by: Hanna Monson and Sarah Spangenburg

Introduction

One recent issue circulating the legal world involves whether schools can discipline students for social media posts. In January 2018, the University of Alabama expelled a nineteen-year-old freshman after she posted two videos of her racist rantings to her Instagram account.[1] Another user recorded and posted the video on Twitter, which subsequently went viral and instilled anger both at the University of Alabama campus and across the country. As the University of Alabama is a public university, the student’s expulsion has raised questions surrounding the constitutionality of dismissing a student for using offensive speech. To further consider this constitutional issue, this post highlights some of the arguments made in a factually similar case Keefe v. Adams (8th Cir. 2016).[2] The Eighth Circuit concluded that a student who was removed from the Nursing Program of a college after he posted Facebook posts indicating frustration towards other students in the program did not have his First Amendment nor due process rights violated. While this Eighth Circuit case is the focus of our discussion, it is important to note that a case of this sort has also arisen in the Fifth Circuit, Bell v. Itawamba County School Board, where the Fifth Circuit also decided against the student and determined that his First Amendment free speech rights were not violated.[3]

Facts

Craig Keefe was a student in the Associate Degree Nursing Program at Central Lakes College.[4] Two students complained about posts the Keefe made on his Facebook account.[5] After a meeting with CLC Director of Nursing Connie Frisch during which “[Keefe] was defensive and did not seem to feel responsible or remorseful,” Frisch made the decision that Keefe should no longer be in the program.[6] In a letter sent to Keefe after the meeting, Frisch expressed concerns about Keefe’s professionalism and inability to represent the nursing profession because of his posts.[7] All students enrolled in this program had to follow the Nurses Association Code of Ethics, which included guidance on issues such as “relationships with colleagues and others,” “professional boundaries,” and “wholeness of character.”[8] Keefe appealed this decision to Vice President of Academic Affairs, Kelly McCalla, but the appeal was denied, prompting this lawsuit.[9]

First Amendment Claims

Keefe first contends that his First Amendment rights were violated because “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.”[10] The Eighth Circuit addressed first the threshold question of whether a public university may even adopt this Code of Ethics.[11] The court held that the state has a large interest in the regulation the health profession, and “[b]ecause professional codes of ethics are broadly worded, they can be cited to restrict protected speech.”[12]

The court then considered Keefe’s contention that the university violated his First Amendment rights. The court held that “college administrators and educators in a professional school have discretion to require compliance with recognized standards of the profession, both on and off campus, ‘so long as their actions are reasonably related to legitimate pedagogical concerns.’”[13] Keefe’s words showed that he was acting contrary to the Code of Ethics, and “compliance with the Nurses Association Code of Ethics is a legitimate part of the Associate Degree Nursing Program’s curriculum . . . .”[14] The posts targeted and threatened his classmates and impacted their education, as one of the students stated she no longer wished to be in the same clinical as Keefe.[15] Keefe’s words also had the possibility of impacting patient care because adequate patient care requires the nurses to communicate and work together.[16] The court did not wish to interfere with Frisch’s discretion in deciding that Keefe’s actions showed that he was not fit for the profession, and the First Amendment did not prevent Frisch from making this decision.[17] Given that the district court had granted the defendant’s motion for summary judgment on the First Amendment claims, the Eighth Circuit affirmed.[18]

Due Process Claims

The second issue presented in this case was whether a violation of due process existed. Keefe argued that the Defendants violated his Fourteenth Amendment right to due process when he was removed from the Associate Degree Nursing Program.[19] Supreme Court precedent states that “federal courts can review an academic decision of a public educational institution under a substantive due process standard.”[20] One key inquiry is whether the removal was based on academic judgment that is not beyond the pale of reasoned academic decision making.[21] Even if a substantive due process claim is cognizable in these circumstances, there is no violation of substantive due process unless misconduct of government officials that violates a fundamental right is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience” of federal judges.[22] Here, the court determined that Keefe’s removal rested on academic judgment that was not beyond the pale of reasoned academic decision making.[23] Ultimately, the court determined that Keefe had no substantive due process claim.[24]

The court also analyzed the procedural due process claim that Keefe presented. Citing Goss v. Lopez[25], the Eighth Circuit highlighted that the Supreme Court has held that even a short disciplinary suspension requires the student “be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.”[26] The court believed that the Keefe’s removal after a disciplinary proceeding provided the kind of inquiry that involved effective notice and allowed Keefe to give his version of the events, thereby preventing erroneous action.[27] Ultimately, the court concluded that Keefe was given the due process he was required by the Fourteenth Amendment.

Conclusion

Ultimately, this issue presents free speech concerns for students. The decisions of the Eighth and Fifth Circuits seem to showcase that students’ free speech rights seem to stop at the door of the school, which contradicts much Supreme Court precedent. The prevalence of social media in today’s society ensures that this issue will continue to exist, and the Supreme Court one day might weigh in.

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[1] Marwa Eltagouri, She was expelled from college after her racist chants went viral. Her mother thinks she deserves it.,Wash. Post (Jan. 19, 2018), https://www.washingtonpost.com/news/grade-point/wp/2018/01/19/she-was-expelled-from-college-after-her-racist-rants-went-viral-her-mother-thinks-she-deserves-it/?utm_term=.b0cd4c397d35.

[2] The full opinion can be found at: http://media.ca8.uscourts.gov/opndir/16/10/142988P.pdf.

[3] Mark Joseph Stern, Judges Have No Idea What to Do About Student Speech on the Internet, Slate (Feb. 18, 2016 5:15 PM), http://www.slate.com/articles/technology/future_tense/2016/02/in_bell_v_itawamba_county_school_board_scotus_may_rule_on_the_first_amendment.html.

[4] Keefe v. Adams, 840 F.3d 523, 525 (8th Cir. 2016).

[5] Id.at 526.

[6] Id. at 526–27.

[7] Id. at 527–28.

[8] Id. at 528–29.

[9] Id. at 526, 529.

[10] Id. at 529.

[11] Id. at 529–30.

[12] Id. at 530.

[13] Id. at 531 (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988)).

[14] Id.

[15] Id. at 532.

[16] Id.

[17] Id. at 533.

[18] Id.

[19] Id. at 533.

[20] Regents of University of Michigan v. Ewing, 474 U.S. 214, 222 (1985).

[21] Keefe, 840 F.3d at 533-34.

[22] Cnty. of Sacremento v. Lewis, 523 U.S. 833, 847 n.8 (1998) (quotation omitted).

[23] Keefe, 840 F.3d at 534.

[24] Id.

[25] 419 U.S. 565, 581 (1975).

[26] Keefe, 840 F.3d at 535.

[27] Id.

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