The Volokh Conspiracy

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Free Speech

"Kansas City Art Institute Expels Student for Retweeting Sexual Art"


The Foundation for Individual Rights and Expression reports:

Incoming student Ash Mikkelsen (they/them) is fighting to defend artistic expression and their academic future after retweeting sexually explicit Japanese-style cartoons featuring nudity and sex, known as hentai, on their personal, pseudonymous Twitter account. The art institute investigated Mikkelsen, alleging that the images could constitute sexual harassment and contribute to a hostile learning environment. Though Mikkelsen did not tag anyone from the university community in their posts or send messages to anyone relating to the account, KCAI expelled Mikkelsen for their artistic expression — and permanently banned them from ever re-enrolling at the school.

Today, the Foundation for Individual Rights and Expression sent a letter to KCAI demanding that the school immediately reverse the outrageous expulsion….

After one student allegedly found the account and complained to administrators, KCAI attempted to justify investigating and then expelling Mikkelsen for non-Title IX hostile environment sexual harassment under its Student Code of Conduct. However, KCAI does not define sexual harassment under that code. It's patently unfair and unlawful to punish students under unpublished disciplinary standards. Moreover, Mikkelsen's retweets don't come anywhere close to meeting the legal definition of sexual harassment….

As a private university, KCAI is not bound by the First Amendment's protections for free speech. But KCAI's policies, which it is morally and contractually required to uphold, state that the school "is committed to freedom of expression," "supports the rights of the campus community to engage in free speech and open assembly," and values "intellectual and artistic curiosity together with critical and creative inquiry."

The school first notified Mikkelsen of the investigation into their Twitter account on June 15. On June 29, Mikkelsen met with Assistant Dean of Students Joe Timson. During this meeting, Timson told Mikkelsen that they would be expelled — without any chance to contest the allegations — for violating the Student Code of Conduct.

KCAI gave Mikkelsen five business days to appeal the finding, which they are doing today. FIRE connected Mikkelsen with a FIRE Legal Network attorney….

Note: I have consulted for FIRE on a different matter, but I wasn't at all involved with this controversy, and wasn't asked to write about it.