The Volokh Conspiracy

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Free Speech

Kansas City Art Institute Reverses Expulsion for Retweeting Sexually Explicit Cartoons


From the Foundation for Individual Rights and Expression today:

A student expelled from Kansas City Art Institute for retweeting sexual art won their appeal Tuesday …. KCAI reversed the expulsion decision against student Ash Mikkelsen after a demand from the Foundation for Individual Rights and Expression.

Mikkelsen retweeted sexually explicit Japanese-style cartoons, known as hentai, on their personal, pseudonymous Twitter account. Allegedly, the art institute investigated Mikkelsen for sexual harassment in response to the complaint of another student, who found the account and told administrators about the images. Though Mikkelsen did not tag anyone from the university community in their Twitter posts or send messages related to the account to anyone, KCAI expelled Mikkelsen for their artistic expression—and banned them from ever re-enrolling….

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 indefinite 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 the college 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 and met with Mikkelsen the same day to discuss the investigation. On June 29, Mikkelsen again met with Assistant Dean of Students Joe Timson, who told Mikkelsen that they would be expelled for violating the Student Code of Conduct. Mikkelsen was not given an adequate chance to contest the allegations prior to the university imposing the most severe penalty possible.

KCAI gave Mikkelsen five business days to appeal the finding, which they did on July 6, with the assistance of FIRE Legal Network attorney Ted Green….

Disclosure: FIRE engaged me to consult on some matters, but they are entirely unrelated to this case and I wasn't asked to put up this post.