whether a state university could
proscribe [the newspaper’s] form of expression.” Id. at 670 n.6.
Healy concerned a state college’s refusal to officially recognize a student
group known as Students for a Democratic Society because of its potential affiliation
with a national organization known for campus disruption. 408 U.S. at 170–71. The
Healy Court determined that because the college’s refusal to recognize the student
group stemmed from undifferentiated fear or apprehension that the particular
individuals forming the group “posed a substantial threat of material disruption,” the
college’s action was unconstitutional under Tinker. Healy, 408 U.S. at 189–91; see
also Tinker, 393 U.S. at 508.
And in Widmar, a university disallowed a registered religious student group
from meeting in university buildings. 454 U.S. at 265. Widmar decided that “having
created a forum generally open to student groups,” it was unconstitutional for a
university to “enforce a content-based exclusion of religious speech.” Id. at 277.
Widmar doesn’t say whether the religious student group had somehow threatened to
15 disrupt campus order or interfere with other students’ educations. But after reciting
the strict-scrutiny test for content-based restrictions, the Supreme Court quoted
Healy’s proposition that “[w]hile a college has a legitimate interest in preventing
disruption on the campus, which . . . may justify [a prior] restraint, a heavy burden
rests on the college to demonstrate the appropriateness of that action.” See Widmar,
454 U.S. at 270 n.7 (ellipsis in original) (internal quotation marks omitted) (quoting
Healy, 408 U.S. at 184). This language suggests that the Supreme Court believes that
the material-and-substantial-disruption test applies in the university setting.
Papish, Healy, Widmar, and Reed provide broad principles that are too general
to have clearly established Yeasin’s rights to tweet about A.W. free from university
discipline. Yeasin’s conduct differs from that of the students in his cited cases—in
those cases no student had been charged with a crime against another student and
followed that up with sexually harassing comments affecting her ability to feel safe
while attending classes. Dr. Durham had a reasonable belief based on the June 28,
2013 incident and on Yeasin’s tweets that his continued enrollment at the university
threatened to disrupt A.W.’s education and interfere with her rights.
At the intersection of university speech and social media, First Amendment
doctrine is unsettled. Compare Keefe v. Adams, 840 F.3d 523, 525–26 (8th Cir. 2016)
(concluding that college’s removal of a student from school based on off-campus
statements on his social media page didn’t violate his First Amendment free-speech
rights), with J.S. v. Blue Mountain. Sch. Dist., 650 F.3d 915, 920 (3d Cir. 2011)
(holding that a school district violated the First Amendment rights of a plaintiff when
16 it suspended her for creating a private social media profile mocking the school
principal and containing adult and explicit content). It is thus unsurprising that
Yeasin’s broad propositions of law don’t meet the standard required to show clearly
established law under White and Mullenix.
In conclusion, Yeasin can’t establish that Dr. Durham violated clearly
established law when she expelled him, in part, for his online, off-campus tweets.
B. Substantive Due Process
Yeasin’s substantive-due-process claim is similarly flawed. The Fourteenth
Amendment’s Due Process Clause protects interests in life, liberty, and property from
arbitrary government action. Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 341 F.3d
1197, 1200 (10th Cir. 2003). We have held that university students have a property
interest in their continued education. Harris v. Blake, 798 F.2d 419, 424 (10th Cir.
1986). But to establish that a deprivation of a property interest violates substantive
due process, a student must prove that the university’s decision to expel her was
arbitrary, lacked a rational basis, or shocks the conscience. Butler, 341 F.3d at 1200–
01. We don’t resolve whether Dr. Durham’s decision to expel Yeasin violated his
right to substantive due process but decide only that she violated no clearly
established law in doing so.
Yeasin points to Michigan v. Ewing, 474 U.S. 214, 225 (1985), Harris, 798
F.2d at 424–25, and Gossett v. Oklahoma ex rel. Board of Regents for Langston
University, 245 F.3d 1172, 1181–82 (10th Cir. 2001), as sufficient to notify Dr.
Durham that she would violate his substantive-due-process rights if she expelled him
17 for off-campus, online conduct. Appellant’s Opening Br. at 25–26. But as Yeasin
concedes, these cases “are not exactly on point.” Appellant’s Opening Br. at 26.
In Ewing, a student pursuing a joint degree failed an exam that was necessary
to advance in the program. Ewing, 474 U.S. at 215–16. The student unsuccessfully
petitioned various university bodies for his readmission and a chance to retake the
exam. Id. at 216–17. When those appeals were unsuccessful, he sued the university,
alleging that the university acted arbitrarily and deprived him of substantive due
process by dropping him from the joint degree program without allowing him to
retake the exam. Id. at 217, 223–25. The Supreme Court disagreed and determined
that his dismissal from the “program rested on an academic judgment that is not
beyond the pale of reasoned academic decision-making when viewed against the
background of his entire career” in the program, including his failing exam score. Id.
at 227–28.
Harris involved a university student who was forced to withdraw from a
psychology program after his grade-point average fell below the minimum
requirement. 798 F.2d at 421. Upon learning that a professor placed a letter in his
academic file expressing reservations about his fitness for the psychology program
before his withdrawal, he persuaded the dean of his college to have the letter
removed from his file. Id. at 421–22. Meanwhile, he challenged the low grades he
received and the placement of the letter into his file before an academic appeals
board. Id. at 422. The appeals board upheld his grades and declined to rule on the
letter issue since the dean had it removed from his file. Id. at 422. Subsequently, he
18 sued the university and alleged he was denied substantive due process because of the
letter and his low grades. Id. at 422, 424–25. Our court determined that Ewing was
dispositive and that the student hadn’t made out a substantive due process claim
because the essence of the student’s claim was that the university “misjudged his
fitness to remain a student.” Id. at 424–25.
And in Gossett, a male nursing student alleged he was denied substantive due
process when he was involuntarily withdrawn from his nursing program after
receiving a ‘D’ grade in a class. 245 F.3d at 1175–76. Specifically, he argued that
nursing students who were men were “not given the same help, counseling, and
opportunities to improve [their] performance[s]” as the school gave nursing students
who were women. Id. at 1176. The district court granted the university summary
judgment. Id. at 1175. But on appeal, our court remanded the student’s substantive
due process claim because he presented sufficient evidence to create a fact issue as to
whether he was dismissed “based on an exercise of professional judgment as to his
academic ability” or “impermissible gender discrimination.” Id. at 1182.
In each of the above cases, the underlying principle is that in order to have a
substantive-due-process claim for being expelled “based on an academic decision,” a
university student “must show that the decision was the product of arbitrary state
action rather than a conscientious, careful and deliberate exercise of professional
judgment.” Gossett, 245 F.3d at 1182. Students can prove this with “evidence that the
challenged decision was based on ‘nonacademic or constitutionally impermissible
reasons,’ rather than the product of conscientious and careful deliberation.” Gossett,
19 245 F.3d at 1182 (quoting Ewing, 474 U.S. at 225). We can’t apply the Ewing
principle to Yeasin’s case because Dr. Durham’s decision was explicitly and
purposefully non-academic.7 Ewing, Harris, and Gossett don’t clearly establish that
Dr. Durham expelling Yeasin, in part, for off-campus, online tweets that affected
another student’s ability to get an education, was arbitrary, lacked a rational basis, or
shocks the conscience.
In sum, Dr. Durham didn’t violate clearly established law when she expelled
Yeasin for non-academic misconduct related to the June 29, 2013 incident and his
tweets.
CONCLUSION
For the reasons stated, we AFFIRM the district court’s grant of Dr. Durham’s
motion to dismiss on the basis of qualified immunity.
Entered for the Court
Gregory A. Phillips Circuit Judge
7 Compare Bd. of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 88– 90 (1978) (holding that academic dismissals from universities require only minimal due-process protections because courts are reluctant to second-guess an educator’s expert judgment on educational matters), with Goss v. Lopez, 419 U.S. 565, 581–84 (1975) (holding that dismissal from a school based on non-academic, disciplinary reasons requires notice and a hearing commensurate with the circumstances and severity of the situation). Yeasin doesn’t contend that he received an insufficient amount of process.