The issue of off-campus conduct is interesting - I knew someone who was sexually harassed several times by a co-worker, never on campus but during their commutes to work (both took the same public transportation). Both were college professors at the same college. He ended up having charges brought against him and dropped, but there were multiple rumors that she was promoted to “keep her quiet” about the case so it never got in the papers.
Any precedents about companies policing off-site behavior in some way? I used to travel a lot for work, and we would stay in hotels and all parties knew where each person was staying. Alcohol was not banned in any way, some companies we worked at even had alcohol on-site.
@“Cardinal Fang” Two parts to your statement. One is the on/off campus part. @Demosthenes49 is clearly more knowledgeable about this area than I am, but I think that if he was phoning her or texting her then there is at least an argument that the conduct was “on campus” or at least directed to the campus and that the college would have the ability to act under their disciplinary code. The second part is whether the tweets fit the recognized definition of “harassment” (or if Title IX changes that definition) or if the tweets are just protected speech. It is hard to really get your head around issues like this without trying to keep the two different threads disentangled.
So you’re saying that if he phoned or texted her from off-campus, even if she got the calls or texts off-campus, that would count as on-campus? Or that there would be a legal difference if he phoned her from off-campus and she happened to be on campus when she got the call, versus he phoned her from off-campus and she had just stepped two feet away from the campus?
How can there be a legal difference when he couldn’t know where she was when she got the call?
I read rhandco’s link, but several lawyers here are disputing the constitutionality of the campus regulations. That is, colleges are making the kind of rules the article says, but are they standing up in court, and will they stand up in court?
The judge in the case said that Navid’s conduct occurred off-campus and was therefore beyond the stated limits of KU’s code of conduct. I think KU is saying, Title IX requires us to regulate harassment between student and student, no matter where it occurs, so there is no need to make an on-campus versus off-campus distinction.
@“Cardinal Fang” , practicing law completely off the top of my head, I think that if he directed a communication specifically to her (call or text) then whether she was on campus or off when she received it, or where he was when he sent it, is not relevant. I think this is because the act of directing a specific communication to a specific student is viewed as conduct designed to reach the campus. But I could be completely wrong, that is just my slightly more than a layman’s understanding of that area of the law.
And your second post expresses the heart of the issue, in my opinion. Colleges and presumably OCR are interpreting Title Ix to require schools to take affirmative steps to regulate either of a type (speech) not previously thought subject to regulation or from a place (off campus) not previously believed to be within the school’s purview. As others have said on this thread, Judges tend to shy away from deciding cases on constitutional grounds if they can (which is why the district Judge here relied on the college’s code of conduct), but eventually, if these type of cases continue, we will begin to see some law on exactly how broad Title IX is and whether Courts are wiling to expand the definitions of harassment.
The Judge said that if KU is going to regulate certain off campus conduct it better be sure its Student Code gives them the authority to do so (presumably so students are aware of what they are being held responsible for.) KU said our code as amended in 2011 did give us that authority, but the Judge disagreed. I think KU agrees thy need to support off-campus regulation with appropriate provisions in their Student Code.
It would have made our discussion easier on this thread if the Judge had articulated why he felt KU’s code fell short - was it because the language in Article 20 as amended was not specific enough? Or was it because the expulsion was based on Article 22 which clearly limited the reach of the school to on campus behavior?
@HarvestMoon1 realize though that if the code of conduct is amended to become broad enough, all that does is mean that the really interesting questions about the scope and effect of Title IX need to be dealt with.
Under that reasoning, if the judge decides that the tweet was intended to reach her (because Navid knew that his tweets were reaching her after being warned, and because he addressed her directly using “you”), then his location and hers remain irrelevant. And if the judge decides that the tweet was not intended to reach her (because she was blocked from his Twitter feed) then wouldn’t location again be irrelevant, because it wasn’t harassment at all? After all, if she by the veriest chance happens to overhear him criticizing her to his best friend, that would not be harassment.
I don’t think the KU judge is using your reasoning, Ohiodad.
There is a lot of discussion about words here I find interesting.
There was a rape case in Missoula. The alleged victim texted almost immediately after the alleged assault to her roommate, “I think I was raped”.
At trial, the defense team jumped all over the statement. The defense team said the accuser said, “I think”. Therefore the accuser does not know herself whether she was raped or not. And the accuser doesn’t know, and she was there, she wasn’t raped. The accused should not be convicted.
The problem with this argument and many arguments in these threads is people don’t speak using exact words. In fhe statement above, the accuser may have just texted in a passive voice. She may have just been raped after all.
Also, the words ‘I think’ may have been used because the accuser had trouble understanding that she was raped. The victim knew she was raped but she can’t believe it. Many victims have a hard time believing somebody would do this to them. We hear this a lot, “Why did this happen to me?”
At FSU, the alleged victim in the Winston rape case said something like this. The rape is surreal.
So…because a victim says the words “I think” doesn’t mean the victim doesn’t know. The victim knows.
When we parse what the accusers and the accused say, we should take into account people don’t use exact words.
Yes, you keep making that argument that his tweets were directed to her. I think from a cursory look the cases cited by @demosthenes49, that the law, at least at this point, draws a distinction between something sent directly to her and something that is generally posted which he should assume she will see. In any event, the Court chose not to reach that issue at the trial level, and we will have to see if the Appellate Court bites at it in 18 months or so.
And again, I think you are jumping in and out of two different inquiries. One is does the college have the power to act. In that sense, whether the act was done on or off campus, or whether the act was “directed” to her is relevant, at least under the code of conduct. The second is whether the tweets meet the definition of harassment. I believe in that sense a communication not directed specifically to her, but which it was foreseeable she would see, could arguably be harassing, if the communication fit all of the other criteria.
And sure, I could very well be wrong. I don’t practice in this area. But I clerked for a federal judge a long time ago and have spent a lot of time in the decades since practicing in federal courts. So I have kind of a general sense of some of this, and particularly how a lot of judges look at the cases before them.
Putting the 1st amendment aspect aside, I think it is pretty clear that colleges can reasonably regulate off campus behavior. But your code has to say that is how it will be applied. So it looks like KU messed up the draftingv in liiting its policy to on-campus.
In contrast, UVA’s Honor Code for decades has clearly said when/where it applies to students:
“within Charlottesville, Albemarle County, or where they represent themselves as University students in order to gain the trust of others.”
Title ix has clearly been applied off campus. Many of the sexual assault incidents occur in off campus private apartments.
OK, I’m looking back at what @Demosthenes49 says in #1759:
I do not agree that these are the same facts at all. In the Welte case, Welte was contacting Perry’s friends and family in order to inform them that Perry was denying him access to his children. Note that “the accusatory instruments do not allege that the defendant was intentionally attempting to contact the complainant.” But that is exactly what KU is alleging that Navid did: tweeting what he would say to his ex, not in order to inform his friends what he’d say to his ex, but in order that one of the friends would relay the message to his ex, which he knew they would do. It’s completely different.
So assuming that the court agreed that Navid tweeted intentionally to get a message to his ex, that does not seem any different than texting her directly.
The tweets were only one part of the “conduct” upon which KU acted. And I question whether the tweets will be the focus for the appellate judge. Seems to me that the appeal is already framed by the lower courts decision which really focuses on the Student Conduct Code.
For sure, but my understanding is that after the warning, the tweets were what caused the expulsion. That is, they told him to stop tweeting about her, he continued to tweet, and they expelled him for it. But suppose the tweets were protected speech, because
(1) they were off-campus conduct and beyond the reach of any possible college code of conduct,
(2) or they were off-campus conduct and KU did not include that conduct in its code of conduct although they could have included it,
(3) or because tweets not sent directly to a person are protected under the First Amendment at all times,
then KU could not be justified in expelling because of the tweets.
@“Cardinal Fang” A couple things. First, I am not so sure that the intent of the communication is relevant to the question of whether it was directed to the accuser. It may very well be, but I haven’t seen anything to suggest it and I wouldn’t just assume that it was. Second, you are throwing another ball in the air if we are going to start talking about the no contact order, either from the court or, I guess, the school. I am assuming, based on my general legal experience, that the tweeting did not violate the court’s no contact order since they generally don’t like that and I would assume the Judge would have been vexed with the accused, but there is really no way to know. As to your second message, I think if you change the phrase “not sent directly to a person” to “not meeting the definition of a threat or harassment” we are probably in agreement, for whatever that is worth.
@northwesty, I think the Title IX issue is best understood as what are a college’s obligations to stop harassing behavior. The direct sexual assault cases are probably different, in that I wold assume most campus codes prohibited sexual assaults by and against students even before the DCL, such an assault involves a direct action against a student, it does not implicate the first amendment, and an assault at least arguably represents a continuing threat tho the accused and perhaps the larger campus.
@HarvestMoon1 I think one of the articles said tat KU raised a motion to reconsider the trial court’s decision by arguing that even if the code of conduct did not give them the authority to act, Title IX did. If that is accurate, then the issue is likely properly before the Court of Appeals, and the panel can reach it if they choose.