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Banned From Blogging

June 6, 2013

Students say plenty online that their professors might find unprofessional, offensive or irresponsible. And in most cases, if students are at a public institution and they are using social media platforms that aren't connected to their colleges, the First Amendment protects those Facebook pages and Twitter feeds.

But a new federal appeals court ruling is part of a trend in which courts are permitting limits on students' social media use (and punishment for violations) in fields in which part of the instruction is training in professional ethics (especially in the health professions) that include confidentiality obligations.

In this case, the U.S. Court of Appeals for the Sixth Circuit has ruled that the University of Louisville had the right to dismiss a nursing student who blogged about a patient's experience giving birth. Further, the court found that this action by the university was academic in nature, as the university argued, and not disciplinary, as the student argued. The distinction is important because students are entitled to considerably more due process for disciplinary dismissals at public institutions than they are for academic dismissals.

Nina Yoder sued Louisville when she was dismissed from the nursing program in 2009. In a sign of how long this case has been in the courts, her blogging platform was MySpace. While there have already been several rulings in the case as it has moved between district and appeals courts, the new findings focus directly on First Amendment issues. Yoder claimed that she had a First Amendment right to share her reflections on a pregnant woman she observed as part of her training, and she also asserted that pledges she signed to honor patient confidentiality were themselves unconstitutional. But the appeals court rejected those arguments. Yoder also gave the pregnant woman a release form in which Yoder pledged to use the patient's experiences "only for written/oral assignments."

What Yoder did was write about the patient on MySpace, describing the birth as "The Popping," criticizing myths about pregnancy making women glow, and generally expressing views that might not be in the hospital brochures for those expecting. She described having children as being "like being ripped apart by rabid monkeys." Much of this alone would not have been grounds for dismissal, the court ruling suggests, as the Louisville comments did not bar blogging about medical issues generally.

But the blog post also described specific medical procedures witnessed on an individual who had consented only to be observed for Yoder's classwork. The blog described the mother receiving an epidural, the reaction of the father to parts of the process, the mother throwing up at one point, and the eventual arrival of a healthy baby girl, whom Yoder called "The Creep."

The appeals court panel noted the absence of a Supreme Court ruling on the question of off-campus digital speech. But it noted that other appeals courts have ruled that First Amendment rights of students are not absolute, and that there may be legitimate reasons for educational institutions to avoid "disruption." The appeals court stressed the nature of the education Yoder had been receiving and said that there were "unique circumstances posed" in health-related education.

No court ruling, the appeals panel ruled, "undermines a university's ability to take action against a nursing (or medical) student for making comments off campus that implicate patient privacy." The ruling further noted that Yoder had access to the pregnant woman only because she was a nursing student, and that this created an obligation to abide by the university's rules to protect patient privacy.

Even if Yoder had a First Amendment right to blog about her experience watching childbirth, the judges added, the university was entitled to believe that Yoder "affirmatively waived that right" by signing the various agreements she made with the university.

Another part of the ruling may also be significant. Louisville said that it dismissed Yoder as an academic matter, but she argued that this was a disciplinary ruling. The appeals court said that it is incorrect to suggest that only questions about academic work (for example, failing too many courses) would be considered an academic dismissal. Issues having nothing to do with grades can be academic, the court ruled.

The court noted that nursing students were required to sign agreements pledging to respect patient confidentiality to advance to the clinical portion of their education. Further, the nursing school taught students why confidentiality mattered. In this context, the appeals court said, "the required conduct was a component of Yoder's coursework, not part of a general student code of conduct."

For these and other reasons, the court upheld a dismissal of Yoder's claims.

In another recent case covering some similar issues, the Minnesota Supreme Court last year upheld the right of the University of Minnesota to punish a mortuary science student for posts on Facebook that made fun of a cadaver.

 

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