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Personal or Professional?

A Black student at the University of Tennessee's pharmacy school is suing the institution for punishing her for social media posts that violated "professionalism" standards she believes are overly broad and racially targeted.

February 15, 2021
 
VIA Productions and Breezy Lucia/FIRE
Kimberly Diei, a pharmacy student at the University of Tennessee, is suing the university over its professionalism policies for medical students.

Kimberly Diei, a second-year doctoral student at the University of Tennessee Health Science Center's College of Pharmacy, said she has a “mind for medicine” and decided to pursue pharmacy as a way to touch the lives of a range of patients.

Diei got her bachelor’s degree in biological sciences at the University of Chicago, which is considered one of the nation’s most academically rigorous colleges. She is a frequent participant in class, so much so that she said classmates have complained and approached her about limiting her speaking time.

She said the “toxic” and targeted comments by classmates soon escalated into formal reports, as fellow pharmacy students began to monitor and anonymously share Diei’s personal social media posts with college administrators, claiming they were in violation of the Memphis health science center’s “professional standards” for students studying health and medicine.

The offending content -- more than 17 tweets and posts under her Instagram and Twitter pseudonym, KimmyKasi -- included a selfie of Diei wearing a top that exposed her cleavage and profane rap lyrics she wrote based on the Cardi B and Megan Thee Stallion song, “WAP,” which had recently sparked a national conversation about women’s sexuality and empowerment. Diei said she personally identified with the song because it was made by and for people like her, “strong Black women who embrace our sexuality.”

Diei felt judged because of her race and her body. She wondered if a white classmate with smaller breasts had posted a photo in a low-cut top, would she have also been reported.

“Black women have always been sexualized,” she said, alluding to the way Black women and girls have been stigmatized and subjected to sexual stereotypes throughout American history. “And once we grow up, grow into our own bodies and embrace our sexuality, we’ve been punished for it.”

The first complaint about Diei in September 2019 landed her in front of the College of Pharmacy’s Professional Conduct Committee, which gave her a warning and ordered her to write a letter of reflection about the “crude” and “vulgar” posts, but did not formally outline any specific policy she had violated or how she violated the policy, or explain why the college objected to specific posts, she said. A second complaint made in August 2020 resulted in Diei’s expulsion, according to a lawsuit Diei filed on Feb. 5 in United States District Court for the Western District of Tennessee, which argues that the college’s enforcement of its professionalism policies violated her right to free speech in her private life.

The policy, recently listed online after Diei filed suit, is titled “Maintenance of Ethical and Professional Standards of the Health Professions.” It says health science center students can be disciplined for “unprofessional and unethical conduct which would bring disrepute and disgrace upon both student and profession” and that could “substantially reduce or eliminate the student’s ability to effectively practice the profession in which discipline he or she is enrolled.” Conduct “on, or off, university-owned or controlled property” is subject to the policy, the health science center website says.

Melissa Tindell, director of communications for the University of Tennessee system, which is named in the lawsuit along with system president Randy Boyd, declined to comment citing the pending litigation. Peggy Reisser, a spokesperson for the health science center, also declined to comment. Christa George, a clinical pharmacy professor and chair of the committee that expelled Diei, did not respond to a request for comment.

While Diei was reinstated at the college three weeks after she appealed the expulsion to the college's dean, Marie Chisholm-Burns​, she said she has had to censor her social media posts ever since and try to guess what might be deemed “inappropriate” because of the health sciences center’s vague policies on professionalism.

Diei says her lawsuit is about more than just her dispute with the college. She’s fighting on behalf of all medical students, especially women of color, who have been forced to curtail their self-expression by administrators who are "judging what’s appropriate and inappropriate" based on "how [it] makes them feel."

“It’s to ensure that other people, especially minorities, are allowed to have their voice and are allowed to live,” Diei said of her lawsuit. “We are more than student pharmacists. We are mothers, sisters and wives. We should be allowed to participate in those roles and live our lives without judgment and without the threat or the fear of losing out on this investment we’ve made to pursue these particular degrees.”

Diei’s case might be one of the first to challenge medical colleges’ professional conduct policies and get national attention, but her experience is certainly not a unique one, said Londyn Robinson, who is in her final year at the University of Minnesota Medical School. Robinson recently became a public advocate for women in medicine when she created the hashtag #MedBikini, which turned into a movement that encouraged female doctors and health-care workers to post photos of themselves in swimsuits.

It was a protest of “professionalism” norms espoused by the field, and in particular, a now-retracted article published in the Journal of Vascular Surgery that said photos in “provocative Halloween costumes, and provocative posing in bikinis/swimwear” are inappropriate.

Women studying and working in medical professions, particularly Black women, often find themselves held to “subjective” standards of social media use policies and how their posts are perceived, said Robinson, who is white. She said it’s frequently the classmates of the targeted women who report them for supposed violations of conduct codes in order to get a leg up in the hypercompetitive medical field. Students will report others to smear them and hurt their chances of getting future residency positions, she said.

“The competitiveness breeds this grotesque idea that it’s easier to report a Black woman or a woman of color for a perceived professionalism violation than it is to respect her,” Robinson said. “It culminates in bullying and getting picked on, being treated like you’re less than. You pray that the school will back you up, and if they don’t, they’ll ruin your life.”

A Black second-year medical student at a university in the Midwest said she was reported by classmates for tweets about her political views. In one of them, she objected to and was upset by students wearing pro-Trump “Make America Great Again” attire to class during final exams. Another post on Instagram reported to her college was a photo of her getting the COVID-19 vaccine; she was falsely accused of “jumping the line” to get the immunization, though it was being offered to medical students at the local health department, she said. Her institution didn’t punish her for either post.

In her view, it’s not just the “competitive nature” of medical colleges and the profession in general that lead to the reports by fellow students -- it’s racism. The vague professionalism policies leave “wiggle room” for students of color in particular to get flagged for social media posts and also leave all students confused about what the standards are, she said. Meanwhile, she’s seen racist and homophobic posts go unaddressed.

“I’ve had friends reported for talking about the George Floyd murder,” said the student, who did not want to be named because she feared retaliation from peers and her institution. “Our very existence, for some reason, is so offensive that they must find a way to undermine us.”

Robinson said she is “very privileged” to have received the support of her own medical school administrators, who praised her after she started #MedBikini. She said the support she got was in part due to her being white, and noted that how professionalism policies are enforced depend entirely on the institution and who’s in charge of enforcing the standards.

The faculty at the College of Pharmacy in Tennessee is majority white, as were the committees that evaluated Diei’s social media posts for violation of the professionalism policy, she said. Nearly 78 percent of the college’s faculty members are white, while almost 4.5 percent are Black, about 2 percent are Hispanic or Latino and about 14.5 percent are Asian, according to data provided in the health sciences center’s Faculty and Staff Factbook. Students enrolled in the college as of fall 2020 were 61 percent white, 16 percent Black, nearly 16 percent Asian and 3.7 percent Hispanic or Latino, a student enrollment factbook said.

U.S. Census Bureau data from July 2019 reported that the city of Memphis, where the college is located, is about 64 percent Black and 29 percent white.

Some associations for medical students and colleges have published guidelines for social media use, such as this 2019 article from the Association for American Medical Colleges and a 2016 blog post on the American Medical Student Association website, which encourage students not to “use defamatory, vulgar, libelous and potentially inflammatory language and do not display language or photographs that imply disrespect for any individual or group.”

The medical colleges' association article notes, however, that “there are almost no hard-and-fast rules to guide” what students should and should not post on social media, besides the well-understood rule to not post anything that could violate patient privacy, which is established in federal law.

Robinson called the professionalism standards “undefined” and “frankly absurd.” They crack down on posts that “aren’t illegal in any state and also interfere with the right to free speech,” she said. The Black medical student wondered, “What is professionalism?”

Greg Greubel, a staff attorney for the Foundation for Individual Rights in Education, or FIRE, which is representing Diei, said her lawsuit against the University of Tennessee is a “lead case” on the issue of college students’ social media freedoms. The courts have yet to firmly say whether it’s constitutional for graduate programs to uphold “vague” and “arbitrary” professionalism standards. Diei’s main contention is the health sciences center was unable to tell her exactly what it defines as inappropriate and appropriate off-campus speech, which leaves students unsure of their rights and the activities that can get them in trouble, Greubel said.

“We’re not saying in the lawsuit that everything that a student does on social media is perfectly fine and there are no bounds to what schools can discipline students for in social media speech,” he said. “If there are these bounds to the First Amendment’s protections on social media, we want to get some guidance on what those are.”

Jonathan Friedman, director of free expression and education at PEN America, a free speech advocacy organization, referenced a 2016 federal appeals court decision that was not favorable to the free speech rights of medical profession students. The Court of Appeals for the Eighth Circuit ruled in favor of Central Lakes College, a public institution in Minnesota, which expelled a nursing student for “behavior unbecoming of the Nursing Profession” on Facebook, including posting a comment disparaging a classmate. The court said “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.” The student’s request for the Supreme Court to review the case was rejected.

Another case, involving a Pennsylvania high school cheerleader who posted a Snapchat photo with profanities, will be heard by the Supreme Court later this year, after a federal appeals court determined her public school could not expel her for off-campus speech. Greubel said the Pennsylvania case has the potential to influence Diei’s lawsuit, and the social media speech rights of all students, but it doesn’t specifically address the unique standards of graduate or medical programs.

Friedman said an important aspect of the constitutionality of professionalism policies is that their enforcement “doesn’t have political bias or bias in any other way” and that they are “narrowly tailored, use clear, specific language, and that students sign something and are aware” of what’s being enforced. Though Greubel said Diei likely agreed to follow such standards, her lawsuit argues her college's policies were not “clear” or “specific” and were not clarified even after Diei requested more information from the College of Pharmacy.

Friedman said that it’s “extremely concerning” that institutions would be able to subject all of a person’s private discourse, unrelated to college or classes, to disciplinary oversight. Diei’s case “isn’t just interesting, it’s urgent,” he said. It also addresses students' demand for colleges to be more inclusive and equitable to people of color, he said.

“This case is the tip of the iceberg,” Friedman said. “When people think about what [professionalism codes] might declare in the most traditional sense, we think of Victorian-era notions of ‘prim’ and ‘proper.’ That is totally out of sync with the rising generation, the moment of racial reckoning in this country and the way that expression in clothing and art is evolving.”

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