Kamila v. University of Kansas ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,249
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
RAYMOND KAMILA,
Appellant,
v.
UNIVERSITY OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed August 21, 2020.
Affirmed.
Edward N. Foster, of Caldwell Law Firm, P.C., of Kansas City, Missouri, and Joshua Ritter, pro
hac vice, of Werksman Jackson & Quinn LLP, of Los Angeles, California, for appellant.
Michael C. Leitch, senior associate general counsel, of the University of Kansas, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J., and BURGESS, S.J.
PER CURIAM: After considering the testimony of 10 witnesses and reviewing
hundreds of pages of evidence presented at a formal administrative evidentiary hearing, a
panel appointed by the University of Kansas (University) Vice Provost for Student
Affairs recommended that Raymond Kamila be expelled for violating multiple provisions
of the Code of Student Rights and Responsibilities (Student Code). The panel made this
recommendation in a 23-page, single-spaced written report detailing its findings of facts
and its conclusions based on those facts. After reviewing the written report from the
panel and all of the hearing materials, the Vice Provost issued a decision letter to Kamila
1
informing him of the agency's decision to expel him from the University for nonacademic
misconduct and to ban him from campus for a period of 10 years. Kamila filed an internal
appeal with the Judicial Review Board. After reviewing the record and the University's
governing rules, the Chair of the Judicial Review Board denied Kamila's request for a
hearing to review the University's decision to expel him. Kamila then filed a petition for
review with the district court under the Kansas Judicial Review Act (KJRA), K.S.A. 77-
601 et seq. After reviewing the agency record and the briefs, the district court affirmed
the University's decision to expel Kamila, finding that he "failed to meet his burden to
prove that the University's actions were invalid on any of the grounds asserted in the
Petition." Kamila now appeals to this court, claiming that the University's decision to
expel him: (1) exceeded the scope of its jurisdiction because it was based on off-campus
conduct, (2) was not supported by sufficient evidence, and (3) was arbitrary and
capricious. Finding no error, we affirm the district court's ruling.
FACTUAL AND PROCEDURAL BACKGROUND
The allegations leading up to Kamila's expulsion were based on Kamila's
misconduct with regard to two different women while all three were students at the
University. Although the allegations are similar, they are unrelated. Before setting forth
the underlying facts relevant to each allegation, we find it helpful to review the
administrative and procedural history that led to this appeal.
Administrative and district court proceedings
On April 3, 2017, B.W. filed a formal complaint with the University's Office of
Institutional Opportunity and Access (IOA) alleging that Kamila had harassed and
stalked her in violation of the University's Sexual Harassment Policy. On April 4, 2017,
IOA notified Kamila about the complaint and issued a No Contact Directive prohibiting
him from directly or indirectly initiating physical, electronic, or any other contact with
2
B.W. Kamila was notified of both the complaint and the order of no contact later the
same day. The IOA conducted a formal investigation into B.W.'s complaint, which
included interviewing both B.W. and Kamila, as well as the 12 witnesses identified by
B.W. As part of its investigation, the IOA also reviewed evidence provided by B.W.,
which included copies and screenshots of a multitude of messages to B.W. and some of
the other witnesses from Kamila's real Facebook account and what B.W. believed to be
Kamila's fake Facebook accounts.
On April 28, 2017, E.T. filed a formal complaint with the IOA alleging that
Kamila had harassed and stalked her in violation of the University's Sexual Harassment
Policy. That same day, IOA notified Kamila about the complaint and issued a No Contact
Directive prohibiting him from directly or indirectly initiating physical, electronic, or any
other contact with E.T. The IOA conducted a formal investigation into E.T.'s complaint,
which included interviewing both E.T. and Kamila, as well as one witness identified by
E.T. As part of its investigation, the IOA also reviewed evidence provided by E.T., which
included copies of text messages, e-mails, and pictures that Kamila sent to E.T. between
April 5 and April 27, 2017.
On June 23, 2017, after concluding its investigation into both B.W.'s and E.T.'s
allegations, Shane McCreery, the University's IOA Director, sent a 28-page, single-
spaced Administrative Report of Investigation to Dr. Tammara Durham (Vice Provost for
Student Affairs), Lance Watson (Director, Student Conduct and Community Standards),
and Aramis Watson (Associate Director for Residence Life). With regard to B.W., the
IOA Report set forth her allegations, a detailed summary of the results of the interviews it
had conducted with B.W. and Kamila as well as each of the 12 witnesses interviewed, the
documentary evidence, the University's Sexual Harassment Policy, comprehensive
findings of fact for each allegation, credibility assessments regarding information
provided by B.W., Kamila, and the witnesses, a lengthy analysis section at the end of
which it determined its finding of facts supported a conclusion that Kamila violated the
3
University's Sexual Harassment Policy, and a recommendation to expel Kamila without
terms for readmission and a minimum three-year ban from campus. Specifically, the IOA
Report found Kamila had engaged in nonacademic misconduct under Section VI of the
Student Code, which subjected University students and organizations "to disciplinary
action for violations of laws, published policies, rules and regulations of the University
and Kansas Board of Regents, and for the following rules related to the values of the
University where the university has jurisdiction." The IOA found Kamila violated the
University's core value of respect by:
• Engaging in sexual misconduct that included sexual harassment and sexual
violence as defined by http://policy.ku.edu/IOA/sexualharassment (Student Code
Section VI.A.1);
• Engaging in retaliatory behavior, direct or indirect, taken to or attempted to harass,
intimidate, or improperly influence any individual associated with the student
conduct process or any other University grievance or complaint process (Student
Code Section VI.A.2);
• Engaging in harm to persons by causing physical harm or endangering the health
or safety of any person (Student Code Section VI.A.4); and
• Engaging in stalking, which was defined as a course of conduct directed at a
specific person that was unwelcome and would cause a reasonable person to feel
fear (Student Code Section VI.A.7).
As a result of these Student Code violations, the IOA recommended that Kamila
"be expelled from the University without terms for readmission and receive a minimum
three-year ban from campus."
With regard to E.T., the IOA Report similarly provided a detailed summary of the
results of the interviews it had conducted with E.T. and Kamila as well the witness
identified by E.T., the documentary evidence, the University's Sexual Harassment Policy,
4
comprehensive findings of fact for the allegation, credibility assessments regarding
information provided by E.T., Kamila, and the witness, a lengthy analysis section at the
end of which it determined its finding of facts supported a conclusion that Kamila
violated the University's Sexual Harassment Policy, and a recommendation to expel
Kamila without terms for readmission and a minimum three-year ban from campus.
Specifically, the IOA found Kamila violated the University's core value of respect by:
• Engaging in sexual misconduct that included sexual harassment and sexual
violence as defined by http://policy.ku.edu/IOA/sexualharassment (Student Code
Section VI.A.1);
• Engaging in harm to persons by causing physical harm or endangering the health
or safety of any person (Student Code Section VI.A.4); and
• Engaging in stalking, which was defined as a course of conduct directed at a
specific person that was unwelcome and would cause a reasonable person to feel
fear (Student Code Section VI.A.7).
On July 24, 2017, Watson sent Kamila a letter informing him that both of the IOA
investigations were complete and that the IOA Report of Investigation had been
submitted to Watson for review in his capacity as Director of Student Conduct and
Community Standards. In this letter, Watson summarized the factual allegations against
Kamila, set forth the applicable sections of the Student Code Kamila was alleged to have
violated, informed Kamila that the results of the IOA investigation established Kamila
had violated those sections of the Student Code, and told him that the IOA recommended
Kamila be expelled from the University. Based on the IOA's recommendation of
expulsion, Watson advised Kamila that the cases would be resolved through a formal
hearing. In the letter, Watson makes reference to a prior communication, in which Kamila
apparently told Watson that he wanted to have the cases resolved through a single hearing
and that he planned to have two advisors attend the hearing with him, one of which was
his attorney. Watson advised Kamila in the letter that he was permitted to have up to
5
three advisors attend the hearing and that he could submit written materials into the
Formal Hearing Panel file as long as he did so at least six days before the hearing.
Watson further advised Kamila that the entire Formal Hearing Panel file would be
available for him to review beginning three days before the hearing.
The hearing was held on August 10, 2017. Kamila appeared at the hearing in
person and with his lawyer. The University presented testimony from seven different
witnesses, including the alleged victims, and Kamila's lawyer cross-examined five of
these witnesses. Kamila had the opportunity, but declined, to cross-examine the other
two. Kamila presented testimony from two witnesses and testified on his own behalf in
the form of an uninterrupted narrative, where he had the opportunity to "to tell [his] side
of the story" and "explain [himself]." Kamila submitted 137 pages of documentary
evidence for review by the hearing panel and referenced that evidence during his
testimony. After Kamila's testimony, Watson, B.W., E.T., and Kamila all gave closing
statements and the panel recessed to deliberate.
In an opinion letter sent to the Vice Provost a week after the hearing, the hearing
panel set forth its finding that Kamila had engaged in nonacademic misconduct violating
the Student Code and recommended that Kamila be permanently expelled from the
University and banned from campus for at least 10 years. This 23-page, single-spaced
letter set forth detailed facts in the record and systematically explained the rationale for
each of its findings. In this letter, the hearing panel expressly found that Kamila's denials
and overall version of events were not credible.
After carefully reviewing the IOA complaints, the documentary and testimonial
information presented at the hearing, the applicable provisions of the Student Code, and
the recommendations of the hearing panel, the Vice Provost issued a decision letter to
Kamila informing him of the agency's decision to expel him from the University for
nonacademic misconduct and to ban him from campus for a period of 10 years. Kamila
6
filed an internal appeal requesting review of the decision. The Judicial Review Board
reviewed his request and dismissed the appeal without a hearing, concluding that Kamila
failed to state a valid ground for appeal. Kamila then filed a petition for review with the
district court under the KJRA. After reviewing the agency record and the briefs, the
district court affirmed the University's decision to expel Kamila, finding he "failed to
meet his burden to prove that the University's actions were invalid on any of the grounds
asserted in the Petition." Kamila now appeals to this court.
Allegations relating to B.W.
Kamila met B.W. in April 2016 at a Mexican dance night sponsored by the
campus ministry group Called to Greatness (C2G) in Manhattan, Kansas. That was the
only time that Kamila interacted with or talked to B.W. in person. More than a month
later, Kamila sent the following Facebook message to B.W. at 12:49 a.m. from his
personal account:
"Hello [B.W.],
"I hope you are having a wonderful summer at work. Also, I hope you are
enjoying every bit of time ministering folks at the C2G as well. Thank you for that night
dancing with me, I missed you at that dance bar, as you weren't there. I enjoyed dancing
with you that night even though I am not that great at it, but you are awesome. You are a
jovial person, and you have a beautiful smile. You said that you would like to have a
study session together. Therefore, I would love to have a study session with you when
you come to KU; we got a new engineering library, and you may enjoy studying some of
the locations within the library. I am excited for your acceptance to KU, you will love it
here, as you will be closer to your home as well as to other good churches. I know that
you are a good student, maybe you can help me out to organize my notes, also anything
that will potentially be helpful. I am counting on you as you have something in you that I
don't have, and I would love to explore it, yay! Haha! I would love to be your friend. *If
there are any areas where I can invest in your life to help you grow then, I would love to
be a part of that as well. [Emojis omitted.]"
7
B.W. did not reply. A few months later, Kamila sent the following Facebook messages to
B.W., again from his personal account and again in the late night/early morning hours:
"Hi [B.W.],
"I haven't had a chance to share my desires with you, but soon I will. I hope you
are doing well.
"I haven't forgot about it. You were in my thoughts for the whole summer and I
have a list of things to share with you. I hope that your school is going well for you.
"If you are the person written in my life then by all means I would like to pursue
you of who you are. I really can't live this life by myself at all and I truly mean it.
"I am up awake thinking of you and I really don't know why?
"I was just reading the book of Genesis!
"I just felt like that you have a loving and kind mother.
"I am really excited to see you as person.
"Hello [B.W.],
"I just wanna tell you the truth that I have a crush on you, I am not playing
games, and I really don't see you as an object just like any typical guy will look at
someone else. I am thinking of you and I am praying for you as well. I will be giving you
a list of my desires. I will also make sure to point things out to you about why do I like
you or why am I attracted to you as well?
"This week on Sunday, I will be in Lawrence. If you were happen to visiting the
[Morning Star Church] then I will see you. Thinking and praying about you. [Emojis
omitted.]" (Emphasis added.)
B.W. did not respond and shortly thereafter blocked Kamila from all of her social media
accounts.
The day after she blocked Kamila from her social media, B.W. approached Rich
Lorenzo, the president of C2G who managed the campus ministries at each university in
Kansas in which it had a presence. Specifically, B.W. asked Lorenzo to speak with
Kamila and let him know that his advances and attempts to contact her were unwelcome
and were making her feel uncomfortable. Lorenzo passed that message on to the local
8
campus director, Wayne Simien. Although Simien initially tried to take care it, Lorenzo
ultimately had to speak to Kamila. Lorenzo explained to Kamila that he could continue to
be a part of C2G only if he stopped harassing women in the ministry, including sending
them messages after he had been blocked and told to stop. Lorenzo also specifically told
Kamila to stop contacting B.W. Lorenzo reported that it was a good conversation and that
Kamila was agreeable with everything they discussed. For his part, Kamila denied that
any such conversation took place.
About a week later, B.W. received the following Facebook messages from an
account going by the name of "Jake Foster":
"Can we be cool and awesome friends [B.W.]?
"I wanna talk to you [B.W.]
"I told [Lorenzo] that I will wish you a Happy Birthday, I just wanna say that
'Happy Birthday' to you [B.W.]. In other words, I will say 'Happy Birthday' bomb shell
bay bay, tehe. I got that name from your twitter account, so I like it[.]
"I know you are mad at me because I didn't add you but I will do everything to
compensate this to make you feel happy when I see you as person. I promise. . .
"[B.W.]! May lord bless you today, yay."
"Hi [B.W.], I apologize and I am sorry that I didn't add you on Facebook for
several reasons . . .
"1. I wanted to talk, get to know you, and hang out with you as person more than
through by social media.
"2. I just didn't wanna give you a wrong message with anything else[.]
"Etc. . .
"It's nothing secretive or I am hiding anything from you. I truly believe that I
wanna do a good job about knowing you. I felt hurt of seeing you little distant, as I have
let you known my interest towards you and I never had a chance to talk to you as a
person.
"Reason, I wanted to meet you at the church so that you may feel comfortable in
a social settings. I was thinking more of you. . .
"I added you on twitter[.]
9
"I wish you can see things little bit clearly for me and I really do wanna wish you
on your birthday.
"I truly believe that I will do a good job about being your awesome friend.
Thinking of you [B.W.].
"I want to reach out to you and I want to talk to you. You seem like an awesome
person that I am interested in. . .
"I wanted to ask you out if I would have seen you as person at Church. . .
"I truly believe that I care about you and I am attracted to you. . .
"I don't know how to talk to you as person and tell you everything. I hope you
can make things easier for me, as I felt sad of seeing you completely going mad of me not
adding you on Facebook and I feel sorry about it. I had reasons for it. . .
"I wanna meet you as person and be good about who I am. . .
"I never realized that we have almost the same facial structure and same eye
color as well. I realized that you got some calluses when I held your hand and it tells me
that you workout a lot.
"Its [sic] awesome [B.W.].
"I wanna wish and sent you something for your birthday, it's the only reason I
wanted to meet you this past Sunday. [Emojis omitted.]" (Emphases added.)
Based on the content of the messages and the unique writing style (particularly the use of
"as person" when the writer meant "in person"), B.W. believed that the Jake Foster
messages were coming from Kamila; therefore, she did not reply and blocked the
account. Kamila denied creating or using a Facebook account under the name Jake
Foster.
During this time, Lorenzo encouraged B.W. to stay away from C2G events
because he did not know whether Kamila would show up. When B.W. continued to
receive harassing messages, Lorenzo arranged to meet with Kamila again. At that second
meeting, Lorenzo reiterated that Kamila was to stop contacting B.W. Lorenzo then went a
step further and told Kamila that he was no longer welcome at either C2G or Morning
Star Church—a local church associated with C2G—events because "[w]omen [were]
scared to come to church." Kamila, again, denied that any such meeting took place. The
10
day after this second meeting with Lorenzo, Kamila contacted B.W.'s best friend on
Instagram to ask about B.W. The best friend did not respond for two weeks; but when she
did, she told Kamila to leave her and her friends alone because he was making them "feel
extremely uncomfortable." Kamila replied with a long and rambling message about his
feelings for B.W. That message purportedly prompted the best friend's husband to tell
Kamila to stop contacting his family.
A few months later, B.W. received flowers at her off-campus residence where she
lived with her cousin. The flowers were sent anonymously, but B.W. believed they were
from Kamila because they came with a note that reportedly contained similar themes and
used similar verbiage as his previous messages. This scared B.W. because she did not
know how Kamila found her address, which was not listed or otherwise publicly
available.
After the flowers incident, B.W. became fearful of the lengths that Kamila would
go to pursue her, particularly because she still did not know how he was able to discover
her address. She became worried that he may be following her or hacking into her
computer. She even considered moving because the cousin that she was living with had
small children in the house. To allay her fears and make another attempt to get Kamila to
stop contacting her, B.W. reached out to her brother (Brother) and asked him to talk to
Kamila.
Brother had first met Kamila a few years earlier when the two went to a movie
together as part of a larger group, but they did not remain in close contact after that.
When Brother realized that Kamila was the one harassing B.W. and her best friend, he
arranged to go to church with him and then get lunch afterward. During lunch, Brother
tried to let Kamila down easy while still being very clear that he was to leave B.W. alone.
Kamila reportedly asked Brother if B.W. thought he was "'weird because of the flowers'"
and if Brother could arrange for him to talk to B.W. one more time. Brother said he
11
would pass Kamila's message along to his sister, even though he knew already what B.W.
was going to say. At the end of the meeting, Brother made Kamila parrot back to him "'I
get it . . . I will stop contacting her.'" Brother walked away thinking it was a "'major
breakthrough.'"
A week later, however, B.W. reported to Brother that she was still receiving
messages from Kamila. Upon hearing this news, Brother texted Kamila to remind him
that he had agreed to stop contacting B.W. and to reiterate that B.W. did not want to be
his friend and did not want to talk to him or hear from him. Kamila responded by telling
Brother that he did not trust him and was not going to listen to him, making it clear to
Brother that he "had an objective . . . to be with [B.W.] no matter what the cost." Brother
later received threatening text messages from unknown phone numbers and believed that
they were from Kamila because of their content and their use of the phrase "as in person"
instead of "in person." For his part, Kamila claimed that Brother did not tell him to stop
contacting B.W. and denied sending any threatening text messages from unknown/fake
phone numbers.
On March 31, 2017, B.W. made a report about Kamila's conduct to Annie
McBride of the Emily Taylor Center for Women and Gender Equity who, in turn,
submitted a report to the IOA. Two days later, on April 2, 2017, B.W. received the
following Facebook message from an account going by the name of "Morgan Hashford":
"Dear [B.W.],
"For me, nothing matters to me than just having a friendship with you and define
who I am by being vulnerable to you, but I don't want guys to check out me. Last year, I
saw something in you, and at that time I believed in you. I know that you don't want to
set yourself a failure to me or something. I want you to explore everything about me, and
I want to do the same about you as in person. Everything I am writing is what I am
feeling right now about you. Not because someone asked me to do this… I want to know
your story, and I want to know what makes you a [B.W.]. Why on earth I had a crush on
12
[B.W.], not on [Brother]? Lol I am not trying to use you to replace my need, or neither I
am asking you to do this for me. I like your personality and your lovful [sic] heart. There
is nothing to hide about it. I don't want you to live in a fearful distant friendship because I
am not the kind of person you may be thinking. Individuals and community around you
are defining you things with fear-based, and it's not okay. Most of these people don't
know me very well, and I am upset that you can make this easier for me. I don't want to
be treated like I was by someone in the past. I prayed for you, and I certainly feel about
you, [B.W.]. I want to be a friend to you, and I want to hang out with you. I hope you will
please allow that to happen because I think about you and I am not sure who else to reach
out to about it. [Emojis omitted.]" (Emphasis added.)
B.W. did not reply and immediately blocked the "Morgan Hashford" account because she
believed, based on the content and the unique writing style, that the messages were from
Kamila. The Morgan Hashford account also sent the following Facebook messages to
Brother's girlfriend:
"In case you don't know about [Brother]. He actually slept with 50-60 girls in the
past. He used all those women for sex and this guy is just an awful prick. I know that you
felt for his looks and the time you know him. He and his sister are ex[ac]tly like him.
"I am trying to help you out that don't commit for more with this scumbag[.]
"He uses others for his own need[.]
"He told me that he wants you to come from Texas to Kansas[.]
"He is just the worst little do[u]chy guy."
Kamila denied creating or using a Facebook account under the name Morgan Hashford.
On April 3, 2017, B.W. filed a formal IOA complaint against Kamila. Kamila was
notified of the complaint and was issued a No Contact Directive regarding B.W. the next
day. Later that evening, Kamila was captured on security cameras entering Jayhawker
Towers A and C around the same time that disparaging fliers about C2G and the Morning
13
Star Church were distributed in those areas. Those fliers featured the photos and names of
leaders from both organizations and stated:
"BEWARE OR FAKE MINISTRY AND REMEMBER THESE PICTURES!!
CALL 911 AND REPORT IT TO COP WHENEVER YOU SEE ANYONE OF THESE
PEOPLE WHO ARENT A STUDENT. PROTECT YOURSELF FROM THESE
PEDOPHILES AND SPREAD THE WORD ACROSS CAMPUS!
"If anyone of these people tries to reach out to you, talk to you, share any false
gospel or ask you to come to 'Called To Greatness' or 'Morning Star Church' by all
means, refrain from going or even committing to it. These are selfish racist punks. They
treat minorities and people of color with disrespect. Not to mention, some of these pricks
physically and mentally abused, threatened, stalked, and assaulted a lot of students. They
are the worst human beings on earth. PLEASE DO NOT FALL FOR THESE
MANIPULATORS OR IGNORANT REDNECKS."
And on May 5, 2017, a Facebook account going by the name of "Melania Trump"
initiated the following message exchange with B.W.'s friend, G.O.:
"[Trump:] Stay away from [B.W.] as she isn't a trust worthy [sic] girl. She will
hurt you as she is a player. She is part of cult group of people on town.
"It's for your good sake, please stay away from her[.]
"[G.O.:] Sorry whose [sic] this?
"[Trump:] You don't need to know[.] I am trying to save yo[u] from this girl[.] I
am her ex-boyfriend[.] You[.] She has done the same thing to other guys as well[.] Her
brother name . . . is a corrupted con artist[.] Stay away from these people[.] They will use
you and then throw you away[.] She added you on Facebook to stalk your profile[.]
"[G.O.:] Okay I really appreciate your concern but I think I can make my own
decisions. And it would be great if you would stop speaking ill of others.
"[Trump:] 1st Amendment rights[.] I will do whatever I can[.] I am doing a favor
for you[.] I am not here to hurt you[.]
"[G.O.:] Thank you Mrs. Trump but I'll be just fine[.]
"[Trump:] You will remember me later on what I just told you about it[.] She is
a con artist[.] Don't fall for it[.] [T]hanks[.] Have a goodnight[.]
14
"[G.O.:] Please don't communicate with me anymore as I don't believe you[.]
"[Trump:] Well! Ask some of her prior people that she interacted with[.] I was
just like you[.] I was wrong later on as people told me the truth about her[.] She slept
with quite a bit of guys[.]
"[G.O.:] And you're done.
"[Trump:] Can you say this to my face as in person? If you have balls[.] Fuck
yourself douche[.]" (Emphasis added.)
G.O. did not reply to the last message and blocked the Melania Trump account. The next
day, however, G.O. received the following Facebook message from an account going by
the name of "Donaldico Trump": "[S]tay the fuck out of [B.W.] or any [B.W.'s family],
they are evil and fake people[.]"
G.O. did not reply. B.W. later stated that, based on the content as well as the
unique verbiage and writing style of the messages, she believed Kamila was responsible
for both Trump accounts. Kamila denied creating or using a Facebook account under the
name Melania Trump or Donaldico Trump.
A week later, B.W. received a phone call from an unknown number at
approximately 3 a.m., which woke her up and led to the following text message
exchange:
"[Unknown Number:] Hey [B.W.]
"[B.W.:] Who is this?
"[Unknown Number:] What's up [B.W.]?
"[B.W.:] I think you have the wrong number.
"[Unknown Number:] Nope! I am the one who cares about you and have interest
in you. . . You shouldn't have treated me poorly despite the fact whoever asked you to do
so. I genuinely liked you and I had an interest to take you out or so. . . . I wish you would
have made things little easier for me [B.W.]. *bit. You chose to hurt me for no reason. I
forgive you for it. Can we atleast [sic] meet sometimes and talk? You never had an actual
15
conversations with me to know the kind of guy I am for you. . . *As I know that you were
asked to do so, also whoever shared false stuff about me are just a gossiper which is fine.
I would have shared everything about me to you as in person to you, if you would have
hung out with me. . . Instead of listening to false made up biased who doesn't know me as
in person. . . *biases. I mean, I really wanted to have a meaningful conversations with
you and I wanted to be a good friend to you etc. . . Let me be honest about why I was
interested in you. . . 1. You were a good student->It was attractive to me and you can't
deny that ->I know that lot of Kansas conservatives or republicans or there are people
who wouldn't like you because of that, but I am opposite because it's what I like about
you. 2. I saw something in you and I felt for it not because you are beautiful but
something I saw in you and I know it. 3. You are Christian and you have values to go
with. 4. I thought that you will help me in certain areas as I wanted to work things out
with you. 5. Your BS clearly tells me that you know how to deal with conflicts etc, so I
was convinced that you are good with communications. 6. I like your lifestyle choices, I
meant->working out, playing basketball, etc->I want you to but you didn't me share all
these as in person. 7. You like beach, and adventure, just like I do. I wish would have
shown you theng [sic] at beach or going for a walk something->I guess it was just a
dream and currently it looks all fake to me because of evil cult person name [name
omitted] (you may not see it, but he is). Anyways, it's all I got for you. You already know
the rest I shared in the past. I hope you enjoy the rest of your night sleeping."
B.W. did not respond because she believed, based on the content as well as the unique
verbiage and writing style, that the text messages were from Kamila. This scared her
because, as with her off-campus address, B.W.'s phone number was unlisted, and she did
not know how Kamila found it. Kamila denied having B.W.'s phone number and also
denied using a fake/unknown number to call and text her.
During the IOA investigation and at the administrative hearing, B.W. repeatedly
described how Kamila's conduct had a negative impact on her academics and caused her
to fear for her safety both on campus as well as at home. She also described how his
conduct caused her to experience nightmares and a high degree of stress because she did
16
not know how he found her private information or "what he was capable of." B.W. said
she "felt threatened in every way of [her] life."
Allegations relating to E.T.
Kamila met E.T. on April 5, 2017, at a Velocity Church/All Saint's Church college
life group. Afterwards, E.T. sent Kamila the following text message:
"Hey Ray! It's [E.T.] from group tonight. So tomorrow with Campus Christians
at 7 o'clock we have a worship service at 1320 Ohio st. You should totally try to stop by.
We have a great group of guys that would can get plugged in with and if you're interested
in a men's bible study with them after meeting them I can give you that information, as
well as a meal we all have on Mondays. We have a really great community built up and
would love for you to join the family. Also thank you for being so honest tonight. It was
nice to hear your story and get to know more about you. Hope to see you tomorrow!!"
E.T. later said that she reached out to Kamila because her faith called her to love others
and her church was all about telling others that they belong. The two exchanged a number
of text messages over the next few days, most of which consisted of religious songs,
Bible passages, and prayer requests. Kamila also sent E.T. a collage of clothed selfies and
photos from a microbiology lab at Purdue University for E.T. to show her roommate. As
time went on, however, Kamila sent E.T. more and more messages, and her replies
became less and less frequent until she stopped responding entirely on April 11, 2017.
E.T. later said the texts, songs, and photos were "just a whole lot really fast" that made
her feel uncomfortable. E.T. also believed Kamila was manipulating her because he
repeatedly referred to her as his "'sister in Christ'" and she "didn't want to be the jerk that
said, no I don't want to be your sister in Christ." She believed Kamila was using her
religious beliefs against her.
17
Despite not receiving any more responses, Kamila continued to text E.T. On
April 11, Kamila texted E.T. 18 times. He sent her nine more text messages between
April 12 and April 16, letting her know that he wished her well and that he enjoyed
seeing her or missed seeing her at Campus Christians events. He also sent her additional
photos, religious songs, and links to sermons and articles from the website
desiringgod.org. Again, E.T. did not respond to any of those messages. At this point, E.T.
asked Matt Myer, a leader within the Campus Christians organization, to speak to Kamila
and tell him to stop contacting her. Although Myer had not personally observed Kamila
showing a particular interest in E.T., Myer concluded from the facts provided by E.T. that
Kamila was trying to pursue a romantic relationship with her. In fact, Kamila had
expressed his desire to have a family during a Bible study session and said it was his goal
to be married within a year.
On April 25, 2017, Myer spoke to Kamila about his interactions with E.T. after a
men's Bible study at the Campus Christians house just off the University's campus. Myer
made it clear that Kamila was making E.T. feel uncomfortable and that Kamila needed to
stop contacting her. Kamila asked if he could reach out to E.T. to apologize, but Myer
said no. At the end of the conversation, Myer believed he and Kamila were "on the same
page" about Kamila not contacting E.T. But immediately after leaving the Campus
Christians house, Kamila went to the University's Anschutz Library where E.T. was
studying with friends. Kamila walked straight up to her and—with what E.T. later
described as a "very firm" look about him—asked to speak with her privately. E.T. was
scared and believed that Kamila might physically hit her, but she went with him anyway
to a quiet study area near the stacks. When they were alone and out of sight of E.T.'s
friends, Kamila told E.T. that he never intended to make her feel uncomfortable. E.T.
tried to explain that he was just "way too much too fast," but he was not listening to what
she was saying, so she eventually just let him talk, even though she said he was not
making much sense.
18
When Kamila was done talking, he followed E.T. back to where her friends were
studying and asked if he could join them. E.T. was still scared of what Kamila might do
so she stayed silent; she did not say no but she also did not say yes. Kamila sat down.
After doing so, Kamila asked E.T. if she would review a video that he made for one of
his classes. Kamila claimed that peer reviews were required for the assignment. A later
review of the class syllabus, however, revealed that this was not the case. E.T. reluctantly
gave Kamila her University e-mail address, which led to the following e-mail exchange:
"On Apr[il] 25, 2017, at 10:42 PM, Kamila . . . wrote:
"[attached a YouTube link].
"On Apr[il] 26, 2017, at 11:16 AM, Kamila . . . wrote:
"This is private [E.T.] :), so please don't forward or share it with anyone else.
Thank you for being an awesome sister-in-christ and understanding me.
"—Ray
"On Apr[il] 27, 2017, at 12:52 AM, Kamila . . . wrote:
"Hey [E.T.],
"I didn't get a response back from you. I hope you did well on your child
development test yesterday. This video, It's actually for one of my current class
[sic] that I am in, and if you feel like sending feedback it to me then it's kind of
you, else it's okay. I meant to sent this to you as you mentioned that you will do it
to me on Tuesday night when I met you as in person at 2nd floor of Anschultz
library.
"—Ray
"On Apr[il] 27, 2017, at 7:58 AM, [E.T.] . . . wrote:
"Stop talking to me.
"[E.T.]
"[On April 27, 2017, at 9:24 AM, Kamila wrote:]
"Great! I wish you wouldn't have shared email with me and offered to help me as
in person. Hope you have a great week!
"—Ray" (Emphases added.)
19
Immediately after the library confrontation, E.T. called Myer to tell him what happened.
After learning about Kamila's actions, Myer met with Kamila for a second time and
informed Kamila that he was no longer welcome at Campus Christians events and
reiterated that Kamila must stop contacting E.T. Kamila responded by sending Myer
threatening text messages from multiple phone numbers and filing a police report
alleging that Myer assaulted him. The assault claims were later deemed not credible by
the Lawrence Police Department. Kamila, for his part, denied that this second
conversation with Myer ever took place and stated that he was never asked to stop
contacting E.T. He also described the library incident much differently and claimed that
E.T. waved at him when he walked in, acted very friendly towards him, and told him that
he could sit at her table. Finally, Kamila denied having any romantic interest in E.T.
E.T. filed a formal IOA complaint against Kamila and requested that a No Contact
Directive be issued. Kamila was notified of both the complaint and the order of no
contact later the same day. In the complaint, E.T. stated that she was having nightmares
about the possibility of Kamila hurting her or her friends as well as him potentially
stalking her outside of her residence hall. She also claimed she was experiencing an
increased level of anxiety, which made it more difficult for her to concentrate in class and
focus on her homework. Later, at the administrative hearing, E.T. reported that she lost 7
to 10 pounds in a month because she was too scared to eat, that she needed people to
walk her to and from classes and sit with her at work because she was never sure if
Kamila would show up, and that she had to request accommodations on her finals
because the anxiety had caused her to "'shut down.'"
ANALYSIS
The KJRA governs judicial review of agency actions. K.S.A. 77-603(a). Under the
KJRA, a court may grant relief on judicial review in limited circumstances. See K.S.A.
77-621(c) (reviewing court shall grant relief only when it determines that agency violated
20
one or more of eight provisions listed). An appellate court exercises the same statutorily
limited review of the agency's decision as does the district court, so we review the
agency's decision as if it had been appealed directly to this court. Kansas Dept. of
Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010); see K.S.A. 77-623
("Decisions on petitions for judicial review of agency action are reviewable by the
appellate courts as in other civil cases."). The party asserting the invalidity of an agency's
action bears the burden of proving invalidity. K.S.A. 77-621(a)(1); Bd. of Cherokee
County Comm'rs v. Kansas Racing & Gaming Comm'n, 306 Kan. 298, 318, 393 P.3d 601
(2017).
The agency decision at issue here is set forth in the August 24, 2017 letter from
the Vice Provost informing Kamila of the University's decision to expel him from the
University for nonacademic misconduct and to ban him from campus for a period of 10
years. In support of his claim that the University's actions in expelling him are invalid,
Kamila relies on the following three statutory provisions:
1. The University acted beyond the jurisdiction conferred by any provision of law
(K.S.A. 77-621[c][2]);
2. The University's findings and resulting sanctions are based on determinations of
fact that are not supported to the appropriate standard of proof by evidence that is
substantial when viewed in light of the record as a whole (K.S.A. 77-621[c][7]);
and
3. The University's actions are otherwise unreasonable, arbitrary, or capricious
(K.S.A. 77-621[c][8]).
1. Jurisdiction
The KJRA allows a court to reverse a decision by an administrative agency if "the
agency has acted beyond the jurisdiction conferred by any provision of law." K.S.A. 77-
21
621(c)(2). Kamila argues the University expelled him for off-campus conduct, which is
an agency action beyond the jurisdiction conferred by the University's own Student Code
and by Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (2016)
(Title IX).
Student Code
As used in the Student Code, "[t]he term 'jurisdiction' applies to behavior (1) on
University premises; (2) at University sponsored activities; (3) off-campus when the
behavior affects the on-campus safety of a member of the University community or
University operations; or (4) when the University is required by law to address the
behavior." On appeal, Kamila does not dispute the University's jurisdiction to discipline
him for engaging in the sexual misconduct and retaliation that occurred on University
premises; therefore, he has waived any claim related to that jurisdictional issue. See State
v. Williams, 298 Kan. 1075, 1083, 319 P.3d 528 (2014) ("When a litigant fails to
adequately brief an issue it is deemed abandoned."). Instead, his sole argument is that the
off-campus conduct attributed to him is insufficient to confer jurisdiction on the
University to sanction him under the Student Code because there was no evidence
presented at the hearing to establish that he was physically located on campus at the time
he engaged in the sexual misconduct and retaliation.
Interpretation of administrative regulations presents a question of law subject to de
novo review; we give no deference to an agency's interpretation of its regulations.
Central Kansas Medical Center v. Hatesohl, 308 Kan. 992, 1002, 425 P.3d 1253 (2018).
We interpret the Student Code as we would a statute. See Yeasin v. University of Kansas,
51 Kan. App. 2d 939, 951-52, 360 P.3d 423 (2015). The most fundamental rule of
statutory construction is that the intent of the legislative body governs. Harsay v.
University of Kansas, 308 Kan. 1371, 1381, 430 P.3d 30 (2018). An appellate court must
first attempt to ascertain the legislative intent through the statutory language enacted,
22
giving common words their ordinary meanings. Nauheim v. City of Topeka, 309 Kan.
145, 149, 432 P.3d 647 (2019). Where a statute is plain and unambiguous, an appellate
court should not speculate about the legislative intent behind that clear language, and it
should refrain from reading something into the statute that is not readily found in its
words. Harsay, 308 Kan. at 1381. Only if the statute's language or text is unclear or
ambiguous does the court resort to canons of construction or use the legislative history to
construe the legislative body's intent. Nauheim, 309 Kan. at 150.
By our reading of the plain language, the University has jurisdiction to discipline
University students and organizations when they engage in nonacademic misconduct off-
campus when the misconduct affects the on-campus safety of a member of the University
community or University operations. Kamila disagrees about the plainness, contending
the language "is ambiguous because it casts a wide net of general authority over any
remote act, by anyone, that might cause any student to feel slightly less safe while on
campus." Given this ambiguity, Kamila argues we must look to the legislative history of
the Student Code to determine the meaning of the language. But Kamila's interpretation
of the Student Code as ambiguous stretches it beyond its breaking point. It does not, as he
claims, apply to "any remote act" occurring off-campus but instead only applies to
specific conduct affecting on-campus safety and University operations, which includes
off-campus behavior that is detrimental to creating an "environment that is conducive to
academic inquiry, a productive campus life and thoughtful study and discourse" as well
as nonacademic misconduct such as sexual harassment, retaliation, harm to persons, and
stalking—all of which are defined in the Student Code. Moreover, the Student Code does
not apply to "anyone" but instead is limited to members of the University community.
Relevant here, that includes students which the Student Code defines as:
"[A]ll persons enrolled at the University [and] . . . also includes individuals who confirm
their intent to enroll in programs or attend orientation sessions, regardless of whether the
individual is actually enrolled, and those who were enrolled at the date of an alleged
23
incident. In addition, persons who withdraw after allegedly violating the Student Code or
who are not officially enrolled for a particular term but who have a continuing
relationship with the university are considered 'students.'"
Giving those words their ordinary meanings, the jurisdictional scope of the
Student Code is clear and unambiguous. See Nauheim, 309 Kan. at 149-50. As a result,
we will not speculate about the legislative intent behind that clear language or read into it
provisions that do not already exist. See Harsay, 308 Kan. at 1381. Nor will we, as
Kamila suggests, look to the Student Code's alleged legislative history to divine the intent
behind the plain language of the provision. See Nauheim, 309 Kan. at 150.
Title IX
Kamila claims the University acted beyond the jurisdiction conferred by Title IX
by investigating and disciplining him for off-campus conduct. Title IX provides that "[n]o
person in the United States shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any education program
or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a) (2016). Under
Title IX, a school receiving federal funds may be liable for its own conduct in being
deliberately indifferent to student-on-student harassment that is "so severe, pervasive, and
objectively offensive that it effectively bars the victim's access to an educational
opportunity or benefit." Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633, 119 S.
Ct. 1661, 143 L. Ed. 2d 839 (1999).
Kamila cites to Davis and Roe v. St. Louis University, 746 F.3d 874 (8th Cir.
2014), to support his claim that the University did not have jurisdiction to investigate and
discipline him for off-campus conduct under Title IX. Specifically, he cites these cases
for the legal principle that an educational institution subject to Title IX is liable for its
own misconduct only when the institution exercises significant control over the harasser.
24
526 U.S. at 645. Kamila then incorporates this legal principle into the following
jurisdictional argument:
• The University disciplined him based on findings of off-campus misconduct.
• Because the University did not exercise significant control over any off-campus
conduct in which he engaged, the University is not liable under Title IX for any of
his off-campus conduct.
• Because the University is not liable under Title IX for any for any of his off-
campus conduct, the University did not have jurisdiction under Title IX to
investigate or discipline him for any off-campus misconduct.
But Kamila's argument on this point is a logical fallacy; specifically, a red herring. A red
herring is a diversionary tactic used in an argument that introduces an irrelevant issue,
usually to avoid addressing the key argument. Kamila's argument is a red herring because
it introduces an irrelevant issue into the argument—that the University can be liable for
its own misconduct when it exercises significant control over a harasser—when the issue
he presents for decision is whether the University had jurisdiction to investigate and
sanction him for off-campus misconduct under Title IX.
Moreover, Kamila's argument fundamentally misrepresents the purpose of Title
IX, which is not—as Kamila suggests—to place limits on jurisdiction to investigate
discrimination and harassment on the basis of sex in the educational setting. See 20
U.S.C. § 1681 et seq. Instead, the purpose of Title IX is to impose an affirmative duty on
educational institutions receiving federal funds to take immediate and appropriate steps to
investigate and end possible student-on-student sexual misconduct or face liability as a
result. See Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 890-91, 9 P.3d
1251 (2000). Title IX regulations are enforced and investigated by the United States
Department of Education Office for Civil Rights. The ultimate penalty that can be
imposed on the educational institution for noncompliance with Title IX regulations is to
25
cut off federal funding to the educational institution, including monies earmarked for
student loans. 20 U.S.C. § 1682 (2016). Contrary to Kamila's argument, there is no
provision in Title IX that places limits on jurisdiction to investigate discrimination and
harassment on the basis of sex in the educational setting. See 20 U.S.C. § 1681 et seq.
In sum, the University has jurisdiction under its Student Code and its sexual
harassment policy to discipline University students and organizations when they engage
in nonacademic misconduct off-campus when the misconduct affects the on-campus
safety of a member of the University community or University operations. This policy
encompassing off-campus misconduct is consistent with the United States Supreme
Court's mandate that a school receiving federal funds may be liable under Title IX for its
own conduct in being deliberately indifferent to student-on-student pervasive sexual
harassment and retaliation that "effectively bars the victim's access to an educational
opportunity or benefit." Davis, 526 U.S. at 633. Kamila's arguments to the contrary are
unavailing.
2. Sufficiency of the evidence
Kamila claims there was insufficient evidence to support the University's decision
to expel him. Under K.S.A. 77-621(c)(7), we may grant relief if the agency's action is
based on a determination of fact that is not supported "by evidence that is substantial
when viewed in light of the record as a whole." The phrase "in light of the record as a
whole" includes evidence both supporting and detracting from an agency's finding.
K.S.A. 77-621(d). As a result, we must determine whether the evidence supporting the
agency's factual findings is substantial considering all the evidence. In re Equalization
Appeal of Wagner, 304 Kan. 587, 599, 372 P.3d 1226 (2016). Evidence is substantial
when a reasonable person would accept it as sufficient to support a conclusion. Geer v.
Eby, 309 Kan. 182, 190, 432 P.3d 1001 (2019). When reviewing the evidence in light of
the record as a whole, we do not "reweigh the evidence or engage in de novo review."
26
K.S.A. 77-621(d). So even if there appears to be evidence supporting the University's
decision, Kamila's claim here requires us to consider whether that evidence "'has been so
undermined by cross-examination or other evidence that it is insufficient to support the
agency's conclusion.'" Romkes v. University of Kansas, 49 Kan. App. 2d 871, 889, 317
P.3d 124 (2014).
B.W.
With regard to B.W., the University determined that Kamila violated the Student
Code by engaging in sexual misconduct, retaliation, behavior endangering the health or
safety of a person, and stalking. The University issued a letter informing Kamila of its
decision to expel him and provided a detailed factual basis for its decision. Highly
summarized, the letter set forth the following findings of fact: (1) Kamila used multiple
mediums, including fake phone numbers and alias Facebook accounts, to contact B.W.
and her friends, even after he was told multiple times to stop and issued a no-contact
directive by the IOA; (2) Kamila sent flowers to B.W.'s unlisted and off-campus address
anonymously; (3) Kamila's actions were designed to initiate a romantic relationship with
B.W. and were therefore based on sex or gender stereotypes; (4) Kamila retaliated against
B.W., after his advances were spurned, by making derogatory statements about her, her
family, and her friends and by publishing defamatory flyers about her church group in
Jayhawker Towers; and (5) Kamila's denials of some these actions and his version of
events were both not credible.
Kamila claims the evidence supporting the University's finding that he sent B.W.
and her friends messages from fake phone numbers and alias Facebook accounts—and
that he also sent B.W. anonymous flowers on Valentine's Day—was thin, at best, and did
not rise to the level of substantial evidence. In particular, Kamila takes issue with what he
calls the "suppositions" underlying the University's findings—namely that he was the
only one that had an issue with B.W. and her friends and that he was the only one that
27
used the phrase "as in person"—and argues that the findings are not based on evidence
but instead on pure speculation. But the University's finding that Kamila was responsible
for the anonymous messages was not based on the fact that he was the only one who
might have an issue with B.W. Rather, its finding was based on the content of the
messages themselves—which it found to contain similar themes, common spellings, and
unusual phrases—as well as what the administrative panel determined was Kamila's
motive to develop a romantic relationship with B.W.
In reviewing the citations to the record in his brief, it appears that the true basis for
Kamila's claim of insufficient evidence with respect to B.W. is that there are disputed
issues of fact in the administrative hearing transcript: Kamila repeatedly testifies that he
did not engage in any of the alleged misconduct while B.W. and her witnesses—Brother,
Lorenzo, McCreery, and J.L.—testified that he did. But after personally watching all the
witnesses testify, hearing the substance of that testimony, and considering the
documentary evidence presented, the administrative hearing panel expressly determined
Kamila was not credible:
• Kamila said B.W. voluntarily communicated with him in person at a conference,
and he had a photo of her to prove it. Kamila produced a photo but B.W. was not
in the picture. B.W. testified she did not attend the conference. The hearing panel
determined Kamila's testimony was not credible.
• Lorenzo testified that the first time he told Kamila to stop contacting B.W.,
Lorenzo believed it was a good conversation after which Kamila felt remorseful
for inadvertently making B.W. feel uncomfortable. Lorenzo testified that the
second time he told Kamila to stop contacting B.W., the conversation was very
different; Kamila reacted defensively and said Lorenzo did not understand the
situation. Kamila testified at the hearing that Lorenzo did not ever have a
conversation with him asking him to stop contacting B.W. The hearing panel
determined Kamila's testimony was not credible.
28
• Kamila denied creating and using a Facebook account under the name Jake Foster.
In light of the contradictory evidence in the record, the hearing panel determined
that Kamila's denial was not credible.
• Kamila testified that he never sent messages from any Facebook page other than
his own, including from an account under the name Morgan Hashford. The
hearing panel determined that Kamila's testimony was not credible and concluded
from the evidence presented at the hearing that Kamila did send messages from a
Facebook account under the name Morgan Hashford.
The hearing panel's credibility decision is not one this court can or should
overturn. K.S.A. 77-621(d) (in deciding whether there is sufficient evidence to support an
agency's decision, court looks at confirming as well as detracting evidence, the agency's
credibility determinations, and agency's explanations for its ruling); see Hudson v.
Kansas Public Employees Retirement System Bd., 53 Kan. App. 2d 309, 317, 388 P.3d
597 (2016) ("Personal observation is important because the statute specifically notes the
value of actual observation of the witness when credibility determinations are made.").
Next, Kamila claims that evidence supporting the University's finding that he
retaliated against B.W. by posting defamatory flyers about her church group in
Jayhawker Towers was not substantial. Kamila argues the camera footage only showed
him entering the Towers and nobody testified that they actually saw him
posting/distributing the flyers. Although there was no direct evidence that Kamila posted
the flyers, there was indirect evidence to support a reasonable inference that he did so. A
reasonable person could infer from the content of the flyers and Kamila's proximity to
where they were posted at the time they were posted that Kamila was the person who
posted them.
Finally, Kamila claims there is an underlying legal flaw in the University's finding
that he was the one to post the flyers; specifically, the University failed to expressly state
29
that—by a preponderance of the evidence—he was "the person who entered Jayhawker
Tower[s] and posted the flyers."
In its recommendation to the Vice Provost, the hearing panel found by a
"preponderance of the evidence" that
"[o]n 4/4/17, Mr. Kamila is captured on KU Housing security footage entering
Jayhawk[er] Towers A & C 'at times consistent with the distribution' of disparaging fliers
with pictures and names of leaders and a student of Called to Greatness and Morningstar
Church, including [names omitted]. The flier calls for students to call 911 if they see these
individuals because they are 'pedophiles' and members of a 'fake ministry.'"
In the decision letter to Kamila informing him of the agency's decision to expel
him from the University for nonacademic misconduct, the Vice Provost stated:
"Based on a preponderance of information in the case involving [B.W.], the hearing panel
has found you in violation of the Code of Student Rights and Responsibilities Article 19.
After reviewing all the information in this case, I concur with the find[ing]s of the panel
. . . based on the following:
....
"• On 4/4/17, you are captured on KU Housing security footage entering
Jayhawk[er] Towers A & C 'at times consistent with the distribution' of
disparaging fliers with pictures and names of leaders and a student of Called to
Greatness and Morningstar Church, including [names omitted]. The flier calls for
students to call 911 if they see these individuals because they are 'pedophiles' and
members of a 'fake ministry.'"
The University of Kansas is an agency of the State of Kansas. Under K.S.A. 77-
526(c), an agency is required to include the following information in its initial or final
order:
30
"separately stated, findings of fact, conclusions of law and policy reasons for the decision
if it is an exercise of the state agency's discretion, for all aspects of the order, including
the remedy prescribed and, if applicable, the action taken on a petition for stay of
effectiveness. Findings of fact, if set forth in language that is no more than mere
repetition or paraphrase of the relevant provision of law, shall be accompanied by a
concise and explicit statement of the underlying facts of record to support the findings."
Although the decision letter does expressly identify Kamila as the person who
entered Jayhawker Towers and posted the flyers, the finding of fact (by a preponderance
of the evidence) expressed by the agency in its decision letter as set forth above satisfies
the statutory provision requiring an agency to state its findings of facts and, if those facts
are set forth in the language of the Student Code, to include a "concise and explicit
statement of the underlying facts of record to support the findings." K.S.A. 77-526(c).
For all of the reasons stated above, we conclude the factual findings made by the
University to support its decision to expel Kamila based on his conduct directed at B.W.
are supported by evidence that is substantial when viewed in light of the record as a
whole. See K.S.A. 77-621(c)(7) and (d).
E.T.
With regard to E.T., the University determined that Kamila violated the Student
Code by engaging in sexual misconduct, behavior endangering the health or safety of a
person, and stalking. On appeal, Kamila does not challenge the sufficiency of the
evidence supporting the University's finding that he stalked and endangered E.T.;
therefore, he has waived any claims related to those provisions. See Williams, 298 Kan. at
1083 ("When a litigant fails to adequately brief an issue it is deemed abandoned.").
Kamila does, however, challenge the sufficiency of the evidence as it related to the
University's finding that he sexually harassed E.T.
31
The University issued a letter of expulsion to Kamila providing a detailed factual
basis for its decision. Highly summarized, the letter set forth the following findings of
fact: (1) Kamila contacted E.T. repeatedly via text message after meeting her at an off-
campus Campus Christians event; (2) Kamila was told to stop contacting E.T. because it
was too much too fast and he was making her uncomfortable; (3) immediately after being
told to stop contacting E.T., Kamila tracked her down and confronted her in the Anschutz
Library; (4) Kamila lied about an assignment to obtain E.T.'s University e-mail address
and sent her numerous messages after the confrontation in the library; (5) Kamila's
behavior towards E.T. was based on sex and gender stereotypes because he wanted to be
married within a year and thought that her kind and friendly nature made her a good
target for that goal; and (6) Kamila's denials of some of these actions and his version of
events were both not credible.
In support of his claim that there is insufficient evidence to support these findings,
Kamila first argues that his conduct was not severe, pervasive, and objectively offensive.
But this argument finds little support in the record. While it is true that Kamila's
interaction with E.T. lasted less than a month, the relevant inquiry is the amount of
interaction he had with E.T. in that short period of time. The record reflects that on April
11, Kamila texted E.T. 18 times. He sent her nine more text messages between April 12
and April 16. E.T. did not respond to any of those messages. She asked Myer for help,
and Myer met with Kamila and asked him to stop contacting her. Immediately after that
meeting, Kamila found E.T. at the library on campus and led her away from her table of
friends, appearing "very firm." E.T. was scared he was going to hit her, and he was not
making sense. E.T. told Kamila in the library it was "too much too fast." Minutes later,
however, Kamila joined her at the table in the library and then took advantage of E.T.'s
fear and lied about a homework assignment to obtain her e-mail address so that he could
continue interacting with her. Days later, Kamila sent her another e-mail after she wrote
to him to "[s]top talking to me." In his brief, Kamila appears to concede that, for at least
the last three days of their interactions, E.T.'s behavior indicated she feared for her life.
32
The library incident, in which Kamila blatantly ignored Myer's and E.T.'s express
requests to leave her alone and confronted E.T., is severe behavior that would offend and
scare any reasonable person. But that incident does not stand in isolation; it must be
viewed in light of the full pattern of Kamila's pervasive text, e-mail, and personal
communications, which includes 38 messages in 11 days, 9 of them going with no
response. As explained above, the text messages were unwelcome and were the reason
E.T. sought help from Myer. We find sufficient evidence supports the finding that
Kamila's conduct amounted to severe, pervasive, and objectively offensive behavior as
defined by the University's sexual harassment policy.
Next, Kamila claims that even if his behavior could be considered harassment,
there is no evidence to suggest that it was based on gender or sex stereotypes. To support
this claim, Kamila points to (1) E.T.'s testimony that she never received any messages
with a romantic connotation and (2) his own testimony that he never viewed E.T. as a
potential romantic partner. But this argument ignores Myer's testimony about how
Kamila had expressed a desire to be married within a year. Kamila's argument also
ignores Myer's testimony that Kamila appeared to single out E.T. at Campus Christians
events in a way that indicated he wanted to build a friendship with the hopes that it would
become a romantic relationship. And finally, Kamila's argument ignores E.T.'s testimony
that Kamila had told other guys within Campus Christians that he wanted to pursue a
wife while at the same time singled her out from the other women in the group. So while
it is true that Kamila never expressly told E.T. that he had a romantic interest in her, there
is sufficient evidence from which a reasonable person could infer that Kamila's conduct
towards her was based on gender or sex stereotypes.
We conclude the factual findings made by the University to support its decision to
expel Kamila based on his conduct directed at E.T. are supported by evidence that is
substantial when viewed in light of the record as a whole. See K.S.A. 77-621(c)(7) and
(d).
33
3. Arbitrary and capricious
Kamila argues that the University's decision to expel him was arbitrary and
capricious because: (1) he was denied procedural due process when the University based
its investigation—and its decision to expel him—on prior, unsubstantiated allegations;
(2) he was not given an equal opportunity to present his case during the disciplinary
hearing; and (3) the University failed to make specific findings of fact.
A court may grant a petitioner relief if it determines that the agency action is
unreasonable, arbitrary, or capricious. K.S.A. 77-621(c)(8). "Under Kansas law, an
agency acts arbitrarily and capriciously when its actions are overtly and patently in
violation of the law or are unreasonable and without foundation in fact." Romkes, 49 Kan.
App. 2d at 892; see Via Christi Hospitals Wichita, Inc. v. Kan-Pak, LLC, 310 Kan. 883,
891, 451 P.3d 459 (2019) ("'Essentially, the test under K.S.A.77-621[c][8] determines the
reasonableness of the agency's exercise of discretion in reaching its decision based upon
the agency's factual findings and the applicable law.'"); In re Protests of Oakhill Land
Co., 46 Kan. App. 2d 1105, 1115, 269 P.3d 876 (2012) ("A challenge under K.S.A. 2010
Supp. 77-621[c][8] attacks the quality of the agency's reasoning."). Useful factors for
evaluating arbitrary and capricious claims "include whether the agency's explanation of
its action runs counter to the evidence before it and whether the agency's explanation is
so implausible that it could not be ascribed to merely a difference in views." Romkes, 49
Kan. App. 2d at 892.
Procedural due process in the investigation and hearing
Kamila argues that the University's decision to expel him was arbitrary and
capricious because it was based, in part, on prior unsubstantiated allegations of
misconduct, not on evidence obtained through an adequate, reliable, and impartial
investigation. First, Kamila claims the IOA investigator told B.W. and Brother that he
34
was already familiar with Kamila from previous complaints, which suggests that the
investigator already had made up his mind about Kamila based on prior unsubstantiated
allegations of misconduct before the investigation began. But there is nothing in the
record to indicate that the investigation into Kamila's conduct was biased, rushed, or
influenced by outside pressure or politics; in fact, quite the opposite. Not only did the
IOA review an extensive amount of documentary evidence, but it also conducted
interviews with the victims and potential witnesses as well as with Kamila.
Next, Kamila alleges the University used unverified reports indicating that he was
expelled from Kansas State University for sexual misconduct, a final Protection from
Stalking order (PFS) from Sedgwick County that expired in 2015, and other IOA
complaints as evidence against him to support his expulsion. Kamila acknowledges this
issue was not properly preserved for appellate review because he failed to raise it at either
the administrative or district court proceedings below. See K.S.A. 77-617 (limiting
judicial review of issues not raised before the agency).
But even if Kamila had properly preserved the issue, his argument would not
entitle him to relief. On August 10, 2017, the University hearing panel held an
administrative evidentiary hearing in this matter. On August 17, 2017, the University
hearing panel sent a letter to the Vice Provost for Student Affairs recommending that
Kamila be expelled. The 23-page, single-spaced letter set forth detailed findings of fact,
conclusions of law, and policy reasons for its recommendation. After recommending the
sanction of expulsion and the reason for such a severe sanction, the hearing panel stated
that it
"did not consider other pending cases at The University of Kansas or at other universities or
courts when making a determination for responsibility. Information shared in the hearing
materials and hearing regarding other situations were considered to determine sanctions. [Kamila]
admitted to being expelled or suspended from Kansas State University for 'disciplinary actions',
35
has an Order of Final Protection from Stalking issued by the Sed[g]wick County, KS District
Court and currently has two other No Contact Directives at the University of Kansas. While these
were not considered for the purposes of deciding whether [Kamila] violated University policy
with respect to [B.W.] and [E.T.], these facts show a pattern of behavior and lack of
understanding or ability to comport himself appropriately that only further confirms our sanction
recommendation." (Emphasis added.)
Based on the placement and the content of this language, it appears the hearing
panel believed the information from Kansas State University, the PFS order from
Sedgwick County, and the other IOA complaints simply confirmed what it already had
recommended—that the sanction of expulsion was the appropriate one. But even if we
were to construe the hearing panel's postrecommendation statement as a stated basis for
its decision to recommend expulsion, the agency decision from which Kamila appeals is
not the hearing panel's recommendation but instead the August 24, 2017 letter from the
Vice Provost informing Kamila of the University's decision to expel him from the
University for nonacademic misconduct. Unlike the hearing panel, the agency decision
does not rely on the information from Kansas State University, the PFS order from
Sedgwick County, or the other IOA complaints in determining sanctions, as evidence
against him to support his expulsion:
"I carefully considered the hearing panel's recommended sanctions. I gave weight
to the severity of your conduct toward [B.W.] and [E.T.], particularly when you were on
prior notice regarding University expectations and policies prohibiting sexual harassment
and stalking. You had every opportunity to conform your behavior to University
standards, including through prior interactions with IOA and after receipt of notice of the
investigations that formed the basis for this action, and still did not do so. This illustrates
your conduct would be likely to continue and threaten additional members of the
University community if allowed to remain at KU. In addition, you have not exhibited any
awareness that you understand the seriousness of your behavior or given any indication
that you are willing or able to be educated to prevent future behavior along the same lines.
36
As a result of the foregoing, you are hereby . . . [e]xpelled from the University . . . without
terms for readmission."
Equal opportunity to present case
Kamila argues that the University's findings were arbitrary and capricious because
he was not given an equal opportunity to present his case before the hearing panel. In
support of this claim, Kamila notes that the hearing panel "never found [him] to be
credible on any subject, but found [B.W.], [E.T.], and all of their witnesses to be entirely
credible." He specifically points to the order in which the witnesses testified. For
example, he notes that before he had an opportunity to testify, Brother testified that "he
'didn't want [Kamila] to shoot up a school or murder [B.W.].'" As a result, Kamila claims
the hearing panel "was looking down on a dangerous man who may shoot up the school"
by the time he was able to give his side of the story. Kamila concludes these
circumstances made it impossible for him to get a fair hearing.
While it is true that Brother made some hyperbolic statements during his
testimony, he quickly identified them as such and, beyond mere speculation, Kamila
points to no evidence that those comments improperly influenced the hearing panel.
There is similarly no evidence to suggest that the hearing panel was in any way biased
against Kamila. And the record reflects that Kamila had an ample opportunity to present
his case. He received notice of the formal hearing at least two weeks in advance and
already had hired an attorney to represent him before he received that notice. In the notice
he received, Kamila was advised of the detailed factual allegations lodged against him
and the applicable sections of the Student Code he was alleged to have violated. Kamila
was advised that he could have up to three advisors attend the hearing, that he could
submit written materials into the Formal Hearing Panel file, and that he could review the
entire Formal Hearing Panel file beginning three days before the hearing.
37
At the hearing, Kamila appeared in person and with his attorney, who cross-
examined both of the alleged victims and three of the five witnesses presented by B.W.
and E.T. Kamila had the opportunity, but declined, to cross-examine the other two.
Kamila presented testimony from two witnesses and testified on his own behalf in the
form of an uninterrupted narrative, where he had the opportunity to "to tell [his] side of
the story" and "explain [himself]." Before the hearing, Kamila submitted 137 pages of
documentary evidence for review by the hearing panel and referenced that evidence
during his testimony. After Kamila's testimony, Kamila gave a closing statement.
The record reflects Kamila had the opportunity to, and did, vigorously defend
himself at the hearing against the IOA allegations. Kamila had the opportunity to cross-
examine all of the witnesses (including B.W. and E.T.), to testify in his own defense, and
to present evidence supporting his version of events. That the hearing panel did not
ultimately believe his story does not mean that he was not given an equal opportunity to
be heard.
Specific findings of fact
Finally, Kamila claims that the decision to expel him was arbitrary and capricious
because the University failed to make specific findings of fact. But the record itself
disproves Kamila's claim. The hearing panel's decision in this matter was 23 pages long.
The Vice Provost's letter expelling Kamila was 19 pages long. Both letters set forth
countless specific and detailed factual findings, along with rationale for their findings,
recommendations, and decisions.
Affirmed.
38