A divided federal appeals court on Wednesday upheld a lower court's ruling that a Minnesota community college was justified when it kicked a student out of a nursing program because of Facebook comments administrators deemed to be unprofessional and threatening to fellow students.
But the judges in the 2 to 1 decision disagreed on whether posts on a personal Facebook page about a course and one's classmates qualify as speech over which an academic institution can discipline a student. Central to the rationale of those upholding the college's decision was that the student was enrolled in a health professions program with a code of ethics.
The ruling by the U.S. Court of Appeals for the Eighth Circuit involved conflict among students in an associate degree program in nursing. In fall 2012, two students complained to administrators about comments on the Facebook page of another student, Craig Keefe. One comment expressed frustration with fellow students' use of a pencil sharpener and said he would "take this electric pencil sharpener in this class and give someone a hemopneumothorax with it before to long. I might need some anger management." Another referred to a student who Keefe believed was reporting him to authorities as a "bitch."
Administrators at the college brought Keefe in for a meeting and, after concluding that he did not understand why the comments were unprofessional, opted to remove him from the nursing program (though giving him a chance to transfer his credits to another program at the college). Central Lakes cited the American Nurses Association's Code of Ethics, on which the college based its own code in its student handbook, in removing him. The college rejected an internal appeal, and Keefe sued.
Keefe argued that Central Lakes violated his First Amendment rights by removing him from the nursing program “for comments on the internet which were done outside of class and unrelated to any course assignments or requirements, and did not violate any specific rules.”
The majority of the appeals panel rejected his arguments on several fronts. The Eighth Circuit panel noted that "many courts have upheld enforcement of academic requirements of professionalism and fitness, particularly for a program training licensed medical professionals …. Given the strong state interest in regulating health professions, teaching and enforcing viewpoint-neutral professional codes of ethics are a legitimate part of a professional school’s curriculum that do not, at least on their face, run afoul of the First Amendment."
Lawyers for Keefe, who included representatives of the Foundation for Individual Rights in Education, Alliance Defending Freedom and the American Civil Liberties Union of Minnesota, argued that treating a student's speech as unprofessional and a violation of academic requirements demands that the speech be made in an academic context. Online, off-campus Facebook postings should not qualify, they argued.
"Keefe framed this contention categorically, arguing that a college student may not be punished for off-campus speech unless it is speech that is unprotected by the First Amendment, such as obscenity," the majority decision said. "We reject this categorical contention. A student may demonstrate an unacceptable lack of professionalism off campus, as well as in the classroom, and by speech as well as conduct."
Jane Kelly, the third member of the Eighth Circuit panel, dissented in part from the majority ruling, disagreeing on this last point. "Keefe’s Facebook posts were not made as part of fulfilling a program requirement and did not express an intention to break specific curricular rules," she wrote.
"A number of longstanding First Amendment doctrines leave public schools and universities ample room to discipline students based on what they say on campus or in academic assignments," she wrote. "But these traditional exceptions do not apply to off-campus speech unrelated to academic assignments, like Keefe’s Facebook posts."
Will Creeley, vice president of legal and public advocacy at the Foundation for Individual Rights in Education, said in an interview Wednesday that the Eighth Circuit's "deeply disappointing" decision had "opened a dangerous door that will allow colleges and universities to do an end run around the First Amendment."
He continued, "The idea that students are somehow professionals as soon as they matriculate, and that if they say something anywhere online that a watchful administrator deems to be out of line with a vague subjective notion of professionalism, they can be censored, is very disturbing." Under this ruling, he said, "as soon as you sign up for a public university program that has incorporated a professional code of ethics, you're on the clock at all hours."
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